law on evidence
INTRODUCTION Q: What is the difference between the layman's concept of evidence and its legal concept? A: Not every means of proving is acceptable in court. What is acceptable in an ordinary conversation may not be acceptable in a court of justice. It must be sanctioned by the rules, because if evidence is purely common sense and logic, there is no need to study the subject. You have to study the subject because the manner of doing it (proving) may be acceptable to a layman but may not be acceptable in court.
REVISED RULES ON EVIDENCE In Rule 128, these provisions already tell you a lot about the law on evidence. For example, section 3 already tells you the axiom of competency and the axiom of relevancy. Section 4 also defines what circumstantial evidence is. Let us fast forward to the future, what if a prospective client approaches you and tell you a story. In all probability, he will tell you what proof he has to have to establish a claim against the defendant. As a lawyer, what questions will you ask to establish cause of action or a defense by filing the appropriate case before a court of justice? Jose Diokno summarized the entire rules on evidence by asking these questions. 1. What facts must be established for the cause of action or defense to succeed? 2. Which of these facts or even the evidentiary facts tending to prove such facts are deemed proved without having to present evidence? 3. Who must establish the facts that needed to be proven 4. What degree of proof is needed of the facts? 5. What available evidence is admissible to prove these facts? 6. How do I obtain the evidence I need and preserve it for use at the trial? 7. How do I present and offer the evidence at the trial? What facts must be established for the cause of action or defense to succeed? Before answering this question, what are the types of facts: 1. Factum probandum – ultimate facts 2. Factum probans – evidentiary facts The answer to the question is ultimate facts. The same facts required to be in the pleading. The facts that are ultimately proven in the trial. for example, in the case of murder, the ultimate fact is the fact that the accused killed the victim and attended by qualifying circumstance. Ultimate facts vis-a-vis evidentiary facts must of necessity be proven. Otherwise, cause of action or the defense will necessary fail. for example, in a breach of contract--you must prove that there is right, obligation, violation and although not written in some books, damage. How will u know what ultimate facts be stated so as not to be dismissed under Rule 16? Do you simply rely on what the client tells you? No. we refer to substantive law which creates or defines rights. So you must consult substantive law.
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law on evidence Who is your main source of evidence? The client. Now, therefore it is very important for you to have a thorough knowledge on substantive law to apply it to the law on evidence. Which of these facts or even the evidentiary facts tending to prove such facts are deemed proven already without having to present evidence? There are several of this under the rules particularly Rule 129. Also under the same rule, we have the concept of judicial admissions. No need to prove by presenting evidence. For example: Laws of nature = tulak-hulog-injury, gravity, etc. Admissions = ex. Corona admitted dollar account – no need to prove because it is already admitted. When a fact falls within the realm of judicial notice or within judicial admissions, no need proof. BUT NOT EVERYTHING IS SUBJECT TO JUDICIAL NOTICE OR BE ADMITTED, so you need to know what facts need to be proved. Who must establish the facts that needed to be proven? Onus probandi – the burden of proof Burden of proof is one side of a coin because if you have the burden of proof the other side has the benefit of assumption. Burden of proof is the opposite of benefit of assumption. for example, in a Criminal case, there is a Presumption of innocence – accused has benefit of assumption, meaning if no evidence is presented the person who has this benefit must prevail. Burden of proof is the duty to present evidence on the disputed facts of the case necessary to establish ones claim or defense by the amount of evidence required by the law. So in criminal case the prosecutor has the burden to establish a prima facie case to rebut the benefit of assumption so the defendant has now the burden of proof to prove that the prima facie case is wrong. What happens if in the case the accused sets up justifying circumstance? There will be a reverse trial order because he already hypothetically admits the offense it is just that it is justified, so what is the burden of proof- it is clear and convincing evidence not beyond reasonable doubt because this applies only to the proof required in establishing the guilt not the justifying circumstance. In civil case, it is the same, like answer with affirmative defense. Burden of proof has two meanings 1. burden of persuasion – burden of establishing prima facie case, burden of convincing the judge all the elements of the cause of action 2. Burden of proof going forward – when a party has establish a prima facie case or defense by evidence of such character that it is then incumbent upon the other party to rebut it or contradict, the burden is shifted from one party to the other. What is the test to determine who has burden of proof? Very simple just ask which party will be unsuccessful if no evidence is produced. A party who asserts a claim has the burden to prove the claim and a party entitled to a relief is not given the relief if he has not offered any proof.
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law on evidence Effect of presumptions In this type of presumption, the general rule changes. The GR is he who alleges has the burden of proof but if there is a presumption this GR does not apply. Example: Res ipsa loquitor – the thing speaks for itself Republic vs Luzon Stevedoring – barge collided with the post of a bridge so who is at fault? Of course it’s the barge What degree of proof is needed of the facts? Look at weight and sufficiency of the evidence – may involve quality or quantity of evidence. What available evidence is admissible to prove these facts? This is a question of admissibility. Section 3 of Rule 128. You ask: IS THIS EVIDENCE RELEVANT? Ex. 1. Actionable document – breach of promise to marry? Not relevant 2. Bullet – crime of murder by means of stabbing? Not relevant There must be a connection to the ultimate fact to be proved IS THE EVIDENCE MATERIAL? Here you determine if the evidence is material IS THIS EVIDENCE EXCLUDED? Ex. 1. Violation of the right to privacy, 2. product of illegal search, 3. wiretap: GR: not admissible except when the CA orders to wiretap if suspected as terrorist., 4. hearsay evidence 5. marital disqualification – you cannot testify against your husband as long as marriage is subsisting 6. Not allowed to present photocopy if the original is available – best evidence rule 7. Opinion evidence: GR = not admissible How do I obtain the evidence I need and preserve it for use at the trial? Main source of evidence is the client. If the client has not enough evidence, go to modes of discovery Rule 23 to 29 even subpoena duces tecum or ad testificandum, pde din search warrant How do I present and offer the evidence at the trial? It depends on the type of evidence Documentary – prove the contents of the document Object or demonstrative– address to the senses ex. Book’s color Testimonial – that type which has the greatest effect on the trial of facts because the judge can witness the demeanor of the witness. Is it credible or incredible. Also, without it, there could not be documentary or object evidence. These other types has to be sponsored by testimony.
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law on evidence
RULE 128 GENERAL PROVISIONS Section 1. Evidence defined. — Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. What does “sanctioned by these rules” mean? “Sanctioned by these rules”—evidence that is allowed by the rules of court. However, the Rules of court is not the sole repository of the rules and principles of the law relating to the evidence. Other sources: 1. Article 1403 (2)—statute of frauds. The law says that it must be in writing. If it is not in writing, it is unenforceable. If so, then it cannot be proven or no sufficient memoranda of the same. 2. Torts and damages Article 2199 Article 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages. this is an evidentiary rule because this tells you that you cannot be awarded damages unless you are able to prove actual pecuniary loss. 3. Article 2216: Article 2216. No proof of pecuniary loss is necessary in order that moral, nominal, temperate, liquidated or exemplary damages, may be adjudicated. The assessment of such damages, except liquidated ones, is left to the discretion of the court, according to the circumstances of each case. it is an evidentiary rule because if you are claiming for moral damages, you don’t have to show proof any actual pecuniary loss 4. Res ipsa loquitor—it shifts the burden of proving that you are not negligent. What does “judicial proceeding” mean? “in a judicial proceeding”—we follow law on evidence strictly in judicial proceedings. As a general rule, if administrative or quasi judicial, rules of evidence do not apply. By an exception, if the rules of procedure of such administrative or quasi judicial body allows the application of the rules of evidence and the rules of court, then they are applied. SAMAR ELECTRIC COOP V. NLRC The technical rules of evidence are NOT strictly followed in LABOR cases under Article 221 of the labor code: Art. 221. Technical rules not binding and prior resort to amicable settlement. In any proceeding before the Commission or any of the Labor Arbiters, the rules of evidence prevailing in courts of law or equity shall not be
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law on evidence controlling and it is the spirit and intention of this Code that the Commission and its members and the Labor Arbiters shall use every and all reasonable means to ascertain the facts in each case speedily and objectively and without regard to technicalities of law or procedure, all in the interest of due process. In any proceeding before the Commission or any Labor Arbiter, the parties may be represented by legal counsel but it shall be the duty of the Chairman, any Presiding Commissioner or Commissioner or any Labor Arbiter to exercise complete control of the proceedings at all stages. Any provision of law to the contrary notwithstanding, the Labor Arbiter shall exert all efforts towards the amicable settlement of a labor dispute within his jurisdiction on or before the first hearing. The same rule shall apply to the Commission in the exercise of its original jurisdiction. (As amended by Section 11, Republic Act No. 6715, March 21, 1989) For labor arbiters, there is no more trial type process. In other words. There is conference between parties to discuss amicable settlement, or complaint of employee discussed but other than that, there is no hearing for purposes of receiving evidence. Cases decided on submission of position papers. The very nature of the proceedings in the labor arbiter is that it is SUMMARY and very INFORMAL. CATHAY PACIFIC V. NLRC (August 2, 2001) CATHAY next argues that the Court of Appeals erred in not admitting as evidence the affidavit of Dr. Fahy. We agree. The appellate court may have overlooked the principle in labor cases that the rules of evidence prevailing in courts of law or equity are not always controlling.[10] It is not necessary that affidavits and other documents presented conform to the technical rules of evidence as the Court maintains a liberal stance regarding procedural deficiencies in labor case.[ Section 3, Rule V, of the New Rules of procedure of the NLRC specifically allows parties to submit position papers accompanied by all supporting documents including affidavits of their respective witnesses which take the place of their testimonies. [12] Thus, the fact that Dr. Fahy was not presented as witness to identify and testify on the contents of her affidavit was not a fatal procedural flaw that affected the admissibility of her affidavit as evidence. COMMENT: the usual manner of presenting evidence in judicial cases DO Not apply in labor cases. In judicial cases—oath, info elicited is not he is not allowed to narrate but here has to be questions, not allowed to lead. Documents have to be sponsored by witness and authenticated. But in labor cases, all you have to is to pass your affidavits and documentary evidence and that is automatically admitted. So in labor cases, there is no reference to technical rules of evidence. How does hearing officer ascertain the facts to enable him to come up with his ruling? see HORNALES V. NLRC. HORNALES V. NLRC Notwithstanding the foregoing, it must be emphasized that the proceedings before the POEA is non-litigious in nature. The technicalities of law and procedure and the rules obtaining in the courts of law shall not strictly apply thereto and a hearing officer may avail himself of all reasonable means to ascertain the facts of the case. [
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law on evidence What then is “REASONABLE MEANS”? see KANLAON V. NLRC. KANLAON V. NLRC Indeed, the labor arbiters and the NLRC must not, at the expense of due process, be the first to arbitrarily disregard specific provisions of the Rules which are precisely intended to assist the parties in obtaining the just, expeditious and inexpensive settlement of labor disputes. The opportunity to be heard is discharged in labor cases by means of submission of position papers. That’s it! That’s how he ascertains the facts. What are “facts”? “fact”—there are 2 kinds of facts. ULTIMATE AND EVIDENTIARY FACTS. 1. ULTIMATE FACTS OR FACTUM PROBANDUM -
Are the principal, determinative and constitutive facts, the existence of which the plaintiffs’ cause of action rests. It does not refer to the details of probative matter or a particular evidence by which these materials or elements are established. In other words, they are the PROPOSIITONS that need to be established. They are by their nature hypothetical.
2. EVIDENTIARY FACTS OR FACTUM PROBANS -
-
Facts which are necessary for the determination of ultimate facts. They are premises by which the conclusions of ultimate facts are based. So if ultimate fact is that “a killed B”, that is hypothetical..you use an evidentiary fact to arrive at the proposition being the constitutive fact. How to prove? Evidentiary facts. i.e. fingerprints found on scene, cause of death of victim, positive identification of the accused Evidentiary facts are brought forward as the reality brought to the tribunal saying that the factum probandum is correct. DISTINCTIONS ULTIMATE FACTS
EVIDENTIARY FACTS
Factum probandum Proposition to be established
Factum probans and intermediate facts Material evidencing the proposition and therefore .. Non hypothetical, existent
Something yet to be established; by its nature hypothetical What is a “matter of fact”?
“a matter of fact” – an issue of fact or a question of fact. Remember that if it’s a pure question of law, you don’t need evidence. just look at the law. Was it violated? Or constitutional or unconstitutional? Pure question of law. What is Question of fact? What is question of law? Of mixed question of fact and law? See Cano v. chief
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law on evidence
CANO V. CHIEF OF PNP, November 22, 2002 There is a question of fact when doubt or difference arises as to the truth or falsehood of the alleged facts, and there is a question of law where the doubt or difference arises as to what the law is on a certain state of facts. We therefore apply only the rules of evidence when there is a question of fact. If law, disregard evidence. Just apply the law on the given state of facts. No need to prove anything during the trial. Coz its purely of legal question. Recall RULE 30, SECTION 6—AGREED STATEMENT OF FACTS. Section 6. Agreed statement of facts. — The parties to any action may agree, in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe. So here, there’s no more question of fact by way of effect of Rule 30, no need for introduction of evidence. Therefore, do not apply anymore. What if parties agree only on some facts and others they do not agree? Trial shall be held as to the disputed facts in such order as the court shall prescribe. I’d like to let you take note of the Dissenting opinion:
TAN V. PEOPLE, April 12, 2009 Court is not a trier of facts. The jurisdiction of this Court over cases elevated from the Court of Appeals is confined to the review of errors of law ascribed to the Court of Appeals, whose findings of fact are conclusive absent any showing that such findings are entirely devoid of any substantiation on record In an appellate remedy, CA is also a trier of facts. So if there is a question of fact, go to CA rather than the Supreme court. If question of fact – apply the rules of evidence If law—apply the law If mixed—apply both. If question of act, appeal is made to CA. if question of law, appeal is made to SC. If mixed question, appeal is made to the CA. there is still that factual issue although mixed with legal issue. In the Philippines, distinction is different because of the choice of remedy. In the US, determining if question of fact or law will determine the type of trial. If fact, trial by jury. Role of judge is to filter the evidence lang. if question of law, it is the judge who decides the case; a summary trial with the judge. Because the jury does not know the law. If mixed question sa US, so it is a combination of judge or jury trial. Although judge would be more involved.
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law on evidence
CLASSIFICATION OF EVIDENCE BASED ON NATURE 1. OBJECT/REAL EVIDENCE— Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. (Rule 130, section 1) o They are tangible evidence i.e. document itself 2.
DOCUMENTARY EVIDENCE—Rule 130, Section 2. Documentary evidence. — Documents as evidence consist of writing or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents. o Just to put things in proper perspective: 1,000 peso bill..does it contain letters, words, numbers, figures, symbols..YES. is it documentary evidence? Or object evidence? It depends! Ngano nimu xa ipresent as evidence. If the subject of inquiry would be proof of contents of this bill, then it is documentary evidence. But if the object of evidence is to merely address it to the senses of the court, then it is object evidence. So hybrid xa. Not exclusive on both.
3. TESTIMONIAL EVIDENCE—Oral or written assertions in the court as proof of the truth of what is being stated for as long as the witness of the testimony can perceive, and perceiving, can make their known perception to others, may be witnesses. o What’s perception? It is the exercise of your senses of sight, smell, hearing, taste and touch. Whatever you can see..you testify in court that the sky is blue..is that valid testimonial evidence? YES. That is derived from your senses. o Anything that can be perceived by your witness.
Subspecie Of Object Or Real Evidence 1. DEMONSTRATIVE EVIDENCE—this is evidence in the form of objects like maps, diagrams, tables or models that is in itself has no probative value but is used to illustrate and clarify the factual matter at issue broadly. It is as evidence not prohibited although not specifically mentioned in the rules of courts. o Example: powerpoint presentations. o Why subspecie? It is addressed to senses of the court but the object itself is not the evidence itself. It only helps to clarify the evidence. NOTE: Among the 3 classes of evidence: object, documentary and testimonial evidence, what is the hierarchy? PEOPLE V. LAVAPIE.
PHYSICAL EVIDENCE V. TESTIMONIAL EVIDENCE: PEOPLE V. LAVAPIE
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law on evidence
If the physical evidence on record runs counter to the testimonial evidence of the prosecution witnesses, conclusions as to physical evidence should prevail. It bears reiteration that physical evidence is that mute but eloquent manifestations of truth which rate high in our hierarchy of trustworthy evidence. [69] In the light of the physical evidence obtaining in this case, contrary to oral assertions cannot normally prevail. Greater credence is given to physical evidence as evidence of the highest order because it speaks more eloquently than a hundred witnesses. Example: how do you prove that a person died? By 100 witnesses that he fell on the 5 th floor or from the body of the deceased. certified by medico legal that he died through that. so the medico legal testimony is more weighty.
TESTIMONIAL V. DOCUMENTARY? GSIS V. CA Testimonial evidence is easy of fabrication and there is very little room for choice between testimonial evidence and documentary evidence (Marvel Building Corporation vs. David, 94 Phil. 376 [1954]). Generally, documentary evidence prevails overtestimonial evidence. So in hierarchy: 1. Object/real 2. Documentary 3. Testimonial—weakest but also the most important; it is the one who ties the object and documentary evidence. There are 2 types of TESTIMONIAL EVIDENCE: 1. ORAL TESTIMONY—one made in open court 2. WRITTEN TESTIMONY—affidavits, depositions.. Between the 2, which is given more credence? PEOPLE V. BALLENO ORAL TESTIMONY V. WRITTEN TESTIMONY PEOPLE V. BALLENO An affidavit is not a complete reproduction of what the declarant has in mind because it is generally prepared by the administering officer and the affiant simply signs it after it has been read to him. In any case, open court declarations take precedence over written affidavits in the hierarchy of evidence. Unlike written statements, there is flexibility on the part of the questioner to adapt his questions to elicit the desired answer in order to ferret out the truth. What about open court testimonies? It is better because there is an opportunity for cross examination. So whoever brings you to the witness stand, there is flexibility in the court. Classification as to whether it negates or affirms: 1. POSITIVE EVIDENCE—when a witness affirms that fact occurred or did not occur 2. NEGATIVE EVIDENCE –when witness avers tha tit did not see or knows the occurrence of a fact.
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law on evidence
Example: at the time of collision, was the headlight of vehicle turned on? POSITIVE: yes, it was turned on. POSITIVE: No, it was not turned on. (even if answer is couched in negative form, it still affirmed a fact that headlight was not turned on) NEGATIVE: Wa ko kabalo judge. Wa ko kabantay sir. I did not notice. (witness does not now or did not see the occurrence of the fact) PEOPLE V. MACALABA We have time and again ruled that mere denial cannot prevail over the positive testimony of a witness. A mere denial, just like alibi, is a self-serving negative evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters. As between a categorical testimony that rings of truth on one hand, and a bare denial on the other, the former is generally held to prevail. Simplified: what prevails is POSITIVE EVIDENCE. As to Materiality: 1. MATERIAL—evidence which tends to prove the fact in issue in a case; issue is determined by substantive law and allegations of parties in their pleadings. o If party alleges a fact and the other denies, there is an issue o What if sa plaintiff, he asserts a fact then the defendant does not negate. Defendant’s pleading here, tenders no issue. o Example: D obtained a loan from A evidence by promissory note. D failed to pay. A filed case on collection. Under substantive law, in oblicon, the right of creditor is to be paid. The creditor alleged obligation was unpaid. A’s argument is non-payment. D said he already paid. So issue nya is payment. So here, issues are already joined. Whether or not the loan obtained by D has already been paid or extinguished by agreement. So for plaintiff, what evidence is material that tends to prove that D did not pay? The promissory note. What about D, what material evidence which would tend to prove he paid? The receipt. o If D introduced as evidence the fact that they were classmates in elementary, that is not material. 2. IMMATERIAL EVIDNCE—one which does not tend to prove a fact or issue. As to admissibility: 1. COMPETENT—which is not excluded by the law or the rules. it simply means it is admissible. There are 2 axioms: relevancy and competency. Competent—admissible 2. INADMISSIBLE EVIDENCE – one excluded by the law or the rules. it fails the test of competency. Is there such a thing as incompetent evidence? YES but not as opposite of competent evidence. This refers to testimonial evidence. It is not qualified sa rules of testimonial evidence. Example: you want to present a doctor as expert witness but you failed to prove his qualifications and his qualifications are disputed. In that sense, he is incompetent as a witness. Or u want to present a witness to testify what he saw in a certain occurrence but it turns out that he wasn’t really there. RULES ON EXCLUSION
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law on evidence Review bill of rights: article 3, sections 2 and 3: 1. Section 2: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses, he may produce, and particularly describing the place to be searched, and the persons or things to be seized. 2. Section 3: the privacy of communication and correspondence shall be in violab1e except upon lawful order of the court or when public safety and order require otherwise. What is the effect of violating section 2 or section 3? Any evidence in violation of this or the preceding section shall be inadmissible for any purpose and in any proceeding. That is the rule of exclusion making the evidence inadmissible. 3. RULE 26, SECTION 5—ADMISSION BY ADVERSE PARTY : Section 5. Effect of failure to file and serve request for admission. — Unless otherwise allowed by the court for good cause shown and to prevent a failure of justice a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts. As to Relevancy: 1. RELEVANT—evidence which has tendency in reason to establish the probability or improbability of the fact in issue. It is one tending one to prove or disprove a material fact; has tendency to build an existence of a fact which is as a consequence to the determination of the fact which would be more or less probable than one without evidence. Relevancy is different form materiality. Materiality is one which tends to prove the fact in issue in a case. Like you want to prove payment, so present receipt. However, with respect to relevancy, it only has a tendency in reason to establish the probability or improbability of the fact in issue. Example: a case regarding the shooting of the person and the person was shot at long distance and shot in the middle of the eyes. During presentation of prosecution’s evidence, fiscal presented evidence that the accused used to be Olympic gold medalist in shooting. Does it tend to prove the case? NO. being an Olympic gold medalist means that you have killed somebody. But this has a tendency to prove that accused is the killer d/t his ability as sharp shooter. NOT REALLY DIRECTLY MATERIAL BUT RELEVANT. 2. IRRELEVANT/UNRELATED EVIDENCE—example: prosecution tends to prove that accused was gold medalist in boxing. It is irrelevant, immaterial, unrelated and therefore objectionable. Court must exclude it from the evidence. According to the need to infer or presume: 1. DIRECT—proof of the fact or the point in issue; proof that it believes establishes the truth or falsity of a fact in issue and therefore, does not arise from a mere presumption.
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law on evidence Example: who killed the victim? Accused. I saw him shoot the victim. (it directly points to the issue or fact in issue) 2. CIRCUMSTANTIAL— evidence not baring directly on the fact in dispute but on various attendant circumstances by which the judge may infer regarding the occurrence of the fact or issue in dispute. Example: who killed the victim? Accused. I saw him running away from the crime scene, he held a gun and his shirt was splattered with blood. (these are circumstances that may prove that he killed the victim) PEOPLE V. RAMOS Evidence is either direct or circumstantial. Direct evidence is that evidence which proves a fact in issue directly without any reasoning or inferences being drawn on the part of the fact finder. Circumstantial evidence is that evidence which indirectly proves a fact in issue. The fact finder must draw an inference or reason from circumstantial evidence. Under our Rules of Court, conviction based on circumstantial evidence is sufficient if: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Is conviction of an accused possible with direct evidence? YES. It is one preferred by the law. What about circumstantial evidence? YES. Provided al the 3 requisites are present in that case. As to Originality: 1. PRIMARY OR BEST EVIDENCE—evidence which the law regards as effecting the greatest certainty of the fact in issue; i.e. in torts and damages, what is the best evidence to prove entitlement of plaintiff? Best evidence is the production receipts. 2. SECONDARY – inferior or merely substitutionary evidence that which itself indicates another original source or information; i.e. photocopies. it alludes the fact that there is an original or a mere certified copy. Note: 1. Best Evidence Rule: Section 3. Original document must be produced; exceptions. — When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases:xxxxxxxx (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and (d) When the original is a public record in the custody of a public officer or is recorded in a public office. (In land titles and deeds, you have OCT kept by ROD. Why don’t u just present it in the SC? Because there is a case of immovability of records. ) as to Supporting Evidence: 1. CUMULATIVE EVIDENCE—Additional evidence on the same kind and character as to that already given and tends to prove the same proposition.
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law on evidence
2. CORROBORATIVE—additional evidence of different kind and character tending to prove the same point; deemed necessary only when there are reasons to suspect that the witness did not know the truth or that his observation has been inaccurate. (PEOPLE V. MANZANO, November 26, 2001) How does SC view these 2 kinds of evidences? Let us suppose fact in issue is that accused uttered defamatory words against complainant in a case for slander. If you prosecute an accused with crime for slander, do you have to present a hundred of witnesses despite its publicity? PEOPLE V. MANZANO Truth is established not by the number of witnesses but by the quality of their testimonies. PEOPLE V. EDGAR AYUPAN It is well-settled that the testimony of a lone witness – if found by the trial court to be positive, categorical and credible – is sufficient to support a conviction. This is so, especially if the testimony bore the earmarks of truth and sincerity and was delivered spontaneously, naturally and in a straightforward manner.12 Corroborative evidence is necessary only when there are reasons to suspect that the witness bent the truth, or that his or her observation was inaccurate. Evidence is assessed in terms of quality, not quantity. It is to be weighed, not counted. Therefore, it is not uncommon to reach a conclusion of guilt on the basis of the testimony of a lone witness. PEOPLE V. GUMAYAO This Court has consistently ruled that the testimony of a single prosecution witness, as long as it is positive, clear and credible is sufficient on which to anchor a judgment of conviction. Corroborative or cumulative evidence is not a prerequisite to the conviction of the accused. Truth is established not by the number of witnesses but by the quality of their testimonies.[ CLASS OF EVIDENCE as to controversion: 1. PRIMA FACIE—evidence that is sufficient to establish a fact and if not rebutted, becomes conclusive of a fact. Example: a. in bribery cases, acceptance of a gift is deemed prima facie evidence of bribery. Effect: burden of proof shifted to defendant. b. BP 22— To hold petitioner liable for violation of B.P. 22, it is not enough that the issued check was subsequently dishonored for insufficiency of funds. It must be shown beyond reasonable doubt that he knew of the insufficiency of funds at the time the check was issued.7 Hence, the law provides that he must be notified of the dishonor, thus: SEC. 2. Evidence of knowledge of insufficient funds. – The making, drawing and issuance of a check payment of which is refused by the drawee bank because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit, unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in
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law on evidence full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee 2. REBUTTING EVIDENCE— That which is given by a party in the cause to explain, repel, counteract or disprove facts given in evidence on the other side. The term rebutting evidence is more particularly applied to that evidence given by the plaintiff, to explain or repel the evidence given by the defendant. Example: evidence of promissory note—rebut it with payment, so produce receipts 3. CONCLUSIVE EVIDENCE— Evidence which is incontrovertible, that is to say, “either not open or not able to be questioned, as where it is said that a thing is conclusively proved, it means that such result follows from the facts shown as the only one possible. example: a. RULE 130, Section 9 : Section 9. Evidence of written agreements. — When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. (Parol Evidence Rule) xxxx b. Crime committed by child below 9 years old—how to establish that? Birth certificate. No discernment—no criminal liability d/t lack of intelligence so therefore, no mens rea. as To tenor of testimony (testimonial evidence) 1. ORDINARY EVIDENCE evidence which consists of testimonies of witnesses which are derived from his personal knowledge; one derived from his own perception. SPECIAL TYPES: 2. CHARACTER or REPUTATION EVIDECE evidence which attests to one’s character and moral standing in community; generally, one’s character of a party is legally irrelevant in determining the controversy, however, when allowed, character evidence must be limited to the traits and characteristics involved in the type of offense charged. Example: one is charged with falsification; then you present evidence that he falsified his driver’s license. Another thing, in probate of a will. 3. OPINION EVIDENCE—evidence of what the witness thinks, believes or infers in regard to facts in dispute as distinguished from personal knowledge of the facts themselves; rules of evidence do not usually allow witness to testify based on opinions and conclusions. 4. EXPERT EVIDENCE—consists of an opinion of a witness on a matter requiring special knowledge, skill or experience which he is assumed to possess. Question: do you know of a specific fact which would require opinion evidence? a. Person and family relations proof of psychological incapacity in declaration of nullity of marriage according to source: 1. INTRINSIC EVIDENCE—naa ra diha; information necessary for the determination of an issue that is gleaned from the document itself;
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law on evidence 2. PAROL/ EXTRINSIC EVIDENCE; EVIDENCE ALLIUNDE—evidence from a source outside the document itself; aliunde means “from outside”; You will encounter more of these in succession and in parol evidence. Section 2. Scope. — The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules. “same in all courts” we are talking about courts of justice and NOT quasi-judicial courts. “all types of hearings” applies to all types of cases in courts of justice
CASES THAT FOLLOW A DIFFERENT EVIDENTIARY RULE: “except as otherwise provided by law or these rules”: 1. JUVENILE cases recall your civil procedure in the RTC. If it takes cognizance of juvenile or agrarian cases, do you still follow the rules of evidence? YES. Because of the provision, section 24, BP 129: Section 24. Special Rules of Procedure. – Whenever a Regional Trial Court takes cognizance of juvenile and domestic relation cases and/or agrarian cases, the special rules of procedure applicable under present laws to such cases shall continue to be applied, unless subsequently amended by law or by rules of court promulgated by the Supreme Court. So you still follow rules of evidence here but because of section 24, there is a slight variation. EXAMPLE: AM 004-07-SC on the Rule on examination of witness. SECTION 1. Applicability of the Rule.— Unless otherwise provided, this Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses. PEOPLE V. CANETE march 28, 2003 this tells you about rationale from departure of customary rules of evidence on the examination of child witnesses Parenthetically, under Sections 19 to 21 of the Rule on Examination of a Child Witness which took effect on December 15, 2000, child witnesses may testify in a narrative form and leading questions may be allowed by the trial court in all stages of the examination if the same will further the interest of justice. Objections to questions should be couched in a manner so as not to mislead, confuse, frighten and intimidate the child: PEOPLE V. BARING January 3, 2002 On account of the increased number of children coming into the realm of the judicial system, we adopted the "Rule on Examination of a Child Witness" to govern the examination of child witnesses who may either be victims, accused or witnesses to a crime.37 This rule ensures an environment that allows children to give reliable and complete evidence, minimize trauma, encourage children to testify in legal proceedings, and facilitate the ascertainment of truth. PEOPLE V. SANTOS
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law on evidence September 8, 2006 The trend in procedural law is to give a wide latitude to the courts in exercising control over the questioning of a child witness. 36 Under Sections 19 to 21 of the Rules on Examination of a Child Witness,37 child witnesses may testify in a narrative form and leading questions may be allowed by the trial court in all stages of the examination if the same will further the interest of justice.38 It must be borne in m ind that the offended party in this case is a 6-year old minor who was barely five when she was sexually assaulted. As a child of such tender years not yet exposed to the ways of the world, she could not have fully understood the enormity of the bestial act committed on her person. 2. AGRARIAN CASES What about agrarian cases? Are they cognizable by regular courts? NO. it is taken cognizance of by DARAB which has its own rules of procedure. 3. RULES OF SUMMARY PROCEDURE—submission of affidavits. But are there certain special rules, other than rules of evidence, that is also followed in regular cases? YES. Rules on Summary Procedure. We have learned that affidavits take the place of testimonies. You cannot testify unless you previously executed an affidavit or perhaps if you are a government official and you were asked to identify a public document that is relevant in a case. So that is a different evidentiary rule. Just imagine if there is a disqualification to testify, but you previously submitted an affidavit. Is that found in regular rules? no. in fact I love it when the other party has already submitted an affidavit, coz you know already what they are going to say. You will determine beforehand your questions for cross-examination. 4. RULES OF PROCEDURE FOR SMALL CLAIMS CASES there is no direct examination by lawyers; in fact, they are not allowed. There is no need to submit affidavits but only accomplishment of judicial forms. Section 3. Admissibility of evidence. — Evidence is admissible when it is relevant to the issue and is not excluded by the law of these rules. The admissibility of evidence would depend on 2 key factors: 1. RELEVANCY i.e. relevant to the issue. What is relevant? It must have a relation to the fact in issue as to induce belief in its existence or non existence. The test of relevancy is the most important principle found in the entire law on evidence because evidence having no tendency, whatsoever, to make the existence of a fact of consequence before a tribunal more or less probable than it would be than if evidence would be excluded. In other words, you have that evidence and you want to present it, how do you test if you want to present it? You have to test its relevancy because if it has a tendency in reason to more or less establish the probability or improbability of the fact in issue, then if its relevant, then present it. If not, then ayaw nalang. How do you know whether party attempts to prove a fact or issue in a case? What determines is SUBSTANTIVE LAW. Prove the elements of the crime. If that piece of evidence is related to the elements and it tends to prove that element, then it is relevant. 2. COMPETENCY i.e. is not excluded by the law or these rules
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law on evidence
Who is John Henry Wigmore and Charles Tilford McCormick? These are American authors. Our rules of evidence were patterned in the US rules of evidence. JOHN HENRY WIGMORE: 1. Only those facts which have rational probative value are admissible and subsequent Filipino authors call that AXIOM OF RELEVANCY. 2. All facts having rational probative value are admissible unless prohibited by some specific rule which we call as AXIOM OF COMPETENCY. Putting these actions, we put together section 3 of rule 128. CHARLES TILFORD MCCORMICK: suggests the ff. inquiry 1. Does evidence offered tender the desired inference more probable than it would be without the evidence? Relevant evidence therefore is evidence which in some degree advances the inquiry and thus has probative value and thus prima facie admissible. (McCormick doesn’t say much on competent evidence) In both tests, whether proffered by either, what term is prominent? PROBATIVE VALUE it means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. This means that a reasonable person’s assessment of the probativeness of a consequential fact might be changed by the piece of evidence, it has probative worth. Once evidence is admitted, the trier of facts decides how much value or weight, they will give the evidence. Let us suppose that a person is accused of raping a woman and the woman, after being raped was subjected to a vaginal swabbing to prove the semen that was left in the vagina. If you want to prove that it was the accused who raped the woman, would that semen advance the inquiry? Would that make a matter of fact? Would it make the evidence relevant? YES. THAT is probative worth. If something that has tendency in reason to advance an inquiry to a matter of fact. It doesn’t necessarily mean that if an evidence is admitted, he would be relieved. For example, in one case I handled, a case of summary procedure..submit affidavits and witness can only satisfy to matters contained in the affidavit. I resorted to object evidence. When I attempted to do so, opposing counsel said that it is not allowed. I argued it was a newly discovered evidence. Judge resolved of admitting evidence coz he is interested sa evidence. But he warned me that it doesn’t mean that I admitted the evidence, you have already proven your point. I still have to assess your evidence based on its weight and probative value. Weight or probative value is therefore synonymous to credibility of evidence. Or in layman’s term —believability of evidence. It doesn’t mean that if evidence is admitted for being relevant to the fact in sisue or is not excluded by the law or these rules, that it is automatically believable. Therefore, that matter is left to the appreciation of court or the tribunal. Let’s go back to properly demonstrate what is meant by relevance. Remember in convicting an accused, you have to prove FACTUM PROBANDUM or ULTIMATE FACT: Underwear
Prove that accused owns the underwear
Knife Fingerprints
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Relevant because it proves his presence in the scene of the crime Knife was used for stabbing Match it to confirm accused’ presence
Accused raped and murdered the victim
EXCLUSIVE EXCLUSIVE FOR FOR LAKAS LAKAS ATENISTA ATENISTA MEMBERS MEMBERS ONLY ONLY
law on evidence Dead body
Present legal
a
medico
To prove the cause of death
So now, you have all the evidence which before might have no relation to the factum probandum but when taken together, or where one proposition is linked together with another proposition— you can come up with your end proposition which is your factum probandum. Probative value = it has any tendency to make a fact or consequence more or less probable than it would be without the evidence Once evidence is admitted, the trier of facts decide how much value or weight is given to the evidence. Remember: Relevance is determined by logic or common sense. Consult substantive law to relate all the facts that were presented to you by your client. Distinguish those that you have to prove and those what need not be proved. 2. COMPETENCY Competency means that all facts having rational probative value are admissible unless prohibited by some specific rule. With respect to our rules of evidence, it refers as to whether it is prohibited by the Law or the Rules of court. The General rule is that When evidence is inadmissible or objectionable but the other party fails to object, the latter party waives the objectionability; he waives its defect This of course requires knowledge of the law. Evidence may be relevant but may be excluded by the Law or the Rules. So if you do not know how to object or have other evidence, not admitted by the court, you will lose the case. Examples of Exclusions made by law: 1. Article 1403 statutes of frauds-- if one fails to object to presentation of oral evidence to prove a contract which is covered under the Statute of Frauds, the defect is deemed waived if defendant fails to object. 2. Article 3 Bill of Rights Constitution Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Section 3. 1. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law. 2. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. Note: Evidence in violation of this is called “inadmissible”; while evidence that does not violate laws, you call that “competent evidence”. Remember it is not termed as
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law on evidence “incompetent” because the latter refers to qualifications prescribed by the law. i.e. you are supposed to present an expert on ballistics but what you presented is a veterinarian. So that witness or testimony is incompetent. 3. Rule 26 Rules of Court Section 5. Effect of failure to file and serve request for admission. — Unless otherwise allowed by the court for good cause shown and to prevent a failure of justice a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts. 4. RA 4200—Anti-Wire Tapping Law SALCEDO-ORTANEZ V. COURT OF APPEALS RA 4200 states: Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise described. . . . Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, or meaning of the same or any part thereof, or any information therein contained, obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. Absent a clear showing that both parties to the telephone conversations allowed the recording of the same, the inadmissibility of the subject tapes is mandatory under Rep. Act No. 4200. Exceptions to this rule 1. When communication is NOT private NAVARRO V. CA The law prohibits the overhearing, intercepting, or recording of private communications. [29] Since the exchange between petitioner Navarro and Lingan was not private, its tape recording is not prohibited. 3. If both parties consent to such use 4. RA 9372 Human Security Act of 2007 SEC. 7. Surveillance of Suspects and Interception and Recording of Communications. – The provisions of Republic Act No. 4200 (Anti-wire Tapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways and means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.
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law on evidence Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized. In Drugs Cases, we have this chain of custody requirements under RA 9165 Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; (2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination; (3) A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject item/s: Provided, That when the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however, That a final certification shall be issued on the completed forensic laboratory examination on the same within the next twenty-four (24) hours; (4) After the filing of the criminal case, the Court shall, within seventy-two (72) hours, conduct an ocular inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals, including the instruments/paraphernalia and/or laboratory equipment, and through the PDEA shall within twenty-four (24) hours thereafter proceed with the destruction or burning of the same, in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the DOJ, civil society groups and any elected public official. The Board shall draw up the guidelines on the manner of proper disposition and destruction of such item/s which shall be borne by the offender: Provided, That those item/s of lawful commerce, as determined by the Board, shall be donated, used or recycled for legitimate purposes: Provided, further, That a representative sample, duly weighed and recorded is retained; (5) The Board shall then issue a sworn certification as to the fact of destruction or burning of the subject item/s which, together with the representative sample/s in the custody of the PDEA, shall be submitted to the court having jurisdiction over the case. In all instances, the representative sample/s shall be kept to a minimum quantity as determined by the Board; (6) The alleged offender or his/her representative or counsel shall be allowed to personally observe all of the above proceedings and his/her presence shall not constitute an admission of guilt. In case the said offender or accused refuses or fails to appoint a representative after due notice in writing to the accused or his/her
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law on evidence counsel within seventy-two (72) hours before the actual burning or destruction of the evidence in question, the Secretary of Justice shall appoint a member of the public attorney's office to represent the former; (7) After the promulgation and judgment in the criminal case wherein the representative sample/s was presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the case and, in turn, shall request the court for leave to turn over the said representative sample/s to the PDEA for proper disposition and destruction within twenty-four (24) hours from receipt of the same; and (8) Transitory Provision: a) Within twenty-four (24) hours from the effectivity of this Act, dangerous drugs defined herein which are presently in possession of law enforcement agencies shall, with leave of court, be burned or destroyed, in the presence of representatives of the Court, DOJ, Department of Health (DOH) and the accused/and or his/her counsel, and, b) Pending the organization of the PDEA, the custody, disposition, and burning or destruction of seized/surrendered dangerous drugs provided under this Section shall be implemented by the DOH. What happens if there are lapses in these procedures? PEOPLE V. EUGENIO Failing to comply with the provision of Section 2 of R.A. No. 9165 does not necessarily doom the case for the prosecution, however. People v. Pringas enlightens: Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team. Its non-compliance will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. THREE TYPES OF ADMISSIBILITY 1. Multiple Admissibility - When a fact is offered for one purpose, and is admissible in so far as it satisfies all rules applicable to it when offered for that purpose, its failure to satisfy some other rule which would be applicable to it offered for another purpose does not exclude it. In other words, 1 piece of evidence can be admissible in different characters. Example: A private document may be offered and admitted in evidence both as documentary evidence and as object evidence depending on the purpose for which the document is offered. private document can be both object and documentary evidence. If private document is offered to prove its existence for any purpose other than the contents of a document, the same is considered as object evidence. When private document is offered as proof of its contents, the same is considered as documentary evidence 2. Conditional Admissibility – evidence is admissible only in dependence upon other facts. It is received on the express assurance of counsel, when objection is manifested, that other facts will be duly presented at a suitable opportunity before the case is closed. Example: in the direct examination fo the witness, you ask a question that is immaterial and irrelevant. Of course, the other party is going to object. But you know that you are going somewhere. That it will be material if you are going to preset another fact. So it will become material in relation to other facts. If you fail
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law on evidence to fulfill the condition or if you fail to relate the same to other facts, it will not be admitted. 3. Curative Admissibility - A party has the right to introduce incompetent evidence in his behalf where the court has admitted the same kind of evidence adduced by the adverse party. This is to prevent manifest injustice. Example: in summary procedure, the court allowed me to present evidence not found in the affidavit. Of course, its unfair on the part of the accused. The other counsel objected but he can also present the same incompetent evidence. Patas2x lang.
RULE 129 What Need Not Be Proved RULE 129 tells us what matters need not be proved. When you handle case, consider those which need to be proved and those which do not require proof. What are these instances which do not need proof? 1. PRESUMPTIONS laid down under rule 131 a. Conclusive—those which the law does not allow to be controverted; b. Disputable those which are satisfactory if uncontradicted but which may be contradicted when overcome by other evidence. Example: Presumption of negligence when doctrine of res ipsa loquitor applies—same with what happened in the case of Republic v. Luzon Stevedoring, nay bangga sa pier. Kinsa nay sala? Alangan an gposte? So presumption applies that the defendant is the one negligent. The plaintiff now does not have to prove negligence. 2. When it falls under matters of JUDICIAL NOTICE a. Rule 129, section 1—JN when mandatory b. Rule 129, section 2—JN when discretionary c. Rule 129, section 3—JN when hearing necessary 3. JUDICIAL ADMISSIONS—rule 129, section 4 - Something that is judicially admitted does not require proof - it would be unprofitable to require proof in that case.
JUDICIAL NOTICE Definition: DORIS CHONGBIAN-OLIVA G.R. No. 163118 April 27, 2007 Judicial notice is the cognizance of certain facts which judges may properly take and act on without proof because they already know them. Judicial notice is a rule in the law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known that it cannot be refuted. It is the cognizance of certain facts without proof because they are facts which by common experience are of universal knowledge among intelligent persons w/I a country or community.
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law on evidence
Latin maxim: Manifesta probatione non indigent - Manifest things require no proof. What is the purpose of judicial notice? As in the case of may rules, Judicial notice is based upon convenience and expediency for it would certainly be superfluous, inconvenient, and expensive both to parties and the court to require proof, in the ordinary way, of facts which are already known to courts. Example: territorial extent of states, nature (you don’t have to prove gravity, etc.)
MUNICIPAL BOARD V. AGUSTIN There are facts, indeed of which courts should take judicial cognizance. These facts refer to a variety of subjects — legislative, political, historical, commercial, scientific, and artificial — in addition to a wide range of matters, arising in the ordinary course of nature or the general current of human events. The matter of judicial notice is ever expanding and will surely keep pace with advances of the sciences and the arts. But, a matter to be judicially cognizable must be wellestablished or authoritatively settled, or of common or general knowledge. Obviously, courts should take notice of whatever is or should be generally known because judges should not be more ignorant than the rest of mankind. What are the REQUISITES OF JUDICIAL NOTICE? PIGAO V. RABANILLO May 2, 2006 Matters of judicial notice have three material requisites: 1. the matter must be one of common and general knowledge; 2. it must be well and authoritatively settled and not doubtful or uncertain; and 3. it must be known to be within the limits of jurisdiction of the court. How should the court exercise its power of judicial notice? The power of taking judicial notice is to be exercised by courts with caution. Care must be taken that the requisite notoriety exists and every reasonable doubt on the subject should be promptly resolved in the negative. So when in doubt, don’t take JN. Or apply section 2 or 3. i.e. take hearing. First element: what is meant by COMMON KNOWLEDGE? SALUDO VS AMERICAN EXPRESS INTERNATIONAL April 19, 2006 The concept of "facts of common knowledge" in the context of judicial notice has been explained as those facts that are "so commonly known in the community as to make it unprofitable to require proof, and so certainly known to as to make it indisputable among reasonable men." Moreover, "though usually facts of 'common knowledge' will be generally known throughout the country, it is sufficient as a basis for judicial notice that they be known in the local community where the trial court sits." Certainly, the fact of petitioner Saludo being the duly elected representative of Southern Leyte at the time could be properly taken judicial notice of by the court a quo, the same being a matter of common knowledge in the community where it sits. 3 Types of Judicial Notice 1. Mandatory (rule 130, section 1)
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law on evidence 2. Discretionary (rule 130, section 2) 3. When hearing necessary (rule 130 section 3) JUDICIAL NOTICE; MANDATORY SECTION 1. Judicial notice, when mandatory.—A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions.( What are the matters taken judicial notice of by the court as mandated by the word, “shall” and without the introduction of evidence? 1. EXISTENCE AND TERRITORIAL EXTENT OF STATES their political history, forms of government and symbols of nationality The purpose here is convenience and expediency because it would be more burdensome and unprofitable if you require proof on this one. 2. The LAW OF NATIONS You are familiar with article 2, section 2: Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. (this embodies the doctrine of incorporation) By reason of that clause in the constitution, the Universal Declaration of Human rights automatically becomes part of the law of the land. The doctrine of incorporation decrees that rules of international law are given equal standing, but are not superior to, national legislative enactments. (Secretary of Justice v. Lantion) How may international law be part of domestic law PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES v. HEALTH SECRETARY FRANCISCO T. DUQUE III; October 9, 2007 Under the 1987 Constitution, international law can become part of the sphere of domestic law either by: Transformation Or Incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. The incorporation method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law. What part of the international law is automatically incorporated, if any? Only the generally accepted principles of international law. (we’ll go to that later on) Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the Constitution which provides that "[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate." Thus, treaties or conventional international law must go
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law on evidence through a process prescribed by the Constitution for it to be transformed into municipal law that can be applied to domestic conflicts. What about generally accepted principles of international law? What if they are not derived from treaties? How do they become part of our law? MIJARES V. RANADA G.R. No. 139325, April 12, 2005, 455 SCRA 397. Generally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations. The classical formulation in international law sees those customary rules accepted as binding result from the combination [of] two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. “Generally accepted principles of international law" refers to norms of general or customary international law which are binding on all states, i.e., renunciation of war as an instrument of national policy, the principle of sovereign immunity, a person's right to life, liberty and due process, and pacta sunt servanda, among others. (Just take note of these generally accepted principles for they are within the realm of mandatory judicial notice) What about a FOREIGN LAW? Can the court take judicial notice of a foreign law here in Philippines? No. the existence of a foreign law per se is not within the mandatory judicial notice. NOTE: The Court should take judicial notice of historical events of only of international interest not local interest. But if the event is of purely local interest of that country, the court is not obliged to take judicial notice. Example: OBAMA was elected president, can court here take judicial notice? Its purely local interest of that country, but Yes, because it is of international interest. What if who would be the secretary of the interior in Bhutan? 3. the ADMIRALTY AND MARITIME COURTS OF THE WORLD AND THEIR SEALS 4. the POLITICAL CONSTITUTION AND HISTORY OF THE PHILIPPINES—court must take a judicial notice of this because we are Filipinos and judges are considered learned men. The requirement here is notoriety; it must be of national knowledge and significance. In other words, it must be historical to the whole country and not just to a single town or locality. We do not need a historian to prove what is a national significant event. MUNICIPAL BOARD V. AGUSTIN November 29, 1997 ISSUE: WON Sakdalista party is one where the court may take judicial notice of. Assuming without deciding that courts may take notice of the existence of the Sakdalista organization at one time or another, as matter of contemporary social and
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law on evidence political history, the date of its organization or the time of its birth for the purposes of the application of the Election Law cannot be said to be of public knowledge. This information is not available from printed books, records or current literature. And though the judge himself or some other persons may known exactly when the Sakdalista Party came of public knowledge. A matter may be personally known to the judge and yet not be a matter of judicial knowledge and, vice versa, a matter may not be actually known to an individual judge and, nevertheless, be a proper subject of judicial cognizance. If courts may take judicial notice of the organization of the Sakdalista Party, they may and should take equal notice of the dates of the organization of all the other component political organizations. In the present case, where priority of organization is a material element for purposes of political representation on the board of inspectors, this fact must be proved and satisfactorily established. 5. the OFFICIAL ACTS OF LEGISLATIVE, EXECUTIVE AND JUDICIAL DEPARTMENTS OF THE PHILIPPINES Official acts of the LEGISLATIVE department; What do we take judicial notice of? 1.LAWS as to WON laws are abrogated or laws passed in 1920s are still good laws. 2.Reports of senate committees 3.Congressional debates 4.Impeachment trial –they are still acting as a legislative department although performing a judicial function. How about their decision on the impeachment? Can court take it as a judicial precedent? That’s still a grey area. UY V. CONTRERAS September 26, 1994 Nature of case: Refers to a judge who did not know that LCG of 1991 was passed by Congress. (Judicial ignorance!) Respondent judge did not do any better. His total unawareness of the Local Government Code of 1991, more specifically on the provisions on the Katarungang pambarangay, is distressing. He should have taken judicial notice thereof, ever mindful that under Section 1, Rule 129 of the Rules of Court, courts are mandatorily required to take judicial notice of "the official acts of the legislative, executive and judicial departments of the Philippines." We have ruled that a judge is called upon to exhibit more than just a cursory acquaintance with the statutes and procedural rules. 21 He should have applied the revised katarungang pambarangay law under the Local Government Code of 1991. Had he done so, this petition would not have reached us and taken valuable attention and time which could have been devoted to more important cases. CHAVEZ V. PEA November 11, 2003 Case: In this case, the court takes judicial notice that two Senate Committees, the Senate Blue Ribbon Committee and the Committee on Accountability of Public Officers, conducted extensive public hearings to determine the actual market value of the public lands sold to the private entity. They took judicial notice of these reports. The Senate Committees established the clear, indisputable and unalterable fact that the sale of the public lands is grossly and unconscionably
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law on evidence undervalued based on official documents submitted by the proper government agencies during the Senate investigation. Official acts of the EXECUTIVE department; judicial notice Article VII section 1. The executive power shall be vested in the President of the Philippines. We talk about not only the acts of the President as well as his alter-egos. There are executive acts like Admin Orders, Department orders, proclamation etc. Who grants Pardon? President. Can the court take judicial notice of a pardon? NO. It may seem as an official act but it is a private act. That’s one of the big differences between pardon and amnesty. PEOPLE V. CASIDO G.R. No. 116512. March 7, 1997 Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and proved by the person pardoned, because the courts take no notice thereof; while amnesty by Proclamation of the Chief Executive with the concurrence of Congress, and it is a public act of which the courts should take judicial notice. Pardon is granted to one after conviction; while amnesty is granted to classes of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction. Pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted, that is, it abolished or forgives the punishment, and for that reason it does ""nor work the restoration of the rights to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon," and it "in no case exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence" article 36, Revised Penal Code). while amnesty looks backward and abolishes and puts into oblivion the offense itself, it so overlooks and obliterates the offense with which he is charged that the person released by amnesty stands before the law precisely as though he had committed no offense. How about acts of the LTFRB acting in its legislative rate fixing capacity or quasi judicial capacity? Can court take judicial notice of this? YES, under the alter ego doctrine. SANADO VS COURT OF APPEALS April 17, 2001 The action of an administrative agency in granting or denying, or in suspending or revoking, a license, permit, franchise, or certificate of public convenience and necessity is administrative or quasi-judicial. The act is not purely administrative but quasi-judicial or adjudicatory since it is dependent upon the ascertainment of facts by the administrative agency, upon which a decision is to be made and rights and liabilities determined. As such, the July 31, 1989 decision of the Office of the President is explicitly an official act of and an exercise of quasi-judicial power by
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law on evidence the Executive Department headed by the highest officer of the land. It thus squarely falls under matters relative to the executive department which courts are mandatorily tasked to take judicial notice of under Section 1, Rule 129 of the Rules of Court. Judicial notice must be taken of the organization of the Executive Department, its principal officers, elected or appointed, such as the President, his powers and duties Judicial notice of the JUDICIAL department; What are acts of judicial department? Cases decided by SC, Rules of court, etc. Courts must take judicial notice of cases decided by SUPREME COURT but not their applicability. They cannot automatically apply it coz WON to apply a ruling to a controversy is subject to the court’s discretion. , reliance must be had to the facts of the case. How about decisions of the lower courts? Should MTC take judicial notice of cases decided by the RTC or CA? NO. For the purpose of section 1, decisions of the lower courts are not given judicial notice. 6. the LAWS OF NATURE One of the most celebrated decisions in the laws of nature is the Almanac case, a farmer’s almanac. This refers to the seasons. The star witness was a farmer who saw the assailant at 150 feet and he said the moon was full and shining..from that, the accused was convicted of murder. Lincoln, on appeal came into the picture and he knew that if he will be able to destroy the testimony of this farmer, the accused will be acquitted. He presented the farmer’s almanac by which the accused was acquitted. THE OLD FARMER’S ALMANAC CASE The occasion depicted in the Rockwell painting is the 1858 murder trial of an Illinois man named William "Duff" Armstrong. Armstrong was accused of murdering James Preston Metzker with a "slung-shot"—a weight tied to a leather thong, sort of an early blackjack—a few minutes before midnight of August 29, 1857. Lincoln was a friend of the accused man's father, Jack Armstrong, who'd just died, and so he offered to help defend young Duff Armstrong, without pay, as a favor to Jack Armstrong's widow. The principal prosecution witness against Armstrong was a man named Charles Allen, who testified that he'd seen the murder from about 150 feet away. When Lincoln asked Allen how he could tell it was Armstrong given that it was the middle of the night and he was a considerable distance away from the murder scene, Allen replied, "By the light of the Moon." Upon hearing Allen's testimony, Lincoln produced a copy of the 1857 edition, turned to the two calendar pages for August, and showed the jury that not only was the moon in the first quarter but it was riding "low" on the horizon, about to set, at the precise time of the murder. There would not have been enough light for Allen to identify Armstrong or anyone else, said Lincoln. The jury agreed, and Duff Armstrong was acquitted.
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law on evidence Court took judicial notice of the laws of nature. There would not have been enough light for Allen to identify the accused. We have a Philippine counterpart! PEOPLE VS MENESES G.R No. 111742. March 26, 1998 It was established that the crime took place in the wee hours of the morning, before the crack of dawn, at around three o’clock. The court can take judicial notice of the “laws of nature”, such as in the instant case, that at around three in the morning during the Christmas season, it is still quite dark and that daylight comes rather late in this time of year. Nowhere in the description of the crime scene by witness SPO3 Mendoza in his testimony was it established that there was light or illumination of any sort by which Christopher could see the attacker. Can taking judicial notice of the laws of nature overrule positive testimony by the witness? YES. GABRIEL V. CA G.R. No. 128474 October 6, 2004 What was his testimony? He claimed to have first heard the collision. He immediately took five big steps onto the highway, and then saw the Beetle and the jeepney colliding. What’s wrong? He heard the sound before he saw the collision! HELD: The testimony of Gonzales, which conveniently corroborates Gabriel on all material points, is even more incredulous, notwithstanding Gonzales’s being the Barangay Captain then of San Vicente, where the accident occurred. As noted by the RTC, Gonzales declared that he was on the shoulder of the road, beside the truck, when the first collision took place. From his vantage point, his view was obstructed by the truck. He claimed to have first heard the collision. He immediately took five big steps onto the highway, and then saw the Beetle and the jeepney colliding. In short, the sound of the collision took place before the actual collision itself. If true, this would rate as one of the greatest scientific revelations of all time. But since courts are obliged to take judicial notice of the laws of nature, this Court prefers to side with prudence. 7. the MEASURE OF TIME, and the 8. GEOGRAPHICAL DIVISIONS—Cities, municipalities, Barangays, sitios, rivers, etc. PEOPLE V. SEVILLENO March 29, 1999 The court below also erred in disregarding the testimony of Norma Baquia "for the reason that her testimony failed to establish that the incident happened within the territorial jurisdiction of this court." The court did not consider her testimony purportedly because she only testified that her sister Virginia went with the accused to Guindali-an without specifying as to what municipality or city it was part of. Again, this is error. Section 1, Rule 129 of the Rules of Court requires courts to take judicial notice, without the introduction of evidence, of the existence and geographical divisions of our country. There is only one Sitio Guindali-an, Brgy. Guadalupe, San Carlos City (Negros Occidental).
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CHIONGBAN-OLIVA VS REPUBLIC OF PHILIPPINES April 27, 2007 SC takes judicial notice that Talamban, Cebu City is an urban area. Judicial notice as to WON river is navigable; BANATAO V. DABBAY September 23, 1918 G.R. No. 12264 In conformity with the principle thus stated the courts may take judicial notice of the existence and location within the territory over which they exercise jurisdiction of great rivers and lakes, and their relation to the national or provincial boundaries, of the navigability of streams constituting highways of commerce and other notorious facts concerning the same. The presumption of general knowledge weakens as we pass to smaller and less known streams; and yet, within the limits of any state the navigability of its largest rivers ought to be generally known and the courts may properly assume it to be a matter of general knowledge, and take judicial notice thereof. PEOPLE V. PACABES June 24, 1985 The failure of a witness to report at once to the police authorities the crime they had witnessed should not be taken against them. it is not uncommon for a witness to a crime to show some reluctance about getting involved in a criminal case. The natural reticence of most people to get involved in a criminal case is of judicial notice. Note: in one case, SC said that women are more fastidious than men. This was relevant because the issue was WON to award damages to a woman who was scarred in her face. HERRERA V. BOLLOS JANUARY 18 2002 A court cannot take judicial notice of a factual matter in controversy. (coz that is already tantamount to ruling!) The court may take judicial notice of matters of public knowledge, or which are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. Before taking such judicial notice, the court must "allow the parties to be heard thereon."Hence, there can be no judicial notice on the rental value of the premises in question without supporting evidence. ( here, the RTC awarded damages based on the allegation, no proof were presented as to the alleged rent value) Can a court take judicial notice of decision rendered by an RTC but of a different case? NO. it has to be proven. ESPANOL V. FORMOSO JUNE 21 2007 Courts are not authorized to take judicial notice of the contents of records of other cases even when such cases have been tried or pending in the same court. Remember: judicial knowledge is different from judicial notice.
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PIGAO V. RABANILLO GR 1570712 SC had the occasion to lay down the requisites of the matters of judicial notice. What is involved here is pro-forma contract. HELD: We cannot take cognizance of this document – the conditional contract to sell between Bernabe and the PHHC alleged to be the pro-forma contract used by PHHC with its applicants - which petitioners are presenting for the first time. Matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of jurisdiction of the court. The power of taking judicial notice is to be exercised by courts with caution. Care must be taken that the requisite notoriety exists and every reasonable doubt on the subject should be promptly resolved in the negative. REPUBLIC V. CA AUGUST 18 1997 This was about taking judicial notice of a decision by other courts over the same subject. “A court will take judicial notice of its own acts and records in the same case, of facts established in prior proceedings in the same case, of the authenticity of its own records of another case between the same parties, of the files of related cases in the same court, and of public records on file in the same court. In addition judicial notice will be taken of the record, pleadings or judgment of a case in another court between the same parties or involving one of the same parties, as well as of the record of another case between different parties in the same court. Judicial notice will also be taken of court personnel. What is the effect of judicial notice when there is really no justiciable controversy? PROV OF NORTH COTABATO V. GOVERNMENT OF THE PHIL PEACE PANEL October 14, 2008 RE: Peace Negotiation Document MOA about having a Bangsamoro homeland entered by executive department but not yet signed. The MOA has not even been signed, and will never be. Its provisions will not at all come into effect. The MOA will forever remain a draft that has never been finalized. It is now nothing more than a piece of paper, with no legal force or binding effect. It cannot be the source of, nor be capable of violating, any right. The instant Petitions, therefore, and all other oppositions to the MOA, have no more leg to stand on. They no longer present an actual case or a justiciable controversy for resolution by this Court. In the recent ruling in Suplico v. NEDA, the President officially desisted from pursuing a national government project which was challenged before this Court. The Court was impelled to take mandatory judicial notice of the President's act, and consequently declare the pending petitions as moot and academic. Section 2. Judicial notice, when discretionary. — A court may take judicial notice of matters which are of public knowledge, or are capable to unquestionable demonstration, or ought to be known to judges because of their judicial functions.
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This is termed discretionary because it fully depends upon the discretion of the court unless a matter falls in section 1 where nobody can compel a judge to take JN of the same. Section 2 judicial notice could not be compelled by mandamus. SALUDO V. American Express International April 19, 2006 What was construed was the concept of “facts of common knowledge”. SC took judicial notice of the residence of the petitioner in Southern Leyte. Petitioner here is a politician. The concept of "facts of common knowledge" in the context of judicial notice has been explained as those facts that are "so commonly known in the community as to make it unprofitable to require proof, and so certainly known to as to make it indisputable among reasonable men." Moreover, "though usually facts of 'common knowledge' will be generally known throughout the country, it is sufficient as a basis for judicial notice that they be known in the local community where the trial court sits." Certainly, the fact of petitioner Saludo being the duly elected representative of Southern Leyte at the time could be properly taken judicial notice of by the court a quo, the same being a matter of common knowledge in the community where it sits. That petitioner Saludo was the congressman or representative of the lone district of Southern Leyte at the time of the filing of his complaint was admitted as a fact by the court a quo. In this connection, it consequently held that, as such, petitioner Saludo's residence in Southern Leyte, the district he was the representing, could be taken judicial notice of. The court a quo cannot be faulted for doing so because courts are allowed "to take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions." Courts are likewise bound to take judicial notice, without the introduction of evidence, of the law in force in the Philippines, including its Constitution. STATE PROSECUTOR V. MURO A.M. No. RTJ-92-876 September 19, 1994 The judge dismissed 11 cases against Imelda Marcos for violation of Violation of Central Bank Foreign Exchange Restrictions. Judge issued his Order solely on the basis of newspaper reports (August 11, 1992 issues of the Philippine Daily Inquirer and the Daily Globe) concerning the announcement on August 10, 1992 by the President of the Philippines of the lifting by the government of all foreign exchange restrictions. He claimed that the reported announcement of the Executive Department on the lifting of foreign exchange restrictions by two newspapers which are reputable and of national circulation had the effect of repealing Central Bank Circular No. 960, as allegedly supported by Supreme Court decisions. HELD: The requisites of Judicial notice must be applied here. Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. 11 The provincial guide in determining what facts may be assumed to be judicially known is that of notoriety. 12 Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. To say that a court will take judicial notice of a fact is merely another way of saying that the usual form of evidence will be dispensed with if knowledge of the fact can be
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law on evidence otherwise acquired. 14 This is because the court assumes that the matter is so notorious that it will not be disputed. But judicial notice is not judicial knowledge. The mere personal knowledge of the judge is not the judicial knowledge of the court, and he is not authorized to make his individual knowledge of a fact, not generally or professionally known, the basis of his action. Judicial cognizance is taken only of those matters which are "commonly" known. Things of "common knowledge," of which courts take judicial notice, may be matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. (this ruling underscores the difference between a court and the judge. Because the personal knowledge of the judge could not be considered judicial knowledge of the court) Section 3. Judicial notice, when hearing necessary. — During the trial, the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon. After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case. Note: in this case, court is not really taking judicial notice because ti allows the parties will be heard. If they do so, parties will introduce evidence. So to my mind, section 3 does not really refer to judicial notice. Example: would you take judicial notice that I am 25yrs old? NO. When you take judicial notice of the physical appearance of a person, are you really exercising judicial notice or just exercising your sense? When you do that, you are NOT taking judicial notice because you are actually examining evidence and you are using your perception of things derived form the use of your senses. So court will not say that the court takes JN that the court smells bed. Atty. Espejo: matters such as age, physical characteristics are not subject to judicial notice in so far as it involves the use of our perception of things through our senses. Why is age important to be taken judicial notice of? One thing is with your criminal law. Cases of RAPE. Either qualified or statutory rape. So it is important to determine age. For example, if a counsel would take or ask court to take judicial notice of a victim in a rape case, is the court allowed? NO. by doing so, it would still require presentation of evidence and use of senses. It is not taking judicial notice. LANDBANK OF THE PHILIPPINES V. WYCOCO JANUARY 13 2004 In arriving at the valuation of Wycoco’s land, the trial court took judicial notice of the alleged prevailing market value of agricultural lands in Licab, Nueva Ecija without apprising the parties of its intention to take judicial notice thereof. In as much as the valuation of the property of Wycoco is the very issue in the case at bar, the trial court should have allowed the parties to present evidence thereon instead of practically assuming a valuation without basis. While market value may be one of the
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law on evidence bases of determining just compensation, the same cannot be arbitrarily arrived at without considering the factors to be appreciated in arriving at the fair market value of the property e.g., the cost of acquisition, the current value of like properties, its size, shape, location, as well as the tax declarations thereon. Since these factors were not considered, a remand of the case for determination of just compensation is necessary. The power to take judicial notice is to be exercised by courts with caution especially where the case involves a vast tract of land. Care must be taken that the requisite notoriety exists; and every reasonable doubt on the subject should be promptly resolved in the negative. To say that a court will take judicial notice of a fact is merely another way of saying that the usual form of evidence will be dispensed with if knowledge of the fact can be otherwise acquired. This is because the court assumes that the matter is so notorious that it will not be disputed. But judicial notice is not judicial knowledge. The mere personal knowledge of the judge is not the judicial knowledge of the court, and he is not authorized to make his individual knowledge of a fact, not generally or professionally known, the basis of his action REMEMBER: judicial notice is not the general rule. It is an exception.
JUDICIAL NOTICE ON AGE What is the nature of AGE as evidence? You don’t know exactly when you are born. It is something that is told to you. So hearsay evidence xa. Because it is technically hearsay, no person can claim personal knowledge of his age but however, you will later learn that this is an EXCEPTION to the hearsay rule because it forms part of Family history and Pedigree. Would age have certain consequences in criminal cases? YES. Age is important because it may be an exempting circumstance mitigating circumstance aggravating circumstance qualifying circumstance –qualified rape if victim below 7 or below 18 and accused is a relative of the victim as an element of the crime itself ex. Statutory rape Age sometimes is a fact in issue that has to be proven for the full appreciation of the court. It has to be proven because there are certain legal consequences. By way of summary, If victim below 18—qualified ang rape if offender is a relative. If below 12— rape is committed although not qualified form even if victim consents because age is an indispensable requirement. If below 7—rape is always qualified! PEOPLE V. GUINTO March 5, 2003 When the trier of facts observes the appearance of a person to ascertain his or her age, he is not taking judicial notice of such fact; rather, he is conducting an examination of the evidence, the evidence being the appearance of the person. Such a process militates against the very concept of judicial notice, the object of which is to do away with the presentation of evidence.
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law on evidence
This is not to say that the process is not sanctioned by the Rules of Court; on the contrary, it does. A person's appearance, where relevant, is admissible as object evidence, the same being addressed to the senses of the court. What is the most important evidentiary rule when it comes to taking judicial notice of age? PEOPLE V. VILLARAMA ALIAS BABY G.R. No. 139211. February 12, 2003 Court decisions on the rape of minors invariably state that, in order to justify the imposition of the death penalty, there must be independent evidence showing the age of the victim. Testimonies on the victim’s age given by the prosecution witnesses or the lack of denial of the accused or even his admission thereof on the witness stand is not sufficient. This Court has held that, to justify the imposition of the death penalty for rape committed against a child below 7, the minority of the victim must be proved with equal certainty and clarity as the crime itself. The failure to sufficiently establish the victim’s age with factual certainty and beyond reasonable doubt is fatal and consequently bars conviction for rape in its qualified form. How do you prove age as an element of the crime or if court cannot take judicial notice thereof or there is really no clear cut evidence on the matter? PEOPLE V. PRUNA G.R. No. 138471. October 10, 2002 A person’s age is best proved by the birth certificate. But is the presentation of the victim’s birth certificate a sine qua non requirement to prove her age for the appreciation of minority either as an element of the crime or as a qualifying circumstance? Recent jurisprudence has conflicting pronouncements. In order to remove any confusion that may be engendered by the foregoing cases, we hereby set the following guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance. 1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. 2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age. 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim’s mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances: a. b. c.
If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old.
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law on evidence 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim’s mother or relatives concerning the victim’s age, the complainant’s testimony will suffice provided that it is expressly and clearly admitted by the accused. 5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him. The trial court should always make a categorical finding as to the age of the victim. In the present case, no birth certificate or any similar authentic document, such as a baptismal certificate of LIZETTE, was presented to prove her age. In view of the uncertainty of LIZETTE’s exact age, corroborative evidence such as her birth certificate, baptismal certificate or any other authentic document should be introduced in evidence in order that the qualifying circumstance of “below seven (7) years old” is appreciated against the appellant. The lack of objection on the part of the defense as to her age did not excuse the prosecution from discharging its burden. That the defense invoked LIZETTE’s tender age for purposes of questioning her competency to testify is not necessarily an admission that she was below 7 years of age when PRUNA raped her on 3 January 1995. Such being the case, PRUNA cannot be convicted of qualified rape, and hence the death penalty cannot be imposed on him.
JUDICIAL ADMISSIONS Section 4. Judicial admissions. — An admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. Definition Judicial admission is defined as deliberate, clear, unequivocal statement by a party about a concrete fact within that party's knowledge. It is also called as “admission in judicio”. It must be deliberate because an admission will not bind the party making it if it was made by mistake. It must be clear and unequivocal and it must not admit to two or more interpretations. What is the nature of judicial admission? It is a confession whether in the pleadings or stipulations that can be made by counsel or the party. Although a judicial admission is not itself evidence, it has the effect of withdrawing a fact from contention. A judicial admission is a formal statement made either by a party or his or her attorney, in the course of judicial proceeding which removes an admitted fact from the field of controversy. It is a voluntary concession of fact by a party or a party’s attorney during such judicial proceedings including admissions in pleadings made by a party. It may occur at any point during the litigation process. An admission in open court is a judicial admission. A judicial admission binds the client even if made by his counsel.
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“Confessio facta in judicio omni probatione major est” - A confession made in trial is stronger than proof. JUDICIAL ADMISSION V. JUDICIAL ESTOPPEL; Judicial estoppel is a rule of procedure based on justice and sound policy that bars a party from taking a position inconsistent with one taken in a earlier proceeding. A judicial admission, by contrast, results when a party makes a statement of fact which conclusively disproves a right of recovery or defense currently asserted. JUDICIAL ADMISSION V. ORDINARY EVIDENTIARY ADMISSION An ordinary evidentiary admission is "merely a statement of assertion or concession made for some independent purpose," and it may be controverted or explained by the party who made it. "A judicial admission is conclusive, unless the court allows it to be withdrawn; ordinary evidentiary admissions, in contrast, may be controverted or explained by the party. What are the SOURCES of judicial admission? BINARAO V. PLUS BUILDERS G.R. No. 154430 June 16, 2006 A party may make judicial admissions in (a) the pleadings, (b) during the trial, either by verbal or written manifestations or stipulations, or (c) in other stages of the judicial proceeding What is an example of a judicial admission IN A PLEADING. 1.
Rule 8 Section 8 Section 8. How to contest such documents. — When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath specifically denies them, and sets forth what he claims to be the facts, but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. Diba the reply is not a mandatory pleading? But if the defendant attaches an actionable document, you have to deny it under oath. You are forced to submit a reply rather than make it optional CASENT REALTY VS PHILBANKING CORPORATION September 14, 2007 Since respondent failed to file a Reply, in effect, respondent admitted the genuineness and due execution of said documents. This judicial admission should have been considered by the appellate court in resolving the demurrer to evidence.
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law on evidence 2. Rule 8, Section 11. Allegations not specifically denied deemed admitted. — Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath. 3. Rule 18 Section 4. Appearance of parties. — It shall be the duty of the parties and their counsel to appear at the pre-trial. The non-appearance of a party may be excused only if a valid cause is shown therefore or if a representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents. Can you have stipulations of facts or admissions in pre-trials in criminal case? YES. Because that is also one of the objects of a pre-trial conference. So judicial admissions can therefore be derived at any stage of the case. During pre-trial, during the trial, during the proceedings, in the process of submitting motions and manifestations. If the lawyer makes admission in a manifestation or pleading and the client did not sign the admission, is the client bound by the admission? Yes. What is the form of judicial admission? A judicial can be either a verbal or written admission. Verbal judicial admission—may be oral manifestations in the court or testimony. A written judicial admission—may be by way of pleadings, memoranda, affidavits or even in a submission in an answer for a request for admission. Can it be partly in writing and by word of mouth? YES. Can it be implied from the conduct of parties? YES. (ikaw ang nipatay! But you nodded! So pwede!) What is the effect of making admission? It becomes conclusive upon the parties making them. SANTIAGO VS DELOS SANTOS 61 scra 146 an admission made in the pleadings cannot be controverted by the party making such admission and are conclusive as to him, and that all proofs submitted by him contrary thereto or inconsistent therewith, should be ignored, whether objection is interposed by the party or not. (ni-admit naka tpos musubmit ka after ug contrary evidence. In this case, the admission will prevail) ALFELOR V. HALASAN March 31, 2006 GR 165987 NATURE: It takes up concept of judicial admission but also intervention. Likewise, when called to testify, Teresita admitted several times that she knew that her late husband had been previously married to another. To the Court’s mind, this admission
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law on evidence constitutes a "deliberate, clear and unequivocal" statement; made as it was in the course of judicial proceedings, such statement qualifies as a judicial admission. A party who judicially admits a fact cannot later challenge that fact as judicial admissions are a waiver of proof; production of evidence is dispensed with. A judicial admission also removes an admitted fact from the field of controversy. Consequently, an admission made in the pleadings cannot be controverted by the party making such admission and are conclusive as to such party, and all proofs to the contrary or inconsistent therewith should be ignored, whether objection is interposed by the party or not. 2 The allegations, statements or admissions contained in a pleading are conclusive as against the pleader. A party cannot subsequently take a position contrary of or inconsistent with what was pleaded. There is this REQUIREMENT: REPUBLIC V. QUA July 30, 2004 To constitute judicial admission, the admission must be made in the same case in which it is offered. If made in another case or in another court, the fact of such admission must be proved as in the case of any other fact, although if made in a judicial proceeding it is entitled to greater weight. Let’s look at TYPES OF ADMISSIONS 1. Judicial 2. Extra-judicial—out of court In open court, I admit nga nangutang ko—admitted; so plaintiff does not have to prove that nangutang. That’s a judicial admission. If made in the pleading, it is still judicial admission. But what if an admission you made casually? Sa corridor sa ateneo? That is extra-judicial. So if your friend is called to testify regarding your supposed admission? As a general admission, that is considered an extrajudicial admission and must then be proven. But is that considered as hearsay evidence? YES. Because dapat ako man ang source sa information. Dapat dili xa ang mag-testify! Wala man xang personal knowledge. You will learn that all later on. What about an admission made in a court sala with the same parties but with cases pending in different salas? NO. because that is not in the same case even if made in the same court. Now, EXTRA JUDICIAL ADMISSIONS must be produced into evidence. In other words, you have to prove, so section 4 does NOT apply. Coz if you apply section 4, dapat judicial admission. It takes the fact out of contention. What if he admitted something in one sala but in a different sala, he denied the same thing? What can you do? These cases are interrelated. Can you not file a case for false testimony or perjury? YES, you can. What is the effect of amended pleadings? Rule 10 Section 8. Effect of amended pleadings. — An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader, and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived.
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law on evidence So if you make an admission in an original pleading and later on amended, the judicial admission will now become an extra-judicial admission. What is the effect of filing a supplemental pleading? It supplements and both pleadings stand side by side.
What are the EXCEPTIONS TO THE RULE ON JUDICIAL ADMISSIONS? 1. If the judicial admission is made through palpable mistake Palpable—it means obvious or easily perceived or examinable or noticeable; palpalabe mistakes are mistakes obvious error to all sides, mistakes that glaring to the eyes of the judge so that adverse party can see that there was really no admission made. Under the old rules of evidence, this is only the exception to the rule that admissions bind the party to the agreement. (ATLAS CONSOLIDATED MINING V. CIR) Atty. Espejo: nabangga ka sa motor. Unsa man ka kalayo nalagpot? 50 meters! That’s an admission. It admits a fact na nilagpot xa ug 50 meters. Well, it is contrary to laws of nature! It’s contrary to physics! it is a palpable mistake. It is possible that the witness is so not well-versed with distance and failed to properly measure the same. ATLAS CONSOLIDATED MINING VS CIR NOVEMBER 17, 1999 A litigation is neither a game of technicalities nor a battle of wits and legalisms; rather, it is an abiding search for truth, fairness and justice. While stipulations of facts are normally binding on the declarant or the signatory thereto, a party may nonetheless be allowed to show that an admission made therein was the result of a "palpable mistake" that can be easily verified from the stipulated facts themselves and from other incontrovertible pieces of evidence admitted by the other party. A patently clerical mistake in the stipulation of facts, which would result in falsehood, unfairness and injustice, cannot be countenanced. We agree with the Court of Appeals that, as a rule, a judicial admission, such as that made by petitioner in the Joint Stipulation of Facts, is binding on the declarant. However, such rule does not apply when there is a showing that (1) the admission was made through a "palpable mistake," or that (2) "no such admission was made. In the present case, we are convinced that a "palpable mistake" was committed. True, petitioner was VAT-registered under Registration No. 32-A-6-00224, as indicated in Item 2 of the Stipulation: 2. Petitioner is engaged in the business of mining, production and sale of various mineral products, consisting principally of copper concentrates and gold duly registered with the BIR as a VAT enterprise per its Registration No. 32-A-6002224 (p. 250, BIR Records). Moreover, the Registration Certificate, which in the said stipulation is alluded to as appearing on page 250 of the BIR Records, bears the number 32-0-004622 and became effective August 15, 1990. But the actual VAT Registration Certificate, which petitioner mentioned in the stipulation, is numbered 32-A-6-002224 and became effective on January 1, 1988, thereby showing that petitioner had been VAT-registered even prior to
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law on evidence the first quarter of 1990. Clearly, there exists a discrepancy, since the VAT registration number stated in the joint stipulation is NOT the one mentioned in the actual Certificate attached to the BIR Records. The foregoing simply indicates that petitioner made a "palpable mistake" either in referring to the wrong BIR record, which was evident, or in attaching the wrong VAT Registration Certificate. The Court of Appeals should have corrected the unintended clerical oversight. In any event, the indelible fact is: the petitioner was VAT-registered as of January 1, 1988. Note: LATER ON, SC added another exception. 3. No such admission was made PALMA DEVELOPMENT CORP. VS MUNICIPALITY OF MALANGAS G.R. No. 152492 October 16, 2003 Judicial admissions made by parties in the pleadings, in the course of the trial, or in other proceedings in the same case are conclusive. No further evidence is required to prove them. Moreover, they cannot be contradicted unless it is shown that they have been made through palpable mistake, or that they have not been made at all. This was just an illustration that no such admission was made. ATILLO VS CA GR. NO. 119053. JANUARY 23, 1997 "For instance, if a party invokes an 'admission' by an adverse party, but cites the admission 'out of context', then the one making the admission may show that he made no 'such' admission, or that his admission was taken out of context or not in the sense in which the admission was made to appear. RULE: if an admission is made by the counsel or lawyer, it binds the client. In the same manner that negligence of lawyer binds his client. Same thing. If counsel makes an admission contrary to his client, it will affect his client. PEOPLE V. HERNANDEZ July 30, 1996 Prosecution proposed certain stipulation of facts and accepted by the defense and on the basis of which the accused was convicted. the foregoing find basis in the general rule that a client is bound by the acts of his counsel who represents him. For all intents and purposes, the acts of a lawyer in the defense of a case are the acts of his client. The rule extends even to the mistakes and negligence committed by the lawyer except only when such mistakes would result in serious injustice to the client. No cogent reason exists to make such exception in this case. It is worth noting that Atty. Ulep, appellant's counsel in the lower court, agreed to the stipulation of facts proposed by the prosecution not out of mistake nor inadvertence, but obviously because the said stipulation of facts was also in conformity to defense's theory of the case. It may be recalled that throughout the entire duration of the trial, appellant staunchly denied ever having engaged in the recruitment business either in her personal capacity or through Philippine-Thai. Therefore, it was but logical to admit that the POEA records show that neither she nor Philippine-Thai was licensed or authorized to recruit workers.
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law on evidence
In view of the foregoing, the stipulation of facts proposed during trial by prosecution and admitted by defense counsel is tantamount to a judicial admission by the appellant of the facts stipulated on. SILOT V. DELA ROSA February 4, 2008 A stipulation of facts entered into by the prosecution and defense counsel during trial in open court is automatically reduced into writing and contained in the official transcript of the proceedings had in court. The conformity of the accused in the form of his signature affixed thereto is unnecessary in view of the fact that: "[…] an attorney who is employed to manage a party's conduct of a lawsuit has prima facie authority to make relevant admissions by pleadings, by oral or written stipulation, […] which unless allowed to be withdrawn are conclusive." In fact, "judicial admissions are frequently those of counsel or of the attorney of record, who is, for the purpose of the trial, the agent of his client. When such admissions are made for the purpose of dispensing with proof of some fact, they bind the client, whether made during, or even after, the trial. What about the status pre trial agreements in criminal cases? Remember, in the 1985 rules of Criminal procedure before its amendment in year 2000: SEC. 4. Pre-trial agreements must be signed. — No agreement or admission made or entered during the pre-trial conference shall be used in evidence against the accused unless reduced to writing and signed by him and his counsel. The rule now states that: the omission of the signature of the accused and his counsel, as mandatorily required by the Rules, renders the Stipulation of Facts inadmissible in evidence. (FULE V. CA) FULE V. CA G.R. No. 79094 June 22, 1988 The conclusion is inevitable, therefore, that the omission of the signature of the accused and his counsel, as mandatorily required by the Rules, renders the Stipulation of Facts inadmissible in evidence. The fact that the lawyer of the accused, in his memorandum, confirmed the Stipulation of Facts does not cure the defect because Rule 118 requires both the accused and his counsel to sign the Stipulation of Facts. What the prosecution should have done, upon discovering that the accused did not sign the Stipulation of Facts, as required by Rule 118, was to submit evidence to establish the elements of the crime, instead of relying solely on the supposed admission of the accused in the Stipulation of Facts. Without said evidence independent of the admission, the guilt of the accused cannot be deemed established beyond reasonable doubt. This is now embodied in Rule 118, section 2: Sec. 2. Pre-trial agreement. – All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. The agreements covering the matters referred to in section 1 of this Rule shall be approved by the court.
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law on evidence
NOTE: Obiter in case of Silot v. de la rosa that only the conformity of the counsel is required is deemed abrogated by the Fule Doctrine and subsequent enactment of 2000 Rules of Criminal Procedure. Same thing applied in the case of…. KING V. PEOPLE December 2, 1999 From the foregoing, it is clear that the prosecution evidence consisted of documents offered and admitted during the trial. In view of this, the CA correctly ruled that Fule v. Court of Appeals[17] would not apply to the present controversy. In that case, a hearing was conducted during which the prosecution presented three exhibits. However, Fule's conviction was “based solely on the stipulation of facts made during the pre-trial on August 8, 1985, which was not signed by the petitioner, nor by his counsel.” Because the stipulation was inadmissible in evidence under Section 4 of Rule 118, the Court held that there was no proof of his guilt. In the present case, petitioner’s conviction was based on the evidence presented during trial, and not on the stipulations made during the pretrial. Hence, petitioner’s admissions during the trial are governed not by the Fule ruling or by Section 4 of Rule 118, but by Section 4 of Rule 129 which reads: “SEC. 4. Judicial Admissions. --- An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.” Hence, the trial court and the Court of Appeals did not err in taking cognizance of the said documentary evidence. SAN PEDRO V. LEE G.R. No. 156522. May 28, 2004 Rule 129, Section 4 of the Revised Rules of Court provides that a judicial admission may be contradicted by showing that it was made through palpable mistake, or that no such admission was made. Petitioner’s theory as regards the purported judicial admission is readily contradicted by a perusal of the records, which show that in fact no such admission was made by respondents. We thus find no adequate proof for petitioner’s contention that she was exercising possessory rights over the parcel of land
PARAYNO V. JOVELLANOS JULY 14, 2006 The foregoing were judicial admissions which were conclusive on the municipality, the party making them.10 Respondent municipality thus could not find solace in the legal maxim of ejusdem generis11 which means "of the same kind, class or nature." Under this maxim, where general words follow the enumeration of particular classes of persons or things, the general words will apply only to persons or things of the same general nature or class as those enumerated.
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law on evidence Instead, what applied in this case was the legal maxim expressio unius est exclusio alterius which means that the express mention of one thing implies the exclusion of others.13 Hence, because of the distinct and definite meanings alluded to the two terms by the zoning ordinance, respondents could not insist that "gasoline service station" under Section 44 necessarily included "gasoline filling station" under Section 21. Indeed, the activities undertaken in a "gas service station" did not automatically embrace those in a "gas filling station."
RULE 130 Rules of Admissibility This tells the counsels and parties to the case what are the guidelines on the admission of evidence that is to e considered later on.
A. OBJECT (REAL) EVIDENCE SECTION 1. Object as evidence. — Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. Object evidence is one of the classes of evidence provided in the Rules of Court. This is also called “real evidence” because it has reference to the “res” or thing. It is a thing or the object that is addressed to the senses of the court. It is also called “autoptic preference” which is coined by Wigmore himself. “auto”—self; “optic” –sight or examination related to term ‘autopsy”. This pertains to act of making an autoptic preference although now, it means examination of a dead body. But now, “it means examination. Those are related. BALINGIT V. COMELEC G.R. No. 170300 February 9, 2007 Autoptic proference, in legal parlance, simply means a tribunal's self-perception, or autopsy, of the thing itself. Autoptic means Seen with one's own eyes; belonging to, or connected with, personal observation; as, autoptic testimony or experience. Once, however, autoptic evidence is introduced in a trial, then the fact finder decides what weight shall be accorded to the same. in this class of evidence the ascertainment of the controverted fact is made through demonstration involving the direct use of the senses of the presiding magistrate. CALDE V. CA June 27, 1994 Facts: As sharply noted by respondent appellate court, the signatures of some attesting witnesses in decedent’s will and its codicil were written in blue ink, while the others were in black. This discrepancy was not explained by petitioner. Nobody of his six (6)
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law on evidence witnesses testified that two pens were used by the signatories on the two documents. In fact, two (2) of petitioner’s witnesses even testified that only one (1) ballpen was used in signing the two testamentary documents. In the case at bench, the autoptic proference contradicts the testimonial evidence produced by petitioner. The will and its codicil, upon inspection by the respondent court, show in black and white — or more accurately, in black and blue — that more than one pen was used by the signatories thereto. Thus, it was not erroneous nor baseless for respondent court to disbelieve petitioner’s claim that both testamentary documents in question were subscribed to in accordance with the provisions of Art. 805 of the Civil Code. Neither did respondent court err when it did not accord great weight to the testimony of Judge Tomas A. Tolete. It is true that his testimony contains a narration of how the two testamentary documents were subscribed and attested to, starting from decedent’s thumbmarking thereof, to the alleged signing of the instrumental witnesses thereto in consecutive order. Nonetheless, nowhere in Judge Tolete’s testimony is there any kind of explanation for the different-colored signatures on the testaments. PEOPLE VS LAVAPIE [G.R. No. 130209. March 14, 2001] Greater credence is given to physical evidence as evidence of the highest order because it speaks more eloquently than a hundred witnesses. As we have ruled in People vs. Vasquez,[68] since the physical evidence on record runs counter to the testimonial evidence of the prosecution witnesses, conclusions as to physical evidence should prevail. It bears reiteration that physical evidence is that mute but eloquent manifestations of truth which rate high in our hierarchy of trustworthy evidence. [69] In the light of the physical evidence obtaining in this case, contrary to oral assertions cannot normally prevail. How do we classify object evidence? 1. That which consist in the production of evidence inside the courtroom. Ex. Object of the crime—sachet in shabu, gun used in shooting, knife used to stab the victim. So these are matters which are brought to court. 2. That which consist in the inspection outside the courtroom. Ex. Ocular inspection in land cases or those objects which cannot be brought inside the court room 3. Those that consist in experimentation. Ex. Case of OJ simpson “experimented in fitting the gloves” The O. J. Simpson murder case (officially called the People of the State of California v. Orenthal James Simpson) was a criminal trial held in Los Angeles County, CaliforniaSuperior Court that spanned from the primary jury being sworn in on November 2, 1994 [1] to opening statements on January 24, 1995 [2] to a verdict on October 3, 1995. [3] FormerAmerican football star and actor O. J. Simpson was tried on two counts of murder following the June 1994 deaths of his ex-wife Nicole Brown Simpson and her friend Ronald Goldman. The case has been described as the most publicized criminal trial in American history. [4]Ultimately, Simpson was acquitted after a lengthy trial that lasted over nine months which was presided over by Judge Lance Ito.
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law on evidence Simpson hired a high-profile defense team initially led by Robert Shapiro[6][7][8] and subsequently led by Johnnie Cochran. Los Angeles County believed it had a solid prosecution case, but Cochran was able to persuade the jurors that there was reasonable doubt about the DNA evidence (then a relatively new type of evidence in trials) [9] – including that the bloodsample evidence had allegedly been mishandled by lab scientists and technicians – and about the circumstances surrounding other exhibits.[10] Cochran and the defense team also alleged other misconduct by the Los Angeles Police Department. Simpson's celebrity and the lengthy televised trial riveted national attention on the so-called "Trial of the Century". By the end of the criminal trial, national surveys showed dramatic differences between most blacks and most whites in terms of their assessment of Simpson's guilt. Later, both the Brown and Goldman families sued Simpson for damages in a civil trial. On February 6, 1997, a jury unanimously found there was a preponderance of evidence to hold Simpson liable for damages in the wrongful death of Goldman and battery of Brown. [12]On February 21, 2008, a Los Angeles court upheld a renewal of the civil judgment against him. GLOVE One dark leather glove was found at the crime scene, its match found near Kato Kaelin's guest house behind Simpson's Rockingham Drive estate. [10] Kaelin testified that he had heard "thumps in the night" in the same area around the guest house the night of the murder. [10] Brown had bought Simpson two pairs of this type of glove in 1990. [10] Both gloves, according to the prosecution, contained DNA evidence from Simpson, Brown and Goldman, with the glove at Simpson's house also containing a long strand of blonde hair similar to Brown's. On June 15, 1995, defense attorney Johnnie Cochran goaded assistant prosecutor Christopher Darden into asking Simpson to put on the leather glove that was found at the scene of the crime. The prosecution had earlier decided against asking Simpson to try on the gloves because the glove had been soaked in blood (according to prosecutors) from Simpson, Brown and Goldman, [15] and frozen and unfrozen several times. Darden was advised by Clark and other prosecutors not to ask Simpson to try on the glove,[citation needed] but to argue through experts that in better condition, the glove would fit. Instead, Darden decided to have Simpson try on the glove. The leather glove seemed too tight for Simpson to put on easily, especially over the latex gloves he wore underneath.[10] Uelmen came up with and Cochran repeated a quip he had used several times in relation to other points in his closing arguments, "If it doesn't fit, you must acquit." On June 22, 1995, assistant prosecutor Christopher Darden told Judge Lance Ito of his concerns that Simpson "hasarthritis and we looked at the medication he takes and some of it is antiinflammatory and we are told he has not taken the stuff for a day and it caused swelling in the joints and inflammation in his hands." The prosecution also stated their belief that the glove shrank from having been soaked in blood and later testing. [10] A photo was presented during the trial showing Simpson wearing the same type of glove that was found at the crime scene. Prosecutors contended that the presence of O.J. Simpson's blood at the crime scene was the result of blood dripping from cuts on the middle finger of his left hand. [10] Police noted his wounds on June 13, 1994, and asserted that these were suffered during the fatal attack on Ronald Goldman. However, the defense noted that none of the gloves found had any cuts. Plus, both prosecution and defense witnesses testified to not seeing any cuts or wounds of any kind on Simpson's hands in the hours after the murders took place. The defense also alleged that Fuhrman may have planted the glove at Simpson's house after taking it from the crime scene, and that the analysis finding that the hair could be Brown's could not be reliable. [10] The prosecution contended that this was not the case, pointing out that by the time Fuhrman had arrived at the Simpson home after leaving the Nicole Brown's home, the crime scene had already been combed over by several officers for almost two hours, and none had noticed a second glove at the scene. In his first round of testimony, Fuhrman answered "no" when asked by F. Lee Bailey if he had planted any evidence at Simpson's house. In his second round of testimony, Fuhrman took the Fifth Amendment when asked the same question by Gerald Uelmen.
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law on evidence
That is the use of OBJECT EVIDENCE BY WAY OF EXPERIMENTATION. Question: in the Philippines, do we have a case like that? In that note, let me bring you back to the concept of RIGHT AGAINST SELF-INCRIMINATION. RIGHT AGAINST SELF INCRIMINATION Section 17, Article III of the 1987 Constitution which reads: “No person shall be compelled to be a witness against himself.” This involves matters that would require the exercise of intelligence. Pangutan-an ka ug naa sa imu kung mutubag ka ug dili. But this rule EXCLUDES PURELY MECHANICAL ACTS. What if you are accused of rape of a woman? Nay ginatawag na vaginal swab. They will scrape then tapos basig naa sila mbrush na pubic hair. Pwede ban a manguha ka ug hair sa accused para macompare sa hair found in the genitalia? Can it be compared for a DNA sample or test for lets say, some body tissue. The resolution will depend on how you will consider these types of evidence. Does it involve the exercise of intelligence? Does it merely involve a purely mechanical act? It is PURELY MECHANICAL. In the same way that you have to submit to a finger printing, taking of blood sample because they are purley mechanical. Remember: that the MECHANICAL ACTS
RIGHT
AGAINST
SELF-INCRIMINATION
EXCLUDES
PURELY
PEOPLE V. MALIMIT NOVEMBER 14, 1996 The right against self-incrimination guaranteed under our fundamental law finds no application in this case. This right, as put by Mr. Justice Holmes in Holt vs. United States, ". . . is a prohibition of the use of physical or moral compulsion, to extort communications from him . . ." It is simply a prohibition against legal process to extract from the [accused]'s own lips, against his will, admission of his guilt. 27 It does not apply to the instant case where the evidence sought to be excluded is not an incriminating statement but an object evidence. Wigmore, discussing the question now before us in his treatise on evidence, thus, said: If, in other words (the rule) created inviolability not only for his [physical control of his] own vocal utterances, but also for his physical control in whatever form exercise, then, it would be possible for a guilty person to shut himself up in his house, with all the tools and indicia of his crime, and defy the authority of the law to employ in evidence anything that might be obtained by forcibly overthrowing his possession and compelling the surrender of the evidential articles — a clear reduction ad absurdum. In other words, it is not merely compulsion that is the kernel of the privilege, . . . but testimonial compulsion So: can the pubic hair be taken? YES. How about DNA EVIDENCE? PEOPLE VS YATAR G.R. NO. 150224 MAY 19, 2004 In an attempt to exclude the DNA evidence, the appellant contends that the blood sample taken from him as well as the DNA tests were conducted in violation of his right to remain
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law on evidence silent as well as his right against self-incrimination under Secs. 12 and 17 of Art. III of the Constitution. This contention is untenable. The kernel of the right is not against all compulsion, but against testimonial compulsion.37The right against self- incrimination is simply against the legal process of extracting from the lips of the accused an admission of guilt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence. We ruled in People v. Rondero38 that although accused-appellant insisted that hair samples were forcibly taken from him and submitted to the National Bureau of Investigation for forensic examination, the hair samples may be admitted in evidence against him, for what is proscribed is the use of testimonial compulsion or any evidence communicative in nature acquired from the accused under duress. Hence, a person may be compelled to submit to fingerprinting, photographing, paraffin, blood and DNA, as there is no testimonial compulsion involved. OBJECT EVIDENCE MUST PASS THE TEST OF ADMISSIBILITY. Therefore, if the object is excluded by the law or the rules, such as fruit of a poisonous tree, the same is INADMISSIBLE. For example, if the object is an illegal contraband but it is a product of illegal search or incident to unlawful arrest; it will not be admitted by the court. Likewise, autoptic proference must also be relevant it is relevant only if it makes a fact or consequence more or less probable than in the absence of autoptic proference. Object evidence does not establish the factum probandum. It merely or unlikely that one factum probandum is proven solely by object evidence. Can you think of a factum probandum proven solely by object evidence? GOOD LUCK! For example, stabbing. Thankfully C was there and he took pictures. The evidence is of course damning coz it shows that B really stabbed A. however, under the Law, proper procedure must be followed. Thus, the photograph C must be presented to identify the photographs, otherwise, the photographs won’t be presented as object evidence. As in the case of documentary evidence, it has to be sponsored by the Rules. Object evidence must therefore be supported by propositions or in its ultimate analysis, it must be proven to have a logical relationship in the ultimate fact in issue. What is the most commonly used object evidence in criminal prosecutions which has a lot of issues? MARKED MONEY IN BUY-BUST OPERATIONS PEOPLE V. REYES September 2, 1994 The admissibility of the marked money in evidence is governed by Section 1, Rule 130 of the 1989 Rules on Evidence, which provides that when an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. The marked money, being the consideration paid for the shabu, was relevant to the fact in issue — the sale of shabu. The provisions under which appellant was charged (R.A. No. 6425, Art. III, Sec. 15) does not only penalize the sale but also the delivery of prohibited drugs. Therefore, even if the marked money was not admitted as evidence and the prosecution failed to establish the sale of dangerous drugs, still appellant could be convicted for delivering prohibited drugs.
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law on evidence
What if case is for possession of shabu or illegal drugs? Is it important? NO. THERE IS NO need or requirement for a proof of sale. PEOPLE V. AGULAY September 26, 2008 On this premise, this Court has laid down the "objective" test in scrutinizing buy-bust operations. In People v. Doria, we said: We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. x x x. It bears to point out that prosecutions of cases for violation of the Dangerous Drugs Act arising from buy-bust operations largely depend on the credibility of the police officers who conducted the same, and unless clear and convincing evidence is proffered showing that the members of the buy-bust team were driven by any improper motive or were not properly performing their duty, their testimonies on the operation deserve full faith and credit. For example: Pusher buyer and pusher in a buy-bust operation tapos wala pa natunol ang marked money. It will be as if no crime had been committed. You have to really apply the objective test. PEOPLE V. WILLIAM Y BANEGA June 15, 1992 It’s a case which demonstrates the craftiness of the clever disposition of the lawyers. This case is a drugs case and William was caught with marijuana. Before the SC, lawyers of the accused posed a very novel proposition by way of defense:” that marijuana is an illegal drug. Being illegal, it is beyond the commerce of man. Hence, no crime was committed” The probative value of object evidence is not affected by the fact that it is beyond the commerce of man. — Appellants raise the strange argument that Exhibit "C" has probative value because the subject thereof — marijuana — is beyond the commerce of man This is simply absurd. The transfer of marijuana was incidental to the arrest of appellants and the confiscation of the subject matter of the crime. Exhibit "C" is in the same category as a death certificate and autopsy report which are admissible evidence of the subject of the crime — the human cadaver which is also beyond the commerce of man. Transfer of goods as a consequence or by virtue of police or state action such as forfeiture, seizure, condemnation, confiscation did not fall within the phrase "commerce of man" even in its broadest meaning. Can you recall cases on Consti law on issuance of search warrants and when admissible obtained by reason of the search? COLUMBIA ENTERTAINMENT V. CA September 12, 1996
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law on evidence
This is the case about pirated tapes. Issue: if you are going to search an alleged pirate, would that mean that they should present the master tape or katong tape nga ilang gikopya lan gnila ilang VHS? the Court ruled therein that presentation of the master tapes in such cases is not an absolute requirement for as search warrant to issue: in copyright infringement cases, the presentation of master tapes of the copyright films is always necessary to meet the requirement of probable cause for the issuance of a search warrant. It is true that such master tapes are object evidence, with the merit that in this class of evidence the ascertainment of the controverted fact is made through demonstration involving the direct use of the senses of the presiding magistrate. Such auxiliary procedure, however, does not rule out the use of testimonial or documentary evidence, depositions, admissions or other classes of evidence tending to prove the factum probandum, especially where the production in court of object evidence would result in delay, inconvenience or expenses out of proportion to is evidentiary value. APPRECIATION OF AGE BY APPEARANCE. Its not really recognized by judicial notice but by exercising the use of autoptic proference. The process of judicial notice is repugnant to age as object evidence.
What is the evidentiary rule with respect to age as evidence? PEOPLE V. VILLARAMA [G.R. No. 139211. February 12, 2003] Under paragraph 4, it is true that the penalty for raping a child below 7 years old is death. However, in the case at hand, even if Elizabeth was only 4 years old when the appellant committed the dastardly crime, the prosecution did not present, other than the testimony of the mother, independent evidence proving her age. Court decisions on the rape of minors invariably state that, in order to justify the imposition of the death penalty, there must be independent evidence showing the age of the victim. Testimonies on the victim’s age given by the prosecution witnesses or the lack of denial of the accused or even his admission thereof on the witness stand is not sufficient. This Court has held that, to justify the imposition of the death penalty for rape committed against a child below 7, the minority of the victim must be proved with equal certainty and clarity as the crime itself. The failure to sufficiently establish the victim’s age with factual certainty and beyond reasonable doubt is fatal and consequently bars conviction for rape in its qualified form. In the case at bar, the victim was presented in open court during the testimony of the mother to establish Elizabeth’s age The above-quoted testimony, however, is not sufficient for the court to take judicial notice of the victim’s age. the Court declared that, in cases calling for a conviction of rape in its qualified form, the age of the victim, without qualification, is not a matter of judicial notice, whether mandatory or discretionary. Judicial notice of the issue of age without the requisite hearing under Section 3 of Rule 129 of the Rules on evidence would not be sufficient to establish the age of the victim to warrant the imposition of the death penalty.
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law on evidence It is clear then that even the admission of appellant as to the age of the victim could not be taken against him in the case at bar because of the foregoing guidelines. Paragraph 4 which allows the appreciation of the testimony of the complainant as to the victim’s age provided the same is expressly and clearly admitted by the accused, must be applied in relation to paragraph 3(a) which dispenses with the presentation of independent proof of age only when the victim is below 3 and the age sought to be proved is less than 7. In this case, the unfortunate victim was 4, a year too old. In view of the moral uncertainty of the victim’s exact age on account of the failure of the prosecution to present the birth certificate or similar authentic document (such as her baptismal certificate) and to make a positive and unequivocal manifestation that the victim was indeed 4 years old, not to mention the absence of a categorical finding by the trial court of the victim’s minority, the Court hesitates to impose the penalty of death upon appellant. PEOPLE V. PRUNA G.R. No. 138471 [October 10, 2002] The matter of appreciating the age of the victim, either as an element of the crime or as a qualifying circumstance, was settled when the Court, in the case of People vs. Pruna laid down the following guidelines: 1.
The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party.
2.
In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age.
3.
If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim’s mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances: a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old.
4.
In the absence of a certificate of live birth, authentic document, or the testimony of the victim’s mother or relatives concerning the victim’s age, the complainant’s testimony will suffice provided that it is expressly and clearly admitted by the accused. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him.
5.
The trial court should always make a categorical finding as to the age of the victim [
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law on evidence NOTE: why should there be a variance in age? Like testimony will suffice if what is alleged is that victim is 7 then what is sought to be proved is that she is 12? Because APPEARANCE IS DECEPTIVE. For example, how old do you think is Vicky Belo? She is I think 60 but she doesn’t look her age. Some people tend to look younger than what they are. What is now therefore the EFFECT OF VARIANCE between the allegation of age and what is actually believed by the court? If the victim is alleged to be below 3 but court believes that victim is below 7— QUALIFIED RAPE; death penalty. If alleged to be below 7 but court believes him to be above 7 but below 12—STATUTORY RAPE; reclusion perpetua. But death penalty may still be imposed if the offender is a relative of the victim, RAPE IS QUALIFIED. If alleged to be below 12 but court believes him to be above 12 but below 18—rape is STATUTORY if there is no consent in the intercourse, penalty is reclusion perpetua. Rape is QUALIFIED if committed by a relative; penalty is death if without consent. If with consent, offense will be SEDUCTIOn so long as not committed by a relative. When can there be consent? If the parents themselves who are promoting prostitution of the child.
B. DOCUMENTARY EVIDENCE SEC. 2. Documentary evidence. – Documents as evidence consists of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents . Documentary evidence are of 2 types: 1. Consists of writings or 2. Any material containing letters, words, numbers, figures, symbols or other modes of written expressions. The common requisite in these types is that writing or material is offered as proof of their contents. If the writing or material is not offered as proof of their contents but is offered as proof of the writing itself, it is already considered as object evidence. For example, what you presented is a parchment without indicating for what prupsoe that is, that can be considered a documentary evidence vven if it has some letters, words, etc. because the proof here is sthe writing or material itself without reference to whatever is written there. This very same issue was subject to several bar examination questions. BAR QUESTION: Admissibility; Object or Real Evidence (1994) At the trial of Ace for violation of the Dangerous Drugs Act, the prosecution offers in evidence a photocopy of the marked P100.00 bills used in the “buy-bust” operation. Ace objects to the introduction of the photocopy on the ground that the Best Evidence Rule prohibits the introduction of secondary evidence in lieu of the original. a) Is the photocopy real (object) evidence or documentary evidence? b) Is the photocopy admissible in evidence? SUGGESTED ANSWER:
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law on evidence a) The photocopy of the marked bills is real (object) evidence not documentary evidence, because the marked bills are real evidence. what you are seeking to prove is the possession of the marked money and not the content therein. You don’t have to prove as a fact in issue in the case what a marked money in the case. What you want to prove is the consummation of the contract of buy-bust. That is the evidence in consideration and therefore, if you appreciate it as evidence, it cannot be considered as documentary evidence. b) Yes, the photocopy is admissible in evidence, because the best evidence rule does not apply to object or real evidence. BAR QUESTION; 2005 May a private document be offered and admitted in evidence both as documentary evidence and as object evidence? Explain. YES. A private document may be offered and admitted both as documentary and as object evidence based on the rule on multiple admissibility of evidence. A document can also be considered as object evidence based on the facts of the case. Object as evidence are those which are addressed those addressed to the senses of the court. Documentary evidence are those which consists in writing….hence, the private document may be presented as object evidence to establish certain physical characteristics or physical evidence that are visible on the paper and the writings that authorized the document. We mentioned earlier that the types of documents are “containing letters, words, numbers, figures, symbols or other modes of written expressions”. Now, under the state of the law, we now include ELECTRONIC DOCUMENTS as part of the definition. Under RULE 2, SECTION 1(h)-- (h) “Electronic document” refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term “electronic document” may be used interchangeably with “electronic data message”. Under RULE 3, SECTION 1. Electronic Documents as functional equivalent of paperbased documents. – Whenever a rule of evidence refers to the term writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules. For example, statute of frauds 1403 (2)—requirement that it must be in writing. Does that refer to electronic documents? It may refer to the same because under section 1, rule 3, it is deemed included. It is an expansion of what we refer to as documentary evidence) Remember that like object and testimonial evidence, documentary evidence must be other evidence, electronic evidence must be competent. Competent is when it is not excluded by the law or the Rules of court. It must be relevant—it must have such a relation to the fact in issue as to induce belief of its existence or non-existence. Further, documentary evidence would also be subject to exclusionary rules such as: 1. best evidence rule and 2. parol evidence rule. 3. admission made in violation of Constitutional rights such as the right to selfincrimination.
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law on evidence
What would therefore be for the basic requisites of admissibility of documentary evidence? 1. It must be relevant. It must therefore bear a relation to the fact in issue. 2. A documentary evidence does not present itself and therefore, it must be authenticated, identified by a competent process by the process called “sponsoring by witness” 3. Document must be formally offered as evidence. “Formal offer of evidence”—because court cannot consider evidence which has not been formally offered. Remember: There is a big difference between testimonial and documentary evidence in terms of “offer”. When you present a witness in court before you proceed in asking questions, you have to offer his testimony. The offer will tell the court as well as the adverse party what the subject of his testimony is. For documentary evidence,
1. BEST EVIDENCE RULE SEC. 3. Original document must be produced; exceptions. – When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and (d) When the original is a public record in the custody of a public officer or is recorded in a public office. What is the best evidence rule? The best evidence rule states that when the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself Atty. Espejo: that is actually a misnomer. The term “best evidence” as used in the rule has been a source of a lot of misconceptions. It has been misunderstood and given a meaning which it does not serve. Despite the use of the term “best”, the rule does not proclaim itself as the highest and most credible type of evidence in the hierarchy of evidence. In the hierarchy, what is given paramount consideration is Object or real evidence, then documentary and testimonial evidence. The term best does not pertain to the degree of its probative value in relation to other types of evidentiary rules. It is not intended to mean the most superior evidence because obviously, documentary evidence is ___. More accurately, it is the original document rule or the primary evidence rule. This is the reason why the best evidence rule is actually ___. What does the best evidence rule? As much as possible, present the best evidence. What is that in so far as documentary evidence is concerned? The ORIGINAL DOCUMENT. The general rule is that original must be produced. The exceptions are those enumerated. The rule is not intended to mean that a weaker evidence shall be substituted by __ evidence or the storngers evidence must be the one to be presented but it allows some sort of allowance by way of substitution.
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law on evidence What is the purpose of the Best evidence rule?
1. To prevent fraud—If you present merely a reproduction of the original, there is a possibility of intercalation. 2. The law allows for a possible mistake in the truth of the contents of the writing. If you want to rely merely on what the parties remember and not at all require an original of document, that would be dangerous. Why? Your memory will fail you. LEE V. PEOPLE [G.R. No. 159288. October 19, 2004] Before the onset of liberal rules of discovery, and modern technique of electronic copying, the best evidence rule was designed to guard against incomplete or fraudulent proof and the introduction of altered copies and the withholding of the originals. But the modern justification for the rule has expanded from the prevention of fraud to a recognition that writings occupy a central position in the law. The importance of the precise terms of writings in the world of legal relations, the fallibility of the human memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplicate are the concerns addressed by the best evidence rule. The rule does not apply to proof of facts collateral to the issues such as the nature, appearance or condition of physical objects or to evidence relating to a matter which does not come from the foundation of the cause of action or defense; or when a party uses a document to prove the existence of an independent fact, as to which the writing is merely collated or incidental. CONSOLIDATED V. DEL MONTE G.R. No. 143338 July 29, 2005 The "best evidence rule," according to Professor Thayer, first appeared in the year 1699-1700 when in one case involving a goldsmith, Holt, C. J., was quoted as stating that they should take into consideration the usages of trade and that "the best proof that the nature of the thing will afford is only required." 29 Over the years, the phrase was used to describe rules which were already existing such as the rule that the terms of a document must be proved by the production of the document itself, in preference to evidence about the document; it was also utilized to designate the hearsay rule or the rule excluding assertions made out of court and not subject to the rigors of cross-examination; and the phrase was likewise used to designate the group of rules by which testimony of particular classes of witnesses was preferred to that of others.30 According to McCormick, an authority on the rules of evidence, "the only actual rule that the ‘best evidence’ phrase denotes today is the rule requiring the production of the original writing"31 the rationale being: (1) that precision in presenting to the court the exact words of the writing is of more than average importance, particularly as respects operative or dispositive instruments, such as deeds, wills and contracts, since a slight variation in words may mean a great difference in rights, (2) that there is a substantial hazard of inaccuracy in the human process of making a copy by handwriting or typewriting, and (3) as respects oral testimony purporting to give from memory the terms of a writing, there is a special risk of error, greater than in the case of attempts at describing other situations generally. In the light of these dangers of mistransmission, accompanying the use of written copies or of recollection, largely avoided through proving the terms by presenting the writing itself, the preference for the original writing is justified.
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law on evidence
Bearing in mind that the risk of mistransmission of the contents of a writing is the justification for the "best evidence rule," we declare that this rule finds no application to this case. It should be noted that respondents never disputed the terms and conditions of the promissory note thus leaving us to conclude that as far as the parties herein are concerned, the wording or content of said note is clear enough and leaves no room for disagreement. In their responsive pleadings, respondents’ principal defense rests on the alleged lack of consideration of the promissory note. In addition, respondent Morales also claims that he did not sign the note in his personal capacity. These contentions clearly do not question the "precise wording"33 of the promissory note which should have paved the way for the application of the "best evidence rule." It was, therefore, an error for the Court of Appeals to sustain the decision of the trial court on this point. Besides, the "best evidence rule" as stated in our Revised Rules of Civil Procedure is not absolute. As quoted earlier, the rule accepts of exceptions one of which is when the original of the subject document is in the possession of the adverse party. As pointed out by petitioner in its motion to inhibit, had it been given the opportunity by the court a quo, it would have sufficiently established that the original of Exhibit "A" was in the possession of respondents which would have called into application one of the exceptions to the "best evidence rule." Significantly, and as discussed earlier, respondents failed to deny specifically the execution of the promissory note. This being the case, there was no need for petitioner to present the original of the promissory note in question. Their judicial admission with respect to the genuineness and execution of the promissory note sufficiently established their liability to petitioner regardless of the fact that petitioner failed to present the original of said note. Indeed, when the defendant fails to deny specifically and under oath the due execution and genuineness of a document copied in a complaint, the plaintiff need not prove that fact as it is considered admitted by the defendant What would be the basic requirements for the application of the “best evidence rule”? 1. A subject matter must be called a document— 2. The subject of the inquiry would be the contents of the documents. Stated otherwise therefore, the rule applies only when the purpose is to establish the terms in writing. When the evidence introduced concerns some external fact about a writing, like its existence, execution, or delivery, you have reference to its terms, the same are not be made relevant. So just remember: that you do not use the best evidence rule when the evidence that you want to introduce concerns external facts about the document and not its contents. External facts such as its existence, due execution, delivery, WON it was written on a fragrant stationary paper. In those cases, best evidence rule finds no application. PEOPLE V. BAGO [G.R. No. 122290. April 6, 2000] The rule cannot be invoked unless the content of a writing is the subject of judicial inquiry, in which case, the best evidence is the original writing itself. The rule pertains to the admissibility of secondary evidence to prove the contents of a document. In the case at bar, no secondary evidence is offered to prove the content of a document. What is being questioned by appellant is the weight given by the trial court to the testimony of Manangan over the receipt which on its face shows that the materials in question were delivered to Azkcon’s premises. Clearly, the best evidence rule finds no application on this issue.
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law on evidence Take note: So it is really a question of weight as to how the court will consider it and nto whether what you are presenting is the original or merely a photocopy. If you ask me, what is more believable? Original or another document similar to that original which is similar in all aspects? To my mind, under the law it would really not be admitted but for me, it is a good source of objection. When you file, you only attach photocopies. You do just give the original. There are ways that do not necessarily require the submission of originals. During the time nga ngprogress ang kaso, you ask the witness to identify the photocopy and compare it with the original which he has. If the photocopy is a faithful reproduction of the original, then you just cause the transfer of the marking from the provisional marking to an original or permanent marking. So no need to really submit the original document then. LEE V. PEOPLE October 19, 2004 The rule does not apply to: 1. proof of facts collateral to the issues such as the nature, appearance or condition of physical objects or 2. to evidence relating to a matter which does not come from the foundation of the cause of action or defense; or 3. when a party uses a document to prove the existence of an independent fact, as to which the writing is merely collated or incidental Is a quasi- judicial agency such as BIR, in the conduct of its functions, covered by the best evidence rule? CIR V. HANTEX [G.R. No. 136975. March 31, 2005] Facts: what was sought to be determined as to WON there is any deficiency in the income and business taxes that will be assessed against a taxpayer. Recall that as a general rule, quasi judicial agencies are not bound by the rules on evidence unless the use of latter is precisely mandated by its own rules of procedure. So ang gipresent sa taxpayer are photocopies? Is that sufficient? In any case, the respondent argues that the photocopies of import entries cannot be used in making the assessment because they were not properly authenticated, pursuant to the provisions of Sections 24 and 25 of Rule 132 of the Rules of Court. It avers that while the CTA is not bound by the technical rules of evidence, it is bound by substantial rules. The respondent points out that the petitioner did not even secure a certification of the fact of loss of the original documents from the custodian of the import entries. It simply relied on the report of the EIIB agents that the import entry documents were no longer available because they were eaten by termites. The respondent posits that the two collectors of the Bureau of Customs never authenticated the xerox copies of the import entries; instead, they only issued certifications stating therein the import entry numbers which were processed by their office and the date the same were released. We agree with the contention of the petitioner that the best evidence obtainable may consist of hearsay evidence, such as the testimony of third parties or accounts or other records of other taxpayers similarly circumstanced as the taxpayer subject of the investigation, hence, inadmissible in a regular proceeding in the regular courts. Moreover, the general rule is that administrative agencies such as the BIR are not bound by the technical rules of evidence. It can accept documents which cannot be
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law on evidence admitted in a judicial proceeding where the Rules of Court are strictly observed. It can choose to give weight or disregard such evidence, depending on its trustworthiness. However, the best evidence obtainable under Section 16 of the 1977 NIRC, as amended, does not include mere photocopies of records/documents. The petitioner, in making a preliminary and final tax deficiency assessment against a taxpayer, cannot anchor the said assessment on mere machine copies of records/documents. Mere photocopies of the Consumption Entries have no probative weight if offered as proof of the contents thereof. The reason for this is that such copies are mere scraps of paper and are of no probative value as basis for any deficiency income or business taxes against a taxpayer. As an evidentiary rule, specifically under the rules of exclusion, can it be waived? YES. As in any other evidentiary rule, it can be waived by the parties’ failure to object to the introduction of secondary evidence rather than the original document. That would be a fatal mistake though if the document is an actionable document. APPLICABILITY OF THE BEST EVIDENCE RULE Remember that the rule is only applicable when the original is not available. What actually happens is that when the rule is applicable, meaning the subject of inquiry are the contents of the documents, etc rule applies, therefore you have to present the best evidence but the original is not available for presentation. Remember that the proponent of such evidence must present the original and endeavor not to produce only a mere photocopy. So, if the original document is available no other evidence can be substituted for it. What then can be done if the original is not available? When will the exceptions under rule 130 section 3 be made applicable? The part must find a legal justification of the failure to present the original and then that is the time you will be allowed to present substitutionary or secondary evidence. In line with that, the best evidence rule can therefore be restated as follows: “The original must be presented except when the proponent can justify its unavailability in the manner provided by the rules. If he cannot justify, he cannot present; if he can justify, then the original can be dispensed with, with a preservation of a mere copy” In other words, the proponent has to lay down the basis for the admission of the copy in lieu of the original. When we say basis of admission, lay down your justifications. The EXCEPTIONS: (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; This covers 3 situations: 1. loss 2. destruction 3. unavailability
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law on evidence
For all intents and purposes, when is a document considered lost? Article 1189 of the civil code: Under the law on obligations and contracts, the obligation to give a determinate thing is extinguished if the object is lost without the fault of the debtor. And per Art. 1192 (2) of the Civil Code, a thing is considered lost when it perishes or disappears in such a way that its existence is unknown or it cannot be recovered. How about destruction? Destruction means the obliteration of the document such as tearing, shredding or burning. It can also refer to acts of alteration which would render the contents of the document unintelligible for the purpose of its offer as evidence. What is meant by unavailability? It means the physical or legal unavailability. Physical—it means there is an original document but its impossible to bring it to court. Remember it consists of writing or any other material containing words, letters. So is ti possible that documentary evidence be one not written in a document? Say you wanna prove that a person is dead, you cannot produce a death certificate for the simple reason that records of the local civil registry has been burned down. What’s the substitute evidence? Gravestones! Its not object evidence because the subject of inquiry would b the contents of the gravestone. Kanus-a namatay? July 10, 2012. Ana. Is that the best proof of the date of death? No but substitutionary only. Can you bring that to court? NO. That is physical impossibility. You can actually bring just a photograph then let the court appreciate it. What about legal unavailability? When is a document legally unavailable? It is legally unavailable if it cannot be reached by the coercive powers of the court. It cannot e subject to a request for inspection or production of documents and things. It cannot even be produced by means of search warrant. It is beyond the coercive processes of court. What must be done so that the loss, destruction or unavailability are justified? It requires compliance with section 5, rule 130. CITY BANK V. TEODORO [G.R. No. 150905. September 23, 2003] Before secondary evidence may be admitted to prove the contents of original documents, the offeror must prove the due execution and the subsequent loss or unavailability of the original. Section 5 of Rule 130 of the Rules of Court states: “SEC. 5. When original document is unavailable. – When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated.” Applying the above Rule to the present case, before a party is allowed to adduce secondary evidence to prove the contents of the original, the offeror must prove the following: (1) the existence or due execution of the original;
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law on evidence (2) the loss and destruction of the original or the reason for its nonproduction in court; and (3) On the part of the offeror, the absence of bad faith to which the unavailability of the original can be attributed. “Without bad faith” means that you did not deliberately cause the non-production of the original or that he exerted earnest efforts to present the original but to no avail. The correct order of proof is as follows: existence, execution, loss, and contents. At the sound discretion of the court, this order may be changed if necessary. DELA CRUZ V. CA G.R. No. 117384. October 21, 1998 The parties stipulated a fact that the documentary evidence, whose contents are the subject of the inquiry, would be a deed of sale purportedly executed between the parties. The thing is, only a photoco0py of the document was presented. Object dayon ang pikas na u have to produce the original based on the best evidence rule. Here, the lawyer Atty. Sevillano Tabangay, the notary public who notarized the deed of sale, testified that the document has about five (5) original copies. With 5 original copies, what do you have to prove in order to resort to presentation or mere photocopy or a duplicate? Hence, it is imperative that all the originals must be accounted for before secondary evidence can be presented.8 These petitioners failed to do. Moreover, records show that none of these five copies was even presented during the trial. Petitioners explanation that these copies were lost or could not be found in the National Archives was not even supported by any certification from the said office. It is a well-settled principle that before secondary evidence can be presented, all duplicates and/or counterparts must be accounted for, and no excuse for the non-production of the original document itself can be regarded as established until all its parts are unavailable. What is the correct order of proof? ONG CHING PO V. CA G.R. Nos. 113472-73 December 20, 1994 Secondary evidence is admissible when the original documents were actually lost or destroyed. But prior to the introduction of such secondary evidence, the proponent must establish the former existence of the document. The correct order of proof is as follows: existence; execution; loss; contents. This order may be changed if necessary in the discretion of the court Question: so you have now prove its existence, execution, and loss. How do you now prove the contents? Manner of proving contents The contents of the original document may be proved by: (1) by a copy; (2) by a recital of its contents in some authentic document; or (3) by the recollection of witnesses, in the order stated.
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law on evidence Question: Can you name 2 documents under the law that is so different in form but they contain the same thing? 1. Decree of registration and certificate of sale 2. Journal and ledger How do you determine whether there is forgery or not? BPI V. CASA MONTESSORI INTERNATIONALE [G.R. No. 149454. May 28, 2004] Forgery “cannot be presumed.” [47] It must be established by clear, positive and convincing evidence.[48] Under the best evidence rule as applied to documentary evidence like the checks in question, no secondary or substitutionary evidence may inceptively be introduced, as the original writing itself must be produced in court. [49] But when, without bad faith on the part of the offeror, the original checks have already been destroyed or cannot be produced in court, secondary evidence may be produced. [50] Without bad faith on its part, CASA proved the loss or destruction of the original checks through the Affidavit of the one person who knew of that fact [51] -- Yabut. He clearly admitted to discarding the paid checks to cover up his misdeed. [52] In such a situation, secondary evidence like microfilm copies may be introduced in court. The drawer’s signatures on the microfilm copies were compared with the standard signature. PNP Document Examiner II Josefina de la Cruz testified on cross-examination that two different persons had written them. [53] Although no conclusive report could be issued in the absence of the original checks, [54] she affirmed that her findings were 90 percent conclusive.[55] According to her, even if the microfilm copies were the only basis of comparison, the differences were evident. [56] Besides, the RTC explained that although the Report was inconclusive, no conclusive report could have been given by the PNP, anyway, in the absence of the original checks.[57] This explanation is valid; otherwise, no such report can ever be relied upon in court. Even with respect to documentary evidence, the best evidence rule applies only when the contents of a document -- such as the drawer’s signature on a check -- is the subject of inquiry. As to whether the document has been actually executed, this rule does not apply; and testimonial as well as any other secondary evidence is admissible. [59] Carina Lebron herself, the drawer’s authorized signatory, testified many times that she had never signed those checks. Her testimonial evidence is admissible; the checks have not been actually executed. The genuineness of her handwriting is proved, not only through the court’s comparison of the questioned handwritings and admittedly genuine specimens thereof,[60] but above all by her. The failure of CASA to produce the original checks neither gives rise to the presumption of suppression of evidence[61] nor creates an unfavorable inference against it.[62] Such failure merely authorizes the introduction of secondary evidence [63] in the form of microfilm copies. Of no consequence is the fact that CASA did not present the signature card containing the signatures with which those on the checks were compared. [64] Specimens of standard signatures are not limited to such a card. Considering that it was not produced in evidence, other documents that bear the drawer’s authentic signature may be resorted to. [65] Besides, that card was in the possession of BPI -- the adverse party. We have held that without the original document containing the allegedly forged signature, one cannot make a definitive comparison that would establish forgery; [66] and that a comparison based on a mere reproduction of the document under controversy cannot produce reliable results.[67] We have also said, however, that a judge cannot merely rely on a handwriting expert’s testimony, [68] but should also exercise independent
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law on evidence judgment in evaluating the authenticity of a signature under scrutiny. [69] In the present case, both the RTC and the CA conducted independent examinations of the evidence presented and arrived at reasonable and similar conclusions. Not only did they admit secondary evidence; they also appositely considered testimonial and other documentary evidence in the form of the Affidavit. The best evidence rule admits of exceptions and, as we have discussed earlier, the first of these has been met. [70] The result of examining a questioned handwriting, even with the aid of experts and scientific instruments, may be inconclusive; [71] but it is a non sequitur to say that such result is not clear, positive and convincing. The preponderance of evidence required in this case has been satisfied.
Document in custody of adverse party: (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; Does the mere fact that the original is in the custody of the other party, would that necessitate immediately production of secondary evidence? NO. You still have to present a legal justification for the same. The party may present secondary evidence of the contents of a writing not only when the original is lost or destroyed, but also when it is in the custody or under the control of the adverse party. In either instance, however, certain explanations must be given before a party can resort to secondary evidence. The conditions sine qua non for the presentation and reception of photocopies of the original document as secondary evidence are: 1. the original exists 2. that said document is under the custody or control of the adverse party 3. proponent of the secondary evidence has given the adverse party reasonable notice to produce the original document 4. that the adverse party failed to produce the original document despite the reasonable notice. So here what you have to prove are: EXISTENCE, CONTROL OR CUSTODY, NOTICE and FAILURE DESPITE NOTICE. To warrant the admissibility of secondary evidence when the original of a writing is in the custody or control of the adverse party, Section 6 of Rule 130 provides that the adverse party must be given reasonable notice, that he fails or refuses to produce the same in court and that the offeror offers satisfactory proof of its existence. Sec. 6 of Rule 130 reads: SEC. 6. When original document is in adverse party's custody or control. If the document is in the custody or under control of the adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of loss. The mere fact that the original of the writing is in the custody or control of the party against whom it is offered does not warrant the admission of secondary evidence. The offeror must prove that he has done all in his power to secure the best evidence by giving notice to the said party to produce the document. The notice may be in the form of a motion for the production of the original or made in open court in the presence of the adverse party or via a subpoena duces tecum, provided that the party in custody of the original has sufficient time to produce the same. When such party has the original of the writing and does not voluntarily offer to produce it or refuses to produce it, secondary evidence may be admitted.
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law on evidence
The original consists of numerous accounts: (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and Secondary evidence may be presented when: 1. the original consists of numerous accounts or other documents; i.e. books of accounts, receipts 2. these documents cannot be examined in court without great loss of time; 3. the fact sought to be established from them is only the general result of the whole— meaning the purpose of presenting this evidence is not to examine all the documents or pages of documents but herely to give the judge a summary ast to draw a logical inference as to the probability or imporbailyt of the fact in issue. If the other exceptions are based on prevention of fraud, trustworthiness, etc. Here, secondary evidence is allowed if document consists of numerous accounts because of JUDICIAL ECONOMY or JUDICIAL EXPEDIENCY. ATTY. ESPEJO: I say “compassionate justice”. Cases: COMPANIA MARITIMA V. ALLIED FREE WORKERS UNION G.R. No. L-28999 May 24, 1977 First assignment of error. - The appellants contend that the trial court erred in awarding to the company actual damages, amounting to P450,000, moral damages, of P50,000 and attorney's Considering of P20,000, and in holding that the four officers of the union are solidarily liable for the said damages. Appellants' counsel assailed the award of actual damages, on the ground that the auditors' reports, on which they were based, were hearsay. After analyzing the nature of the damages, awarded, how the same were computed, and the trustworthiness of the company's evidence, we find the first assignment of error meritorious. The company argues that the accountants' reports are admissible in evidence because of the rule that "when the original consists of numerous accounts or other documents which cannot be examined in court without great loss-of time and the fact sought to be established from them is oth the general result of the whole", the original writings need not be produced (Sec. 2[e], Rule 130, Rules of Court). That rule cannot be applied in this case because the voluminous character of the records, on which the accountants' reports were based, was not duly established . It is also a requisite for the application of the rule that the records and accounts should be made accessible to the adverse party so that the company, of the summary may be tested on cross-examination . What applies to this case is the general rule "that an audit made by, or the testimony of, a private auditor, is inadmissible in evidence as proof of the original records, books of accounts, reports or the like"
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law on evidence That general rule cannot be relaxed in this case because the company failed to make a preliminary showing as to the difficulty or impossibility attending the production of the records in court and their examination and analysis as evidence by the court This ruling was further clarified in the case of… ATLAS CONSOLIDATED MINING V. CIR [G.R. No. 159490, February 18, 2008] In case the application for refund/credit of input VAT was denied or remained unacted upon by the BIR, and before the lapse of the two-year prescriptive period, the taxpayerapplicant may already file a Petition for Review before the CTA. If the taxpayer's claim is supported by voluminous documents, such as receipts, invoices, vouchers or long accounts, their presentation before the CTA shall be governed by CTA Circular No. 1-95, as amended, reproduced in full below – In the interest of speedy administration of justice, the Court hereby promulgates the following rules governing the presentation of voluminous documents and/or long accounts, such as receipts, invoices and vouchers, as evidence to establish certain facts pursuant to Section 3(c), Rule 130 of the Rules of Court and the doctrine enunciated inCompania Maritima vs. Allied Free Workers Union (77 SCRA 24), as well as Section 8 of Republic Act No. 1125: 1. The party who desires to introduce as evidence such voluminous documents must, after motion and approval by the Court, present: (a) a Summary containing, among others, a chronological listing of the numbers, dates and amounts covered by the invoices or receipts and the amount/s of tax paid; and (b) a Certification of an independent Certified Public Accountant attesting to the correctness of the contents of the summary after making an examination, evaluation and audit of the voluminous receipts and invoices. The name of the accountant or partner of the firm in charge must be stated in the motion so that he/she can be commissioned by the Court to conduct the audit and, thereafter, testify in Court relative to such summary and certification pursuant to Rule 32 of the Rules of Court. 2. The method of individual presentation of each and every receipt, invoice or account for marking, identification and comparison with the originals thereof need not be done before the Court or Clerk of Court anymore after the introduction of the summary and CPA certification. It is enough that the receipts, invoices, vouchers or other documents covering the said accounts or payments to be introduced in evidence must be pre-marked by the party concerned and submitted to the Court in order to be made accessible to the adverse party who desires to check and verify the correctness of the summary and CPA certification. Likewise, the originals of the voluminous receipts, invoices or accounts must be ready for verification and comparison in case doubt on the authenticity thereof is raised during the hearing or resolution of the formal offer of evidence. (d) When the original is a public record in the custody of a public officer or is recorded in a public office. Basis: Rule 130, section 7 SEC. 7. Evidence admissible when original document is a public record. – When the original of a document is in the custody of a public officer or is recorded in a public office, its
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law on evidence contents may be proved by a certified copy issued by the public officer in custody thereof. What’s the reason? 1. Under 132, SECTION 26, a public record is irremovable. SEC. 26. Irremovability of public record. — Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of a pending case. Example: when an original certificate of title is issued or a TCT, its issued in duplicate. One is given to the owner denominated asowners duplicate certificate of title and the other is kept by ROD which is a duplicate original. Why is one kept? This is because nay ROD nga laxed. Usahay isalig pa sa lain na personnel nga ipaphotocopy. So mawala dayon. Kaya 2 copies ang ihatag. 2. Presumption of regularity—that if its kept there and a certification must be a true and faithful reproduction of the original. Cases on summary of the Best evidence rule: CITIBANK V. SABENIANO October 12, 2006 Best evidence rule This Court disagrees in the pronouncement made by the Court of Appeals summarily dismissing the documentary evidence submitted by petitioners based on its broad and indiscriminate application of the best evidence rule. In general, the best evidence rule requires that the highest available degree of proof must be produced. Accordingly, for documentary evidence, the contents of a document are best proved by the production of the document itself, 113 to the exclusion of any secondary or substitutionary evidence.1 The best evidence rule has been made part of the revised Rules of Court, Rule 130, Section 3, which readsxxxx – As the afore-quoted provision states, the best evidence rule applies only when the subject of the inquiry is the contents of the document. The scope of the rule is more extensively explained thus – But even with respect to documentary evidence, the best evidence rule applies only when the content of such document is the subject of the inquiry. Where the issue is only as to whether such document was actually executed, or exists, or on the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible (5 Moran, op. cit., pp. 76-66; 4 Martin, op. cit., p. 78). Any other substitutionary evidence is likewise admissible without need for accounting for the original. Thus, when a document is presented to prove its existence or condition it is offered not as documentary, but as real, evidence. Parol evidence of the fact of execution of the documents is allowed Alternatively, even if it is granted that the best evidence rule should apply to the evidence presented by petitioners regarding the existence of respondent's loans, it should be borne in mind that the rule admits of the following exceptions under Rule 130, Section 5 of the revised Rules of Court –
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law on evidence SEC. 5. When the original document is unavailable. – xxxxx The execution or existence of the original copies of the documents was established through the testimonies of witnesses, such as Mr. Tan, before whom most of the documents were personally executed by respondent. The original PNs also went through the whole loan booking system of petitioner Citibank – from the account officer in its Marketing Department, to the pre-processor, to the signature verifier, back to the preprocessor, then to the processor for booking. 117 The original PNs were seen by Ms. Dondoyano, the processor, who recorded them in the General Ledger. Mr. Pujeda personally saw the original MCs, proving respondent's receipt of the proceeds of her loans from petitioner Citibank, when he helped Attys. Cleofe and Fernandez, the bank's legal counsels, to reconstruct the records of respondent's loans. The original MCs were presented to Atty. Cleofe who used the same during the preliminary investigation of the case, sometime in years 1986-1987. The original MCs were subsequently turned over to the Control and Investigation Division of petitioner Citibank It was only petitioner FNCB Finance who claimed that they lost the original copies of the PNs when it moved to a new office. Citibank did not make a similar contention; instead, it explained that the original copies of the PNs were returned to the borrower upon liquidation of the loan, either through payment or roll-over. Petitioner Citibank proffered the excuse that they were still looking for the documents in their storage or warehouse to explain the delay and difficulty in the retrieval thereof, but not their absence or loss. The original documents in this case, such as the MCs and letters, were destroyed and, thus, unavailable for presentation before the RTC only on 7 October 1987, when a fire broke out on the 7th floor of the office building of petitioner Citibank. There is no showing that the fire was intentionally set. The fire destroyed relevant documents, not just of the present case, but also of other cases, since the 7 th floor housed the Control and Investigation Division, in charge of keeping the necessary documents for cases in which petitioner Citibank was involved. The foregoing would have been sufficient to allow the presentation of photocopies or microfilm copies of the PNs, MCs, and letters by the petitioners as secondary evidence to establish the existence of respondent's loans, as an exception to the best evidence rule. LEE V. PEOPLE [G.R. No. 159288. October 19, 2004] the petitioner avers that the prosecution failed to prove the loss, destruction or nonavailability of the original copies of the checks and charge invoices; that diligent efforts were undertaken to locate the original copies of the checks and invoices; and that said efforts were futile. He asserts that the witness competent to prove the loss or destruction of the original of the checks would be the records custodian of VMCI. Bayaban was not a competent witness thereon, considering that she merely testified that the clerk of the VMCI failed to locate the original copies of the checks because the latter was lazy to search for the same. The petitioner posits that the prosecution failed to prove the due execution and authenticity of the charge invoices and the two checks through the testimonies of Flores and Bayaban. He contends that Bayaban even admitted that she was not privy to and had no knowledge of the execution of the said checks and of the signatories of the checks. The petitioner further avers that, although the appellate court held that the photocopies of the checks were admissible in evidence based on other proofs adduced by the prosecution, it failed to specify the other proofs adverted to by it. The issues for resolution are as follows: (a) whether or not the petition at bar is the proper remedy of the petitioner; and (b) whether or not the trial court committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in admitting in evidence
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law on evidence the photocopies of the checks and charge invoices in lieu of the original copies thereof. In the final analysis, the threshold issue in this case is whether or not the prosecution adduced evidence, testimonial and documentary, to prove the predication to the admission of the photocopies of the charge invoices 34 and of the checks.35 The petitioner posits that the prosecution failed to discharge its burden, in contrast to the claim of the prosecution that it succeeded in doing so. In resolving the petition at bar, the court will have to delve into and calibrate the testimonial and documentary evidence adduced by the parties in the trial court, which the court is proscribed to do under Rule 45 of the Rules of Court. Before the onset of liberal rules of discovery, and modern technique of electronic copying, the best evidence rule was designed to guard against incomplete or fraudulent proof and the introduction of altered copies and the withholding of the originals. But the modern justification for the rule has expanded from the prevention of fraud to a recognition that writings occupy a central position in the law. The importance of the precise terms of writings in the world of legal relations, the fallibility of the human memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplicate are the concerns addressed by the best evidence rule.38 The rule does not apply to proof of facts collateral to the issues such as the nature, appearance or condition of physical objects or to evidence relating to a matter which does not come from the foundation of the cause of action or defense; or when a party uses a document to prove the existence of an independent fact, as to which the writing is merely collated or incidental. The offeror of secondary evidence is burdened to prove the predicates thereof: (a) the loss or destruction of the original without bad faith on the part of the proponent/offeror which can be shown by circumstantial evidence of routine practices of destruction of documents;40 (b) the proponent must prove by a fair preponderance of evidence as to raise a reasonable inference of the loss or destruction of the original copy; and (c) it must be shown that a diligent and bona fide but unsuccessful search has been made for the document in the proper place or places. 41 It has been held that where the missing document is the foundation of the action, more strictness in proof is required than where the document is only collaterally involved. If the document is one in which other persons are also interested, and which has been placed in the hands of a custodian for safekeeping, the custodian must be required to make a search and the fruitlessness of such search must be shown, before secondary evidence can be admitted.43 The certificate of the custody of the document is incompetent to prove the loss or destruction thereof. Such fact must be proved by some person who has knowledge of such loss. The proponent is also burdened to prove the due execution or existence of the original as provided in Rule 130, Section 5 of the Revised Rules of Court: When the original document is unavailable. – When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated.\ Rule 132, Section 20 of the Revised Rules of Court provides the procedure on how the authenticity and due execution of a private document which is offered as authentic may be proved: Proof of private document. – Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either:
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law on evidence (a) By anyone who saw the document executed or written; or (b) By evidence of the genuineness of the signature or handwriting of the maker. Any other private document need only be identified as that which it is claimed to be. The testimony of an eyewitness as to the execution of a private document must be positive. He must state that the document was actually executed by the person whose name is subscribed thereto.45 The admission of that party against whom the document is offered, of the authenticity and due execution thereof, is admissible in evidence to prove the existence, authenticity and due execution of such document. In this case, there is no dispute that the original copies of the checks were returned to VMCI after the same were negotiated and honored by the drawee bank. The originals of the charge invoices were kept by VMCI. There is also no dispute that the prosecution offered the photocopies of the invoices in evidence to prove the contents thereof, namely that: (a) VMCI purchased 203,500 empty bags from NMI for the total price ofP1,500,150.00; (b) VMCI received the said goods in good order and condition; and (c) NMI charged VMCI for the purchase price of said goods. The prosecution offered the checks to prove the contents thereof as well as the following: (a) VMCI drew and delivered the checks to the NMI; (b) the said checks were endorsed by the petitioner; and (c) the said checks were deposited by the petitioner with the Solidbank which was not the official depository of NMI. Thus, the prosecution was burdened to prove the loss, destruction or its inability to produce in court without bad faith on its part of the original copies of the said invoices and checks without bad faith on its part. We agree with the petitioner that the Certification signed by Carolina Diaz was inadmissible in evidence against him because of the failure of the prosecution to present her as witness and to testify on said certification. However, the records show that, in obedience to the subpoena duces tecum and ad testificandum issued by the trial court directing the VMCI to produce the originals of the checks and the charge invoices, Bayaban, the Manager for Corporate Affairs of VMCI, testified that all its records, including the charge invoices and checks, were destroyed seven years ago in a flash flood which occurred on November 28, 1995, and that such loss/destruction was known to all the employees of VMCI, including herself: Contrary to the claim of the petitioner, the prosecution adduced preponderant evidence to prove the existence, the due execution and the authenticity of the said checks and charge invoices consisting of the admission of no less than the petitioner in his counter-affidavit. The petitioner admitted therein that he received the total amount of P1,500,150.00 from VMCI in full payment of the delivery and sale of the empty bags by NMI to VMCI and that the said amount was in the custody of the said corporation, With the admissions of the petitioner in his counter-affidavit, the prosecution even no longer needed to adduce evidence aliunde to prove the existence, due execution and the authenticity of the charge invoices and the checks. All told then, the prosecution mustered the requisite quantum of evidence to prove the predicates to the admission of the photocopies of the charge invoices and checks. SEC. 8. Party who calls for document not bound to offer it. – A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence. (6a) If you want to call for a production of a document, you had it subpoenaed, but then it turns out that document is adverse to you, are you bound for such production?
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law on evidence
The answer is no. You are not obliged to offer it as evidence. The rules on electronic evidence also has its own best evidence rule. Rule 4, Section 1. Original of an electronic document. – An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. When can you consider copies to be an original document? Electronic evidence: Rule 4, Section 2. Copies as equivalent of the originals. – When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original. Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if: (a) a genuine question is raised as to the authenticity of the original; or (b) in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original. What constitutes unjust or inequitable under these circumstances? That we do not know, SC has not discussed yet on that matter. SEC. 4. Original of document. – (a) The original of a document is one the contents of which are the subject of inquiry. (b) When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. (c) When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. (a) The original of a document is one the contents of which are the subject of inquiry. We would always regard the original as one which is printed first or produced and from which mere copies are made or produced. There can only be one original therefore. But under the Rules on evidence, there are instances when subsequent documents are also considered as original. (1) when the original of a document, the contents of which are the subject of inquiry. Thus, when we speak of “original”, we do not mean original of an object evidence but an original of a documentary evidence. In the latter, the contents of which the subject of inquiry. It is therefore not correct to say, “an original of a gun” or “original of a shabu” because there can be only 1 original, original object evidence. Example: there’s a case involving a reporter who made a story and presented it to his editor whose story was published to the newspaper. What is considered as the original? The story as typed by the reporter or the story as it is published by the newspaper? It would actually depend if the issue itself is the subject of inquiry, then the original would be the story as typed and submitted by the reporter. But if the issue to be established is whether the published story is light news or not, the original would be the story which appeared in print.
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law on evidence
In a suit against a telegraph company for failure to submit a message, the original is the message submitted to he the company for transmission. If the suit is for damages by the sender against the telegraph company because of the delay in the transmission, the original is the message as received by the receiver. (b) When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. If the data entered makes an entry of the transaction which is repeated several times or the files which become part of the data of the company, each document where the entry was made is an original as though as the entry was made at or near the time of the transaction and in the regular course of business. Also in an instance where a lawyers makes pleadings in 2 or more copies which are executed at same time with identical contents, each copy is considered an original. So are writings with identical contents such as newspaper, printing, mimeography and other similar methods executed at the same time. Thus, each newspaper in the newsstand is an original in itself. Here’s a case that talks about “carbon copies” TRANSPACIFIC INDUSTRIAL SUPPLIES V. CA G.R. No. 109172 August 19, 1994 And PEOPLE V. TAN (105 Phil. 1242 [1959]) When carbon sheets are inserted between two or more sheets of writing paper so that the writing of a contract upon the outside sheet, including the signature of the party to be charged thereby, produces a facsimile upon the sheets beneath, such signature being thus reproduced by the same stroke of pen which made the surface or exposed impression, all of the sheets so written on are regarded as duplicate originals and either of them may be introduced in evidence as such without accounting for the nonproduction of the others. When a document is executed in duplicate or multiplicate, each one of the parts is primary evidence of the contents of the document and others not introduced in the case, each is not an original. If several copies of a document are made by inserting a carbon paper and each one is signed, the signed paper is the original and the others are mere copies. Two principal authors on the law on evidence have sustained the theory of the admissibility of duplicate originals, as follows: SEC. 386. . . . the best evidence rule is that rule which requires the highest grade of evidence obtainable to prove a disputed fact. A "duplicate sales slip" has been held to be primary evidence SEC. 420. Duplicate originals. — Where letters are produced by mechanical means and, concurrently with the original, duplicate are produced, as by placing carbon paper and writing on the exposed surface at the same time, all are duplicate originals, and any one of them may introduced in evidence without accounting for the nonproduction of the other.
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law on evidence
SEC. 100. Carbon copies, however, when made at the same time and on the same machine as the original, are duplicate originals, and these have been held to be as much primary evidence as the originals. We find that the ruling of the court below to the effect that the triplicates formed by the used of carbon papers are not admissible in evidence, without accounting first for the loss of the originals is incorrect and must be reversed. Note: the original can vary as to what the issue is. If we talk of proof of payment, the best evidence is the original receipt (OR); for the purpose of determining estafa, or qualified theft with falsification also, you look at the tampered receipts. (c) When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. To be considered as originals under this paragraph, certain requisites must be complied with: 1. there must be entries made repeated in the regular course of business and 2. the entries made must be at or near the time of the transaction (more or less, walay time lapsed) BAR QUESTION 2001 Pedro filed a complaint against Lucio for the recovery of a sum of money based on a promissory note executed by Lucio. In his complaint, Pedro alleged that although the promissory note says that it is payable within 120 days, the truth is that the note is payable immediately after 90 days but that if Pedro is willing, he may, upon request of Lucio give the latter up to 120 days to pay the note. During the hearing, Pedro testified that the truth is that the agreement between him and Lucio is for the latter to pay immediately after ninety day’s time. Also, since the original note was with Lucio and the latter would not surrender to Pedro the original note which Lucio kept in a place about one day’s trip from where he received the notice to produce the note and in spite of such notice to produce the same within six hours from receipt of such notice, Lucio failed to do so. Pedro presented a copy of the note which was executed at the same time as the original and with identical contents. a) Over the objection of Lucio, will Pedro be allowed to testify as to the true agreement or contents of the promissory note? Why? (2%) b) Over the objection of Lucio, can Pedro present a copy of the promissory note and have it admitted as valid evidence in his favor? Why? (3%) SUGGESTED ANSWER: a) Yes, because Pedro has alleged in his complaint that the promissory note does not express the true intent and agreement of the parties. This is an exception to the parol evidence rule. [Sec. 9 (b) of Rule 130, Rules of Court] b) Yes, the copy in the possession of Pedro is a duplicate original and with identical contents. When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. [Sec. 4(b) of Rule 130]. Moreover, the failure of Lucio to produce the original of the note is excusable because he was not given reasonable notice, as requirement under the Rules before secondary evidence may be presented. (Sec. 6 of Rule 130, Rules of Court)
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law on evidence Note: The promissory note is an actionable document and the original or a copy thereof should have been attached to the complaint. (Sec. 7 of Rule 9, 1997 Rules of Civil Procedure). In such a case, the genuineness and due execution of the note, if not denied under oath, would be deemed admitted. (Sec. 8 of Rule 9, 1997 Rules of Civil Procedure) BAR QUESTION 1997 When A loaned a sum of money to B. A typed a single copy of the promissory note, which they both signed A made two photo (xeroxed) copies of the promissory note, giving one copy to B and retaining the other copy. A entrusted the typewritten copy to his counsel for safekeeping. The copy with A’s counsel was destroyed when the law office was burned. a) In an action to collect on the promissory note, which is deemed to be the “original” copy for the purpose of the “Best Evidence Rule”? b) Can the photocopies in the hands of the parties be considered “duplicate original copies”? c) As counsel for A, how will you prove the loan given to A and B? SUGGESTED ANSWER: a. The copy that was signed and lost when the law office was burned is the only “original” copy for purposes of the Best Evidence Rule. (Sec. 4 [b] of Rule 130). b. No, They are not duplicate original copies. They cannot be deemed as having been made at the same time with the original because they were not signed unlike the original. NOTE: Now do not confuse what an original should be as that of the exceptions. Because if there is a 3rd question here, that says, “can the parties present the duplicates in substitution for the original was burned? You have to look at the exceptions to the best evidence rule. That when the original is lost or destroyed, you have to prove the execution of the original, its existence and justify its unavailability and present evidence of its competence, pwede na ang duplicates. c.
The loan given by A to B may be proved by secondary evidence through the xeroxed copies of the promissory note. The rules provide that when the original document is lost or destroyed, or cannot be produced in court, the offerer, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. (Sec. 5 of Rule 130).
3. PAROL EVIDENCE RULE Section 9. Evidence of written agreements. — When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. The term "agreement" includes wills.
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law on evidence
What do you mean by “parol evidence”? Parol evidence means oral evidence or extrinsic evidence or evidence aliunde or such evidence that is outside of the four corners of a written agreement. Therefore you cannot do anything or say anything that would modify, add or explain to the terms of the written agreement. When is a contract considered to be reduced into writing? The presumption is that the parties have already agreed to the terms that would govern their contractual relationship. There is already meeting of the minds. And those terms are supposed to be all there is. Walay mga side agreements or hidden agreements. Therefore, the law says that if parties have made their agreements into writing, mao na na! bawal na magdungag ug any terms to modify, add or explain to the terms of the written agreement. SPOUSES EDRADA V. SPOUSES RAMOS G.R. NO. 154413, AUGUST 31, 2005 The parol evidence rule forbids any addition to, or contradiction of, the terms of a written agreement by testimony or other evidence purporting to show that at or before the execution of the written agreement, other or different terms were agreed upon by the parties, varying the purport of the written contract. When the terms of an agreement have been reduced to writing, parties cannot be permitted to adduce evidence to allege practices which to all purposes would alter the terms of the written agreement. Whatever is found on the writing is understood to have been waived and abandoned. What would be the BASIS of the parol evidence rule? 1. It is based on the principle of HIERARCHY OF EVIDENCE. In general, documentary evidence prevail over oral or parol evidence. (hierarchy: real or object evidence documentary parol evidence) 2. Based on the principle of WAIVER AFTER INTEGRATION.-- he rule is based on the presumption that the parties "have made the writing the only repository and memorial of the truth and whatever is not found in the writing must be understood to have been waived and abandoned." As Wigmore would put it, "When a jural act is embodied in a single memorial, all other utterances of the parties on that topic are legally immaterial for the purpose of determining what are the terms of their act." 3. It is based on the principle of COMPARATIVE ACCURACY of written agreements over all else that rest merely on the fleeting memory of man. Suppose A entered into a contract with B. tapos after 5 years, nangutana si B unsa daw ang terms of the contract. Nakalimot na xa. Remember, human memory is fleeting. So it is always best to put all agreements into writing. 4. It is based on the BELIEF THAT PAROL EVIDENCE is most prone to fabrication. 5. It is based on the hornbook rule in the interpretation of contracts that gives PRIMACY TO THE INTENTION OF THE PARTIES AS THE LAW MAY GIVE THEM. 6. It is based on the policy of the law to give stability to written agreements and to remove the temptation of perjury.
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law on evidence
REBULDELA V. IAC (155 SCRA 520, 529, [NOVEMBER 11, 1987]), the parol evidence rule forbids any addition to or contradiction of the terms of a written instrument. Oral testimony cannot prevail over a written agreement of the parties, the purpose of the parol evidence rule being to give stability to written agreements and to remove the temptation and possibility of perjury, which would be afforded if parol evidence were admissible. If a contract violates the parol evidence rule, does it have any implications as to its validity? While parol evidence rule has not proclaimed itself to be a limitation on the vitality of a contract, it is a requirement that must be taken into consideration, as a condition precedent to a party’s ability to prove the same. Even if the contract is valid in its oral form, contracts being generally and essentially consensual, it is virtually futile if you cannot therefore sue upon it or if you are barred without the presence of a written document relative to same agreement. In this regard, the Parol Evidence rule and the Statute of Frauds embodied in Article 1403 of the civil code are important. HEIRS OF DEL ROSARIO V. SANTOS G.R. No. L-46892 September 30, 1981 What appellants really intended to prove through the alleged false notarization of the deed of sale is the true import of the matter, which according to them, is a mere tentative agreement with appellee. As such, it was not intended to be notarized and was merely entrusted to appellee's care and custody in order that: first, the latter may secure the approval of one Erlinda Cortez to their (appellants') offer to pay a debt owing to her in the amount of P2,000.00 to appellee instead of paying directly to her as she was indebted to appellee in various amounts exceeding P2,000.00; and second once the approval is secured, appellee would render an accounting of collections made from Erlinda showing in particular the consideration of P2,000.00 of the deed of sale duly credited to Erlinda's account. According to appellants, they intended to prove at a full dress trial the material facts: (1) that the aforesaid conditions were not fulfilled; (2) that Erlinda Cortez paid her total indebtedness to appellee in the amount of P14,160.00, the P2,000.00 intended to be paid by appellant included; and (3) that said Erlinda decided to forego, renounce and refrain from collecting the P2,000.00 the appellants owed her as a countervance reciprocity of the countless favors she also owes them. Being conditions which alter and vary the terms of the deed of sale, such conditions cannot, however, be proved by parol evidence in view of the provision of Section 7, Rule 130 of the Rules of Court which states as follows: Sec. 7. Evidence of written agreements when the terms of an agreement have been reduced to writing, it is to be considered as containing all such terms, and, therefore, there can be, between the parties and their successors in interest, no evidence of the terms of the agreement other than the contents of the writing, except in the following cases: (a) Where a mistake or imperfection of the writing, or its failure to express the true intent and agreement of the parties, or the validity of the agreement is put in issue by the pleadings; (b) When there is an intrinsic ambiguity in the writing. The term "agreement" includes wills."
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law on evidence
The parol evidence rule forbids any addition to or contradiction of the terms of a written instrument by testimony purporting to show that, at or before the signing of the document, other or different terms were orally agreed upon by the parties. 12 While it is true, as appellants argue, that Article 1306 of the New Civil Code provides that "the contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided that they are not contrary to law, morals, good customs, public order, or public policy" and that consequently, appellants and appellee could freely enter into an agreement imposing as conditions thereof the following: that appellee secure the written conformity of Erlinda Cortez and that she render an accounting of all collections from her, said conditions may not be proved as they are not embodied in the deed of sale. The only conditions imposed for the execution of the Deed of Confirmation of Sale by appellants in favor of appellee are the release of the title and the approval of the subdivision plan. Thus, appellants may not now introduce other conditions allegedly agreed upon by them because when they reduced their agreement to writing, it is presumed that "they have made the writing the only repository and memorial of truth, and whatever is not found in the writing must be understood to have been waived and abandoned." Neither can appellants invoke any of the exceptions to the parol evidence rule, more particularly, the alleged failure of the writing to express the true intent and agreement of the parties. Such an exception obtains where the written contract is so ambiguous or obscure in terms that the contractual intention of the parties cannot be understood from a mere reading of the instrument. In such a case, extrinsic evidence of the subject matter of the contract, of the relations of the parties to each other, and of the facts and circumstances surrounding them when they entered into the. contract may be received to enable the court to make a proper interpretation of the instrumental. 14 In the case at bar, the Deed of Sale (Exh. A or 1) is clear, without any ambiguity, mistake or imperfection, much less obscurity or doubt in the terms thereof. We, therefore, hold and rule that assigned errors III and IV are untenable. What are therefore covered under the parol evidence rule? To what does the rule apply? In order for the parol evidence rule to apply, there must be an agreement. It is understood that an agreement must be contract. Thus, when there is meeting of the minds of the parties and the same is reduced in writing, the resulting physical contract is covered by the parol evidence rule. Hwoever, the general understanding of a written agreement does nto apply to the last paragraph of section 9: “the term agreement includes wills”. Is a will an agreement? NO, but the term agreement includes wills only by fiction and only for the purpose of parol evidence rule. While a will is clearly not an agreement because it is a strictly personal and a unilateral act of testator, howver, by force of the rules and apparent legal fiction, a will is an agreement as well although there is clearly no meeting of the minds. But why is it included under the Parol evidence rule? The danger sought to be avoided by the requirement of the parol evidence rule is also present in the making of wills and are also deemed as prevalent in as much as the testator or the person who made the will, the decedent, can no longer object to attempts to vary his testamentary event as his voice is already silenced by it. Kung ang agreement gani, bawal mugamit ug parol evidence para i-vary xa, unsa pa kaha ang wills?
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law on evidence
AZUELA V. CA G.R. No. 122880 April 12, 2006 Whatever the inclinations of the members of the Code Commission in incorporating Article 805, the fact remains that they saw fit to prescribe substantially the same formal requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced that these remained effective safeguards against the forgery or intercalation of notarial wills.34 Compliance with these requirements, however picayune in impression, affords the public a high degree of comfort that the testator himself or herself had decided to convey property post mortem in the manner established in the will. 35The transcendent legislative intent, even as expressed in the cited comments of the Code Commission, is for the fruition of the testator’s incontestable desires, and not for the indulgent admission of wills to probate. When the law says written agreement, of course, there has to be some writing. What type of agreement or document are we talking about? Can it be a private document? No notarization by notary public? Is it required that it is a unilateral document where only 1 party signs it? NO. It refers to ANY AGREEMENT for so long as it is in writing, whether public or private document. For so long as it is a written agreement, the parol evidence rule applies. INCIONG V. CA [G.R. No. 96405. June 26, 1996] Nor is there merit in petitioner's assertion that since the promissory note "is not a public deed with the formalities prescribed by law but x x x a mere commercial paper which does not bear the signature of x x x attesting witnesses," parol evidence may "overcome" the contents of the promissory note. Clearly, the rule does not specify that the written agreement be a public document. What is required is that agreement be in writing as the rule is in fact founded on "long experience that written evidence is so much more certain and accurate than that which rests in fleeting memory only, that it would be unsafe, when parties have expressed the terms of their contract in writing, to admit weaker evidence to control and vary the stronger and to show that the parties intended a different contract from that expressed in the writing signed by them." [11] Thus, for the parol evidence rule to apply, a written contract need not be in any particular form, or be signed by both parties. As a general rule, bills, notes and other instruments of a similar nature are not subject to be varied or contradicted by parol or extrinsic evidence. The rule is NOT absolute. Pag naa nay contrata, ang nakasulat lang sa kontrata, mao ran a ang rights and obligations sa parties. Wala nay pwede pa madungag other than the document itself. WHAT AR THE EXCEPTIONS? A party may present evidence to modify, explain or add to the terms of the agreement, the requirement only that, if he puts in issue in his pleading: 1. An intrinsic ambiguity, mistake or imperfection in the written agreement; 2. The failure of the written agreement to express the true intent and agreement of the parties thereto; 3. The validity of the written agreement; or 4. The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. 1st exception: An intrinsic ambiguity, mistake or imperfection in the written agreement;
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law on evidence
“AMBIGUITY” What do you mean by ambiguity? It means uncertainty as to the meaning usually caused by words and phrases with more than 1 meaning. Applying to the rule, ambiguity means that agreement is susceptible to 2 or more interpretations. It is of 2 types: 1. PATENT OR EXTRINSIC AMBIGUITY— Patent ambiguity is that ambiguity which is apparent on the face of an instrument to any one perusing it, even if he be unacquainted with the circumstances of the parties. In the case of a patent ambiguity parol evidence is admissible to explain only what has been written, not what it was intended to write. Question: is this curable by parol evidence? Meaning if written agreement is patently ambiguous; can you introduce oral evidence to explain its terms? If you look at rule 130 section 9, the law is actually silent for it only talks about intrinsic ambiguity. Let’s relate this to your succession. In a will it says, “I give to bangs by way of legacy, something!” so you know it to be a real property for it is termed as legacy. This is patent ambiguity? NO. Clearly, it is not merely a mistake in the description. It amounts to NO description at all! BORILLO V. CA G.R. No. 55691 May 21, 1992 Before parol evidence may be admitted in order to identify, explain or define the subject matter of a writing, it must first be shown that the writing itself already contains a description sufficient to serve as a foundation for the admission of such parol evidence; the evidence should also be consistent with the writing. Otherwise stated, in order to admit parol evidence to aid in the description of the subject matter of a deed or other writing, there must be a description that will serve as a foundation for such evidence; the writing must at least give some data from which the description may be found and made certain. Parol evidence is not admissible to identify the property where the description thereof is so vague as to amount to no description at all. In other words, parol evidence is not permitted to supply a description, but only to apply it. When is it curable? In other words and more generally, if the court, placing itself in the situation in which the testator or contracting party stood at the time of executing the instrument, and with a full understanding of the force and import of the words, cannot ascertain his meaning and intention from the language of the instrument, then it is a case of incurable, hopeless uncertainty and the instrument is, therefore, so far inoperative and void." Extrinsic ambiguity means no description at all. What if it’s merely imperfect? -
FALSA DEMONSTRATIO NON NOCET “False description will not invalidate an instrument” The erroneous description will be considered as a surplusage.
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law on evidence ILLUSTRATION: In a deed of sale of a parcel of land covered by: TCT 12345, located in City of Muntinlupa. There is really a land covered by TCT 12345 with same technical description however it is not located in Muntinlupa, but in Laguna. The erroneous description will not invalidate the contract. If the description is imperfect, the principle of Falsa demonstratio non nocet would apply A false or mistaken description does not vitiate”. The principle of falsa demonstratio non nocet means that if, on considering the language of a will with the aid of any admissible extrinsic evidence, the court comes to the conclusion that the testator intended to pass something and can determine what that something is, then the fact that the testator gave it a wrong description in his will does not prevent the will taking effect in regard to the subject matter intended by the testator. The principle may be applied in whatever part of the description the error occurred Example: Thus, if T makes a specific gift of certain stock, i.e. preferred stock and T at the date of his will possessed no such stock but possessed only a common stock which the court decides was meant, the latter stock passes under the gift despite the false description. Will is not invalidated. 2. LATENT OR INTRINSIC AMBIGUITY— Latent ambiguity is where the wording of an instrument is on the face of it clear and intelligible, but may, at the same time, apply equally to two different things or subject matters, as where a legacy is given "to my nephew, John," and the testator is shown to have two nephews of that name. A latent ambiguity may be explained by parol evidence, for, as the ambiguity has been brought about by circumstances extraneous to the instrument, the explanation must necessarily be sought for from such circumstances. Are these the only 2 types of ambiguities? Some would insert INTERMEDIATE AMBIGUITY? This refers to a situation where an ambiguity partakes of the nature of both patent and latent. In this, the word are seemingly clear and with a settled meaning, are actually equivocal and admits of two interpretations. If patent ambiguity is not curable by parol and latent ambiguity is curable by parol, what about intermediate ambiguity which is in between? Is it curable by parol evidence? YES. Here, parol evidence is admissible to clarify the ambiguity provided that the matter is put in issue by the pleader. Example: Dollars, tons and ounces US cases and some Philippine cases recognized intermediate ambiguity, and evidence aliunde may be admitted by the court to explain or add to its meaning. This arises by the use of equivocal word/s which is susceptible of more than one interpretation. PALANCA V. WILSON COMPANY G.R. No. L-11310 January 31, 1918 Defendant sold to plaintiff a distilling apparatus of guaranteed capacity of 6,000 liters daily. Defendant claimed that the phrase referred to “receiving” capacity. Here the word “capacity” was susceptible of two interpretations. SC held that parol evidence is admissible to show which of the two interpretations meant by the parties. SUMMARY of the Rules governing the admissibility of parol evidence to explain ambiguity 1) Where the instrument itself seem to be clear and certain on its face, and the ambiguity arises from extrinsic or collateral matter, the ambiguity may be helped by parole evidence (Latent ambiguity) 2) Where the ambiguity consists in the use of equivocal words designing the person or subject-matter, parole evidence of collateral or extrinsic matter may be introduced for the
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law on evidence purpose of aiding the court in arriving at the meaning of the language used (Intermediate ambiguity) 3) Where the ambiguity is such that a perusal of the instrument shows plainly that something more must be added before the reader can determine what of several things is meant, the rule is inflexible that parol evidence cannot be admitted to supply the deficiency. “MISTAKE” BPI V. FIDELITY AND SURETY COMPANY October 19, 1927 G.R. No. L-26743 To justify the reformation of a written instrument upon the ground of mistake, the concurrence of three things is necessary: 1. Mistake should be of fact – does not correctly express the intention of the parties applies only to a mistake of facts 2. Mistake should be mutual or common to both parties to the instrument – Reformation is then given because mistake is mutual. The parties must have come to an actual oral agreement before they have attempted to reduce it in writing, 3. The mistake should be alleged and proved by clear and convincing evidence MAGELLAN MARKETING V. CA G.R. No. 95529 August 22, 1991 Nature of bill of lading: there’s a contract of importation here exported by Philipines to Japan is 136,000 anahaw fans. Japan contends that according to the bill of lading, bawal ang transshipment. Japan did not accept the goods kay naa daw transshipment. According to Magellan Marketing, kelangan bayaran sa Japan coz mistake lang daw ‘to nga na-stamp sa bill of lading na nay transshipment. Petitioner insists that "(c)onsidering that there was no actual transhipment of the Anahaw fans, then there is no occasion under which the petitioner can agree to the transhipment of the Anahaw fans because there is nothing like that to agree to" and "(i)f there is no actual transhipment but there appears to be a transhipment in the bill of lading, then there can be no possible reason for it but a mistake on the part of the private respondents. Petitioner, in effect, is saying that since there was a mistake in documentation on the part of private respondents, such a mistake militates against the conclusiveness of the bill of lading insofar as it reflects the terms of the contract between the parties, as an exception to the parol evidence rule, and would therefore permit it to explain or present evidence to vary or contradict the terms of the written agreement, that is, the bill of lading involved herein. HELD: It is a long standing jurisprudential rule that a bill of lading operates both as a receipt and as a contract. It is a receipt for the goods shipped and a contract to transport and deliver the same as therein stipulated. As a contract, it names the parties, which includes the consignee, fixes the route, destination, and freight rates or charges, and stipulates the rights and obligations assumed by the parties. 15 Being a contract, it is the law between the parties who are bound by its terms and conditions provided that these are not contrary to law, morals, good customs, public order and public policy. 16 A bill of lading usually becomes effective upon its delivery to and acceptance by the shipper. It is presumed that the stipulations of the bill were, in the absence of fraud, concealment or improper conduct, known to the shipper, and he is generally bound by his acceptance whether he reads the bill or not. 17
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law on evidence The holding in most jurisdictions has been that a shipper who receives a bill of lading without objection after an opportunity to inspect it, and permits the carrier to act on it by proceeding with the shipment is presumed to have accepted it as correctly stating the contract and to have assented to its terms. In other words, the acceptance of the bill without dissent raises the presumption that all the terms therein were brought to the knowledge of the shipper and agreed to by him and, in the absence of fraud or mistake, he is estopped from thereafter denying that he assented to such terms. This rule applies with particular force where a shipper accepts a bill of lading with full knowledge of its contents and acceptance under such circumstances makes it a binding contract. 18 In the light of the series of events that transpired in the case at bar, there can be no logical conclusion other than that the petitioner had full knowledge of, and actually consented to, the terms and conditions of the bill of lading thereby making the same conclusive as to it, and it cannot now be heard to deny having assented thereto. As borne out by the records, James Cu himself, in his capacity as president of MMMC, personally received and signed the bill of lading. On practical considerations, there is no better way to signify consent than by voluntary signing the document which embodies the agreement. ROSARIO TEXTILE V. HOME BANKERS [G.R. No. 137232. June 29, 2005] SC discussed on the applicability of parol evidence rule on suretyship. Petitioner Yujuico contends that the suretyship agreement he signed does not bind him, the same being a mere formality. We reject petitioner Yujuico’s contentions for two reasons. First, there is no record to support his allegation that the surety agreement is a “mere formality;” and Second, as correctly held by the Court of Appeals, the Suretyship Agreement signed by petitioner Yujuico binds him. The terms clearly show that he agreed to pay the bank jointly and severally with RTMC. The parole evidence rule under Section 9, Rule 130 of the Revised Rules of Court is in point, thus: Xxxxxxxxx Under this Rule, the terms of a contract are rendered conclusive upon the parties and evidence aliunde is not admissible to vary or contradict a complete and enforceable agreement embodied in a document. We have carefully examined the Suretyship Agreement signed by Yujuico and found no ambiguity therein. Documents must be taken as explaining all the terms of the agreement between the parties when there appears to be no ambiguity in the language of said documents nor any failure to express the true intent and agreement of the parties.[ “IMPERFECTION” and “FAILURE OF THE WRITTEN AGREEMENT TO EXPRESS TRUE INTENT OF PARTIES” “Imperfection” means that the writing is incomplete and doses not express the true agreement between the parties. Here, there is a failure between the parties to lay down all the conditions which are to constitute the agreement. What makes this different from the 2 nd exception:”failure of the agreement to express the true agreement and intent between the parties thereto”? To my mind, there is really no distinction. It is practically the same. Even the SC is of the same opinion. In the case of …
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law on evidence
AMPARO DEL ROSARIO V. SANTOS G.R. No. L-46892 September 30, 1981 Such an exception obtains where the written contract is so ambiguous or obscure in terms that the contractual intention of the parties cannot be understood from a mere reading of the instrument. In such a case, extrinsic evidence of the subject matter of the contract, of the relations of the parties to each other, and of the facts and circumstances surrounding them when they entered into the contract may be received to enable the court to make a proper interpretation of the instrument. The 2nd exception is applicable mostly to cases where there is failure of the agreement to express the true intent of the parties. This is applicable in: 1. Equitable mortgage 2. Leases with option to buy In these 2 agreements, it is actually a contract of sale but denomination of terms is different. What is then your remedy? ACTION FOR REFORMATION UNDER Article 1359. Fraud is a ground for reformation and not only mistake. Does reformation apply to agreements covered under the Parol evidence rule? In an action for reformation, it is precisely what you are going to say, that there was a mistake. IT APPLIES. If a contract is susceptible of reformation, then section 9 also applies with the EXCEPTION OF 1 THING: that is with respect to WILLS. You cannot reform to wills. It may be an agreement by legal fiction, but by its nature, it is not susceptible by reformation. Whether there is fraud, mistake or inequitable conduct, dili pwede. What if the mistake, fraud, inequitable conduct or accident which resulted to failure to express the true agreement between the parties but really prevented the making of the minds, is reformation proper? No. there being no meeting of the minds, there being a vice in consent, the remedy is ANNULMENT OF THE CONTRACT. Why can there be no reformation in wills? Basis: Article 1366. There shall be no reformation in the following cases: (1) Simple donations inter vivos wherein no condition is imposed; (2) Wills; (3) When the real agreement is void. Reason: 1. Will is not a contract 2. Will is an agreement ONLY for the purpose fo the parol evidence rule. CUYUGAN V. SANTOS March 3, 1916 G.R. No. L-10265 Effect of statute of frauds. – The statute of frauds does not stand in the way of treating an absolute deed as a mortgage, when such was the intention of the parties, although the agreement for redemption or defeasance rests wholly in parol, or is proved by parol evidence. The courts will not permit the statute to be used as a shield for fraud, or as a means for perpetrating fraud.
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law on evidence Rule prohibiting contradiction of written documents. – The admission of parol testimony to prove that a deed absolute in form was in fact given and accepted as a mortgage does not violate the rule against the admission of oral evidence to vary or contradict the terms of a written instrument. Having disposed of the contention that the provisions of the new Code of Civil Procedure, enacted under American sovereignty, forbid the introduction of parol evidence to establish the true nature of transactions such as that under consideration in the case at bar, we come now to consider whether there is anything in the Spanish Codes which denies the power of the courts to enforce the equitable doctrine announced by the Supreme Court of the United States with reference to agreements and understandings of this nature. In the light of these elementary and basic principles of the Code there can be no question, in the absence of express statutory prohibition, as to the validity of an agreement or understanding whereby the lender of money, who as security for the repayment of the loan has taken a deed to land, absolute on its face or in the form of a deed reserving a mere right of repurchase to the vendor, obligates himself to hold such deed, not as evidence of a contract of sale but by way of security for the repayment of the debt; and that unless the rights of innocent third persons have intervened the lender of the money may be compelled to comply specifically with the terms of such an agreement, whether it be oral or written; and further, that he will not be permitted, in violation of its terms, to set up title in himself or to assert a claim or absolute ownership. If the parties actually enter into such an agreement, the lender of the money is legally and morally bound to fulfill it. Of course such an oral contract does not give the borrower a real right in the lands unless it is executed in compliance with the formalities prescribed by law. If entered into orally, it creates a mere personal obligation which in no wise effects the lands, and if the lender conveys the lands to innocent third persons, the borrower must content himself with a mere right of action for damages against the lender, for failure to comply with his agreement. But so long as the land remains in the hands of the lender, the borrower may demand the fulfillment of the agreement, and a mere lack of any of the formalities prescribed under the Spanish Code for the execution of contracts affecting real estate will not defeat his right to have the contract fulfilled, as the lender may be compelled in appropriate proceedings to execute the contract with the necessary prescribed formalities. 3RD EXCEPTION: the validity of the written agreement Here, a party seeks to present oral evidence to prove that the contract is not valid. As in all other exceptions, he must raise the invalidity of the contract in writing. Example: Complaint stating that B wala pa kabayad. Then, B in his answer attaches and contends that they have a contract novating the contract. Can A later on during trial, present testimonial or oral evidence saying that the novated contract is a void contract, therefore the first contract is the one that stands? Can he? No. because he never filed a reply. If you do not file a reply, how can you raise the invalidity of the subsequent novated contract. It is a requisite under the parol evidence rule that you must place it as an issue—the invalidity of the contract in your PLEADING. Remember in civil procedure that when there is an actionable document in his answer. You have to file a reply and the reply becomes a mandatory pleading. Otherwise, you cannot contest it unless you deny it under oath. Another situation: agreement between A and B for sale of the land. Pagkita nila, gihatag ni seller A ang title ng land then a receipt was issued to B. ana si B, “hulat sa dira ha kay
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law on evidence magwithdraw pa ko”. What happened was, B went to the registry of deeds para magpatitulo. Now, how can A as the seller file an action against B when in fact, there was a receipt which was issued saying that a consideration was given. (remember in your law on contracts that a sale without a consideration is void.) how will A now prove that there was no consideration? As a general rule, A cannot prove that he did not receive the consideration of the contract. But for as long as he puts in issue in his pleading, the fact that contract is not valid because of lack of consideration, ten he will be able to present testimonial or parol evidence to prove otherwise. Because if you decide otherwise and estop that party from claiming, he will not be able to really prove he did not receive anything as stated in the contract. The same thing also applies to FORGERY. In the case of… ALORIA V. CLEMENTE February 28, 2006 Forgery, however, “cannot be presumed; it must be proved by clear, positive and convincing evidence and whoever alleges it has the burden of proving the same. BOUGH V. CANTIVEROS G.R. No. 13300 September 29, 1919 While thus as the law well says "public instruments are evidence of the fact which gave rise to their execution" and are to be considered as containing all the terms of the agreement, yet, if the validity of the agreement is the issue, parole evidence may be introduced to establish illegality or fraud. Evidence to establish illegality or fraud, is expressly permitted under section 285 of the Code of Civil Procedure, and may be proved by circumstantial evidence, aided by legitimate inferences from the direct facts.
What about “REPRESENTATIONS”? There is what we call “policitacion stage”. as seller, of course you engage in ‘traders talk”. But there is a difference between a mere traders talk and warranty. Because if the party believed that the presentation is true and because of it he relied on that representation to enter into the contract of sale, that becomes _____. Magsabot mo sa sale of land..muignon ka nga, “kabalo baka, kani kay gipuy-an ni sa mga Japanese tung-una. Naa ni hidden treasure!” ana imuhang representation. Now you want to prove later on, because acdg to you, you were duped into entering a contract, that were it not for the statement of seller that there was a hidden treasure, you would not have entered into the same. That is something that will never appear in the contract. How can you therefore prove that there was fraud or misrepresentation and that as to you, it is invalid and then present parole evidence rule prove the same? In the case of .. WOODHOUSE V. HALILI G.R. No. L-4811 July 31, 1953 The act or statement of the plaintiff was not sought to be introduced to change or alter the terms of the agreement, but to prove how he induced the defendant to enter into
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law on evidence it — to prove the representations or inducements, or fraud, with which or by which he secured the other party's consent thereto. These are expressly excluded from the parol evidence rule. Fraud and false representation are an incident to the creation of a jural act, not to its integration, and are not governed by the rules on integration. Were parties prohibited from proving said representations or inducements, on the ground that the agreement had already been entered into, it would be impossible to prove misrepresentation or fraud. Furthermore, the parol evidence rule expressly allows the evidence to be introduced when the validity of an instrument is put in issue by the pleadings. PERO..sales talk..that is not part of the exceptions. 4th exception: the existence of other terms agreed to by the parties and their successors in interest after the execution of the written agreement. For purposes of reckoning, let us shorten that to mean: SUBSEQUENT AGREEMENTS. Subsequent oral agreements are taken to mean as not among the exceptions to the parol evidence rule. For example, D borrowed money from A. for this, D signed promissory note and the maturity was fixed at July 3, 1995 but when July 3 came, D did not pay, thus A sues B payment for the due account. D’s defense was that his account was not yet due because after the execution of the PN , A agreed to extend the period of payment to December 3, 1995. Oral agreement happened after execution of the promissory note. Can D therefore produce oral evidence to prove the subsequent oral agreement he had with A? YES. He can present. Because If you really look at it, it resulted to the novation of the original contract. The principle to remember is :PARTIES CANNOT INCORPORATE IN THE CONTRACT OR INSTRUMENT SOMETHING THAT THEY WILL AGREE ON THE FUTURE. The parties cannot determine in advance what they may agree in the future. Isn’t this a violation to the parol evidence rule? NO. Remember, what is guaranteed only under this exception is admissibility. They can be admitted but however, does it guarantee credibility? NO. This is altogether different. Remember again the hierarchy of evidence. Testimonial will always be prone to fabrication and therefore prone to perjury and fraud. Principle: It does not guarantee the credibility or weight of the object evidence which means that court may or may not believe the oral evidence altogether. Remember: it is awkward for parties to enter into oral agreements and later reduce into writing and leave out some of the agreements. All prior agreements are deemed incorporated in the main agreement under the so called, “INTEGRATION AGREEMTN RULE” future agreements are not so covered. Remember the parol evidence rule Kung nagkasinabot na ang mga parties, there is no other evidence of that other than the document itself. He cannot present any evidence to modify, explain or add to the terms of the written agreement. What is covered by Parol evidence rule?
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law on evidence ONLY Prior and contemporaneous agreements are deemed to be merged into writing conformably with the ‘integration agreement rule’. So all agreements, oral agreements, prior to execution of the contract are deemed integrated. So if you claim that there was oral agreement prior to execution, that cannot be proved by parole evidence. It is deemed to be integrated dapat. What are not covered by the parol evidence rule? 1. SUBSEQUENT AGREEMENTSnotwithstanding the fact that such agreement may have the effect of adding to, changing or modifying or altogether abrogating the contract between the parties. In other words, what is guaranteed only is its ADMISSIBLITY and NOT its believability or credibility in so far as the court is concerned. This is because it was subsequent to the execution of the agreement and reduced into writing. 2. COLLATERAL AGREEMENTS—which although are oral and contemporaneous with writing are separate and distinct agreement; also known as “contemporaneous oral agreements”. (PNB v. Seeto, 91 Phil. 756) 3. ALL OTHER AGREEMENTS, whether prior and contemporaneous, subsequent or collateral, if the issue revolves around fraud and false representation, since they are incidental to the execution and not to the integration. (Woodhouse vs. Halili, 1953) 4. All other agreements, whether prior and contemporaneous, subsequent or collateral, when third parties who are not privy thereto are involved. (Lechugas vs. CA, 1986) NOTES: What is meant by “contemporaneous agreement”? a. Contemporaneous agreement. A contemporaneous agreement is one entered into at the same time as the agreement which has been reduced to writing. MACTAN CEBU INTERNATONL AIRPORT V. CA October 30, 1996 Where a parol contemporaneous agreement was the moving cause of the written contract, or where the parol agreement forms part of the consideration of the written contract, and it appears that the written contract was executed on the faith of the parol contract or representation, such evidence is admissible. It is recognized that proof is admissible of any collateral parol agreement that is not inconsistent with the terms of the written contract though it may relate to the same subject matter. The rule excluding parol evidence to vary or contradict a writing does not extend so far as to preclude the admission of existing evidence to show prior or contemporaneous collateral parol agreements between the parties, but such evidence may be received, regardless of whether or not the written agreement contains any reference to such collateral agreement, and whether the action is at law or in equity. CAVEAT still applies: it may be admitted but it is not a guarantee that it is believable. Now, remember the rule: a contemporaneous oral agreement can be proved by parol for as long as ti is separate and distinct from the written agreement.
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law on evidence b. How do you determine if such COA is separate and distinct? Tests to determine whether a contemporaneous oral agreement is separate and distinct from the written agreement and therefore provable by parol evidence: 1) The first test is the subject-matter of the two agreements. If the subject-matter of the written agreement is different from that of the contemporaneous oral agreement, then the latter is a separate and distinct agreement and, therefore, provable by parol evidence. 2) If the two agreements refer to the same subject-matter, the test is to determine whether or not the contemporaneous oral agreement is separable, then the contemporaneous oral agreement is separate and distinct and, therefore, probable by parol evidence. (Lese v. Lamprecht, 196 N.Y. 32) c.
Example of agreement which CANNOT be proven by parol evidence : Express trusts concerning real property cannot be proven by parol evidence because title and possession cannot be defeated by oral evidence which can easily be fabricated and contradicted. (Sinaon, et al., v. Sorongon, et al., 136 SCRA 410)
d. Examples of collateral agreements which CAN be proved by parol evidence: 1. An agreement of reconveyance is a distinct agreement, separate from the sale itself, although the two agreements are usually contained in one and the same document. (Laureano v. Kilayco, 34 Phil. 148; Yacapin v. Neri, 40 Phil. 61) 2. Inducements and representations which led to the execution of an agreement may be proven by parol evidence because they do not vary the terms of the agreement. (Woodhouse v. Halili, 93 Phil. 526; Bough v. Cantiveros, 40 Phil. 209) 3. Parol evidence is admissible to prove an independent and collateral agreement which constitutes an inducement to the making of the sale or part of the consideration thereof. (Robles v. Lizarraga Hnos., 50 Phil. 387) 4. A condition precedent not stipulated in writing is provable by oral evidence. REASON: Before the happening of the condition, there is no written agreement yet to which the parol evidence may apply. LAND SETTLEMENT & DEVELOPMENT CORP. V. GARCIA PLANTATION 7 SCRA 750 (April 24,1963) An exception to PER may be put in issue in answer to counterclaim; when operation of contract made to depend upon occurrence of an event, which for that reason is a condition precedent, such may be established by parol evidence, since if it is proven, there will be no contract. this is not varying the terms of the written contract by extrinsic agreement, for the simple reason that there is no contract in existence; there is nothing to which to apply the excluding rule 5. Verbal assurances given by the indorser of an out-of-town check to the employees of the bank where it was presented for encashment that he would refund the amount if the check should be dishonored by the drawee bank is a collateral agreement separate and distinct from the indorsement, by virtue of which the first bank was induced to cash the same, and therefore, provable by parol evidence. (PNB v. Seeto, 91 Phil. 756) Example: order instrument which provides for the consideration of the giving of the check and negotiated but subsequently nakabutang nalang “Pay to B…D” no consideration
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law on evidence stated. According to SC, by the nature of the indorsement, the consideration is provable by parol evidence. 6. Any prior or contemporaneous conversation in connection with a note or its indorsement may be proved by parol evidence. (PNB v. Seeto, 91 Phil. 756; Philips v. Preston, 5 How. [U.S.] 278) 7. An extrinsic agreement between indorser and indorsee which cannot be embodied in the instrument without impairing its credit may be proved by parol evidence. (PNB v. Seeto, 91 Phil. 756; 9 Wigmore 148) 8. The fact that parties who appear to have signed as principals did so as merely sureties is provable by parol evidence. (Tan Machan v. De la Trinidad, 3 Phil. 684) NOTARIZED DOCUMENT V. PAROL EVIDENCE REMEMBER: Most contracts right now are notarized. If a document is notarized by a notary public duly possessed with commission to administer oaths and notarized contract within the lex loci celebrationis, what are the effects? 1. It becomes a public document which is binding upon the whole world rather than merely binding between contracting parties. The world is given constructive notice of the same. 2. It is already Impressed with the presumption of regularity 3. Notarized SITUATION: On the one hand, would be a notarized document which actually reflects the intention of the parties at the time they signed it and on the other hand, you have parol evidence tending to prove that there is a contemporaneous oral agreement between parties which totally changes the meaning o the first. As a RULE, it is admissible. How do you defeat that notarial document? To my mind you CANNOT if we follow the hierarchy of evidence but the SC in the case of… MANZANO V. PEREZ SR. [G.R. No. 112485. August 9, 2001] Oral testimony cannot, as a rule, prevail over a written agreement of the parties. In order to contradict the facts contained in a notarial document, as well as the presumption of regularity in the execution thereof, there must be clear and convincing evidence that is more than merely preponderant. BEST EVIDENCE RULE DISTINGUISHED FROM PAROL EVIDENCE RULE: 1) Under the best evidence rule, the issue is contents of a writing (Sec. 3, Rule 130, ROC) WHILE under the parol evidence rule, there is no issue as to contents of a writing but the terms between the parties; how the parties are governed under the agreement,etc. (Sec. 9, Rule 130, ROC); 2) Under the best evidence rule, secondary evidence is offered to prove the contents of a writing, which is not allowed unless the case falls under any of the exceptions. (The secondary evidence that you present is more likely the same as the primary and the best evidence. For example you don’t have the original, you present a duplicate copy; that is secondary substitutionary evidence.) (Sec. 3, Rule 130, ROC) WHILE under the parol evidence rule, the purpose of the offer of parol evidence is to change, vary, modify,
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law on evidence qualify, or contradict the terms of a complete written agreement, which is not allowed unless the case falls under any of the exceptions. (Sec. 9, Rule 130, ROC) 3) Only the parties and their successors in interest, and not strangers may invoke the protection of the parol evidence rule. (Sec. 9, Rule 130, ROC) PAROLE EVIDENCE DISTINGUISHED FROM STATUTE OF FRAUDS The Statute of Frauds requires that certain agreements be proved by writing or by some note or memorandum thereof in order to be enforceable. On the other hand, the Parole Evidence Rule has nothing to do with the manner of proving agreements. Its object is to prohibit alteration, change, modification, variation or contradiction of the terms of a written agreement by extrinsic or “parol evidence”. OTHER EXCEPTIONS: (from US jurisprudence) There are a number of exceptions to the parol evidence rule. Extrinsic evidence can always be admitted for the following purposes: 1. To aid in the interpretation of existing terms. 2. To show that in light of all the circumstances surrounding the making of the contract, the contract is actually ambiguous, thus necessitating the use of extrinsic evidence to determine its actual meaning 3. To resolve an ambiguity in the contract. 4. To disprove the validity of the contract. 5. To show that an unambiguous term in the contract is in fact a mistaken transcription of a prior valid agreement. Such a claim must be established by clear and convincing evidence, and not merely by the preponderance of the evidence. 6. To correct mistakes. 7. To show wrongful conduct such as misrepresentation, fraud, duress, unconscionability or illegal purpose on the part of one or both parties. [2] 8. To show that consideration has not actually been paid. For example, if the contract states that A has paid B $1,000 in exchange for a painting, B can introduce evidence that A had never actually conveyed the $1,000. 9. To identify the parties, especially if the parties have changed names. –let’s say in the year 2000 you contracted with a fellow named Rustom Padilla only later, he changed his name to “Ryan Bang” (haha! Epic fail!) 10. To imply or incorporate a term of the contract. 11. To make changes in the contract after the original final contract has been agreed to. That is, oral statements can be admitted unless they are barred by a clause in the written contract. In order for evidence to fall within this rule, it must involve either: 1. a written or oral communication made prior to execution of the written contract; or 2. an oral communication made contemporaneous with execution of the written contract. Evidence of a latercommunication will not be barred by this rule, as it is admissible to show a later modification of the contract (although it might be inadmissible for some other reason, such as the Statute of frauds). Similarly, evidence of a collateral agreement - one that would naturally and normally be included in a separate writing - will not be barred. For example, if A contracts with B to paint B's house for $1,000, B can introduce extrinsic evidence to show that A also contracted to paint B's storage shed for $100. The agreement to paint the shed would logically be in a separate document from the agreement to paint the house.
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law on evidence Though its name suggests that it is a procedural evidence rule, the consensus of courts and commentators is that the parol evidence rule constitutes substantive contract law. U.S. VS. CONSTANTINO TAN QUINGCO, CHUA 39 PHIL., 552, The form of the contract is not conclusive. Parol evidence is admissible to show that a written document through legal in form was in fact a device to cover usury. If from a construction of the whole transaction it becomes apparent that there exists a corrupt intent to violate the Usury Law, the Court should, and will permit no scheme, however ingenious to becloud the crime of usury. WAIVER OF THE PAROL EVIDENCE RULE SANTIAGO V. CA [G.R. No. 103959. August 21, 1997] The parol evidence rule may be waived by failure to invoke it, as by failure to object to the introduction of parol evidence. And, where a party who is entitled to the benefit of the rule waives the benefit thereof by allowing such evidence to be received without objection and without any effort to have it stricken from the minutes or disregarded by the trial court, he cannot, after the trial has closed and the case has been decided against him, invoke the rule in order to secure a reversal of the judgment by an appellate court. Does the parol evidence rule apply to tribunals who are not bound by the strict rules of evidence? [G.R. No. 142824. December 19, 2001] INTERPHIL LABORATORIES EMPLOYEES UNION- vs. INTERPHIL LABORATORIES, The reliance on the parol evidence rule is misplaced. In labor cases pending before the Commission or the Labor Arbiter, the rules of evidence prevailing in courts of law or equity are not controlling.[15] Rules of procedure and evidence are not applied in a very rigid and technical sense in labor cases.[16] Hence, the Labor Arbiter is not precluded from accepting and evaluating evidence other than, and even contrary to, what is stated in, the CBA. Is there a prohibition for an employee who has been retrenched, or declared redundant or having been separated due to authorized cause, and has been paid his separation pay, what happens if the person happens to be of a retirable age? Is he allowed to claim his retirement pay? Can there be double compensation ? Separation pay and retirement benefits? As a General rule, unless it is strictly prohibited and provided in the collective bargaining agreement and applicable retirement plan, employer and employee, there can be double compensation. What if we do not have CBA or retirement plan? The prior and contemporaneous acts of the parties must be taken into consideration. For example the CBA does nto prohibit or allow payment of double compensation. Let us suppose the employer now submits affidavits that they really did not agree on it. As a rule, it is not allowed coz whatever is in the agreement, mao na na. you cannot just present it and say that it
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law on evidence was what was meant. But according to the SC, look at the prior and contemporaneous acts between the aprties,including affidavits and oral testimony. If one of the parties to the suit is not a party to the document in question, does the parol evidence rule apply? NO. GAJE V. DALISAY G.R. No. 158762 April 4, 2007 Patricia, the widow of Dalisay, Sr., is a stranger to the said Deeds of Sale; thus, the trial court properly admitted extrinsic evidence adduced by respondent against its efficacy, and can be deemed competent to defeat the deed. As explained by a leading commentator on our Rules of Court, the parol evidence rule does not apply, and may not properly be invoked by either party to the litigation against the other, where at least one of the parties to the suit is not a party or a privy of a party to the written instrument in question and does not base a claim on the instrument or assert a right originating in the instrument or the relation established thereby. QUA CHEE GAN v. LAW UNION AND ROCK INSURANCE G.R. No. L-4611 December 17, 1955 These considerations lead us to regard the parol evidence rule, invoked by the appellant as not applicable to the present case. It is not a question here whether or not the parties may vary a written contract by oral evidence; but whether testimony is receivable so that a party may be, by reason of inequitable conduct shown, estopped from enforcing forfeitures in its favor, in order to forestall fraud or imposition on the insured. Moreover, taking into account the well known rule that ambiguities or obscurities must be strictly interpreted aganst the prty that caused them, 1the "memo of warranty" invoked by appellant bars the latter from questioning the existence of the appliances called for in the insured premises, since its initial expression, "the undernoted appliances for the extinction of fire being kept on the premises insured hereby, . . . it is hereby warranted . . .", admists of interpretation as an admission of the existence of such appliances which appellant cannot now contradict, should the parol evidence rule apply. MARKET DEVELOPERS V. IAC G.R. No. 74978 September 8, 1989 We affirmed this rule only recently when we said in Tong v. Intermediate Appellate Court 11 that "a contract may be entered into in whatever form except where the law requires a document or other special form as in the contracts enumerated in Article 1388 of the Civil Code. The general rule, therefore, is that a contract may be oral or written." The contract executed by MADE and Uy was a contract of affreightment. As defined, a contract of affreightment is a contract with the shipowner to hire his ship or part of it, for the carriage of goods, and generally takes the form either of a charter party or a bin of lading. 12 Article 652 of the Code of Commerce provides that "a charter party must be drawn in duplicate and signed by the contracting parties" and enumerates the conditions and information to be embodied in the contract, including "the lay days and extra lay days to be allowed and the demurrage to be paid for each of them." But while the rule clearly shows that this kind of contract must be in writing, the succeeding Article 653 just as clearly provides:
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law on evidence If the cargo should be received without a charter party having been signed, the contract shall be understood as executed in accordance with what appears in the bill of lading, the sole evidence of title with regard to the cargo for determining the rights and obligations of the ship agent, of the captain and of the charterer. We read this last provision as meaning that the charter party may be oral, in which case the terms thereof, not having been reduced to writing, shall be those embodied in the bin of lading. Conformably, we recognized in Compania Maritima v. Insurance Company of North America, 13 the existence of a contract of affreightment entered into by telephone, where it was shown that this oral agreement was later confirmed by a formal and written booking issued by the shipper's branch office and later carried out by the carrier. We see no reason why the second agreement of the parties to deliver the petitioner's cargo to Roxas City instead of Kalibo, Aklan, should not be recognized simply because it was not in writing. Law and jurisprudence support the validity of such a contract. And there is no justification either to incorporate in such contract the stipulation for demurrage in the original written contract which provided for a different port of destination than that later agreed upon by the parties. It was precisely this vital change in the second contract that rendered that first contract ineffectual. If the rate provided for in the old written contract was maintained in the new oral contract, it was simply because, as the private respondent himself declared, the rates for Kalibo, Aklan and Culasi, Roxas City, where the same. But the demurrage charges cannot be deemed stipulated also in the verbal contract because the conditions in the ports of Aklan and Roxas City were, unlike the rates, not the same. In fact, they were vastly different. The parol evidence rule is clearly inapplicable because that involves the verbal modification usually not allowed a written agreement admittedly still valid and subsisting. In the case at bar, the first written agreement had not merely been modified but actually replaced by the second verbal agreement, which is perfectly valid even if not in writing like the first. As has been correctly held: No principle of law makes it necessary that a new contract upon the same subject between the same persons shall be reduced to writing because the old contract was written.
LECTURE NOTES ON STATUTE OF FRAUDS THE REQUIREMENT OF FORM WITH RESPECT TO CONTRACTS The general rule is that contracts are essentially consensual and are thus perfected by mere consent. No particular form is generally required for validity as expressed under Article 1356 of the Civil Code. Thus: Art. 1356. Contracts shall be obligatory, in whatever form they may have been entered into, provided all the essential requisites for their validity are present. However, when the law requires that a contract be in some form in order that it may be valid or enforceable, or that a contract be proved in a certain way, that requirement is absolute and indispensable. In such cases, the right of the parties stated in the following article cannot be exercised. However, there are some provisions of the law which require certain formalities for particular contracts. The first is when the form is required for the validity of the contract; the second is when it is required to make the contract effective as against third parties such as those
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law on evidence mentioned in Articles 1357 and 1358; and the third is when the form is required for the purpose of proving the existence of the contract, such as those provided in the Statute of Frauds in Article 1403 (ROSA LIM vs. COURT OF APPEALS, ET AL, G.R. No. 102784, February 28, 1996). REQUIRED FOR VALIDITY For example, form is important for validity in the following instances: 1. Art. 748 — donations of personal property worth more than P5,000.00 must be in writing; 2. Art. 749 — donations of real property must be in a public instrument; 3. Donations propter nuptias (FORTUNATA SOLIS vs. MAXIMA BARROSO, ET AL., G.R. No. L-27939, October 30, 1928); 4. Art. 2134 – antichresis must be in writing to be valid REQUIRED TO AFFECT THIRD PERSONS Art. 1357. If the law requires a document or other special form, as in the acts and contracts enumerated in the following article, the contracting parties may compel each other to observe that form, once the contract has been perfected. This right may be exercised simultaneously with the action upon the contract. (1279a) Art. 1358. The following must appear in a public document: (1) Acts and contracts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property; sales of real property or of an interest therein a governed by Articles 1403, No. 2, and 1405; (2) The cession, repudiation or renunciation of hereditary rights or of those of the conjugal partnership of gains; (3) The power to administer property, or any other power which has for its object an act appearing or which should appear in a public document, or should prejudice a third person; (4) The cession of actions or rights proceeding from an act appearing in a public document. All other contracts where the amount involved exceeds five hundred pesos must appear in writing, even a private one. But sales of goods, chattels or things in action are governed by Articles, 1403, No. 2 and 1405. (1280a) In Credit Transactions, we also know that a contract of mortgage must be in writing and the recorded in the proper Registry of Property in order to be valid as against third persons (Article 2125). REQUIRED TO PROVE EXISTENCE OF CONTRACT OR FOR GREATER EFFICACY: THE STATUTE OF FRAUDS The purpose of the Statute of Frauds is to prevent fraud and perjury in the enforcement of obligations depending for their evidence upon the unassisted memory of witnesses by requiring certain enumerated contracts and transactions to be evidenced in writing. The provisions of the Statute of Frauds originally appeared under the old Rules of Evidence. However when the Civil Code was re-written in 1949 (to take effect in 1950), the provisions of the Statute of Frauds were
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law on evidence taken out of the Rules of Evidence in order to be included under the title on Unenforceable Contracts in the Civil Code. The transfer was not only a matter of style but to show that the Statute of Frauds is also a substantive law. (CECILIO CLAUDEL, ET AL. vs. COURT OF APPEALS, ET AL., G.R. No. 85240 July 12, 1991) Art. 1403. The following contracts are unenforceable, unless they are ratified: (2) Those that do not comply with the Statute of Frauds as set forth in this number. In the following cases an agreement hereafter made shall be unenforceable by action, unless the same, or some note or memorandum, thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing, or a secondary evidence of its contents: (a) An agreement that by its terms is not to be performed within a year from the making thereof; (b) A special promise to answer for the debt, default, or miscarriage of another; (c) An agreement made in consideration of marriage, other than a mutual promise to marry; (d) An agreement for the sale of goods, chattels or things in action, at a price not less than five hundred pesos, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action or pay at the time some part of the purchase money; but when a sale is made by auction and entry is made by the auctioneer in his sales book, at the time of the sale, of the amount and kind of property sold, terms of sale, price, names of the purchasers and person on whose account the sale is made, it is a sufficient memorandum; (e) An agreement of the leasing for a longer period than one year, or for the sale of real property or of an interest therein; (f) A representation as to the credit of a third person. STATUTE OF FRAUDS AND CONTRACTS The Statute of Frauds, embodied in Article 1403 of the Civil Code of the Philippines, does not require that the contract itself be in writing. The plain text of Article 1403, paragraph (2) is clear that a written note or memorandum, embodying the essentials of the contract and signed by the party charged, or his agent, suffices to make the verbal agreement enforceable, taking it out of the operation of the statute (CIRILO PAREDES vs. JOSE L. ESPINO, G.R. No. L-23351, March 13, 1968) The Statute does not deprive the parties of the right to contract with respect to the matters therein involved, but merely regulates the formalities of the contract necessary to render it enforceable. Evidence of the agreement cannot be received without the writing or a secondary evidence of its contents (SWEDISH MATCH, ET AL. vs. COURT OF APPEALS, ET AL., G.R. No. 128120, October 20, 2004) The rule presupposes the existence of a perfected contract and requires only that a note or memorandum be executed in order to compel judicial enforcement thereof (VENANCIO DAVID, ET AL. vs. ALEJANDRO TIONGSON, ET AL., G.R. No. 108169, August 25, 1999) PURPOSE IS PURELY EVIDENTIARY
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law on evidence The Statute, however, simply provides the method by which the contracts enumerated therein may be proved but does not declare them invalid because they are not reduced to writing. Consequently, the effect of non-compliance with the requirement of the Statute is simply that no action can be enforced unless the requirement is complied with. Clearly, the form required is for evidentiary purposes only. Hence, if the parties permit a contract to be proved, without any objection, it is then just as binding as if the Statute has been complied with. REQUIREMENT OF NOTE OR MEMORANDUM However, for a note or memorandum to satisfy the Statute, it must be complete in itself and cannot rest partly in writing and partly in parol. The note or memorandum must contain: 1. 2. 3.
The names of the parties; The terms and conditions of the contract; and A description of the property sufficient to render it capable of identification.
In other words, such note or memorandum must contain the essential elements of the contract expressed with certainty that may be ascertained from the note or memorandum itself, or some other writing to which it refers or within which it is connected, without resorting to parol evidence (SPOUSES TORCUATOR vs. SPOUSES BERNABE, et al., G.R. No. 134219, June 08, 2005) (A) AN AGREEMENT THAT BY ITS TERMS IS NOT TO BE PERFORMED WITHIN A YEAR FROM THE MAKING THEREOF; The agreement contemplated here is one that is not to be performed within one year BY BOTH PARTIES TO THE AGREEMENT. This is so because of the rule that the Statute of Frauds applies only to executory and not to completed, executed, or partially executed contracts. Thus, where one party has performed one’s obligation, oral evidence will be admitted to prove the agreement (GENARO CORDIAL vs. DAVID MIRANDA, G.R. No. 133495, December 11, 2000). EXAMPLES: A orally promises to sell B his car for P500,000 after one year. After one year B goes to A to buy the car. A refuses. B sues A for specific performance based on the contract to sell. Here, B cannot prove his claim inasmuch as the contract is declared to be unenforceable. (B) A SPECIAL PROMISE TO ANSWER FOR THE DEBT, DEFAULT, OR MISCARRIAGE OF ANOTHER; A contract of guaranty is not a formal contract and shall be valid in whatever form it may be, provided that it complies with the statute of frauds (MACONDRAY AND COMPANY, INC. vs. PERFECTO PIÑON, ET AL., G.R. No. L-13817, August 31, 1961) Take note that the provision refers to GUARANTORS and not to SURETIES, who are primarily liable on the debt. A surety agreement is not covered by the Statute and may thus be proved by parol evidence. (C) AN AGREEMENT MADE IN CONSIDERATION OF MARRIAGE, OTHER THAN A MUTUAL PROMISE TO MARRY; What agreements are made in consideration of marriage? 1. Prenuptial agreements or marriage settlements; 2. Donations propter nuptias;
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law on evidence 3. Mutual promise to marry, by implication of Article 1403 (c). ROMANA LOCQUIAO VALENCIA, ET AL. VS. BENITO A. LOCQUIAO, ET AL. G.R. No. 122134, October 3, 2003 Unlike ordinary donations, donations propter nuptias or donations by reason of marriage are those "made before its celebration, in consideration of the same and in favor of one or both of the future spouses." The distinction is crucial because the two classes of donations are not governed by exactly the same rules, especially as regards the formal essential requisites. Under the Old Civil Code, donations propter nuptias must be made in a public instrument in which the property donated must be specifically described. However, Article 1330 of the same Code provides that "acceptance is not necessary to the validity of such gifts". In other words, the celebration of the marriage between the beneficiary couple, in tandem with compliance with the prescribed form, was enough to effectuate the donation propter nuptias under the Old Civil Code. Under the New Civil Code, the rules are different. Article 127 thereof provides that the form of donations propter nuptias are regulated by the Statute of Frauds. Article 1403, paragraph 2, which contains the Statute of Frauds requires that the contracts mentioned thereunder need be in writing only to be enforceable. However, as provided in Article 129, express acceptance "is not necessary for the validity of these donations." Thus, implied acceptance is sufficient. The pivotal question, therefore, is which formal requirements should be applied with respect to the donation propter nuptias at hand. Those under the Old Civil Code or the New Civil Code? It is settled that only laws existing at the time of the execution of a contract are applicable thereto and not later statutes, unless the latter are specifically intended to have retroactive effect. Consequently, it is the Old Civil Code which applies in this case since the donation propter nuptias was executed in 1944 and the New Civil Code took effect only on August 30, 1950. As a consequence, applying Article 1330 of the Old Civil Code in the determination of the validity of the questioned donation, it does not matter whether or not the donees had accepted the donation. The validity of the donation is unaffected in either case. It is opined that the phrase “other than a mutual promise to marry” is a surplusage. What would be the effect if the promise to marry is mutual or unilateral? If the same is written or oral? The rule is very clear from jurisprudence that any breach of promise to marry is not actionable. Its enforceability is therefore a non-issue. (D) AN AGREEMENT FOR THE SALE OF GOODS, CHATTELS OR THINGS IN ACTION, AT A PRICE NOT LESS THAN FIVE HUNDRED PESOS, UNLESS THE BUYER ACCEPT AND RECEIVE PART OF SUCH GOODS AND CHATTELS, OR THE EVIDENCES, OR SOME OF THEM, OF SUCH THINGS IN ACTION OR PAY AT THE TIME SOME PART OF THE PURCHASE MONEY; BUT WHEN A SALE IS MADE BY AUCTION AND ENTRY IS MADE BY THE AUCTIONEER IN HIS SALES BOOK, AT THE TIME OF THE SALE, OF THE AMOUNT AND KIND OF PROPERTY SOLD, TERMS OF SALE, PRICE, NAMES OF THE PURCHASERS AND PERSON ON WHOSE ACCOUNT THE SALE IS MADE, IT IS A SUFFICIENT MEMORANDUM; ANGEL CLEMENO, JR., ET AL., vs. ROMEO R. LOBREGAT G.R. No. 137845, September 9, 2004 This is so because the provision applies only to executory, and not to completed, executed or partially executed contracts In this case, the contract of sale had been partially
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law on evidence executed by the parties, with the transfer of the possession of the property to the respondent and the partial payments made by the latter of the purchase price thereof. APPLIES TO DATION IN PAYMENT DAO HENG BANK, INC. vs. SPS. LILIA and REYNALDO LAIGO G.R. No. 173856, November 20, 2008 Dacion en pago as a mode of extinguishing an existing obligation partakes of the nature of sale whereby property is alienated to the creditor in satisfaction of a debt in money. It is an objective novation of the obligation, hence, common consent of the parties is required in order to extinguish the obligation. In dacion en pago, as a special mode of payment, the debtor offers another thing to the creditor who accepts it as equivalent of payment of an outstanding debt. The undertaking really partakes in one sense of the nature of sale, that is, the creditor is really buying the thing or property of the debtor, payment for which is to be charged against the debtor's debt. As such the elements of a contract of sale, namely, consent, object certain, and cause or consideration must be present. In its modern concept, what actually takes place in dacion en pago is an objective novation of the obligation where the thing offered as an accepted equivalent of the performance of an obligation is considered as the object of the contract of sale, while the debt is considered the purchase price. In any case, common consent is an essential prerequisite, be it sale or novation, to have the effect of totally extinguishing the debt or obligation." (Emphasis, italics and underscoring supplied; citation omitted) Being likened to that of a contract of sale, dacion en pago is governed by the law on sales. The partial execution of a contract of sale takes the transaction out of the provisions of the Statute of Frauds so long as the essential requisites of consent of the contracting parties, object and cause of the obligation concur and are clearly established to be present. Respondents claim that petitioner's commissioning of an appraiser to appraise the value of the mortgaged properties, his services for which they and petitioner paid, and their delivery to petitioner of the titles to the properties constitute partial performance of their agreement to take the case out of the provisions on the Statute of Frauds. There is no concrete showing, however, that after the appraisal of the properties, petitioner approved respondents' proposal to settle their obligation via dacion en pago. The delivery to petitioner of the titles to the properties is a usual condition sine qua non to the execution of the mortgage, both for security and registration purposes. For if the title to a property is not delivered to the mortgagee, what will prevent the mortgagor from again encumbering it also by mortgage or even by sale to a third party. (E) AN AGREEMENT OF THE LEASING FOR A LONGER PERIOD THAN ONE YEAR, OR FOR THE SALE OF REAL PROPERTY OR OF AN INTEREST THEREIN; In the case of CELSO FERNANDEZ v. CA, G.R. No. 80231 October 18, 1988, this Court held that "an alleged verbal assurance of renewal of a lease is inadmissible to qualify the terms of the written lease agreement under the parole evidence rule and unenforceable under the Statute of Frauds (INTER-ASIA SERVICES CORP. vs. COURT OF APPEALS, ET AL, G.R. No. 106427 October 21, 1996). ENRIQUE P. SYQUIA vs. COURT OF APPEALS G.R. No. L-61932, June 30, 1987 According to the plaintiff, there is infringement of the Statute of Frauds as well as the Parol Evidence Rule. On the other hand, the defendant invokes the exception contained in
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law on evidence Section 7, Rule 130 of the Rules of Court (Parol Evidence Rule). Defendant contends that antecedent factors were involved which induced him to enter into the (contract of lease with Litton Finance & Investment Corp. This brings us to the provisions of Statute of Frauds under Article 1403, No. 2(E), which provides as follows: Art. 1403. The following contracts are unenforceable unless they are ratified: 2. Those that do not comply with the Statute of Frauds as set forth in this number. In the following cases an agreement hereafter made shall be unenforceable by action, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing, or a secondary evidence of its contents: (E) An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein. So, under 2(e) of Article 1403 of the Civil Code as quoted above, the alleged oral assurance or promise of the representatives of the Litton Finance & Investment Corp, that defendant should be given priority or a renewal of Exhibit "G" cannot be enforceable against plaintiff. Likewise, under the Parol Evidence Rule, defendant's claim that he is entitled to a renewal of the contract of lease for the reason that the lessors have given him the option to renew the contract cannot be maintained under the Parol Evidence Rule. Applying the Parol Evidence Rule to the instant case, it is clear that there being a written agreement between the parties, the same should be controlling between them. The exceptions provided for in (A) and (B) cannot apply in the instant case in view of the fact that the contract of lease, Exhibit "G" is clear, thus precluding any mistake or imperfection or failure to express the true intent and agreement of the parties. The Court cannot see any ambiguity in the contract. The tests of completeness of a written contract is the contract itself, as provided for under Sec. 1494 of Jones on Evidence . SPS. MANUEL & CORAZON CAMARA vs. SPS. JOSE & PAULINA MALABAO G.R. No. 154650, July 31, 2003 As correctly found by the appellate court, the occupation and construction of the improvements made by petitioners on the disputed property are clear acts of ratification and enforcement. In other words, the erection of these structures on the subject lot indicates that the lease contract was already in effect. The Statute of Frauds applies only to executory and not completed, executed or partially executed contracts. Thus, where as in this case, one party has performed his obligation, oral evidence will be admitted to prove the agreement. Furthermore, as can be gleaned from Exhibit "B" of respondents, the amount of P20,000.00 received on April 21, 1989 was apparently for the rent of a stall. Indeed, the said document expressly states that it is a receipt for rentals. Petitioners can not now say that the said receipt is proof of an alleged down payment of the subject lot. Moreover, while there was testimony to the effect that the balance of P60,000.00 from the alleged purchase price of P80,000.00 was allegedly paid on July 3, 1989, the receipt therefore was never presented despite an earlier reservation to do so. This provision INCLUDES COMPROMISE AGREEMENT ON THE SALE OF LAND (CONSOLACION DUQUE SALONGA vs. JULITA B. FARRALES, G.R. No. L-47088 July 10, 1981). DOES IT APPLY TO RIGHTS OF FIRST REFUSAL? ROSENCOR DEVELOPMENT CORPORATION vs. PATERNO INQUING G.R. No. 140479 March 8, 2001
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law on evidence Both the appellate court and the trial court failed to discuss, however, the threshold issue of whether or not a right of first refusal is indeed covered by the provisions of the New Civil Code on the statute of frauds. The resolution of the issue on the applicability of the statute of frauds is important as it will determine the type of evidence which may be considered by the trial court as proof of the alleged right of first refusal. The question now is whether a "right of first refusal" is among those enumerated in the list of contracts covered by the Statute of Frauds. More specifically, is a right of first refusal akin to "an agreement for the leasing of a longer period than one year, or for the sale of real property or of an interest therein" as contemplated by Article 1403, par. 2(e) of the New Civil Code. We have previously held that not all agreements "affecting land" must be put into writing to attain enforceability. Thus, we have held that the setting up of boundaries, the oral partition of real property, and an agreement creating a right of way are not covered by the provisions of the statute of frauds. The reason simply is that these agreements are not among those enumerated in Article 1403 of the New Civil Code. A right of first refusal is not among those listed as unenforceable under the statute of frauds. Furthermore, the application of Article 1403, par. 2(e) of the New Civil Code presupposes the existence of a perfected, albeit unwritten, contract of sale. A right of first refusal, such as the one involved in the instant case, is not by any means a perfected contract of sale of real property. At best, it is a contractual grant, not of the sale of the real property involved, but of the right of first refusal over the property sought to be sold. It is thus evident that the statute of frauds does not contemplate cases involving a right of first refusal. As such, a right of first refusal need not be written to be enforceable and may be proven by oral evidence. (F) A REPRESENTATION AS TO THE CREDIT OF A THIRD PERSON. This, according to Dean Iñigo, is similar to guaranty. LIMITATIONS 1. IT DOES NOT APPLY TO PARTIALLY PERFORMED OR EXECUTED CONTRACTS; MACTAN-CEBU INTERNATIONAL AIRPORT AUTHORITY vs. TUDTUD G.R. No. 174012, November 14, 2008 The Statute of Frauds applies, however, only to executory contracts. It does not apply to contracts which have been completely or partially performed, the rationale thereof being as follows: x x x In executory contracts there is a wide field for fraud because unless they be in writing there is no palpable evidence of the intention of the contracting parties. The statute has precisely been enacted to prevent fraud. However, if a contract has been totally or partially performed, the exclusion of parol evidence would promote fraud or bad faith, for it would enable the defendant to keep the benefits already delivered by him from the transaction in litigation, and, at the same time, evade the obligations, responsibilities or liabilities assumed or contracted by him thereby. ORDUÑA versus FUENTEBELLA G.R. No. 176841, June 29, 2010 FACTS: The subject of this case is a residential lot located at Fairview Subdivision, Baguio City, which was firstly registered under Amando Gabriel, Sr. Around 1996, Gabriel, Sr. sold the subject lot to Antonita Orduña but there was no executed formal deed. The price of the lot was payable in
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law on evidence installments and Gabriel, Sr. accepted the set-up. Antonita and her sons have long been residing in the lot since 1979 and even had a house constructed therein. They also paid real property taxes and declared the lot for tax purposes. After the death of Gabriel, Sr., his son and one of the respondents Gabriel, Jr. continued to accept installment payments from Antonita. Then he wrote a letter to her ordering her to fence off the lot and to construct a road on the adjacent lot. However, despite the payments made by Antonita, Gabriel, Jr. sold the subject lot to Bernard Banta without the knowledge of Antonita and the rest of petitioners. Banta then sold the subject lot to Marcos Cid and Benjamin Cid. The Cids thereafter ceded the subject lot to Eduardo Fuentebilla, Jr. Eduardo, through his lawyer, sent a letter to the residence of Gabriel, Jr. ordering those living therein to vacate the lot or else ejectment would commence. When Antonita, et. al. went directly to Gabriel, Jr.’s house after receiving the letter, they were informed by the wife of Gabriel, Jr., Teresita Gabriel that she filed an affidavit-complaint against her husband and the Cids for falsification of public documents, because according to her, her signature was forged in the deed of sale between Gabriel, Jr. and Banta. Teresita accompanied Antonita to file a Complaint for Annulment of Sale, Title, Reconveyance with Damages and along with this a prayer to acquire ownership over the subject lot upon payment of their remaining balance. ISSUE: Whether or not the Statute of Frauds is applicable to partially executed contracts RULING: Petition GRANTED. The Statute of Frauds expressed in Article 1403, par. (2), of the Civil Code applies only to executory contracts, i.e., those where no performance has yet been made. Stated a bit differently, the legal consequence of non-compliance with the Statute does not come into play where the contract in question is completed, executed, or partially consummated. The Statute of Frauds, in context, provides that a contract for the sale of real property or of an interest therein shall be unenforceable unless the sale or some note or memorandum thereof is in writing and subscribed by the party or his agent. However, where the verbal contract of sale has been partially executed through the partial payments made by one party duly received by the vendor, as in the present case, the contract is taken out of the scope of the Statute. Lest it be overlooked, a contract that infringes the Statute of Frauds is ratified by the acceptance of benefits under the contract. Evidently, Gabriel, Jr., as his father earlier, had benefited from the partial payments made by the petitioners. Thus, neither Gabriel Jr. nor the other respondents—successive purchasers of subject lots— could plausibly set up the Statute of Frauds to thwart petitioners’ efforts towards establishing their lawful right over the subject lot and removing any cloud in their title. As it were, petitioners need only to pay the outstanding balance of the purchase price and that would complete the execution of the oral sale. OUANO versus REPUBLIC OF THE PHILIPPINES G.R. No. 168770, February 9, 2011 FACTS: In 1949, the National Airport Corporation (NAC), MCIAA’s predecessor agency, pursued a program to expand the Lahug Airport in Cebu City. Through its team of negotiators, NAC met and negotiated with the owners of the properties situated around the airport, which included lots of the Banilad Estate. As the landowners would later claim, the government negotiating team, as a sweetener, assured them that they could repurchase their respective lands should the Lahug Airport expansion project do not push through or once the Lahug Airport closes or its operations transferred to Mactan-Cebu Airport. Some of the landowners accepted the assurance and executed deeds of sale with a right of repurchase. Others, however, including the owners of the aforementioned lots, refused to sell because the purchase price offered was viewed as way below market, forcing the hand of the Republic, represented by the then Civil Aeronautics Administration (CAA), as successor agency of the NAC, to file a complaint for the expropriation of the lots.
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law on evidence On December 29, 1961, the then Court of First Instance (CFI) of Cebu rendered judgment for the Republic declaring the expropriation of the subject lots. In view of the adverted buy-back assurance made by the government, the owners of the lots no longer appealed the decision of the trial court. At the end of 1991, or soon after the transfer of the aforesaid lots to MCIAA, Lahug Airport completely ceased operations, Mactan Airport having opened to accommodate incoming and outgoing commercial flights. On the ground, the expropriated lots were never utilized for the purpose they were taken as no expansion of Lahug Airport was undertaken. This development prompted the former lot owners to formally demand from the government that they be allowed to exercise their promised right to repurchase. The demands went unheeded. Civil suits followed. MCIAA would foist the theory that the judgment of condemnation in Civil Case No. R-1881 was without qualification and was unconditional. It would, in fact, draw attention to the fallo of the expropriation court’s decision to prove that there is nothing in the decision indicating that the government gave assurance or undertook to reconvey the covered lots in case the Lahug airport expansion project is aborted. Elaborating on this angle, MCIAA argues that the claim of the Ouanos and the Inocians regarding the alleged verbal assurance of the NAC negotiating team that they can reacquire their landholdings is barred by the Statute of Frauds. ISSUE: Whether or not the testimonial evidence of the petitioners proving the promises, assurances and representations by the airport officials and lawyers are inadmissbale under the Statute of Frauds. RULING: Under the rule on the Statute of Frauds, as expressed in Article 1403 of the Civil Code, a contract for the sale or acquisition of real property shall be unenforceable unless the same or some note of the contract be in writing and subscribed by the party charged. Subject to defined exceptions, evidence of the agreement cannot be received without the writing, or secondary evidence of its contents. MCIAA’s invocation of the Statute of Frauds is misplaced primarily because the statute applies only to executory and not to completed, executed, or partially consummated contracts. Carbonnel v. Poncio, et al., quoting Chief Justice Moran, explains the rationale behind this rule, thusly: x x x "The reason is simple. In executory contracts there is a wide field for fraud because unless they may be in writing there is no palpable evidence of the intention of the contracting parties. The statute has been precisely been enacted to prevent fraud." x x x However, if a contract has been totally or partially performed, the exclusion of parol evidence would promote fraud or bad faith, for it would enable the defendant to keep the benefits already derived by him from the transaction in litigation, and at the same time, evade the obligations, responsibilities or liabilities assumed or contracted by him thereby. Analyzing the situation of the cases at bar, there can be no serious objection to the proposition that the agreement package between the government and the private lot owners was already partially performed by the government through the acquisition of the lots for the expansion of the Lahug airport. The parties, however, failed to accomplish the more important condition in the CFI decision decreeing the expropriation of the lots litigated upon: the expansion of the Lahug Airport. The project––the public purpose behind the forced property taking––was, in fact, never pursued and, as a consequence, the lots expropriated were abandoned. Be that as it may, the two groups of landowners can, in an action to compel MCIAA to make good its oral undertaking to allow repurchase, adduce parol evidence to prove the transaction. At any rate, the objection on the admissibility of evidence on the basis of the Statute of Frauds may be waived if not timely raised. Records tend to support the conclusion that MCIAA did not, as the Ouanos and the Inocians posit, object to the introduction of parol evidence to prove its commitment to allow the former landowners to repurchase their respective properties upon the occurrence of certain events.
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law on evidence
WHAT CONSTITUTES EXECUTION OR PARTIAL PERFORMANCE MARTA C. ORTEGA vs. DANIEL LEONARDO G.R. No. L-11311, May 28, 1958 If the above means that partial performance of a sale contract occurs only when part of the purchase price is paid, it surely constitutes a defective statement of the law. American Jurisprudence in its title "Statute of Frauds" lists other acts of partial performance, such as possession, the making of improvements, rendition of services, payment of taxes, relinquishment of rights, etc. Thus, it is stated that "The continuance in possession may, in a proper case, be sufficiently referable to the parol contract of sale to constitute a part performance thereof. There may be additional acts or peculiar circumstances which sufficiently refer the possession to the contract. . . . Continued possession under an oral contract of sale, by one already in possession as a tenant, has been held a sufficient part performance, where accompanied by other acts which characterize the continued possession and refer it to the contract of purchase. Especially is this true where the circumstances of the case include the making of substantial, permanent, and valuable improvements." (49 American Jurisprudence — 44) It is also stated that "The making of valuable permanent improvements on the land by the purchaser, in pursuance of the agreement and with the knowledge of the vendor, has been said to be the strongest and the most unequivocal act of part performance by which a verbal contract to sell land is taken out of the statute of frauds, and is ordinarily an important element in such part performance. . . . Possession by the purchaser under a parol contract for the purchase of real property, together with his making valuable and permanent improvements on the property which are referable exclusively to the contract, in reliance on the contract, in the honest belief that he has a right to make them, and with the knowledge and consent or acquiescence of the vendor, is deemed a part performance of the contract. The entry into possession and the making of the improvements are held on amount to such an alteration in the purchaser's position as will warrant the court's entering a degree of specific performance." (49 American Jurisprudence p.755, 756.) Again, it is stated that "A tender or offer of payment, declined by the vendor, has been said to be equivalent to actual payment, for the purposes of determining whether or not there has been a part performance of the contract. This is apparently true where the tender is by a purchaser who has made improvements. But the doctrine now generally accepted, that not even the payment of the purchase price, without something more, . . . is a sufficient part performance. (49 American Jurisprudence p. 772.) And the relinquishment of rights or the compromise thereof has likewise been held to constitute part performance. (See same title secs. 473, 474, 475.) In the light of the above four paragraphs, it would appear that the complaint in this case described several circumstance indicating partial performance: relinquishment of rights, continued possession, building of improvements, tender of payment plus the surveying of the lot at plaintiff's expense and the payment of rentals. We shall not take, time to discuss whether one or the other or any two or three of them constituted sufficient performance to take the matter away from the operation of the Statute of Frauds. Enough to hold that the combination of all of them amounted to partial performance; and we do so line with the accepted basis of the doctrine, that it would be a fraud upon the plaintiff if the defendant were permitted to oppose performance of his part after he has allowed or induced the former to perform in reliance upon the agreement. (See 49 American Jurisprudence p. 725.)
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law on evidence
We also hold that the oral partition between Romeo and Alexander is not covered by the Statute of Frauds. It is enforceable for two reasons. Firstly, Alexander accepted the six thousand (P6,000.00) pesos given by Romeo as downpayment for the purchase of his share in the Paco property. Secondly, Romeo and his witnesses, Ceferino Miat and Pedro Miranda, who testified regarding the sale of Alexander’s share to Romeo, were intensely questioned by petitioners’ counsel. CONCEPCION R. AINZA vs. SPOUSES PADUA G.R. No. 165420, June 30, 2005 FACTS: Concepcion Ainza (Concepcion) alleged that respondent-spouses Eugenia (Eugenia) and Antonio Padua (Antonio) owned a 216.40 sq. m. lot with an unfinished residential house located at No. 85-A Durian corner Pajo Sts., Barangay Quirino 2-C, Project 2, Quezon City, covered by Transfer Certificate of Title No. 271935. Sometime in April 1987, she bought one-half of an undivided portion of the property from her daughter, Eugenia and the latter’s husband, Antonio, for One Hundred Thousand Pesos (P100,000.00). The subject property was conjugal and sold by Eugenia (without her husband’s consent) in April 1987. No Deed of Absolute Sale was executed to evidence the transaction, but cash payment was received by the respondents, and ownership was transferred to Concepcion through physical delivery to her attorney-in-fact and daughter, Natividad Tuliao (Natividad). Concepcion authorized Natividad and the latter’s husband, Ceferino Tuliao (Ceferino) to occupy the premises, and make improvements on the unfinished building. Thereafter, Concepcion alleged that without her consent, respondents caused the subdivision of the property into three portions and registered it in their names under TCT Nos. N-155122, N155123 and N-155124 in violation of the restrictions annotated at the back of the title. Antonio averred that he bought the property in 1980 and introduced improvements thereon. Between 1989 and 1990, he and his wife, Eugenia, allowed Natividad and Ceferino to occupy the premises temporarily. In 1994, they caused the subdivision of the property and three (3) separate titles were issued. Thereafter, Antonio requested Natividad to vacate the premises but the latter refused and claimed that Concepcion owned the property. Antonio thus filed an ejectment suit on April 1, 1999. Antonio claimed that his wife, Eugenia, admitted that Concepcion offered to buy one third (1/3) of the property who gave her small amounts over several years which totaled P100,000.00 by 1987 and for which she signed a receipt, which reads: “Received the amount of ONE HUNDRED THOUSAND PESOS (P100,000.00) as payment for the lot on 85-A Durian St., Project 2, Quezon City, from Mrs. Concepcion R. Ainza, on April, 1987.” ISSUE: STATUS OF THE SALE BY EUGENIA TO NATIVIDAD RULING: The verbal contract of sale between Eugenia and Concepcion did not violate the provisions of the Statute of Frauds that a contract for the sale of real property shall be unenforceable unless the contract or some note or memorandum of the sale is in writing and subscribed by the party charged or his agent. When a verbal contract has been completed, executed or partially consummated, as in this case, its enforceability will not be barred by the Statute of Frauds, which applies only to an executory agreement. Thus, where one party has performed his obligation, oral evidence will be admitted to prove the agreement. In the instant case, the oral contract of sale between Eugenia and Concepcion was evidenced by a receipt signed by Eugenia. Antonio also stated that his wife admitted to him that she sold the property to Concepcion. It is undisputed that the subject property was conjugal and sold by Eugenia in April 1987 or prior to the effectivity of the Family Code on August 3, 1988, Article 254 of which repealed Title V, Book I of the Civil Code provisions on the property relations between husband and wife.
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law on evidence However, Article 256 thereof limited its retroactive effect only to cases where it would not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. In the case at bar, vested rights of Concepcion will be impaired or prejudiced by the application of the Family Code; hence, the provisions of the Civil Code should be applied. In Felipe v. Heirs of Aldon, et al., the legal effect of a sale of conjugal properties by the wife without the consent of the husband was clarified, to wit: The legal ground which deserves attention is the legal effect of a sale of lands belonging to the conjugal partnership made by the wife without the consent of the husband. It is useful at this point to re-state some elementary rules: The husband is the administrator of the conjugal partnership. (Art. 165, Civil Code) Subject to certain exceptions, the husband cannot alienate or encumber any real property of the conjugal partnership without the wife’s consent. (Art. 166, Idem.) And the wife cannot bind the conjugal partnership without the husband’s consent, except in cases provided by law. (Art. 172, Idem.). In the instant case, Gimena, the wife, sold lands belonging to the conjugal partnership without the consent of the husband and the sale is not covered by the phrase "except in cases provided by law." The Court of Appeals described the sale as "invalid" – a term which is imprecise when used in relation to contracts because the Civil Code uses specific names in designating defective contracts, namely: rescissible (Arts. 1380 et seq.), voidable (Arts. 1390 et seq.), unenforceable (Arts. 1403, et seq.), and void or inexistent (Arts. 1409 et seq.). The sale made by Gimena is certainly a defective contract but of what category? The answer: it is a voidable contract. According to Art. 1390 of the Civil Code, among the voidable contracts are "[T]hose where one of the parties is incapable of giving consent to the contract." (Par. 1.) In the instant case Gimena had no capacity to give consent to the contract of sale. The capacity to give consent belonged not even to the husband alone but to both spouses. The view that the contract made by Gimena is a voidable contract is supported by the legal provision that contracts entered by the husband without the consent of the wife when such consent is required, are annullable at her instance during the marriage and within ten years from the transaction questioned. (Art. 173, Civil Code). Gimena’s contract is not rescissible for in such a contract all the essential elements are untainted but Gimena’s consent was tainted. Neither can the contract be classified as unenforceable because it does not fit any of those described in Art. 1403 of the Civil Code. And finally, the contract cannot be void or inexistent because it is not one of those mentioned in Art. 1409 of the Civil Code. By process of elimination, it must perforce be a voidable contract. 2. IT DOES NOT APPLY TO ORAL PARTITIONS OF PROPERTY; SPOUSES VIRGILIO, ET AL. vs. ROMEO V. MIAT G.R. No. 134297, February 11, 2003 In the recent case of Pada-Kilario vs. Court of Appeals, we held: "[N]o law requires partition among heirs to be in writing and be registered in order to be valid. The requirement in Sec. 1, Rule 74 of the Revised Rules of Court that a partition be put in a public document and registered, has for its purpose the protection of creditors and the heirs themselves against tardy claims. The object of registration is to serve as constructive notice to others. It follows then that the intrinsic validity of partition not executed with the prescribed
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law on evidence formalities is not undermined when no creditors are involved. Without creditors to take into consideration, it is competent for the heirs of an estate to enter into an agreement for distribution thereof in a manner and upon a plan different from those provided by the rules from which, in the first place, nothing can be inferred that a writing or other formality is essential for the partition to be valid. The partition of inherited property need not be embodied in a public document so as to be effective as regards the heirs that participated therein. The requirement of Article 1358 of the Civil Code that acts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property, must appear in a public instrument, is only for convenience, non-compliance with which does not affect the validity or enforceability of the acts of the parties as among themselves. And neither does the Statute of Frauds under Article 1403 of the New Civil Code apply because partition among heirs is not legally deemed a conveyance of real property, considering that it involves not a transfer of property from one to the other but rather, a confirmation or ratification of title or right of property that an heir is renouncing in favor of another heir who accepts and receives the inheritance. x x x." MAESTRADO vs. ROA, JR. G.R. No. 133324 March 9, 2000 Partition is the separation, division and assignment of a thing held in common among those to whom it may belong. If may be effected extra-judicially by the heirs themselves through a public instrument filed before the register of deeds. However, as between the parties, a public instrument is neither constitutive nor an inherent element of a contract of partition. Since registration serves as constructive notice to third persons, an oral partition by the heirs is valid if no creditors are affected. Moreover, even the requirement of a written memorandum under the statute of frauds does not apply to partitions effected by the heirs where no creditors are involved considering that such transaction is not a conveyance of property resulting in change of ownership but merely a designation and segregation of that part which belongs to each heir. 3. IT DOES NOT APPLY TO WILLS AND SIMILAR DOCUMENTS TESTATE ESTATE OF PAULA TORAY. EUSTAQUIA TENEFRANCIA vs. ROSA ABAJA G.R. No. L-2415, July 31, 1950 It is vigorously contended on behalf of the appellant, that the alleged defect of the attestation clause1 has been cured by oral evidence, which was admitted without opposition on the part of the appellee. This contention cannot be sustained. The doctrine of this court with reference to statute of frauds is not applicable to wills. The statute of frauds relates to contracts and agreements. The subject of wills and testaments and the formalities surrounding their execution are governed by separate and specific provisions of Act No. 190. 4. IT APPLIES ONLY TO ACTIONS FOR VIOLATIONS OF CONTRACT OR ACTIONS FOR SPECIFIC PERFORMANCE 5. IT DOES NOT APPLY WHEN A PARTY OFFERS TO PROVE BY PAROL EVIDENCE THAT THE WRITING DOES NOT EXPRESS THE TRUE INTENT OF THE PARTIES; 6. IT CANNOT BE INVOKED BY A PERSON WHO IS NOT PRIVY TO THE CONTRACT HOW TO RAISE STATUTE OF FRAUDS AS A DEFENSE
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law on evidence 1. In a motion to dismiss (Section 1, Rule 16 of the 1997); SECTION 1. Grounds. – Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds: (i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and SEC. 5. Effect of dismissal. – Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f), (h), and (i) of section 1 hereof shall bar the refiling of the same action or claim. STRONGWORLD CONSTRUCTION CORPORATION, ET AL. vs. PERELLO, ET AL. G.R. No. 148026, July 27, 2006 Briefly stated, dismissals that are based on the following grounds, to wit: (1) that the cause of action is barred by a prior judgment or by the statute of limitations; (2) that the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned or otherwise extinguished; and (3) that the claim on which the action is founded is unenforceable under the provisions of the statute of frauds, bar the refiling of the same action or claim. Logically, the nature of the dismissal founded on any of the preceding grounds is "with prejudice" because the dismissal prevents the refiling of the same action or claim. Ergo, dismissals based on the rest of the grounds enumerated are without prejudice because they do not preclude the refiling of the same action. 2. In the Answer as an affirmative defense Sec. 5. Defenses. Defenses may either be negative or affirmative. (a) A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action. (b) An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance. Sec. 6. Pleading grounds as affirmative defenses. If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. 3. By demurrer to the evidence (DOMINADOR GOMEZ vs. REMEDIOS SALCEDO, G.R. No. L-7821 December 31, 1913); RULE 33, Section 1. Demurrer to evidence. After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied, he shall have the right to present evidence. If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence. 4. By objection to the reception of such oral evidence ((DOMINADOR GOMEZ vs. REMEDIOS SALCEDO, G.R. No. L-7821 December 31, 1913).
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law on evidence
DOMINADOR GOMEZ vs. REMEDIOS SALCEDO G.R. No. L-7821 December 31, 1913 Where, however, the pleading shows on its face that the contract relied upon is oral and that it comes within the statute of frauds, the objection of the party sought to be charged may as well be taken by demurrer as by objection to the reception of evidence tending to prove its existence. When such a party sought to thus offer the defense of the statute, it would prolong the action and subject both litigants to needless expense and waste of time to allow the case to proceed to trial. It would be a mere empty formality which would produce no better or different results than a decision on the demurrer, as in neither case could the contract be enforced. That the defense may be raised by demurrer when the pleading shows on its face that the contract relied upon is oral, is the approved doctrine as is evidenced by the following authorities: Thompson vs. New South Coal Co. (135 Ala., 630; 62 L. R. A., 551; 93 A. S. R., 49); Ahrend vs. Odiorne (118 Mass., 261; 19 Am., Rep., 449); Seamans vs. Barentsen (180 N. Y., 333; 105 A. S. R., 759); International Harvester Co. of America vs. Campbell (43 Tex. Civ. App., 421). An exception to this rule is where part performance is relied upon to take contract out of the statute. (Dicken vs. McKinlay, 163 Ill., 318; 54 A. S. R., 471.) RATIFIED BY FAILURE TO OBJECT OR BY THE ACT OF CROSS-EXAMINATION Art. 1405. Contracts infringing the Statute of Frauds, referred to in No. 2 of Article 1403, are ratified by the failure to object to the presentation of oral evidence to prove the same, or by the acceptance of benefit under them. SPOUSES TORCUATOR vs. SPOUSES G.R. No. 134219, June 08, 2005 The term "Statute of Frauds" is descriptive of statutes which require certain classes of contracts, such as agreements for the sale of real property, to be in writing. It does not deprive the parties the right to contract with respect to the matters therein involved, but merely regulates the formalities of the contract necessary to render it enforceable. The purpose of the statute is to prevent fraud and perjury in the enforcement of obligations depending for their evidence on the unassisted memory of witnesses by requiring certain enumerated contracts and transactions to be evidenced by a writing signed by the party to be charged.22 The written note or memorandum, as contemplated by Article 1403 of the Civil Code, should embody the essentials of the contract. In the instant case, petitioners present as written evidence of the agreement the special power of attorney executed in their favor by the Salvadors and the summary of agreement allegedly initialed by respondent Remigio Bernabe. These documents do not suffice as notes or memoranda as contemplated by Article 1403 of the Civil Code. The special power of attorney does not contain the essential elements of the purported contract and, more tellingly, does not even refer to any agreement for the sale of the property. In any case, it was rendered virtually inoperable as a consequence of the Salvadors’ adamant refusal to part with their title to the property. The summary of agreement, on the other hand, is fatally deficient in the fundamentals and ambiguous in the rest of its terms. For one, it does not mention when the alleged consideration should be paid and transfer of ownership effected. The document does not even refer to a particular property as the object thereof. For another, it is unclear whether the supposed purchase price is P600.00, P590.00 or P570.00/square meter. The other conditions, such as
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law on evidence payment of documentary stamp taxes, capital gains tax and other registration expenses, are likewise uncertain. Conformably with Article 1405 of the Civil Code, however, respondents’ acceptance of the agreement foisted by petitioners on them is deemed to have arisen from their failure to object to the testimony of petitioner Mario Torcuator on the matter and their cross-examination of said petitioner thereon. LIMKETKAI SONS MILLING, INC. vs. COURT OF APPEALS, ET AL. G.R. No. 118509 December 1, 1995 In any event, petitioner cites Abrenica vs. Gonda (34 Phil. 739 [1916]) wherein it was held that contracts infringing the Statute of Frauds are ratified when the defense fails to object, or asks questions on cross-examination. The succinct words of Justice Araullo still ring in judicial cadence: As no timely objection or protest was made to the admission of the testimony of the plaintiff with respect to the contract; and as the motion to strike out said evidence came too late; and, furthermore, as the defendants themselves, by the cross-questions put by their counsel to the witnesses in respect to said contract, tacitly waived their right to have it stricken out, that evidence, therefore, cannot be considered either inadmissible or illegal, and court, far from having erred in taking it into consideration and basing his judgment thereon, notwithstanding the fact that it was ordered to be stricken out during the trial, merely corrected the error he committed in ordering it to be so stricken out and complied with the rules of procedure hereinbefore cited. In the instant case, counsel for respondents cross-examined petitioner's witnesses at length on the contract itself, the purchase price, the tender of cash payment, the authority of Aromin and Revilla, and other details of the litigated contract. Under the Abrenica rule (reiterated in a number of cases, among them Talosig vs. Vda. de Nieba 43 SCRA 472 [1972]), even assuming that parol evidence was initially inadmissible, the same became competent and admissible because of the cross-examination, which elicited evidence proving the evidence of a perfected contract. The cross-examination on the contract is deemed a waiver of the defense of the Statute of Frauds (Vitug, Compendium of Civil Law and Jurisprudence, 1993 Revised Edition, supra, p 563). The reason for the rule is that as pointed out in Abrenica "if the answers of those witnesses were stricken out, the cross-examination could have no object whatsoever, and if the questions were put to the witnesses and answered by them, they could only be taken into account by connecting them with the answers given by those witnesses on direct examination" (pp. 747-748). Moreover, under Article 1403 of the Civil Code, an exception to the unenforceability of contracts pursuant to the Statute of Frauds is the existence of a written note or memorandum evidencing the contract. The memorandum may be found in several writings, not necessarily in one document. The memorandum or memoranda is/are written evidence that such a contract was entered into. STATUTE OF FRAUDS AND EVIDENCE IN ILLEGAL RECRUITMENT PEOPLE OF THE PHIL. vs. RESTITUTO C. PABALAN G.R. No. 115350, September 30, 1996 The Statute of Frauds and the rules of evidence do not require the presentation of receipts in order to prove the existence of a recruitment agreement and the procurement of fees
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law on evidence in illegal recruitment cases. The amounts may consequently be proved by the testimony of witnesses. The finding of illegal recruitment in large scale is justified whenever the following elements are present: (1) that the offender engages in the recruitment and placement of workers as defined in Article 13(b) of the Labor Code or in any prohibited activities under Article 34 of the same code; (2) that the offender does not have a license or authority to recruit and deploy workers, either locally or overseas; and (3) that the offender commits the same against three (3) or more persons, individually or as a group. 19 Article 13(b) characterizes recruitment and placement as any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not. It will readily be noted, as earlier explained, that the exhibition of receipts is not necessary for the successful prosecution of the offense of illegal recruitment in large scale. Since all of the above elements were satisfactorily proven by the prosecution before the court a quo through the testimonies of its witnesses and by competent documents, then the non-presentation of receipts should not in any way hinder the conviction of appellant. PAROLE EVIDENCE RULE DISTINGUISHED FROM STATUTE OF FRAUDS Both the Parol Evidence Rule and the Statute of Frauds are evidentiary rules that limit a party’s ability to present parol or oral evidence in varied contractual situations. They are different in the following respects:
STATUTE OF FRAUDS
PAROL EVIDENCE RULE
The Statute of Frauds requires that certain agreements be proved by writing or by some note or memorandum thereof in order to be enforceable.
The Parole Evidence Rule has nothing to do with the manner of proving agreements. Its object is to prohibit alteration, change, modification, variation or contradiction of the terms of a written agreement by “parol evidence.
Does not apply to wills.
Applies to wills.
Cannot be invoked by a stranger to the contract,
Cannot be invoked by either party to the litigation against the other, where at least one of the parties to the suit is not a party or a privy of a party to the written instrument in question.
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law on evidence
INTERPRETATION OF DOCUMENTS Section 10. Interpretation of a writing according to its legal meaning. - The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise. (8) INTERPRETATION ACCORDING TO LEGAL MEANING By way of review, it bears to recall the basic principles “LEX LOCI CELEBRATIONIS” in the law on marriage and “LEX LOCI CONTRACTUS”, the Latin term for "law of the place where the contract is made". When the contract is entered into in one place, to be executed in another, there are two loci contractus; the locus celebrate contractus, and the locus solutionis; the former governs in everything which relates to the mode of construing the contract, the meaning to be attached to the expressions, and the nature and validity of the engagement; but the latter governs the performance of the agreement. An example is a “non-compete clause”. It is a term used in contract law under which one party (usually an employee) agrees to not pursue a similar profession or trade in competition against another party (usually the employer). This is used to protect so-called “trade secrets” from leaking to rival companies. As far back as 1415, English common law had already been "old and settled" that restraints on trade were unenforceable. That ban remained unchanged until 1621, when a restriction that was limited to a specific geographic location was found to be an enforceable exception to the previously-absolute rule. In the United States, a “non-compete clause” is varied in its applicability per state. In Virginia, “non-compete clauses” are deemed valid if proven to be necessary to protect legitimate business interests. Conversely, in California, “non-compete clauses” are automatically void as a matter of law, being against public policy, subject tot very limited exceptions. In the Philippines, the rule is still couched in general terms to wit: Art. 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy. Section 11. Instrument construed so as to give effect to all provisions. - In the construction of an instrument, where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. (9) HARMONY IS THE ULTIMATE GOAL
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law on evidence According to Section 11, one has to harmonize provisions in a contract with each other. ILLUSTRATIVE CASES MULTINATIONAL VILLAGE HOMEOWNERS ASSOCIATION, INC., ET AL. vs. ARA SECURITY AND SURVEILLANCE AGENCY, INC. G.R. No. 154852, October 21, 2004 Two Provisions: 5. MODE OF PAYMENT: ‘Billing shall be every fifteen (15) days. After three (3) months of satisfactory performance, the parties may negotiate for the extension of this contract and other matters that might be advantageous to both parties." 12. TERM OF CONTRACT: "This Contract shall take effect on May 25, 1994 and shall be for a period of One (1) Year from said date. Thereafter, it shall be deemed renewed for the same period unless either party notifies the other in writing not later than one (1) month before the expiry of its intent not to renew. One party, after one year, rescinded the contract. Petitioners objected to the rescission citing paragraphs 5 and 12 of their agreement. Petitioners contend that the court a quo did not comply with Section 11 of Rule 130 of the Rules of Court, because it failed to give effect to paragraph 5. They further invoke Section 12 of the same Rule, arguing that relative to the provision of the Contract on the duration of its effectivity, which is one year, paragraph 5 is a particular provision. They conclude that since the two provisions are inconsistent, paragraph 5 -- being the particular provision -- should prevail. Petitioners contend that according to paragraph 5, there is no right to rescind but an obligation to renegotiate. HELD: Section 11 of Rule 130 of the Rules of Court states that "[i]n the construction of an instrument where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all." Contrary to petitioners’ contention, paragraph 5 is not inconsistent with paragraph 12. More important, the former does not in any way deal with the termination of the Contract. Neither does it provide for a right to rescind. At this point, we stress that the right to rescind is implied in reciprocal obligations, as provided for in Article 1191 of the Civil Code, which states: "ART. 1191. The power to rescind obligations is implied in reciprocal ones, in case one of the obligors should not comply with what is incumbent upon him. XXX” Therefore, absent any provision providing for a right to rescind, the parties may nevertheless rescind the contract should the other obligor fail to comply with its obligations. ABELARDO B. LICAROS vs. ANTONIO P. GATMAITAN G.R. No. 142838, August 9, 2001
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law on evidence Petitioner next argues that the consent or conformity of Anglo-Asean Bank is not necessary to the validity of the Memorandum of Agreement as the evidence on record allegedly shows that it was never the intention of the parties thereto to treat the same as one of conventional subrogation. He claims that the preambulatory clause requiring the express conformity of third parties, which admittedly was Anglo-Asean Bank, is a mere surplusage which is not necessary to the validity of the agreement. As previously discussed, the intention of the parties to treat the Memorandum of Agreement as embodying a conventional subrogation is shown not only by the "whereas clause" but also by the signature space captioned "WITH OUR CONFORME" reserved for the signature of a representative of Anglo-Asean Bank. These provisions in the aforementioned Memorandum of Agreement may not simply be disregarded or dismissed as superfluous. It is a basic rule in the interpretation of contracts that "(t)he various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly." Moreover, under our Rules of Court, it is mandated that "(I)n the construction of an instrument where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all."Further, jurisprudence has laid down the rule that contracts should be so construed as to harmonize and give effect to the different provisions thereof. In the case at bench, the Memorandum of Agreement embodies certain provisions that are consistent with either a conventional subrogation or assignment of credit. It has not been shown that any clause or provision in the Memorandum of Agreement is inconsistent or incompatible with a conventional subrogation. On the other hand, the two cited provisions requiring consent of the debtor to the memorandum is inconsistent with a contract of assignment of credit. Thus, if we were to interpret the same as one of assignment of credit, then the aforementioned stipulations regarding the consent of Anglo-Asean Bank would be rendered inutile and useless considering that, as previously discussed, the consent of the debtor is not necessary in an assignment of credit. HOME DEVELOPMENT MUTUAL FUND, ET AL. vs. COURT OF APPEALS, ET AL. G.R. No. 118972, April 3, 1998 Our pivot of inquiry is the correct construction or interpretation of subject Consultancy Agreement, particularly its provision: That this agreement takes effect on January 1, 1985 to December 31, 1985; Provided, however, that either party who desires to terminate the contract may serve the other party a written notice at least thirty (30) days in advance. The first clause of the aforecited stipulation, which is the bone of petitioners' stance, basically deals with the term of the contract; while the proviso, which is the core of private respondents' action, prescribes the manner the service contract in question could be terminated. It is petitioners' submission that the first clause referred to is independent, distinct and separate from the said proviso, such that upon the expiration of the period stated in the first clause, the Consultancy Agreement ceased to have any binding effect between the contracting parties even though they (petitioners) did not give any written notice of termination at least thirty (30) days in advance. We cannot fathom how contracting parties, who are sui juris, and knowledgeable of the purposes for which they solemnly put their Agreement into writing, could be so careless as to include inconsistent conditions in such a short and simple provision in their contract sued upon.
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law on evidence Time-honored is the rule that "In the construction of an instrument where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all." Article 1374 of the New Civil Code, on the other hand, requires that "The various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly." Conformably, to ascertain the true meaning or import of the controverted provision of subject Consultancy Agreement, its entirety must be considered; not merely the first clause. Consequently, petitioners' interpretation solely based on the first clause, and which completely ignored the second clause under scrutiny, cannot be upheld. BPI-FAMILY SAVINGS BANK, INC. vs. SPS. ZENAIDA DOMINGO G.R. No. 158676 November 27, 2006 Provision: Assignment and Sublease – The lessee has the right to sublease the premises or any portion thereof to a third party. The lessee may not, however, assign or transfer its right or interest under this lease without the written consent of the lessor. On surface, the foregoing stipulation seemingly insulates Cruz from any liability in this case. However, basic is the rule that in the construction of an instrument where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all (Rule 130, Section 11). The trial court was quick to point out, and rightly so, that the first sentence of the aforequoted covenant speaks of what the lessee can do, while the second sentence refers to what it cannot do without the consent of the lessor. This is evident from the phrase "may not however" found in the second sentence, which means that the act of subleasing in the first sentence may be done by the lessee without the consent of the lessor but the act of assignment or transfer of rights in the second sentence cannot be done by the lessee without the consent of the lessor. Clearly, the parties intended a distinction between a sublease and an assignment of rights. Under the aforequoted contractual stipulation, BPI-FSB, as lessee, is possessed of the authority to sublease the subject premises. No mention is made of obtaining any written consent of the lessor (Cruz) as a condition sine qua non for the validity of a sublease agreement. What necessitates the prior written consent of lessor Cruz is the assignment or transfer by BPI-FSB as lessee of its right or interest under the lease agreement. Section 12. Interpretation according to intention; general and particular provisions. - In the construction of an instrument, the intention of the parties is to be pursued; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it. (10) INTENTION IS PARAMOUNT Intention is always the first rule of interpretation. In Sales, we distinguished a contract of sale from a contract of barter. One of the rules we learned is: Art. 1468. If the consideration of the contract consists partly in money, and partly in another thing, the transaction shall be characterized by the manifest intention of the parties. If such intention does not clearly appear, it shall be considered a barter if the value of the thing given as a part of the consideration exceeds the amount of the money or its equivalent; otherwise, it is a sale. CASE: ROLANDO R. LIGON vs. COURT OF APPEALS G.R. No. 84644, August 29,1989
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law on evidence
At the outset, it should be stated that, as a rule, in the construction and interpretation of a document the intention of the parties must be sought (Rule 130, Section 10, Rules of Court). This is the basic rule in the interpretation of contracts because all other rules are but ancillary to the ascertainment of the meaning intended by the parties. And once this intention has been ascertained it becomes an integral part of the contract as though it has been originally expressed therein in unequivocal terms. (Shoreline Oil Corp. vs. Guy, App. 189, So., 348, cited in 17A C.J.S., p. 47) GENERAL versus SPECIAL PROVISIONS In the second part of Section 12, we are actually told to apply the principle "GENERALIA SPECIALIBUS NON DEROGANT", which means that where an act deals specifically with a subject a general provision in that act does not override the specific provision. If a matter falls under a specific provision and a general provision, it shall be governed by the specific provision. EMPIRE INSURANCE COMP. vs. REMEDIOS S. RUFINO G.R. No. L-38268 May 31, 1979 Section 10, Rule 130 of the Rules of Court provides as follows: Interpretation according to intention; general and particular provisions — In the construction of an instrument, the intention of the parties is to be pursued; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it. Likewise, Article 1372 of the Civil Code stipulates that however general the terms of a contract may be, they shall not be understood to comprehend things that are distinct and cases that are different from those upon which the parties intended to agree. " Similarly, Article 1374 of the same Code provides that "the various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly." SECURITY BANK CORP. VS. HON. COURT OF APPEALS, ET AL. G.R. No. 141733, February 8, 2007 While it cannot be gainsaid that the terms and conditions in the Contract of Security Services (CSS) were incorporated to the PRA (sic) as integral parts thereof, nevertheless, We conform to the finding of the court of origin that the 2nd contract (PRA) precisely and particularly dealt with the mode of resolving PISA’s liability resulting, if any, from [the] March 12, 1992 robbery. (Order dated July 12, 1993, p.1; Records, p.113). It distinctively provides a clear cut manner by which the right of action against PISA may be exercised by [SBC] pertaining to a specific robbery incident—a matter visibly non-existent in the CSS. Indeed, this special provision controls and prevails over the general terms and conditions extant on the CSS. (Yatco v. El Hogar Filipino, 67 Phil. 610) When a general and a particular provision are inconsistent, the latter is paramount to the former. Ergo, a particular intent, as in this case reflected in letter e, paragraph 5 of the PRA will control a general intent embodied in paragraph 9 of the Contract of Security Services. (Section 12, Rule 130, Revised Rules of Court) Thus, the PRA is paramount to and prevails over the terms and stipulations in the first contract (CSS) on matters relevant and material to PISA’s liability relating to the robbery. See also:
GUILLERMO CORTES vs. INTERMEDIATE APPELLATE COURT, ET AL. G.R. No. 73678 July 21, 1989 EDGAR LEDONIO vs. CAPITOL DEVELOPMENT CORPORATION
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law on evidence G.R. No. 149040, July 4, 2007 EQUITABLE PCI BANKING CORPORATION, ET AL. vs. RCBC CAPITAL CORPORATION G.R. No. 182248, December 18, 2008 Section 13. Interpretation according to circumstances. - For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those whose language he is to interpret. (11) INTERPRETATION ACCORDING TO CIRCUMSTANCES Here, one who is tasked to consider the evidence presented is implored to place himself in the shoes of the parties to the document and envision the circumstances under which the provisions of an instrument were created. This rule is useful in interpreting contracts such as equitable mortgages or lease with option to buy. Section 14. Peculiar signification of terms. - The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is admissible to show that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly. (12) ORDINARY MEANING IS PREFERRED Section 14 provides that when interpreting a term used in a contract or instrument, its general meaning or ordinary signification is to be applied. This is an instance when a mere “layman’s understanding” is preferred for verily there are contracts that do not require or was not attended by the intervention of a lawyer. However, evidence may be introduced that the term used has a local, technical or otherwise peculiar signification. An example of this is the term “PAKIAO”. Under the Omnibus Rules to implement the Labor Code, Workers who are paid by results, including those who are paid on piece-work, "takay," "pakiao" or task basis are not entitled to certain labor standards benefits. However, the term PAKIAO may not be understood by laymen in the same manner as it is used under the Omnibus Rules. CASES SECURITY BANK CORP. VS. HON. COURT OF APPEALS, ET AL. G.R. No. 141733, February 8, 2007 Paragraph 5 of the PRA specifically states that PISA’s payment was subject to express terms and conditions, one of which was the following: (e) The parties hereto further agree that this agreement and/or payment of the whole amount of P3,027,728.01, shall not affect or prejudice, directly or indirectly, whatever cause of action SBC may have against PISA and whatever claim or defense the latter may have against SBC, if the maximum recoverable proceeds of the insurance covering the loss suffered by SBC could not be recovered from the insurer. Further, it is agreed that should Security Guards Wilson Taca and Ernesto Mariano be absolved from the charge of robbery in band and/or are found by the proper court not to have been involved at all in the
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law on evidence alleged conspiracy, and that it is duly established through legal action before the competent court that their failure to prevent the robbery was not due to their, or their PISA co-guards’ negligence and/or willful act, whatever installments may have been paid by PISA under this Agreement shall be reimbursed with legal interest to be computed from the time of actual payment, the same to be amortized in eighteen (18) equally monthly installments, with the interest thereto being based on the diminishing balance. We hold that reading the clause as requiring a final judgment is a strained interpretation and contrary to settled rules of interpretation of contracts. Paragraph 5(e) only requires that the proceeds "could not be recovered from the insurer," and does not state that it should be so declared by a court, or even with finality. In determining the signification of terms, words are presumed to have been used in their primary and general acceptance, and there was no evidence presented to show that the words used signified a judicial adjudication. Indeed, if the parties had intended the non-recovery to be through a judicial and final adjudication, they should have stated so. In its primary and general meaning, paragraph 5(e) would cover LIC’s extrajudicial denial of SBC’s claim. JOSE R. MORENO, JR. vs. PRIVATE MANAGEMENT OFFICE G.R. No. 159373, November 16, 2006 Petitioner further argues that the "suggested indicative price" of P21,000,000.00 is not a proposed price, but the selling price indicative of the value at which respondent was willing to sell. Petitioner posits that under Section 14, Rule 130 of the Revised Rules of Court, the term should be taken in its ordinary and usual acceptation and should be taken to mean as a price which is "indicated" or "specified" which, if accepted, gives rise to a meeting of minds. This was the same construction adopted by the trial court, viz.: Going to defendant’s main defense that P21 Million was a "suggested indicative price" – we have to find out exactly what "indicative" means. Webster Comprehensive Dictionary, International Edition, gives us a graphic meaning that everybody can understand, when it says that "to indicate" is [t]o point out; direct attention[;] to indicate the correct page[.] "Indicative" is merely the adjective of the verb to indicate. x x x when the price of P21 [M]illion was indicated – then it becomes the "indicative" price – the correct price, no ifs[,] no buts. We do not agree. Under the same section and rule invoked by petitioner, the terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is admissible to show that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly. The reliance of the trial court in the Webster definition of the term "indicative," as also adopted by petitioner, is misplaced. The transaction at bar involves the sale of an asset under a privatization scheme which attaches a peculiar meaning or signification to the term "indicative price." Under No. 6.1 of the General Bidding Procedures and Rules of respondent, "an indicative price is a ball-park figure and [respondent] supplies such a figure purely to define the ball-park." The plain contention of petitioner that the transaction involves an "ordinary armslength sale of property" is unsubstantiated and leaves much to be desired. This case sprung from a case of specific performance initiated by petitioner who has the burden to prove that the case should be spared from the application of the technical terms in the sale and disposition of assets under privatization. Petitioner failed to discharge the burden.
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law on evidence It appears in the case at bar that petitioner’s construction of the letter of February 22, 1993 – that his assent to the "suggested indicative price" of P21,000,000.00 converted it as the price certain, thus giving rise to a perfected contract of sale – is petitioner’s own subjective understanding. As such, it is not shared by respondent. Under American jurisprudence, mutual assent is judged by an objective standard, looking to the express words the parties used in the contract. Under the objective theory of contract, understandings and beliefs are effective only if shared. Based on the objective manifestations of the parties in the case at bar, there was no meeting of the minds. That the letter constituted a definite, complete and certain offer is the subjective belief of petitioner alone. The letter in question is a mere evidence of a memorialization of inconclusive negotiations, or a mere agreement to agree, in which material term is left for future negotiations. It is a mere evidence of the parties’ preliminary transactions which did not crystallize into a perfected contract. Preliminary negotiations or an agreement still involving future negotiations is not the functional equivalent of a valid, subsisting agreement. For a valid contract to have been created, the parties must have progressed beyond this stage of imperfect negotiation. But as the records would show, the parties are yet undergoing the preliminary steps towards the formation of a valid contract. Having thus established that there is no perfected contract of sale in the case at bar, the issue on estoppel is now moot and academic. Section 15. Written words control printed. - When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter. (13) ANICETO G. SALUDO, JR. ET AL. vs. COURT OF APPEALS, ET AL. G.R. No. 95536, March 23, 1992 Indubitably, that private respondent can use substitute aircraft even without notice and without the assumption of any obligation whatsoever to carry the goods on any specified aircraft is clearly sanctioned by the contract of carriage as specifically provided for under the conditions thereof. Petitioners' invocation of the interpretative rule in the Rules of Court that written words control printed words in documents, to bolster their assertion that the typewritten provisions regarding the routing and flight schedule prevail over the printed conditions, is tenuous. Said rule may be considered only when there is inconsistency between the written and printed words of the contract. As previously stated, we find no ambiguity in the contract subject of this case that would call for the application of said rule. In any event, the contract has provided for such a situation by explicitly stating that the above condition remains effective "notwithstanding that the same (fixed time for completion of carriage, specified aircraft, or any particular route or schedule) may be stated on the face hereof." Section 16. Experts and interpreters to be used in explaining certain writings. When the characters in which an instrument is written are difficult to be deciphered, or the language is not understood by the court, the evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to declare the characters or the meaning of the language. (14) Although English is the official language of the Philippine Judiciary, it cannot be denied that our country is a hodge-podge of cultures and ethnicities with their own dialects or languages and sometimes contracts are written in such native dialects or languages. In such cases, the law allows the introduction of evidence, generally testimonial, to translate the language with which the tribunal is not familiar. If a party is not satisfied or doubts the veracity of the translation, he may
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law on evidence raise the same during trial, on cross-examination or even present his own expert or interpreter to rebut the same. Section 17. Of two constructions, which preferred. - When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision was made. (15) This covers a situation where there are different interpretations given by as many parties to one single document. The prevailing interpretation will be determined according to the following rules: 1. The interpretation which the other party believed and used will prevail; 2. When both constructions are equally proper, that interpretation which is most favorable to the party for whose benefit the provision was made in the first place will prevail. Section 18. Construction in favor of natural right. - When an instrument is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted. (16) A natural right is one that exists by virtue of natural law. This rule is usually applicable to waivers and renunciations. Section 19. Interpretation according to usage. - An instrument may be construed according to usage, in order to determine its true character. (17) Dean Inigo’s example relates to a bill of lading. A bill of lading operates both as a receipt and as a contract. It is a receipt for the goods shipped and a contract to transport and deliver the same as therein stipulated. As a receipt, it recites the date and place of shipment, describes the goods as to quantity, weight, dimensions, identification marks and condition, quality, and value. As a contract, it names the contracting parties, which include the consignee, fixes the route, destination, and freight rate or charges, and stipulates the rights and obligations assumed by the parties (PHOENIX ASSURANCE CO., LTD. vs. UNITED STATES LINES, G.R. No. L-24033, February 22, 1968). Thus, a bill of lading should be interpreted according to these usages. . PROVISIONS OF THE CIVIL CODE ON THE INTERPRETATION OF CONTRACTS Art. 1370. If the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control. If the words appear to be contrary to the evident intention of the parties, the latter shall prevail over the former. (1281) Art. 1371. In order to judge the intention of the contracting parties, their contemporaneous and subsequent acts shall be principally considered. (1282) Art. 1372. However general the terms of a contract may be, they shall not be understood to comprehend things that are distinct and cases that are different from those upon which the parties intended to agree. (1283)
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law on evidence Art. 1373. If some stipulation of any contract should admit of several meanings, it shall be understood as bearing that import which is most adequate to render it effectual. (1284) Art. 1374. The various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly. (1285) Art. 1375. Words which may have different significations shall be understood in that which is most in keeping with the nature and object of the contract. (1286) Art. 1376. The usage or custom of the place shall be borne in mind in the interpretation of the ambiguities of a contract, and shall fill the omission of stipulations which are ordinarily established. (1287) Art. 1377. The interpretation of obscure words or stipulations in a contract shall not favor the party who caused the obscurity. (1288) Art. 1378. When it is absolutely impossible to settle doubts by the rules established in the preceding articles, and the doubts refer to incidental circumstances of a gratuitous contract, the least transmission of rights and interests shall prevail. If the contract is onerous, the doubt shall be settled in favor of the greatest reciprocity of interests. If the doubts are cast upon the principal object of the contract in such a way that it cannot be known what may have been the intention or will of the parties, the contract shall be null and void. (1289) Art. 1379. The principles of interpretation stated in Rule 123 of the Rules of Court shall likewise be observed in the construction of contracts. (n)
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law on evidence
C. TESTIMONIAL EVIDENCE 1. QUALIFICATION OF WITNESSES SEC. 20. Witnesses; their qualifications. – Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be a ground for disqualification. TESTIMONIAL OR ORAL EVIDENCE DEFINITION It is evidence elicited by the mouth of a witness as distinguished from a mere real or documentary evidence. Sometimes called ‘viva voche’ evidence which means ‘the living voice” or word of mouth. Witness is called to stand and asked questions and answer the same questions. That person is called a ‘witness’. REMEMBER: Do not confuse COMPETENT WITNESS from COMPETENT EVIDENCE. The COMPETENCY TEST of evidence applies to the TESTIMONY of the qualified witness. Situations: 1. A witness who can perceive or even if he cannot perceive but cannot remember what he has perceived—he is incompetent to become a witness. 2. He can perceive, can remember but cannot relate his perception to others—disqualified to testify. 3. If a witness sis one who has no personal knowledge of an evident the fact of which we want to prove, he is also incompetent to testify. The competence of the witness therefore refers to the personal qualification of the person testifying. WHY IS TESTIMONIAL EVIDENCE IMPORTANT? Even if the lowest in the hierarchy of evidence, without the introduction of testimonial evidence, there cannot be an introduction of either real or object evidence because the admission of any evidence including the testimonial, real or documentary evidence, would require the process of IDENTIFICATION; and that can only be done through a witness. Identification is a legal proof; IDENITIFICATION PRECEDES AUTHENTICATION. Without any witness whatsoever, no evidence can ever be authenticated in the court. Even the so called selfauthenticating document would require a witness to identify it. Several categories of documents are deemed to be self-authenticating: 1. Certified copy of public or business records;
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law on evidence 2. Official publications of government agencies; 3. Newspaper articles; These do not require outside evidence of authenticity in order to be admitted in evidence. Example: certificate of title—the law accords it admissibility for it was issued pursuant to an official function of an officer of the government. Its authenticated. However, will that cert. of title present itself? It cannot, therefore the need for testimonial evidence. Is there an EXCEPTION TO THE RULE? Let’s say document or object evidence is one that would still require the intervention or presentation of a witness for it to be identified. To my mind, naa but it’s a very lose exception for the reason that you are dispensing evidence. That is in the case of STIPULAITONS. When one party stipulates as to the existence and due execution of a document, it is automatically admitted by the court even if it is not sponsored by a witness. When a witness goes to the witness stand and identify the document or present object evidence, we call that the process of “sponsoring of evidence”. PRESUMPTION IN FAVOR OF COMPETENCE OF WITNESS Is there a presumption under the law that a witness is not competent to testify unless proven otherwise? NO. GENERAL RULE: A person who takes the stand as a witness is presumed to be able to testify. A party who desires to question the competence of a witness must do so by making an objection as soon as the facts tending to show the witness’ incompetency are apparent. So let us say somebody who is called to testify on what he saw on the particular date & particular time, so an eye witness. And later on during his testimony, it is clear that he never saw the incident; in the beginning he is presumed to be competent to testify but if it becomes apparent that he is not really in the position to testify as to those facts, then the other party must make a TIMELY objection so that the witness would be declared to be incompetent to testify. REMEMBER: THAT THE INCOMPETENCY AS TO CERTAIN PART OF THE TESTIMONY DOES NOT HAVE TO AFFECT THE REST OF THE OTHER TESTIMONY. How many times na ba ko na biktima ug ingna. I present a witness and he tend to testify to a lot of matters but then later on only to find out there are certain matters that the court declares that he is not competent to testify about. Will that affect the entire testimony? No, because he may be incompetent to testify as to certain facts but just the same as he may be competent to testify as to other facts as well. Let’s go to Section 20. Sec. 20. Witnesses; their qualifications. — Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make their known perception to others, may be witnesses Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification So what are the basic qualifications of witnesses?
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law on evidence Under Sec 20 Rule 130 there are 2 basic qualifications: 1. He can perceive – meaning he is in the position to use his senses. The law does not say that you are in the possession of all you senses but it is important that you have some matter of perception. Perception does not only just puros mata, or kung unsa masimhotan sa imu ilong or kung unsa imu madunggan. There are a lot of senses that may remain. 2. That in perceiving the witness can make know his perception to others. So that is the ability to communicate or the capacity of the person to communicate meaningfully to others. Now that it only the qualifications in Section 20 but let me add 2 more: 1. Under Section 1 of Rule 132 the witness must take either an OATH OR AFFIRMATION 2. He must not possess any of the disqualifications imposed by the law or by the rules of court. 4 BASIC QUALIFICATION OF A WITNESS: 1. The witness can perceive 2. In perceiving, he can make known his perception to others 3. Must take an oath or affirmation 4. Must not possess any of the disqualifications imposed by the law or the Rules of court. THE WITNESS MUST BE ABLE PERCEIVE It would therefore by absurd to ask the blind man what he saw. It is also absurd to ask a bungol kng unsa imuha nadunggan. In fact, if you are talking that way, you are CRAZY! Corollary therefore to this rule, it follows that the capacity of the witness to perceive is that the requirement that the WITNESS MUST ALSO HAVE PERSONAL KNOWLEDGE OF THE FACTS SURROUNDING THE SUBJECT MATTER OF HIS TESTIMONY. Because in Section 36 of Rule 130 requires that must a witness must testify only as to those matter that he has personal knowledge or those which derive from his own perception meaning whatever he saw he may testify, whatever he smelled he may testify and so on and so forth. So when the witness takes an affirmation or an oath, he cannot live up to his oath when his testimony is not based on his personal knowledge. So when you say that you swear to tell the truth and nothing but the truth so help me God, what do you swear to? If you tell something that is not based on your personal knowledge,is that true? you don’t know because it was merely related to you and it was not based on your own perception of facts. So WITHOUT PERSONAL KNOWLEDGE THEREFORE THE WITNESS LACKS COMPETENCE TO TESTIFY. Apart from the ability to perceive or at least from having at least one functional sense you should have the…. ABILITY TO MAKE KNOWN YOUR PERCEPTION TO OTHERS. It involves 2 factors: 1. The ability to remember what has been perceived. 2. Ability to communicate his perception or of what you have remembered.
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law on evidence
So therefore 1st perception, 2nd you remembered and 3rd communication. So let us presume there is a witness he has taken an oath he has personal knowledge of an event on which he is going to testify, so a witness is presented to testify as to the matter what he has perceive but what if he is like me Alzheimer’s? I cannot remember so I cannot be a competent witness. Is a DEAF MUTE necessarily an incompetent witness? A deaf-mute is not necessarily an incompetent as a witness. They are competent where they: (1) can understand and appreciate the sanctity of an oath; (2) can comprehend facts they are going to testify on, and; (3) can communicate their ideas through a qualified interpreter. (People vs. Tuangco, G.R. No. 130331, 11/ 22/ 2000) WITNESS MUST TAKE AN OATH OR AFFIRMATION. Taking an oath or affirmation is either rare intention or merely gloss over by commentators in discussing the qualifications of the witness to take a stand although the rule requires that the examination of the witness in the trial shall be done under oath or affirmation. Therefore a person is disqualified to be a witness if he is incapable of understanding the duty to tell the truth. An oath or affirmation is necessary for the witness to recognize the duty to tell the truth. The oath of the witness signifies that he is swearing to his creator to tell the truth and nothing but the truth and that if he does not, he can be made liable for PERJURY. What should the judge therefore look at when a witness is proposed to be presented and about to take an oath? The judge must look at WON the witness understands the oath he is saying. Asa man gikan ang oath? Kamang gidamay pa ang Ginoo? that is not really wrong in taking an oath before a duly constituted authority. Okay ra na xa. DISTINGUISH BETWEEN AN OATH AND AN OBLIGATION To my mind AN OBLIGATION IS SIMPLY AN OATH WITH A CURSE, what do I mean when I say that? What happens when manumpa ka sa babaye na imuha hinugugma? Like pakaslan tika sa lima ka simbahan ug ihatag nko ang bulan ug ang langit kung dili gani kilatan pako, what is that? That’s an oath! you oblige yourself to do something and when you failed to do it, kilatan pko so that is a curse! So here, the curse is not so problematic because it says so help me God. The curse therefore after this oath is that you will be answerable legally because you broke your oath or you obligation to tell the truth. IF THE WITNESS DOES NOT BELIEVE IN GOD HE WOULD JUST TAKE AN AFFIRMATION. How is an affirmation made? Simple lang, just omit the words “so help me God”
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law on evidence
What if you are competent to testify, you can perceive you can make your perception known to others and you are able to take the oath or affirmation but the accused is relative, so does that relationship render the witness incompetent to testify? NO RELATIONSHIP DOES NOT RENDER A WITNESS INCOMPETENT; it does not necessarily result to interest in the outcome of the case PEOPLE V. BONIAO JANUARY 23, 1993 The appellant's other contentions, such as the charge of inconsistencies in the testimonies of the prosecution witnesses and the alleged error committed by the trial court in giving credence to such testimonies, the witnesses who gave the same being related to the victims, are equally without merit. While witnesses Virginita Estampa Llano, Alfredo Estampa and Jessie Estampa were related in one way or another to the victims, save for Cirilo Dispolo. relationship does not by itself preclude the trial court from believing such testimonies or impair the witnesses' credibility. They are not disqualified by the Rules on that ground 33 alone; this Court has held that it is not to be lightly supposed that relatives of the deceased would callously violate their conscience to avenge the death of a dear one by blaming it on persons whom they believe to be innocent thereof.
Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification. CONVICTION OF A CRIME PEOPLE V. SORREL AUGUST 29, 1997 Under the Rules, a person is qualified and competent to be a witness if (a) he is capable of perceiving and (b) perceiving, he can make his perception known. [26] Unless disqualified,[27]such a person would be capable of testifying.[ In consonance with the modern trend to broaden the field of competency of witnesses and to restrict that of incompetency, [29] even a person convicted of a crime or one who has a pending criminal case is not by that alone disqualified from testifying. PEOPLE V. TANEO FEBRUARY 8, 1993 Thus, if he were to testify falsely against the latter, he must have been moved by a strong, improper and ulterior motive. That motive must have been established; appellant failed to do so. In the absence of evidence to show any reason or motive why witnesses for the prosecution should have testified falsely, the logical conclusion is that no improper motive existed, and that their testimony is worthy of full faith and credit. Here is an interesting case of… PEOPLE V. DE LEON G.R. No. 115367 September 28, 1995
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law on evidence
It is a case for murder or homicide, the witness against the accused is also is being prosecuted as well of murder in the other criminal case. So here killer is testifying against the killer or an accused against the other accused of a crime. So the accused is saying, since he is also being charged with murder of other person then he is not competent to testify because clearly he will not be testifying properly. HELD: Fast realizing that his cause lacks the proverbial "leg to stand on," the appellant capitalizes on Mariano's admission that he was charged with homicide or murder before another court. He then submits that no credence could be given to Mariano because the latter was himself accused of having killed somebody. 39 Such a submission fails to impress us. Section 20, Rule 130 of the Rules of Court provides that except as provided for in the succeeding sections [Sections 21, 22, 23, 20, and 25], all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be a ground for disqualification. Clearly, the mere pendency of a criminal case against a person does not disqualify him from becoming a witness. As a matter of fact, conviction of a crime does not disqualify such person from being presented as a witness unless otherwise provided by law POLITICAL BELIEF AND RELIGIOUS BELIEF To my mind, political belief should depend to mean not only a belief or pagtuo. what are political beliefs? Anarchists, democratic. To my mind, it should be read to include POLITICAL INCLINATIONS OR POLITICAL INCLINATION. So like the impeachment of CJ Corona it is a political exercise, like if you are in a political party against Corona, does it mean that you are disqualified to testify? The answer is no assuming that the rules of court are applicable in the impeachment trial. Because the rule is just the admissibility of evidence the appreciation of such evidence will be later on determined by the judge, IT DOES NOT MEAN THAT WHEN EVIDENCE IS ADMITTED IT IS ALREADY APPRECIATED BY THE JUDGE TO BE THE PROPER EVIDENCE. UNLESS OTHERWISE PROVIDED BY LAW: Article 821 of the Civil Code when case is for PROBATE OF THE WILL PEOPLE S. UMALI FEB 4, 1991 The phrase "conviction of a crime unless otherwise provided by law" takes into account Article 821 of the Civil Code which states that persons convicted of: 1. falsification of a document, 2. perjury or 3. false testimony" are disqualified from being witnesses to a will." Since the witness Francisco Manalo is not convicted of any of the above-mentioned crimes to disqualify him as a witness and this case does not involve the probate of a will, We rule that the fact that said witness is facing several criminal charges when he testified did not in any way disqualify him as a witness.
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The testimony of a witness should be given full faith and credit, in the absence of evidence that he was actuated by improper motive. Hence, in the absence of any evidence that witness Francisco Manalo was actuated by improper motive, his testimony must be accorded full credence. COMMENT: Because here To my mind there is only one and you can learn this in your succession Art 821 the following is disqualified to be a witness in a will and no. 2 thereof those who have been convicted of falsification of document, perjury or false testimony. How is this related to Section 20 of Rule 130? This is “unless otherwise provided by law” What if one of the witnesses in a notarial will is not qualified to testify because he is convicted of falsification of document, forgery or false testimony, what will be the effect? Let us say i-probate ang will and there is somebody opposing that the will of will is invalid, so now the formal requisites of the will should be proven and the witnesses will be called and they must testify that they were there signing the will unya naa diay usa who is not allowed to be a witness so dili 2 nimo xa pwede ipatawag sa witness stand. Section 21 . Disqualification by reason of mental incapacity or immaturity. — The following persons cannot be witnesses: a. Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; b. Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. (a)Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; So what comes to mind? Maybe a person has mental impairment, example a person who is insane. Can an insane person perceive properly? NO. Can an insane person testify during a lucid interval? YES. WHAT ABOUT MENTAL RETARDATES? Mental retardate is NOT per se disqualified to be a witness, again there is a presumption of competency to testify. WHAT IS THE EFFECT IF THE WITNESS IS A MENTAL RETARDATE? Its only effect was to consider her testimony from the point of view of an 8-year-old minor. PEOPLE vs. dela Cruz July 11, 2002 The determination of the competence of witnesses to testify rests primarily with the trial judge who sees them in the witness stand and observes their behavior or their possession or lack of intelligence, as well as their understanding of the obligation of an oath.[23] The prosecution has proved JONALYN’s competency by the testimony of Dr. Tuazon. The finding of the trial court, as supported by the testimony of Dr. Tuazon that JONALYN had the understanding of an 8-year-old child, does not obviate the fact of her competency. Its only effect was to consider her testimony from the point of view of an 8year-old minor. Even a mental retardate is not, per se, disqualified from being a witness. [24] JONALYN, who may be considered as a mental retardate but with the ability to make
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law on evidence her perceptions known to others, is a competent witness under Section 20 of Rule 130 of the Rules on Evidence.[ PEOPLE V. DELOS SANTOS AUGUST 30, 2001 Hence, a mental retardate is not, by reason of such handicap alone, disqualified from testifying in court. He or she can be a witness, depending on his or her ability to relate what he or she knows. If the testimony of a mental retardate is coherent, the same is admissible in court[33]. Thus, we have in several cases[34] upheld the conviction of the accused based mainly on statements given in court by the victim who was a mental retardate. PEOPLE V. ESPANOLA APR 18, 1997 As long as the senses of a mental retarded can perceive facts and he can convey his perception in courts, he can be a witness. (b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. What would be the gauge to determine whether the child that is so young has enough mental maturity to capacitate the child to become a witness? There is NO GAUGE AS TO AGE actually. Of course, infants dili pwede. So how old? If there is no set age to determine that the child witness is qualified to testify in terms of MENTAL MATURITY, what do we gauge? According to SC in several cases, for example… PEOPLE V. GALAS SEPT 24, 1996, It is thus clear that any child regardless of age can be a competent witness if they met the following criteria: 1. Capacity of observation 2. Capacity of recollection 3. Capacity of communication The accused urge us to give no weight to Joemar's testimony because of its unreliability; they claim that he could not even remember the month and the year when the incident happened. A close scrutiny of his testimony discloses, however, that Joemar was clear on the facts he observed surrounding the death of Federico which, according to him took place on a date "nearing Christmas."[47] Since the date of Federico's death was undubitably established to be 23 December 1985, which was, indeed, "nearing Christmas," Joemar's approximation was sufficient. The accused also harp on Crisanto Gamayon's credibility on the ground that if he were really there, he would have unquestionably helped his father instead of merely standing still and simply gaping at the latter's killing by five men and returning to the scene only on the following day. Crisanto's testimony that he was afraid[48] sufficiently refutes this objection. Fear has been known to render people immobile, if not useless, in some life-and-death situations. Crisanto and Joemar left Federico's body overnight at the scene. of the crime because darkness had fallen and fear gripped them.
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law on evidence
Under the circumstances, the 16-year old Crisanto and the 5-year old Joemar could not be expected to act like adults, in full possession of their mental emotional, and psychological faculties. PEOPLE V. MENDOZA FEB 22, 1996 The requirements then of a child’s competency as a witness are the: (a) capacity of observation, (b) capacity of recollection, and (c) capacity of communication. And in ascertaining whether a child is of sufficient intelligence according to the foregoing requirements, it is settled that the trial court is called upon to make such determination. The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record, the decision of the trial judge will not be disturbed on review unless from that which is preserved it is clear that it was erroneous. The trial court has adjudged Paul Michael competent to testify. We agree. A close and careful examination of the testimony of Paul Michael shows that at the time he testified, he could be deemed a child of above average intelligence, i.e., capable of giving responsive answers to the questions asked of him by the trial judge, as well as recalling events and relating them to such recollections. The initial hesitancy of Paul Michael to name his father as the author of the crime was sufficiently explained by the trial court as follows: The first time Paul Michael was presented as [a] witness, the only thing substantial he testified on was that his father boxed his mother in the mouth and tied her. On further questions, he refused to answer anymore. The Court noticed the reason for such adamant attitude of the witness. His father, the accused, was directly in his sight and whenever their eyes met, the child could speak no more. The second time the witness was presented, the private prosecutor covered the child from the accused The Court likewise directed the accused to sit farther away thereby placing the accused out of the direct sight of the witness. As a result, the child was able to testify freely and extensively without hesitation. We defer to such observation and explanation. Indeed, there are certain matters that aid the trial court in assessing the credibility of a witness which are not available to the appellate court, such as emphasis, gesture, and the inflection of the voice of the witness. The trial court had the distinct opportunity to make such observations and to avail of such aids while Paul Michael was on the witness stand, thus, we find no reason to disregard the assessment made by the trial court. Note: The next meeting we are going to discuss the rule on examination of child witnesses because it is part of section 20. OTHER ISSUES OF THE QUALIFICATION or CAPACITY TO BECOME A WITNESS RECALL: RULE 9 SECTION 3 when the party is considered in default, what would be the effect if the party is in default? You lose your standing in court, you are limited to a mere observer you cannot proved or disproved anything. Question: In a civil case there were several defendants, one defendant answered and the other dud not answer and therefore he was declared in default, now, the only witness of the who
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law on evidence answer is his co-defendant who was defaulted. now here comes the victim saying he cannot testify because he was already in default he is reduced to a mere observer and cannot prove or disprove anything. What did the SC said? CAVILI V. FLORENDO OCTOBER 9, 1987 They advance the argument that to allow Perfecta Cavili to stand as witness would be to permit a party in default "to take part in the trial." An explanation of the Rule is in order. Loss of standing in court is the consequence of an order of default. Thus, a party declared in default is considered out of court and cannot appear therein, adduce evidence, and be heard and for that reason he is not entitled to notice. (Rule 18, Rules of Court; Lim Toco v. Go Fay, 80 Phil. 166) However, "loss of pending" must be understood to mean only the forfeiture of one's rights as a party litigant, contestant or legal adversary. A party in default loses his right to present his defense, control the proceedings, and examine or cross-examine witnesses. He has no right to expect that his pleadings would be acted upon by the court nor may he object to or refute evidence or motions filed against him. There is nothing in the rule, however, which contemplates a disqualification to be a witness or a opponent in a case. Default does not make him an incompetent. As opposed to a party litigant, a witness is merely a beholder, a spectator or onlooker, called upon to testify to what he has seen, heard, or observed. As such, he takes no active part in the contest of rights between the parties. Cast in the cited role of witness, a party in default cannot be considered as " a part in the trial." He remains suffering the effects of an order of default. A party in default may thus be cited as a witness by his co-defendants who have the standing and the right to present evidence which the former may provide. The incidental benefit giving the party in default the opportunity to present evidence which may eventually redound to his advantage or bring about a desired result, through his codefendants, is of minor consequence. Of greater concern or importance in allowing the presence of Perfecta Cavili as a witness in the case at bar, is the preservation of the right of petitioners Quirino and Primitivo Cavili to secure the attendance of witnesses and the production of evidence in their behalf. To reject Perfects Cavili's presentation of testimonial evidence would be to treat Primitivo and Quirino, as if they too were in default. There is no reason why the latter should also be made to bear the consequences of Perfecta's omission. Moreover, we cannot deprive Quirino and Primitivo of the only instrument of proof available to them, as Perfecta alone has been in possession and administration of the claim. What happens if there is a witness gisubpoena pag-ad2 nya sa court hubog xa. Is the drunk person automatically disqualified to be a witness? DRUNKENNESS NOT A DISQUALIFICAITON PEOPLE V. MELENDRES APRIL 30, 2003
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law on evidence As to the alleged mental derangement of Rodrigo, it is true that during his testimony in open court on December 15, 1993, he was uncooperative, defiant and even disrespectful to the court. The trial court even cited him for direct contempt and ordered his incarceration. However, it appeared from the order of the trial court that Rodrigo’s defiance at that time was not a result of his alleged mental incapacity but because he was drunk. Moreover, while the prosecution admitted that Rodrigo has experienced “some mental shock sometime ago”, no evidence was presented by the defense to impeach him on ground of incompetence. On the other hand, a review of the transcript of stenographic notes taken during the four days that Rodrigo testified and underwent examination on the witness stand reveals that, except for the incident on December 15, 1993, he is responsive to the questions propounded and was able to convey sufficiently intelligent answers. Under Section 20, Rule 130 of the Revised Rules of Court, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. BAR QUESTIONS Competency and Credibility Bar 2004 Q: Distinguish: competency of the witness and credibility of the witness A: Competency of a witness has reference to the basic qualifications of a witness as his capacity to perceive and his capacity to communicate his perception to others. It also includes the absence of any of the disqualifications imposed upon a witness. Credibility of the witness refers to the believability of the witness and has nothing to do with the law or the rules. It refers to the weight and the trustworthiness or reliability of the testimony. In deciding the competence of a witness, the court will not inquire into the trustworthiness of the witness. Accordingly, a prevaricating witness of one who has given contradicting testimony is still a competent witness. Bar 1994 Q: Al was accused of raping Lourdes. Only Lourdes testified on how the crime was perpetrated. On the other hand, the defense presented Al’s wife, son and daughter to testify that Al was with them when the alleged crime took place. The prosecution interposed a timely objection to the testimonies on the ground of obvious bias due to the close relationship of the witnesses with the accused. If you were the judge, how would you rule on the objection? A: I would overrule the objection, interest in the outcome of a case which also includes close relationship is not a ground to disqualify a witness (sec. 20 R132) Bar 1994 Q: Louis is being charged with frustrated murder of Roy. The prosecutions lone witness, Mariter, testified to having seen Louise prepare the poison which she later surreptitiously poured into Roy’s wine glass, Louise sought the disqualification of Mariter as witness on account of her previous conviction of perjury. Rule on Louise’s contention.
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law on evidence A: The contention of Louise has no legal basis. Basic is the rule that previous conviction is not a ground for disqualification of a witness, unless otherwise provided by law. Mariter’s conviction is not sufficient to have her disqualified to testify. Her situation is not one of the exceptions provided for by law.
Let’s go to Section 22. Sec. 22 . Disqualification by reason of marriage. — During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants This is what you called MARITAL DISQUALIFICATION RULE. As noted by Wigmore, the marital disqualification rule consists of two parts: (1) the incapacity of one spouse to testify for the other, a disqualification designed to obviate perjury; and (2) the privilege of one spouse not to testify against the other, a right designated to prevent domestic disunion and unhappiness (U.S. vs. Concepcion, 31 Phil. 182,187; 2 Wigmore on Evidence 731). Wigmore notes that the privilege has no longer any good reason for retention. "In an age which has so far rationalized, depolarized, and de-chivalrized the marital relation and the spirit of Femininity as to be willing to enact complete legal and political equality and independence of man and woman, this marital privilege is the interest anachronism, in legal theory, and an indefensible obstruction to truth, in practice". After noting that some States had abolished the privilege, the American Bar Association's Committee on the improvement of the Law of Evidence in 1937-38 recommended its abolition (8 Wigmore on Evidence 232). BASIS FOR THIS RULE In order to preserve the community’s intent to preserve the marriage relations and promote domestic peace For instance, in United States v. Concepcion, 31 Phil. 182 (1915) the basis of the rule is said to be the "considerations of public policy growing out of the marital relation." Said the Court: "To allow one to testify for or against the other would be to subject him or her to great temptation to commit perjury and to endanger the harmony and confidence of the marital relation." At 187. On the other hand, in People v. Francisco, 78 Phil. 694 (1947), the Court gave as reasons for the privilege the following: "First, identity of interests; second, the consequent danger of perjury; third, the policy of the law which deems it necessary to guard the security and confidences of private life even at the risk of an occasional failure of justice, and which rejects such evidence because its admission would lead to domestic disunion and unhappiness; and fourth, because, where a want of domestic tranquillity exists, there is danger of punishing one spouse through the hostile testimony of the other."
ALVAREZ VS, RAMIREZ GR No. 143139 Oct 14, 2005 (a must read case). It comes out in the bar. The issue for our resolution is whether Esperanza Alvarez can testify against her husband.
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law on evidence Section 22, Rule 130 of the Revised Rules of Court provides:XXXXX The reasons given for the rule are: 1. There is identity of interests between husband and wife; 2. If one were to testify for or against the other, there is consequent danger of perjury; 3. The policy of the law is to guard the security and confidences of private life, even at the risk of an occasional failure of justice, and to prevent domestic disunion and unhappiness; and 4. Where there is want of domestic tranquility there is danger of punishing one spouse through the hostile testimony of the other. [11] But like all other general rules, the marital disqualification rule has its own exceptions, both in civil actions between the spouses and in criminal cases for offenses committed by one against the other. Like the rule itself, the exceptions are backed by sound reasons which, in the excepted cases, outweigh those in support of the general rule. For instance, where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fails. In such a case, identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, the security and confidences of private life, which the law aims at protecting, will be nothing but ideals, which through their absence, merely leave a void in the unhappy home.[12] The rule that the injury must amount to a physical wrong upon the person is too narrow; and the rule that any offense remotely or indirectly affecting domestic harmony comes within the exception is too broad. The better rule is that, when an offense directly attacks, or directly and vitally impairs, the conjugal relation, it comes within the exception to the statute that one shall not be a witness against the other except in a criminal prosecution for a crime committee (by) one against the other.’” Obviously, the offense of arson attributed to petitioner, directly impairs the conjugal relation between him and his wife Esperanza. His act, as embodied in the Information for arson filed against him, eradicates all the major aspects of marital life such as trust, confidence, respect and love by which virtues the conjugal relationship survives and flourishes. As correctly observed by the Court of Appeals: “The act of private respondent in setting fire to the house of his sister-in-law Susan Ramirez, knowing fully well that his wife was there, and in fact with the alleged intent of injuring the latter, is an act totally alien to the harmony and confidences of marital relation which the disqualification primarily seeks to protect. The criminal act complained of had the effect of directly and vitally impairing the conjugal relation. It underscored the fact that the marital and domestic relations between her and the accused-husband have become so strained that there is no more harmony, peace or tranquility to be preserved. The Supreme Court has held that in such a case, identity is non-existent. In such a situation, the security and confidences of private life which the law aims to protect are nothing but ideals which through their absence, merely leave a void in the unhappy home. (People v. Castañeda, 271 SCRA 504). Thus, there is no longer any reason to apply the Marital Disqualification Rule.” It should be stressed that as shown by the records, prior to the commission of the offense, the relationship between petitioner and his wife was already strained. In fact, they were separated de facto almost six months before the incident. Indeed, the evidence and facts presented reveal that the preservation of the marriage between petitioner and Esperanza is no longer an interest the State aims to protect.
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law on evidence At this point, it bears emphasis that the State, being interested in laying the truth before the courts so that the guilty may be punished and the innocent exonerated, must have the right to offer the direct testimony of Esperanza, even against the objection of the accused, because (as stated by this Court in Francisco[14]), “it was the latter himself who gave rise to its necessity.” When will this SPOUSAL IMMUNITY be applied? 2 requisites: 1. The spouses must be legally married for the spouse to invoke the benefit of the rule. Thus, the rule does not cover illicit cohabitation. The rule applies whether a witnessspouse is a party to a case or not but the other spouse must be a party to the case. So it doesn’t matter if they are not sued in their capacity as husband and wife as long as one spouse is a party to a case. Shouldn’t we argue that we are putting premium to those living in than those who are legally married? In effect this is punishing one spouse. Well, that’s just my thought 2. The prohibited testimony is one that is given during the existence of the marriage. Therefore it is not prohibited to give testimony for or against the other spouse after the marriage has already been dissolved. When the marriage is dissolved on the grounds provided by law, let’s say an annulment or declaration of nullity of marriage, the rule could no longer be invoked, the spouse can now testify against the other despite an objection being interposed by the defendant spouse. If the testimony for or against the spouse offered during the existence of their marriage, it does not matter if the fact subject matter of the testimony occurred before the marriage, the affected spouse may invoke the rule by objecting to the testimony. What is important is when the testimony is going to be made. For as long as the testimony is given during the existence of the marriage, disqualification applies even if the facts to be testified about happened before the marriage. EXAMPLE: If before the marriage, the wife witnessed the murder of coco martin by the husband. A year after, the husband and wife decided to get married. 6 months after the marriage, the wife became a battered wife. The husband was then reported to the police as the accused responsible for the murder. May the wife testify for the prosecution? ANSWER: The wife MAY testify OVER the OBJECTION of the husband. The situation of course is covered by marital disqualification rule. RULE: The KEY DETERMINANT IS WHEN THE TESTIMONY IS OFFERED. If it was offered DURING the subsistence of the marriage, the disqualification rule will apply. All that the other spouse will do is to OBJECT to the testimony. SITUATION: Suppose after a year of the marriage, the marriage is now annulled. May the wife now testify? ANSWER: The WIFE MAY NOW testify because the testimony is now given after the marriage. QUESTION: may the husband successfully object to the presentation of the testimony on the ground that the fact subject of the testimony occurred DURING
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law on evidence the subsistence of the marriage assuming that murder made by the husband occurred during such marriage? ANSWER: NO. the husband cannot successfully object for as long as the testimony is OFFERED AFTER the dissolution of the marriage. So it doesn’t matter if the fact to be testified about occurred during the marriage. REMEMBER: There is also a WAIVER of the testimony for FAILURE TO OBJECT. The testimony is prohibited only over the objection of the affected spouse or the spouse on whom the testimony is offered. It is the latter spouse who has the right to object to the competency of the other spouse. It goes without saying that the testimony is admissible if no objection is interposed by the spouse who has the right to invoke the prohibition. In other words, the benefit of the rule may be waived, impliedly or expressly. WHAT TYPE OF TESTIMONY IS COVERED? Oral testimony or written testimony? it covers both oral and written testimony because the law does not distinguish. Suppose what is being ask of the wife is not to testify but to PRODUCE DOCUMENTS against the husband, is this allowed? Like if the husband is charged with estafa and the contract is with the wife. Does the rule therefore covers the compulsion to produce documents that can be used to incriminate the other spouse? I haven’t seen anything in the Philippine jurisprudence but in American jurisprudence it is very clear that the marital disqualification rule covers not only utterances of the witnesses but also the production of documents. What does the phrase, “the latter's direct descendants or ascendants” mean? Remember this is a mere recent addition to the rules. Wala ni nga phrase kaniad2. The exception only refers to cases between cases and wife and not to latter’s direct descendants or ascents. PEOPLE V. NATIVIDAD 70 Phil 315 A wife cannot testify against the husband without his consent even if the husband is accused of killing the wife’s own child. It lead to obvious injustice that is why in the latter years in the case of… ORDONO V. DAQUIGAN 2 SCRA 270 The SC allowed the wife to testify against her husband for raping her daughter. So we have 2 conflicting rulings, but now there is no conflict because this is now included in the rules “direct descendants or ascendants. So direct lng ba, meaning connect by a direct line, example: 1. Can the wife testify against the husband for the crime committed by the husband to her/their child? YES. 2. Can the wife testify against the husband for the crime committed by the latter against the wife’s father? YES.
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law on evidence Indirect: 1. If the crime committed against the wife’s sister, the wife cannot testify because it is a collateral line. INSTANCES WHEN ONE SPOUSE MAY TESTIFY AGAINST EACH OTHER If the wife sues the husband for fraudulently embezzling the paraphernal funds of the former, the reason for the rule ceases. The wife can now testify against the husband. Also, if the wife is sued for adultery, the husband cannot be barred from testifying against the wife. In a suit for annulment of marriage, each spouse can testify against each other. SITUATION: I represent a lot of spouses, and its either they were good when I started to accept them or when I started to intervene in the marriage, nagbulag. I’m the lawyer for both of them. Legally separated na sila. Can I represent either of them? Answer: to my mind, there is CONFLICT OF INTEREST. Do not wait for it to arise. Situation: But what if you are already prosecuting the case and you are defending either of them already? Should you withdraw from the case because they are now separated and are filing cases against each other? ANSWER: There is no conflict of interest there because the cases are not between them. But to my mind, I don’t have to wait a conflict of interest there. It might not be much of a conflict of interest to you as a lawyer but what may be affected is you ability to handle the case. EXCEPTIONS TO THE MARITAL DISQUALIFCIATON RULE CIVIL CASES COVERED This must be a civil case file by one against the other. This contemplates a case where one is a plaintiff or petitioner and the other is the defendant or the respondent. Where the civil case is between the spouse and the other spouse direct ascendants or descendants, the marital disqualification would still apply. Thus if the wife sues the father of the husband for a collection of a loan, the husband will be barred from testifying against the wife upon the objection of the latter. This is so because the civil case is not one against the other but between a spouse and the parent of the other. There is however, a DIFFERENCE WITH RESPECT TO THE CRIMINAL CASE. The privilege of one to testify against the other is not confineD on the crimes committed by one against the other but also by those committed by one against the latter’s direct descendants or ascendants like the latter’s children or parents. However, crimes against the spouse’s collateral relatives like uncles, aunts, nephews, cousins, nieces are NOT covered by the exception. AVELINO ORDOÑO VS. DAQUIGAN G.R. No. L-39012 January 31, 1975
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law on evidence
There is a dictum that "where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquillity which may be disturbed, the reason based upon such harmony and tranquillity fails. In such a case identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, the security and confidences of private life which the law aims at protecting will be nothing but ideals which, through their absence, merely leave a void in the unhappy home" In the Francisco case, the wife, as a rebuttal witness, was allowed to testify against the husband who was charged with having killed his son and who testified that it was the wife who killed their son. We think that the correct rule, which may be adopted in this jurisdiction, is that laid down in Cargill vs. State, 35 ALR 133, 220 Pac. 64, 25 Okl. 314, wherein the court said: The rule that the injury must amount to a physical wrong upon the person is too narrow; and the rule that any offense remotely or indirectly affecting domestic harmony comes within the exception is too broad. The better rule is that, when an offense directly attack or directly and vitally impairs, the conjugal relation, it comes within the exception to the statute that one shall not be a witness against the other except in a criminal prosecution for a crime committed (by) one against the other. Using the criterion thus judiciously enunciated in the Cargill case, it can be concluded that in the law of evidence the rape perpetrated by the father against his daughter is a crime committed by him against his wife (the victim's mother). * That conclusion is in harmony with the practices and traditions of the Filipino family where, normally, the daughter is close to the mother who, having breast-fed and reared her offspring, is always ready to render her counsel and assistance in time of need. Indeed, when the daughter is in distress or suffers moral or physical pain, she usually utters the word Inay(Mother) before she invokes the name of the Lord. Thus, in this case, when Avelino Ordoño, after having raped his daughter Leonora in the early morning of October 11, 1970, tried to repeat the beastly act in the evening of that date, Leonora shouted "Mother" and, on hearing that word, Avelino desisted. That the rape of the daughter by the father, an undeniably abominable and revolting crime with incestuous implications, positively undermines the connubial relationship, is a proposition too obvious to require much elucidation. In Wilkinson vs. People, 282 Pac. 257, it was held that the wife was a competent witness against the husband in a prosecution for rape committed by the husband against his stepdaughter, who is the wife's natural daughter because the crime was "an outrage upon nature in its dearest and tenderest relations as well as a crime against humanity itself". The court adopted the interpretation that "a criminal action or proceeding for a crime committed by one against the other" may refer to a crime where the wife is the individual particularly and directly injured or affected by the crime for which the husband is being prosecuted (See Dill vs. People, 19 Colo. 469, 475, 36 Pac. 229, 232). In State vs. Chambers, 87 Iowa 1, 53 N.W. 1090, it was held under the statutory provision that husband or wife shall in no case be a witness for or against the other, except in a criminal proceeding for a crime committed by one against the other, that the wife was competent to testify against the husband in a case where he was prosecuted for incest committed against his stepdaughter.
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law on evidence
In State vs. Shultz, 177 Iowa 321, 158 N.W. 539, it was held that the wife may testify against the husband in a case where he was prosecuted for incest committed against their eleven-year old daughter because incest is a "crime committed against the wife". (See Owens vs. State, 32 Neb. 167, 49 N.W. 226; Lord vs. State, 23 N.W. 507, 17 Neb. 526; People vs. Segura, 60 Phil. 933). The trial court did not err in holding that Catalina Ordoño could testify against her husband, Avelino Ordoño, in the case where he is being tried for having raped their daughter, Leonora. PEOPLE V. CASTANEDA FEB 27, 1979 The act complained of as constituting the crime of Falsification of Public Document is the forgery by the accused of his wife's signature in a deed of sale, thereby making it appear therein that said wife consented to the sale of a house and lot belonging to their conjugal partnership when in fact and in truth she did not. HELD: It must be noted that had the sale of the said house and lot, and the signing of the wife's name by her husband in the deed of sale, been made with the consent of the wife, no crime could have been charged against said husband Clearly, therefore, it is the husband's breach of his wife's confidence which gave rise to the offense charged. And it is this same breach of trust which prompted the wife to make the necessary complaint with the Office of the Provincial Fiscal which, accordingly, filed the aforesaid criminal case with the Court of First Instance of Pampanga. To rule, therefore, that such criminal case is not one for a crime committed by one spouse against the other is to advance a conclusion which completely disregards the factual antecedents of the instant case. ALVAREZ V. RAMIREZ OCTOBER 14, 2005 In this case, the husband set fire to the house of his sister in law. Is that covered by the exception? Remember it has to be direct relatives not collateral and sister is collateral. Can the wife testify? HELD: The act of private respondent in setting fire to the house of his sister-in-law Susan Ramirez, knowing fully well that his wife was there, and in fact with the alleged intent of injuring the latter, is an act totally alien to the harmony and confidences of marital relation which the disqualification primarily seeks to protect. The criminal act complained of had the effect of directly and vitally impairing the conjugal relation. It underscored the fact that the marital and domestic relations between her and the accused-husband have become so strained that there is no more harmony, peace or tranquillity to be preserved. The Supreme Court has held that in such a case, identity is non-existent. In such a situation, the security and confidences of private life which the law aims to protect are nothing but ideals which through their absence, merely leave a void in the unhappy home. (People v. Castañeda, 271 SCRA 504). Thus, there is no longer any reason to apply the Marital Disqualification Rule.” It should be stressed that as shown by the records, prior to the commission of the offense, the relationship between petitioner and his wife was already strained. In fact, they were separated de facto almost six months before the incident. Indeed, the evidence and facts presented reveal that the preservation of the marriage between petitioner and Esperanza is no longer an interest the State aims to protect.
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law on evidence
At this point, it bears emphasis that the State, being interested in laying the truth before the courts so that the guilty may be punished and the innocent exonerated, must have the right to offer the direct testimony of Esperanza, even against the objection of the accused, because (as stated by this Court in Francisco[14]), “it was the latter himself who gave rise to its necessity.” QUESTION: What if wala ang wife sa place? Will the ruling of Alvarez be the same? ANSWER: According to UP Suggested Answers: YES, the wife may testify over the objection of the husband. The disqualification by reason of marriage has exceptions as where the marital relations are so strained as there is no more harmony to be preserved. The acts of the husband eradicate all the major aspect of marital life. On the other hand, the state has an interest in punishing the guilty and giving justice to the innocent and therefore State must allow testimony of the wife over the objection of the husband.
RULE ON THE EXAMINATION OF A CHILD WITNESS Let’s go to the rule on the examination of a child witness, remember in section 21(b) of RC that “Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully are disqualified from being a witness by reason of immaturity.” In the case of People vs. Galas Sept 24, 1996, of course the SC had the occasion to say that the child regardless of age can be a competent witness for as long as the child meets the following criteria: 1. Capacity of observation 2. Capacity of recollection or remembrance and 3. Capacity to communicate What do they communicate? Whatever they have observed and remembered. PRESUMPTION: the child can be a competent witness as long as they can perceive and in perceiving can make known his perception to others and relating truthfully the facts relating to which he is examined. PEOPLE VS. MENDOZA FEBRUARY 22, 1996, NOTE: just a background as to the basic American jurisprudence and therefore basic legal principle on the competency of children to testify and the same must be shown to the satisfaction of the court. It is thus clear that any child, regardless of age, can be a competent witness if he can perceive, and perceiving, can make known his perception to others and of relating truthfully facts respecting which he is examined. In the 1913 decision inUnited States vs. Buncad,29 this Court stated: Professor Wigmore, after referring to the common-law precedents upon this point, says: “But this much may be taken as settled, that no rule defines any particular age as conclusive of incapacity; in each instance the capacity of the particular child is to be investigated.” (Wigmore on Evidence, vol. I, p. 638)30
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law on evidence While on the same subject, Underhill declares: §257. Children on the witness stand. - Under the common law, competency of a child under the age of fourteen years to testify must be shown to the satisfaction of the court. He is presumptively incompetent, but if he is shown to be competent it is immaterial how young he may be when he testifies. He is competent if he possesses mental capacity and memory sufficient to enable him to give a reasonable and intelligible account of the transaction he has seen, if he understands and has a just appreciation of the difference between right and wrong, and comprehends the character, meaning and obligation of an oath. If the witness fulfills these requirements, it is immaterial as bearing upon his competency that he is unable to define the oath or to define testimony. In the wise discretion of the court, a child four, five, six and for such ages as seven, eight, nine, ten, eleven, twelve, thirteen or fifteen years of age may be shown competent to testify. It may not be said that there is any particular age at which as a matter of law all children are competent or incompetent. x x x31 The requirements then of a child’s competency as a witness are the: (a) capacity of observation, (b) capacity of recollection, and (c) capacity of communication. 32 And in ascertaining whether a child is of sufficient intelligence according to the foregoing requirements, it is settled that the trial court is called upon to make such determination.33 As held in UnitedStates vs. Buncad,34 quoting from Wheeler vs. United States,35 and reiterated in People vs. Raptus36 and People vs. Libungan:37 The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record, the decision of the trial judge will not be disturbed on review unless from that which is preserved it is clear that it was erroneous.38 The trial court has adjudged Paul Michael competent to testify. We agree. A close and careful examination of the testimony of Paul Michael shows that at the time he testified, he could be deemed a child of above average intelligence, i.e., capable of giving responsive answers to the questions asked of him by the trial judge, as well as recalling events and relating them to such recollections. The initial hesitancy of Paul Michael to name his father as the author of the crime was sufficiently explained by the trial court as follows: The first time Paul Michael was presented as [a] witness, the only thing substantial he testified on was that his father boxed his mother in the mouth and tied her. On further questions, he refused to answer anymore. The Court noticed the reason for such adamant attitude of the witness. His father, the accused, was directly in his sight and whenever their eyes met, the child could speak no more. The second time the witness was presented, the private prosecutor covered the child from the accused. The Court likewise directed the accused to sit farther away thereby placing the accused out of the direct sight of the witness. As a result, the child was able to testify freely and extensively without hesitation.39 We defer to such observation and explanation. Indeed, there are certain matters that aid the trial court in assessing the credibility of a witness which are not available to the appellate court, such as emphasis, gesture, and the inflection of the voice of the witness. The trial court had the distinct opportunity to make such observations and to avail of such aids while Paul Michael was on the witness stand, 40 thusly, we find no reason to disregard the assessment made by the trial court.
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law on evidence The accused-appellant’s contention that Paul Michael’s testimony could have been influenced by the relatives of Gina, who were full of “unwavering anger, hatred, hostility, resentment, revenge,” more so since the child had been in their custody since after 22 November 1989, is unacceptable. The charge is nothing but unmitigated speculation as not a shred of evidence was offered in support thereof. Not even the rigorous cross-examination Paul Michael underwent dented the probative force of his testimony; on the contrary, it merely added strength thereto as it elicited nothing less than the boy’s adherence to truth. We realize how extremely painful it was for Paul Michael to reveal that it was his father who burned his mother. He knew that such a revelation could send his father to jail and thus brand him a son of a killer or a convict. If he did, nevertheless, it was to expose the truth and give justice to his mother who met an excruciatingly painful death. Verily, “from the mouths of children we get the truth.” 4 SEC. 6. Competency.— Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court. Now in this section 6 take note that the basic formula is still there that capacity of observation or the ability of the child to perceive, capacity recollection meaning the ability of the child to remember, and the capacity communication or the ability to communicate. But this time in section 6 there are more specific requirements of the ability to distinguish truth from falsehood and the ability to appreciate the duty to tell the truth in court. These are all taken from jurisprudence so there is really nothing added from doctrinal.
ADMINISTRATIVE MATTER NO. 004-7-SC By the way, this rule on examination of a child witness is administrative matter no. 004-7-SC promulgated by the SC on November 21, 2000 and which took effect on December 15, 2000. Let’s go to Section 1 of the rule: SECTION 1. Applicability of the Rule— Unless otherwise provided, this Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses. And in relation to this section 1 we have section 32 regarding the applicability of ordinary rules of court: SEC. 32. Applicability of ordinary rules.— The provisions of the Rules of Court on deposition, conditional examination of witnesses, and evidence shall be applied in a suppletory character. Therefore, the PRIMARY RULE to be applied in the cases child witness is the rule on the examination of a child witnesses and the rules of evidence shall only be applied suppletorily. What are the objectives of the rules? SEC. 2. Objectives.— The objectives of this Rule are to create and maintain an environment that will allow children to give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of truth.
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law on evidence OBJECTIVES: 1. Create and maintain an environment that will allow children to give reliable and complete evidence 2. Minimize trauma to children 3. Encourage children to testify in legal proceedings 4. facilitate the ascertainment of truth QUESTION: Is it not a fact in saying children will not lie is that correct? I don’t think so. So I don’t think that just because the witness is a child automatically the evidence or the testimony of the child would be automatically credible or reliable as found in section 2. That is why there is a process under the rules on the examination of child witnesses which would determine the criteria like the ability to distinguish between truth and falsehood and the ability to appreciate the duty of telling the truth. REMEMBER: we are also dealing here of victims, children who are victims of heinous crimes such as rape, physical abuse, excessive chastisement. So that….. THE RULE INCLUDES THE AVOIDANCE OF USE THE INVASIVE METHODS TO DETERMINE WON THE CHILD IS SEXUALLY ABUSED PEOPLE V. BARRING JANUARY 28, 2002 This Court is disturbed by the method of physical examination done on the seven-yearold victim. We noticed that in the examiner’s effort to show the existence of abuse, the examining physician inserted his smallest finger, as shown in the medico-legal report that the ‘external vaginal orifice admits tip of the examiner's finger.’ It bears to stress that this particular manner of establishing evidence – by determining the diameter/hymenal opening in rape cases – was a common practice in the past. With the passage of R.A. 7610, this Court has nonetheless allowed the utilization of the same kind of evidence in the prosecution of Child Abuse cases. In light however of radical medical developments and findings, specifically as to the determination of the existence of child sexual abuse, this Court deems it necessary to firmly adopt a more "child sensitive" approach in dealing with this specie or genre of crime. What is important at this point, and we do not hesitate to reiterate, is that forensic examination – inclusive of physical examination and forensic interview – of sexually assaulted children [adolescents included] must be conducted with maximum sensitivity to the young victim’s feelings of vulnerability and embarrassment. Great care must be observed in order to make the examination less stressful lest they be more traumatic to the victim than the very assault itself. The value of collecting evidence should always be weighed against the emotional cost of the procedure and examination of the child. And let me relate that to section 3 of the rule that the ruling of the SC which is how do you construe the rules on examination of the child witness: SEC. 3. Construction of the Rule.— This Rule shall be liberally construed to uphold the best interests of the child and to promote maximum accommodation of child witnesses without prejudice to the constitutional rights of the accused. While the RULE OF THUMB is as to the liberal construction of the rules to uphold the best interest of the child, an EXCEPTION is when a construction of the rules to favour the child would also violate the rights of the accused.
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law on evidence
EXAMPLE: Let us suppose the child was raped and because of the traumatic experience of the child she refuses to undergo a rape kit procedure means a physical examination of the body parts of the victim to get let us say a pubic hair samples through swabbing so that they can also get a semen sample discharge during the carnal knowledge. Now, let us suppose the child will not allow rape kit processes or vaginal swabbing kasi syempre traumatize ang bata. The accused said, that the only way that I can prove that I am not the one who rape the child is to show negative evidence that if that semen sample in the found in the child will not match with my own DNA then I am not guilty. Question: Does that violate the constitutional right of the accused? Naa ba ana na constitutional right sa accused? ANSWER: Of course the accused has the right to secure evidence for his own defense. But that is possible that there is that conflict between the constitutional right of the accused and the right of protection granted to child witnesses. And in that case, upon proper invocation that liberal interpretation will no longer favour the child witness but of course it is without prejudice to the constitutional rights of the accused. GENERAL RULE: liberal construction of the rules in favour of the child witness to uphold the best interest of the child ONLY EXCEPTION being is that construction liberally in favour of the child would also violate the rights of the accused. Now, let us go to section 4 regarding definitions: SEC. 4. Definitions.— (a) A “child witness” is any person who at the time of giving testimony is below the age of eighteen (18) years. In child abuse cases, a child includes one over eighteen (18) years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition. (b) “Child abuse” means physical, psychological, or sexual abuse, and criminal neglect as defined in Republic Act No. 7610 and other related laws. (c) “Facilitator” means a person appointed by the court to pose questions to a child. (d) “Record regarding a child” or “record” means any photograph, videotape, audiotape, film, handwriting, typewriting, printing, electronic recording, computer data or printout, or other memorialization, including any court document, pleading, or any copy or reproduction of any of the foregoing, that contains the name, description, address, school, or any other personal identifying information about a child or his family and that is produced or maintained by a public agency, private agency, or individual. (e) A “guardian ad litem” is a person appointed by the court where the case is pending for a child who is a victim of, accused of, or a witness to a crime to protect the best interests of the said child. (f) A “support person” is a person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support for him. (g) “Best interests of the child” means the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the child and most encouraging to his physical, psychological, and emotional development. It also means the least detrimental available alternative for safeguarding the growth and
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law on evidence development of the child. (h) “Developmental level” refers to the specific growth phase in which most individuals are expected to behave and function in relation to the advancement of their physical, socioemotional, cognitive, and moral abilities. (i)
“In-depth investigative interview” or “disclosure interview” is an inquiry or proceeding conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services for the purpose of determining whether child abuse has been committed.
(a) A “child witness” is any person who at the time of giving testimony is below the age of eighteen (18) years. In child abuse cases, a child includes one over eighteen (18) years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition. So, mental recantation is included, so the person maybe 35 yrs old but her mind is 13 yrs old and below he is still considered a child witness under this rule but only with respect to child abuse cases that is the important modifier there. Letter be tells you what are this cases of child abuse: (b) “Child abuse” means physical, psychological, or sexual abuse, and criminal neglect as defined in Republic Act No. 7610 and other related laws. Now, can you relate RA 9262? Definitely because it also applies to violence against children not only to violence against women, so you should refer this child abuse to the definitions under RA 9262 if applicable. (c) “Facilitator” means a person appointed by the court to pose questions to a child. We will go to that later kung unsa ng facilitator. (f) A “support person” is a person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support for him. (g) “Best interests of the child” means the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the child and most encouraging to his physical, psychological, and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child. Very nice definition of what best interest of the child means in so far as this rule is concern but again this definition is for the nons or only the sake of definition because what determines the best interest of the child cannot be define with particularity although there is already the standard and letter g tells you the minimum standard. (i) “In-depth investigative interview” or “disclosure interview” is an inquiry or proceeding conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services for the purpose of determining whether child abuse has been committed. You know what child abuse is something that goes on unrecorded majority of the cases of child abuse are unrecorded. Why? Halimbawa kung naa mang-rape na uyoan sa bata or let us say a wicked stepfather iya ba na ipakita sa tibuok kalibutan? Syempre dili it is a secret. Like the Bella Flores syndrome, Bella Flores is the stepmother who is cruel. So
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law on evidence Makita nalng ka ang bata full of bruises the ang bata dili muistorya so pwede gamiton ni in-depth interview or disclosure interview. Who are the members here mention in letter i? 1. 2. 3. 4.
members of the police, women-children desk, including also the DSWD and all others who have stake in the protection of children from violence.
SEC. 5. Guardian ad litem.— (a) The court may appoint a guardian ad litem for a child who is a victim of, accused of, or a witness to a crime to promote the best interests of the child. In making the appointment, the court shall consider the background of the guardian ad litem and his familiarity with the judicial process, social service programs, and child development, giving preference to the parents of the child, if qualified. The guardian ad litem may be a member of the Philippine Bar. A person who is a witness in any proceeding involving the child cannot be appointed as a guardian ad litem. (b) The guardian ad litem: (1) Shall attend all interviews, depositions, hearings, and trial proceedings in which a child participates; (2) Shall make recommendations to the court concerning the welfare of the child; (3) Shall have access to all reports, evaluations, and records necessary to effectively advocate for the child, except privileged communications; (4) Shall marshal and coordinate the delivery of resources and special services to the child; (5) Shall explain, in language understandable to the child, all legal proceedings, including police investigations, in which the child is involved; (6) Shall assist the child and his family in coping with the emotional effects of crime and subsequent criminal or non-criminal proceedings in which the child is involved; (7) May remain with the child while the child waits to testify; (8) May interview witnesses; and (9) May request additional examinations by medical or mental health professionals if there is a compelling need therefor. (c) The guardian ad litem shall be notified of all proceedings but shall not participate in the trial. However, he may file motions pursuant to sections 9, 10, 25, 26, 27 and 31(c). If the guardian ad litem is a lawyer, he may object during trial that questions asked of the child are not appropriate to his developmental level. (d) The guardian ad litem may communicate concerns regarding the child to the court through an officer of the court designated for that purpose. (e) The guardian ad litem shall not testify in any proceeding concerning any information, statement, or opinion received from the child in the course of serving as a guardian ad litem, unless the court finds it necessary to promote the best interests of the child. (f)
The guardian ad litem shall be presumed to have acted in good faith in compliance with his duties described in sub-section (b).
“The court may appoint a guardian ad litem for a child who is a victim of, accused of, or a witness to a crime to promote the best interests of the child. In making the appointment, the court shall consider the background of the guardian ad litem and his familiarity with the judicial process,
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law on evidence social service programs, and child development, giving preference to the parents of the child, if qualified.” So dili diay ka automatic na kung ikaw ang ginikanan dili ka automatic na guardian ad litem sa child witness or the accused child or the child victim naa lng preference. Why? Because this rule wala ni nagpaliba ning rule, it also understand the possible situation that the supposed guardian ad litem, the natural parent of the child, kana bitaw muconsente how many times I have heard ad happen like ang bata girape let us say the step father or the father himself, pagkabalo sa nanay walay gibuhat kasi mahadlok sa bana or mahadlok na kung ipakulong ang bana wala nay kaonon ang pamilya, or mahadlok ug gubot or samok. So the natural parent may not be the person who can protect the best interest of the child that is the reason why only preference is given not exclusive. The guardian ad litem may be a member of the Philippine Bar. REASON FOR THE RULE: Why is it that we now give another duty to the member of the Philippine Bar? Why do you have to say that the member of the Philippine Bar may be the guardian ad litem? Why there is a special mention of lawyers here, why not a doctor or an engineer, or director whatever to the exclusion of other professions? Because of section 5 c. What does section 5c provides: (c) The guardian ad litem shall be notified of all proceedings but shall not participate in the trial. However, he may file motions pursuant to sections 9, 10, 25, 26, 27 and 31(c). If the guardian ad litem is a lawyer, he may object during trial that questions asked of the child are not appropriate to his developmental level. These are the 2 related provisions regarding guardian ad litem being the member of the Philippine bar. (Section 4 and section 5 (c) ) To my mind the reason is still insufficient, so you mean to say that if the guardian ad litem is not a lawyer and the questions asked to the child are not appropriate to his developmental level that guardian ad litem cannot object? Diba so it is still not sufficient reasoning. Just remember that according to the rules but that guardian ad litem may be a member of the bar. Now this last sentence in letter c: he may object during trial that questions asked of the child are not appropriate to his developmental level”. Meaning to say that is the only objection during the trial? What about the interest of the witness to be spared to be detained longer than the interest of justice requires? or kana bitaw sa palabas na objection your honor the counsel is “badgering” the witness. You know what badgering is? Nagaphilosophized ka with the witness imuha ginaharass ang witness by the manner of questioning the witness. Is that the only ground for objection? It should not be only limited to because there are lots of rights of the witnesses and not only the rights of the child witnesses. EFFECT IF COURT FAILS TO APPOINT A GUARDIAN AD LITEM: it is a ground for administrative liability. OBEDENCIO V. MURILLO
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law on evidence [A.M. No. RTJ-03-1753. February 5, 2004] Licel was only 14 years old, definitely a minor, on May 22, 2001, when she was presented before respondent’s sala to affirm the execution of her affidavit of desistance. This being the case, said affidavit should have been executed with the concurrence of her parents. Licel could not validly give consent to an affidavit of desistance, for a minor is incompetent to execute such an instrument. Yet, notwithstanding the absence of her parents’ conformity to the affidavit of desistance and lack of notice to them or their lawyer of the scheduled hearing, respondent judge dismissed the criminal case. Truly, he should have exercised more prudence and caution instead of perfunctorily dismissing the case, considering the nature and gravity of the offense charged. At the very least, herein respondent should have appointed a guardian ad litem for Licel, to protect her welfare and interest, instead of hastily dismissing the rape case. The Rule on Examination of a Child Witness, [14] which took effect on December 15, 2000, governs the examination of child witnesses who are victims of, accused of, or witnesses to a crime. In the absence or incapacity of the parents to be the guardian, Section 5 (a) [15] of said rule provides that the court may appoint a guardian ad litem to promote the best interests of the child. This rule was already in effect when respondent judge dismissed the rape case on May 22, 2001. DUTIES OF GUARDIAN AD LITEM (b) The guardian ad litem: (1) Shall attend all interviews, depositions, hearings, and trial proceedings in which a child participates; NOTE: While it is the privilege of the guardian ad litem to be notified in all hearings, proceedings, HE IS NOT CONSIDERED A PARTY ENTITLED TO PARTICIPATE IN THE CASE.
However, pursuant to section 22, he may file motions such as those under Section 9, 10, 25, 26, 27 & 31(c): Section 9 – Is for the appointment of an interpreter. Section 10 – a motion may be filed for the appointment of a support person. Section 25 – a motion for an order that the testimony of the child be taken in a room outside the courtroom and be televised in the courtroom by live link television. murag skype that is live link. Example an TV dri unya kwarto ang bata ra ug iyang support person or kung kinsa ba to gi-allow sa court na ubanan ang bata. So ang bata naa didto muatubang ug camera Makita nya kung unsa sitwasyon sa courtroom as if naglingkod sya sa witness stand and then sa courtroom pud adunay TV na Makita pud ang gnabuhat sa bata. Now why is it important to file a motion for live link television? Because again you have to determine what would be the best interest of the child. Kung ang bata mahadlok sa lawyer or ma-intimidate ba. Why is it also important that in the courtroom makita pud kung unsa ginabuhat sa bata? This is to prevent coaching. Kay kung dili nimo mkita ang dagway sa bata sa courtroom, if there is only a one way link not a two way link, kc mkita sa bata ang gapangutana nya pero dli Makita ang bata sa courtroom, pwede nila ma-coach ang bata. Section 26 – a motion that screens, one-way mirrors, and other devices be placed in the courtroom in such a manner cannot see the accused in order to
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law on evidence prevent trauma. Section 27 – motion for an order that a deposition be taken on the testimony of the child and that it be recorded and preserved on video That’s an additional requirement presentation of a video tape because in depositions, as we learned in rule 23 of the RC under the modes of discovery, there is no ‘preservation of video’ there but only depositions. Section 31 (c) – to issue additional orders to protect the privacy of the child. (2) Shall make recommendations to the court concerning the welfare of the child; (3) Shall have access to all reports, evaluations, and records necessary to effectively advocate for the child, except privileged communications; (4) Shall marshal and coordinate the delivery of resources and special services to the child; (5) Shall explain, in language understandable to the child, all legal proceedings, including police investigations, in which the child is involved; (6) Shall assist the child and his family in coping with the emotional effects of crime and subsequent criminal or non-criminal proceedings in which the child is involved; (7) May remain with the child while the child waits to testify; (8) May interview witnesses; and (9) May request additional examinations by medical or mental health professionals if there is a compelling need therefore. (d) The guardian ad litem may communicate concerns regarding the child to the court through an officer of the court designated for that purpose. (e) The guardian ad litem shall not testify in any proceeding concerning any information, statement, or opinion received from the child in the course of serving as a guardian ad litem, unless the court finds it necessary to promote the best interests of the child. So letter e is a GUARDIANSHIP PRIVILEGE, privilege between a guardian and a ward. (f) The guardian ad litem shall be presumed to have acted in good faith in compliance with his duties described in sub-section (b). This is a presumption of regularity in the performance of the duties a guardian ad litem. SEC. 6. Competency— Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court. (a) Proof of necessity— A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination. (b) Burden of proof— To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence. (c) Persons allowed at competency examination.—Only the following are allowed to attend a competency examination: (1) The judge and necessary court personnel; (2) The counsel for the parties; (3) The guardian ad litem; (4) One or more support persons for the child; and (5) The defendant, unless the court determines that competence can be fully evaluated in his absence. (d) Conduct of examination.— Examination of a child as to his competence shall be
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law on evidence conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child. (e) Developmentally appropriate questions.— The questions asked at the competency examination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully. (f) Continuing duty to assess competence.— The court has the duty of continuously assessing the competence of the child throughout his testimony. (a) Proof of necessity.— A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination. So before you can ask for a competency examination you must present proof for the necessity of that examination. For example, what is your proof that the competency examination is required? What is the possible proof? May be the previous conduct of the child, nga ang bata wla capacity to tell the truth, or ang bata bakakon,etc. So you have to present proof. (b) Burden of proof— To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence. “He who alleges bears the burden of proof” So if you want to prove one thing, you the burden of proving it. Same thing here because of the presumption of competence; the burden of proof is on the person who challenges such competence. PEOPLE V. GREGORIO HERMOSA SEPTEMBER 7, 2001 We should not take Macuibelle’s testimony lightly simply because she was a mere child when she witnessed the incident and when she gave her testimony in court. There is no showing that her mental maturity rendered her incapable of testifying and of relating the incident truthfully. Indeed, the time when we degrade a child witness testimony is now passé. In the new Child Witness Rule,every child is presumed qualified to be a witness. To rebut this presumption, the burden of proof lies on the party challenging the child’s competence. Only when substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court will the court, motu proprio or on motion of a party, conduct a competency examination of a child (c) Persons allowed at competency examination.— Only the following are allowed to attend a competency examination: (1) The judge and necessary court personnel; Including the stenographer, the court interpreter ang uban meron nana kay mudagan ang trial maski wla ng mga court employees nga na ang importante lng ang stenographer and interpreter mao ran a kailangan ang uban excluded na sa competency examination (2) The counsel for the parties; (3) The guardian ad litem;
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law on evidence (4) One or more support persons for the child; and (5) The defendant, unless the court determines that competence can be fully evaluated in his absence. (d) Conduct of examination.— Examination of a child as to his competence shall be conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child. Sulat nimo ang imuha questions and then submit the questions to the judge, the judge may choose to ask or not to ask the questions sa bata, so meaning there is no direct questioning from a counsel direct to the child but ang judge ra ang pwede mangutana and mind you this is not being followed kay ang mga counsel man japon during competency examination, why I can say this that is not being followed? 1 st, I was there during competency examination and I am not a counsel to any party to a case. 2 nd counsel asking questions directly to the child when in fact he should be silent because he is not allowed to ask questions directly to the child. So meaning this is not strictly followed. Pwede pa itext nalng nimo ang questions sa judge? Pwede siguro wala man nakabutang dri na bawal magtext. (e) Developmentally appropriate questions.— The questions asked at the competency examination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully. This is with respect to competence examination lang. You should not be discussing about the merit of the case and the judge should not ask questions directly relating to the merits of the case bawal. (f) Continuing duty to assess competence.— The court has the duty of continuously assessing the competence of the child throughout his testimony. SEC. 7. Oath or affirmation.— Before testifying, a child shall take an oath or affirmation to tell the truth. PEOPLE V. ALMA BISDA JULY 17, 2003 GR NO. 140895 An oath is defined as an outward pledge, given by the person taking it that his attestation or promise is made under an immediate sense of his responsibility to God. The object of the rule is to affect the conscience of the witness and thus compel him to speak the truth, and also to lay him open to punishment for perjury in case he willfully falsifies. A witness must be sensible to the obligation of an oath before he can be permitted to testify. It is not, however, essential that he knows how he will be punished if he testify falsely. Under modem statutes, a person is not disqualified as a witness simply because he is unable to tell the nature of the oath administered to a witness. In order that one may be competent as a witness, it is not necessary that he has a definite knowledge of the difference between his duty to tell the truth after being sworn and before, or that he be able to state it, but it is necessary that he be conscious that there is a difference. It cannot be argued that simply because a child witness is not examined on the nature of the oath and the need for her to tell the whole truth, the competency of the witness and the truth of her testimony are impaired. If a party against whom a witness is presented believes that the witness is incompetent or is not aware of his obligation and
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law on evidence responsibility to tell the truth and the consequence of him testifying falsely, such party may pray for leave to conduct a voire dire examination on such witness to test his competency.[59] The court may motu proprio conduct the voir dire examination. In United States v. Buncad[ this Court held that when a child of tender age is presented as a witness, it is the duty of the judge to examine the child to determine his competency. In Republic v. Court of Appeals, this Court held that: [W]hen a witness is produced, it is a right and privilege accorded to the adverse party to object to his examination on the ground of incompetency to testify. If a party knows before trial that a witness is incompetent, objection must be made before trial that a witness is incompetent, objection must be made before he has given any testimony; if the incompetency appears on the trial, it must be interposed as soon as it becomes apparent.[62] The competency of a person to take the prescribed oath is a question for the trial court to decide.[63] If a party admits proof to be taken in a case without an oath, after the testimony has been acted upon by the court, and made the basis of a judgment, such party can no longer object to the admissibility of the said testimony. [64] He is estopped from raising the issue in the appellate court. This was the ruling of this Court in Republic v. Court of Appeals,[65] thus: Simply put, any objection to the admissibility of evidence should be made at the time such evidence is offered or as soon thereafter as the objection to its admissibility becomes apparent, otherwise the objection will be considered waived and such evidence will form part of the records of the case as competent and admissible evidence. The failure of petitioner to interpose a timely objection to the presentation of Divinaflor’s testimony results in the waiver of any objection to the admissibility thereof and he is therefore barred from raising said issue on appeal. In this case, Angela was six years old when she testified. [66] She took an oath to “tell the truth, the whole truth and nothing but the truth” before she testified on direct examination. There was nary a whimper of protest or objection on the part of the appellants to Angela’s competence as a witness and the prosecution’s failure to propound questions to determine whether Angela understood her obligation and responsibility of telling the truth respecting the matter of her testimony before the court. The appellants did not even bother requesting the trial court for leave to conduct a voir dire examination of Angela. After the prosecution terminated its direct examination, the appellants thereafter crossexamined Angela extensively and intensively on the matter of her testimony on direct examination. It was only in this Court that the appellants raised the matter for the first time, that there was failure on the part of the prosecution to examine Angela on the nature of her oath, and to ascertain whether she had the capacity to distinguish right from wrong. It is too late in the day for the appellants to raise the issue. The determination of the competence and capability of a child as a witness rests primarily with the trial judge.[67] The trial court correctly found Angela a competent witness and her testimony entitled to full probative weight. Any child regardless of age, can be a competent witness if she can perceive and perceiving, can make known to others, and that she is capable of relating truthfully facts for which she is examined. [68] In People v. Mendiola,[69] this Court found the six-year-old victim competent and her testimony credible. Also in Dulla v. Court of Appeals,[70] this Court gave credence to the testimony of a three-year-old victim. It has been the consistent ruling of the Court that the findings of facts of the trial court, its calibration of the testimonies of witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded by the appellate courts high respect if not conclusive effect absent
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law on evidence clear and convincing evidence that the trial court ignored, misconstrued, or misinterpreted cogent facts and circumstances which if considered warrants a reversal or modification of the outcome of the case. [71] In this case, the Court finds no basis to deviate from the findings and conclusions of the trial court on the competency of Angela, and the probative weight of her testimony. Appellants must come to grips with case law that testimonies of child victims are given full weight and credit. The testimony of children of sound mind is likewise to be more correct and truthful than that of older persons. [72] In People vs. Alba,[73] this Court ruled that children of sound mind are likely to be more observant of incidents which take place within their view than older persons, and their testimonies are likely more correct in detail than that of older persons. Angela was barely six years old when she testified. Considering her tender years, innocent and guileless, it is incredible that Angela would testify falsely that the appellants took her from the school through threats and detained her in the “dirty house” for five days. In People v. Dela Cruz,[74] this Court also ruled that ample margin of error and understanding should be accorded to young witnesses who, much more than adults, would be gripped with tension due to the novelty and the experience in testifying before the trial court. REMEMBER: VOIRE DIRE is not only limited to child witnesses. It is a preliminary examination of prospective witnesses under oath to determine their competence or suitability as witnesses. So, this is not limited only to child witnesses. Although in the Philippines it is for child witnesses. Question: asa gikan ning voire dire? A preliminary examination of people to determine their competence or suitability, is there a similar process here? Yes, and that would be the process of jury qualification. In the US if you are called for a jury duty, dili automatic na pagdawat nimo sa summons sa imuha na you would be named as a juror in this court you have to pack your bags because it would take a long time or dli buot pagpasabot na nasummonan ka as a juror na daun ka, the counsel and counsel may chose if they believe na kaning juror na ni bias he is not going to be part of the jury. Until such time that they will come up with a certain number of jurors whom both parties do not object to. PEOPLE V. MISCALA SEPTEMBER 27, 1991 The complainant's detailed and straightforward narration of how she had been raped bears earmarks of credibility. Even if the complainant's testimony is uncorroborated, it is enough to convict the accused. For the uncorroborated testimony of the complainant to suffice, her competence as a witness must be established in the trial court. xxx xxx xxx
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law on evidence The evidentiary rule is that in crimes against chastity, the testimony of the injured woman should not be received with precipitate credulity, and when the conviction depends at any vital point upon her uncorroborated testimony, it should not he accepted unless her sincerity and candor are free from suspicion. 16 In the case at bar, the records show that the young victim complainant-witness had been properly placed in voir dire. The trial judge questioned the witness and complainant victim before she gave her testimony on the bestial assault her person. Voir dire literally means to speak the truth, and denotes American jurisprudence, preliminary examination under oath of prospective jurors. The examination is conducted to determine the competency or qualifications of the witness in case it objected to. When the court subjects the witness to voir dire, the co reminds him or her about the consequences of the truth. While the court is satisfied that the influence of fear or hope has b ruled out, then the confession of the witness can be deem voluntary. In the case at bar, the requisites of voir dire have been met. COMMENT: So this a situation where in the process of voire dire the sole witness of the prosecution is deemed competent which led to the prosecution of the accused for the crime of rape. So, pwede diay maski isa r aka witness, if there is a doubt as to the competency of the witness go to voire dire is the voire dire is satisfied you have to convict if it is not satisfied you have no choice also but to convict because there is only one testimony the uncorroborated testimony of the victim. Now how is the examination of a child witness done? SEC. 8. Examination of a child witness.— The examination of a child witness presented in a hearing or any proceeding shall be done in open court. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. The party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow him to testify in the manner provided in this Rule. The examination of a child witness presented in a hearing or any proceeding shall be done in open court. EXCEPTIONS: 1. Unless of course it covered by the exceptions like which allows live link television, taking of deposition and so on. 2. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. This is taken in the rules of court which will go to later on how to examine the witness so it is given orally. Is there a possibility that a testimony is not done orally? YES, EITHER WHEN THE WITNESS IS INCAPACITATED TO SPEAK OR THE QUESTION CALLS FOR A DIFFERENT MANNER OF ANSWERING. For example you are ask, kng imu Makita tong akusado dri sa korte palihug tudlo sa iyaha. Now it calls for a different answer the answer here will be given in the means of gestures.
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law on evidence
2nd paragraph: The party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow him to testify in the manner provided in this Rule. So there are other modes of testimony. Then you have section 9 which deals for an interpreter of the child. When will the interpreter employed. SEC. 9. Interpreter for child.— (a) When a child does not understand the English or Filipino language or is unable to communicate in said languages due to his developmental level, fear, shyness, disability, or other similar reason, an interpreter whom the child can understand and who understands the child may be appointed by the court,motu proprio or upon motion, to interpret for the child. (b) If a witness or member of the family of the child is the only person who can serve as an interpreter for the child, he shall not be disqualified and may serve as the interpreter of the child. The interpreter, however, who is also a witness, shall testify ahead of the child. (c) An interpreter shall take an oath or affirmation to make a true and accurate interpretation. WHEN INTERPRETER IS NEEDED (a) When a child does not understand the English or Filipino language or is unable to communicate in said languages due to his developmental level, fear, shyness, disability, or other similar reason, an interpreter whom the child can understand and who understands the child may be appointed by the court,motu proprio or upon motion, to interpret for the child. Because you have to remember that there are certain times na ang development sa usa aka bata may not allow him to communicate freely and properly in the language that he is accustomed to. IF WITNESS OR MEMBER OF FAMILY IS THE ONLY PERSON WHO CAN BE THE INTERPRETER (b) If a witness or member of the family of the child is the only person who can serve as an interpreter for the child, he shall not be disqualified and may serve as the interpreter of the child. The interpreter, however, who is also a witness, shall testify ahead of the child. So, look at the innovation of the law here, there is a child witness who may not be able to communicate properly and only the member of the family can understand. But there is a danger that that member of the child’s family who will interpret for the child will probably fabricate the testimony of the chil kay sya ra gud kasabot. So, if he be so allowed, he should TESTIFY AHEAD OF THE HCIL. What is the PURPOSE why the interpreter who is the member of the child’s family will be presented ahead of the child witness? a. It is in letter (c) An interpreter shall take an oath or affirmation to make a true and accurate interpretation. b. And also if you are the opposing counsel you need to cross examine that interpreter diba? You need to know if she is the only person who can really interpret the child because it is possible that other people can interpret the child. However, in this case,
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law on evidence you are limited to one person so it may be prone to fabrication. This is why you need to cross-examine. Then you have section 10 which is another innovation in the Rules. SEC. 10. Facilitator to pose questions to child.— (a) The court may, motu proprio or upon motion, appoint a facilitator if it determines that the child is unable to understand or respond to questions asked. The facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent, or relative. (b) If the court appoints a facilitator, the respective counsels for the parties shall pose questions to the child only through the facilitator. The questions shall either be in the words used by counsel or, if the child is not likely to understand the same, in words that are comprehensible to the child and which convey the meaning intended by counsel. (c) The facilitator shall take an oath or affirmation to pose questions to the child according to the meaning intended by counsel. (a) The court may, motu proprio or upon motion, appoint a facilitator if it determines that the child is unable to understand or respond to questions asked. The facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent, or relative. So in letter a, the choices are broader for facilitator. (b) If the court appoints a facilitator, the respective counsels for the parties shall pose questions to the child only through the facilitator. The questions shall either be in the words used by counsel or, if the child is not likely to understand the same, in words that are comprehensible to the child and which convey the meaning intended by counsel. So in letter b, kung naa kay pangutana ipaagi sa sa facilitator and the facilitator will do what he is appointed to do and that is to facilitate because that is what the name implies to facilitate. You are between sa is aka tao na mangutana and sa usa aka bata na mutubag because of the inability of the child to respond properly to the question that was asked. How should the facilitator ask questions? The questions shall either be in the words used by counsel or, if the child is not likely to understand the same, in words that are comprehensible to the child and which convey the meaning intended by counsel. So here there is a similarity between an interpreter and facilitator their duty is to make the child understand and to tell the court what the child is saying. (c) The facilitator shall take an oath or affirmation to pose questions to the child according to the meaning intended by counsel. So that is the similarity between the interpreter and the facilitator. QUESTION: What makes an interpreter different from facilitator when in fact they performed actually the same functions?
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law on evidence The RULE is to make the child understand the question being asked and make the court understand the answer to the question being asked. DISTINCTION BETWEEN INTERPRETER AND FACILITATOR DIFFERENCE When needed
Qualification
Duty
INTERPRETER When the child does not understand the language or is unable to communicate in such languages English and Philippines dialects
Purely linguistic
to make a true and accurate interpretation
FACILITATOR needed when the child is unable to understand or respond to the question asked by the judge. Meaning, here there is really no problem with communication, there is really no problem as to WON the child understands English or Filipino; The problem is that despite the fact a ang bata mkasabot sa mga languages nga na he does not know how to answer that. See? The questions themselves are the subject not the language in which the questions are couched. Not linguistic but special qualifications ; it can either be because of relationship (mother), training (such as in the case of social workers) or expertise (i.e. child psychologists) to pose a questions to the child according to the meaning intended by counsel
ILLUSTRATION OF INTERPRETER’S DUTY: Unsa ba ning process of interpretation, how does this happen? Kana ba ang imuha witness, I mean ordinary witness (we are not talking of a child witness anymore the witness here in this example would be of age) but the problem with most witnesses are they are not really expected to understand English language. Unsa mahitabo ana? Counsel will ask questions like COUNSEL: “where were you in that night in question at 9PM”. INTERPRETER: Diin ka katong nga nahitbo ang krimen? (Is it a literal translation? It is not, because it is very difficult without loss of time to make a very accurate word for word translation and it could be that the literal translation would be really wrong. WITNESS: Naa ko sa balay INTERPRETER: I’m at home your honor. (So that is how it will interpret)
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law on evidence But in actual practice, if you look in the transcript of the stenographic notes it was already translated into English. So you have to be very careful in this type of cases because there is a possibility na mali ang translation sa stenographic notes so you read the stenographic notes because for all you know testimony when translated actually professes guilt despite the fact it was intended to mean innocence so you have to really inspect. Now, here is another innovation and the 3rd specie of person under the rule on examination of child witnesses would be SUPPORT PERSONS. SEC. 11. Support persons.— (a) A child testifying at a judicial proceeding or making a deposition shall have the right to be accompanied by one or two persons of his own choosing to provide him emotional support. (1) Both support persons shall remain within the view of the child during his testimony. (2) One of the support persons may accompany the child to the witness stand, provided the support person does not completely obscure the child from the view of the opposing party, judge, or hearing officer. (3) The court may allow the support person to hold the hand of the child or take other appropriate steps to provide emotional support to the child in the course of the proceedings. (4) The court shall instruct the support persons not to prompt, sway, or influence the child during his testimony. (b) If the support person chosen by the child is also a witness, the court may disapprove the choice if it is sufficiently established that the attendance of the support person during the testimony of the child would pose a substantial risk of influencing or affecting the content of the testimony of the child. If the support person who is also a witness is allowed by the court, his testimony shall be presented ahead of the testimony of the child. (1) Both support persons shall remain within the view of the child during his testimony. Ordinarily bawal ni, kana bitaw your honor my witness is of legal aid wishes the support of the support persons it could be allowed because it is not only child witnesses who needs the support of the support persons there are certain witnesses how cannot testify unless there are certain person who would accompany him/her. This is usually true to female witnesses usually there husband, it is either maulaw or mahadlok. (2) One of the support persons may accompany the child to the witness stand, provided the support person does not completely obscure the child from the view of the opposing party, judge, or hearing officer. Remember the importance of why the testimony is made in the open court because the judge as well as the parties must be able to observe of what is known as demeanor evidence. What is demeanor evidence? Katong pagtestify nya unsa man sya was the witness to answer the question or was the witness had to think for a long time before he/she answers the question, was he invasive, was he sweating at the time or did the witness cries when was presented this are demeanor evidence. The demeanor evidence is very important for the judge because again when the judge decides the case he will look at the TSN so that he will remember the testimony. So how does the court will know demeanor evidence? Usually the court will take notes while the witness is testifying regarding the demeanor of the witness. (4) The court shall instruct the support persons not to prompt, sway, or influence the child during his testimony. The support person is just there to provide emotional support not to coach the witness.
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law on evidence (c) If the support person chosen by the child is also a witness, the court may disapprove the choice if it is sufficiently established that the attendance of the support person during the testimony of the child would pose a substantial risk of influencing or affecting the content of the testimony of the child. EXCLUSION OF WITNESSES This is similar to ordinary rules, there is what we called exclusion of witnesses. If you are the intended witness and there are also other witnesses present in court you can actually move the exclusion of these witnesses. Meaning, at the time na ginahear pa ang kaso or gnadirect examination ang witness, all other witness should not be able to hear so pagawason na sila sa korte because the court may become paranoid that basig unsa iingon atong witness na ipresent na mao sad iingon sa uban so mag-collusion na ilang testimony karon or mahibal-an na nila sa pikas counsel kung gi-unsa pagexamine sa pikas counsel ang witness. But to my mind kaning exclusion, wala ni sya effect, does it stop me when my witness is excluded to confer with witnesses after the trial? No. I can even ask for a copy of the stenographic notes. I actually apply this rule on exclusion to one of my cases, when my client will testify as to sensitive matter and she said that atty. maulaw man ko mutestify daghan man tao, so I move for the exclusion not only of the other witnesses but everybody but the other lawyers stayed because anyway the lawyers are not tsismoso . Really? So that what happens? so I was able to apply that. (c) If the support person who is also a witness is allowed by the court, his testimony shall be presented ahead of the testimony of the child. So same rational with respect to the interpreter who will be examine ahead of the child witness. So that he can be cross examine so the credibility of the support person could also be tested. And in fact whatever the testimony of the support person basin madisqualify sya as a support person. SEC. 12. Waiting area for child witnesses.— The courts are encouraged to provide a waiting area for children that is separate from waiting areas used by other persons. The waiting area for children should be furnished so as to make a child comfortable. This is merely encouraged, because this is an added expense. What the law really says that would be a play area na mgdula2x ang bata or take a nap so similar to nursery. What is the possible comfort place in the court? It could be the chamber of the judge, the child is alone can rest and take a nap. SEC. 13. Courtroom environment.— To create a more comfortable environment for the child, the court may, in its discretion, direct and supervise the location, movement and deportment of all persons in the courtroom including the parties, their counsel, child, witnesses, support persons, guardian ad litem, facilitator, and court personnel. The child may be allowed to testify from a place other than the witness chair. The witness chair or other place from which the child testifies may be turned to facilitate his testimony but the opposing party and his counsel must have a frontal or profile view of the child during the testimony of the child. The witness chair or other place from which the child testifies may also be rearranged to allow the child to see the opposing party and his counsel, if he chooses to look at them, without turning his body or leaving the witness stand. The judge need not wear his judicial robe. Nothing in this section or any other provision of law, except official in-court identification provisions, shall be construed to require a child to look at the accused. Accommodations for the child under this section need not be supported by a finding of trauma to
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law on evidence the child. SEC. 14. Testimony during appropriate hours.— The court may order that the testimony of the child should be taken during a time of day when the child is well-rested. When is a child considered to be well rested? In the morning bag-o lang mata or inig kahapon when children is supposed to be taking naps; so the best time for the child to testify kana bitaw nga well rested jud ang bata and that would be after taking the nap in the afternoon; at least by my experience ha. In the morning saputon usually ang bata so this should be better defined the SC so that the child would be in proper disposition in giving testimony. SEC. 15. Recess during testimony.— The child may be allowed reasonable periods of relief while undergoing direct, cross, re-direct, and re-cross examinations as often as necessary depending on his developmental level. So again how the law is understanding; Everything that can be provided the child and to facilitate the testimony is given. SEC. 16. Testimonial aids.— The court shall permit a child to use dolls, anatomically-correct dolls, puppets, drawings, mannequins, or any other appropriate demonstrative device to assist him in his testimony. For example the child is victimized by rape, so the question may be would like asa man ka gihilabtan itudlo sa parts sa doll nga ni but of course the doll must be anatomically correct. Now I have a problem with the last phrase “any other appropriate demonstrative device to assist him in his testimony.” Unsa muask ka na unsa iya gitusok sa imu ing-ani bah? dba? So the law should be properly delineated bah kung unsa ang appropriate device. SEC. 17. Emotional security item.— While testifying, a child shall be allowed to have an item of his own choosing such as a blanket, toy, or doll. In psychology, usually the toy is the favourite toy, ang blanket man gud is a device use to hide so possible ang bata kana bitaw tungod sa kahadlok nya mutago pro pwede moproceed iyang testimony if there is no objection, so pwede xa mgtago in the meantime. So what about toy? Usually favourite toy ni xa, because in evokes happy memories of a child. What about the doll? Because it is the most common toy ang most readily accessible, ing-ani ha tanan bata whether datu man or pobre aduna jud manika mgvary lang kung unsa kamahal. EFFECT OF BLATANT INSENSIBILTY TO A CHILD VICTIM: the judge can be subject to an administrative liability GENIL V. JUDGE RIVERA JANUARY 23, 2006 Respondent judge displayed blatant insensitivity to the child victim. He allowed the defense counsel to cross-examine the child witness and her mother which caused them extreme humiliation and embarrassment. xxx Parties cannot be subjected to direct examination or cross-examination. Questions or issues that may arise during the investigation should be addressed to the investigating judge who should propound the same to the party concerned.
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law on evidence
Noteworthy is that the Rule on Examination of a Child Witness (A.M. No. 004-07-SC 21 November 2000) does not permit a defense counsel to even approach a child who is testifying if it appears that the child is fearful of or intimidated by the counsel. xxx Neither does the Rule require a manifestation from the child or her mother to exclude the public from the hearing. The court may motu proprio exclude the public from the courtroom to protect the right to privacy of the child; if requiring the child to testify in open court would cause psychological harm to him; if it would hinder the ascertainment of truth or result in his inability to effectively communicate due to embarrassment, fear or timidity; and if the evidence to be produced is of such character as to be offensive to decency or public morals. SEC. 19. Mode of questioning.— The court shall exercise control over the questioning of children so as to (1) facilitate the ascertainment of the truth, (2) ensure that questions are stated in a form appropriate to the developmental level of the child, (3) protect children from harassment or undue embarrassment, and (4) avoid waste of time. The court may allow the child witness to testify in a narrative form. In usual evidentiary procedure you cannot be allowed to testify in a narrative form, in other words a question must be ask would be ask which would elicit as a general rule would be one fact, like where were you in the night in question? What are you doing then? Something like that, so one question answered by specific fact. That is why it is also not allowed for counsel to ask a leading question or question which suggest to the witness the answer already, like is it not a fact that you were cooking at the time, so that is leading. The question should be who, why, where, how. HYPOTHETICAL SITUATION: let us say the question of counsel is what did you do yesterday? Well. I woke up I peed, I brush my teeth then after breakfast I wash my teeth again then I have to work, that is a narrative form one question could elicit a lot of facts that is not allowed but with respect to a child witness that is allowed the opposing counsel cannot do anything about it. GENERAL RULE is the witness cannot testify in the narrative form, which is the general rule-- one question one fact; EXCEPTIONS: 1. Child witness. 2. Chief justice corona. That is why I said na unsa ni xa child witness? He is a CJ in the 1st place he know this he should not be allowed to testify in a narrative form. He was presented as a witness not to deliver a privilege testimony. Tanawa unsa nahitabo? SEC. 20. Leading questions.— The court may allow leading questions in all stages of examination of a child if the same will further the interests of justice. Again general rule leading questions subject to exception. Leading question like it can be answered by yes or no. As part of the exception in the ordinary rules of evidence, leading questions could be ask in the cross-examination, ok lang na xa kasi you are just testing the credibility and that is how usually debating skills will help you. But with respect to children pwede ang leading questions sa direct, re-direct, cross, or re-cross. In ordinary procedure it is only allowed during cross and re-cross. CASES PEOPLE VS. PEREZ FEBRUARY 5, 2003
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law on evidence Appellant contends that his identification in open court by Mayia was highly irregular. Appellant points out that the prosecutor had already identified him as the man wearing an orange t-shirt when the prosecutor asked Mayia to identify her alleged rapist. Appellant stresses that when Mayia identified him in open court, she referred to him as a man named “Johnny” and did not give any description or any identifying mark. Moreover, appellant claims he was alone in the cell when Mayia identified him after the police arrested him. Appellant bewails that the identification was not done with the usual police line-up. Appellant’s contention is untenable. As a rule, leading questions are not allowed. However, the rules provide for exceptions when the witness is a child of tender years [13] as it is usually difficult for such child to state facts without prompting or suggestion. [14] Leading questions are necessary to coax the truth out of their reluctant lips. [15] In the case at bar, the trial court was justified in allowing leading questions to Mayia as she was evidently young and unlettered, making the recall of events difficult, if not uncertain. [16] As explained in People v. Rodito Dagamos:[17] “The trend in procedural law is to give wide latitude to the courts in exercising control over the questioning of a child witness. The reasons are spelled out in our Rule on Examination of a Child Witness, which took effect on December 15, 2000, namely, (1) to facilitate the ascertainment of the truth, (2) to ensure that questions are stated in a form appropriate to the developmental level of the child, (3) to protect children from harassment or undue embarrassment, and (4) avoid waste of time. Leading questions in all stages of examination of a child are allowed if the same will further the interests of justice. The Court has repeatedly stated that it is highly inconceivable for a child of tender age, inexperienced in the ways of the world, to fabricate a charge of defloration, undergo a medical examination of her private part, subject herself to public trial, and tarnish her family’s honor and reputation, unless she was motivated by a strong desire to seek justice for the wrong committed against her. PEOPLE VS. SANTOS SEPTEMBER 8, 2006. The trend in procedural law is to give a wide latitude to the courts in exercising control over the questioning of a child witness. 36 Under Sections 19 to 21 of the Rules on Examination of a Child Witness,37 child witnesses may testify in a narrative form and leading questions may be allowed by the trial court in all stages of the examination if the same will further the interest of justice. 38 It must be borne in mind that the offended party in this case is a 6-year old minor who was barely five when she was sexually assaulted. As a child of such tender years not yet exposed to the ways of the world, she could not have fully understood the enormity of the bestial act committed on her person. Indeed – Studies show that children, particularly very young children, make the "perfect victims." They naturally follow the authority of adults as the socialization process teaches children that adults are to be respected. The child's age and developmental level will govern how much she comprehends about the abuse and therefore how much it affects her. If the child is too young to understand what has happened to her, the effects will be minimized because she has no comprehension of the consequences. Certainly, children have more problems in providing accounts of events because they do not understand everything they experience. They do not have enough life experiences from which to draw upon in making sense of what they see, hear, taste, smell and feel. Moreover, they have a limited vocabulary…. With her limited
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law on evidence comprehension, the child could not have a perfect way of relating that she had been sexually abused.39 (Emphasis and italics supplied) The record discloses that the questions propounded by the judge were intended to elicit the truth from the child witness. This perceived undue inquisitiveness of the judge did not unduly harm the substantial rights of the appellant. In fact, it is only to be expected from the judge who, with full consciousness of his responsibilities could not, and should not, easily be satisfied with incompleteness and obscurities in the testimonies of the witness. SEC. 21. Objections to questions.— Objections to questions should be couched in a manner so as not to mislead, confuse, frighten, or intimidate the child. SEC. 22. Corroboration.— Corroboration shall not be required of a testimony of a child. His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and non-criminal cases. BAR QUESTIONS Competency of a Child Witness Q: May a person over 18 years old be sometimes considered as a child? A: sometimes, he may. In child abuse cases, a child includes one over 18 years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition (Rule on Examination of a Child Witness). Bar 2005 Q: When may the trial court order that the testimony of a child be taken by live-link television? A: The court may order that the testimony of the child be taken by live-link tv if there is a likelihood that the child would suffer trauma from testifying the presence of the accused, his counsel or the prosecutor as the case may be. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child (Examination of a child witness). SEC. 23. Disqualification by reason of death or insanity of adverse party. – Parties or assignors of parties to a case, or persons in whose behalf a case if prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind.
This is the DEAD MAN’S STATUTE or sometimes called the “SURVIVOR’S DISQUALIFICATION RULE”. This rule applies ONLY to a civil case or a special proceeding and NOT in a criminal case because in all probability, if it is the adverse party or the accused that dies, in whom the claim is demandable, of course, it carries with it the extinction of criminal liability. In the same manner that if a person is insane, he cannot also be fit to undergo criminal proceedings. In fact, there are provisions that would say that it will be suspend. The “Dead Man’s Statute” provides that if one party to the alleged transaction is precluded from testifying by death, insanity, or other mental disabilities, the surviving party is not entitled to the undue advantage of giving his own uncontradicted and unexplained account of the transaction.[9] But before this rule can be successfully invoked to bar the introduction of testimonial evidence, it is necessary that:
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law on evidence “1. The witness is a party or assignor of a party to a case or persons in whose behalf a case is prosecuted. 2. The action is against an executor or administrator or other representative of a deceased person or a person of unsound mind; 3. The subject-matter of the action is a claim or demand against the estate of such deceased person or against person of unsound mind; 4. His testimony refers to any matter of fact which occurred before the death of such deceased person or before such person became of unsound mind.” The problem is section 23 is how it is worded. We need to properly understand this one. CASE: Mr. D approaches Mr. C to borrow P100, 000 to be paid next year. Mr. C gives Mr. D the amount. Mr. C did not require Mr. D to execute a promissory note. A day before the agreed date of payment, Mr. D died. Mr. C went to the executor of the estate of Mr. D and claims the payment of the debt. Question: if there was no promissory note that was executed, how then can you verify that there was a debt or a claim that is valid? Answer: in relation to section 23, article 130 when death has already closed the lips of a deceased person who may or may not be obligated against the survivor or the person who survived (that’s why you call it a survivorship disqualification rule), you cannot testify as to any matter of fact occurring before or prior to the death. Therefore, in this case, Mr. C is incompetent to testify as to the transaction he had with Mr. D. PURPOSE OF THE RULE The object and purpose of the rule is to guard against the temptation to give false testimony in regard of the transaction in question on the part of the surviving party, and further to put the two parties to a suit upon terms of equality in regard to the opportunity to giving testimony. If one party to the alleged transaction is precluded from testifying by death, insanity, or other mental disabilities, the other party is not entitled to the undue advantage of giving his own uncontradicted and unexplained account of the transaction. (GONI V. CA) It is designed to close the lips of the party plaintiff when death has closed the lips of the party defendant, in order to remove from the surviving party the temptation to falsehood and the possibility of fictitious claims against the deceased. (ICARD V. MARASIGAN) HOW TO APPLY THE RULE Will it always revolve around the facts of the problem I told you? Not necessarily; for example, the person may not be the defendant but a privy, heir or an assignee of the defendant or the other party may not be the executor or administrator but may be the heir of the deceased person or the guardian of the insane person and the claims may be different as well. Therefore, we need to look at certain points of inquiry before we look at how to apply the rule. 1. KNOW THE PARTIES INVOLVED know who are the parties involved so that you would know whether the SDR will apply to the particular situation and know who the plaintiff or defendant is. the plaintiff is th person who has the claim against the estate of the decedent or the person of the unsound mind. In other words, he is the SURVIVOR (xa ang buhi!) The defendant cannot be the deceased because he is already dead! The defendant here is the executor, administrator or representative of the deceased or person of the unsound mind.
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law on evidence
Remember: THE RULE WILL NOT APPLY WHERE THE EXECUTOR OR ADMINISTRATOR IS THE PLAINTIFF AS REPRESENTATIVE OF THE DECEASED OR PERSON OF UNSOUND MIND. So it has to be a case filed by the SURVIVOR against the executor or administrator. Therefore the SDR will not apply if the plaintiff is the estate itself represented by the executor or administrator. The plaintiff has to be the survivor and NOT the executor or administrator or representative. Example: If the executor or administrator of the deceased sues to recover a debt that is claimable by the estate, the rule DOES NOT apply. 2. DETERMINE THE NATURE OF THE CASE clearly, rule 130 section 23 provides that the case should be UPON A CLAIM AGAINST THE ESTATE OF THE DECEASED PERSON or PERSON OF UNSOUND MIND. Therefore, the RULE DOES NOT APPLY on the ff. cases: a. the suit is brought NOT upon the estate and not upon a claim against the estate; Example: A is the elder person. B is his gardener. In his drunkenness, A told the gardener that B is his son. A died. B now thinks that if he is the son, he is entitled to inheritance. So B now claims against the estate. Is it covered? ADMISSION OF PARTNERNITY? The cases would tell you that what are covered are MONETARY CLAIMS against the estate. b. When the action is brought not against the estate or is prosecuted BY the estate. Knowing the parties and type of action involved, what is the next action? 3. KNOW THE PARTIES WHO ARE PROHIBITED TO TESTIFY The persons disallowed from testifying ar the parties themselves, assignors of parties to a case or a person in whose behalf a case is prosecuted. The representatives of the plaintiffs are also NOT allowed to testify in the case. THE RIGHT TO OBJECT TO TESTIMONY AS IMPROPER UNDER THE DEAD MAN’S STATUTE BELONGS SOLELY TO THE REPRESETNATIVE OF THE DECEASED OR THE PERSON OF UNSOUND MIND. CASE: Debtor died. Creditor now claims from the estate. We know that under the DMS, the creditor himself cannot testify. His lips are closed. What he does is to call the witness stand his secretary, the secretary of ht creditor who witnessed there was a transaction. Can the secretary testify? Will that not be in violation of the DMS? Answer: YES. THE DMS DOES NOT APPLY TO THE SECRETARY even if the latter is the representative of ht creditor. He is not the creditor, only an employee or a witness to the transaction. CASE: Debtor is dead. Creditor cannot testify as to his claim against the debtor’s estate. But what if the creditor take the witness stand as to something else other than his own claim against the deceased person? In other words, to what testimony does the rule specially apply? Can you bar a witness from taking the witness stand all together based on the DMS simply because he is a creditor and therefore his lips are sealed? Answer: NO. THE DISQUALFICATON ONLY REFERS TO THE CLAIM ITSELF AND NOT TO OTHER MATTERS. For example, if he testifies to the cause of death of the deceased person. He can testify for as long as those matters do not relate to the claim
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law on evidence itself. So therefore, during the cross-examination , if the testimony now refers to the claim, that is the time where you can object. SURVIVORSHIP DISQUALIFICATION RULE RAISES LEGITIMATE QUESTIONS ON THE JUSTNESS OF THE RULE in trying to avoid the rights and claims against the estate, it ignores the rights of persons with legitimate claims. It cannot be a hard and fast rule and therefore, the rule must be subject to quite several exceptions. EXCEPTIONS TO THE SURVIVOR’S DISQUALIFICATION RULE: 1) WHEN THE PLAINTIFF IS THE EXECUTOR, ADMINISTRATOR OR LEGAL REPRESENTATIVE OF THE DECEASED, OR THE PERSON OF UNSOUND MIND, THE DEFENDANT OR DEFENDANTS ARE FREE TO TESTIFY AGAINST THE PLAINTIFF EVEN IF IT RELATES TO FACTS OCCURRING PRIOR TO THE DEATH. The testimony as to the claim of the creditor will actually not be __. (Tongco v. Vianzon, 50 Phil. 698 Question: ni-file ang estate ug case agians the creditor sayng that creditor is also a debtor fo th estate. The creditor now files a counterclaim, a monetary claim against the deceased. Will that counterclaim be allowed? Answer: IT IS ALLOWED. Determine who the original plaintiff is. If the one with original claim is the one who has a claim against the deceased person, meaning, if the original plaintiff is the executor or the administrator on behalf of the estate, the rule will NEVER apply, even if as a result fo the iflin o fthe case, there is a counterclaim that is supposed to be prohibited under the dead man’s state. IMPORTANT PROVISON! ) SUNGA CHAN V. CHUA [G.R. No. 143340. August 15, 2001] Two reasons forestall the application of the “Dead Man’s Statute” to this case. First, petitioners filed a compulsory counterclaim [11] against respondent in their answer before the trial court, and with the filing of their counterclaim, petitioners themselves effectively removed this case from the ambit of the “Dead Man’s Statute”.[12] Well entrenched is the rule that when it is the executor or administrator or representatives of the estate that sets up the counterclaim, the plaintiff, herein respondent, may testify to occurrences before the death of the deceased to defeat the counterclaim. [13] Moreover, as defendant in the counterclaim, respondent is not disqualified from testifying as to matters of fact occurring before the death of the deceased, said action not having been brought against but by the estate or representatives of the deceased. [14] Second, the testimony of Josephine is not covered by the “Dead Man’s Statute” for the simple reason that she is not “a party or assignor of a party to a case or persons in whose behalf a case is prosecuted”. Records show that respondent offered the testimony of Josephine to establish the existence of the partnership between respondent and Jacinto. Petitioners’ insistence that Josephine is the alter ego of respondent does not make her an assignor because the term “assignor” of a party means “assignor of a cause of action which has arisen, and not the assignor of a right assigned before any cause of action has arisen.”[15] Plainly then, Josephine is merely a witness of respondent, the latter being the party plaintiff.
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law on evidence 2) ORDINARY WITNESSES, WHO ARE NOT THE PLAINTIFF, ASSIGNOR OF PLAINTIFF OR PERSON IN WHOSE BEHALF THE CASE IS PROSECUTED MAY TESTIFY. (Francia v. Hipolito, 93 Phil. 968) What is an ordinary witness? A witness to the transaction; illustration: A entered into a contract with B. b died but C was able to see the contract taking place. In fact, he has knowledge of the transaction. Of course, C is not barred from testifying. REMEMBER: the Dead man’s statute does not operate to close the mind of a witness as to any matter of fact of which he has knowledge in any other way through his personal dealings with the deceased person or communication made by the deceased to the witness. For example, the witness with whom the deceased told about the transaction is ALLOWED to testify. In evidence you are reminded of one specific principle: Adminissiblity is not equivalent to credibility. So admissible ang testimony ng witness but will the court believe it? That is another thing. Here is an interesting case… SANSON V. CA FACTS: sanson and celedonia are siblings and each filed a claim against the estate of the creditor Juan Sy alleging that the deceased owed them a sum of money. During the hearing of the claims against the estate, Sanson, Celedonia, and Jade Montinola, wife of claimant Eduardo Montinola, Jr., testified on the transactions that gave rise thereto, over the objection of the administratrix who invoked Section 23, Rule 130 of the Revised Rules of Court otherwise known as the Dead Man’s Statute What happened was, sanson testified as witness to the transaction of her sister and the deceased; celedonia testified to the transaction of the deceased and bother sanson. The petitioners argue that the testimonies of Sanson and Celedonia as witnesses to each other’s claim against the deceased are not covered by the Dead Man’s Statute; [28] besides, the administratrix waived the application of the law when she cross-examined them. The administratrix, on the other hand, cites the ruling of the Court of Appeals in its decision on review, the pertinent portion of which reads: The more logical interpretation is to prohibit parties to a case, with like interest, from testifying in each other’s favor as to acts occurring prior to the death of the deceased. Since the law disqualifies parties to a case or assignors to a case without distinguishing between testimony in his own behalf and that in behalf of others, he should be disqualified from testifying for his coparties. The law speaks of “parties or assignors of parties to a case.” Apparently, the testimonies of Sanson and Saquin on each other’s behalf, as co-parties to the same case, falls under the prohibition. HELD: Sanson’s and Celedonia’s claims against the same estate arose from separate transactions. Sanson is a third party with respect to Celedonia’s claim. And Celedonia is a third party with respect to Sanson’s claim. One is not thus disqualified to testify on the other’s transaction. In any event, what the Dead Man’s Statute proscribes is the admission of testimonial evidence upon a claim which arose before the death of the deceased. The incompetency is confined to the giving of testimony.[29] Since the
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law on evidence separate claims of Sanson and Celedonia are supported by checksdocumentary evidence, their claims can be prosecuted on the bases of said checks. SUMMARY: 1. Pwede ang secretary if he witnesses the trasanciton 2. Pwede ang ordinary witness even if stranger or even if mag-igsuon WHAT’S THE RULE THEN? For as long as there is a witness, the dead man’s statute does NOT apply; for as long as such witness is NOT the plaintiff, the DMS will not apply. In other words, dead man’s statute ONLY applies to UNWITNESSED TRANSACTIONS. Basta pag naay witness testifying as to his own perception as to facts which occurred, pwede. 3) WHEN THE PLAINTIFF IS A CORPORATION, THE OFFICERS OR STOCKHOLDERS THEREOF ARE NOT DISQUALIFIED. (Lichauco v. Atlantic Gulf, et c., 84 Phil. 330) LICHAUCO V. ATLANTIC GULF 84 PHIL 330 The question raised by the first assignment of error is whether or not the officers of a corporation which is a party to an action against an executor or administrator of a deceased person are disqualified from testifying as to any matter of fact occurring before the death of such deceased person, HELD: THE RULE APPLIES ONLY TO NATURAL PERSONS. A corporation may be conceded to be a person, but the concession does not help appellant. To hold that the statute disqualifies all persons from testifying who are officers or stockholders of a corporation would be equivalent to materially amending the statute by judicial interpretation. Plainly the law disqualifies only "parties or assignors of parties," and does not apply to persons who are merely employed by such parties or assignors of parties. The rule disqualifies only parties or assignors of parties, we are constrained to hold that the officers and/or stockholders of a corporation are not disqualified from testifying, for or against the corporation which is a party to an action upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person. 4) WHEN THERE IS AN IMPUTATION OF FRAUD AGAINST THE DECEASED, THE PLAINTIFF IS NOT BARRED FROM TESTIFYING TO SUCH FRAUD. (Go Chi Gun v. Co Cho, 96 Phil. 622) 5) WHEN THE DEFENDANT OR DEFENDANTS, THOUGH HEIRS OF THE DECEASED, ARE SUED IN THEIR PERSONAL AND INDIVIDUAL CAPACITIES, THE PLAINTIFF MAY TESTIFY AGAINST THEM. (Go Chi Gun v. Co Cho, 96 Phil. 622) Similarly, if the executor or administrator is sued in his personal capacity, the plaintiff may testify against him. Why? Because that is no longer a claim against the estate as it is already a claim against the person of the executor or administrator. 6) WHEN THE SURVIVOR'S TESTIMONY REFERS TO A NEGATIVE FACT. (Mendezona v. vda. de Goitia, 54 Phil. 557)
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law on evidence What is an affirmative fact? that a claim exists. What is a negative fact? A claim does not exist. MENDEZONA V. VDA DE GOITIA 54 PHIL 557 The first of these questions tends to show the relationship between the principals and their attorney-in-fact Benigno Goitia up to 1914. Supposing it was error to permit such a question, it would not be reversible error, for that very relationship is proved by Exhibits C to F, and H to I. As to the other two questions, it is to be noted that the deponents deny having received from the deceased Benigno Goitia any money on account of profits on their shares, since 1915. We are of opinion that the claimants' denial that a certain fact occurred before the death of their attorney-in-fact Benigno Agoitia does not come within the legal prohibitions. The law prohibits a witness directly interested in a claim against the estate of a decedent from testifying upon a matter of fact which took place before the death of the deceased. The underlying principle of this prohibition is to protect the intestate estate from fictitious claims. But this protection should not be treated as an absolute bar or prohibition from the filing of just claims against the decedent's estate. 7) WHEN THE SURVIVOR'S TESTIMONY IS FAVORABLE TO THE DECEASED. (Icard v. Marasigan, 71 Phil. 419) If the testimony of the plaintiff does not establish his own claim but establishes the claim of the ESTATE against another person or party, the testimony is ALLOWED. Reason: BECAUSE OF THE HARSHNESS OF THE RULE. This is just like in the instance of a contributory negligence, when it is present, it means an absolute bar to a claim. However, the law provided for the Doctrine of last clear Chance. n the law of TORTS, the doctrine that excuses or negates the effect of the plaintiff's contributory Negligence and permits him or her to recover, in particular instances, damages regardless of his or her own lack of ordinary care. The last clear chance doctrine of the common law was imported into our jurisdiction by Picart vs. Smith but it is a matter for debate whether, or to what extent, it has found its way into the Civil Code of the Philippines. The historical function of that doctrine in the common law was to mitigate the harshness of another common law doctrine or rule that of contributory negligence. The common law rule of contributory negligence prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff's negligence was relatively minor as compared with the wrongful act or omission of the defendant. The common law notion of last clear chance permitted courts to grant recovery to a plaintiff who had also been negligent provided that the defendant had the last clear chance to avoid the casualty and failed to do so. Accordingly, it is difficult to see what role, if any, the common law last clear chance doctrine has to play in a jurisdiction where the common law concept of contributory negligence as an absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in Article 2179 of the Civil Code of the Philippines. PHOENIX V. IAC G.R. No. L-65295 March 10, 1987
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law on evidence Is there perhaps a general concept of "last clear chance" that may be extracted from its common law matrix and utilized as a general rule in negligence cases in a civil law jurisdiction like ours? We do not believe so. Under Article 2179, the task of a court, in technical terms, is to determine whose negligence — the plaintiff's or the defendant's — was the legal or proximate cause of the injury. That task is not simply or even primarily an exercise in chronology or physics, as the petitioners seem to imply by the use of terms like "last" or "intervening" or "immediate." The relative location in the continuum of time of the plaintiff's and the defendant's negligent acts or omissions, is only one of the relevant factors that may be taken into account. Of more fundamental importance are the nature of the negligent act or omission of each party and the character and gravity of the risks created by such act or omission for the rest of the community. The petitioners urge that the truck driver (and therefore his employer) should be absolved from responsibility for his own prior negligence because the unfortunate plaintiff failed to act with that increased diligence which had become necessary to avoid the peril precisely created by the truck driver's own wrongful act or omission. To accept this proposition is to come too close to wiping out the fundamental principle of law that a man must respond for the forseeable consequences of his own negligent act or omission. Our law on quasi-delicts seeks to reduce the risks and burdens of living in society and to allocate them among the members of society. To accept the petitioners' pro-position must tend to weaken the very bonds of society. Comment: however, there are cases reiterating in 2000 that the docrine in last clear chance do not apply in our jurisdiction anymore but after that, in 2001, Doctrine of last clear chance applies. SC forces it to be applied because of the harshness of the rule. This time, when the law is very harsh, the SC will usually be very literal in providing for exceptions. 8) THE ADVERSE PARTY IS COMPETENT TO TESTIFY TO TRANSACTIONS OR COMMUNICATIONS WITH THE DECEASED OR INCOMPETENT PERSON WHICH WERE MADE WITH AN AGENT OF SUCH PERSON IN CASES IN WHICH THE AGENT IS STILL ALIVE AND COMPETENT TO TESTIFY. But the testimony of the adverse party must be confined o those transactions or communications which were had with the agent. (Goni, et al., v. Court of Appeals, et al., 144 SCRA 231) Why is this an exception? Because the intermediary is a witness and the assumption is what the agent does will be to seek clarification from his principal who is already dead. Even if technically speaking that the agent is an alter-ego of the deceased principal, he is still an ordinary witness to the transaction. Therefore, that situation is not covered by the DMS. 9) OPENING DOORS EXCEPTION when the deceased / disabled party “opens the door” by introducing testimony or a deposition concerning conversations and/or events in the presence of the deceased person. A contrary rule will lead to injustice. 10) FOUNDATION TESTIMONY EXCEPTION When the proffered testimony which ordinarily is barred by the survivor’s disqualification rule but which pertains to the foundation of a document when the claim is based upon a document or contract and not upon the personal dealings or communication with the deceased, the testimony is admissible
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law on evidence Here, there is even a stronger witness—the DOCUMENT. DOCUMENTED TRANSACTIONS DO NOT FALL IWTHIN THE PURVIEW OF THE DEAD MAN’S STATUTE. 11) WHEN THE TESTIMONY TO BE INTRODUCED RELATES TO ANY FACT RELATING TO THE HEIRSHIP OF A DECEDENT the dead man’s statute does not apply. 12) IF THERE IS A WAIVER. How protection of the dead man’s statute is waived: a. By not objecting to plaintiff's testimony on prohibited matters. (Marella v. Reyes, 12 Phil. 1) b. By cross-examining the plaintiff on prohibited matters. (Tongco v. Vianzon, 50 Phil. 698) c. By calling witnesses to testify on prohibited matters. (Arroyo v. Azur, 76 Phil. 493) d. When the plaintiff's deposition is taken by the representative of the estate or when counsel for the representative cross-examined the plaintiff as to matters occurring during the deceased's lifetime. (Goni, et al., v. Court of Appeals, et al., 144 SCRA 231) e. By offering evidence to rebut the prohibited testimony. BAR QUESTIONS ON Survivorship Disqualification Rule of the Dead Man’s Statute Hypothetical situation: Mr. D approaches Mr. C one rainy Sunday morning to borrow one hundred thousand pesos to be paid exactly a year after. Without hesitation, c gives d the amount requested. C does not require d to execute a promissory note. They had been very good friends for as long as they can remember. Years ago, when Mr. C’s small business was on the verge of bankruptcy it was the generosity of the then wealthy Mr. D that bailed him out. Exactly a day before the agreed date for payment, Mr. D dies without paying the debt. What does Mr. C do? Well he does what every creditor would do under the circumstances. He goes to the executor of what remains of the estate of Mr. D, and tells him of the debt of Mr. D. he says: “Today is supposed to be the due date of his debt. I cannot demand payment from him because his dead. You are the executor and alive. What is the effect of the death of Mr. D? Mr. C is rendered incompetent to testify as to the transaction he has with D. he is incompetent because of the possibility that his claim is fraudulent. If C were to be heard there would be a high risk of paying a fraudulent or a fictitious claim. It is C who has the motive to lie. He is the survivor. D cannot lie. He is dead. He did not survive; he cannot answer back, nor disprove the claim of C. To level the playing field between the lucky survivor and the poor deceased our remedial law ancestors devised a rule that would seal the lips of the survivor by declaring him incompetent to testify on the transaction between him and the deceased the rule is definitely one that does not protect the survivor even at the risk of not paying a just and valid claim because it is the survivor who has the stronger reason to file a false claim. The rule is for the protection of the guy who died. Hence the name, dead man’s statute. The rule will not apply where the plaintiff is the executor or administrator as representative of the deceased or if the plaintiff is the person of unsound mind. So if the executor of the estate of Mr. C sues Mr. D to collect an unpaid debt incurred in favor of C by D before the death of C, D although a survivor, is not precluded from testifying as to the transaction he previously had with C because the case is not upon a claim against the estate of C but a claim by his estate against D. Bar 2001
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law on evidence Q: Maximo filed an action against Pedro, the administrator of the estate of the deceased Juan, for the recovery of a car which is part of the latter’s estate. During the trial, Maximo presented witness Mariano who testified that he was present when Maximo and Juan agreed that the latter would pay a rental of P20000 for the use of Maximo’s car for one month after which Juan should immediately return the car to Maximo. Pedro objected to the admission of Mariano’s testimony. If you were the judge, would you sustain Pedro’s objection? Why? A: The objection of Pedro should not be sustained. The testimony is admissible because the witness is not qualified to testify. Those disqualified under the dead man’s statute or the survivorship disqualification rule are parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. (sec23 R 130). The witness is not one of those enumerated under the rule. Bar 2007 True or False Q: The surviving parties rule bars Maria from testifying for the claimant as to what the deceased Jose ad said to her, in a claim filed by Pedro against the estate of Jose. A: FALSE The rule bars only a party plaintiff, or his assignor or a person in whose behalf a case is prosecuted. Maria is merely a witness and is not one of those enumerated as barred from testifying. SEC. 24. Disqualification by reason of privileged communication. – The following persons cannot testify as to matters learned in confidence in the following cases: (a) The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants; (b) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney’s secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity; (ATTORNEY-CLIENT PRIVILEGE) (c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient; (PHYSICIAN-PATIENT PRIVILEGE RULE) (d) A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs; (PRIEST PENITENT PRIVILEGE COMMUNICATION) (e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure.
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law on evidence MARITAL PRIVILEGE COMMUNICATION RULE (a) The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants; This provision might be quite familiar to you since we were able to discuss a previous provision which is the marital disqualification rule which is a different animal from this one. Under this rule, the husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage. For this rule to apply, the following REQUISITES must be present: 1. There must be a valid marriage this rule is not extended to people who live together without the benefit of marriage. Why? This is actually a privilege that you cannot be examined or called to testify against your wife. That is a privilege and not a prohibition. 2. There is a communication made by one to the other and 3. The confidential information must have been made DURING the marriage. When these requisites concur, the spouse with whom the testimony is offered may validly object to the testimony of the other. There are 2 EXCEPTIONS: 1. In a civil case by one against the other, or 2. In a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants; CASE: If the communication is made in front of the children of the husband and wife. Can the privilege be invoked? YES, if the children are still minors. Note: The assumption is any communication given by one spouse to the other is presumably confidential because there is no standard given in the Rules to determine WON a communication is meant to e confidential between the spouses. APPLICATIONS OF THE MARITAL PRIVILEGED COMMUNICATION RULE: 1) Every communication between spouses is presumed to be confidential. (Sexton v. Sexton, 129 Ia. 487; Wigmore, Sec. 2336) 2) Communications made in the presence of third parties are not confidential, unless the third person may be considered as an agent of the spouses. (Floyd v. Miller, 61 Ind. 224) 3) Communications overheard by third persons remain confidential as between the spouses, but the third person who overheard may be called upon to testify as what they assert. (People v. Carlos, 47 Phil. 626) 4) Communications coming into the hands of third persons, whether legally or illegally, remain confidential as between the spouses, but the third person may be called upon to testify. (People, and Hammons, supra) 5) But if the third person acquired knowledge of the communication by collusion and voluntary disclosure on the part of either of the spouses, he thereby becomes an agent of such spouses so that the privilege is claimable against him. (Ibid.) 6) Communications intended for transmission to third persons are not confidential. (U.S. v. Antipolo, 37 Phil. 726). It may seem confidential because of its nature, that its quite personal but if it intended for transmission to a third person which will be read someone else, that ceases to be confidential and therefore, that is not covered by the privilege.
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law on evidence
WAIVER OF THE MARITAL PRIVILEGED COMMUNICATION RULE The privilege is claimable by the spouse not called as witness, so that it its waivable only by him or her; and it is waivable by any act of such spouse which might be considered as an express or implied consent to the disclosure of the communication. (People v. Hayes, 140 N.Y. 484) An example of the express consent is when there is an objection that is made or implied consent in where there is no objection that is made on the testimony of the other spouse. If you do not object, you waive the rule. Plain and simple. DISTINCTION BETWEEN MARITAL DISQUALIFICATION RULE (section 22) AND MARITAL PRIVILEGE COMMUNICAITON RULE 1) In Marital disqualification rule under section 22 will not come into play when the fact matter of the problem makes reference to confidential information between husband and wife during the marriage. When the total confidential communications between husband and wife during the marriage, you apply instead section 24. 2) Communications that are not intended to be confidential because they were uttered in the presence of 3rd persons are not deemed confidential even when made during the marriage. If an adverse testimony is covered as a result of the remarks which were not made in confidence, section 22 or the marital disqualification rule applies. The same rule applies when the confidential information was not made during the marriage. On the other hand, the marital privilege communication rule applies only to testimonies of a confidential nature made by one spouse to the other during the marriage and does NOT include acts merely observed by the spouses. (therefore, a spouse can testify as to what he has merely observed but when it was specifically communicated, and is presumed to be confidential, no testimony can be made of such fact) 3) When the marital privilege communication rule applies, the spouse affected by the adverse testimony may object to the testimony even after the death or dissolution of marriage. The marital disqualification rue on the other hand can no longer be invoked once the marriage is dissolved. It can only be asserted during the marriage. (VIP provision; in MDR, when marriage is dissolved, when there is no marital harmony and no marriage is sought to be protected, so the MDR does not apply. But MPC applies even after the marriage) 4) The marital disqualification rule requires that the spouse for or against whom the testimony is offered is a party to the action. However, if you look at the marital privilege communication rule in section 24(a), that is not required. 5) In the Marital Disqualification Rule, the prohibition is a testimony for or against the other, while in the Marital Privilege Communication Rule, what is prohibited is the examination of the spouse as to matters related in confidence to the other spouse. In the MDR rule therefore, it is the testimony that is prohibited altogether; whereas in MCDC, it is the content of the examination or the content of the testimony that is prohibited because the communication is always presumed to be confidential. SUMMARY: a. Privilege is applicable regardless of whether the spouses are parties or not; Marital disqualification is applicable only when one or both spouses are parties b. The privilege applies to testimonies on confidential communication only; Marital disqualification applies to testimony on any fact c. Marital disqualification ceases after dissolution of marriage; Privileged
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law on evidence communication lasts even after the death of either spouse d. Even if the communication is not confidential, the marital disqualification may still be invoked e. Marital disqualification is more concerned with the consequences. If the rule is not there, perjury and domestic disunity may result; Privilege protects the hallowed confidences inherent in marriage b/w husband and wife and therefore guarantees the preservation of the marriage and further the relationship between the spouses as it encourages the disclosure of confidential matters without fear of revelation. Tabular distinction: SECTION 22
SECTION24 (a)
Marriage During marriage Any matter Case of 1 spouse against the other (testify)
Privilege During and after marriage Confidential Any case; need NOT be a case of 1 spouse; NO distinction Invoked by spouse Exceptions: (1) civil case between 1 spouse against the other (2) criminal case between 1 spouse against the other/latter’s direct ascendants and descendants
MARITAL DISQUALIFICATION RULE NOTE!!!! The marital disqualification rule under sec. 22 of Rule 130 forbids the husband or the wife to testify for or against the other without the consent of the affected spouse except in those cases authorized by the rule. The prohibition extends not only to a testimony adverse to the spouse but also to a testimony in favor of the spouse. It also extends to both criminal and civil cases because the rule does not distinguish. In order that the husband or wife may claim the privilege, it is essential that they be validly married. If they are not, there is no privilege. Rule does not cover illicit cohabitation. Sec 22 r 130 requires not only a valid marriage but the existence of that valid marriage at the moment the witness-spouse gives the testimony. the rule applies whether the witness-spouse is a party to the case or not but the other spouse must be a party. That the other spouse must be a party is evident from the phrase “…neither the husband nor the wife may testify for or against the other...” Refer more to pp266-267 (Riano) EXCEPTIONS TO MARITAL DISQUALIFICATION RULE Bar 2000 Q: Vida and Romeo are legally married. Romeo is charged in court with the crime of serious physical injuries committed against Selmo, son of Vida, step son of Romeo. Vida witnessed the infliction of the injuries on Selmo by Romeo. The public prosecutor called Vida to the witness stand and offered her testimony as eyewitness. Counsel for Romeo objected on the ground of the marital disqualification rule under the rules of court. (a)Is the objection valid? (b) Will your answer be the same if Vida’s testimony is offered in a civil case for recovery of personal property filed by Selmo against Romeo?
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law on evidence
A: (a) The objection is not valid. While the rule provides that neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, the prohibition is merely the general rule. Said rule is subject to certain exceptions, one of which is in a criminal case committed by one against the direct descendant of the other. Romeo is accused of committing a crime against Selmo, the son of Vida and the latter’s direct descendant. (b) The answer will not be the same. The rule in a criminal case is not the same as that in a civil case. In a civil case, for the marital disqualification rule not to apply, the case must be by one spouse against the other. In the case under consideration, the case is by the son of one spouse against the other spouse. Romeo may thus, invoke the marital disqualification rule against Vida’s proposed testimony. TESTIMONY BY THE ESTRANGED SPOUSE Bar 2006 Q: Leticia was estranged from her husband Paul for more than a year due to his suspicion that she was having an affair with Manuel, their neighbor. She was temporarily living with her sister in Pasig City. For unknown reasons, the house of Leticia's sister was burned, killing the latter. Leticia survived. She saw her husband in the vicinity during the incident. Later, he was charged with arson in an Information filed with the Regional Trial Court, Pasig City. During the trial, the prosecutor called Leticia to the witness stand and offered her testimony to prove that her husband committed arson. Can Leticia testify over the objection of her husband on the ground of martial privilege? A: Leticia cannot testify. Sec22 of R130 bars her testimony without the consent of the husband during the marriage. The separation of the spouses has not operated to terminate their marriage. Pls consider this! Leticia may testify over the objection of her husband. Where the marital and domestic relations between her and the accused husband have become so strained that there is no more harmony, peace or tranquility to be preserved, there is no longer any reason to apply the Marital Disqualification rule. Bar 2004 Q: XYZ, an alien, was criminally charged of promoting and facilitating child prostitution and other sexual abuses under RA 7610. The principal witness against him was his Filipina wife, ABC. Earlier, she has complained that XYZ’s hotel was being used as a center for sex tourism and child trafficking. The defense counsel for XYZ objected to the testimony of ABC at the trial of the child prostitution case and the introduction of the affidavits she executed against her husband as a violation of espousal confidentiality and marital privilege rule. It turned out that DEG, the minor daughter of ABC by her first husband who was a Filipino was molested by XYZ earlier. This, ABC had filed for legal separation from XYZ since last year. May the court admit the testimony and affidavits of the wife, AB, against her husband XYZ, in the criminal case involving child prostitution? Answer: If the testimony and affidavit of the wife are evidence of the case against her husband for child prostitution involving her daughter, the evidences are admissible. The marital privileged communication rule under sec 24 rule 130 as well as the marital disqualification rule under sec 22 of rule 130 do not apply to and cannot be involved in a criminal case committed by a spouse against the direct descendants of the other.
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law on evidence A crime committed by the husband against the daughter of his wife is considered a crime committed against the wife and directly attacks or vitally impairs the marital relations. Bar 1995 Q: Allan and Narita were married on Aug 1 1989, after 2 months, Narita told Allan in confidence that the 10 year old Liza whom she claimed to be her niece was actually her daughter by a certain married man In 1992, Narita obtained a judicial decree of nullity of her marriage with Allan on the latter’s psychological incapacity to fulfill his marital obligations. When the decree became final, Liza assisted by narita, filed 10 cases of rape against Allan committed in 1991. During the trial, Narita was called to the witness stand to testify as a witness against Allan who objected thereto on the found of marital disqualification. 1. As a public prosecutor, how would you meet the objection? 2. Suppose Narita’s testimony was offered while the decision nullifying her marriage to Allan was pending appeal, would your answer be different? 3. Suppose Narita died during the pendency of the appeal, and soon ager, the legal wife of basilio sued for legal separation on sexual infidelity in view of Basilio’s love affair with Narita. At the trial Allan was called by Basilio’s wife to testify that narita confided to him during their marriage that liza was her love child by basilio. As counsel for Basilio, can you validly object to the presentation of Allan as witness for the plaintiff? Explain. A: 1. As a public prosecutor, how would you meet the objection? I would ask the court to overrule the objection. Under the marital disqualification rule, the objection to the testimony of one spouse against the other may be invoked only during the marriage. At the time the testimony of Narita was offered, the marriage was already dissolved, besides, the crime was committed against a direct descendant of Narita. 2. Suppose Narita’s testimony was offered while the decision nullifying her marriage to Allan was pending appeal, would your answer be different? The answer would not be different and the court may likewise be asked to overrule the objection. The marital disqualification rule may not be invoked in a criminal case for a crime committed against the direct descendant of the other spouse. Here, liza is the daughter of Narita. 3. Suppose Narita died during the pendency of the appeal, and soon ager, the legal wife of basilio sued for legal separation on sexual infidelity in view of Basilio’s love affair with Narita. At the trial Allan was called by Basilio’s wife to testify that narita confided to him during their marriage that liza was her love child by basilio. As counsel for Basilio, can you validly object to the presentation of Allan as witness for the plaintiff? Explain. Suggested answer: I could validly object to the presentation of Allan as a witness on the ground that the communication of Narita was a privileged communication which could be invoked during or after the marriage. Moreover, the testimony of Allan would be hearsay. Writers comment: it is submitted that the testimony could not be validly objected upon by Basilio’s counsel on the basis of the marital priv comm.. rule. Basilio does not own the privilege. The prerogative to object to a confidential communication between spouses is vested upon the spouses themselves, particularly the communicating spouse, not a third person. This is clear from the provision “cannot be examined without the consent of the
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law on evidence other” the proper objection should be on hearsay grounds not on privileged communication. BAR 1998 Q: C is the child of the spouses H and W. H sued his wife for judicial declaration of nullity of marriage under Art. 36 of the FC. In the trial, the ff. testified over the objection of W: C, H, and D, a doctor of medicine who used to treat W. rule on W’s objection which are the ff: a. H cannot testify against her because of the rule on marital privilege Answer: The objection should be overruled. The rule invoked by W, the rule o marital privilege does not apply to a civil case by one against the other. The suit between the spouses is a civil case against the other.
PHYSICIAN PATIENT PRIVILEGE RULE c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient; SCOPE The Physician patient privilege rule applies to a civil case, whether the patient is a party to the civil case or not. The phraseology of the rule implies that the privilege cannot be used in a criminal case presumably because the public and criminal prosecution should be deemed to be more important than the secrecy of the privilege communication. REASON FOR THE RULE This is to encourage the patient to freely disclose all the matters which may aid in the diagnosis and treatment of the disease or injury. For this purpose, it is necessary to shield the patient from embarrassing details concerning his condition. The rule which excludes disclosures to physicians is not a rule of incompetency of evidence serving the end of protecting the adverse party against unreliable or prejudicial testimony. It is a rule of privilege protecting the extrinsic interest of the patient and designed to promote health not truth. It encourages free disclosure in the sick-room by preventing such disclosure in the courtroom. The patient is the person to be encouraged and he is the holder of the privilege." REQUISITES FOR THE RULE The rule on confidential communications between physician and patient requires that: a) the action in which the advice or treatment given or any information is to be used is a civil case; b) the relation of physician and patient existed between the person claiming the privilege or his legal representative and the physician; c) the advice or treatment given by him or any information was acquired by the physician while professionally attending the patient; d) the information was necessary for the performance of his professional duty; and e) The disclosure of the information would tend to blacken the reputation of the patient.
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law on evidence THE PRIVILEGE SURVIVES THE DEATH OF THE PATIENT. Death does not permit the living to impair the deceased’ name by disclosing information held confidential by the law. GONZALES V. CA October 30, 1998 Petitioners do not dispute that the affidavit meets the first four requisites. They assert, however, that the finding as to Ricardo Abad’s “sterility” does not blacken the character of the deceased. Petitioners conveniently forget that Ricardo Abad’s “sterility” arose when the latter contracted gonorrhea, a fact which most assuredly blackens his reputation. In fact, given that society holds virility at a premium, sterility alone, without the attendant embarrassment of contracting a sexually-transmitted disease, would be sufficient to blacken the reputation of any patient. We thus hold the affidavit inadmissible in evidence. And the same remains inadmissible in evidence, notwithstanding the death of Ricardo Abad. As stated by the trial court: In the case of Westover vs. Aetna Life Insurance Company, 99 N.Y. 59, it was pointed out that: “The privilege of secrecy is not abolished or terminated because of death as stated in established precedents. It is an established rule that the purpose of the law would be thwarted and the policy intended to be promoted thereby would be defeated, if death removed the seal of secrecy, from the communications and disclosures which a patient should make to his physician. After one has gone to his grave, the living are not permitted to impair his name and disgrace his memory by dragging to light communications and disclosures made under the seal of the statute. A PERSON AUTHORIZED TO PRACTICE MEDICINE, SURGERY OR OBSTETRICS (Hence, nurses, midwives and other people who attend to the ill can be called to testify as to any matter) CANNOT IN A CIVIL CASE, WITHOUT THE CONSENT OF THE PATIENT, BE EXAMINED AS TO: a) Any advice given to the client b) or treatment given by him or c) Any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in capacity, and which would blacken the reputation of the patient;
Reputation was used here but its former word was ‘character’. Reputation would simply mean the consensus perception of the people of you. Character is a technical term in law. It means moral character.
IMPORTANT POINTS: The rule does not require that the relation between the physician and the patient be a result of a contractual relationship like one initiated by the patient’s voluntary act. It might have been a result of a quasi-contractual relationship as when the patient is seriously ill when the physician treats him even if he is not in a condition to give his consent, as in the situation in article 2167 of the civil code. (article 2167-- When through an accident or other cause a person is injured or becomes seriously ill, and he is treated or helped while he is not in a condition to give consent to a contract, he shall be liable to pay for the services of the physician or other person aiding him, unless the service has been rendered out of pure generosity.) For this privilege to apply, it is necessary that the physician be in the exercise of his actual professional capacity and that the advice, treatment or information be acquired in such capacity. The physician may be said to be acting in a professional capacity when he attends to the patient for either curative or preventive treatment. Hence, it is submitted that the results of autopsies may not be deemed covered by the privilege because autopsies are not intended for treatment. The privilege does not apply to shield commission of a crime or when the purpose is an
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law on evidence unlawful one as for example, to obtain unlawful drugs. So if nakita ka sa x-ray and naay illegal drugs, it is not covered. Such possession is not part of what is contemplated as “treatment”. WAIVER OF THE PHYSICIAN-PATIENT PRIVILEGE
This privilege belongs to the patient, so that it is only he that can claim or waive it. It is waivable expressly or impliedly. It is impliedly waived like any other privilege rule. (Penn. Mutual life ins. Co. V. Wiler, 100 ind. 92)
The waiver may be by a contract as in medical or life insurance.
When the patient answers questions on cross examination regarding that medical condition which is subject of the privilege , there is waiver
Under Rule 28 ROC, the court may order a party to submit to a physical or mental examination, so long as the mental or physical condition is in dispute. The party examined may request a report of the examination. By doing so, he waives any privilege he may have in that action regarding the testimony of every other person who has examined him in respect of the same examination.
This privilege does not apply when the doctor is presented as an expert witness and only hypothetical problems were presented to him. (Lim vs. CA, 1992)
Example: the father made a will. Father died. Later on, it was discovered that a son was disinherited. The son now wants to introduce a testimony of the doctor saying that the father at the time he was making the will was crazy. The patient here is already dead. Question #1: who can claim the privilege? Answer: the representatives of the estate, the other heirs of the deceased. Question #2: Can the physician patient privilege rule be applied? Answer: YES, because it tends to blacken the reputation of the patient. Now you see the difference between reputation and character. Character deals as to whether how good or bad the person is. Reputation covers any vice or perceived defect in the personality of the person whose sanity is in consideration. That is my submission. It should be applied to that type of situation. HIPPOCRATIC OATH The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of their patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A mistake, through gross negligence or incompetence or plain human error, may spell the difference between life and death. In this sense, the doctor plays God on his patient's fate. In other words, the privilege should be made to apply because the doctor has the obligation not to harm the reputation of the patient even after the death of the patient. Physician- Patient Privilege Bar 1998 Q: C is the child of the spouses H and W. H sued his wife for judicial declaration of nullity of marriage under Art. 36 of the FC. In the trial, the following testified over the objection of W: C H and D, a doctor of medicine who used to treat W. Rule on W’s objections which are the ff: (C.1.). D cannot testify against her because of the doctrine of privileged communication.
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law on evidence (c.2) C cannot testify against her because of the doctrine of parental privilege A1: D cannot testify over the objection of W where the subject of the testimony is the advice or treatment given by him or any information which he may have acquired in attending to W in his professional capacity. A2. W cannot invoke the privilege which belongs to the child. C may testify if he wants to although he may not be compelled to do so.
ATTORNEY-CLIENT PRIVILEGE b) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney’s secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity; Attorney-client privilege is a legal concept that protects communications between a client and his or her attorney and keeps those communications confidential. The policy underlying this evidentiary privilege is that of encouraging open and honest communication between clients and attorneys, which is thought to promote obedience to law and reduce the chance of illegal behavior, whether intentional or inadvertent. As such, the attorneyclient privilege is considered as one of the strongest privileges available under law. Considerations favoring confidentiality in lawyer-client relationships are many and serve several constitutional and policy concerns. In the constitutional sphere, the privilege gives flesh to one of the most sacrosanct rights available to the accused, the right to counsel. If a client were made to choose between legal representation without effective communication and disclosure and legal representation with all his secrets revealed then he might be compelled, in some instances, to either opt to stay away from the judicial system or to lose the right to counsel. If the price of disclosure is too high, or if it amounts to self incrimination, then the flow of information would be curtailed thereby rendering the right practically nugatory. The threat this represents against another sacrosanct individual right, the right to be presumed innocent is at once selfevident. Encouraging full disclosure to a lawyer by one seeking legal services opens the door to a whole spectrum of legal options which would otherwise be circumscribed by limited information engendered by a fear of disclosure. An effective lawyer-client relationship is largely dependent upon the degree of confidence which exists between lawyer and client which in turn requires a situation which encourages a dynamic and fruitful exchange and flow of information. It necessarily follows that in order to attain effective representation, the lawyer must invoke the privilege not as a matter of option but as a matter of duty and professional responsibility. As the lawyer, you need the truth to represent your clients well. However, the clients are usually reluctant. That is why the ACP is here to encourage full disclosure. The attorney-client privilege balances conflicting interests. Why? Remember as the lawyer you have the ff. Duties: a. duty to the court b. Duty to the public you have to be perceived as agent of justice. c. Duty to the client your client,
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law on evidence Under American jurisprudence, To encourage clients to inform their attorneys of all details relevant to a case, ethical codes also entrust attorneys with preserving the confidentiality of the information their clients give them; any failure to do so constitutes misconduct on the part of the attorney. The law protects attorney-client confidentiality with the principle of Attorney-Client Privilege, and under very few circumstances is it lawful to breach this privilege of confidentiality. That because the Attorney-Client privilege balances conflicting interest, it is not subject to stringent or rigid definition. However, there should be REQUISITES that should be reckoned with so that the ACP will apply: 1) Any communication made by the client to the lawyer, or any advice given by the attorney to the client 2) The communication must have been made in confidence 3) The communication or advice must have been given either in the course of, or with a view to, professional employment, Question: is there a need for a perfected attorney-client relationship? Like when they actually sign a contract or document? Answer: NO. It is not really needed. It is not needed to set up a contract for the ACP to apply. This is applicable even in the course of the professional engagement or even with a view to professional employment. Maski Kanang niduol lang ka sa attorney, storya ka sa imung problem. Tapos muingon xa nga mubalik lang xa kay gimahalan xa sa fees. The ACP already applies. So no need for a formal contract; the moment you are consulted, you are already bound. If the rule were otherwise, it will make it extremely difficult for clients to trust their lawyers. 4) nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity; (VIP CASE!!!) QUESTION: if you are the lawyer, can you testify on matters that is told to you? Of course you cannot. But can you testify about the fact that you were consulted by the client? Does the ACP covers testimonies about the identity of the client? Can the lawyer refuse to disclose the name of his client? Situation: the prosecution does nto know who the perpetuator of the crime is but they know who the lawyer is. The position of the Sandiganbayan is that if the lawyer confirms that Cojuangco is his client, then cojuangco might be the perpetuator of the cirm. But the lawyer regala said they cannot do that because it will allow them to give direction of the case. REGALA V. SANDIGANBAYAN [G.R. No. 108113. September 20, 1996] The question now arises whether or not this duty may be asserted in refusing to disclose the name of petitioners' client(s) in the case at bar. Under the facts and circumstances obtaining in the instant case, the answer must be in the affirmative. As a matter of public policy, a client’s identity should not be shrouded in mystery.[30] Under this premise, the general rule in our jurisdiction as well as in the United States is that a lawyer may not invoke the privilege and refuse to divulge the name or identity of his client.[31] The reasons advanced for the general rule are well established.
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law on evidence First, the court has a right to know that the client whose privileged information is sought to be protected is flesh and blood. Second, the privilege begins to exist only after the attorney-client relationship has been established. The attorney-client privilege does not attach until there is a client. Third, the privilege generally pertains to the subject matter of the relationship. Finally, due process considerations require that the opposing party should, as a general rule, know his adversary. “A party suing or sued is entitled to know who his opponent is.”[32] He cannot be obliged to grope in the dark against unknown forces. [33] Notwithstanding these considerations, the general rule is however qualified by some important exceptions. 1) Client identity is privileged where a strong probability exists that revealing the client’s name would implicate that client in the very activity for which he sought the lawyer’s advice. 2) 2) Where disclosure would open the client to civil liability, his identity is privileged. For instance, the peculiar facts and circumstances of Neugass v. Terminal Cab Corporation,[37] prompted the New York Supreme Court to allow a lawyer’s claim to the effect that he could not reveal the name of his client because this would expose the latter to civil litigation. 3) Where the government’s lawyers have no case against an attorney’s client unless, by revealing the client’s name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime, the client’s name is privileged. (LAST LINK DOCTRINE) Apart from these principal exceptions, there exist other situations which could qualify as exceptions to the general rule. For example, the content of any client communication to a lawyer lies within the privilege if it is relevant to the subject matter of the legal problem on which the client seeks legal assistance.[44] Moreover, where the nature of the attorney-client relationship has been previously disclosed and it is the identity which is intended to be confidential, the identity of the client has been held to be privileged, since such revelation would otherwise result in disclosure of the entire transaction. [45] Summarizing these exceptions, information relating to the identity of a client may fall within the ambit of the privilege when the client’s name itself has an independent significance, such that disclosure would then reveal client confidences. [ The circumstances involving the engagement of lawyers in the case at bench, therefore, clearly reveal that the instant case falls under at least two exceptions to the general rule. First, disclosure of the alleged client's name would lead to establish said client's connection with the very fact in issue of the case, which is privileged information, because the privilege, as stated earlier, protects the subject matter or the substance (without which there would be no attorney-client relationship). The link between the alleged criminal offense and the legal advice or legal service sought was duly established in the case at bar, by no less than the PCGG itself. The key lies in the three specific conditions laid down by the PCGG which constitutes petitioners’ ticket to non-prosecution should they accede thereto: (a) the disclosure of the identity of its clients; (b) submission of documents substantiating the lawyer-client relationship; and (c) the submission of the deeds of assignment petitioners executed in favor of their clients covering their respective shareholdings.
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law on evidence From these conditions, particularly the third, we can readily deduce that the clients indeed consulted the petitioners, in their capacity as lawyers, regarding the financial and corporate structure, framework and set-up of the corporations in question. In turn, petitioners gave their professional advice in the form of, among others, the aforementioned deeds of assignment covering their clients’ shareholdings. There is no question that the preparation of the aforestated documents was part and parcel of petitioners’ legal service to their clients. More important, it constituted an integral part of their duties as lawyers. Petitioners, therefore, have a legitimate fear that identifying their clients would implicate them in the very activity for which legal advice had been sought, i.e., the alleged accumulation of ill-gotten wealth in the aforementioned corporations. Furthermore, under the third main exception, revelation of the client's name would obviously provide the necessary link for the prosecution to build its case, where none otherwise exists. It is the link, in the words of Baird, “that would inevitably form the chain of testimony necessary to convict the (client) of a... crime." An important distinction must be made between a case where a client takes on the services of an attorney for illicit purposes, seeking advice about how to go around the law for the purpose of committing illegal activities and a case where a client thinks he might have previously committed something illegal and consults his attorney about it. The first case clearly does not fall within the privilege because the same cannot be invoked for purposes illegal. The second case falls within the exception because whether or not the act for which the advice turns out to be illegal, his name cannot be used or disclosed if the disclosure leads to evidence, not yet in the hands of the prosecution, which might lead to possible action against him. These cases may be readily distinguished, because the privilege cannot be invoked or used as a shield for an illegal act, as in the first example; while the prosecution may not have a case against the client in the second example and cannot use the attorney client relationship to build up a case against the latter. The reason for the first rule is that it is not within the professional character of a lawyer to give advice on the commission of a crime.[48] The reason for the second has been stated in the cases above discussed and are founded on the same policy grounds for which the attorney-client privilege, in general, exists. In fine, the crux of petitioners' objections ultimately hinges on their expectation that if the prosecution has a case against their clients, the latter's case should be built upon evidence painstakingly gathered by them from their own sources and not from compelled testimony requiring them to reveal the name of their clients, information which unavoidably reveals much about the nature of the transaction which may or may not be illegal. The logical nexus between name and nature of transaction is so intimate in this case that it would be difficult to simply dissociate one from the other. In this sense, the name is as much "communication" as information revealed directly about the transaction in question itself, a communication which is clearly and distinctly privileged. A lawyer cannot reveal such communication without exposing himself to charges of violating a principle which forms the bulwark of the entire attorney-client relationship. The uberrimei fidei relationship between a lawyer and his client therefore imposes a strict liability for negligence on the former. The ethical duties owing to the client, including confidentiality, loyalty, competence, diligence as well as the responsibility to keep clients informed and protect their rights to make decisions have been zealously sustained.
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law on evidence We have no choice but to uphold petitioners' right not to reveal the identity of their clients under pain of the breach of fiduciary duty owing to their clients, because the facts of the instant case clearly fall within recognized exceptions to the rule that the client’s name is not privileged information. If we were to sustain respondent PCGG that the lawyer-client confidential privilege under the circumstances obtaining here does not cover the identity of the client, then it would expose the lawyers themselves to possible litigation by their clients in view of the strict fiduciary responsibility imposed on them in the exercise of their duties. The complaint in Civil Case No. 0033 alleged that the defendants therein, including herein petitioners and Eduardo Cojuangco, Jr. conspired with each other in setting up through the use of coconut levy funds the financial and corporate framework and structures that led to the establishment of UCPB, UNICOM and others and that through insidious means and machinations, ACCRA, using its wholly-owned investment arm, ACCRA Investments Corporation, became the holder of approximately fifteen million shares representing roughly 3.3% of the total capital stock of UCPB as of 31 March 1987. The PCGG wanted to establish through the ACCRA lawyers that Mr. Cojuangco is their client and it was Cojuangco who furnished all the monies to the subscription payment; hence, petitioners acted as dummies, nominees and/or agents by allowing themselves, among others, to be used as instrument in accumulating ill-gotten wealth through government concessions, etc., which acts constitute gross abuse of official position and authority, flagrant breach of public trust, unjust enrichment, violation of the Constitution and laws of the Republic of the Philippines. By compelling petitioners, not only to reveal the identity of their clients, but worse, to submit to the PCGG documents substantiating the client-lawyer relationship, as well as deeds of assignment petitioners executed in favor of its clients covering their respective shareholdings, the PCGG would exact from petitioners a link “that would inevitably form the chain of testimony necessary to convict the (client) of a crime.” PLEASE READ THE FULL TEXT. THIS MIGHT COME OUT IN THE EXAM!! The attorney-client privilege may not be invoked to refuse to divulge the identity of the client, EXCEPT: (1) When a strong probability exists that revealing the name would implicate that person in the very same activity for which he sought the lawyer’s advice; (2) When disclosure would open the client to liability; (3) When the name would furnish the only link that would form the chain of testimony necessary to convict. (Regala vs. Sandiganbayan, 1996) LAST LINK DOCTRINE: Non-privileged information, such as identity of the client is protected if the revelation of such information would necessarily reveal the privileged information. CONSULTATIONS TO THE LAWYER: ARE ALL CONSULTATIONS TO THE LAWYER COVERED? Answer: NO. As a general rule, the consultation should have begun in the course of the employment similar to the rule of priest-penitent privilege. Situations: 1. A and B are friends. A is the client and B is the lawyer. Nag-basketball sila and then naay giingon si A kay B. that is NOT covered because it was not made in the course of the professional employment. 2. Look at the peculiar case of Fr. Gus: he is covered by the ACP and Priest-penitent privilege.
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law on evidence So not all consultations are covered but if you consult the lawyer in his professional capacity, definitely, you are covered. “IN THE COURSE OF OR WITH A VIEW TO PROFESSIONAL EMPLOYMENT” a. APPARENT CONFLICT OF INTEREST IS ENOUGH SO THAT THE ACP WILL APPLY. It is enough that the client reasonably believed that the person consulted is a lawyer. Situation: A is estranged with his wife and he knows his wife will file case against him. What will he do? He goes to their lawyer B, the best lawyer in marital cases. He consults lawyer B. AttyClient relationship exists, rights? So that lawyer cannot represent the wife anymore. He then goes to the 2nd best lawyer and does the same thing all over again until he covers all the lawyers in the city so that these lawyers before whom he consults would not be able to represent his wife. Ca anyone of those lawyers represent the wife? Answer: NO. There is so many conflict of interest. See? You can actually do that. With respect to conflict of interest situation, even an APPARENT conflict of interest should be enough to make a lawyer inhibit himself. Real or apparent, it does not matter. The court will view it as a conflict of interest. b. PRIVILEGE DOES NOT EXTEND TO COMMUNICATIONS WHERE THE CLIENT’S PURPOSE IS THE FURTHERANCE OF A FUTURE INTENDED CRIME OR FRAUD Situation: A client goes to lawyer an says, “atty, ingani akong problema ha. I will tell you what happened, etc…unsa akong buhaton?” lawyer told him what to do. Mangutana xa unsaon man nako pag-iwas nga dili ko makabayad ug tax, penalties, etc. unsaon nako pagtakas sa ani nga kaso? Question: can the ACP be used as a shield to perpetuate fraud or to commit a crime? Answer: NO. The privilege does not apply to communications between an attorney and a client that are made in furtherance of a Fraud or other future or intended crime. c.
COMMUNICATIONS MAY REFER TO ANTICIPATED LITIGATIONS OR MAY NOT REFER TO ANY LITIGATION AT ALL.
The privilege is not limited to actual or pending cases, the communication may still refer to anticipated litigations or may not refer to any litigation at all. Even if the case is not yet pending or may still ripen in the future, the privilege may still apply. PEOPLE V. SANDIGANBAYAN July 16, 1997 The principal issues on which the resolution of the petition at bar actually turns are therefore (1) whether or not the projected testimony of respondent Sansaet, as proposed state witness, is barred by the attorney-client privilege; and (2) whether or not, as a consequence thereof, he is eligible for discharge to testify as a particeps criminis. As already stated, respondent Sandiganbayan ruled that due to the lawyer-client relationship which existed between herein respondents Paredes and Sansaet during the relevant periods, the facts surrounding the case and other confidential matters must have been disclosed by respondent Paredes, as client, to respondent Sansaet, as his lawyer. Accordingly, it found "no reason to discuss it further since Atty. Sansaet cannot be
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law on evidence presented as a witness against accused Ceferino S. Paredes, Jr. without the latter's consent." 21 The Court is of a contrary persuasion. The attorney-client privilege cannot apply in these cases, as the facts thereof and actuations of both respondents therein constitute an exception to the rule. For a clearer understanding of that evidential rule, we will first sweep aside some distracting mental cobwebs in these cases. 1. It may correctly be assumed that there was a confidential communication made by Paredes to Sansaet in connection with Criminal Cases Nos. 17791-93 for falsification before respondent court, and this may reasonably be expected since Paredes was the accused and Sansaet his counsel therein. Indeed, the fact that Sansaet was called to witness the preparation of the falsified documents by Paredes and Honrada was as eloquent a communication, if not more, than verbal statements being made to him by Paredes as to the fact and purpose of such falsification. It is significant that the evidentiary rule on this point has always referred to "any communication," without distinction or qualification. 22 In the American jurisdiction from which our present evidential rule was taken, there is no particular mode by which a confidential communication shall be made by a client to his attorney. The privilege is not confined to verbal or written communications made by the client to his attorney but extends as well to information communicated by the client to the attorney by other means. Nor can it be pretended that during the entire process, considering their past and existing relations as counsel and client and, further, in view of the purpose for which such falsified documents were prepared, no word at all passed between Paredes and Sansaet on the subject matter of that criminal act. The clincher for this conclusion is the undisputed fact that said documents were thereafter filed by Sansaet in behalf of Paredes as annexes to the motion for reconsideration in the preliminary investigation of the graft case before the Tanodbayan. 24 Also, the acts and words of the parties during the period when the documents were being falsified were necessarily confidential since Paredes would not have invited Sansaet to his house and allowed him to witness the same except under conditions of secrecy and confidence. 2. It is postulated that despite such complicity of Sansaet at the instance of Paredes in the criminal act for which the latter stands charged, a distinction must be made between confidential communications relating to past crimes already committed, and future crimes intended to be committed, by the client. Corollarily, it is admitted that the announced intention of a client to commit a crime is not included within the confidences which his attorney is bound to respect. Respondent court appears, however, to believe that in the instant case it is dealing with a past crime, and that respondent Sansaet is set to testify on alleged criminal acts of respondents Paredes and Honrada that have already been committed and consummated. The Court reprobates the last assumption which is flawed by a somewhat inaccurate basis. It is true that by now, insofar as the falsifications to be testified to in respondent court are concerned, those crimes were necessarily committed in the past. But for the application of the attorney-client privilege, however, the period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future. In other words, if the client seeks his lawyer's advice with respect to a crime that the former has theretofore committed, he is given the protection of a virtual confessional seal which the attorney-client privilege declares cannot be broken by the attorney without the client's consent. The same privileged confidentiality, however, does not attach with regard to a crime which a client intends to commit thereafter or in the future and for purposes of which he seeks the lawyer's advice.
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law on evidence Statements and communications regarding the commission of a crime already committed, made by a party who committed it, to an attorney, consulted as such, are privileged communications. Contrarily, the unbroken stream of judicial dicta is to the effect that communications between attorney and client having to do with the client's contemplated criminal acts, or in aid or furtherance thereof, are not covered by the cloak of privileges ordinarily existing in reference to communications between attorney and client. 3. In the present cases, the testimony sought to be elicited from Sansate as state witness are the communications made to him by physical acts and/or accompanying words of Parades at the time he and Honrada, either with the active or passive participation of Sansaet, were about to falsify, or in the process of falsifying, the documents which were later filed in the Tanodbayan by Sansaet and culminated in the criminal charges now pending in respondent Sandiganbayan. Clearly, therefore, the confidential communications thus made by Paredes to Sansaet were for purposes of and in reference to the crime of falsification which had not yet been committed in the past by Paredes but which he, in confederacy with his present corespondents, later committed. Having been made for purposes of a future offense, those communications are outside the pale of the attorney-client privilege. 4. Furthermore, Sansaet was himself a conspirator in the commission of that crime of falsification which he, Paredes and Honrada concocted and foisted upon the authorities. It is well settled that in order that a communication between a lawyer and his client may be privileged, it must be for a lawful purpose or in furtherance of a lawful end. The existence of an unlawful purpose prevents the privilege from attaching. 26 In fact, it has also been pointed out to the Court that the "prosecution of the honorable relation of attorney and client will not be permitted under the guise of privilege, and every communication made to an attorney by a client for a criminal purpose is a conspiracy or attempt at a conspiracy which is not only lawful to divulge, but which the attorney under certain circumstances may be bound to disclose at once in the interest of justice." It is evident, therefore, that it was error for respondent Sandiganbayan to insist that such unlawful communications intended for an illegal purpose contrived by conspirators are nonetheless covered by the so-called mantle of privilege. To prevent a conniving counsel from revealing the genesis of a crime which was later committed pursuant to a conspiracy, because of the objection thereto of his conspiring client, would be one of the worst travesties in the rules of evidence and practice in the noble profession of law. d. THE LAWYER CANNOT BE HURT PROFESSIONALLY OR PERSONALLY BY THE PRIVILEGE. Instances: 1. The privilege should not be applied so strictly that it will lead to prejudice the lawyer. Therefore, if the lawyer stands to be disbarred because of that ACP, he has to right to circumvent the privilege. 2. An attorney may circumvent the privilege if revealing information would relieve him or her of accusations of wrongdoing. 3. Therefore, if the lawyer and client become involved in the controversy themselves, the privilege will also NOT apply because the lawyer stands to be protected by the privilege. e. PRIVILEGE IS OWNED BY THE CLIENT. It is he who can invoke the privilege. If the client waives the privilege, no one else including the attorney can invoke it. Hence it the client is asked on cross-examination of his communications to his lawyer and reveals the same there would be a waiver. There is also a waiver if the client does not object to the attorney’s testimony.
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law on evidence
f.
A client is not always a person; A CORPORATION CAN BE A CLIENT AND CAN HAVE A RIGHT TO THE ATTORNEY-CLIENT PRIVILEGE.
g. DOES THE Attorney-client privilege stand to extend to MERE REQUEST OF INFORMATION? NO. SAURA V. AGGDEPPA February 17, 2000 Lawyer was asked to give information regarding the sale fo real property. HELD: The request for the information regarding the sale of the property and to account for the proceeds is not a violation of the attorney-client privilege. Rule 130, Section 24 (b) of the Rules of Court providesXXXX The information requested by petitioners is not privileged. The petitioners are only asking for the disclosure of the amount of the sale or account for the proceeds. Petitioners certainly have the right to ask for such information since they own the property as co-heirs of the late Ramon E. Saura and as co-administrators of the property. Hence, respondent cannot refuse to divulge such information to them and hide behind the cloak of the attorney-client relationship. Attorney-Client Privilege Bar 2008 Q: A tugboat owned by Speedy Port Service, Inc. (SPS) sank in Manila Bay while helping tow another vessel, drowning five (5) of the crew in the resulting shipwreck. At the maritime board inquiry, the four (4) survivors testified. SPS engaged Atty. Ely to defend it against potential claims and to sue the company owning the other vessel for damages to the tug. Ely obtained signed statements from the survivors. He also interviewed other persons, in some instance making memoranda. The heirs of the five (5) victims filed an action for damages against SPS. Plaintiffs' counsel sent written interrogatories to Ely, asking whether statements of witnesses were obtained; if written, copies were to be furnished; if oral, the exact provisions were to be set forth in detail. Ely refused to comply, arguing that the documents and information asked are privileged communication. Is the contention tenable? Explain. ANSWER: The contention is not tenable. The documents and information sought to be disclosed are not privileged. They are evidentiary matters which will eventually be disclosed during the trial. What is privileged under sec. 24b of R 130 is (a) the communication made by the client to the attorney, or (b) the advice given by the attorney, in the course of, or with the view to professional employment. The information sought is neither a communication by the client to the attorney nor is it an advice by the attorney to his client. Physician-Patient Privilege – Rule 30, Sec. 24 (c) A person authorized to practice medicine, surgery or obstetrics cannot in a CIVIL CASE, without the consent of the patient, be examined as to - Any advice or treatment given by him or - Any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in capacity, and which would blacken the reputation of the patient; - This privilege belongs to the patient, so that it is only he that can claim or waive it. It is waivable expressly or impliedly. It is impliedly waived like any other privilege rule. (Penn. Mutual Life Ins. Co. v. Wiler, 100 Ind. 92) - The waiver may be by a contract as in medical or life insurance
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law on evidence - When the patient answers questions on cross examination, there is waiver - Under Rule 28 ROC, the court may order a party to submit to a physical or mental examination, so long as the mental or physical condition is in dispute. The party examined may request a report of the examination. By doing so, he waives any privilege he may have in that action regarding the testimony of every other person who has examined him in respect of the same examination. This privilege does not apply when the doctor is presented as an expert witness and only hypothetical problems were presented to him. (Lim vs. CA, 1992)
PRIEST-PENITENT PRIVILEGE COMMUNCATION (d) A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs; BASIS OF THE PRIVILEGE: Do you know that priest-penitent privilege is directly taken from Canon law? It is not a creature of law but a creature of the Catholic Church. Before the reformation, England was roman catholic country and canon law was the law followed then. CANON 21 "Let the priest who dares to make known the sins of his penitent be deposed", and he goes on to say that the violator of this law should be made a life-long, ignominious wanderer. Canon 21 of the Fourth Lateran Council (1215), binding on the whole Church, lays down the obligation of secrecy in the following words: "Let the priest absolutely beware that he does not by word or sign or by any manner whatever in any way betray the sinner: but if he should happen to need wiser counsel let him cautiously seek the same without any mention of person. For whoever shall dare to reveal a sin disclosed to him in the tribunal of penance we decree that he shall be not only deposed from the priestly office but that he shall also be sent into the confinement of a monastery to do perpetual penance" The sacramental seal is inviolable. It is a crime for a confessor in any way to betray a penitent by word or in any other manner or for any reason" (No. 2490). A priest, therefore, cannot break the seal to save his own life, to protect his good name, to refute a false accusation, to save the life of another, to aid the course of justice (like reporting a crime), or to avert a public calamity. He cannot be compelled by law to disclose a person's confession or be bound by any oath he takes, e.g. as a witness in a court trial. A priest cannot reveal the contents of a confession either directly, by repeating the substance of what has been said, or indirectly, by some sign, suggestion, or action. A Decree from the Holy Office (Nov. 18, 1682) mandated that confessors are forbidden, even where there would be no revelation direct or indirect, to make any use of the knowledge obtained in the confession that would "displease" the penitent or reveal his identity. What happens if a priest violates the seal of confession? A confessor who directly violates the seal of confession incurs an automatic excommunication reserved to the Apostolic See (the POPE); if he does so only indirectly, he is to be punished in accord with the seriousness of the offense." From the severity of the punishment, we can clearly see how sacred the sacramental seal of confession is in the eyes of the Church. Priest/Minister- Penitent Privilege NOTE! The privilege extends not only to a confession made by the penitent but also to any advice given by the minister or priest. (remember: A minister or priest will not only be approached in the sacrament of confession. They are spiritual advisers. Even if there is no sacrament of confession in your religion, the privilege still applies because you still go to your spiritual leaders
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law on evidence for advice) The confession and the advice must have been made or given pursuant to the course of discipline of the denomination or sect to which the minister or priest belongs. Thus, the minister or priest must be duly ordained or consecrated by his sect. Not every communication made to a minister or priest is privileged. The communication must be made pursuant to confession of sins, as clearly provided in the rule. The advice given as a result of the confession must be made in the minister’s processional character or in his spiritual capacity. Accordingly, where the penitent discussed business arrangements with the priest, the privilege does not apply.
PUBLIC OFFICER PRIVILEGE (e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. What do you notice? It is a PERPETUAL PRIVILEGE and is one of the most loose exceptions or privilege because of the last clause, “when the court finds the public interest would suffer by the disclosure”. Therefore, you have to make prior disclose to the court so that they can determine if the public interest would suffer. This is what makes it different from the attorney-client privilege because in the latter, you can ALWAYS invoke the attorney-client privilege communication. That cannot be revealed even to the court! Diri, kelangan nimu i-reveal sa sa court bago pa mahibal-an nga public interest will suffer by the disclosure. So it’s a very lose exception but a perpetual privilege imposed against the public officer. REMEMBER: Communications made to the public officer in official confidence are privileged when the court finds that the disclosure would adversely affect the public interest. It is the interest of the public that is sought to be protected by the rule. Hence, the disclosure or non-disclosure is not dependent on the will of the officer but the determination of a competent court. The privilege may be invoked not only during the term of office of the public officer but also after. The privileged communications under the Rules of court find no application on matters falling within the ambit of Constitutional guarantees. The constitution of the phils recognizes the right of the people to information on matters of public concern, access to official records and documents and papers pertaining to official acts, transactions or decisions as well as the government research data used as basis for policy development subject to such limitation as may be provided by law. What is ABSOUTELY PRIVILEGED? Matters of National security or state secrets; A society may not be able to conduct its business with total openness in matters of national interest. Therefore, it should not be divulged. What happens if public officer divulges matters affecting national interest or national security? He can be charged with ESPIONAGE. PROTECTION TO WHISTLE BLOWERS There is also a school of thought or notion given the need to PROTECT THE IDENTITY OF INDIVIDUAL TO PROVIDE INFORMATION TO THE GOVERNMENT. i.e. government informants. We must remember that witnesses are always reluctant to testify especially in criminal cases.
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That is why the government must also consider that this is not just a matter of protecting its own secrets but by requiring confidentiality of information upon public officers but there should also be information for those people who supply these information to public officers speciall y in thematter of law enforcement. However, in the way the rules of court are worded, WALA tay ingana nga privilege afforded to whistle blowers but there is a provision which allows you to become a STATE WITNESS.
2. TESTIMONIAL PRIVILEGE SEC. 25. Parental and filial privilege. – No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. WHO MAY NOT BE COMPELLED TO TESTIFY? 1. Person against his parents or other direct ascendants (FILIAL PRIVILEGE) 2. Person against his children or other direct descendants (PARENTAL PRIVILEGE) RATIONALE OF THE RULE To preserve the harmonious relations between parent and child who could ruptured through testifying in court. Furthermore, perjury may result because the parent or the child may give false testimony to protect the other. TESTIMONIAL PRIVILEGE NOT A TESTIMONIAL DISQUALIFICATION Note that this is a testimonial privilege, not a testimonial disqualification (§22-24 of Rule 130). Here, the witness is the holder of the privilege and has the power to invoke or waive the privilege. He cannot be compelled but he is not prohibited to testify. The relative against whom he is testifying cannot invoke nor waive the privilege. Can a parent testify against a child or a descendant? Yes. But he cannot be compelled. Can a child testify against his parent or ascendant?Yes. But he cannot be compelled. Nota Bene: under Art. 215. No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one parent against the other. There seem to be an inconsistency with this provision right? However, there is an inconsistency between the Rules of court and Family Code with respect to this privilege. Rules of Court prevail since it took effect in 1989 and is made by the SC. While the Family Code took effect in 1989, and though substantive is procedural in character. INSTANCE WHEN A CHILD CAN BE COMPELLED TO TESTIFY "No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one parent against the other". (Art. 215 Family Code) Hence, a descendant may be compelled to testify in a criminal case where: 1. the descendant-witness himself is the victim, or 2. the descendant-witness’s parent commits a crime against the descendant-witness’s other parent.
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law on evidence and the testimony of the descendant is indispensable. In such cases, the descendant can be required to testify. Note that an ascendant may not be compelled to testify even if it is a crime by the descendant against the ascendant-witness. The ascendant-witness may testify voluntarily though. “No person may be compelled”—it means you cannot be made to do something against your will. However, Parental and filial privilege does not prohibit voluntary testimony or compelled testimony against relatives by affinity or collateral relatives. The rule protects the person from compelled testimony. It is only when he refuses to do so, that section 25 applies. That is why for me that this provision is a toothless provision. If the rationale of the rule is to preserve familial harmony, why is it that there is a qualification to the rule? Why is it that only compulsion is guard against? WHO ARE NOT COVERED AND MAY BE COMPELLED TO TESTIFY: 1) Relatives by affinity. 2) Brothers and sisters. 3) Aunts, uncles, nephews, nieces. 4) Cousins of whatever degree. 5) Other collateral relatives. Parental and filial privilege does not prohibit voluntary testimony or compelled testimony against relatives by affinity or collateral relatives. APPLICABILITY OF THE RULE TO ADOPTED AND ADOPTER It is believed that adopted and adopter are covered by the parental and filial testimonial privilege rule but only insofar as the parent and child is concerned. It does not extend to the direct ascendants of the adopter because the adoptive relation is between the adopter and the adopted only. The reason for this opinion is the rationale behind the privilege, which is to preserve harmonious relations between parent and child which could be ruptured through testifying in court. Furthermore, perjury may result because the parent or the child may give false testimony to protect the other.
3. ADMISSIONS AND CONFESSIONS SEC. 26. Admissions of a party. – The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. ADMISSIONS OF A PARTY Review: JUDICIAL ADMISSIONS Section 4, Rule 129: An admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. Judicial admission is defined as deliberate, clear, unequivocal statement by a party about a concrete fact within that party's knowledge. It is also called as “admission in judicio”. It must be deliberate because an admission will not bind the party making it if it was made by mistake. It must be clear and unequivocal and it must not admit to two or more interpretations.
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law on evidence It is a formal concession in the pleadings or stipulations that can be made by counsel or the party that is binding on them. Although a judicial admission is not itself evidence, it has the effect of withdrawing a fact from contention. Judicial admission therefore is dispenses proof. EFFECT EXTRAJUDICIAL ADMISSION (Section 26) If judicial admission has the effect of dispensing with proof, section 26 on extrajudicial admissions has no such effect. But the effect immediately is that it may given in evidence against you in the court of law (so be careful of what you say) this is similar to the Miranda rights. PRINCIPLE: An admission is subject to certain weight to be considered by the court if the admission is AGAINST your interest and not to admit something that will further your own interest. “ACT, DECLARATION OR OMISSION” Act-- section 27—in criminal cases, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. Declaration—you declare something as a fact. You can say it orally or in writing. Omission—failure to act or to make a declaration when a person has to make such a declaration. For example, section 32-- An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him. Before we go to the specifics of section 26, let me jump first to section 36. HEARSAY RULE SEC. 36. Testimony generally confined to personal knowledge; hearsay excluded. – A witnesses can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. HEARSAY EVIDENCE is evidence based on the reports of others the personal knowledge of a witness and therefore generally not admissible as testimony. REASON for not allowing it: lack of cross-examination-- The person who is being examined is not the source of information. To make the information really relevant and admissible, it simply means that whoever the source of the information is, the person who has personal knowledge of fact must be the one who is brought to the witness stand to be cross-examined. That is the only way for you to know the truth or falsity of the allegations. The witness who testifies on hearsay can always say on cross-examination that what he said is all he knows and the person who really knows the answer is the declarant. Technically, an admission when offered as evidence against the party making it violates the hearsay. Why? Situation: A and D are friends. They’re talking. Ana si A nga naa xay utang kay D. C then files a case against A based on that loan of 50 K but actually, he has no evidence. No proof nga naay utang. Now D testified against A. A objects based on the hearsay. Technically, that is really hearsay. It was made out of the courtroom. You are
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law on evidence testifying not based on your personal knowledge but based only on what was told to you. Can D really say that he knows A has an utang to D? NO he cannot. All he can say is that “A said” nga naa xay utang kay C. he has no knowledge whatsoever as to the contract between the parties other than the admission. When that happens, the witness who sponsors the testimony in the witness stand merely testifies on a recall of a matter of fact. The witness will not really be testifying based on his personal knowledge. What the rule clearly says, “act, declaration or omission of a party used as evidence against him”. Section 26 is actually an exception to the rule that the witness can only testify only to facts based on his personal knowledge and derived from his own perception. An admission made out of court by a party can be used as evidence against the said party.
ARE ALL TYPES OF ADMISSIONS ADMISSIBLE AS EVIDENCE AGAINST SUCH PARTY MAKING IT? NO, an admission can also be admitted as to testimonies favorable to the party making it. An admission can be an admission per se, which is the subject of section 26 and a self-serving admission. Situation: A and B are friends. A goes to B and A says nga nakabayad na xa sa iyang utang. C files a case against A and A wants to present B as witness to say nga nabayaran na niya iyang utang kay C. Answer: NO. That is a self-serving admission. If the rule were otherwise, remember in a criminal case, sometimes the superiority of witnesses can be a factor for the court to give weight to your testimony. Thefore, applied in this case, if we rule otherwise, A will not only go to b but he will go to D, E, F, G,etc. when the creditor C files a case against him, he will present these witnesses to support his allegation of payment. If the rule were otherwise, you can PLANT EVIDENCE because it is a self-serving admission. Therefore, AN OBJECTION MAY BE RAISED AS TO THE ADMISSIBILITY OF ACTS, OMISSIONS, OR DECLARATIONS FAVORABLE TO THE PARTY MAKING IT ON THE GROUNDS OF THAT THESE ARE SELF-SERVING AODS. The argument is “Rule 130 Section 26 ONLY allows evidence of acts, omissions and declarations prejudicial to the party making such declaration. SELF-SERVING EVIDENCE Self-serving evidence is evidence made by a party out of court at one time; it does not include a party's testimony as a witness in court. It is excluded on the same ground as any hearsay evidence that is the lack of opportunity for cross-examination by the adverse party and on the consideration that its admission would open the door to fraud and to fabrication of testimony. On the other hand, a party's testimony in court is sworn and affords the other party the opportunity for cross-examination. It is simply an admission favorable to the party making it. (Lichauco v. Atlantic Gulf & Pacific Co., 84 Phil. 342)
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The concept of self-serving evidence does not include a party’s testimony or admissions as a witness in court. Whatever you say in court, it does not matter if whatever you say is self-serving or not. REQUISITES OF SELF-SERVING EVIDENCE 1. The testimony is favorable to the declarant 2. It is made extrajudicially and 3. It is made or appears to have been made in anticipation of litigation. How do you know? You can’t prove the state of the mind of the person. REASONS why self-serving or favorable admissions made out of court not admissible: 1) A man may be safely believed if he declares against his own interest, but not if he advocates his own interest. (Lichauco v. Atlantic Gulf & Pacific Co., 84 Phil. 342) 2) It is excluded on the same ground as any hearsay evidence, that, the lack of opportunity for cross-examination by the adverse party. (National Development Co., v. Workmen's Compensation Commission, 19 SCRA 865) SELF-SERVING V. FAVORABLE ADMISSION Not all favorable admissions can be technically considered self-serving. If it is an admission, although favorable to the declarant but it is made in open court with full opportunity for the adverse party to cross-examine the witness, that is not considered self-serving admission although it may be favorable. When self-serving or favorable admissions become admissible: 1) If made in open court 2) giving full opportunity to the adverse party 3) to exercise his right of cross-examination. HEIRS OF CLEMENA V. HEIRS OF BIEN G.R. No. 155508 September 11, 2006 Petitioners' next proposition, i.e., that Gregorio Clemeña's testimony was self-serving and therefore an improper basis for the damages awarded to respondents, is just as unworthy of this Court's favorable consideration. "Self-serving evidence," perhaps owing to its descriptive formulation, is a concept much misunderstood. Not infrequently, the term is employed as a weapon to devalue and discredit a party's testimony favorable to his cause. That, it seems, is the sense in which petitioners are using it now. This is a grave error. "Self-serving evidence" is not to be taken literally to mean any evidence that serves its proponent's interest. 29 The term, if used with any legal sense, refers only to acts or declarations made by a party in his own interest at some place and time out of court, and it does not include testimony that he gives as a witness in court. 30 Evidence of this sort is excluded on the same ground as any hearsay evidence, that is, lack of opportunity for cross-examination by the adverse party and on the consideration that its admission would open the door to fraud and fabrication.31 In contrast, a party's testimony in court is sworn and subject to crossexamination by the other party,32 and therefore, not susceptible to an objection on the ground that it is self-serving. At any rate, for all their protestations against the use of Gregorio Clemeña's testimony, petitioners never once alleged, much less tried to show, that his testimony was inaccurate or untrue. As already observed, petitioners' objection is founded solely on the mere fact that he, being a plaintiff, was a witness interested in the outcome of the case.
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law on evidence Now, it is true that a party's interest may to some extent affect his credibility as a witness.33 To insist otherwise would be the height of naiveté. Nonetheless, the Court cannot subscribe to the view, implicit in petitioners' argument, that a party'stestimony favorable to himself must be disregarded on account solely of his interest in the case. Our justice system will not survive such a rule for obdurate cynicism on the part of a court is just as odious to the administration of justice as utter gullibility. Moreover, this Court held in National Development Company v. Workmen's Compensation Commission34 that interest alone is not a ground for disregarding a party's testimony.35 Elsewhere it has been said that the interest of a witness does not ipso facto deprive his testimony of probative force or require it to be disregarded, and the trier of facts is entitled to accept as much of the witness' testimony as he finds credible and to reject the rest.36 To these dicta we give our complete assent. Petitioners' arguments to the contrary must be rejected. REQUISITES OF ADMISSIBILITY OF ADMISSIONS 1. It involves matters of act and not law; (you cannot admit law. Law is not subject to stipulation and therefore, admission must necessarily be limited to admissions on fact;) 2. must be categorical and definite 3. must be Knowingly and voluntarily made and 4. Must be adverse to his interest example, with respect to admissions, his admissions must not be self-serving. Such admission may be received in evidence not only against the party who made it or his successors-in-interest but also against third persons. (Viacrucis vs. CA, 1986) The silence of an accused under custody or his failure to deny statements by another implicating him in a crime cannot be considered as a tacit confession of his participation in the commission of the crime. (People vs. Alegre, 1979) DISTINCTION BETWEEN RULE 129 SEC. 4 V. RULE 130 SEC. 26 First is a JUDICIAL ADMISSION, which is conclusive upon the admitter whether in writing or oral. This applies to civil, criminal cases and even special proceedings. Second is an EXTRAJUDICIAL ADMISSION. Under this rule, the admission is admissible only if it is against the interest of the admitter. (otherwise, it is a self-serving statement) Example: Flight is considered a disserving act, since it is prejudicial to the interest of the accused. Flight is considered as circumstantial evidence of the guilt of the accused. BUT non-flight cannot be used as evidence to prove his innocence, because that will be considered as an act that is favorable to the interest of the accused. JUDICIAL ADMISSIONS; Formal and informal Formal judicial admissions are those made in writing in the motions, pleadings and by virtue of stipulation of facts. Informal judicial admissions are those made orally or are made in the course of the testimony of the party or his witness or in depositions or affidavits or statement of counsel. EXTRAJUDICIAL ADMISSIONS; Express or implied Express means the admission was made in a definite and unequivocal language. Admission is implied if it is merely inferred from the act, declaration or silence of the person.
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Examples of implied extrajudicial admissions: 1. LACHES Laches has been defined as the failure or neglect, for an unreasonable and unexplained length of time, to do that which, by exercising due diligence could or should have been done earlier. It is negligence or omission to assert a right within a reasonable time, warranting the presumption that the party entitled to assert his right has either abandoned or declined to assert it. The doctrine of laches or of "stale demands" is based on grounds of public policy which requires, for the peace of society, the discouragement of stale claims. Unlike the statute of limitations, laches is not a mere question of time but is principally a question of the inequity or unfairness of permitting a stale right or claim to be enforced or asserted (Bergado vs. Court of Appeals, 173 SCRA 497). 2. FLIGHT Flight strongly indicates a guilty mind and betrays the existence of a guilty conscience. (People v. Herrera) Fatetur facinus is qui judicium fugit. He who flees from trial confesses his guilt. 3. ADMISISON BY SILENCE (Rule 130, section 32) “An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him.” 4. OFFER OF COMPROMISE (Rule 130, section 27) An offer of compromise by the accused may be received in evidence as an implied admission. This is the general rule under the law. But it actually underscores the inconsistent position of the law because compromises are encouraged. It will de-clog the dockets of the courts. Suppose, napasanginlan ka na nangawat. So ikaw, what you do is that you offer a settlement. You will offer this much. How does the law treat that? An offer of compromise by the accused may be received in evidence as an implied admission. So it actually discourages compromises. Remember, if you offer a compromise in criminal cases, it has both criminal and civil aspect. If the civil aspect is subjected to a compromise, in all probability it will not result to the dismissal of the criminal aspect but actually, by way of effect, it will lead to the same thing—the dismissal of the case. Why? Because there will be no witnesses anymore. If you cause the complainant to desist because of the compromise agreement, the judge will simply say that “the civil aspect of this case is terminated”, but what about the fact of the criminal aspect? The judge will say, “because of lack of interest of the complainant and other instrumental witnesses, there will be a failure of the prosecution to establish the guilt of the accused beyond reasonable doubt and therefore, they cannot prove this case, the criminal aspect is also hereby dismissed”. This is NOT a mandatory principle. This is not always the case.
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law on evidence CASES OF IMPLIED ADMISSION OF GUILT REPEATED OFFER US V. TORRES 34 PHIL 994 (1916) The repeated offer of the conspirator constitutes a strong indication and an implied admission of guilt of the co-conspirator and the other appellants in this case. LOVE LETTER; Letter of forgiveness PEOPLE V. ABADIES July 11, 2002 Accused-appellant likewise contends that there exists no factual basis for the trial court to consider his plea of forgiveness in his letter to complainant as an implied admission of guilt. The appeal is not impressed with merit. A cursory reading of the relevant parts of the letter will readily show that accusedappellant was indeed seeking pardon for his misdeeds. Some of the pertinent portions read as follows: "I made this letter to ask your 'forgiveness.’ x x x Alam mo bang sobrasobra na ang pagsisisi ko sa ginawa kong iyon. x x x Parang awa mo na Ne hirap na hirap na ako at ang lahat ay buong puso ko ng pinagsisisihan. Patawarin mo na ako anak. x x x." There is no iota of doubt that accused-appellant was asking forgiveness for having committed the acts with which he now stands charged. Settled is the rule that in criminal cases, except those involving quasi-offenses or those allowed by law to be settled through mutual concessions, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. Evidently, no one would ask for forgiveness unless he had committed some wrong and a plea for forgiveness may be considered as analogous to an attempt to compromise. Under the circumstances, accused-appellant’s plea of forgiveness should be received as an implied admission of guilt. PLEADING FOR FORGIVENESS PEOPLE V. ESPANOL February 13,, 2009 Another piece of evidence against appellant was his silence when his wife’s nephew asked him why he killed his wife. His silence on this accusation is deemed an admission under Section 32, Rule 130 of the Rules of Court: xxxxxxx In addition, appellant’s act of pleading for his sister-in-law’s forgiveness may be considered as analogous to an attempt to compromise, which in turn can be received as an implied admission of guilt
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law on evidence OFFER OF MARRIAGE IN RAPE CASES PEOPLE V. BULOS G.R. No. 123542, June 26, 2001 Although the marriage of the accused in a rape case extinguishes the penal action, an offer of marriage is, generally speaking, an admission of guilt. WITHDRAWAL OF APPEAL and ACCEPTANCE OF LOWER PENALTY PEOPLE V. ARSENIO G.R. No. L-57025 April 6, 1990 The withdrawal of his appeal and acceptance of the lowered penalty pursuant to the 1987 Constitution which in Our mind is an implied admission of guilt. This is an admission not of the crime with the lowered penalty but with the crime as charged. Lesson: if you are the accused, do not show any remorse or regret. ATTEMPT TO INFLUENCE WITNESS This is not an implied admission of guilt or innocence but an admission of the weakness of the party’s case, whether as a plaintiff or defendant. an attempt to influence witnesses to testify or not to testify in your behalf but with false testimony, that is an implied admission of the weakness of the case. CHANGE IN FINANCIAL CONDITION A change for the better in the financial condition of a person accused of a crime involving money, shortly or immediately after the date of the crime may be shown upon the theory that sudden or unexplained possession of funds has a tendency to connect said person to the said crime. SILENCE AS AN ADMISSION OF GUILT ESTRADA V. DESIERTO [G.R. Nos. 146710-15. April 3, 2001] A complete analysis of any hearsay problem requires that we further determine whether the hearsay evidence is one exempted from the rules of exclusion. A more circumspect examination of our rules of exclusion will show that they do not cover admissions of a party and the Angara Diary belongs to this class. Section 26 of Rule 130 provides that “the act, declaration or omission of a party as to a relevant fact may be given in evidence against him.” It has long been settled that these admissions are admissible even if they are hearsay. Retired Justice Oscar Herrera of the Court of Appeals cites the various authorities who explain why admissions are not covered by the hearsay rule: “Wigmore, after pointing out that the party’s declaration has generally the probative value of any other person’s asssertion, argued that it had a special value when offered against the party. In that circumstance, the admission discredits the party’s statement with the present claim asserted in pleadings and testimony, much like a witness impeached by contradictory statements. Moreover, he continued,admissions pass the gauntlet of the hearsay rule, which requires that extrajudicial assertions be excluded if there was no opportunity for the opponent to cross-examine because it is the opponent’s own
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law on evidence declaration, and ‘he does not need to cross examine himself.’ Wigmore then added that the Hearsay Rule is satisfied since the party now as opponent has the full opportunity to put himself on the stand and explain his former assertion. (Wigmore on evidence, Sec. 1048 (Chadbourn Rev. 1972), cited in Sec. 154, McCormick) According to Morgan: ‘The admissibility of an admission made by the party himself rests not upon any notion that the circumstances in which it was made furnish the trier means of evaluating it fairly, but upon the adversary theory of litigation. A party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of an oath.’ A man’s acts, conduct, and declaration, wherever made, if voluntary, are admissible against him, for the reason that it is fair to presume that they correspond with the truth, and it is his fault if they do not. (U.S. vs. Ching Po, 23 Phil. 578, 583).” The Angara Diary contains direct statements of petitioner which can be categorized as admissions of a party: his proposal for a snap presidential election where he would not be a candidate; his statement that he only wanted the five-day period promised by Chief of Staff Angelo Reyes; his statements that he would leave by Monday if the second envelope would be opened by Monday and “Pagod na pagod na ako. Ayoko na, masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I don’t want any more of this – it’s too painful. I’m tired of the red tape, the bureaucracy, the intrigue). I just want to clear my name, then I will go.” We noted that days before, petitioner had repeatedly declared that he would not resign despite the growing clamor for his resignation. The reason for the meltdown is obvious - - - his will not to resign has wilted. It is, however, argued that the Angara Diary is not the diary of the petitioner, hence, non-binding on him. The argument overlooks the doctrine of adoptive admission. An adoptive admission is a party’s reaction to a statement or action by another person when it is reasonable to treat the party’s reaction as an admission of something stated or implied by the other person. Jones explains that the “basis for admissibility of admissions made vicariously is that arising from the ratification or adoption by the party of the statements which the other person had made.” To use the blunt language of Mueller and Kirkpatrick, “this process of attribution is not mumbo jumbo but common sense. In the Angara Diary, the options of the petitioner started to dwindle when the armed forces withdrew its support from him as President and commander-in-chief. Thus, Executive Secretary Angara had to ask Senate President Pimentel to advise petitioner to consider the option of “dignified exit or resignation.” Petitioner did not object to the suggested option but simply said he could never leave the country. Petitioner’s silence on this and other related suggestions can be taken as an admission by him. ADMISSIONS; DECLARATION AGAINST CONFESSIONS
INTEREST;
JUDICIAL ADMISSION
;
Admissions of a party should not be confused with declarations against interest, judicial admission and confessions. Admission distinguished from declaration against interest. – An admission is distinguishable from a declaration against interest in several respects. The admission is primary evidence and is receivable, although the declarant is available as a witness; it is competent only when the declarant, or someone identified in legal interest with him, is a party to the action; and need not have been considered by the declarant as opposed to his interest at the time when it was made. The declaration against interest is in the nature of secondary evidence, receivable only when the declarant is unavailable as a witness; it is competent in any action to which it is relevant, although the declarant is not
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law on evidence a party to, or in privity with, any party to the action; and it must have been, when made, to the knowledge of the declarant, against his obvious and real interest. (VIII Francisco, Evidence, 304 [1997 ed.]) Admission distinguished from confession.- The term admission is distinguished from that of confession. The former is applied to civil transactions and to matters of fact in criminal cases not involving criminal intent, the latter to acknowledgements of guilt in crimnal cases. (id., p. 303) Judicial and extra-judicial admission defined.- A judicial admission is one so made in pleadings filed or in the progress of a trial as to dispense with the introduction of evidence otherwise necessary to dispense with some rules of practice necessary to be observed and complied with. Extra-judicial admission is one made out of court. The most important distinction between judicial and other admissions, is that strictly, judicial admissions are conclusive upon the party making them, while other admissions are, as a rule and where the elements of estoppel are not present, disputable. SEC. 27. Offer of compromise not admissible. – In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offerror. In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to a lesser offense, is not admissible in evidence against the accused who made the plea or offer. An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury. 1st paragraph: in civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. OFFER OF COMPROMISE IN CIVIL CASES In civil cases, an offer of compromise is not an admission of any liability, and is not an admission against the offeror. Note that the offer of compromise in civil cases is not admissible only as evidence of liability. If the offer of compromise is offered as evidence on other matters (e.g. amount of liability), then the evidence is admissible. OFFER OF COMPROMISE IN CRIMINAL CASES
1. An offer of compromise by the accused may be received in evidence as an implied admission of guilt. However, the accused may be permitted to prove that such offer was not made under consciousness of guilt but to avoid the risks of criminal actions against him (US vs. Maqui, 27 Phil 97). 2. There is no implied admission of guilt if the offer of compromise is in relation to a. quasi-offenses (criminal negligence); or b. In those cases allowed by law to be compromised (e.g. BIR can compromise tax cases. Sec. 204 RA 8424)
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law on evidence PLEA OF GUILTY LATER WITHDRAWN; UNACCEPTED OFFER OF PLEA OF GUILTY TO A LESSER OFFENSE A plea of guilty later withdrawn is not admissible in evidence against the accused that made the plea and an unaccepted plea of guilty to a lesser offense is not admissible in evidence against the accused who made the plea or offer. (Cross-reference: Rule 116, Sec. 1(f), Rule 118, Secs. 1 and 2) AN OFFER TO PAY OR THE ACTUAL PAYMENT OF MEDICAL, HOSPITAL OR OTHER EXPENSES An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injured party. Such humanitarian acts or charitable responses should be encouraged and rewarded, instead of being discouraged or penalized. Remember: there’s really nothing much here. Just remember when it is admissible or when is it an implied admission of guilt. What I am interested is the last paragraph: “…An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury.” (Good Samaritan Rule) GOOD SAMARITAN RULE The Good Samaritan Rule: An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury. Under torts and damages, if you do something like that, immediately after the injury, it will effectively lessen or mitigate the damages that may be ordered by the court. The Good Samaritan rule applies both to civil and criminal cases. CASES (People vs. Godoy1995)-- It has long been held that in cases of public crimes, the accused is permitted to show that the offer was not made under a consciousness of guilt but merely to avoid the inconvenience of imprisonment of for some other reason which would justify a claim by the accused that the offer was not in truth an admission of his guilt or an attempt to avoid the legal consequences which would ordinarily ensue therefrom. A plea of forgiveness may be considered as analogous to an attempt to compromise. (People vs. De Guzman, 1996) An offer to compromise does not require that a criminal complaint be first filed before the offer can be received as evidence against the offeror. (People vs. Yparriguirre, 1997) Veradero v. Insular Lumber, 46 Phil. 176 (1924) – evidence on an offer to compromise is admissible even in civil cases if it is to prove amount of a liability and not the liability itself.
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law on evidence US v. Torres, 34 Phil. 994 (1916) – offer of compromise in criminal cases inadmissible when accused shows that it was made not under a consciousness of guilt, but merely to avoid inconvenience of imprisonment or for some other reason; in this case, the law allowed compromise, thus the offer to compromise is not admitted. People v. Godoy, 250 SCRA 676 (1995) – offer to compromise made by a person other than the accused is inadmissible if the accused repudiated the actions of such person by raising the trial court’s admission of evidence of such offer as an error. People v. de Guzman, 265 SCRA 228 (1996) – the offer to compromise made by a person other than the accused was admitted in evidence because the accused failed to repudiate such acts by raising the trial court’s admission of evidence on such offer as an error. People v. Yparriguirre, 268 SCRA 35 (1997) – whether a complaint has been filed or not is irrelevant as to the admissibility of an offer to compromise. People vs. Amiscua (1971) - In a rape case, an offer to compromise for a monetary consideration, and not to marry the victim, is an implied admission of guilt. People vs. Valdez (1987) - An offer of marriage by the accused during the investigation of the rape case is also an admission of guilt. MEANING OF COMRPOMISE Article 2028 of the Civil Code defines a compromise as a contract whereby the parties, by making reciprocal concessions, avoid litigation or put an end to one already commenced. The purpose of compromise is to settle the claims of the parties and bar all future disputes and controversies. Article 2034. There may be a compromise upon the civil liability arising from an offense; but such compromise shall not extinguish the public action for the imposition of the legal penalty.
CASES WHERE NO COMPROMISE IS ALLOWED A.M. No. 02-11-10-SC March 4, 2003 Section 16. Prohibited compromise. - The court-shall not allow compromise on prohibited matters, such as the following: (a) The civil status of persons; (b) The validity of a marriage or of a legal separation; (c) Any ground for legal separation; (d) Future support; current support is subject to compromise because there is no res judicata in that case. (e) The jurisdiction of courts; and (f) Future legitime—the Sale of future inheritance as well is not subject to compromise. This is against public policy. Succession opens from the moment death only. OFFER OF COMRPOMISE IN CRIMINAL CASES:
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law on evidence “In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt.” Examples: BIR can compromise tax cases. Sec. 204 RA 8424 The Commissioner may compromise the payment of any internal revenue tax, when: i. A reasonable doubt as to the validity of the claim against the taxpayer exists; or ii. The financial position of the taxpayer demonstrates a clear inability to pay the assessed tax. SEC. 28. Admission by third party. – The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. RES INTER ALIOS ACTA The expression if fully expressed reads: res inter alios acta alteri nocere non debet which literally means that “things done to strangers ought not to injure those who are not parties to them” (Black’s, 5th Ed., 1178). BRANCHES The res inter alios acta rule has two branches, namely: (a) the rights of a party cannot be prejudiced by an act, declaration, or omission or another (Sec. 28, Rule 130, Rules of Court) (b) Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like. (Sec. 34, Rule 132, Rules of Court). The 1st part speak of Statements made or accomplished between parties cannot prejudice a third party. The same rule applies to contracts. Contracts are binding only between contracting parties, their heirs, assigns or successors in interest. It does not allow binding a third person with the sole exception, if this stipulation benefits a 3 rd person or a stipulation pour autrui. The 1 st part of the res inter alios acta rule actually uses the same formula. Here it is essential that: 1. The statements made or accomplished between 2 parties must be prejudicial to that third party. 2. That the rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. The first branch is a very simple and logical rule which holds that whatever one says or does or omits to do should only affect him but should not affect or prejudice others. In other words, both common reason and fairness demand that a man’s actions and declarations should affect him alone and should not affect others. Thus, if X makes a statement before the media admitting his participation in a previous murder, his statement is admissible against him under Sec. 26 of Rule 130. The rest of his statement pointing to Y and Z as co-participants in the murder are not admissible against Y and Z under the first branch of the res inter alios acta rule in Sec. 28 of Rule 130. Under this rule, the statement of X should not affect or prejudice Y and Z. EXCEPTIONS TO RES INTER ALIOS ACTA: 1) When there is a rational similarity or resemblance between the conditions giving rise to the fact offered and the circumstances surrounding the issue or fact to be proved. (Cruz, et al., v. Court of Appeals, et al., G.R. No. 126713, prom. July 27, 1998)
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law on evidence
2) In actions based on fraud and deceit, because it sheds light on the state of mind or knowledge of a person; it provides insight into such person's motive or intent; it uncovers a scheme, design or plan; or it reveals a mistake. (Cruz, supra) 3) (VICARIOUS ADMISSIONS)- The rights of a party may be prejudiced by the act, declaration or omission of another when between the party making the admission and against whom it is offered there exists a relation of: a) Partnership;(section 29) b) Agency; (section 29) c) Joint interest; (section 29) d) Conspiracy; or (section 30) e) Privity (section 31) CASES People v. Tena 215 SCRA 43 (1992) Facts: Accused was convicted of robbery with homicide on the basis of an extra-judicial confession of another admitting his participation in the offense. Held: This is not a coconspirator’s statement because there was no evidence of conspiracy independent of the extra-judicial confession. Furthermore, the confession was executed long after the supposed conspiracy had ended. Escolin: Had the co-conspirator taken the witness stand and pointed to his co-accused, the testimony would have been admissible. In this case, what was presented was a merely his affidavit. People v. Alegre, 94 SCRA 109 (1979) – absent independent evidence of conspiracy, extrajudicial confession of the accused is not admissible against others People v. Raquel, 265 SCRA 248 (1996) – extra-judicial confession of accused can not be used to implicate co-accused unless repeated in open court. People vs. Valero (1982) Facts: Michael and Annabel, children of Ceferino Velasco, died of poisoning after eating bread containing endrin, a commercial insecticide. Their sister Imelda would have also died if not for the timely medical assistance given to her. At about the same time, 3 puppies of Velasco under the balcony where the children ate the bread also died of poisoning. Earlier that morning, Velasco was seen throwing poisoned rats in the river near his house. The evidence of the prosecution shows that the poisoned bread was given to the children by Alfonso Valero alias Pipe, deaf-mute brother of accused Lucila Valero, and that it was Lucila who gave Alfonso the bread to be delivered to the children. Lucila denies the allegation. The evidence of the defense tends to show that the children might have eaten one of the sliced poisoned bread used by their father in poisoning the rats. 3/9 witnesses for the prosecution: 1. Rodolfo Quilang – testified that he saw Lucila deliver something wrapped in a piece of paper to Alfonso and instructed him by sign language to deliver the same to the Velasco children. He never saw what was inside the piece of paper. His testimony as
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law on evidence to WON he saw the parcel delivered to the children was a series of contradictions. He is what the defense counsel calls and “eleventh-hour witness 2. Federico Jaime and Ceferino Velasco – did not see Lucila deliver to Alfonso the alleged parcel, as well as the alleged instruction. Both claimed that they learned the information from Pipe after interviewing him by means of sign language. Testimony of Jaime was confusing. There is nothing in the testimony of Velasco indicating that Alfonso pointed to Lucila as the source of the poisoned bread. Issue: WON the testimonies of Jaime and Velasco may be admitted Held: No. The evidence is pure hearsay. It violates the principle of res inter alios acta. Alfonso, who was the source of the information, was never presented as a witness either for the defense or the prosecution. Testimony of Velasco cannot be considered as part of res gestae because when the information was allegedly obtained by Velasco from Alfonso, nobody was poisoned yet. With regard to the testimony of Jaime, there is no showing that the revelation was made by Alfonso under the influence of a startling occurrence. The failure of the defense counsel to object to the presentation of incompetent evidence does not give such evidence probative value. The lack of objection may make any incompetent evidence admissible. But admissibility of evidence should not be equated with weight of evidence. Hearsay evidence whether objected to or not has no probative value ----------------------------o0o0--------------------The first branch of the rule admits of certain exception, to wit: (a) Admission by a co-partner or agent (Sec. 29, Rule 130); (b) Admission by a co-conspirator (Sec. 30, Rule 130; and (c) Admission by privies (Sec. 31, Rule 130). NOTE: Note that all the exceptions to res inter alios acta require that the relationship be proven by evidence independent of the act or declaration sought to be admitted. SEC. 29. Admission by co-partner or agent. – The act or declaration of a partner or agent of the party within the scope of his authority and during the existence of the partnership or agency may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. Remember: for this rule to apply, you have to prove the EXISTENCE of a partnership or agency FIRST! You cannot prove it by that same act or declaration; it has to be another act or declaration. Prove the partnership first before you are allowed to prove the admission! partner or agent – establish partnership by fact other than the admission of the partner such as the certificate of registration of partnership, document (agreement/contract stating such partnership [ex. Bank loan]), or testimony (as to its dealings); partner acting within scope of authority; and during the existence of the relationship. Take note of those requisites as they more or less apply to the rest, save for certain words. Agency – agency must be established by facts other than the admission. How constituted? Through a GPA (admi), specific/ownership (SPA). Show authority. Act was made during the existence of the agent-principal relationship. Same as in joint debtor, interest, owner (they have commonality of interest in all)
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law on evidence Agent – unity of interest because he affirms and confirms principal’s acts; during agency’s existence and within the scope of his authority (otherwise, ultra vires; subject to ratification subsequent to the act) RULE ON ADMISSION BY CO-PARTNER OR AGENT: 1) The act or declaration of a partner or 2) agent within the scope of his authority and during the existence of the partnership or agency, 3) may be given in evidence against such party 4) after the partnership or agency a) is shown by evidence [(testimonial or documentary, which may be 2ndary evidence)] b) other than such act or declaration. 5) The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. (Sec. 29, Rule 130, ROC arrangement and numbering supplied) SEC. 30. Admission by conspirator. – The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration. Same rule: prove the conspiracy first. RULE ON ADMISSION BY CONSPIRATOR 1) The act or declaration of a conspirator 2) relating to the conspiracy and during its existence, 3) may be given in evidence against the co-conspirator 4) after the conspiracy a) is shown by evidence (Circumstantial Evidence- cannot be proven by documentary evidence, since conspirators do not normally reduce their agreement in writing) b) other than such act or declaration. (Sec. 30, Rule 130) *This refers to extrajudicial acts and declarations of a conspirator and not to his testimony as a witness in the trial. (People v. Atencio, L-222518, Jan. 17, 1968) HOW TO PROVE CONSPIRACY Conspiracy cannot be proven by written evidence. It is shown by circumstantial evidence or by the conduct of the accused. Direct proof is not essential to prove conspiracy. 19 A conspiracy may be inferred without need of showing that the parties actually came together and agreed in express terms to enter into and pursue a common design. The doctrine is well settled that conspiracy need not be proved by direct evidence of prior agreement to commit the crime, Very seldom would such prior agreement be demonstrable since, in the nature of things, criminal undertakings are only rarely documented by agreements in writing. GENERAL RULE: extrajudicial statements of an accused implicating a co-accused may not be utilized against the latter EXCEPTIONS to the rule that extrajudicial statements of an accused implicating a co-accused may not be utilized against the latter:
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law on evidence
(2) (3) (4) (5) (6) (7)
(1) the co-accused impliedly acquiesced in or adopted the confession by not questioning its truthfulness; the accused persons voluntarily and independently executed identical confessions without collusion and without contradiction by the others present; the accused admitted the facts after being apprised of the confession; if they are charged as co-conspirators of the crime which was confessed by 1 of the accused and the confession is used only as a corroborating evidence; the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator; the confessant testified for his co-defendant; the co-conspirator’s extrajudicial confession is corroborated by other evidence on record. (People vs. Raquel, 1996)
When does conspiracy exist? Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it (Art. 8, RPC). Once conspiracy is proven, the act of one is the act of all. The statement therefore of one may be admitted against the other co-conspirators as an exception to the rule of res inter alios acta. Requisites for admissibility For the exception to apply, the following requisites must concur: (a) The declaration or act be made or done during the existence of the conspiracy; (b) The declaration or act must relate to the conspiracy; and (c) The conspiracy must be shown by evidence other than the declaration or act. Cases People vs. Serrano This rule applies only to extrajudicial acts or statements and not to testimony given on the witness stand at the trial where the party adversely affected thereby has the opportunity to cross-examine the declarant. An admission by a conspirator is admissible against his co-conspirator if: 1. Such conspiracy is shown by evidence aliunde 2. Admission was made during the existence of the conspiracy 3. Admission relates to the conspiracy itself These are not required in admissions during the trial as the co-accused can examine the declarant. Judicial admissions - admissions after the conspiracy has ended Existence of conspiracy may be inferred from 1. Acts of the accused 2. Confessions of the accused 3. By prima facie proof thereof People vs. Alegre (1976): Where there is no independent evidence of the alleged conspiracy, the extrajudicial confession of an accused cannot be used against his co-accused as the res inter alios rule applies to both extrajudicial confessions and admissions Extrajudicial admission made by a conspirator after the conspiracy has ended and even before trial – not admissible against co-conspirator Except: 1. If made in the presence of the co-conspirator who expressly or impliedly (tacit admission, Rule 130.32) agreed therein
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law on evidence 2. Where the facts stated in the said admissions are confirmed in the individual extrajudicial confessions made by the co-conspirators after their apprehension 3. As a circumstance to determine the credibility of a witness 4. As circumstantial evidence to show the probability of the co-conspirator’s participation in the offense People vs. Ola (1987: In order that the extrajudicial statements of a co-accused may be taken into consideration in judging the testimony of a witness, it is necessary that the statements are made by several accused, the same are in all material respects identical, and there could have been no collusion among said co-accused in making such statements. People v. Cabrera, 57 SCRA 715 (1974): Facts: Accused was convicted based on the extrajudicial confession of his co-accused. Held: The statement was made after, not during, the conspiracy, hence it was inadmissible. People v. Yatco, 97 Phil. 941 (1955) – confession regarding conspiracy may be used against confessor (multiple admissibility); confession regarding conspiracy should be conditionally admitted until conspiracy is proved; statements must be made during the conpiracy and in furtherance of its object to be admissible. People v. Chaw Yaw Shun, 23 SCRA 127 (1968) – conspiracy must be proved by independent evidence other than the confession; reiterated “in furtherance” People v. Serrano, 105 Phil. 531 (1959) – requirement that conspiracy must be shown 1 st other than confession applies only to extra-judicial confessions not to testimony in open court. SEC. 31. Admission by privies. – Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former. RULE ON ADMISSION BY PRIVIES Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former Example: X, father of Z, while the former was alive, openly told his acquaintances, that the land where his house stood had already been sold to Y. Here, the declaration by X is not admissible against Z, the sole heir of Y, because the statement was made after X held title to the land. SECOND PART OF INTER ALIOS ACTA RULE (Similar acts as evidence) Rule 130, Secs. 34 SEC. 34. Similar acts as evidence. – Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or a similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like. REASON FOR THE RULE It is clear that evidence of other crimes compels the defendant to meet charges of which the indictment gives him no information, confuses him in his defense, raises a variety of issue, and thus diverts the attention of the court from the charge immediately before it. The rule may be said to be an application of the principle that the evidence must be confined to the point in issue in the case on trial. In other words, evidence of collateral offenses must not be received as substantive evidence of the offenses on trial
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law on evidence APPLICABILITY: Sec. 34 is the second branch of the rule of res inter alios acta (Rule 130, Sec. 28) and applies to both civil and criminal cases. CASES US v. Evangelista 24 Phil 453 (1913): In a trial for arson, the prosecution may prove that the accused had attempted to set fire to the house on the day previous to the burning alleged in the information, for the purpose of showing the intent of the accused in subsequently setting fire to the house. Where a person is charged wit the commission of a specific crime, testimony may be received of the other similar acts committed about the same time, only for the purpose of establishing the criminal intent of the accused. US v. Pineda 37 Phil 457 (1918): Facts: A druggist filled a prescription for protassium chlorate with barium chlorate, a poison, causing the death of two horses. After analyzing the packages, two chemists went to the drug store of the defendant and bought potassium chlorate, which when analyzed was found to be barium chlorate. Held: The testimony of the chemist was admissible in order to demonstrate defendant's motive and negligence. It is permissible to ascertain defendant's knowledge and intent and to fix his negligence. If the defendant has on more than one occasion performed similar acts, accident in good faith is possibly excluded, negligence is intensified, and fraudulent intent may even be established. There is no better evidence of negligence than the frequency of accidents. Evidence is admissible in a criminal action which tends to show motive, although it tends to prove the commission of another offense by the defendant. People v. Irang 64 Phil 285 (1937): Facts: After barging into her home, a man ordered Maximiniana Vicente to bring out her money and jewelry. As she turned over the items, she looked at the man's face and saw that he had pockmarks and a scar on his left eyelid. Irang was identified by Maximiana from a police line-up and was charged. During the trial, Maximiana’s neighbor, Juana de la Cruz, testified that on the night in question, her house was assaulted by malefactors. de la Cruz noticed that one of them had pockmarks and a scar on the left eyelid. She identified that man to be Irang. Held: The testimony of Juana de la Cruz indirectly corroborates Maximiniana’s testimony that the man of the same description was the one who went to her house and demanded delivery of her money and jewelry. While evidence of another crime is, as a rule, not admissible in a prosecution for robbery, it is admissible when it is otherwise relevant, as where it tends to identify defendant as the perpetrator of the robbery charged, or tends to show his presence at the scene or in the vicinity of the crime at the time charged, or when it is evidence of a circumstance connected with the crime. SEC. 32. Admission by silence. – An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him. REQUISITES FOR ADMISSIBILITY To be admissible against a party as an admission by silence, the following requisites must concur: 1. hearing and understanding-- He must have heard or observed the act or declaration of the other person; and he must have understood the statement; 2. He must have had the opportunity and the necessity to deny it; 3. The statement must refer to a matter affecting the parties’ rights. 4. The facts are within his knowledge; and
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law on evidence 5. The fact admitted or the inference to be drawn from his silence is material to the issue. ADMISSION BY SILENCE Admission by silence has been traditionally received even in common law as admissible evidence. The usual pattern for its admissibility involves a statement by a person in the presence of a party to the action, criminal or civil. The statement contains assertions against the party, which, if untrue would be sufficient cause for the party to deny. His failure to speak against the statement is admissible as an admission. Suppose a policeman, upon approaching a group of bystanders, points to one of them and accuses him to be the killer of a man found dead the night before. The man pointed at does not respond. He does not deny the accusation. His failure to respond may be given in evidence against him. The idea of the rule on admission by silence is that if an accusation is made, and a reasonable person would have denied the same if it were false, the failure to deny the accusation by the person accused is an implied admission of the truth of the accusation. RULE APPLICABLE BOTH TO CRIMINAL AND CIVIL CASES The rule on admission by silence applies to both criminal and civil cases although must be received with caution because not every silence is an admission. For instance, the silence of a person under investigation for the commission of an offense should not be construed as an admission by silence because of constitutional reasons (Sec. 2(b), R.A. 7438). Not every silence of a party is admissible. It is necessary that: (a) that he heard and understood the statement; (b) that he was at liberty to make a denial; (c) that the statement was about a matter affecting his rights or in which he was interested and which naturally calls for a response; (d) that the facts were within his knowledge, and; (e) that the fact admitted from his silence is material to the issue (People vs. Paragsa, 84 SCRA 105). Thus, in one case, despite the many opportunities given to the respondent, he refused to comment and present his side. The gravity of the charges and the weight of the evidence against him would have prompted an innocent man to come out and clear his name. However, he opted to maintain his silence. His silence can easily be interpreted as an admission of guilt (Ortiz vs. De Guzman, A.M. No. P-03-1708, February 26, 2005; OCA vs. Bernardino, 450 SCRA 88, January 31, 2005). EXCEPTIONS TO THE RULE ON ADMISSION BY SILENCE OR INSTANCES WHERE THERE IS NO ADMISSION BY SILENCE: 1) Where no good reason exists for the party to comment on the act or declaration (Veil v. Strong, 10 Vt. 455), as when the act or declaration was not specifically directed to the party who remained silent. (80 A.L.R., Anno., 1272) 2) When the party had no opportunity to comment on the act or declaration. (People v. Ranario, 49 Phil. 220) 3) Where the act or declaration was made in the course of an official investigation. (People v. Tia Fong, 98 Phil. 609) 4) When silence is upon advice of counsel. (People v. Kozlowski, 115 A.L.R. 1505) PEOPLE V. ALEGRE
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law on evidence 94 SCRA 109 (1979) The silence of the accused or his failure to deny statements by another implicating him in a crime cannot be considered as an admission of his tacit participation in the commission of the crime.
Keep in mind that a person under investigation for the commission of a crime has the right to remain silent and to be informed of that right Rule applies to adverse statements in writing if the party was carrying on a mutual correspondence with the declarant. If no such mutual correspondence, rule is relaxed. A prompt response can generally not be expected if the party still has to resort to a written reply, as opposed to a statement orally made.
DOCTRINE OF ADOPTIVE ADMISSION (VIP CASE) ESTRADA V. DESIERTO [G.R. Nos. 146710-15. April 3, 2001] ISSUE: WHETHER THE ANGARA DIARY IS INADMISSIBLE FOR BEING VIOLATIVE OF THE FOLLOWING RULES ON EVIDENCE: HEARSAY, BEST EVIDENCE, AUTHENTICATION, ADMISSIONS AND RES INTER ALIOS ACTA; Petitioner devotes a large part of his arguments on the alleged improper use by this Court of the Angara Diary. It is urged that the use of the Angara Diary to determine the state of mind of the petitioner on the issue of his resignation violates the rule against the admission of hearsay evidence. We are unpersuaded. To begin with, the Angara diary is not an out of court statement. The Angara Diary is part of the pleadings in the cases at bar. Petitioner cannot complain he was not furnished a copy of the Angara Diary. Nor can he feign surprise on its use. To be sure, the said Diary was frequently referred to by the parties in their pleadings. The three parts of the Diary published in the PDI from February 4-6, 2001 were attached as Annexes A-C, respectively, of the Memorandum of private respondents Romeo T. Capulong, et al., dated February 20, 2001. The second and third parts of the Diary were earlier also attached as Annexes 12 and 13 of the Comment of private respondents Capulong, et al., dated February 12, 2001. In fact, petitioner even cited in his Second Supplemental Reply Memorandum both the second part of the diary, published on February 5, 2001, [4] and the third part, published on February 6, 2001.[5] It was also extensively used by Secretary of Justice Hernando Perez in his oral arguments. Thus, petitioner had all the opportunity to contest the use of the Diary but unfortunately failed to do so. Even assuming arguendo that the Angara Diary was an out of court statement, still its use is not covered by the hearsay rule. [6]Evidence is called hearsay when its probative force depends, in whole or in part, on the competency and credibility of some persons other than the witness by whom it is sought to produce it. [7] There are three reasons for excluding hearsay evidence: (1) absence of cross examination; (2) absence of demeanor evidence, and (3) absence of the oath. [8] Not at all hearsay evidence, however, is inadmissible as evidence. Over the years, a huge body of hearsay evidence has been admitted by courts due to their relevance, trustworthiness and necessity.[9] The emergence of these exceptions and their wide spread acceptance is wellexplained by Weinstein, Mansfield, Abrams and Berger as follows: “x x x On the other hand, we all make decisions in our everyday lives on the basis of other persons’ accounts of what happened, and verdicts are usually sustained and affirmed even if they are based on hearsay erroneously admitted, or admitted because no objection was made. See
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law on evidence Shepp v. Uehlinger, 775 F 2d 452, 454-455 (1st Cir. 1985) (hearsay evidence alone can support a verdict). Although volumes have been written suggesting ways to revise the hearsay rule, no one advocates a rule that would bar all hearsay evidence. Indeed, the decided historical trend has been to exclude categories of highly probative statements from the definition of hearsay (sections 2 and 3, infra), and to develop more class exceptions to the hearsay rule (sections 4-11, infra). Furthermore, many states have added to their rules the residual, or catch-all, exceptions first pioneered by the Federal Rules which authorize the admission of hearsay that does not satisfy a class exception, provided it is adequately trustworthy and probative (section 12, infra). Moreover, some commentators believe that the hearsay rule should be abolished altogether instead of being loosened. See, e.g., Note, The Theoretical Foundation of the Hearsay Rules, 93 Harv.L.Rev. 1786, 1804-1805, 1815 (1980) (footnotes omitted): The Federal Rules of Evidence provide that ‘[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.’ Under this structure, exclusion is justified by fears of how the jury will be influenced by the evidence. However, it is not traditional to think of hearsay as merely a subdivision of this structure, and the Federal Rules do not conceive of hearsay in that manner. Prejudice refers to the jury’s use of evidence for inferences other than those for which the evidence is legally relevant; by contrast, the rule against hearsay questions the jury’s ability to evaluate the strength of a legitimate inference to be drawn from the evidence. For example, were a judge to exclude testimony because a witness was particularly smooth or convincing, there would be no doubt as to the usurpation of the jury’s function. Thus, unlike prejudices recognized by the evidence rules, such as those stemming from racial or religious biases or from the introduction of photographs of a victim’s final state, the exclusion of hearsay on the basis of misperception strikes at the root of the jury’s function by usurping its power to process quite ordinary evidence, the type of information routinely encountered by jurors in their everyday lives. … Since virtually all criteria seeking to distinguish between good and bad hearsay are either incoherent, inconsistent, or indeterminate, the only altenative to a general rule of admission would be an absolute rule of exclusion, which is surely inferior. More important, the assumptions necessary to justify a rule against hearsay … seem insupportable and, in any event, are inconsistent with accepted notions of the function of the jury. Therefore, the hearsay rules should be abolished. Some support for this view can be found in the limited empirical research now available – which is, however, derived from simulations – that suggests that admitting hearsay has little effect on trial outcomes because jurors discount the value of hearsay evidence. See Rakos & Landsman, Researching the Hearsay Rule: Emerging Findings, General Issues, and Future Directions, 76 Minn.L.Rev. 655 (1992); Miene, Park, & Borgidas, Jury Decision Making and the Evaluation of Hearsay Evidence, 76 Minn.L.Rev. 683 (1992); Kovera, Park, & Penrod, Jurors’ Perceptions of Eyewitness and Hearsay Evidence, 76 Minn.L.Rev. 703 (1992); Landsman & Rakos, Research Essay: A Preliminary Empirical Enquiry Concerning the prohibition of Hearsay Evidence in American Courts, 15 Law & Psychol. Rev. 65 (1991). Others, even if they concede that restrictions on hearsay have some utility, question whether the benefits outweigh the cost: The cost of maintaining the rule is not just a function of its contribution to justice. It also includes the time spent on litigating the rule. And of course this is not just a cost voluntarily borne by the parties, for in our system virtually all the cost of the court – salaries, administrative costs, and capital costs – are borne by the public. As expensive as litigation is for the parties, it is supported by an enormous public subsidy. Each time a hearsay question is litigated, the public pays. The rule imposes other costs as well. Enormous time is spent teaching and writing about the hearsay rule, which are both costly
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law on evidence enterprises. In some law schools, students spend over half their time in evidence classes learning the intricacies of the hearsay rule, and … enormous academic resources are expended on the rule. A complete analysis of any hearsay problem requires that we further determine whether the hearsay evidence is one exempted from the rules of exclusion. A more circumspect examination of our rules of exclusion will show that they do not cover admissions of a party and the Angara Diary belongs to this class. Section 26 of Rule 130 provides that “the act, declaration or omission of a party as to a relevant fact may be given in evidence against him.” It has long been settled that these admissions are admissible even if they are hearsay. Retired Justice Oscar Herrera of the Court of Appeals cites the various authorities who explain why admissions are not covered by the hearsay rule: “Wigmore, after pointing out that the party’s declaration has generally the probative value of any other person’s assertion, argued that it had a special value when offered against the party. In that circumstance, the admission discredits the party’s statement with the present claim asserted in pleadings and testimony, much like a witness impeached by contradictory statements. Moreover, he continued admissions pass the gauntlet of the hearsay rule, which requires that extrajudicial assertions be excluded if there was no opportunity for the opponent to cross-examine because it is the opponent’s own declaration, and ‘he does not need to cross examine himself.’ Wigmore then added that the Hearsay Rule is satisfied since the party now as opponent has the full opportunity to put himself on the stand and explain his former assertion. (Wigmore on evidence, Sec. 1048 (Chadbourn Rev. 1972), cited in Sec. 154, McCormick) According to Morgan: ‘The admissibility of an admission made by the party himself rests not upon any notion that the circumstances in which it was made furnish the trier means of evaluating it fairly, but upon the adversary theory of litigation. A party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of an oath.’ A man’s acts, conduct, and declaration, wherever made, if voluntary, are admissible against him, for the reason that it is fair to presume that they correspond with the truth, and it is his fault if they do not. (U.S. vs. Ching Po, 23 Phil. 578, 583).” The Angara Diary contains direct statements of petitioner which can be categorized as admissions of a party: his proposal for a snap presidential election where he would not be a candidate; his statement that he only wanted the five-day period promised by Chief of Staff Angelo Reyes; his statements that he would leave by Monday if the second envelope would be opened by Monday and “Pagod na pagod na ako. Ayoko na, masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I don’t want any more of this – it’s too painful. I’m tired of the red tape, the bureaucracy, the intrigue). I just want to clear my name, then I will go.” We noted that days before, petitioner had repeatedly declared that he would not resign despite the growing clamor for his resignation. The reason for the meltdown is obvious - - his will not to resign has wilted. ADOPTIVE ADMISSION: It is, however, argued that the Angara Diary is not the diary of the petitioner, hence, non-binding on him. The argument overlooks the doctrine of ADOPTIVE ADMISSION. An adoptive admission is a party’s reaction to a statement or action by another person when it is reasonable to treat the party’s reaction as an admission of something stated or implied by the other person. Jones explains that the “basis for admissibility of admissions made vicariously is that arising from the ratification or adoption by the party of the statements which the other person had made.” To use the blunt language of Mueller and Kirkpatrick, “this process of attribution is not mumbo jumbo but common sense.” In the Angara Diary, the options of the petitioner started to dwindle when the armed forces withdrew its support from him
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law on evidence as President and commander-in-chief. Thus, Executive Secretary Angara had to ask Senate President Pimentel to advise petitioner to consider the option of “dignified exit or resignation.” Petitioner did not object to the suggested option but simply said he could never leave the country. Petitioner’s silence on this and other related suggestions can be taken as an admission by him. Petitioner further contends that the use of the Angara diary against him violated the rule on res inter alios acta. The rule is expressed in section 28 of Rule 130 of the Rules of Court, viz: “The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided.” Again, petitioner errs in his contention. The res inter alios acta rule has several exceptions. One of them is provided in section 29 of Rule 130 with respect to admissions by a co-partner or agent. Executive Secretary Angara as such was an alter ego of the petitioner. He was the Little President. Indeed, he was authorized by the petitioner to act for him in the critical hours and days before he abandoned Malacañang Palace. Thus, according to theAngara Diary, the petitioner told Secretary Angara: “Mula umpisa pa lang ng kampanya, Ed, ikaw na lang pinakikinggan ko. At hanggang sa huli, ikaw pa rin.” (Since the start of the campaign, Ed, you have been the only one I’ve listened to. And now at the end, you still are.)” [17] This statement of full trust was made by the petitioner after Secretary Angara briefed him about the progress of the first negotiation. True to this trust, the petitioner had to ask Secretary Angara if he would already leave Malacañang after taking their final lunch on January 20, 2001 at about 1:00 p.m. The Angara Diary quotes the petitioner as saying to Secretary Angara: “ed, kailangan ko na bang umalis? (Do I have to leave now?)” Secretary Angara told him to go and he did. Petitioner cannot deny that Secretary Angara headed his team of negotiators that met with the team of the respondent Arroyo to discuss the peaceful and orderly transfer of power after his relinquishment of the powers of the presidency. The Diary shows that petitioner was always briefed by Secretary Angara on the progress of their negotiations. Secretary Angara acted for and in behalf of the petitioner in the crucial days before respondent Arroyo took her oath as President. Consequently, petitioner is bound by the acts and declarations of Secretary Angara. Under our rules of evidence, admissions of an agent (Secretary Angara) are binding on the principal (petitioner). Jones very well explains the reasons for the rule, viz: “What is done, by agent, is done by the principal through him, as through a mere instrument. So, whatever is said by an agent, either in making a contract for his principal, or at the time and accompanying the performance of any act within the scope of his authority, having relation to, and connected with, and in the course of the particular contract or transaction in which he is then engaged, or in the language of the old writers, dum fervet opus is, in legal effect, said by his principal and admissible in evidence against such principal.” Moreover, the ban on hearsay evidence does not cover independently relevant statements. These are statements which are relevant independently of whether they are true or not. They belong to two (2) classes: (1) those statements which are the very facts in issue, and (2) those statements which are circumstantial evidence of the facts in issue. The second class includes the following[ a. Statement of a person showing his state of mind, that is, his mental condition, knowledge, belief, intention, ill will and other emotions; b. Statements of a person which show his physical condition, as illness and the like; c. Statements of a person from which an inference may be made as to the state of mind of another, that is, the knowledge, belief, motive, good or bad faith, etc. of the latter; d. Statements which may identify the date, place and person in question; and e. Statements showing the lack of credibility of a witness.
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law on evidence
Again, Jones tells us why these independently relevant statements are not covered by the prohibition against hearsay evidence:[ “§ 1088. Mental State or Condition – Proof of Knowledge.- There are a number of comon issues, forming a general class, in proof of which hearsay is so obviously necessary that it is not customary to refer to its admissibility as by virtue of any exception to the general exclusionary rule. Admissibility, in such cases, is as of course. For example, where any mental state or condition is in issue, such as motive, malice, knowledge, intent, assent or dissent, unless direct testimony of the particular person is to be taken as conclusive of his state of mind, the only method of proof available is testimony of others to the acts or statements of such person. Where his acts or statements are against his interest, they are plainly admissible within the rules hereinabove announced as to admissions against interest. And even where not against interest, if they are so closely connected with the event or transaction in issue as to constitute one of the very facts in controversy, they become admissible of necessity.” As aforediscussed, The Angara Diary contains statements of the petitioner which reflect his state of mind and are circumstantial evidence of his intent to resign. It also contains statements of Secretary Angara from which we can reasonably deduce petitioner’s intent to resign. They are admissible and they are not covered by the rule on hearsay. This has long been a quiet area of our law on evidence and petitioner’s attempt to foment a belated tempest cannot receive our imprimatur. CASES People v. Paragsa, 84 SCRA 105 (1978) Failure by a supposed rape victim to rebut sweetheart defense based on testimonial evidence may be taken against her. Requirements for admission by silence: 1) heard and understood, 2) at liberty to deny, 3) affects his rights, 4) within his knowledge, and 5) material to the issue People v. Alegre, 94 SCRA 109 (1979) – silence of accused in custody during investigation cannot be used as evidence against him Griffin v. California, 380 U.S. 853 (1965) – court may not comment on accused’s failure to testify regarding facts within his knowledge SEC. 33. Confession. – The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him. BASIS: Rule 130, Sec. 133; Rule 115 (e); Art. III, Sec. 17, 1987 Constitution Declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein; may be given in evidence against him. General rule on admissibility of confession: A confession is admissible only against the accused who made it and not against his co-accused, for as against the latter, the confession would be hearsay and res inter alios acta. (People v. Talledo, 85 Phil. 533) Exceptions: when a confession is admissible against co-accused: 1) When the confession of an accused implicating his co-accused is made judicially at a joint trial (U.S. v. Macamay, 36 Phil. 893) or when the extrajudicial statements implicating a co-accused are repeated in open court (People v. Ola, G.R. No. L-47147, July 3, 1987), because the co-accused as a chance to cross-examine. 2) When the offer in evidence of an extrajudicial confession against a co-accused is not
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law on evidence objected to. (People v. Atienza, 86 Phil. 576) 3) When the co-accused against whom an extrajudicial confession is offered had, by his acts, conducts and declarations adopted he confession as his own. (People v. Atienza, supra; People v. Orencia, 47 Phil. 970) 4) Where several accused, without collusion, made extrajudicial confessions which are identical in essential details and corroborated by other evidence, such confession is admissible against the others. (People v. Pelonia, L-14624, July 24, 1960) 5) The confession of a conspirator is admissible against his co-conspirator provided it was made during the existence of the conspiracy. (Sec. 30, Rule 130, ROC; People v. Ramirez, L-5875, May 15, 1953) 6) When the recitals in the extrajudicial confession of an accused are corroborated in its important details by other proofs in the record, it may be admitted against the other accused. (People v. Villanueva, L-12687, July 31, 1962) CONFESSION IS EVIDENCE OF HIGH ORDER: 1) There is no evidence of a higher quality than a confession. It represents the outward manifestation of a man. Unless, therefore, the confession is nullified by evidence of duress, the same is admissible as an evidence of guilt of a high quality. (People v. Garcia, 54 Phil. 329, 358) 2) If a confession be true and voluntary, the deliberate act of the accused with a full comprehension of its significance, there is no impediment to its admission as evidence and it then becomes evidence of a high order, since it is supported by the presumption, a very strong one, that no person of normal mind will deliberately and knowingly confess himself to be the perpetrator of a crime, especially if it be a serious crime, unless prompted by truth and conscience. (People v. Zea, et al., 130 SCRA 87, 88) DIFFERENTIATE AN ADMISSION FROM A CONFESSION
Definition Form Made by
Cases in applicable
Admission Confession Statement of fact which does not Declaration acknowledging involve an acknowledgment of guiltguilt of the offense charged or liability May be express or tacit Must be express Party or 3rd person (The admissions Party himself made by a 3rd person will affect the party to the accused if it falls under the exceptions to the res inter alios acta rule) which Both criminal and civil cases Usually criminal cases
one’s
DIFFERENTIATE AN ADMISSION AND CONFESSION IN CRIMINAL CASES.
Definition
Admission Confession Statement by the accused, direct or Acknowledgment in express terms by implied, of facts pertinent to the issue a party in a criminal case of his guilt of and tending, in connection with proof the crime charged
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law on evidence of other facts, to prove his guilt Sufficiency authorize conviction
to Insufficient. Tends only to establish Sufficient a the ultimate fact of guilt.
DIFFERENTIATE THE EFFECTS OF JUDICIAL AND EXTRAJUDICIAL CONFESSIONS. A judicial confession is sufficient in itself to sustain a conviction, even in capital offenses. On the other hand, an extrajudicial confession is insufficient in itself to sustain a conviction. It must be corroborated by evidence of the corpus delicti What is meant by corpus delicti? a. It refers to a particular crime and signifies that the specific offense had been actually committed by someone, being composed of two elements: 1) certain results were produced, and 2) Someone is criminally responsible. (People v. Marquez, 77 Phil. 83) b. It also means actual commission of the crime charged. (People v. Madrid, 88 Phil. 1; People v. Sanchez, 89 Phil. 423), or the specific fact of loss or injury. (People v. Garcia, 99 Phil. 381) Examples of corpus delicti: a. In murder or homicide, the corpus delicti is the fact of death (People v. Garcia, 99 Phil. 381), which may be proved even circumstantially. (People v. Sasota, 91 Phil. 111; People v. Moro Ansang, 93 Phil. 44). Conviction for murder proper even if victim’s body is not produced: In all crimes against persons in which the death of the victim is an essential element of the offense, there must be satisfactory evidence of the fact of death and the identity of the victim that a crime has been committed which is what corpus delicti really means. The failure of the prosecution to produce the body of the victim does not imply the absence of corpus delicti for the term does not refer to the body of the murdered person. (People v. Centeno, et al., 130 SCRA 209) b. In robbery or theft, the fact of loss. (People v. Niem, 75 Phil. 668) c.
In arson, the fact of burning, (People v. Marquez, 77 Phil. 83; People v. Mones, 58 Phil. 46)
d. In an affray, the fact that pistol shots were heard and a bystander was killed by one of the shots constitute evidence of corpus delicti, which is the violent death of a person, whether feloniously caused or not. (People v. Nocum, 77 Phil. 1018) What about confession in ABS-CBN? By itself, the extrajudicial confession is not enough to sustain a conviction. It still has to be corroborated by the corpus delicti. The prosecution still has the burden of proof that such accused has committed the crime charged. REQUISITES FOR THE ADMISSIBILITY OF EXTRAJUDICIAL CONFESSIONS (1) Must involve an express and categorical acknowledgment of guilt (US v. Corales); (2) The facts admitted must be constitutive of a criminal offense (US v. Flores);
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law on evidence (3) Must have been given voluntarily (People v. Nishishima); (4) Must have been made intelligently (Bilaan v. Cusi) (5) Must have been made with the assistance of competent and independent counsel (Art III, Sec. 12, 1987 Constitution) PROBATIVE VALUE OF RECANTATIONS They are looked upon with disfavor as recantations are usually secured through intimidation or for a monetary consideration. (Molina v. People, 259 SCRA 138) INTERLOCKING CONFESSIONS Extrajudicial confessions identical in material respects INTERLOCKING CONFESSIONS) admissible against all declarants:
(also
known
as
1) As circumstantial evidence. Extrajudicial confessions independently made without collusion and are identical with each other in their material respects and confirmatory of the other are admissible as circumstantial evidence against co-accused implicated therein to show the probability of the latter's actual participation in the commission of the crime. (People v. Encipido, et al., 146 SCRA 492) 2) As corroborative evidence. They are admissible as corroborative evidence against the other accused, if it is clear from other facts and circumstances presented that persons other than the declarants themselves participated in the commission of the crime charged and proved. (Ibid.) They are what is commonly known as interlocking confession and constitute an exception to the general rule that extrajudicial confessions/admissions are admissible in evidence only against the declarants thereof. (Ibid.) INVOCATION OF AMNESTY The invocation of amnesty is in the nature of a plea of confession and avoidance, which means that the pleader admits the allegations against him, but disclaims liability therefore on account of intervening facts which, if proved, would bring the crime charged within the scope of the amnesty proclamation. (People v. Salig, et al., 133 SCRA 69 citing Vera v. People, 7 SCRA 153) RIGHT AGAINST SELF-INCRIMINATION Sec. 17, art III – no person shall be compelled to be a witness against himself The operative act in determining whether the right against self-incrimination has been violated is when the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect who has been taken into custody by the police to carry out a process of interrogation that lends itself to eliciting incriminatory statements and not the signing by the suspect of his supposed extrajudicial confession. (People vs. Compil, 1995) By affixing their signatures on the boxes, accused in effect made a tacit admission of the crime charged. These signatures are tantamount to an extrajudicial confession made without the assistance of counsel, which is not sanctioned by the Bill of Rights. (People vs. Wong Chuen Ming, 1996) Any confession, including a re-enactment without admonition of the right to silence and to counsel, and without counsel chosen by the accused is inadmissible in evidence.
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law on evidence The declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence against him and any person, otherwise competent to testify as a witness who heard the confession is competent to testify as to the substance of what he heard if he heard and understood it. (People vs. Maqueda, 1995) SEC. 35. Unaccepted offer. – An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money, instrument, or property. Article 1176 provides that after a valid tender of payment "the debtor shall be released from the responsibility by the consignation of the thing or sum due." As a compliment, article 1180 says that "after the consignation has been duly made, the debtor may petition the judge to order the cancellation of the obligation." All of which patently indicate that consignation must follow, supplement or complete the tender of payment if discharge of the obligation is to be obtained. In this provision, gusto ka mubayad pero gi-refusan ka. What is an accepted offer? That there is an offer in writing to pay money or delivery of written instrument or specific thing. If the same was rejected what is the effect? The effect is production or tender of money, property or instrument. Atty. Espejo: this provision is a bit faulty in its wordings because you are actually equating a mere offer to the actual payment or delivery of the money, instrument or property. Malay mo bluff lang diay na imung offer2x. Section 36. Testimony generally confined to personal knowledge; hearsay excluded. - A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. (30a) DEFINITION Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay evidence is evidence given by a witness based on information passed to that person by others rather than evidence experienced at first hand by the witness. Hearsay evidence is defined as "evidence not of what the witness knows himself but of what he has heard from others." MARISSA R. UNCHUAN vs. ANTONIO J.P. LOZADA, ET AL. G.R. No. 172671, April 16, 2009 Evidence is hearsay when its probative force depends, in whole or in part, on the competency and credibility of some persons other than the witness by whom it is sought to be produced. REASONS FOR EXCLUDING HEARSAY EVIDENCE There are three reasons for excluding hearsay evidence: (1) ABSENCE OF CROSS-EXAMINATION; It is required that a witness must be subjected to cross-examination by opposing counsel to test the perception, memory, veracity and articulateness of the out-of-court declarant or actor upon whose reliability on which the worth of the out-of-court statement depends.
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law on evidence
The right to cross-examine the adverse party's witnesses is essential in the administration of justice for it is the only means of testing the credibility of witnesses and their testimony, and this right is not available in respect of hearsay evidence since the declarant is not in court. (Donnelly v. U.S., 228 U.S. 243) (2) ABSENCE OF DEMEANOR EVIDENCE; and Demeanor means the outward physical behavior and appearance of a person. Demeanor is not merely what someone says but the manner in which it is said. Factors that contribute to an individual's demeanor include tone of voice, facial expressions, gestures, and carriage. The term demeanor is most often applied to a witness during a trial. Demeanor evidence is quite valuable in shedding light on the credibility of a witness, which is one of the reasons why personal presence at trial is considered to be of paramount importance and has great significance concerning the hearsay rule. To aid a jury in its determination of whether or not it should believe or disbelieve particular testimony, it should be provided with the opportunity to hear statements directly from a witness in court whenever possible. (3) ABSENCE OF OATH. An oath or affirmation is necessary for the witness to recognize the duty to tell the truth. The oath of a witness signifies that he is swearing to the Creator "to tell the truth and nothing but the truth" and that if he does not, he will later on answer for the falsehood told. A lie thus told on the witness stand subjects the witness to perjury. TWO CONCEPTS OF HEARSAY EVIDENCE There are two concepts of Hearsay Evidence: 1. Second hand information (not derived from personal knowledge of witness); and 2. Testimony by a witness derived from his personal knowledge BUT the adverse party is not given opportunity to cross-examine. For example, Plaintiff presents witness A. A testifies in court on matters personally known to him. After direct examination, court tells that defendant can cross examine on next scheduled hearing. On the next scheduled hearing witness A no longer appears and could no longer be located. The remedy here now is to ask that the testimony of witness A be stricken out since it now becomes hearsay. REQUISITES OF HEARSAY EVIDENCE (UNDER THE FIRST CONCEPT) A statement will be considered hearsay if it is: 1. AN ASSERTIVE STATEMENT 2. MADE BY AN OUT-OF-COURT DECLARANT 3. OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED THEREIN. An "assertive statement" is generally defined as the intentional communication of fact. An assertive statement can be oral, written, or non-verbal conduct if it was intended to be an assertion. However, any verbal or non-verbal conduct that was not intended to communicate a fact will not be considered an assertive statement. In order for the statement to satisfy the "out-of-court declarant" element of hearsay, very simply stated, the statement must have been made outside of the courtroom that the present proceeding is taking place in -- meaning that if the statement was made in another courtroom, it is still made by an "out-of-court" declarant.
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law on evidence Lastly, if a statement is being offered for its truth -- meaning that its relevance depends upon the tribunal believing the substance of the statement -- then it is being offered to prove the truth of the matter asserted therein. If a statement is relevant for any other purpose other than proving the truth of the matter asserted therein, then the statement will not be considered hearsay. HEARSAY: WAIVED BY FAILURE TO OBJECT The hearsay evidence rule is a rule of exclusion. Any statement that does not qualify under Section 36 is deemed inadmissible. As in the case of other exclusionary rules, the hearsay character of evidence may be waived by failure to object. However, admissibility is not the same as evidentiary weight or probative value. Thus: PHIL. REALTY HOLDINGS CORP. vs. FIREMATIC PHIL., INC. G.R. No. 156251, April 27, 2007 While hearsay evidence may be admitted because of lack of objection by the adverse party’s counsel, it is nonetheless without probative value. Stated differently, the declarants of written statements pertaining to disputed facts must be presented at the trial for crossexamination. The lack of objection may make an incompetent evidence admissible, but admissibility of evidence should not be equated with weight of evidence. Indeed, hearsay evidence whether objected to or not has no probative value. HEARSAY EVIDENCE MAY BE ORAL, WRITTEN OR NON-VERBAL CONDUCT The rule excluding hearsay is not limited to oral testimonies. It also applies equally well to written evidence (such as affidavits, letters, sworn statements) as well as to non-verbal-conduct (such as gestures and actions). WRITTEN EVIDENCE CONSIDERED HEARSAY AFFIDAVITS The constitutional right to confrontation precludes reliance on affidavits. Such a constitutional safeguard cannot be satisfied unless the opportunity is given to the accused to test the credibility of any person, who, by affidavit or deposition would impute the commission of an offense to him. It would be to disregard one of the most valuable guarantees of a person accused if solely on the affidavits presented, his guilt could be predicated. (People v. Santos, et al., 139 SCRA 586-587 citing People v. Lavarez, 23 SCRA 1301) MARISSA R. UNCHUAN vs. ANTONIO J.P. LOZADA, ET AL. G.R. No. 172671, April 16, 2009 It is a hornbook doctrine that an affidavit is merely hearsay evidence where its maker did not take the witness stand. Verily, the sworn statement of Anita was of this kind because she did not appear in court to affirm her averments therein. EXCEPTIONS: WHEN AFFIDAVITS ARE GIVEN WEIGHT 1) Where said affidavits are overwhelming, uncontroverted by competent evidence and not inherently improbable. (Top-Weld Manufacturing, Inc. v. ECED, S.A., et al., 138 SCRA 132)
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law on evidence 2) Under the Rule on Summary Procedure for civil cases; 3) When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct hat the matter be heard wholly or partly on oral testimony or depositions. (Sec. 7, Rule 133, ROC) 4) In proceedings before tribunals not strictly bound by the Rules of Evidence; ORIENTAL SHIPMANAGEMENT CO., INC. vs. BASTOL G.R. No. 186289, June 29, 2010 The holding of a formal hearing or trial is discretionary with the Labor Arbiter and is something that the parties cannot demand as a matter of right. The requirements of due process are satisfied when the parties are given the opportunity to submit position papers wherein they are supposed to attach all the documents that would prove their claim in case it be decided that no hearing should be conducted or was necessary. In sum, it can be properly said that the proceedings before the Labor Arbiter are nonlitigious in nature and the technicalities of law and procedure, and the rules obtaining in the courts of law are not applicable. Thus, the rules allow the admission of affidavits by the Labor Arbiter as evidence despite the fact that the affiants were not presented for cross-examination by the counsel for the adverse party. To require otherwise would be to negate the rationale and purpose of the summary nature of the administrative proceedings and to make mandatory the application of the technical rules of evidence. What the other party should do is to present counter-affidavits instead of merely objecting on the ground that the affidavits are hearsay. HOWEVER: In proceedings before the Department of Labor and Employment (i.e., union certification, cancellation of EBA status or decertification), affidavits must be reaffirmed to be admissible. EAGLE RIDGE GOLF & COUNTRY CLUB vs. CA and EAGLE RIDGE EMPLOYEES UNION G.R. No. 178989, March 18, 2010 In the more meaty issue of the affidavits of retraction executed by six union members, we hold that the probative value of these affidavits cannot overcome those of the supporting affidavits of 12 union members and their counsel as to the proceedings and the conduct of the organizational meeting on December 6, 2005. The DOLE Regional Director and the BLR OIC Director obviously erred in giving credence to the affidavits of retraction, but not according the same treatment to the supporting affidavits. The six affiants of the affidavits of retraction were not presented in a hearing before the Hearing Officer (DOLE Regional Director), as required under the Rules Implementing Book V of the Labor Code covering Labor Relations. Said Rules is embodied in Department Order No. (DO) 40-03 which was issued on February 17, 2003 and took effect on March 15, 2003 to replace DO 9 of 1997. Sec. 11, Rule XI of DO 40-03 specifically requires: Section 11. Affirmation of testimonial evidence. – Any affidavit submitted by a party to prove his/her claims or defenses shall be re-affirmed by the presentation of the affiant before the Med-Arbiter or Hearing Officer, as the case may be. Any affidavit submitted without the re-affirmation of the affiant during a scheduled hearing shall not be admitted in evidence, except when the party against whom the affidavit is being offered admits all allegations therein and waives the examination of the affiant.
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law on evidence It is settled that affidavits partake the nature of hearsay evidence, since they are not generally prepared by the affiant but by another who uses his own language in writing the affiant’s statement, which may thus be either omitted or misunderstood by the one writing them.51 The above rule affirms the general requirement in adversarial proceedings for the examination of the affiant by the party against whom the affidavit is offered. In the instant case, it is required for affiants to re-affirm the contents of their affidavits during the hearing of the instant case for them to be examined by the opposing party, i.e., the Union. For their non-presentation and consonant to the above-quoted rule, the six affidavits of retraction are inadmissible as evidence against the Union in the instant case. Moreover, the affidavit and joint-affidavits presented by the Union before the DOLE Regional Director were duly re-affirmed in the hearing of March 20, 2006 by the affiants. Thus, a reversible error was committed by the DOLE Regional Director and the BLR OIC Director in giving credence to the inadmissible affidavits of retraction presented by Eagle Ridge while not giving credence to the duly re-affirmed affidavits presented by the Union. Evidently, the allegations in the six affidavits of retraction have no probative value and at the very least cannot outweigh the rebutting attestations of the duly re-affirmed affidavits presented by the Union. OTHER HEARSAY WRITTEN EVIDENCE 1. A letter offered in evidence to establish the facts in issue is (Pastor v. Gaspar, 2 Phil. 592; People v. Carlos, 47 Phil. 626); 2. A medical certificate to the extent of the injuries found by the doctor on the offended party's body. (De Guia v. Meralco, 40 Phil. 706); 3. A resolution of the municipal council of a certain municipality as to the character of an accused in a criminal case. (U.S. v. Tanjuatco, 1 Phil. 374); 4. Newspaper articles, which are considered to be DOUBLE DECK HEARSAY or DOUBLE HEARSAY; Double Deck Hearsay – it is hearsay within hearsay. It is when a witness testifies as to an assertion by an out-of-court declarant which in turn is merely second hand information. Double hearsay is actually mere third hand information. DUTCH BOY PHILIPPINES, INC. vs. RONALD SENIEL G.R. No. 170008, January 19, 2009 An unverified and unidentified private document cannot be accorded probative value. It must be rejected because the party against whom it is presented is deprived of the right and opportunity to cross-examine the person to whom the statements or writings are attributed. Its executor or author should be presented as a witness to provide the other party the opportunity to question its contents. The petitioner’s failure to present the author of the letter renders its contents suspect and of no probative value. ALLIED BANKING CORPORATION vs. SOUTH PACIFIC SUGAR CORPORATION G.R. No. 163692, February 4, 2008 The alleged content of the document, which was not identified nor formally offered in evidence, is technically pure hearsay. It cannot be admitted or considered as the proof of petitioner’s contention.
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law on evidence
EXCEPTIONS TO THE HEARSAY RULE Under Title 6, Rule 130, the following are the exceptions to the hearsay rule: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.
DYING DECLARATION; DECLARATION AGAINST INTEREST; ACT OR DECLARATION ABOUT PEDIGREE; FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE; COMMON REPUTATION; PART OF THE RES GESTAE; ENTRIES IN THE COURSE OF BUSINESS; ENTRIES IN OFFICIAL RECORDS; COMMERCIAL LISTS AND THE LIKE; LEARNED TREATISES; AND TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING.
However, there are quite a few more exceptions that are not found in the said Title, including: 1. Section 26. Admission of a party. - The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. MARISSA R. UNCHUAN vs. ANTONIO J.P. LOZADA, ET AL. G.R. No. 172671, April 16, 2009 It is a hornbook doctrine that an affidavit is merely hearsay evidence where its maker did not take the witness stand. Verily, the sworn statement of Anita was of this kind because she did not appear in court to affirm her averments therein. Yet, a more circumspect examination of our rules of exclusion will show that they do not cover admissions of a party; the videotaped statement of Anita appears to belong to this class. Section 26 of Rule 130 provides that "the act, declaration or omission of a party as to a relevant fact may be given in evidence against him. It has long been settled that these admissions are admissible even if they are hearsay. Indeed, there is a vital distinction between admissions against interest and declaration against interest. Admissions against interest are those made by a party to a litigation or by one in privity with or identified in legal interest with such party, and are admissible whether or not the declarant is available as a witness. Declaration against interest are those made by a person who is neither a party nor in privity with a party to the suit, are secondary evidence and constitute an exception to the hearsay rule. They are admissible only when the declarant is unavailable as a witness. Thus, a man’s acts, conduct, and declaration, wherever made, if voluntary, are admissible against him, for the reason that it is fair to presume that they correspond with the truth, and it is his fault if they do not. However, as a further qualification, object evidence, such as the videotape in this case, must be authenticated by a special testimony showing that it was a faithful reproduction. 2. Rule 132, Section 11. Impeachment of adverse party's witness. - A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honestly, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense. 3. Section 28 of the Rule on Examination of a Child Witness states: SEC. 28. Hearsay exception in child abuse cases. – A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay
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law on evidence rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules: (a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent. (b) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content, and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors: (1) Whether there is a motive to lie; (2) The general character of the declarant child; (3) Whether more than one person heard the statement; (4) Whether the statement was spontaneous; (5) The timing of the statement and the relationship between the declarant child and witness; (6) Cross-examination could not show the lack of knowledge of the declarant child; (7) The possibility of faulty recollection of the declarant child is remote; and (8) The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused. 4. Relaxation of the Hearsay Exclusion in Writ of Amparo cases. GEN. AVELINO I. RAZON, JR., ET AL. vs. MARY JEAN B. TAGITIS G.R. No. 182498, December 3, 2009 FACTS: Engineer Morced N. Tagitis, a consultant for the World Bank and the Senior Honorary Counselor for the Islamic Development Bank (IDB) Scholarship Programme, was last seen in Jolo, Sulu. Two months after his disappearance, his wife file a petition fo r issuance of a writ of amparo against the officials of the PNP and the AFP based on information from persons in the military who do not want to be identified that Engr. Tagitis is in the hands of the uniformed men. According to this information from unrevealed informants, Engr. Tagitis is in the custody of police intelligence operatives, specifically with the CIDG, PNP Zamboanga City, being held against his will in an earnest attempt of the police to involve and connect Engr. Tagitis with the different terrorist groups. The respondent testified that she sought the assistance of her former boss in Davao City, Land Bank Bajada Branch Manager Rudy Salvador, who told her that "PNP CIDG is holding [her husband], Engineer Morced Tagitis." The respondent recounted that she went to Camp Katitipan in Davao City where she met Col. Julasirim Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and her friends (who were then with her) a "highly confidential report" that contained the "alleged activities of Engineer Tagitis" and informed her that her husband was abducted because "he is under custodial investigation" for being a liaison for "J.I.” or Jema’ah Islamiah. Col. Kasim testified that the information he gave the respondent was given to him by his informant, who was a "civilian asset," through a letter which he considered as "unofficial." Col. Kasim stressed that the letter was only meant for his "consumption" and not for reading by others. He testified further that he destroyed the letter right after he read it to the respondent and her companions because "it was not important to him" and also because the information it contained had no importance in relation with the abduction of Tagitis. He explained that he did not keep the letter because it did not contain any information regarding the whereabouts of Tagitis and the person(s) responsible for his abduction.
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law on evidence On March 7, 2008, the CA issued its decision confirming that the disappearance of Tagitis was an "enforced disappearance". The CA held that "raw reports" from an "asset" carried "great weight" in the intelligence world. Based on these considerations, the CA thus extended the privilege of the writ to Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane Pante, PNP Chief Avelino I. Razon, Task Force Tagitis heads Gen. Joel Goltiao and Col. Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert extraordinary diligence and efforts to protect the life, liberty and security of Tagitis, with the obligation to provide monthly reports of their actions to the CA. At the same time, the CA dismissed the petition against the then respondents from the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael, based on the finding that it was PNP-CIDG, not the military, that was involved. ISSUE: Admissibility and weight of the evidence RULING: Flexibility is necessary under the unique circumstances that enforced disappearance cases pose to the courts; to have an effective remedy, the standard of evidence must be responsive to the evidentiary difficulties faced. On the one hand, we cannot be arbitrary in the admission and appreciation of evidence, as arbitrariness entails violation of rights and cannot be used as an effective counter-measure; we only compound the problem if a wrong is addressed by the commission of another wrong. On the other hand, we cannot be very strict in our evidentiary rules and cannot consider evidence the way we do in the usual criminal and civil cases; precisely, the proceedings before us are administrative in nature where, as a rule, technical rules of evidence are not strictly observed. Thus, while we must follow the substantial evidence rule, we must observe flexibility in considering the evidence we shall take into account. The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason – i.e., to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test. We note in this regard that the use of flexibility in the consideration of evidence is not at all novel in the Philippine legal system. In child abuse cases, Section 28 of the Rule on Examination of a Child Witness is expressly recognized as an exception to the hearsay rule. 5. The Doctrine of Independently Relevant Statements. THE DOCTRINE OF INDEPENDENTLY RELEVANT STATEMENTS PEOPLE vs. ROLANDO MALIBIRAN G.R. No. 178301, April 24, 2009 The law, however, provides for specific exceptions to the hearsay rule. One is the doctrine of independently relevant statements, where only the fact that such statements were made is relevant, and the truth or falsity thereof is immaterial. The hearsay rule does not apply; hence, the statements are admissible as evidence. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact. The witness who testifies thereto is competent because he heard the same, as this is a matter of fact derived from his own perception, and the purpose is to prove either that the statement was made or the tenor thereof. What is tenor? The testimony of a witness is made to prove the mere fact that something was said to him by someone and not the truth of what was said.
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law on evidence A declarant's statement may have relevance to an issue in a case from the mere fact that the words were spoken or written, irrespective of the truth or falsity of the assertion. They are called "independently relevant statements" because the statements are admissible for some relevant reason independent of their truth or falsity. REASONS FOR ADMISSIBILITY OF INDEPENDENTLY RELEVANT STATEMENTS They are relevant because the statement itself is: 1. Either the very fact in issue; or 2. Circumstantial evidence of a fact in issue. THE STATEMENT IS THE VERY FACT IN ISSUE Consider an action for oral defamation where the following exchange took place between the prosecutor and his witness: Prosecutor: What did you hear the accused say? Defense: Objection, Your Honor. Question calls for hearsay testimony! Court: Not so fast! Witness may answer. Witness: The accused said while pointing to the victim: "You are a thief. You stole my money! You are a liar!" The testimony is not hearsay. It is not offered to prove that the complaining witness is a "thief' or a "liar." It is offered to prove the tenor of the statement, i.e., that the statement was made. What is significant is the making of the statement. Beyond the mere fact that the words were uttered, the statement proves nothing as to its averments because the outof-court declaration's relevance is independent of the truth of its assertions. In a prosecution for defamation, an important issue is whether or not the words constituting the offense were uttered. There is no other inference required. Once there is proof that the words were uttered then the legal consequences of the mere making of the statement will follow. CIRCUMSTANTIAL EVIDENCE OF A FACT IN ISSUE A popular example of an out-of-court statement offered for a non-hearsay purpose is one which demonstrates by inference from the tenor of the statement the state of mind of the speaker or the declarant. Here the significance of the statement is not whether its assertion is true or false. Its significance rests on the mere fact that it was uttered and by extension, on the conclusion which may reasonably be drawn from the statement. Let us assume we have a special proceeding in court. Let us say it is the probate of a testator's will. Some heirs who felt aggrieved by the dispositions in the will have raised the issue of the testator's sanity. The will was purportedly executed on January 3 of the previous year. A witness for the oppositor is on the stand to testify on the testator's alleged incapacity. The will was purportedly executed on January 3 of the previous year. A witness for the oppositor is on the stand to testify on the testator's alleged incapacity. Q: How long have you known the testator? A: For twenty (20) years by the time he died, Sir. Q: How did you come to know him? A: I was her nurse for twenty (20) years, Sir. Q: On January 3, 2004, what did you hear the testator say? Objection, Your Honor! Hearsay! (Opposing counsel objects.) Court: Not so fast, Witness may answer! A: In the morning of January 3, he said, "I am Fernando Poe. Jr. Ako ang Panday!" Are the statements of the testator offered to prove the truth of the assertions therein? Certainly not. Obviously, the out-of-court statements of the testator are not offered to prove that
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law on evidence he is a fictional character. They are offered for a non-hearsay purpose which is to prove by inference through the statement that the testator on the day the will was executed, was incapacitated by reason of a mental condition. From experience we know that a person's state of mind may be revealed "by his actions or by what he says. The declarant's words or con duct constitute circumstantial evidences of his state of mind. In this case it is not the truth or falsity of the conduct or words which matter. It is the fact that the statement was made which is relevant. A testimony by the hearer that such statement was made is not hearsay. Why? The hearer will be testifying as to his personal knowledge that the statement was uttered. He may therefore, be cross-examined as to what he heard, when it was heard, how it was said and the circumstances surrounding the making of the statement. The hearer's veracity and sincerity can well be tested under a cross examination because he will not be testifying as to the veracity of the assertion or as to its falsity which are totally irrrelevant. . Statements relating to the state of mind of the de clarant is one of those admissible out-ofcourt statements if offered for non-hearsay purposes (29 Am Jur 2d, 708, 709). There are other kinds of out-of-court statements that have been considered admissible because they were offered for a non-hearsay purpose like statements relating to the state of mind of the listener. Words uttered in this regard merely constitute circumstantial evidence of an assertion and where the making of the statement is the significant fact because it either gives rise to the inference about the declarant's state of mind or indicates its effect on the hearer. The truth of the statement is not in issue here. A statement by an out-of-court declarant may be offered not for the veracity of what is asserted but merely to impeach the declarant's credibility. A threat against a witness may be offered in evidence to show its impact on the witness and where the reasonableness of a person's conduct is an issue, an out-of-court declaration may be offered to explain the person's reactions to the declaration. OUT-OF-COURT-STATEMENT OFFERED TO PROVE ITS EFFECT ON THE LISTENER OR HEARER An out-of-court statement may be offered not only to prove the state of mind of the declarant. It may also be used to show the state of mind of the hearer or listener. This state of mind of the listener is oftentimes described in terms of the effect of the declarant's statement on the hearer and why the listener acted in a particular manner. As in our previous illustration, the statement here although out of court is presented not to prove the truth of the statement and hence, non-hearsay. Consider a prosecution for arbitrary detention. The accused is a police officer who chanced upon the crime scene and arrested the complaining witness after he was fingered by a witness to the felony. He is on the stand to testify on the circumstances surrounding the arrest. Let us see whether or not a hearsay objection can be sustained. Q: Sir, what were you doing on such and such place? A: I was on a routine patrol. Q: What happened on such and such date on such and such time? A: I saw people milling around something in the corner of ABC and XYZ Sts. Q: What if any did you do? A: I got out of my patrol car to see what was happening. Q: What if any did you see? A: I saw a man lying face downward on the side of the street with blood all over his back. Q: What happened next? A: A man whispered to me. "This happened barely two minutes ago and that guy sitting there pretending to be an onlooker is the culprit."
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law on evidence The testimony, "This happened barely two minutes ago and that guy sitting there pretending to be an onlooker is the culprit," is not offered to prove that (a) the incident occurred two minutes ago, or (b) that the guy sitting and pretending to be an onlooker was the culprit. The testimony is to prove that an arrest was made as a consequence of the out of court statement's effect on the hearer. This effect was the reason for the arrest. This effect is relevant to justify the apprehension of the complaining witness. "Words offered to prove the effect on the hearer are admissible when they are offered to show their effect on one whose conduct is at issue. This is an important category of non-hearsay evidence worth remembering. The statement offered in evidence is not hearsay because it is the hearer's reaction to the statement which is sought to be proved. It is his reaction to the statement that is relevant, not the truth of the assertion in the statement. Since the hearer is present in court, he can be cross examined on whether or not he heard the statement accurately, believed the statement to be true and whether or not he really acted in conformity with his belief. PEOPLE vs. ROLANDO MALIBIRAN G.R. No. 178301, April 24, 2009 In this case, Oswaldo's testimony that he overhead a conversation between Rolando and appellant that they would fetch a man in Bulacan who knew how to place a bomb in a vehicle is admissible, if only to establish the fact that such statement was made and the tenor thereof. Likewise, Janet may testify on matters not only uttered in her presence, since these may be considered as independently relevant statements, but also personally conveyed to her by appellant and Rolando. OTHER EXCEPTIONS TO THE HEARSAY RULE Section 37. Dying declaration. - The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. (31a A dying declaration is one of the oldest exceptions to the hearsay rule. In fact, as early as 1928, the Supreme Court ruled anent the object of dying declarations that: PEOPLE OF THE PHIL. vs. EUGENIO TOLEDO, ET AL. G.R. No. L-28655, August 6, 1928 A dying declaration is admitted of necessity in order, as the Supreme Court of Mississippi states, "to reach those man slayers who perpetrate their crimes when there are no other eyewitnesses." Other names given to dying declarations are ANTE MORTEM STATEMENT OR STATEMENTS IN ARTICULO MORTIS. One popular example of a dying declaration was in the movie “The Fugitive”. Dr. Richard Kimble (Harrison Ford), a successful vascular surgeon in Chicago, comes home one night to find his wife Helen fatally wounded by a man with a prosthetic arm, and though he attempts to subdue the killer, the man escapes. The lack of evidence of a break-in, fingerprints being found on the gun and the bullets, and Helen's misunderstood 911 call lead the Chicago Police Department to charge Kimble with murder, and he is sentenced to death by lethal injection. REASONS BEHIND EXCEPTION PEOPLE OF THE PHILIPPINES vs. RENATO BAUTISTA G.R. No. 111149, September 5, 1997
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law on evidence
There are two (2) obvious reasons for the admissibility of a dying declaration: (A) NECESSITY and (B) TRUSTWORTHINESS. Necessity, because the declarant's death renders impossible his taking the witness stand. And trustworthiness, since the declaration is "made in extremity, when the party is at the point of death and every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful consideration to speak the truth. A situation so solemn and awful is considered by the law as creating an obligation equal to that which is imposed by an oath administered in court." CELESTINO MARTURILLAS VS. PEOPLE OF THE PHILIPPINES G.R. No. 163217, April 18, 2006 Generally, witnesses can testify only to those facts derived from their own perception. A recognized exception, though, is a report in open court of a dying person’s declaration made under the consciousness of an impending death that is the subject of inquiry in the case. Statements identifying the assailant, if uttered by a victim on the verge of death, are entitled to the highest degree of credence and respect. Persons aware of an impending death have been known to be genuinely truthful in their words and extremely scrupulous in their accusations. The dying declaration is given credence, on the premise that no one who knows of one’s impending death will make a careless and false accusation. Hence, not infrequently, pronouncements of guilt have been allowed to rest solely on the dying declaration of the deceased victim. PROBATIVE VALUE OF DYING DECLARATIONS PEOPLE OF THE PHILIPPINES vs. MAJOR EMILIO COMILING, ET AL. G.R. No. 140405, March 4, 2004 An ante-mortem statement is evidence of the highest order. It is doctrinal that, when a person is at the point of death, every motive of falsehood is silenced. The mind is induced by the strongest of reasons to speak the truth – the declarant's impending meeting with his Creator. REQUISITES JESUS GERALDO and AMADO ARIATE vs. PEOPLE OF THE PHILIPPINES G.R. No. 173608, November 20, 2008 A dying declaration is admissible as evidence if the following circumstances are present: (a) it concerns the cause and the surrounding circumstances of the declarant's death; (b) it is made when death appears to be imminent and the declarant is under a consciousness of impending death; (c) the declarant would have been competent to testify had he or she survived; and (d) the dying declaration is offered in a case in which the subject of inquiry involves the declarant's death. APPLICATION OF THE REQUISITES PEOPLE OF THE PHILIPPINES vs. SERENAS AND LABAD G.R. No. 188124, June 29, 2010
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law on evidence As an exception to the rule against hearsay evidence, a dying declaration or ante mortem statement is evidence of the highest order and is entitled to utmost credence since no person aware of his impending death would make a careless and false accusation. In order for a dying declaration to be held admissible, four requisites must concur: first, the declaration must concern the cause and surrounding circumstances of the declarant's death; second, at the time the declaration was made, the declarant must be under the consciousness of an impending death; third, the declarant is competent as a witness; and fourth, the declaration must be offered in a criminal case for homicide, murder, or parricide, in which the declarant is the victim. Niño’s ante mortem statement was relayed to his brother Cesar, in this wise: Q Cesar, will you please tell this Honorable court where were you on the night of December 8, 2002 at about 9:30? A I was near the crime scene, sir. Q Where is this place? A In N. Domingo, La Huerta, Parañaque City, sir. Q At that time, what did you notice? A There was a commotion on top of the bridge, sir. Q So, what did you do? A We verified it, sir. Q After that, what did you do? A I saw my brother coming, sir. Q Who is this brother of yours that you saw? A Niño Noel Ramos, sir. Q When you saw Niño Noel approaching, what did you do? A I asked him what the commotion was all about, sir. Q What did he answer? A He told me that he was stabbed, sir. Q What else did he tell you? A I asked him who stabbed him, sir. Q What was his answer? A He answered [to] me that it was Joe-an, sir. Q What else did he tell you? A He asked me to bring him to the hospital, sir. Q What did you do when he asked you to bring him to the hospital? A I held him up and brought him to the hospital, sir. Q Why? What was the condition of your brother at that time? A He was bloodied, sir. All requisites for a dying declaration were sufficiently met by the statement of the victim communicated to Cesar. First, the statement pertained to Niño being stabbed, particularly pinpointing Joe-An as the perpetrator. Second, Niño must have been fully aware that he was on the brink of death considering his bloodied condition when Cesar met him near the bridge. Third, the competence of Niño is unquestionable had he survived the stabbing incident. Fourth, Niño’s statement was being offered in a criminal prosecution for his murder. IT CONCERNS THE CAUSE AND THE SURROUNDING CIRCUMSTANCES OF THE DECLARANT'S DEATH For example. the husband was shot and wife was stabbed. The wife died instantly. The husband was brought to the hospital and made a statement that it was X who stab his wife. The husband then died. Is this a dying declaration? The statement is not a dying declaration because it pertains to the cause and
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law on evidence surrounding circumstances of the wife’s death and not of the declarant’s OWN death. As another example, the father, who is suffering from a terminal disease, a few moments before his death, told his son that since he is able to die, he will tell the son a secret. He then tells his son that his brother, Homer, is not really his brother. The latter’s birth and filiation were simulated. The father died. In a case later filed to settle the estate, the son seeks to exclude his brother on the ground that he is not really an heir. Can the father’s revelation be considered a dying declaration? Again, the answer is no. The fact of Homer’s legitimacy and filiation does not pertain to the cause and surrounding circumstances of the declarant’s death. The term “cause and the surrounding circumstances of the declarant's death” is easy enough to understand. More often than not, it refers to the inquiry of who killed the declarant but it does not preclude information as to the motive and other conditions that attended the killing of the declarant. IT IS MADE WHEN DEATH APPEARS TO BE IMMINENT AND THE DECLARANT IS UNDER A CONSCIOUSNESS OF IMPENDING DEATH This means that the declarant must have known that he would meet his death soon when he made the declaration. It is a statement made in extemis. Consider the following example: A was shot but he can still walk and talk. He went home to his house, cleaned up his own wounds and went out to go to the hospital. Along the way, he rode a taxi. The driver was a childhood friend, Fern. So Fern asked him what happened to him. He answered that Dianne shot him but that he was okay. It was only a flesh wound. At the hospital, A died after a couple of hours because of sepsis as one of his vital organs was hit by the bullet. Is the statement of A to Fern a dying declaration? No, because A made the statement without having thought that he is already dying. He made the statement thinking that it was a flesh wound and that he would survive it. In order to be admissible, the declarant must have thought that he was about to die because it is the fact that the declaration is "made in extremity, when the party is at the point of death and every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful consideration to speak the truth” that makes the declaration trustworthy. CONSCIOUSNESS OF IMPENDING DEATH NEED NOT BE EXPLICITLY STATED BUT MAY BE ESTABLISHED BY CIRCUMSTANTIAL EVIDENCE CELESTINO MARTURILLAS VS. PEOPLE OF THE PHILIPPINES G.R. No. 163217, April 18, 2006 True, he made no express statement showing that he was conscious of his impending death. The law, however, does not require the declarant to state explicitly a perception of the inevitability of death. The perception may be established from surrounding circumstances, such as the nature of the declarant’s injury and conduct that would justify a conclusion that there was a consciousness of impending death. Even if the declarant did not make an explicit statement of that realization, the degree and seriousness of the words and the fact that death occurred shortly afterwards may be considered as sufficient evidence that the declaration was made by the victim with full consciousness of being in a dying condition. The victim need not state that he has lost all hope of recovery. It is sufficient that circumstances are such as to inevitably lead to the conclusion that at the time the declaration was made, the declarant would not expect to survive the injury from which he actually died.
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law on evidence
The degree and seriousness of the wounds and the fact that death supervened thereafter constitute substantial evidence of the victim's consciousness of his impending death. (People v. Tanaman, et al., G.R. No. 71768, July 28, 1987) Dying declaration has weight even if declarant did not die immediately after his declaration: The fact that the declarant died four (4) hours after his statement does not diminish the probative value of the dying declaration since it is not indispensable that the a declarant expires immediately thereafter. It is the belief of impending death and not the rapid succession of death that renders the dying declaration admissible. (People v. Bautista, G.R. No. 111149, September 5, 1997) THE DECLARANT WOULD HAVE BEEN COMPETENT TO TESTIFY HAD HE OR SHE SURVIVED As with all testimony, the dying declaration will be inadmissible unless it is based on the declarant's actual knowledge. Suppose, for example, Homer bought a cup of coffee at the airport, and was stricken with food poisoning. If his dying last words were that "the supplier of the coffee mix must have used expired ingredients", that statement would be inadmissible despite the hearsay exception because Homer had no way of knowing anything about the conditions in which the coffee was made. COMPETENCE here would also mean that the declarant was stating a matter of fact and not a mere opinion of who caused the injury that later led to his death. It also presupposes that, had he survived, he would qualify as a witness under Sections 20 and 21, to wit: Section 20. Witnesses; their qualifications. - Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make their known perception to others, may be witnesses. Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification. (18a) Section 21. Disqualification by reason of mental incapacity or immaturity. - The following persons cannot be witnesses: (a) Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; (b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. (19a)
COMPETENCE ALSO MEANS OPPORTUNITY TO SEE ASSAILANT JESUS GERALDO and AMADO ARIATE vs. PEOPLE OF THE PHILIPPINES G.R. No. 173608, November 20, 2008 It has not been established, however, that the victim would have been competent to testify had he survived the attack. There is no showing that he had the opportunity to see his assailant. Among other things, there is no indication whether he was shot in front, the post-
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law on evidence mortem examination report having merely stated that the points of entry of the wounds were at the "right lumbar area" and the "right iliac area." "Lumbar" may refer to "the loins" or "the group of vertebrae lying between the thoracic vertebrae and the sacrum," or to "the region of the abdomen lying on either side of the umbilical region and above the corresponding iguinal." "Iliac" relates to the "ilium," which is "one of the three bones composing either lateral half of the pelvis being in man broad and expanded above and narrower below where it joins with the ischium and pubis to form part of the actabulum." At all events, even if the victim's dying declaration were admissible in evidence, it must identify the assailant with certainty; otherwise it loses its significance.
COMPETENCE ALSO MEANS THAT THE STATEMENT WAS UNCOERCED CELESTINO MARTURILLAS VS. PEOPLE OF THE PHILIPPINES G.R. No. 163217, April 18, 2006 Also, the statement was made freely and voluntarily, without coercion or suggestion, and was offered as evidence in a criminal case for homicide. In this case, the declarant was the victim who, at the time he uttered the dying declaration, was competent as a witness.
THE DYING DECLARATION IS OFFERED IN A CASE IN WHICH THE SUBJECT OF INQUIRY INVOLVES THE DECLARANT'S DEATH. IN ANY CASE Under common law, which, as previously commented, is the precursor of our own remedial law, limited the applicability of the exception of criminal cases involving homicide. However, the Federal Rules of Evidence, cited often as the basis of our own rules, refused to adopt the restrictive application of dying declarations in common law. Our own Rules, as amended, clearly indicate that it is applicable “in any case” where the subject of inquiry involves the declarant’s death which include both criminal and civil cases. CRIMINAL CASES Examples would be homicide, murder, parricide, robbery with homicide, rape with homicide. CIVIL CASES This may apply in civil cases when the prosecution of the civil aspect is separately instituted. To my mind, it may also apply in cases of quasi-delicts such as in “hit-and-run” incidents. A dying declaration may thus be introduced in evidence in such cases as to the cause of death (bumping) and the surrounding circumstances (the victim was crossing the highway, the driver was driving negligently). DOES IT APPLY TO PROBATE CASES? At first blush, it appears that the exception finds no applicability in probate cases where the subject of inquiry is usually limited to the determination of whether or not the will meets all the
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law on evidence statutory requirements for extrinsic validity as well as the testamentary capacity of the testator. However, take note that a testator may disinherit an heir. Under Article 919 of the Civil Code: Art. 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate: (1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants XXX For example, the testator, before he died, said to his daughter that he had disinherited his son because the son was the one who slowly poisoned him. The reason for the disinheritance was stated in the will as required by law. During the probate proceedings, the son objected to the disinheritance because according to him, the cause was not true. The daughter then testified about what her father told her. Let us suppose that all the requisites of a dying declaration are present, will the testimony of the daughter be admitted? To my mind yes, because the dying declaration is circumstantial evidence of a fact in issue in the case, the disinheritance of the son. THE DECLARANT MUST NOT HAVE SURVIVED The requirement of the Rules is that the statement is offered in a case where the declarant’s death is the subject of inquiry. This means actual death and does not apply to cases of mere unavailability such as when the patient is in a comatose condition or merely “brain” dead. There is no dying declaration in cases of homicide or murder in their attempted or frustrated stage. DOES THE REQUIREMENT OF DEATH INCLUDE PRESUMPTIVE DEATH? Anent this issue, the first question to be asked is: CAN A PROSECUTION FOR UNLAWFUL KILLING BE MADE WITHOUT THE VICTIM BEING FOUND? The answer is yes, as enunciated by the Supreme Court in the case of: PEOPLE OF THE PHIL. vs. ABUNDIO ROLUNA G.R. No. 101797 March 24, 1994 Corpus delicti has been defined as the body or substance of the crime and, in its primary sense, refers to the fact that a crime has been actually committed. As applied to a particular offense, it means the actual commission by someone of the particular crime charged. The corpus delicti is a compound fact made up of two (2) things, viz: the existence of a certain act or result forming the basis of the criminal charge, and the existence of a criminal agency as the cause of this act or result. Insofar as the death of Moronia is concerned, the fact that he was last seen on May 27, 1984 with his hands tied at the back and accompanied by eight (8) armed men undoubtedly shows that his life was then in danger or peril. Coupled with the fact that Moronia has been absent and unheard from since that time until the trial of this case (or a total of six years), a presumption of death was sufficiently raised. This is in consonance with Section 5 (x) (3), Rule 131 of the Rules of Court, viz.: The following shall be presumed dead for all purposes, including the division of the estate among the heirs: xxx xxx xxx
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law on evidence (3) A person who has been in danger of death under other circumstances and his existence has not been known for four (4) years. In the early case of People v. Sasota, the Court affirmed the conviction of the accused for murder although the body of the victim was not found or recovered. In said case, we ruled that in case of murder or homicide, it is not necessary to recover the body of the victim or show where it can be found. It is enough that the death and the criminal agency causing death is proven. The Court recognized that there are cases where the death and intervention of the criminal agency that caused it may be presumed or established by circumstantial evidence. The next question to ask is, can there be a situation where a dying declaration can be made in circumstances where there is presumptive death? Yes. Consider the following example: A, B and C crash-landed in a deserted island. Before they were actually rescued, A saw B clutching his stomach and saw that he appeared to be stabbed several times. He then asked B what happened and B said that C stabbed him repeatedly with a jungle knife. As he was saying this, a boat appeared at the horizon. Hoping for rescue, B swam towards the direction of the boat. A few moments later, B disappeared at the deeper part of the sea and was never found again. After 4 years, C was prosecuted for murder. Can the statement made by B to A prior to his disappearance be considered a dying declaration? It is submitted that it can be admitted as such. An analysis of the requisites actually show that all the elements of a dying declaration are present. WHAT IS THE EFFECT IF THE VICTIM SURVIVES? If the victim survives but is unable to testify, the declaration can no longer be considered a dying declaration. However, the declaration may still be admitted as part of the res gestae. DYING DECLARATION MAY ALSO BE ADMITTED IN FAVOR OF THE ACCUSED A dying declaration may also be admitted in favor of the accused although it is often used against the accused. In fact, the first use of the dying declaration exception in American law was in the 1770 murder trial of the British soldiers responsible for the Boston Massacre. One of the victims, Patrick Carr, told his doctor before he died that the soldiers had been provoked. The doctor's testimony helped defense attorney John Adams to secure acquittals for some of the defendants and reduced charges for the rest. It may thus be used as proof of a justifying circumstance or as proof that another person committed the killing other than the accused. FORM OF DYING DECLARATIONS A dying declaration may be made orally or in writing. It may be in writing as in the case of PEOPLE OF THE PHILIPPINES vs. MAJOR EMILIO COMILING, ET AL., G.R. No. 140405, March 4, 2004, where the dying declaration was made with the police investigators writing down the statement and thumbmarked later by the deceased when he was still alive. It may be in the form of an affidavit for as long as the requisites are present. PEOPLE OF THE PHIL. vs. ALEX PADRONES G.R. No. 85823 September 13, 1990 The victim's alleged antemortem statement is not in fact, an antemortem statement. It was executed on August 13, 1986, when the deceased died on August 21, 1986. A dying
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law on evidence declaration, to be one, must have been "under the consciousness of an impending death. At the time he rendered it, he could not say that he was on the pangs of death, based on his actual condition at that time, and that he believed that death was soon at hand. It bears to stress that a mere cursory examination of the three signatures appearing on the three-page statement, in bold and clear strokes with two of them occupying four inches of the page, and in grand flourishes, pronounced and considered by the trial judge as a dying declaration, precludes any indication that the signer thereof was under an impending death. Further, if the deceased were truly on the point of death, he could not have had the strength to affix three signatures as above described. That being the case, Exhibit "D" constitutes hearsay evidence and is accordingly, inadmissible. CAN NON-VERBAL ACTS BE USED AS DYING DECLARATIONS? As a general rule, no. A non-verbal act hardly qualifies as a dying declaration. The mere gesture of a dying victim is inconclusive. The gesture of a dying woman in pointing to a direction, when asked for the identity of her assailant, is too vague to be given such probative value in determining the culpability of the accused. Unlike an oral or a written declaration, a simple gesture of the hand unaccompanied by words, is open to various interpretations by the witness who testifies to its existence. Thus, the evidence comes to the court couched in the witness' second hand perception and possibly, imbued with his personal meanings and biases. This is what makes hearsay evidence objectionable. The second hand evidence is placed before the court without the benefit of crossexamination by the party against whom it is brought, nor of any other means of assessing the competence and credibility of the source. (People v. Ola, G.R. No. L-47147, July 3, 1987) ADMISSIBILITY IS DIFFERENT FROM WEIGHT What the law merely assures is admissibility. There is no assurance that the dying declaration is automatically believed. If it is controverted by other competent evidence, the dying declaration may be set aside. DOCTRINE OF COMPLETENESS A dying declaration is complete when it is a full expression of all that the declarant wanted to say with regard to the circumstances of his death (PEOPLE OF THE PHILIPPINES vs. MAJOR EMILIO COMILING, ET AL., G.R. No. 140405, March 4, 2004). PEOPLE OF THE PHIL. vs. PIOQUINTO C. DE JOYA G.R. No. 75028, November 8, 1991 It has been held that a dying declaration to be admissible must be complete in itself. To be complete in itself does not mean that the declarant must recite everything that constituted the res gestae of the subject of his statement, but that his statement of any given fact should be a full expression of all that he intended to say as conveying his meaning in respect of such fact. The doctrine of completeness has also been expressed in the following terms in Prof. Wigmore's classic work: The application of the doctrine of completeness is here peculiar. The statement as offered must not be merely apart of the whole as it was expressed by the declarant; it must be complete as far it goes. But it is immaterial how much of the whole affair of the
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law on evidence death is related, provided the statement includes all that the declarant wished or intended to include in it. Thus, if an interruption (by death or by an intruder) cuts short a statement which thus remains clearly less than that which the dying person wished to make, the fragmentary statement is not receivable, because the intended whole is not there, and the whole might be of a very different effect from that of the fragment; yet if the dying person finishes the statement he wishes to make, it is no objection that he has told only a portion of what he might have been able to tell. PEOPLE OF THE PHILIPPINES vs. EDUARDO MEDINA G.R. No. 155256, July 30, 2004 Henry Aniversario’s positive identification of Eduardo was further corroborated by Nelson’s dying declaration, as relayed to Nilda, identifying Eduardo as the person responsible for the crime. As testified by Nilda, his brother Nelson identified Eduardo as his assailant. Nelson’s declaration, uttered after he was shot and at the point of death, constituted a dying declaration. While, generally, a witness can testify only to those facts which are derived from his own perception, a recognized exception thereto is the reportage in open court of the declaration of a dying person made under the consciousness of an impending death where that person’s death is the subject of inquiry in the case. To be admissible, a dying declaration must (1) refer to the cause and circumstances surrounding the declarant’s death; (2) be made under the consciousness of an impending death; (3) be made freely and voluntarily without coercion or suggestions of improper influence; (4) be offered in a criminal case in which the death of the declarant is the subject of inquiry; and (5) the declarant must have been competent to testify as a witness had he been called upon to testify. These requisites were sufficiently met in this case. Nelson, having been shot and hit on the chest and thigh, was already weak when he reached the doorstep of their house. Upon reaching their doorstep, Nelson wasted no time in uttering to his sister, Nilda, dalhin mo ako sa ospital. Nadali ako ni Eddie Boy Fluid. May kinalaman si Gerry Conti dahil kanya ang baril. (Nilda, bring me to a hospital. Eddie Boy Fluid got me. Gerry Conti has something to do with it as he owns the gun.) Feeling the weariness caused by his wounds and loss of blood, he uttered those words to his sister Nilda, asking to be brought to the hospital and informing her as to who is responsible for the crime at the same time. His consciousness of the seriousness of his condition was shown by his desire to be given immediate medical attention and his statement on the identity of the perpetrator of the crime, evidently out of fear that failing to do so could be too late. Indeed, Nelson shortly expired thereafter, thirty (30) minutes from arriving at the hospital due to exsanguination or severe loss of blood. Moreover, Eduardo did not repudiate the testimony of Nilda regarding Nelson’s dying declaration but merely alleged that he could not have been the Eddie Boy Fluid referred to by Nelson. While he admitted that he is known as Eddie Boy Fluid, Eduardo alleged that Eduardo Viñas, another neighbor, is also known by that name. Both the prosecution and the defense witnesses acknowledged that there is another person known as Eddie Boy Fluid in their neighborhood. However, the victim’s dying declaration not only identified Eddie Boy Fluid as the assailant but also indicated that the same Eddie Boy Fluid is associated with Gerardo Conti. Eduardo’s close association with Gerardo Conti was affirmed by both himself and Gerardo Conti. While there appears to be no basis for the victim’s declaration of Gerardo Conti’s involvement in the crime, Eddie Boy Fluid’s association to Gerardo Conti supports the conclusion that the Eddie Boy Fluid referred to by Nelson was no other than Eduardo. Section 38. Declaration against interest. - The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact is asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and
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law on evidence against third persons. (32a BASIS AND REQUISITES ALEJANDRO FUENTES, JR. vs. COURT OF APPEALS G.R. No. 111692, February 9, 1996 One of the recognized exceptions to the hearsay rule is that pertaining to declarations made against interest. Sec. 38 of Rule 130 of the Rules of Court provides that "(t)he declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons." The admissibility in evidence of such declaration is grounded on necessity and trustworthiness. There are three (3) essential requisites for the admissibility of a declaration against interest: (a) the declarant must not be available to testify; (b) the declaration must concern a fact cognizable by the declarant; and (c) the circumstances must render it improbable that a motive to falsify existed. DISTINGUISHED FROM ADMISSION AGAINST INTEREST MARISSA R. UNCHUAN vs. ANTONIO J.P. LOZADA, ET AL. G.R. No. 172671, April 16, 2009 ALEJANDRA S. LAZARO, ET AL. vs. MODESTA AGUSTIN G.R. No. 152364, April 15, 2010 It has long been settled that these admissions are admissible even if they are hearsay. Indeed, there is a vital distinction between admissions against interest and declaration against interest. Admissions against interest are those made by a party to a litigation or by one in privity with or identified in legal interest with such party, and are admissible whether or not the declarant is available as a witness. Declaration against interest are those made by a person who is neither a party nor in privity with a party to the suit, are secondary evidence and constitute an exception to the hearsay rule. They are admissible only when the declarant is unavailable as a witness. Thus, a man’s acts, conduct, and declaration, wherever made, if voluntary, are admissible against him, for the reason that it is fair to presume that they correspond with the truth, and it is his fault if they do not. Section 39. Act or declaration about pedigree. - The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these fast occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. (33a) MARIA JEANETTE C. TECSON, ET AL. vs. COMELEC, FPJ, ET AL. G.R. Nos. 161434, 161634 & 161824, March 3, 2004 The proof of filiation or paternity for purposes of determining his citizenship status should thus be deemed independent from and not inextricably tied up with that prescribed for civil law purposes. The Civil Code or Family Code provisions on proof of filiation or paternity, although
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law on evidence good law, do not have preclusive effects on matters alien to personal and family relations. The ordinary rules on evidence could well and should govern. For instance, the matter about pedigree is not necessarily precluded from being applicable by the Civil Code or Family Code provisions. Section 39, Rule 130, of the Rules of Court provides – "Act or Declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word `pedigree’ includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree." For the above rule to apply, it would be necessary that (a) the declarant is already dead or unable to testify, (b) the pedigree of a person must be at issue, (c) the declarant must be a relative of the person whose pedigree is in question, (d) declaration must be made before the controversy has occurred, and (e) the relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such act or declaration. Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of Bessie Kelley Poe submitted as Exhibit 20 before the COMELEC, might be accepted to prove the acts of Allan F. Poe, recognizing his own paternal relationship with FPJ, i.e, living together with Bessie Kelley and his children (including respondent FPJ) in one house, and as one family. TISON vs. COURT OF APPEALS G.R. No. 121027, July 31, 1997 Petitioners' evidence, as earlier explained, consists mainly of the testimony of Corazon Dezoller Tison, the baptismal, death and marriage certificates, the various certifications from the civil registrar, a family picture, and several joint affidavits executed by third persons all of which she identified and explained in the course and as part of her testimony. The primary proof to be considered in ascertaining the relationship between the parties concerned is the testimony of Corazon Dezoller Tison to the effect that Teodora Dezoller Guerrero in her lifetime, or sometime in 1946, categorically declared that the former is Teodora's niece. Such a statement is considered a declaration about pedigree which is admissible, as an exception to the hearsay rule, under Section 39, Rule 130 of the Rules of Court, subject to the following conditions: (1) that the declarant is dead or unable to testify; (2) that the declarant be related to the person whose pedigree is the subject of inquiry; (3) that such relationship be shown by evidence other than the declaration; and (4) that the declaration was made ante litem motam, that is, not only before the commencement of the suit involving the subject matter of the declaration, but before any controversy has arisen thereon. There is no dispute with respect to the first, second and fourth elements. What remains for analysis is the third element, that is, whether or not the other documents offered in evidence sufficiently corroborated the declaration made by Teodora Dezoller Guerrero in her lifetime regarding the pedigree of petitioner Corazon Dezoller Tison or, if at all, it is necessary to present evidence other than such declaration. American jurisdiction has it that a distinction must be made as to when the relationship of the declarant may be proved by the very declaration itself, or by other declarations of said declarant, and when it must be supported by evidence aliunde. The rule is stated thus:
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law on evidence One situation to be noted is that where one seeks to set up a claim through, but not from, the declarant and to establish the admissibility of a declaration regarding claimant's pedigree, he may not do by declarant's own statements as to declarant's relationship to the particular family. The reason is that declarant's declaration of his own relationship is of a self-serving nature. Accordingly there must be precedent proof from other sources that declarant is what he claimed to be, namely, a member of the particular family; otherwise the requirement to admissibility that declarant's relationship to the common family must appear is not met. But when the party claiming seeks to establish relationship in order to claim directly from the declarant or the declarant's estate, the situation and the policy of the law applicable are quite different. In such case the declaration of the decedent, whose estate is in controversy, that he was related to the one who claims his estate, is admissible without other proof of the fact of relationship. While the nature of the declaration is then disserving, that is not the real ground for its admission. Such declarations do not derive their evidential value from that consideration, although it is a useful, if not an artificial, aid in determining the class to which the declarations belong. The distinction we have note is sufficiently apparent; in the one case the declarations are self-serving, in the other they are competent from reasons of necessity. 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. We are sufficiently convinced, and so hold, that the present case is one instance where the general requirement on evidence aliunde may be relaxed. Petitioners are claiming a right to part of the estate of the declarant herself. Conformably, the declaration made by Teodora Dezoller Guerrero that petitioner Corazon is her niece, is admissible and constitutes sufficient proof of such relationship, notwithstanding the fact that there was no other preliminary evidence thereof, the reason being such declaration is rendered competent by virtue of the necessity of receiving such evidence to avoid a failure of justice. More importantly, there is in the present case an absolute failure by all and sundry to refute that declaration made by the decedent. From the foregoing disquisitions, it may thus be safely concluded, on the sole basis of the decedent's declaration and without need for further proof thereof, that petitioners are the niece and nephew of Teodora Dezoller Guerrero. As held in one case, where the subject of the declaration is the declarant's own relationship to another person, it seems absurb to require, as a foundation for the admission of the declaration, proof of the very fact which the declaration is offered to establish. The preliminary proof would render the main evidence unnecessary. Applying the general rule in the present case would nonetheless produce the same result. For while the documentary evidence submitted by petitioners do not strictly conform to the rules on their admissibility, we are however of the considered opinion that the same may be admitted by reason of private respondent's failure to interpose any timely objection thereto at the time they were being offered in evidence. It is elementary that an objection shall be made at the time when an alleged inadmissible document is offered in evidence, otherwise, the objection shall be treated as waived, since the right to object is merely a privilege which the party may waive. As explained in Abrenica vs. Gonda, et al., it has been repeatedly laid down as a rule of evidence that a protest or objection against the admission of any evidence must be made at the proper time, otherwise it will be deemed to have been waived. The proper time is when from the
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law on evidence question addressed to the witness, or from the answer thereto, or from the presentation of the proof, the inadmissibility of the evidence is, or may be inferred. Thus, a failure to except to the evidence because it does not conform with the statute is a waiver if the provisions of the law. That objection to a question put to a witness must be made at the time the question is asked. An objection to the admission of evidence on the ground of incompetency, taken after the testimony has been given, is too late. Thus, for instance, failure to object to parol evidence given on the stand, where the party is in a position to object, is a waiver of any objections thereto. The situation is aggravated by the fact that counsel for private respondent unreservedly cross-examined petitioners, as the lone witness, on the documentary evidence that were offered. At no time was the issue of the supposed inadmissibility thereof, or the possible basis for objection thereto, ever raised. Instead, private respondent's counsel elicited answers from the witness on the circumstances and regularity of her obtention of said documents: The observations later made by private respondent in her comment to petitioners' offer of exhibits, although the grounds therefor were already apparent at the time these documents were being adduced in evidence during the testimony of Corazon Dezoller Tison but which objections were not timely raised therein, may no longer serve to rectify the legal consequences which resulted therefrom. Hence, even assuming ex gratia argumenti that these documents are inadmissible for being hearsay, but on account of herein private respondent's failure to object thereto, the same may be admitted and considered as sufficient to prove the facts therein asserted. Accordingly, the Certificate of Marriage (Exhibit S) wherein it is indicated that the parents of Teodora Dezoller are Isabelo Dezoller and Cecilia Calpo, as well as the Certificates of Baptism of Teodora Dezoller (Exhibit H) and Hermogenes Dezoller (Exhibit J) which both reflect the names of their parents as Isabelo Dezoller and Cecilia Calpo, to show that Hermogenes Dezoller is the brother of Teodora Dezoller Guerrero; and the Death Certificate of Hermogenes Dezoller (Exhibit K) the entries wherein were made by petitioner Corazon Dezoller Tison as his daughter, together with the Joint Affidavits of Pablo Verzosa and Meliton Sitjar (Exhibits N and P), to prove that herein petitioners are the children of Hermogenes Dezoller — these can be deemed to have sufficiently established the relationship between the declarant and herein petitioners. This is in consonance with the rule that a prima facie showing is sufficient and that only slight proof of the relationship is required. Finally, it may not be amiss to consider as in the nature of circumstantial evidence the fact that both the declarant and the claimants, who are the subject of the declaration, bear the surname Dezoller. Section 40. Family reputation or tradition regarding pedigree. - The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree. (34a SCOPE FRANCISCO L. JISON vs. COURT OF APPEALS G.R. No. 124853 February 24, 1998 Rule 130, Section 40, provides: Sec. 40. Family reputation or tradition regarding pedigree. — The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like may be received as evidence of pedigree.
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law on evidence It is evident that this provision may be divided into two (2) parts: the portion containing the first underscored clause which pertains to testimonial evidence, under which the documents in question may not be admitted as the authors thereof did not take the witness stand; and the section containing the second underscored phrase. What must then be ascertained is whether Exhibits S to V, as private documents, fall within the scope of the clause "and the like" as qualified by the preceding phrase "[e]ntries in family bibles or other family books or charts, engravings on rights [and] family portraits," We hold that the scope of the enumeration contained in the second portion of this provision, in light of the rule of ejusdem generis, is limited to objects which are commonly known as "family possessions," or those articles which represent, in effect, a family's joint statement of its belief as to the pedigree of a person. These have been described as objects "openly exhibited and well known to the family," or those "which, if preserved in a family, may be regarded as giving a family tradition." Other examples of these objects which are regarded as reflective of a family's reputation or tradition regarding pedigree are inscriptions on tombstones, monuments or coffin plates. PEOPLE OF THE PHILIPPINES vs. FELINO LLANITA y OPIANA G.R. No. 134101, September 5, 2001 Article 336 of the Revised Penal Code, as amended by Section 11 of R.A. 7659, insofar as applicable, reads: "The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: xxx xxx xxx 4. when the victim is a religious or a child below seven (7) years old." (Emphasis supplied) The prosecution is tasked with the burden of proving the age of the victim beyond reasonable doubt in order to appreciate age as a qualifying circumstance. In the present case, although the only evidence presented by the prosecution to establish that CATHERINE was below seven (7) years old at the time of the commission of the rape was her own testimony, there is no reason to doubt the sufficiency of the said evidence. Her testimony as to her age was never questioned by the accused-appellant in the lower court and remained unrebutted at the trial. And such testimony regarding her age is admissible although hearsay, for she can have no personal knowledge of the date of her birth, as all knowledge as to one's age is acquired from whatever is told by the parents or relatives and such testimony constitutes an assertion of family tradition. It is admissible under Section 40 of Rule 130 of the Rules of Court (Revised Rules on Evidence) which reads: "SECTION 40. Family reputation or tradition regarding pedigree — The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. x x x" The above provision contains three requisites for its admissibility, namely: 1.) that there is a controversy in respect to the pedigree of any of the members of a family; 2.) that the reputation or tradition of the pedigree existed previous to the controversy; and 3.) that the witness testifying to the reputation or tradition regarding the pedigree of the person must be a member of the family of said person. The word "pedigree" under Section 39 of the same Rule includes relationship, family genealogy, birth, marriage, death, the dates when and places where these facts occurred and the names of relatives. All three requisites are present in the case at bar.
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law on evidence Admittedly, there have recently been cases where the court applied a more rigid rule requiring that the prosecution present the birth certificate or other documentary evidence when testimonial evidence is insufficient or unreliable to prove the age of the victim. Thus, in People vs. Javier, People vs. Tipay, and People vs. Cula, it was ruled that independent proof other than testimonial evidence is required to prove the victim's age in cases when the age of the victim is alleged to fall within fifteen (15) to eighteen (18) years old. We ratiocinated that "in this age of modernism, there is hardly a difference between a 16-year old girl and an 18-year old one insofar as physical features and attributes are concerned" and that "the crucial years pertain to the ages of fifteen to seventeen where minority may seem dubitable due to one's physical appearance". In People vs. Brigildo, the testimonies of the prosecution witnesses respecting the age of the victim were deemed insufficient considering that the records were unclear as to the victim's exact age. The Informations therein alleged that the victim was eleven (11) years old when she was raped yet, when the victim testified a year later, she stated that she was still eleven (11) years old. Moreover, the testimony of her mother was to the effect that the victim was already fifteen (15) years old at the time she was raped. Given that the true age of the victim was put in doubt, the court considered the evidence presented insufficient to prove her age. This Court has also pronounced that the presentation of the birth certificate or any other official document is no longer necessary to prove minority. Thus, when as in this case, the age of the victim was never put in doubt and was in fact sufficiently established, there is no corresponding obligation on the part of the prosecution to present other evidence if the testimony of the witness who is competent to testify is sufficient to prove the age of the victim. The presentation of the birth certificate would merely be corroborative of the evidence already, presented. In his testimony, the accused-appellant himself, who claimed that CATHERINE was his niece as her mother was his first cousin, admitted that CATHERINE was "five years old last 1996". Had the accused-appellant indeed doubted the age of the victim, he could have presented her birth certificate. We also note that the certified true copy of CATHERINE's birth certificate which was submitted to this Court pursuant to our Resolution dated October 10, 2000 confirms that CATHERINE was born on June 19, 1990 and was thus only five years old at the time she was raped. Section 41. Common reputation. - Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputation. (35 COMMON REPUTATION REGARDING MORAL CHARACTER CIVIL SERVICE COMMISSION vs. ALLYSON BELAGAN G.R. No. 132164, October 19, 2004 Credibility means the disposition and intention to tell the truth in the testimony given. It refers to a person’s integrity, and to the fact that he is worthy of belief. A witness may be discredited by evidence attacking his general reputation for truth, honesty or integrity. Section 11, Rule 132 of the same Revised Rules on Evidence reads: "SEC. 11. Impeachment of adverse party’s witness. –A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honesty, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense." Although she is the offended party, Magdalena, by testifying in her own behalf, opened herself to character or reputation attack pursuant to the principle that a party who becomes a
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law on evidence witness in his own behalf places himself in the same position as any other witness, and may be impeached by an attack on his character or reputation. With the foregoing disquisition, the Court of Appeals is correct in holding that the character or reputation of a complaining witness in a sexual charge is a proper subject of inquiry. This leads us to the ultimate question – is Magdalena’s derogatory record sufficient to discredit her credibility? A careful review of the record yields a negative answer. First, most of the twenty-two (22) cases filed with the MTC of Baguio City relate to acts committed in the 80’s, particularly, 1985 and 1986. With respect to the complaints filed with the Chairmen of Barangay Gabriela Silang and Barangay Hillside, the acts complained of took place in 1978 to 1979. In the instant administrative case, the offense was committed in 1994. Surely, those cases and complaints are no longer reliable proofs of Magdalena’s character or reputation. The Court of Appeals, therefore, erred in according much weight to such evidence. Settled is the principle that evidence of one’s character or reputation must be confined to a time not too remote from the time in question. In other words, what is to be determined is the character or reputation of the person at the time of the trial and prior thereto, but not at a period remote from the commencement of the suit. Hence, to say that Magdalena’s credibility is diminished by proofs of tarnished reputation existing almost a decade ago is unreasonable. It is unfair to presume that a person who has wandered from the path of moral righteousness can never retrace his steps again. Certainly, every person is capable to change or reform. PEOPLE OF THE PHILIPPINES vs. ELEUTERIO ADONIS G.R. No. 98196 January 31, 1995 The testimony of the Barangay Captain was given neither credence nor weight by the trial court. While the accused may prove the bad moral character of the victim, the proof must be of his general reputation in the community and not merely of isolated and specific acts. Thus, the mere allegation that a complaint for theft had been filed against the victim cannot establish his general reputation. Besides, there was no showing that Basas was ever convicted of that charge, assuming it had ever been filed. COMMON REPUTATION REGARDING MARRIAGE Attendance in weddings and baptisms where a man and a woman purport themselves to be husband and wife is evidence of common reputation regarding marriage (ARTURIO TRINIDAD vs. COURT OF APPEALS, G.R. No. 118904, April 20, 1998). Section 42. Part of res gestae. - Statements made by a person while a starting occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. BASIS OF RES GESTAE Res gestae is based on the belief that because certain statements are made naturally, spontaneously and without deliberation during the course of an event, they leave little room for misunderstanding or misinterpretation upon hearing by someone else (i.e. by the witness who will later repeat the statement to the court) and thus the courts believe that such statements carry a high degree of credibility. Under Federal Rules, statements which can be admitted into evidence as res gestae fall into three headings: 1. Words or phrases which either form part of, or explain, a physical act, 2. Exclamations which are so spontaneous as to belie concoction, and
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law on evidence 3. Statements which are evidence as to someone's state of mind. In some jurisdictions, the res gestae exception has also been used to admit police sketches. DEFINITION BY THE SUPREME COURT Res gestae refers to statements made by the participants or the victims of, or the spectators to, a crime immediately before, during, or after its commission. These statements are a spontaneous reaction or utterance inspired by the excitement of the occasion, without any opportunity for the declarant to fabricate a false statement. An important consideration is whether there intervened, between the occurrence and the statement, any circumstance calculated to divert the mind and thus restore the mental balance of the declarant; and afford an opportunity for deliberation. This is also known as an EXCITED UTTERANCE which is a statement made by a person in response to a startling or shocking event or condition. The statement must be spontaneously made by the person (the declarant) while still under the stress of excitement from the event or condition. The subject matter and content of the statement must "relate to" event or condition. The statement could be a description or explanation (as required for present sense impression), or an opinion or inference. Examples include: "Look out! We're going to crash!" or "I think he's crazy. He's shooting at us!" The basis for this hearsay exception is the belief that a statement made under the stress is likely to be trustworthy and unlikely to be premeditated falsehoods. Compared to present sense impression, excited utterance is broader in scope for permitting a longer time lapse between event and statement, and a wider range of content in the statement. Under the Federal Rules of Evidence, an excited utterance is a hearsay exception, and is admissible to prove the truth of the statement itself (e.g., in the case of the first quotation above, to prove that the vehicle the declarant was riding in was, in fact, about to crash). To prove the truth of the statement means to persuade the finder of fact to believe the affirmative sense of the statement. "Truth" here does not mean truth from the subjective point of view of the declarant or from the objective point of view of a reasonably prudent person. It simply refers to the affirmative assertion of the statement. WHY ARE PARTS OF THE RES GESTAE ADMITTED AS EXCEPTIONS? The justification TRUSTWORTHINESS.
is
the
same
as
in
dying
declarations:
NECESSITY
AND
There is necessity because, due to the unavailability of the declarant, there is otherwise no way to know the existence and condition of the declarant. There is trustworthiness because this exception presupposes a declaration made out of instinct and spontaneity and the lack of opportunity to contrive or concoct a story. WHAT ARE ADMISSIBLE AS PART OF THE RES GESTAE? 1. Statements made by a person while a starting occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof; 2. Statements accompanying an equivocal act material to the issue and giving it legal significance. TWO CONCEPTS A. Spontaneous Statements SPONTANEOUS STATEMENT: X barged into the house of Y, tied her to a chair and
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law on evidence robbed her. X brought Y’s maid to a bedroom and raped her. Y could hear the maid crying: “Huwag! Maawa ka sa akin!”. When X fled, Y with the maid rushed to the police station and told the police what happened. The maid told the police that despite her pleas X still raped her. The police noticed that the maid was hysterical and on the verge of collapse. X was charged with robbery with rape. During the trial the maid could no longer be located. The prosecution presents the policeman to testify on what the maid told him. [The testimony would be hearsay but as an exception to the hearsay rule. The statements made by the maid fall within the res gestae rule] REQUISITES TO BE CONSIDERED A SPONTANEOUS STATEMENT A declaration is deemed part of the res gestae and admissible in evidence as an exception to the hearsay rule, when the following requisites concur: 1) the principal act, the res gestae, is a startling occurrence; 2) the statements were made before the declarant had time to contrive or devise; and 3) the statements concerned the occurrence in question and its immediately attending circumstances. B. Statements accompanying Equivocal Acts- Equivocal means ambiguous; capable of different interpretations. EQUIVOCAL/VERBAL ACTS: A witness testifies on the stand for the plaintiff in a collection case where the defendant denies having borrowed P10,000 from the plaintiff. The debt is not evidenced by a promissory note because plaintiff claims that defendant had orally borrowed money from him in the past and had always paid. This time he refuses to pay. The witness testifies that one year ago he saw the plaintiff give money to the defendant. And that he heart the plaintiff said that: “Here’s the money you are borrowing from me.” Further, he said that he heard the defendant say: “Thank you, I will pay one year after.” [Here the equivocal act of handing the money was given significance by the statement of the plaintiff SPONTANEOUS EXCLAMATION Principal fact is a startling occurrence. Statement may preceded, accompany or succeed the startling occurrence. Statement need not explain the principal fact.
VERBAL ACT Principal fact is an equivocal act. Statement must accompany the equivocal act Statement must explain the principal fact and give it legal significance
ANOTHER EXCEPTION IN RELATION TO RES GESTAE 6. PRESENT SENSE IMPRESSION. A present sense impression, in the law of evidence, is a statement made by a person (the declarant) that conveys his or her sense of the state of an event or the condition of something. The statement must be spontaneously made while the person was perceiving (i.e. contemporaneous with) the event or condition, or "immediately thereafter." The permissible time lapse between event and statement may range from seconds to minutes, but probably not hours. The subject matter and content of the statement are limited to descriptions or explanations of the event or condition, therefore opinions, inferences, or conclusions about the event or condition are not present sense impressions. An example of present sense impression is of a person saying, "it's cold" or "we're going really fast". Under the Federal Rules of Evidence, a statement of present sense impression is an exception to the prohibition on use of hearsay as evidence at a trial or hearing, and is therefore admissible to prove the truth of the statement itself (i.e. to prove that it was in fact cold at the time the person was speaking, or to prove that the person was indeed traveling very fast). The basis
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law on evidence for this exception is the belief that the statement is likely reliable and true, as there is no time for reflection, distortion, or fabrication. The witness testifying about the statement need not be the declarant who, with firsthand knowledge about the event and condition, would normally make a better witness. The witness must have personal knowledge of declarant's making of the statement, but need not have personal knowledge of the event or the content of the statement. For example, a policeman observed from a distance that a reporter was dictating into a voice-recorder while a shooting was going on, but could not hear what the reporter was dictating. The reporter is unavailable to testify. The policeman testifies that he saw the reporter make the dictation. Upon proper authentication, that portion of the audio-recording containing descriptions or explanations of the shooting is admissible as present sense impression. In order to fall under this exception, the following factors must exist: 1. Immediacy: The present-sense-impression exception applies only if virtually no time passes between the event being perceived and the declarant’s statement about it. 2. Must describe or explain: The present sense impression must describe or explain the event that the declarant has perceived. LOZANO vs. PEOPLE OF THE PHILIPPINES G.R. No. 165582, July 9, 2010 The record showed that barangay tanod Jose Lazaro, Jr. personally saw appellant and his co-accused Lorenzo Remeses Tubis load the tires onto their vehicle. Few moments after his witness called his fellow barangay tanods to intercept the vehicle, he was informed that the appellant and his criminal associates had been arrested and the tires were recovered from their possession. Immediately thereafter, the recovered tires were confirmed by Ms. Gonzales herself as the very tires stolen from her car. In the words of Lazaro, Jr.’s Sinumpaang Salaysay: "Na ilang sandali ay may tumawag sa akin na nakuha na ang naturang sasakyan at naroon nga ang dalawang gulong at ipinatawag ang complainant na si Paz Gonzales at Novo Gabriel (na biktima ng naturang kaso) at pagdating ay nakita ang kotse at ng ipakita ang gulong ay positibong nakilala ni Novo Gabriel at pinatibay ni Paz Gonzales na iyon ay nakakabit sa Nissan Sentra UGJ 952 nila." The connection among these details is too close and too obvious: the stolen tires were found in the possession of appellant and his co-accused. Moreover, the information conveyed to Lazaro, Jr. by one of his fellow tanods regarding the arrest of appellant and his cohorts and the recovery of the tires is admissible to prove that the stolen tires were actually found in the possession of appellant and his partners. While said information may have consisted of out-of-court statements by an out-of-court declarant (Lazaro, Jr.), this person could have testified thereon (as he in fact did), as a ‘present sense impression.’ A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, is not barred by the rule against hearsay. The rationale for the ‘present sense impression’ exception is that (1) There is no substantial danger that defects in the declarant’s memory will affect the value of the statement; (2) the declarant would not have had much time to fabricate before making the statement; and (3) in many cases, the person to whom the statement was addressed would have been in a position to check its accuracy; hence, the declarant could speak with care. In the present case, there is no doubt that the barangay tanod who reported the arrest and recovery to Lazaro, Jr. did not have the opportunity to fabricate his statement as he instantly
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law on evidence transmitted the information to Lazaro, Jr. who verified the correctness and truthfulness of such account. DYING DECLARATION vs. RES GESTAE Time when statements made: DYING DECLARATION- statements must be made after the injury has been inflicted upon the applicant. RES GESTAE- in so far as startling occurrence is concerned, the statements could be made prior or simultaneous with or after the startling occurrence. Death of declarant: DYING DECLARATION- declarant must die RES GESTAE- no need for declarant to die Declarant: DYING DECLARATION- must be the victim RES GESTAE- anybody Take note that a statement may both qualify as a dying declaration and as [art of the res gestae. This is under the concept of multiple admissibility of evidence. PEOPLE vs. CLOUD (265 SCRA 472) Concept of independently relevant statements and res gestae applied simultaneously. [N.B. dying declaration may likewise be applied simultaneously with independently relevant statement] Josephine Aguilar was at the emergency room of a hospital to have some stitches removed from her daughter’s head when she saw a boy being carried by a man, followed by an old woman who was shouting hysterically. The boy’s face was swollen and bruised and his body covered with dry blood. The old woman, apparently the boy’s grandmother, cried and repeatedly screamed. “Pinatay siya ng sariling ama!”. The old woman told the people inside the emergency room that the boy’s father had beaten him up, tied his hands, and stabbed him. Ruling of SC: Insofar as the statements of Rufina Alconyes(old woman) are concerned, they are admissible as part of the res gestae, they having been caused by and did result from the startling, if not gruesome, occurrence that she witnessed; and these were shortly thereafter uttered by her with spontaneity, without prior opportunity to contrive the same. The report made thereof by Josephine Aguilar is not hearsay since she was actually there and personally heard the statements of Alconyes which she recounted in court. Her account of said statements of Alconyes are admissible under the doctrine of independently relevant statements, with respect to the tenor and not the truth thereof, since independent of the truth or falsity of the same they are relevant to the issue on the cause of the death of the victim. CELESTINO MARTURILLAS VS. PEOPLE OF THE PHILIPPINES G.R. No. 163217, April 18, 2006
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law on evidence The fact that the victim’s statement constituted a dying declaration does not preclude it from being admitted as part of the res gestae, if the elements of both are present. Section 42 of Rule 130 of the Rules of Court provides: "Part of the res gestae. -- Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae." Res gestae refers to statements made by the participants or the victims of, or the spectators to, a crime immediately before, during, or after its commission. These statements are a spontaneous reaction or utterance inspired by the excitement of the occasion, without any opportunity for the declarant to fabricate a false statement. An important consideration is whether there intervened, between the occurrence and the statement, any circumstance calculated to divert the mind and thus restore the mental balance of the declarant; and afford an opportunity for deliberation.51 A declaration is deemed part of the res gestae and admissible in evidence as an exception to the hearsay rule, when the following requisites concur: 1) the principal act, the res gestae, is a startling occurrence; 2) the statements were made before the declarant had time to contrive or devise; and 3) the statements concerned the occurrence in question and its immediately attending circumstances. All these requisites are present in this case. The principal act, the shooting, was a startling occurrence. Immediately after, while he was still under the exciting influence of the startling occurrence, the victim made the declaration without any prior opportunity to contrive a story implicating petitioner. Also, the declaration concerned the one who shot the victim. Thus, the latter’s statement was correctly appreciated as part of the res gestae. Aside from the victim’s statement, which is part of the res gestae, that of Ernita -"Kapitan, ngano nimo gipatay ang akong bana?" ("Captain, why did you shoot my husband?") -may be considered to be in the same category. Her statement was about the same startling occurrence; it was uttered spontaneously, right after the shooting, while she had no opportunity to concoct a story against petitioner; and it related to the circumstances of the shooting. THE ELEMENT OF SPONTANEITY It goes without saying that the element of spontaneity is critical. The following factors are then considered in determining whether statements offered in evidence as part of the res gestae have been made spontaneously, viz., (1) the time that lapsed between the occurrence of the act or transaction and the making of the statement; (2) the place where the statement was made; (3) the condition of the declarant when he made the statement; (4) the presence or absence of intervening events between the occurrence and the statement relative thereto; and (5) the nature and circumstances of the statement itself. Spontaneity of the declarant is a key to admissibilty. An excited utterance does not have to be made at time of the startling event, but must be made while the declarant is still in a state of surprise or shock from the incident. The declarant's reflective powers must be stilled, meaning that, while making the statement, the declarant would not have had a chance to reflect upon the startling event, fabricate a purposefully false statement, and then say it. If the declarant is believed to have had time to reflect on the situation before making the statement, the statement would not be spontaneous and thus not an excited utterance. However, under certain circumstances, it is possible for days to have passed before the declarant fully reflects on the event, and "unstills" his or her reflective powers.
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law on evidence Spontaneity is established by the declarant's demeanor, time lapse, and content of the statement. Declarant's appearance of calmness at time statement lessens admissibility. Time lapse between the startling event and the statement is a factor for both admissibility and weight. A statement made long after the event may be deemed less spontaneous than one made contemporaneously or shortly after. Outer limit of the permissible time lapse can only be determined from the circumstances of a particular case. For example, if a declarant made a statement six days after a car crash due to the extent of his injuries, admissibility of the statement is diminished because of the significant passage of time. However, if evidence shows that he was continuously distraught and did not yet have a chance to reflect upon the crash, the statement could be admissible but may have less weight than if the statement had been made one hour after the crash. A complete and detailed statement may infer the lack of spontaneity, as a narrative of a past completed event would require the declarant's reflection and organization. DBP POOL OF ACCREDITED INSURANCE COMPANIES vs. RADIO MINDANAO NETWORK G.R. No. 147039, January 27, 2006 Res gestae, as an exception to the hearsay rule, refers to those exclamations and statements made by either the participants, victims, or spectators to a crime immediately before, during, or after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement. The rule in res gestae applies when the declarant himself did not testify and provided that the testimony of the witness who heard the declarant complies with the following requisites: (1) that the principal act, the res gestae, be a startling occurrence; (2) the statements were made before the declarant had the time to contrive or devise a falsehood; and (3) that the statements must concern the occurrence in question and its immediate attending circumstances. The Court is not convinced to accept the declarations as part of res gestae. While it may concede that these statements were made by the bystanders during a startling occurrence, it cannot be said however, that these utterances were made spontaneously by the bystanders and before they had the time to contrive or devise a falsehood. Both SFO III Rochar and Lt. Col. Torres received the bystanders’ statements while they were making their investigations during and after the fire. It is reasonable to assume that when these statements were noted down, the bystanders already had enough time and opportunity to mill around, talk to one another and exchange information, not to mention theories and speculations, as is the usual experience in disquieting situations where hysteria is likely to take place. It cannot therefore be ascertained whether these utterances were the products of truth. That the utterances may be mere idle talk is not remote. At best, the testimonies of SFO III Rochar and Lt. Col. Torres that these statements were made may be considered as independently relevant statements gathered in the course of their investigation, and are admissible not as to the veracity thereof but to the fact that they had been thus uttered. PEOPLE OF THE PHILIPPINES vs. ALFREDO PASCUAL G. R. No. 172326, January 19, 2009 Furthermore, the statements of accused-appellant’s wife, Divina, immediately after the fateful incident all the more convince the Court as to accused-appellant’s guilt. Part of the res
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law on evidence gestae and admissible in evidence as an exception to the hearsay rule were Divina’s utterances to Gorospe after seeing the dead and raped body of the victim, i.e., “May nagyari sa itaas at galing doon si Boyet,” and her subsequent narration of seeing the accused-appellant going out of the victim’s room and running away therefrom. In People v Cantonjos, the Court held that: Res gestae utterances refer to those exclamations and statements made by either the participants, victims, or spectators to a crime immediately before, during, or after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement. A declaration is deemed part of the res gestae and thus admissible in evidence as an exception to the hearsay rule when the following requisites concur: (1) the principal act, the res gestae, is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise; and (3) the statements must concern the occurrence in question and its immediately attending circumstances. The aforementioned requisites are present in this case. The res gestae or the startling event is the rape and death of the victim. The statements of Divina to Gorospe were made spontaneously and before she had the time to contrive or devise such declarations, and said statements all concerned the occurrence in question or the immediately attending circumstances thereof. RES GESTAE IN A CIVIL CASE FOR REPLEVIN GOLDEN (ILOILO) DELTA SALES CORP vs. PRE-STRESS INT’L CORPORATION G.R. No. 176768, January 12, 2009 FACTS: Golden Delta is engaged in selling hardware and construction materials. Cembrano is its Vice-President and General Manager. Pre-Stress International Corporation (PSI) is engaged in the fabrication of pre-stress concrete pipes and pre-case concrete, while respondents Jerry Jardiolin and Zeñon Setias are officers of PSI. Sometime in 1990, Cembrano was introduced by Jardiolin to the PSI Board of Directors, among whom was Setias. Since then, Golden Delta supplied PSI with its construction materials on credit and at times helped finance the latter’s construction projects through Golden Delta’s sister financing company. Sometime in March 2000, for convenience of both parties, the officers of PSI allegedly offered Golden Delta to store its construction materials at the PSI compound in Pavia, Iloilo. At that time, Golden Delta’s warehouse in Dungon A, Jaro, Iloilo City, was being rented by Wewins Bakeshop. Consequently, Golden Delta accepted the proposal and began utilizing a portion of the PSI compound as its warehouse and bodega, stacking and storing its construction materials there. Golden Delta alleged that its stocks coming from Luzon and Cebu were delivered directly to the PSI compound and stored there. Golden Delta also placed there trucks, forklifts and other equipment necessary for loading and unloading the materials. It likewise assigned there its own personnel to manage and attend to the receipts and withdrawal of materials by its buyers. Golden Delta claimed that the procedure in the withdrawal of materials by its customers in the PSI compound was to first purchase the materials from its main office in Iloilo City; the customer would then be issued a withdrawal slip describing the materials and their quantities; the withdrawal slip would then be presented to Golden Delta’s personnel stationed at the PSI compound and the latter would record it and release the materials to the customer. Golden Delta claimed that the arrangement went smoothly from March 2000 to December 2001.
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law on evidence Before December 5, 2001, the lessee of Golden Delta’s warehouse in Dungon A, Jaro, Iloilo City, terminated its lease agreement with Golden Delta. Hence, Golden Delta decided to resume its operations at its own warehouse. Thereafter, Golden Delta started to retrieve and transfer its alleged stocks from the PSI compound to its own warehouse in Dungon A. Golden Delta’s employees were able to load three out of four trucks with assorted construction materials, but were only able to bring out two loaded trucks from the PSI compound to its warehouse in Dungon A. When Golden Delta’s people returned to retrieve the remaining materials, they were prevented from doing so by the guards of PSI, allegedly upon the instructions of Jardiolin. Despite numerous telephone calls by Golden Delta to the officers and personnel of PSI, the latter allegedly refused to allow Golden Delta to withdraw its remaining stocks. On December 7, 2001, PSI purportedly called Golden Delta’s office to inform the latter that it may retrieve the two trucks that were left at the PSI compound. Golden Delta, however, found two empty trucks along the highway outside the PSI compound. It appears that one of the trucks which were loaded with materials earlier was emptied of its cargo. At that time, according to Golden Delta, the drivers who retrieved the trucks saw Golden Delta’s materials still inside the PSI compound. On December 8, 2001, Golden Delta sent a Letter addressed to Setias, the General Manager of PSI, demanding the release of the construction materials. PSI allegedly refused to release or allow Golden Delta to enter the compound and withdraw the materials. Consequently, Golden Delta filed on January 8, 2002 a Complaint for Recovery of Personal Property with Prayer for Replevin with Damages before the Regional Trial Court (RTC), Iloilo City, against PSI, Jardiolin and Setias, later docketed as Civil Case No. 02-27020. In its complaint, Golden Delta averred that respondents’ refusal to allow it to withdraw the construction materials inside the PSI compound, in effect, constitutes unlawful taking of possession of personal properties. Golden Delta prayed that the trial court issue a writ of replevin ordering the seizure and delivery of the subject personal properties in accordance with law RULING: The CA’s findings that these inventory lists that were testified to by petitioner’s witnesses were not signed or acknowledged by any of respondents’ personnel do not militate against their evidentiary value. As correctly pointed out by petitioner, the withdrawal slips and inventory lists do not bear the signature of any PSI officer/personnel because, as admitted by PSI and Setias in their Answer, they do not interfere with the affairs and activities of Golden Delta and Jardiolin as their operations do not interfere with their company’s operation and that although Golden Delta delivers construction materials to Jardiolin, the transaction is purely between the two of them and that they have no participation in their transactions whatsoever. Nor can it be contended that the inventory lists are self-serving simply because they were prepared by petitioner’s employees. These documents were prepared ante litem motam, and without anticipation that any litigation between the parties may ensue in the future. In Philippine Airlines, Inc. v. Ramos, this Court held that a writing or document made contemporaneously with a transaction which evidenced facts pertinent to the issue, when adduced as proof of those facts, is ordinarily regarded as more reliable proof and of greater probative force than the oral testimony of a witness as to such facts based upon memory and recollection. Statements, acts or conducts accompanying or so nearly connected with the main transaction as to form part of it, and which illustrate, elucidate, qualify or characterize the act, are admissible as part of the res gestae. In the present case, the withdrawal slips and inventory lists were prepared by the petitioner’s employees who were detailed at the PSI compound, in the regularcourse of its business, made contemporaneously with the transaction, and in the performance of their regular duties without anticipation of any future litigation which may arise between petitioner and PSI. They should have been afforded great weight and credence as evidence THE RES GESTAE STATEMENT MAY COME
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law on evidence FROM THE ACCUSED HIMSELF PEOPLE OF THE PHILIPPINES vs. TIRSO SACE G.R. No. 178063, April 5, 2010 Also, the facts in this case clearly show that appellant admitted the commission of the crime to the prosecution’s witnesses. According to their testimonies, appellant admitted having raped and killed AAA. Their testimonies were not rebutted by the defense. Appellant’s statements infront of the prosecution witnesses are admissible for being part of the res gestae. Under the Revised Rules on Evidence, a declaration is deemed part of the res gestae and admissible in evidence as an exception to the hearsay rule when the following requisites concur: (1) the principal act, the res gestae, is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise; and (3) the statements must concern the occurrence in question and its immediately attending circumstances. All these requisites are present in this case. Appellant had just been through a startling and gruesome occurrence, AAA’s death. His admission was made while he was still under the influence of said startling occurrence and before he had an opportunity to concoct or contrive a story. In addition, he was still under the influence of alcohol at that time, having engaged in a drinking spree from 1:00 p.m. to 7:00 p.m. that day. His confession concerned the rape and killing of AAA. Appellant’s spontaneous statements made to private persons, not agents of the State or law enforcers, are not covered by the constitutional safeguards on custodial investigation and, as res gestae, admissible in evidence against him. CASE: PEOPLE OF THE PHILIPPINES vs. ESOY G.R. No. 185849, April 7, 2010 Res gestae refers to those exclamations and statements made by either the participants, the victim or spectator to a crime immediately before, during or immediately after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement. In the instant case, all the elements of res gestae are sufficiently established insofar as the aforequoted spontaneous utterance is concerned: (1) the principal act (res gestae) – the robbery and stabbing of the victim – is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise, that is, within minutes after the victim was stabbed and his cellular phone was snatched; and (3) the statement concerns the occurrence in question and its immediately attending circumstances – his cellular phone was stolen during the startling occurrence. The testimony being an exception to the hearsay rule, the trial court did not err in admitting the same. Section 43. Entries in the course of business. - Entries made at, or near the time of transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. (37a) COMMENT In American jurisprudence, this is also known as the “BUSINESS RECORDS EXCEPTION”. REQUISITES SECURITY BANK & TRUST CO. VS. ERIC GAN G.R. No. 150464, June 27, 2006
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law on evidence Neither can we accept petitioner’s argument that the entries made by Mercado in the ledger were competent evidence to prove how and when the negative balance was incurred. Petitioner invokes Section 43 of Rule 130. XXX Under this exception to the hearsay rule, the admission in evidence of entries in corporate books required the satisfaction of the following conditions: 1. the person who made the entry must be dead, or unable to testify; 2. the entries were made at or near the time of the transactions to which they refer; 3. the entrant was in a position to know the facts stated in the entries; 4. the entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious; and 5. the entries were made in the ordinary or regular course of business or duty. The ledger entries did not meet the first and third requisites. Mercado, petitioner’s bookkeeper who prepared the entries, was presented to testify on the transactions pertaining to the account of respondent. It was in the course of his testimony that the ledger entries were presented. There was, therefore, neither justification nor necessity for the presentation of the entries as the person who made them was available to testify in court. Moreover, Mercado had no personal knowledge of the facts constituting the entries, particularly those entries which resulted in the negative balance. He had no knowledge of the truth or falsity of these entries. MEANS OF PROVING FILIATION CROSS-REFERENCE TO PEDIGREE REPUBLIC OF THE PHILIPPINES vs. MANGOTARA G.R. No. 170375, July 7, 2010 Under Art. 172 of the Family Code, the filiation of legitimate children shall be proved by any other means allowed by the Rules of Court and special laws, in the absence of a record of birth or a parent’s admission of such legitimate filiation in a public or private document duly signed by the parent. Such other proof of one’s filiation may be a baptismal certificate, a judicial admission, a family Bible in which his name has been entered, common reputation respecting his pedigree, admission by silence, the testimonies of witnesses and other kinds of proof admissible under Rule 130 of the Rules of Court. By analogy, this method of proving filiation may also be utilized in the instant case. xxxx The admissibility of baptismal certificates offered by Lydia S. Reyes, absent the testimony of the officiating priest or the official recorder, was settled in People v. Ritter, citing U.S. v. de Vera (28 Phil. 105 [1914]), thus – x x x the entries made in the Registry Book may be considered as entries made in the course of the business under Section 43 of Rule 130, which is an exception to the hearsay rule. The baptisms administered by the church are one of its transactions in the exercise of ecclesiastical duties and recorded in the book of the church during the course of its business. It may be argued that baptismal certificates are evidence only of the administration of the sacrament, but in this case, there were four (4) baptismal certificates which, when taken together, uniformly show that Lourdes, Josefina, Remedios and Luis had the same set of parents, as indicated therein. Corroborated by the undisputed testimony of Adelaida Sampayo that with the demise of Lourdes and her brothers Manuel, Luis and sister Remedios, the only sibling left was Josefina Sampayo Reyes, such baptismal certificates have acquired evidentiary weight to prove filiation.
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law on evidence
Section 44. Entries in official records. - Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. (38) PEOPLE OF THE PHILIPPINES vs. FILOMENO MAYINGQUE G.R. No. 179709, July 6, 2010 The testimony of Dr. Salen as regards the Anatomical Sketch, and Medico Legal Report, among other things, prepared by Dr. Aranas falls under the exception to the hearsay rule because the said sketch and report are entries in official records made by Dr. Aranas in the performance of his duty as a Medico Legal Officer of the WPD Crime Laboratory. Dr. Aranas had personal knowledge of the facts stated by him the said sketch and report relative to the nature and number of wounds sustained by Tusi because he was the one who performed the autopsy on the cadaver of Tusi. Dr. Salen acquired such facts from the sketch and report made by his predecessor, Dr. Aranas, who had a legal duty to turn over the same to him as his successor. Such entries were duly entered in a regular manner in the official records, hence, the entries in said sketch and report are prima facie evidence of the facts therein stated and are admissible under Section 44, Rule 130 of the Rules of Court. Section 45. Commercial lists and the like. - Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein. (39) REQUISITES PNOC SHIPPING AND TRANSPORT CORPORATION vs. COURT OF APPEALS G.R. No. 107518, October 8, 1998 It is true that one of the exceptions to the hearsay rule pertains to "commercial lists and the like" under Section 45, Rule 130 of the Revised Rules on Evidence. In this respect, the Court of Appeals considered private respondent's exhibits as "commercial lists." It added, however, that these exhibits should be admitted in evidence "until such time as the Supreme Court categorically rules on the admissibility or inadmissibility of this class of evidence" because "the reception of these documentary exhibits (price quotations) as evidence rests on the sound discretion of the trial court." Reference to Section 45, Rule 130, however, would show that the conclusion of the Court of Appeals on the matter was arbitrarily arrived at. This rule states: Commercial lists and the like. — Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them there. Under Section 45 of the aforesaid Rule, a document is a commercial list if: (1) it is a statement of matters of interest to persons engaged in an occupation; (2) such statement is contained in a list, register, periodical or other published compilation; (3) said compilation is published for the use of persons engaged in that occupation, and (4) it is generally used and relied upon by persons in the same occupation.
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law on evidence Based on the above requisites, it is our considered view that Exhibits B, C, D, E, F and H are not "commercial lists" for these do not belong to the category of "other published compilations" under Section 45 aforequoted. Under the principle of ejusdem generis, "(w)here general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same kind or class as those specifically mentioned." The exhibits mentioned are mere price quotations issued personally to Del Rosario who requested for them from dealers of equipment similar to the ones lost at the collision of the two vessels. These are not published in any list, register, periodical or other compilation on the relevant subject matter. Neither are these "market reports or quotations" within the purview of "commercial lists" as these are not "standard handbooks or periodicals, containing data of everyday professional need and relied upon in the work of the occupation." These are simply letters responding to the queries of Del Rosario. MERALCO vs. SECRETARY OF LABOR G.R. No. 127598, February 22, 2000 Petitioner warns that if the wage increase of P2,200.00 per month as ordered by the Secretary is allowed, it would simply pass the cost covering such increase to the consumers through an increase in the rate of electricity. This is a non sequitur. The Court cannot be threatened with such a misleading argument. An increase in the prices of electric current needs the approval of the appropriate regulatory government agency and does not automatically result from a mere increase in the wages of petitioner's employees. Besides, this argument presupposes that petitioner is capable of meeting a wage increase. The All Asia Capital report upon which the Union relies to support its position regarding the wage issue cannot be an accurate basis and conclusive determinant of the rate of wage increase. Section 45 of Rule 130 Rules of Evidence provides: Commercial lists and the like. — Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein. Under the afore-quoted rule, statement of matters contained in a periodical, may be admitted only "if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein." As correctly held in our Decision dated January 27, 1999, the cited report is a mere newspaper account and not even a commercial list. At most, it is but an analysis or opinion which carries no persuasive weight for purposes of this case as no sufficient figures to support it were presented. Neither did anybody testify to its accuracy. It cannot be said that businessmen generally rely on news items such as this in their occupation. Besides, no evidence was presented that the publication was regularly prepared by a person in touch with the market and that it is generally regarded as trustworthy and reliable. Absent extrinsic proof of their accuracy, these reports are not admissible.6 In the same manner, newspapers containing stock quotations are not admissible in evidence when the source of the reports is available.7 With more reason, mere analyses or projections of such reports cannot be admitted. In particular, the source of the report in this case can be easily made available considering that the same is necessary for compliance with certain governmental requirements. Section 46. Learned treatises. - A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a matter stated
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law on evidence therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. (40a) Section 47. Testimony or deposition at a former proceeding. - The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. (41a) AUGUSTO R. SAMALIO vs. COURT OF APPEALS G. R. No. 140079, March 31, 2005 (EN BANC) For Section 47, Rule 130 to apply, the following requisites must be satisfied: (a) the witness is dead or unable to testify; (b) his testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; (c) the former case involved the same subject as that in the present case, although on different causes of action; (d) the issue testified to by the witness in the former trial is the same issue involved in the present case and (e) the adverse party had an opportunity to cross-examine the witness in the former case. SECTION 47 AND THE RIGHT TO CONFRONT WITNESSES DOROTEO TOLEDO, JR. vs. PEOPLE OF THE PHILIPPINES G.R. No. L-36603, September 30, 1978 The provision invoked by the private respondent reads: Section 1. Rights of the defendant at the Trial.-In all criminal prosecutions the defendant shall be entitled: (f) To be confronted at the trial by, and to cross-examine the witness against him, where the testimony of a witness for the prosecution has previously been taken down by question and answer in the presence of the defendant or his attorney, the defense having had an opportunity to cross-examine the witness, the testimony or deposition of the latter may be read, upon satisfactory proof to the court that lie is dead or incapacitated to testify, or can not with due diligence be found in the Philippines. (Subsec. (f), sec. 1, Rule 115, Rules of Court.) The controlling statute is Section 37, Rule 123 of the 1940 Rules of Court, now Section 41, Rule 130, viz. SEC. 41. Testimony at a former trial. - The testimony of a witness deceased or out of the Philippines, or unable to testify, given in a former case between the same parties, relating to the same matter, the adverse party having had an opportunity to cross- examine him, may be given in evidence. Concededly, the witnesses at the former trial were subpoenaed by the Juvenile & Domestic Relations Court a number of times. These witnesses did not appear to testify. But are their testimonies in the former trial within the coverage of the rule of admissibility set forth in Section 41, Rule 130? These witnesses are not dead. They are not outside of the Philippines. Can they be categorized as witnesses of the class unable to testify? The Court of Appeals, construing this term, held that subsequent failure or refusal to appear thereat [second trial] or hostility since testifying at the first trial does not amount to inability to testify, but such inability proceeding from a grave cause, almost amounting to death, as when the witness is old and has lost the power of speech. (Griffith vs. Sauls, 77 Tex 630, 14 S.W. 230, 231; section 37 of Rule 123, Rules of Court).
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law on evidence
Here, the witnesses in question were available. Only, they refused to testify. No other person that prevented them from testifying, is cited. Certainly, they do not come within the legal purview of those unable to testify. In other words, under Section 47 of Rule 130, the preconditions for the admission of testimony given by a witness out of court must be strictly complied with. Indeed, liberality in such respect is pregnant with undesirable possibilities affecting the veracity of the evidence involved. And there is more reason to adopt such a strict rule in case of the above-quoted Section 1 (f) of Rule 115, for apart from being a rule of evidence with additional specific requisites to those prescribed by Section 47, more importantly, said provision is an implementing translation of the constitutional right of an accused person "to meet the witnesses (against him) face to face. (Sec. 19, Bill of Rights, Article IV, Constitution of the Philippines of 1973) Actually, its first sentence accentuates the mandate that the accused shall be entitled "to be confronted at the trial by, and to cross-examine the witness against him." The second sentence only enumerates the instances when such confrontation may be deemed substantially complied with, should it be impossible to produce the witness at the trial, and applying the ruling in Tan, supra, none of those instances has materialized in the case of petitioner herein. SITUATION Before we leave hearsay, here is a situation: A was called to testify regarding a newspaper report that he read. Is it admissible or not? GENERAL RULE: it is NOT admissible because it is a double dead hearsay. Hearsay twice removed from its source. EXCEPTION: when the fact of publication itself is the very fact in issue in the case. For example, in the case of Libel. Gidautan ka sa newspaper, of course, that will be your main evidence and therefore, when you testify as what you read in the newspaper, then that is the very fact in issue itself and it is not considered as hearsay.
7. OPINION RULE SEC. 48. General rule. – The opinion of a witness is not admissible, except as indicated in the following sections. The provisions here are quite clear as to what these exceptions are. GENERAL RULE: The witness can only testify as to matters that are based on his personal knowledge or those derived from own perception of facts and events. He is not allowed to say anything anymore than that, as a general rule. So If a witness is asked, “What do you think happened?” that is actually a question falling from opinion and therefore, that cannot be allowed under section 48. Witnesses are not generally allowed to testify based on their opinions and conclusions but must take facts within their knowledge as it is the province of the courts, In fact, it is the “exclusive” province of the court to make deductions from purported facts based in evidence or to decide matters directly in issue. Generally speaking, the law of evidence in both civil and criminal cases confines the testimony of witnesses to statements of concrete facts within their own observation, knowledge, and recollection. Testimony must normally state facts perceived by the witnesses' use of their own senses, as distinguished from their opinions, inferences, impressions, and conclusions drawn from the facts. Opinion testimony that is based on facts is usually considered incompetent and inadmissible, if the fact finders are as well qualified as the witness to draw conclusions from the facts.
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law on evidence
As a general rule, a witness CANNOT state an opinion anymore even if he is asked. Whatever answer he says is simply speculative and based on opinion and therefore, is not factual in nature. And being non-factual in nature, it cannot be admit any admissibility. In any court of law, it is only proper for the court that has that prerogative exclusively to render an opinion. But of course, we have exceptions. First exception is under section 49. EXCEPTIONS: SEC. 49. Opinion of expert witness. – The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence. EXPERT WITNESS He is one who belongs to a profession or calling to which the subject matter of the inquiry partakes and who possesses the special knowledge on questions on which he proposes to express an opinion. So there is a matter that the court does not have competence to deal with, like matters on science or medicine. In ordinary crimes such as homicide and murder where the cause of death is according to legal report is poisoning. Remember that in criminal cases, you need to relate or directly connect the act of the accused to the effect of his acts. A person died because of the act of the accused, i.e. poisoning. But what if there are other causes of death? It can either at least mitigate the penalty or change the nature of the offense. Remember there are 2 agents that can cause the death, it can change the nature of the offense. Here, the court cannot just speculate. “I think it was the poisoning and not the shooting is the cause of death”. The court cannot just say that! The use of expert witnesses is something that is really common. In a lot cases, it requires expert witnesses. For example: 1. Expert Testimony required to determine the cause of death of the victim – that is by means of a medico-legal examiner who is a physician. He is an expert in the field of forensics. 2. Declaration of nullity of marriage (article 36 of Family code) – we need the opinion of a clinical psychiatrist or clinical psychologist Expert witnesses are persons who possess the special knowledge, skill, experience, training regarding the fact in issue of the case. He is a witness who by virtue of education, training, skill or experience is believed to have knowledge on a particular subject beyond that of the average person sufficient that others may officially and legally rely upon the witnesses’ testimony, fact and opinion on any evidence regarding the fact in issue within the scope of their expertise. This is referred to as ‘expert opinion’ as an assistance to a fact finder. Expert witnesses may deliver expert evidence among facts within the domain of their expertise. Let’s try to confuse ourselves a little bit.
EXPERT WITNESS and LEARNED TREATISE
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law on evidence What will prevail, the testimony of expert witness or a learned treatise? Remember diba, a learned treatise is admissible even if you do not present the author of the learned treatise. If there is a conflict between a learned treatise and opinion of expert witness, what is given greater weight? Answer: There is no hard and fast answer there. The possible deviation from a learned treatise or let’s say acceptable medical standards may be brought on by the peculiar circumstances of the case. murag balaod ba. Naay balaod na dili applicable sa tanan cases or situations. Therefore, we look at general principles. BUT if the expert opinion is TOTALLY CONTRARY to the learned treatise, my submission is a witness who does so, will do so by at the same time, knowing the treatise. These are the general principles, learned treatise,etc. you might as well make your own treatise. FACTUAL WITNESS and EXPERT WITNESS If an expert witness testifies as to those specialized matters, what do you call such witness who simply testifies as to matters of fact? We call that a FACTUAL WITNESS as distinguished from an expert. A factual witness is one who knows about specific incidents or crime that was committed, who knows a particular aspect of how things work in a particular incident. For example, in a car accident, the factual incident is the one who says the car bumped the pedestrian. The expert witness is one who can tell you how fast the car was going, the damage incurred by one vehicle to the other, etc. an ordinary factual witness will not be able to tell you that. He will only tell you as to what he saw or heard. What if ang question sa factual witness kay, “at what speed was the car travelling at that time”? Will he be competent to answer? Of course NO. he was not the driver. He did not see. Unless he was holding a speedometer, then he would not know. What if he says, “Around 55km/hr”? It is already stating an opinion and no longer a matter of fact. So a factual witness is incompetent to testify on such matters. That falls within the expert witness’ expertise. Can a factual witness offer opinion? NO. As a general rule, he can only state observation of fact, the expert is given facts of the case and he offers an opinion based on his training and experience. So a factual nature of an accident can testify as to what he saw but not at whose fault was the accident but the expert witness can give an opinion as to that. USE OF COUNTER-EXPERT TESTIMONY Situation: This is the object of expert testimony: That at the time of the incident, the driver was drunk. Do you need an expert witness or not? Answer: To my mind that is already something of common knowledge. Kung ang tao kay after the incident, hubog jud kaayo, nagsuray2x ug lakaw, that is one that can come wihtin the general knowledge of the person. If your opponent proposes the production of an expert testimony regarding a fact in issue, can you also present your own expert witness? YES. Are both testimonies admissible? YES because expert testimonies from whatever source are admissible. It will now depend as to which expert testimony is believed by the court.
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law on evidence Example: REYES V. SISTERS OF MERCY. It is a torts case on the doctrine of ‘res ipsa loquitor”. The other testifies na naay sala ang hospital. The other testifies na walay sala. Kinsay gituhuan karon sa judge? REYES V. SISTERS OF MERCY [G.R. No. 130547. October 3, 2000] There is a case when expert testimony may be dispensed with, and that is under the doctrine of res ipsa loquitur. As held in Ramos v. Court of Appeals: Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitor is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts.Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitor is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him. Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while a patient’s jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient was under the influence ofanesthetic, during or following an operation for appendicitis, among others.[17] Petitioners asserted in the Court of Appeals that the doctrine of res ipsa loquitur applies to the present case because Jorge Reyes was merely experiencing fever and chills for five days and was fully conscious, coherent, and ambulant when he went to the hospital. Yet, he died after only ten hours from the time of his admission.
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law on evidence This contention was rejected by the appellate court. Petitioners now contend that all requisites for the application of res ipsa loquitur were present, namely: (1) the accident was of a kind which does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the injury was under the exclusive control of the person in charge; and (3) the injury suffered must not have been due to any voluntary action or contribution of the person injured.[18] The contention is without merit. We agree with the ruling of the Court of Appeals. In the Ramos case, the question was whether a surgeon, an anesthesiologist, and a hospital should be made liable for the comatose condition of a patient scheduled for cholecystectomy.[19] In that case, the patient was given anesthesia prior to her operation. Noting that the patient was neurologically sound at the time of her operation, the Court applied the doctrine of res ipsa loquitur as mental brain damage does not normally occur in a gallblader operation in the absence of negligence of the anesthesiologist. Taking judicial notice that anesthesia procedures had become so common that even an ordinary person could tell if it was administered properly, we allowed the testimony of a witness who was not an expert. In this case, while it is true that the patient died just a few hours after professional medical assistance was rendered, there is really nothing unusual or extraordinary about his death. Prior to his admission, the patient already had recurring fevers and chills for five days unrelieved by the analgesic, antipyretic, and antibiotics given him by his wife. This shows that he had been suffering from a serious illness and professional medical help came too late for him. Respondents alleged failure to observe due care was not immediately apparent to a layman so as to justify application of res ipsa loquitur.The question required expert opinion on the alleged breach by respondents of the standard of care required by the circumstances. Furthermore, on the issue of the correctness of her diagnosis, no presumption of negligence can be applied to Dr. Marlyn Rico. As held in Ramos: . . . . Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case.It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or a surgeon which involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result THE “GIBSON’S LAW”
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law on evidence This rule is related to the US rule called “GIBSONS LAW”. In public relations, and in the practice of law, Gibson's law holds that "For every PhD there is an equal and opposite PhD."[2] The term specifically refers to the conflict between testimony of expert witnesses called by opposing parties in a trial under an adversarial system of justice.[3] It is also applied to conflicting scientific opinion injected into policy decisions by interested parties creating a controversy to promote their interests. [1]
An expert testimony can be rebutted by contrary expert testimony. Example: there has been a long line case of class suits against tobacco companies. They say cigarettes are addictive or that it causes cancer. The tobacco companies will also present their own experts to rebut that. in davao city, we also have that case with regard to the pesticides used by banana companies. There was an allegation that communities near that area get sick daw because of the pernicious effects of pesticides. Both parties have presented their own experts. So that is a clear application of the Gibson’s law. EFFECT OF OFFERING EXPERT TESTIMONY PUNZALAN V. COMELEC [G.R. No. 126669. April 27, 1998] Expert opinions are not ordinarily conclusive in the sense that they must be accepted as true on the subject of their testimony, but are generally regarded as purely advisory in character; the courts may place whatever weight they choose upon such testimony and may reject it, if they find that it is consistent with the facts in the case or otherwise unreasonable QUALIFYING OF WITNESS SITUATION: now here comes the claim of the plaintiff who wants to present a scientist as an expert witness so that he will be able to testify on matters on expert opnion. Automatic ba na? Once he offers that person to give expert testimony, can that person testify agad as an expert witness? It depends. If that party stipulates that that party is credible expert, then he may proceed to testify and state his opinions. But what if the other party objects? Will that testimony be allowed or not? It will still be allowed but there is a qualifying process that will be followed by the court. For lack of other term, it is called QUALIFYING OF A WITNESS. How? State his educational background, expertise, etc. he must testify first as to his qualifications, training, education and expertise. If the other party is already satisfied that he is a qualified expert witness, then proceed na xa sa iyang testimony. But ordinarily, even if he is not satisfied, the court will already now allow the testimony to proceed as an expert testimony because even if he had doubts in his mind, it can always be rebutted. So the GENERAL RULE is that for as long as there is that basic qualifications of the witness, the court will allow the testimony subject to the rebuttal by the other party.
DETERMINING AN EXPERT; FACTORS
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law on evidence Is there any standard? G.R. No. 123137 October 17, 2001 PEOPLE OF THE PHILIPPINES vs. PO2 ALBERT ABRIOL, An expert witness is "one who belongs to the profession or calling to which the subject matter of the inquiry relates and who possesses special knowledge on questions on which he proposes to express an opinion."38 There is no definite standard of determining the degree of skill or knowledge that a witness must possess in order to testify as an expert. It is sufficient that the following factors be present: (1) training and education; (2) particular, first-hand familiarity with the facts of the case; and (3) Presentation of authorities or standards upon which his opinion is based. 39 The question of whether a witness is properly qualified to give an expert opinion on ballistics rests with the discretion of the trial court. An expert is one possessing in regard to a particular object or department of human activity, knowledge not usually acquired by other persons (U.S. vs. Gil, 13 Phil. 530). Scientific study and training are not always essential to the competency of a witness as an expert. Knowledge acquired by moving (?) is no less valuable than that acquired by study. A witness may be competent to testify as an expert although his knowledge was acquired through the medium of practical experience rather than scientific study and research. Generally speaking, any person who by study or experience has acquired particular knowledge or experience may be allowed to give in evidence his opinion upon matters of technical knowledge relating to such business or employment (Dilag & Co. Inc. vs. Merced, et al., (CA) 45 O.G. 5536). (Brief, pp. 9-11.) In giving credence to Caser's expert testimony, the trial court explained: The defense downgraded the capability of Caser in forensics ballistics and identifying firearms. Much stress is given to the absence of photographs of his examination. Nonetheless, the Court is satisfied (with) Caser's examination, findings and conclusions with the use of a microscope. Caser's conclusion based on his examination deserves credit. He found the impressions on the primer of the fired cartridges that were test-fired to have the same characteristics with those recovered at the scene of the crime. Whenever a triggerman pumps a bullet (into) the body of his victim, he releases a chunk of concrete evidence that binds him inseparably to his act. Every gun barrel deeply imprints on every bullet its characteristic marking peculiar to that gun and that gun alone. These marking might be microscopic but they are terribly vocal in announcing their origin. And they are as infallible for purposes of identification, as the print left by the human finger.41 We agree with the trial court that P/Inspector Caser qualifies as a ballistics expert. He is a licensed criminologist, trained at the Ballistics Command and Laboratory Center in Fort Bonifacio, in the PNP Crime Laboratory in Camp Crame, and in the National Bureau of Investigation. He had previously testified as an expert witness in at least twenty-seven (27) murder and homicide cases all over the country. 42 An expert witness need not present comparative microphotographs of test bullets and cartridges to support his findings.43 Examination under a comparison microscope showing that the test bullet and the evidence bullet both came from the same gun is sufficient. 44 Moreover, the ballistician
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law on evidence conclusively found similar characteristic markings in the evidence, test cartridges and slugs. ATTY. ESPEJO: To my mind, training OR education should be what SC had said because there are those who have been experts in the field but do not have education. By mere experience and rote of repetition, a person can become an expert. Under the Federal rules of Procedure: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data (c) The testimony is the product of reliable principles and methods; ;--For example, DNA testing. DNA is found in the scene of the crime and DNA taken from the accused. what method will we take? The testimony must be a product of reliable principles and methods. and (d) The expert has reliably applied the principles and methods to the facts of the case. In Philippine law, walay strict requisites. It will depend on the context of the testimony visà-vis the facts of the case. that’s the case of Abriol. So mas broad ang atong standards regarding expert witnesses. NOW….If a witness testifies as to the result of a polygraph test, is that an admissible test? The better question is that, “ARE THE RESULTS OF A POLYGRAPH TEST ADMISSIBLE IN EVIDENCE?” In most recent cases I have seen… USE OF POLYGRAPH TEST G.R. No. 116196 June 23, 1999 PEOPLE OF THE PHILIPPINES vs. PABLO ADOVISO, On the premise that the trial court rendered the judgment of conviction on the basis of "mere conjectures and speculations," 29 appellant argues that the negative result of the polygraph test should be given weight to tilt the scales of justice in his favor. A polygraph is an electromechanical instrument that simultaneously measures and records certain physiological changes in the human body that are believed to be involuntarily caused by an examinee's conscious attempt to deceive the questioner. 30 The theory behind a polygraph or lie detector test is that a person who lie deliberately will have rising blood pressure and a subconscious block in breathing, which will be recorded on the graph. 31However, American courts almost uniformly reject the results of polygraphs tests when offered in evidence for the purposes of establishing the guilt or innocence of one accused of a crime, whether the accused or the prosecution seeks its introduction, for the reason that polygraph has not as yet attained scientific acceptance as a reliable and ascertaining truth or deception. 32 The rule is no different in this jurisdiction. Thus, in People v. Daniel, 33 stating that much faith and credit should not be vested upon a lie detector test as it is not conclusive. Appellant, in this case, has not advanced any reason why this rule should not apply to him. ATTY ESPEJO: this is especially true in our country where our polygraph tests are outdated. in the United States, they have come or developed with a full-proof 99.9% accuracy of polygraph
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law on evidence tests. This not only measures the usual stuff, but it also measures the perspiration, temperature of the skin, body movement are filmed and analyzed, detection of unusual movements in answering questions, etc. So I am not losing hope that someday the Philippines can have the same scientific reliability in solving crimes. I like to know if I can pass a polygraph test am I good liar already? Here’s an interesting case… PUNZALAN V. COMEC April 27, 1998 This was before the recent manner of using PCOS machine. ISSUE: WON it is necessary to have a handwriting expert to determine cheating in the ballots HELD: Handwriting experts, while probably useful, are not indispensable in examining or comparing handwriting; this can be done by the COMELEC itself. We have ruled that evidence aliunde is not allowed to prove that a ballot is marked, an inspection of the ballot itself being sufficient. In the case at bar, the opinion of Atty. Pagui, who was claimed to be a handwriting expert, was not binding upon the COMELEC especially so where the question involved the mere similarity or dissimilarity of handwritings which could be determined by a comparison of existing signatures or handwriting. 23 Section 22 of Rule 132 of the Revised Rules on Evidence explicitly authorizes the court, by itself, to make a comparison of the disputed handwriting "with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge." Remember before that a voter is given multiple ballots or are given feed ballots (close na ang precinct, then dungangan ang ballot boxes. So pag-ihap, daghan na kaayo. It happens, that is made by the same person. Ingana ang daya sa election. So that is the issue that confronted the SC. According to them, there is no need for handwriting experts). CAN AN ORDINARY WITNESS RENDER OPINION BASED ON A FACTUAL ISSUE? Yes, under section 50. SEC. 50. Opinion of ordinary witnesses. – The opinion of a witness for which proper basis is given, may be received in evidence regarding– (a) the identity of a person about whom he has adequate knowledge; (b) A handwriting with which he has sufficient familiarity; and (c) The mental sanity of a person with whom he is sufficiently acquainted. The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person. THE IDENTITY OF A PERSON ABOUT WHOM HE HAS ADEQUATE KNOWLEDGE; IDENTIFICATION OF VOICE EXAMPLE: You testified that the person who kidnapped the child is your neighbor, Ramon. Why do yo do that? Because his voice is familiar, we grew up together. When I heard his voice in the other line, I am sure that it is him! Can you testify? YES according to Section 50.
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law on evidence G.R. No. 141259 July 18, 2003 THE PEOPLE OF THE PHILIPPINES vs. LAMBERTINO PRIETO, The evidence on record shows that the appellant was the nephew of the victim. He frequented his uncle's house for drinking sprees, and on the said occasions, Dulcesima saw and talked with the appellant. The appellant and the couple had been neighbors for years before the stabbing. On July 2, 1995, Dulcesima talked with the appellant when they were working in their respective farms. The widow of the victim gained familiarity with the physical built, face and voice of the appellant. Once a person has gained familiarity with another, identification becomes quite an easy task even from a considerable distance.29 This Court has ruled that identification by the sound of the voice of a person identified, is a sufficient and acceptable means of identification where it is established that the witness and the accused had known each other personally and closely for a number of years.
A HANDWRITING WITH WHICH HE HAS SUFFICIENT FAMILIARITY Pwede gihapon! If you have been familiar with the handwriting of a peosrn because you have been together for a long time. Pwede gihapon. You can readily identify. A.M. No. CA-02-14-P July 31, 2002 LEONOR MARIANO, vs. SUSAN ROXAS, CLERK III, COURT OF APPEALS, Based on the evidence on record, we hold that respondent is administratively liable. As correctly found by the CA, respondent has still an unpaid balance of P12,110.00. The receipts she presented to prove that she overpaid complainant P6,425.00 were forged. As found by the CA, there are marked differences between the signatures in the receipts and complainant’s specimen signature which are easily discernible by the naked eye. That the receipts are not genuine was confirmed by Lorna Caraga. 12 She testified that she is familiar with the signature of complainant who was her officemate for a period of 5 years in the Regional Trial Court (RTC), Branch 130, Caloocan City. In many occasions, complainant signed documents in her presence. Her opinion as to complainant’s genuine signature is admissible in evidence pursuant to Section 50, Rule 130 of the Revised Rules on Evidence which provides: "Sec. 50. Opinion of ordinary witnesses. – The opinion of a witness for which proper basis is given, may be received in evidence regarding – xxx (b) A handwriting with which he has sufficient familiarity; and x x x" (Emphasis ours) Corollarily, Section 22, Rule 132 of the same Rules provides that: "Sec. 22. How genuineness of handwriting proved. – The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, andhas thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge." (Emphasis ours)
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law on evidence Respondent’s act of forging those receipts to avoid her contractual obligation affects not only her integrity as a public servant but more importantly, the integrity of the Judiciary where she is connected. As a court employee, respondent should bear in mind that the court is regarded by the public with respect. For this reason, the conduct of every court personnel should be circumscribed with the heavy burden of responsibility and must at all times be characterized by, among other things, uprightness, propriety and decorum. Respondent failed to meet this exacting standard. Her actuation, although arising from a private transaction, has tarnished the image of her public office. G.R. No. 170583September 12, 2007 ERNESTO M. FULLERO vs.PEOPLE OF THE PHILIPPINES, Well-entrenched is the rule that resort to handwriting experts is not mandatory. Handwriting experts, while probably useful, are not indispensable in examining or comparing handwritings or signatures.64 This is so since under Section 22, Rule 132 of the Revised Rules on Evidence, the handwriting of a person may be proved by any witness who believes it to be the handwriting of such person, because he has seen the person write; or has seen writing purporting to be his upon which the witness has acted or has been charged, and has thus acquired knowledge of the handwriting of such person. Moreover, the opinion of a non-expert witness, for which proper basis is given, may be received in evidence regarding the handwriting or signature of a person with which he has sufficient familiarity.65 The Legazpi City RTC was, therefore, not obliged to put a handwriting expert on the witness stand and direct the latter to examine petitioner’s signatures in the foregoing exhibits before ruling on their admissibility. It can, as it did, rely on the testimonies of the prosecution witnesses who are familiar with petitioner’s handwriting/signature in determining the admissibility of the aforesaid exhibits. It can, by itself, also compare petitioner’s signature in the PDS with the petitioner’s signatures in the subject exhibits with or without the aid of an expert witness and thereafter rule on the admissibility of such exhibits based on its own observation. In short, it can exercise independent judgment as regards the admissibility of said exhibits. THE MENTAL SANITY OF A PERSON WITH WHOM HE IS SUFFICIENTLY ACQUAINTED A person, not an expert, who testifies as to the mental sanity of a person is actually stating an opinion. However, in order to be admissible, the witness must be sufficiently acquainted with the person and his mental sanity. To be considered as sufficiently acquainted, the proponent must establish the degree of familiarity to the person whose sanity is testified about. This is useful in Probate cases. OTHERS You may also testify as to the EMOTION, CONDITION, BEHAVIOR as well as in the APPEARANCE. Emotion-- Was the plaintiff or private complainant, sad? Happy? Hungry? Behavior—was he jittery? Condition—was he calm? Appearance—is he ugly? SUMMARY GENERAL RULE: The opinion of a witness is NOT ADMISSIBLE. EXCEPTIONS: 1. Expert witness on matters requiring special knowledge, skills, experience or training which he possesses that is which he is an expert thereon 2. Regarding the identity or the handwriting of a person when he has knowledge of the person or his handwriting whether he is an ordinary or expert witness. That is from jurisprudence. If you are familiar to the handwriting of the person, then you can testify even if you are not an expert witness. But if NO ONE is familiar to the handwriting in consideration, then there has to be an expert witness! Both are stating a matter of opinion but both testimonies are admissible
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law on evidence 3. Regarding the mental sanity of a person where the witness is sufficiently acquainted to the person or if the person who testifies on the mental sanity is a an expert witness 4. On the emotion, behavior, condition or appearance of a person which the witness has observed; There is no precise requirement as to the mode in which skill or experience shall have been acquired. Scientific study and training are not always essential to the competency of a witness as an expert. Knowledge acquired by doing is no less valuable than that acquired by study. (Dilag Co. vs. Merced, 1949) Polygraph test has not as yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception. (People vs. Adoviso, 1999) Expert opinions are not ordinarily conclusive in the sense that they must be accepted as true on the subject of their testimony, but are generally regarded as purely advisory; the courts may place whatever weight they choose upon such testimony and may reject it, if they find that it is inconsistent with the facts in the case or otherwise unreasonable.(Punzalan v. Commission on Elections, et al., G.R. No. 126669) Testimony of handwriting expert not indispensable to COMELEC. Handwriting experts, while probably useful, are not indispensable in examining or comparing handwriting; this can be done by the COMELEC itself. It was ruled by the Supreme Court that evidence aliunde is not allowed to prove that a ballot is marked, an inspection of the ballot itself being sufficient. ((Punzalan v. Commission on Elections, et al., G.R. No. 126669) 5. 6. 7. 8.
On Ordinary matters known to all men of common perception (e.g. smelling shit! ) To determine WON the person is intoxicated Matters that are of unquestionable demonstration and Matters which fall within the realm of judicial notice (e.g. Laws of nature)
8. CHARACTER EVIDENCE SEC. 51. Character evidence not generally admissible; exceptions: (a) In Criminal Cases: 1. The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. 2. Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged. 3. The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. (b) In Civil Cases: Evidence of the moral character of a party in a civil case is admissible only when pertinent to the issue of character involved in the case. (c) In the case provided for in Rule 132, Section 14. (this is for the purpose of contradicting the testimony of the witnesses) REASON WHY NOT ADMISSIBLE IN COURT Character is purely circumstantial. It is also legally irrelevant in determining the controversy so that evidence relating ot character is not admissible.
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law on evidence Example: A is charged with murder. A will now present testimony of certain witnesses who knew him for a long time and will testify as to how good he is, etc. that is character evidence. Is it relevant as to the issue of WON he killed or committed the crime or offense? If a testimony is irrelevant, then it is purely a circumstantial evidence. It does not directly prove the fact in issue in the case. G.R. No. 139070 May 29, 2002 PEOPLE OF THE PHILIPPINES, vs.NOEL LEE Character is defined to be the possession by a person of certain qualities of mind and morals, distinguishing him from others. It is the opinion generally entertained of a person derived from the common report of the people who are acquainted with him; his reputation.32 "Good moral character" includes all the elements essential to make up such a character; among these are common honesty and veracity, especially in all professional intercourse; a character that measures up as good among people of the community in which the person lives, or that is up to the standard of the average citizen; that status which attaches to a man of good behavior and upright conduct. 33 The rule is that the character or reputation of a party is regarded as legally irrelevant in determining a controversy, so that evidence relating thereto is not admissible. Ordinarily, if the issues in the case were allowed to be influenced by evidence of the character or reputation of the parties, the trial would be apt to have the aspects of a popularity contest rather than a factual inquiry into the merits of the case. After all, the business of the court is to try the case, and not the man; and a very bad man may have a righteous cause.34 There are exceptions to this rule however and Section 51, Rule 130 gives the exceptions in both criminal and civil cases. In criminal cases, sub-paragraph 1 of Section 51 of Rule 130 provides that the accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. When the accused presents proof of his good moral character, this strengthens the presumption of innocence, and where good character and reputation are established, an inference arises that the accused did not commit the crime charged. This view proceeds from the theory that a person of good character and high reputation is not likely to have committed the act charged against him. 35 Sub-paragraph 2 provides that the prosecution may not prove the bad moral character of the accused except only in rebuttal and when such evidence is pertinent to the moral trait involved in the offense charged. This is intended to avoid unfair prejudice to the accused who might otherwise be convicted not because he is guilty but because he is a person of bad character. 36 The offering of character evidence on his behalf is a privilege of the defendant, and the prosecution cannot comment on the failure of the defendant to produce such evidence.37 Once the defendant raises the issue of his good character, the prosecution may, in rebuttal, offer evidence of the defendant’s bad character. Otherwise, a defendant, secure from refutation, would have a license to unscrupulously impose a false character upon the tribunal.38 COMMON THEME BETWEEN SUBPAR 1 &2 OF SECTION 51: Both sub-paragraphs (1) and (2) of Section 51 of Rule 130 refer to character evidence of the accused.39 And this evidence must be "pertinent to the moral trait involved in the offense charged," meaning, that the character evidence must be relevant and germane to the kind of the act charged,40 e.g., on a charge of rape, character for chastity; on a charge of assault, character for peacefulness or violence; on a charge for embezzlement, character for honesty and integrity.41 Sub-paragraph (3) of Section 51 of the said Rule refers to the character of the offended party.42 Character evidence, whether good or bad, of the offended party may be proved "if it tends to establish in any reasonable degree the probability or improbability of the offense charged." Such evidence is most commonly offered to support a claim of self-defense in an assault or homicide case or a claim of consent in a rape case.43
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law on evidence In the Philippine setting, proof of the moral character of the offended party is applied with frequency in sex offenses and homicide. 44 In rape and acts of lasciviousness or in any prosecution involving an unchaste act perpetrated by a man against a woman where the willingness of a woman is material, the woman’s character as to her chastity is admissible to show whether or not she consented to the man’s act.45 The exception to this is when the woman’s consent is immaterial such as in statutory rape46 or rape with violence or intimidation.47 In the crimes of qualified seduction48 or consented abduction,49 the offended party must be a "virgin," which is "presumed if she is unmarried and of good reputation," 50 or a "virtuous woman of good reputation."51 The crime of simple seduction involves "the seduction of a woman who is single or a widow of good reputation, over twelve but under eighteen years of age x x x." 52 The burden of proof that the complainant is a woman of good reputation lies in the prosecution, and the accused may introduce evidence that the complainant is a woman of bad reputation.53 SEXUAL ABUSE SHIELD RULE This is an EXCEPTION to the rule on proving good moral character in cases of rape and other similar offenses. Rules on Examination of Child Witnesses Sec. 30. Sexual abuse shield rule.— (a) Inadmissible evidence.— The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse: 1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and (2) Evidence offered to prove the sexual predisposition of the alleged victim. (b) Exception.— Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible. In homicide cases, a pertinent character trait of the victim is admissible in two situations: (1) as evidence of the deceased’s aggression; and (2) as evidence of the state of mind of the accused.54 The pugnacious, quarrelsome or trouble-seeking character of the deceased or his calmness, gentleness and peaceful nature, as the case may be, is relevant in determining whether the deceased or the accused was the aggressor. 55 When the evidence tends to prove self-defense, the known violent character of the deceased is also admissible to show that it produced a reasonable belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was necessary.56 In the instant case, proof of the bad moral character of the victim is irrelevant to determine the probability or improbability of his killing. Accused-appellant has not alleged that the victim was the aggressor or that the killing was made in self-defense. There is no connection between the deceased’s drug addiction and thievery with his violent death in the hands of accused-appellant. In light of the positive eyewitness testimony, the claim that because of the victim’s bad character he could have been killed by any one of those from whom he had stolen, is pure and simple speculation. Moreover, proof of the victim’s bad moral character is not necessary in cases of murder committed with treachery and premeditation. In People v. Soliman,57 a murder case, the defense tried to prove the violent, quarrelsome or provocative character of the deceased. Upon objection of the prosecution, the trial court disallowed the same. The Supreme Court held: "x x x While good or bad moral character may be availed of as an aid to determine the probability or improbability of the commission of an offense (Section 15, Rule 123),58 such is not necessary in the crime of murder where the killing is committed through treachery or premeditation. The proof of such character may only be allowed in homicide cases to show "that it
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law on evidence has produced a reasonable belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was necessary.This rule does not apply to cases of murder."59 In the case at bar, accused-appellant is charged with murder committed through treachery and evident premeditation. The evidence shows that there was treachery. Joseph was sitting in his living room watching television when accused-appellant peeped through the window and, without any warning, shot him twice in the head. There was no opportunity at all for the victim to defend himself or retaliate against his attacker. The suddenness and unexpectedness of the attack ensured his death without risk to the assailant. CASES PEOPLE V. SAZON SEPTEMBER 18, 1990 Parenthetically, it is true that the bad moral character of the offended party may be proven in evidence to establish in any reasonable degree the probability of the offense charged, 19 e.g., the quarrelsome nature of the victim may tend to establish that he started the unlawful aggression. Nonetheless, such evidence, seeking to establish as it does only a probability, cannot prevail over facts sufficiently proven by the prosecution during the trial belying such aggression. These observations find application in the instant case where the defense presented and now argue on character evidence consisting of criminal charges involving minor offenses which had been filed against the deceased, but not one of which resulted in conviction and were in fact dismissed except for one case which was sent to the archives. 20 Obviously, whether or not appellant acted in self-defense is essentially a question of fact. Being so and in the absence of any showing that the Court a quo failed to appreciate facts or circumstances of weight and substance that would have altered its conclusion, the court below, having seen and heard the witnesses during the trial, is in a better position to evaluate their testimonies. No compelling reason, therefore, lies for this Court to disturb the trial court's finding that appellant did not act in self-defense. 21 PEOPLE V. ADONIS The defense also presented evidence to prove the bad moral character and quarrelsome disposition of the deceased. Barangay Captain Uldarico Gobangco testified that "whenever the victim got drunk, he would challenge anybody to a fight and that he was also [known] to steal a carabao." 14 The Barangay Captain also stated that, per the notebook where the customarily recorded all incidents occurring in their barangay, a complaint for theft had been lodged against the deceased Basas. The trial court, however, noted that the statements of the Barangay Captain Gobangco that the deceased had habitually challenged other people to a fight whenever he was drunk found no support in his own notebook. The testimony of the Barangay Captain was given neither credence nor weight by the trial court. While the accused may prove the bad moral character of the victim, the proof must be of his general reputation in the community and not merely of isolated and specific acts. 15 Thus, the mere allegation that a complaint for theft had been filed against the victim cannot establish his general reputation. Besides, there was no showing that Basas was ever convicted of that charge, assuming it had ever been filed. CASES WHERE CHARACTER EVIDENCE USED IN ADMINISTRATIVE CASE CSC V. BELAGAN OCTOBER 19, 2002
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law on evidence When the credibility of a witness is sought to be impeached by proof of his reputation, it is necessary that the reputation shown should be that which existed before the occurrence of the circumstances out of which the litigation arose, [1] or at the time of the trial and prior thereto, but not at a period remote from the commencement of the suit. [2] This is because a person of derogatory character or reputation can still change or reform himself. Here, the Court of Appeals and the CSC are poles apart in their appreciation of Magdalena’s derogatory record. While the former considered it of “vital and paramount importance” in determining the truth of her charge, the latter dismissed it as of “minor significance.” This contrariety propels us to the elusive area of character and reputation evidence. Generally, the character of a party is regarded as legally irrelevant in determining a controversy.[15] One statutory exception is that relied upon by respondent, i.e., Section 51 (a) 3, Rule 130 of the Revised Rules on Evidence, which we quote here: “SEC. 51. Character evidence not generally admissible; exceptions. – (a) In Criminal Cases: (4) The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged.” It will be readily observed that the above provision pertains only to criminal cases, not to administrative offenses. And even assuming that this technical rule of evidence can be applied here, still, we cannot sustain respondent’s posture. Not every good or bad moral character of the offended party may be proved under this provision. Only those which would establish the probability or improbability of the offense charged. This means that the character evidence must be limited to the traits and characteristics involved in the type of offense charged. [16] Thus, on a charge of rape character for chastity, on a charge of assault - character for peaceableness or violence, and on a charge of embezzlement - character for honesty. [17] In one rape case, where it was established that the alleged victim was morally loose and apparently uncaring about her chastity, we found the conviction of the accused doubtful. [18] In the present administrative case for sexual harassment, respondent did not offer evidence that has a bearing on Magdalena’s chastity. What he presented are charges for grave oral defamation, grave threats, unjust vexation, physical injuries, malicious mischief, etc. filed against her. Certainly, these pieces of evidence are inadmissible under the above provision because they do not establish the probability or improbability of the offense charged. CIVIL CASES WHERE PROOF OF MORAL CHARACTER IS ADMISSIBLE 1. Declaration of nullity of marriage tdue to psychological incapacity –when the party is alleged to be psychologically incapacitated to comply with the essential marital obligations of marriage, there are times when the evidence of his character must be adduced. 2. Custody cases 3. Case provided in rule 132, section 14: SEC. 14. Evidence of good character of witness. — Evidence of the good character of a witness is not admissible until such character has been impeached
Rule 131 Burden of Proof and Presumptions
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law on evidence
SECTION 1. Burden of proof. — Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. (1a, 2a) INTRODUCTION Evidence is the means sanctioned by the rules in ascertaining in a judicial proceeding the turht respecting a matter of fact. But beyond definition, we remember that evidence is also the tool or the commodity by which we discharge the burden of proof. Thus, to discharge the burden of proof is the end sought to be achieved by the presentation of evidence. Burden of proof simply the obligation of party to persuade the court that he is entitled to relief. The burden of proof (Latin: onus probandi) is the obligation to shift the accepted conclusion away from an oppositional opinion to one's own position. The burden of proof is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, the best translation of which seems to be: "the necessity of proof always lies with the person who lays charges." He who does not carry the burden of proof carries the benefit of assumption, meaning he needs no evidence to support his claim. Fulfilling the burden of proof effectively captures the benefit of assumption, passing the burden of proof off to another party. BURDEN OF PROOF (RISK OF NON-PERSUASION) It is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount required by law. In CRIMINAL CASES: The burden of proof is on the prosecution, because under Rule 133 the accused is entitled to acquittal unless his guilt is demonstrated by proof beyond reasonable doubt. In criminal cases, burden of proof is set to be pinned constitutionally due to the constitutional mandate that the accused is presumed innocent until the contrary is proven. The obligation to convince the trier of facts to show the guilt of the accused beyond reasonable doubt is upon the prosecution to prove throughout the trial. But there are instances where the INITIAL BURDEN OF PROOF rests upon the defense. That is when the accused invokes the justifying circumstance of SELF-DEFENSE. Who has the burden of proof in civil cases? In CIVIL CASES: The usual principle is that whoever makes an affirmative allegation has the burden of proof. The party who alleges a fact has the burden of proving it. EXAMPLE: in eminent domain cases, the local government that seeks to expropriate private land has the burden of proof to show existence of the compliance of the elements for the valid exercise of the right of eminent domain. In an action for damages against a party charged with negligence, can you say that such party has the duty of proving that he was not negligent? NO. The rule is WHOEVER ALLEGGES AFFIRMATIVE ALLEGATION is possessed with the burden of proof. So you who says that the person is negligent has the burden of proof. Basic RULES:
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law on evidence 1. He who alleges must prove what he has alleged 2. In civil cases, the burden of proof does not solely rest on the shoulder of any given plaintiff. The burden of proof, under the clear terms of section 1 of rule 131 is the duty to present evidence not only to establish a claim but also a defense. EXAMPLE: In a case where a plaintiff files a case for collection of sum of money against a person. Then he has the burden of proving that there is really such a debt. Conversely, if the defendant admits the debt but the defense he claims is that he already paid the debt to the creditor then he has such burden of proof that such payment had already extinguished his obligation. He whoever alleges must prove it by the amount of evidence required by law. INFRINGEMENT CASES: The burden of proof to substantiate a charge of infringement is with the plaintiff. But where he plaintiff introduces the patent in evidence, and the same is in due form, there is created a prima facie presumption of its correctness and validity. The decision of the Commissioner of Patent (now the Director of the Intellectual Property Office), in granting the patent is presumed to be correct. TEST TO DETERMINE WHO HAS THE BURDEN OF PROVING IN A CASE We simply have to ask which party to the action or suit who is most likely to fail if no evidence is presented. The party who has the burden of proof is the party who stands to lose in the case if no evidence is presented by the parties to the case. Case #1: if it’s the plaintiff who files the case then he has the burden of proving his allegation against the defendant. Case #2: Complaint is filed. Answer is filed but he alleges affirmative defenses (one of confession and avoidance) WHERE DO YOU PROCEED TO DETERMINE THE BURDEN OF PROOF In the PLEADINGS-- The claim of the plaintiff which he must prove is spelled out in his COMPLAINT and then the defendant’s defenses is also found in his ANSWER to the complaint. BURDEN OF PROOF NEVER SHIFTS Burden of proof of both parties never shifts. Initially, it will be upon the person who alleges. You prove your allegation. If h is not able to prove the allegation, the case will be dismissed and is susceptible to the remedy of Demurrer of Evidence. The defendant also, if the plaintiff is able to prove his allegation initially, the defendant will now proceed upon his own burden of proof. He has to present evidence to rebut. If the initial burden of proof is fixed upon the plaintiff and the defendant does not even have to do anything if the plaintiff is not able to discharge his burden of proof, why is that? nganong dili man pwede nga papresentathanon nimu ang defendant just in case the plaintiff has not discharged fully his burden or wasn’t able to establish the elements of his cause of action? Because the defendant, at that time has the BENEFIT OF ASSUMPTION. The defendant has the benefit to be assumed or presumed to be not liable if the plaintiff is not able to discharge his burden of proof. If the plaintiff is ABLE to discharge his burden of proof, sa iyaha maadto ang benefit of assumption. There is NO shifting. Both paRties have their respective burdens to discharge in a case.
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law on evidence The burden of going forward with the evidence (burden of evidence) then shifts to the defendant to overcome by competent evidence this legal presumption. (Maguan v. Court of Appeals, et al., 146 SCRA 116, 117) EFFECTS IF PLAINTIFF DISCHARGES HIS BURDEN OF PROOF Effects: 1. He effectively captures the benefit of assumption He is correct until refuted by the defendant 2. The plaintiff is deemed to have established PRIMA FACIE casewhen a prima facie case is established, the burden of proof is effectively passed on to the defending party. if the prosecution was able to establish the prima facie case and therefore acquires the benefit of assumption, the accused will now have to present evidence to establish his innocence. RES IPSA LOQUITOR As a rule of evidence, the doctrine of res ipsa loquituris peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence In a case for DAMAGES DUE TO RECKLESS IMPRUDENCE (quasi-delict, Article 2176) and the application of the doctrine of res ipsa loquitor—we have to look at this in a negative and positive aspect. if one party has the burden of proof and he is at that stage in the trial where he has to discharge his burden, the other merely waits. Because if he is not able to discharge the burden of proof, the other party can simply file a demurrer. He has then the benefit of assumption. In the application of Res Ipsa Loquitor, “the thing speaks for itself”, there is no need to establish a prima facie case. if this exists, the plaintiff does nto have to establish a prima facie case or he does not have the initial burden of proof. It is with the defendant because by the operiaotn of the doctrine, the circumstances clearly provide that the defendant is negligent. The thing speaks in such a way sthat there is no other explanation that it is the defendant who is negligent. Therefore, the circumstances would show that the defendant has the initial burden of proof to say that he was not negligent. CASE: REPUBLIC V. LUZON STEVEDORING—barge barges into a pier. It has to be the barge that is negligent. Between an immovable and movable object, an immovable object cannot be attributed with fault. The antithesis of this case is the case of PHOENIX V. IAC—in the case of Luzon Stevedoring, it’s a stationary/immovable object where a movable object rams into it—res ipsa loquitor. On the other hand, in this case of Phoenix, there is that situation that The petitioners Phoenix and Carbonel contend that if there was negligence in the manner in which the dump truck was parked, that negligence was merely a "passive and static condition" and that private respondent Dionisio's recklessness constituted an intervening, efficient cause determinative of the accident and the injuries he sustained. The need to administer substantial justice as between the parties in this case, without having to remand it back to the trial court after eleven years, compels us to address directly the contention put forward by the petitioners and to examine for ourselves the record pertaining to Dionisio's alleged negligence which must bear upon the liability, or extent of liability, of Phoenix and Carbonel.
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law on evidence TWO SEPARATE BURDENS IN BURDEN OF PROOF Two separate burdens in Burden of Proof: 1. Burden of going forward- that of producing evidence 2. Burden of persuasion- burden of persuading the trier of fact that the burdened party is entitled to prevail BURDEN OF GOING FORWARD Illustration of going forward with the evidence: For example after the existence of a debt has been proven by the creditor the burden of proving payment devolves upon the debtor. Where the debtor introduces evidence of payment, the burden of going forward with the evidence - as distinct from the general burden of proof- shifts to the creditor who is then under the duty of producing evidence to show non-payment. (Jimenez, et al, v. NLRC, et al., G.R. No,. 116960, prom. April 2, 1996) In short, the burden of going forward is the burden of producing evidence. BURDEN OF PERSUASION It is the burden of convincing or persuading the tribunal or trier of facts that the party, possessed with the burden of proof is entitled to the relief. Now this would mean the weight that is given by the court with the evidence you have given. Is the weight of evidence presented pursuant to your duty of going forward with the evidence, is that the one that will convince the trial of facts? That is the burden of persuasion. SUMMARY EFFECT OF ABSENCE OF EVIDENCE or no evidence is presented CRIMINAL CASE: Accused is acquitted CIVIL CASE: a. When defendant does not file an answer Plaintiff wins b. When defendant files an answer and sets up purely negative defenses and no evidence is presented by both sides Defendant wins because plaintiff has not carried his burden c. When defendant files an answer and sets up affirmative defenses and no evidence is presented by both sides Plaintiff wins (note: an affirmative defense is one which is a defense of a confession and avoidance. This means that while you admit, still there is no claim that can be had because of reasons such as those found rule 16, section 1) You have already deemed to have hypothetically admitted the offense charged. If there is an affirmative defense, there is a hearing as if a motion to dismiss has been filed. Mu-una present na ug defense ang defendant. If he sets up the adffimative defense, then he has the burden of proof. What if his defense is prescription? He admits hypothetically that he has a debt. What if defendant does not present evidence as to the dates and prove his prescription allegation? Then the plaintiff wins because the hypothetical admission is equivalent to capturing the benefit of assumption. Example: The defendant filed an answer: “I admit that I borrowed money from the plaintiff, but the plaintiff has no reason to run after me because I have paid that account long time ago.” [If no evidence is presented by both sides then plaintiff wins because the defendant admitted the
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law on evidence existence of loan. And it is the defendant’s burden to prove his affirmative defense.] The ULTIMATE ANALYSIS is who stands to lose if no evidence is presented. If you are able to answer that question, you are able to identify who has the burden of proof. BURDEN OF EVIDENCE BURDEN OF EVIDENCE- the duty resting upon a party, by means of evidence, to create or meet a prima facie case. Burden of evidence is applicable only if one party has already discharged his initial burden of proof or if there is no need to present a prima facie case because a presumption already applies. There is no denying that in a criminal case, unless the guilt of the accused is established by proof beyond reasonable doubt, he is entitled to an acquittal. But when the trial court denies petitioners' motion to dismiss by way of demurrer to evidence on the ground that the prosecution had established a prima facie case against them, they assume a definite burden. It becomes incumbent upon petitioners to adduce evidence to meet and nullify, if not overthrow, the prima facie case against them. 7 This is due to the shift in the burden of evidence, and not of the burden of proof as petitioners would seem to believe. When a prima facie case is established by the prosecution in a criminal case, as in the case at bar, the burden of proof does not shift to the defense. It remains throughout the trial with the party upon whom it is imposed—the prosecution. It is the burden of evidence which shifts from party to party depending upon the exigencies of the case in the course of the trial. 8 This burden of going forward with the evidence is met by evidence which balances that introduced by the prosecution. Then the burden shifts back. BAR QUESTION: BURDEN OF PROOF vs. BURDEN OF EVIDENCE. Distinguish burden of proof and burden of evidence Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. (Sec. 1 of Rule 131), while burden of evidence is the duty of a party to go forward with the evidence to overthrow prima facie evidence established against him. (Bautista v. Sarmiento, 138 SCRA 587 [1985]). Burden of Proof of both parties NEVER SHIFTS, while Burden of Evidence is TRANSFERRED from one litigant to another depending on the progress of trial. ILLUSTRATION: Plaintiff files a complaint for recovery of a defaulted loan. Defendant files an answer with a negative defense, denying the existence of the loan. [At the start, the plaintiff has the burden of proof and also burden of evidence, he should go to trial and present evidence to show that he has a cause of action. If he has introduced enough proof that he has a cause of action, the burden of evidence will now be shifted to the defendant. If defendant presents enough evidence to prove his negative defense then the burden of evidence is shifted again to the plaintiff on rebuttal evidence.] Burden of proof in trial is like playing Ping-Pong. If mu-serve ka and wala nilampas sa net, it is a defective serve. Does the opponent have to do anything? Dili. He doesn’t have to do anything yet he scores a point. But for as long as good ang imung serves, then good ang laban, the burden shifts and alternates, party to party. that’s as simple as that.
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law on evidence
CAN THE ACCUSED IN A CRIMINAL/CIVIL CASE BEFORE PRESENTING HIS OWN EVIDENCE ASCERTAIN CONDITIONALLY OR PROVISIONALLY WHETHER THE EVIDENCE PRESENTED BY THE PROSECUTION IS ENOUGH TO CONVICT HIM? Yes. In a criminal/civil case, the accused (defendant/plaintiff) can easily determine the sentiment of the court concerning the quantum of evidence presented by the prosecution (defendant/plaintiff) by simply filing a demurrer to evidence with leave of court. Atty. Espejo: I usually file Demurrer in MTC cases because in case mupalpak, the client can still file for Probation or to suspend the sentence or possible settlement of the case. now when the judge rules that a prima facie case is established, judge will say how it was established. So you know now pano xa i-refute. The problem with certain lawyers don’t file demurrers is that tamad lang gyud sila. that’s a tool that you can use. You can provisionally ascertain whether the evidence presented is enough to convict your client. PRINCIPLE OF NEGATIVING AVERMENT A negative averment does not have to be proven UNLESS the negative averment is an essential part of the cause of action or defense. Example: In an information for illegal possession of firearms, the information will contain an averment that the accused does not have a license to possess the firearm [negative averment]. * In this case, the negative averment is an essential part of the commission of the crime, hence this must be proven. DOCTRINE OF EQUIPOISE OR EQUIPONDERANCE RULE The "equipoise doctrine" is the rule which states that when the evidence of the prosecution and the defense are so evenly balanced the appreciation of such evidence calls for tilting of the scales in favor of the accused. Thus, the evidence for the prosecution must be heavier to overcome the presumption of innocence of the accused. The constitutional basis of the rule is Bill of Rights which finds expressions in Sec. 1, par. (a), Rule 115 of the 1985 Rules on Criminal Procedure as amended Where the evidence on an issue of fact is in equipoise or there is doubt on which side the evidence preponderates, the party having the burden of proof fails upon that issue.(Rivera v. Court of Appeals, et al., G.R. No. 115625, prom. January 23, 1998) Therefore, as neither party was able to make out a case, neither side could establish its cause of action and prevail with the evidence it had. They are thus no better off than before they proceeded to litigate, and, as a consequence thereof, the courts can only leave them as they are. (Rivera, supra citing Municipality of Candijay, Bohol v. Court of Appeals, 251 SCRA 530) A simpler illustration of this rule is like when a judge would now determine the evidentiary weight of what was presented. See where scale is tilted. We do not make use of mathematical formula here although Wigmore tried to do that but it didn’t catch on. In this case, where the evidence of both sides are evenly balanced, who wins? That’s the situation that is illustrated or addressed by the Doctrine of Equipoise. DETERMINE WHO HAS THE BURDEN OF PROOF. If it is the plaintiff who has the burden of proof, he must be the one who stands to lose if no evidence is presented and if the evidence is equal, then it will be the DEFENDANT WHO WINS because plaintiff was not able to discharge
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law on evidence his burden. Kung nilamang pa xa ug 1kilo, then mudaog xa. Pero equal man, pildi xa. In this situation, the case is decided AGAINST the party with the burden of proof. Hence, where the burden of proof is on the plaintiff and the evidence does not suggest that the scale of justice should weigh on his favor, the court should render a judgment in favor of the defendant. Situation #2: Here’s the prosecution who presents evidence which is 10Kilos worth of evidence then the defense also presents 10kgs worth of evidence. Who wins? The accused. but not because of the equiponderance rule. Why? Because it is according to the Constitution. The accused is presumed innocent until the contrary is proven. He cannot be convicted unless his guilt is shown beyond reasonable doubt. However, sometimes in the Philippines we disregard presumptions in favor of the accused because of that public perception that is implicated in the mind of the judge. For example, PUBLIC CLAMOR, TELEVISION, etc. CASES WHERE EQUIPOISE DOCTRINE IS NOT APPLICABLE 1. Criminal cases 2. Labor cases—because in case of doubt, always resolve in favor of labor. (Adana case) BASIS The basis is the basic due process consideration. The doctrine is based on the principle that no man shall be depried of life, liberty or property without due process of law. BAR QUESTION 1995. Explain the doctrine of equipoise in the law of evidence and cite its constitutional basis. Answer: no man shall be deprived of life, liberty or property without due process of law. This is why I have a criticism of this suggested answer of UP. The answer of UP was “this is based on the presumption of innocence of the accused”. Remember there is no equipoise rule in criminal cases. It is only applicable in CIVIL cases.
2. PRESUMPTIONS – RULE 131, SECS. 2-4 PRESUMPTION it is an inference as to the existence or non-existence of a fact which courts are permitted to draw from the proof of other facts. A presumption is an assumption of fact of a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action. IS PRESUMPTION EVIDENCE? Answer: NO. Presumption is NOT evidence but they affect the burden of offering evidence. It is not evidence itself but is is an assumption resulting in evidence. In a sense, a presumption is an inference which is mandatory unless it is rebutted. Example: B is the debtor of C. for 1 million payable in 12 equal monthly installments. If
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law on evidence evidence is produced that the installment payment for December has been received by the creditor, what is th presumption that arises? That all previous installment shave already been paid. The receipt of a alter installment of a debt without reservation as to prior installments shall give rise to a presumption that such installments have already been paid. (article 1176 of the Civil Code) INFERENCE V. PRESUMPTION Both actually require logical reasoning on the part of the trier of facts. INFERENCE is a factual conclusion that can be found rationally from other facts. It is one that as a result of a reasoning process. An inference does not have a legal effect while a presumption has a legal effect. in fact, a presumption is actually mandated by law and establishes a legal relation between or among facts. WHY IS PRESUMPTION LUMPED WITH BURDEN OF PROOF? This is because of the intimate connection of the two. As a rule, the burden of proof lies upon he who alleges and not upon one who denies. However, when there is an applicable presumption, the burden of evidence shifts on the party who denies to dispute that applicable presumption. Therefore, an unrebutted presumption is equivalent to truth.
What is the effect of ADMISSION and EFFEFT OF JUDICIAL NOTICE The effect is to withdraw a certain matter of fact from contention. It is either admitted or submitted to judicial notice. This is also the same effect to Presumptions. A Presumption, if unrebutted, no need for proof. In that sense, Presumption and Judicial notice are similar with Admissions. DIFFERENT TYPES OF PRESUMPTIONS 1. PRESUMPTION JURIS OR PRESUMPTION OF LAW a deduction which the law expressly directs to be made from particular facts Must be made whenever the facts appear which furnish the basis for the inference Reduced to fixed rules and form part of the system of jurisprudence Example: 2185 in torts and damages. If the defendant at the time of mishap was guilty of violating any traffic ordinance, he is presumed to be negligent. It doesn’t really follow right? Dili man automatic nga conclusion nga if wala kay helmet, liable na ka. But because the trier of facts are directed by law to draw that conclusion or legal inference, the trier of facts has no choice but to supply the set of facts by which the inference shall apply. 2. PRESUMPTION HOMINIS OR PRESUMPTION OF FACT A deduction which reason draws from facts proved without an express direction from the law to that effect (The law does not say but it will still be useful. i.e. A killed B. what is the presumption than can be drawn from that? that A does not like B. that is a presumption of fact and not of law. But what is a presumption of law in that case? that there is a criminal intent) Discretionary on the court Derived from circumstances of a particular case through common experience of mankind CLASSIFICATIONS OF PRESUMPTIONS OF LAW (Presumption juris et de jure)
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law on evidence 1.
CONCLUSIVE- not permitted to be overcome by any proof to the contrary. Presumption becomes conclusive when such presumption becomes irrebuttable upon the presentation of evidence and any evidence tending to rebut the presumption is not admissible, not useful, not needed even if it is irrelevant. The presumption is in reality not a procedural rule but a rule of substantive law. 2. DISPUTABLE—the law permits a presumption juris tantum to be overcome or contradicted by contrary evidence. A presumption is disputable or rebuttable if it may be contradicted or overcome by evidence. When evidence which rebuts the presumption is introduced, the force of the presumption disappears. Example: there’s evidence of payment of a later installment. The presumption is that all previous installments were already paid. However, when evidence is shown that such was really not made, the presumption loses efficacy and the presumption should fail. PRIMA FACIE EVIDENCE Prima facie from Latin: prīmā faciē) is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face" or "at first appearance", from the feminine form of primus ("first") and facies ("face"), both in the ablative case. It is used in modern legal English to signify that on first examination, a matter appears to be self-evident from the facts. In common law jurisdictions, prima facie denotes evidence that – unless rebutted – would be sufficient to prove a particular proposition or fact. The term is used similarly in academic philosophy. Most legal proceedings require a prima facie case to exist, following which proceedings may then commence to test it, and create a ruling. CONCLUSIVE PRESUMPTIONS 2.1.1.
Instances where there is a conclusive presumption: Whenever a party by his own declaration, act, omission, has led another – 1 to believe a particular thing to be true AND 2 to act upon such belief, 3 He cannot in any litigation arising out of such declaration, act or omission be permitted to falsify it. (Estoppel)
2.1.2. The TENANT is not permitted to deny the title of his landlord at the time of the COMMENCEMENT of the relation of landlord and tenant between them. Conclusive presumptions under the Rules of court are based on the doctrine of estoppel. Under this doctrine, the person making the representation cannot claim benefit from the wrong he himself committed. Example: Persons in a corporation who assume without legal authority acts such shall be considered as corporation by estoppel and shall be liable as general partners (section 21, corporation code) Note: There is also a conclusive presumption under the Rule 39, which is a public policy principle of res judicata (a judgment is conclusive upon the title to the thing or upon the political or legal condition of a person, {judgment in rem or in personam})
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law on evidence SEC. 2. Conclusive presumptions.— The following are instances of conclusive presumptions: (a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it; (b) The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them. (3a) Section 2(a) (a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it; ESTOPPEL When have you learned this? In first year. To my mind, this should not be discussed in the 1st year. Estoppel is not even a substantive principle. It is an EQUITABLE principle. Article 1431. Through estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. Reduced to its simplest terms, it is the same as the first conclusive presumption. When you say or admit to someone something, you cannot be permitted to rebut that later on because that presentation or admission is rendered conclusive CASES ALCARAZ V. TANGGA-AN April 9, 2003 They claim that the lease contract ceased to be effective because Virgilio’s assumption of ownership of the land stripped the respondents of ownership of the building. They argue that, under Article 440 of the Civil Code, Virgilio’s title over the lot necessarily included the house on the said lot, thus automatically canceling the contract. Section 2, Rule 131 of the Rules of Court provides as a conclusive presumption that: Sec. 2. Conclusive presumptions. – The following are instances of conclusive presumptions: (a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it; xxx xxx xxx After recognizing the validity of the lease contract for two years, the petitioner spouses are barred from alleging the automatic cancellation of the contract on the ground that the respondents lost ownership of the house after Virgilio acquired title over the lot.
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law on evidence MENDOZA V. CA June 25, 2001 This case tells you of “Promissory Estoppel” The broad general rule to the effect that a promise to do or not to do something in the future does not work an estoppel must be qualified, since there are numerous cases in which an estoppel has been predicated on promises or assurances as to future conduct. The doctrine of ‘promissory estoppel’ is by no means new, although the name has been adopted only in comparatively recent years. According to that doctrine, an estoppel may arise from the making of a promise, even though without consideration, if it was intended that the promise should be relied upon and in fact it was relied upon, and if a refusal to enforce it would be virtually to sanction the perpetration of fraud or would result in other injustice. In this respect, the reliance by the promisee is generally evidenced by action or forbearance on his part, and the idea has been expressed that such action or forbearance would reasonably have been expected by the promissor. Xxx The doctrine of promissory estoppel is an exception to the general rule that a promise of future conduct does not constitute an estoppel. In some jurisdictions, in order to make out a claim of promissory estoppel, a party bears the burden of establishing the following elements: (1) a promise reasonably expected to induce action or forebearance; (2) such promise did in fact induce such action or forebearance, and (3) the party suffered detriment as a result.[19] It is clear from the forgoing that the doctrine of promissory estoppel presupposes the existence of a promise on the part of one against whom estoppel is claimed. The promise must be plain and unambiguous and sufficiently specific so that the Judiciary can understand the obligation assumed and enforce the promise according to its terms. [20] For petitioner to claim that respondent PNB is estopped to deny the five-year restructuring plan, he must first prove that respondent PNB had promised to approve the plan in exchange for the submission of the proposal. As discussed earlier, no such promise was proven, therefore, the doctrine does not apply to the case at bar. A cause of action for promissory estoppel does not lie where an alleged oral promise was conditional, so that reliance upon it was not reasonable. [21] It does not operate to create liability where it does not otherwise exist. (b) The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them. This is related to article 1436: Article 1436. A lessee or a bailee is estopped from asserting title to the thing leased or received, as against the lessor or bailor. Commodatum—Nanghulam ka ug ballpen then later muingon ka sa tag-iya nga, “ako-a man ni”. Dili na pwede. CASES DATA LIFT MOVERS V. BELGRAVIA August 30, 2006 Conclusive presumptions have been defined as “inferences which the law makes so peremptory that it will not allow them to be overturned by any contrary proof however strong.”[7] As long as the lessor-lessee relationship between the petitioners and Belgravia exists as in this case, the former, as lessees, cannot by any proof, however
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law on evidence strong, overturn the conclusive presumption that Belgravia has valid title to or better right of possession to the subject leased premises than they have. TAMIO V. TICSON 485 PHIL. 434, 444 (2004). The juridical relationship between x x x [a] lessor and x x x [a lessee] carries with it a recognition of the lessor's title. As [lessee, the petitioner is] estopped [from denying the] landlord's title, or to assert a better title not only in [herself], but also in some third person while [she remains] in possession of the subject premises and until [she surrenders] possession to the landlord. This estoppel applies even though the lessor had no title at the time the relation of [the] lessor and [the] lessee was created, and may be asserted not only by the original lessor, but also by those who succeed to his title.”[24] Once a contact of lease is shown to exist between the parties, the lessee cannot by any proof, however strong, overturn the conclusive presumption that the lessor has a valid title to or a better right of possession to the subject premises than the lessee. The Court thus explained in Tamio v. Ticson:[25] Indeed, the relation of lessor and lessee does not depend on the former’s title but on the agreement between the parties, followed by the possession of the premises by the lessee under such agreement. As long as the latter remains in undisturbed possession, it is immaterial whether the lessor has a valid title – or any title at all – at the time the relationship was entered into. [citations omitted] EXCEPTIONS 1. In a case where the landlord-tenant relationship is not sufficiently established or where the very existence of the relationship is the very fact in issue of the case. (Consumido v. Ros) 2. If there was a change in tehnature of the title of th landlord during the subsistence of the lease (Borre v. CA) CASES CONSUMIDO V. ROS July 31, 2007 Respondents argue that petitioner is estopped from denying the landlord-lessee relationship between the parties because of her admission that she paid rentals to respondents in her belief that the former were the owners of the premises. For estoppel to apply, the action giving rise thereto must be unequivocal and intentional because, if misapplied, estoppel may become a tool of injustice. 26 Estoppel is a principle that, as a rule, can be invoked only in highly exceptional and legitimate cases. 27 The essential elements of estoppel in respect to the party claiming it are: (a) lack of knowledge and of the means of knowledge of the truth as the facts in question; (b) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (c) action or inaction based thereon of such character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice. 28 The first element is absent in the instant case. Respondents cannot claim estoppel against petitioner because they knew fully well that they were accepting rentals from
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law on evidence petitioner in their capacity as mere administrators of the leased premises or only on behalf of the late Ramon Saura, Sr. and/or VGFC. Respondents cannot assert that they did not know for a fact that they were never parties to the lease agreement. The fact that petitioner initially thought respondents were the owners of the leased premises does not put her in estoppel because respondents were expected to know in what capacity they accepted the payments. Neither is petitioner estopped in denying respondents’ title. The conclusive presumption set forth in Rule 131, Section 2(b) 29 of the Rules of Court applies only when the landlord and tenant relationship has been sufficiently established. In the case at bar, this is precisely the issue to be resolved as petitioner has consistently alleged that there was no lease agreement between the parties. Moreover, respondents themselves have not asserted ownership over the leased premises, the truth of the matter being that respondents were never the registered owners of the leased premises. BORRE V. CA MARCH 14, 1998 The rule on estoppel against tenants is subject to a qualification. It does not apply if the landlord's title has expired, or has been conveyed to another, or has been defeated by a title paramount, subsequent to the commencement of lessor-lessee relationship [VII Francisco, The Revised Rules of Court in the Philippines 87 (1973)]. In other words, if there was a change in the nature of the title of the landlord during the subsistence of the lease, then the presumption does not apply. Otherwise, if the nature of the landlord's title remains as it was during the commencement of the relation of landlord and tenant, then estoppel lies against the tenant. SEC. 3. Disputable presumptions.— The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: DISPUTABLE The disputable presumptions under this provision are deemed to be disputable because they admit proof to the contrary. The are termed ‘prima facie presumptions” only because they are or can be rebutted but at first blush, they are sufficient to form a conviction. However, when adequate proof is presented, they may be contradicted and overcome by other evidence. (a) That a person is innocent of crime or wrong; PRESUMPTION OF INNOCENCE This is related to the presumption of innocence in criminal cases found in article 3 of the constitution. This is also in consonance with the general rule that in burden of proof, the prosecution has the burden of proving the guilt of the accused, who therefore carries the benefit of assumption. WHAT PROVISIONS OF LAW ESTABLISH AND STRENGTHEN THE RULE ON PRESUMPTION OF INNOCENCE? 1. ARTICLE 3, SECTION 14 -- (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the
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law on evidence absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. 2. RULE 131, SECTION 3(A)—Tat the person is innocent of crime or wrong 3. RULE 133, SECTION 2-- Section 2. Proof beyond reasonable doubt. — In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof, excluding possibility of error, produces absolute certainly. Moral certainly only is required, or that degree of proof which produces conviction in an unprejudiced mind. NOTE: THIS PRESUMPTION APPLIES NOT ONLY IN CRIMINAL CASES BUT ALSO IN CIVIL CASES. Reason: this provision mentions “crime OR wrong” (b) That an unlawful act was done with an unlawful intent; Criminal intent or mens rea is presumed. You do not have to prove that. what negates mens rea? 1. diminished capacity 2. lack of intelligence
3. justifying circumstance (c) That a person intends the ordinary consequences of his voluntary act; Relate with Article 4 of the Revised Penal code: Article 4. Criminal liability. - Criminal liability shall be incurred: 1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended. (Praeter Intentionem) 2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or an account of the employment of inadequate or ineffectual means.(Impossible Crime) CASE EDGARDO CARIAGA, ET AL. vs. LAGUNATAYABAS BUS COMPANY. G.R. No. L-11037 December 29, 1960 Case: damages in transportation cases Issue: compensation for loss of earning capacity We are of the opinion, however, that the income which Edgardo Cariaga could earn if he should finish the medical course and pass the corresponding board examinations must be deemed to be within the same category because they could have reasonably been foreseen by the parties at the time he boarded the bus No. 133 owned and operated by the LTB. At that time he was already a fourth-year student in medicine in a reputable university. While his scholastic may not be first rate it is, nevertheless, sufficient to justify the assumption that he could have passed the board test in due time. As regards the income that he could possibly earn as a medical practitioner, it appears that, according to Dr. Amado Doria, a witness for the LTB, the amount of P300.00 could easily be expected as the minimum monthly income of Edgardo had he finished his studies. Upon consideration of all the facts mentioned heretofore this Court is of the opinion, and so holds, that the compensatory damages awarded to Edgardo Cariaga should be increased to P25,000.00. Principle: this is a case of quasi-delict and therefore, he must be liable for all the logical consequences of his negligent act.
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law on evidence
(d) That a person takes ordinary care of his concerns; ORDINARY CARE It is that diligence of a good father of a family or that diligence observed by somebody who is normally careful about his undertakings and dealings. Default diligence is that diligence of a good father of a family or diligence of normal prudence. In the absence of any showing irresponsibility on the part of the defendant. He enjoys the benefit of having to be assumed to have acted with due care and that he takes ordinary care of his concerns. However, a different rule applies when we look at article 2180 on VICARIOUS LIABILITIES. In this provision, you are not assumed to be taking ordinary care of your ordinary concerns. But you may rebut that adverse presumption by proof of diligence of a good father of family. The reverse of the rule is just with article 2180 Article 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company. The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in article 2176 shall be applicable. Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. (e) That evidence willfully suppressed would be adverse if produced; SUPPRESSION OF EVIDENCE This is the adverse presumption of SUPPRESSION OF EVIDENCE. This stems from human nature. If you have nothing to fear, you have nothing to hide. Only a man who is affected by adverse evidence will attempt to hide. This is actually to discourage suppression of evidence. WHERE THE RULE ON SUPPRESSION OF EVIDENCE WILL NOT APPLY
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law on evidence Under this rule, the rule that “evidence willfully suppressed would be adverse if produced” does not apply in the following instances: 1. THE EVIDENCE IS AT THE DISPOSAL OF BOTH PARTIES (People v. Ducay, 225 SCRA 1) the defendant is 2. IF THE SUPPRESSION WAS NOT WILLFULL (People v. Padrigone) [G.R. No. 137664 : May 9, 2002] PEOPLE OF THE PHILIPPINES vs. ROBERTO PADRIGONE Besides, the non-presentation of Rowena on the witness stand cannot be considered as suppression of evidence. Under Rule 131, Section 3(e) of the Rules of Court, the rule that evidence willfully suppressed would be adverse if produced does not apply if (a) the evidence is at the disposal of both parties; (b) the suppression was not willful; (c) it is merely corroborative or cumulative; and (d) the suppression is an exercise of a privilege. Plainly, there was no suppression of evidence in this case. First, the defense had the opportunity to subpoena Rowena even if the prosecution did not present her as a witness. Instead, the defense failed to call her to the witness stand. Second, Rowena was certified to be suffering from Acute Psychotic Depressive Condition and thus cannot stand judicial proceedings yet.[19 The non-presentation, therefore, of Rowena was not willful. Third, in any case, while Rowena was the victim, Nimfa was also present and in fact witnessed the violation committed on her sister. 3. THE EVIDENCE IS MERELY CUMULATIVE OR CORROBATIVE evidence of the same kind had already been presented. 4. IF THE SUPPRESSION IS BY VIRTUE OF AN EXERCISE OF A PRIVILEGE attorney-client privilege; physician-patient privilege; prerogative of the prosecution to present the number of witnesses in order to prosecute the accused. PREROGATIVE OF THE PROSECUTION TO PRESENT THE NUMBER OF WITNESSES IN ORDER TO PROSECUTE THE ACCUSED G.R. No. 172744, September 29, 2008] MARVIN ANGELES, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT. There was no suppression of evidence by the prosecution when it did not present Dennis as one of its witnesses. The prosecutor has the exclusive prerogative to determine the witnesses to be presented for the prosecution. If the prosecution has several eyewitnesses, as in the instant case, the prosecutor need not present all of them but only as many as may be needed to meet the quantum of proof necessary to establish the guilt of the accused beyond reasonable doubt. Besides, there is no showing that the witness who was not presented in court was not available to the accused. We reiterate the rule that the adverse presumption from a suppression of evidence is not applicable when (1) the suppression is not willful; (2) the evidence suppressed or withheld is merely corroborative or cumulative; (3) the evidence is at the disposal of both parties;
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law on evidence and (4) the suppression is an exercise of a privilege. [21] Moreover, if Angeles believed that the failure to present Dennis was because his testimony would be unfavorable to the prosecution, Angeles should have compelled Dennis' appearance by compulsory process to testify as his own witness or even as a hostile witness. PEOPLE V. ISLA [G.R. No. 96176. August 21, 1997] While it may be true that the prosecution may not be compelled to present a witness or witnesses, it is undeniable that the non-presentation of a witness is tantamount to suppression of evidence, [15] especially if the prosecution witnesses already presented, have no personal knowledge of the facts which could establish the elements of the crime charged. Hence, the non-presentation of witnesses, Cristy Manalastas, Julie and Baby Wycoco who allegedly saw the pregnant woman, raises serious doubt as to the truthfulness of the testimony of Mr. Organez. PRESUMTPION ON EVIDENCE THAT IS FABRICATED If a party resorts to fabrication of evidence, there is a related presumption that the case of the fabricator is weak and its evidence dishonest. (f) That money paid by one to another was due to the latter; The law presumes the person to be careful in matters of money because he unusually parts of his money unless he is sure as what the transaction and what he is paying it for. (g) That a thing delivered by one to another belonged to the latter; PRESUMPTION OF OWNERHSIP BY DELIVERY There’s a presumption that when you deliver something, there is that intention that stems from the ownership of the thing. Remember in Sales, it is the delivery which actually transfers ownership and not the contract. In commodatum, if you have given a thing, it will be presumed na imung gi-uli—a thing delivered by one to another belonged to the latter. WHERE NO PRESUMPTION OF OWNERSHIP IN CASE OF DELIVERY OF THE THING This presumption must be made to exclude certain deliveries made pursuant to certain contracts. For instance, it does not apply: (instances 1. In the perfection of contracts of bailment (?) 2. Also in a contract of deposit (h) That an obligation delivered up to the debtor has been paid; MEANING OF OBLIGATION The term ‘obligation” here must be taken to mean an evidence of the obligation. For example, a promissory note. A executed a PN promising to pay D the sum of P50. Later on, that evidence of indebtedness is already in the possession of the person to whom the promissory note was executed. Here, the presumption is that the obligation has already been paid.
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law on evidence
HOW DO YOU DELIVER THE OBLIGATION UP TO THE DEBTOR? The obligation here is taken to mean the evidence of indebtedness. Same thing applies to checks. Pay to the order of P or pay to B, etc. TWIN PRESUMPTIONS OF PAYMENT There are twin presumptions of payment that are related to letter (h). they are in the civil code 1. 1271 2. 1272 Article 1271. The delivery of a private document evidencing a credit, made voluntarily by the creditor to the debtor, implies the renunciation of the action which the former had against the latter. If in order to nullify this waiver it should be claimed to be inofficious, the debtor and his heirs may uphold it by proving that the delivery of the document was made in virtue of payment of the debt. (1188) Article 1272. Whenever the private document in which the debt appears is found in the possession of the debtor, it shall be presumed that the creditor delivered it voluntarily, unless the contrary is proved. (i) That prior rents or installments had been paid when a receipt for the later ones is produced; Relate with 1253 of the Civil code: Article 1253. If the debt produces interest, payment of the principal shall not be deemed to have been made until the interests have been covered. Before you pay off the principal, bayaran sa nimu ang interest. Once you have made payment for the last installment, the presumption is that prior rents or installment had been paid. (j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possesses, or exercises acts of ownership over, are owned by him; TWO PRESUMTPIONS 1. ADVERSE PRESUMPTION OF STOLEN GOODS 2. A person who possesses or who exercises ownership over the thing is presumed to be the owner without prejudice to the proof on the contrary. ADVERSE PRESUMPTION OF STOLEN GOODS In criminal law, we can also give similar presumptions. For example: 1. The presumption that the person in possession of the object of theft or robbery is deemed to be the author of the theft or robbery; or 2. possession of a falsified or forged document is deemed to be the author of falsification or forgery (this is however not absolute and is susceptible to proof to the contrary) GUIDELINES In order for the presumptions in letter (j) to apply, 3 guidelines must be met: 1. Commission—there must be a recent wrongful act of theft, taking or robbery.
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law on evidence 2. Possession—possession of the stolen object by the person against whom the presumption is to be taken against 3. Succession—more accurately, that the commission of the crime must be recent and the possession must immediately succeed the commission. Therefore, the presumption will NOT apply if the possession of the stolen object is already very remote in time and tacked of course from the time of the commission of the act. For example, after 1 month pa nimu nareklamo. There could still be a presumption but the presumption will already be weak the logner the time had already elapsed. IMPORTANT: THE PRESUMPTION APPLIES ONLY IF THE ACCUSED IS UNABLE TO EXPLAIN HIS POSSESSION OF THE OBJECT SATISFACTORILY. (k) That a person in possession of an order on himself for the payment of the money, or the delivery of anything, has paid the money or delivered the thing accordingly; This is related to letter (h). if you already have it, it means it has already been paid. For example, Bills of Lading. Pag nauli na na xa, the thing subject of the bill of lading had already been returned or claimed by the consignee. (l) That a person acting in a public office was regularly appointed or elected to it; There is no presumption of Usurpation. (m) That official duty has been regularly performed; Together with letter (l) and (m), this constitutes the PRESUMPTION OF REGULARITY OF OFFICIAL ACTS. REASON G.R. No. 106025 February 9, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, v. CARLOS DE GUZMAN y PANALIGAN A disputable presumption has been as a species of evidence that may be accepted and acted on where there is no other evidence to uphold the contention for which it stands, or one which may be overcome by other evidence. 10 One such disputable/rebuttable presumption is that an official act or duty has been regularly performed. 11Presumption of this nature is indulged by the law for the following fundamental reasons: first, innocence, and not wrong-doing, is to be presumed; second, an official oath will not be violated; and third, a republican form of government cannot survive long unless a limit is placed upon controversies and certain trust and confidence reposed in each governmental department or agent by every other such department or agent, at least to the extent of such presumption. 12 Thus, this presumption evidences a rule of convenient public policy universally applied and without which great distress would spring in the affairs of men. The presumption of regularity of official acts may be rebutted by affirmative evidence of irregularity or failure to perform a duty. The presumption, however, prevails until it is overcome by no less than clear and convincing evidence to the contrary. Thus, unless the presumption is rebutted, it becomes conclusive. Every reasonable intendment will be made in support of the presumption and in case of doubt as to an officer's act being lawful or unlawful, construction should be in favor of its lawfulness.
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law on evidence
CONFLICT WITH ACCUSED’ PRESUMPTION OF INNOCENCE A police officer who enjoys presumption of regularity of performance of his acts and the accused who enjoys his constitutionally guaranteed presumption of innocence. Let’s say a case wher ethe police fabricated an evidence against the accused. Of course, the police would rebut. What about the constitutional right of the accused? PEOPLE V. DONALDO PADILLA G.R. No. 172603 August 24, 2007 The presumption of regularity in the performance of official functions cannot by itself affect the constitutional presumption of innocence of the accused, particularly if the evidence for the prosecution is weak. People v. Mirantes[8] so teaches: The oft-cited presumption of regularity in the performance of official functions cannot by itself affect the constitutional presumption of innocence enjoyed by an accused, particularly when the prosecution’s evidence is weak. The evidence of the prosecution must be strong enough to pierce the shield of this presumptive innocence and to establish the guilt of the accused beyond reasonable doubt. And where the evidence of the prosecution is insufficient to overcome this presumption, necessarily, the judgment of conviction of the court a quo must be set aside.The onus probandi on the prosecution is not discharged by casting doubts upon the innocence of an accused, but by eliminating all reasonable doubts as to his guilt. (n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; Jurisdiction cannot be presumed but Acts of Jurisdiction can be presumed. (o) That all the matters within an issue raised in a case were laid before the court and passed upon by it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them; ‘passed upon”—it means it was considered. Letters N and letter O are collectively known as the PRESUMPTION OF REGULARITY OF JUDICIAL ACTS. (p) That private transactions have been fair and regular; PRESUMPTION OF REGULARITY OF PRIVATE TRANSACTIONS Rationale: Good faith is always presumed. It is the burden o the person claiming otherwise to adduce clear and convincing evidence on the contrary. INSTANCES WHERE CLEAR AND CONVINCING EVIDENCE IS REQUIRED 1. Criminal law 2. When you are about to rebut a presumption (under the Rules of court) Same thing with FRAUD. G.R. No. 115734 February 23, 2000 LOYOLA V. CA
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law on evidence
The rule on fraud is that it is never presumed, but must be both alleged and proved. 15 For a contract to be annulled on the ground of fraud, it must be shown that the vendor never gave consent to its execution. If a competent person has assented to a contract freely and fairly, said person is bound. There also is a disputable presumption, that private transactions have been fair and regular. 16 Applied to contracts, the presumption is in favor of validity and regularity. In this case, the allegations of fraud was unsupported, and the presumption stands that the contract Gaudencia entered into was fair and regular. (q) That the ordinary course of business has been followed; This is related to the presumption of regularity but letter (q) is broader because it appears to cover the ordinary course of business of both public and private transactions. (r) That there was a sufficient consideration for a contract; Consideration is presumed to exist. (s) That a negotiable instrument was given or indorsed for a sufficient consideration; the provision of letter (r) and (s) is equivalent to the Civil code provision of 1354: Article 1354. Although the cause is not stated in the contract, it is presumed that it exists and is lawful, unless the debtor proves the contrary. (t) That an indorsement of a negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated; WHAT IS THE EFFECT? It has the effect of presuming or making a presumption that the holder is a holder in due course. Not necessarily for value but a holder in due course. (u) That a writing is truly dated; (v) That a letter duly directed and mailed was received in the regular course of the mail; This is also the reason why we have to trust our Registry Mail Service. If you file a pleading by ordinary mail service, the date of receipt is the date of filing. With respect to registered mail, the date of mailing is the date of filing. BARCELON V. CIR August 7, 2006 when a mail matter is sent by registered mail, there exists a presumption, set forth under Section 3(v), Rule 131 of the Rules of Court, that it was received in the regular course of mail. The facts to be proved in order to raise this presumption are: (a) that the letter was properly addressed with postage prepaid; and (b) that it was mailed. While a mailed letter is deemed received by the addressee in the ordinary course of mail, this is still merely a disputable presumption subject to controversion, and a direct denial of the receipt thereof shifts the burden upon the party favored by the presumption to prove that the mailed letter was indeed received by the addressee. In the present case, petitioner denies receiving the assessment notice, and the respondent was unable to present substantial evidence that such notice was, indeed, mailed or sent by the respondent before the BIR’s right to assess had prescribed and that said notice was received by the petitioner.
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law on evidence
(w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes, except for those of succession. The absentee shall not be considered dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. The following shall be considered dead for all purposes including the division of the estate among the heirs: 1. A person on board a vessel lost during a sea voyage, or an aircraft which is missing, who has not been heard of for four years since the loss of the vessel or aircraft; 2. A member of the armed forces who has taken part in armed hostilities, and has been missing for four years; 3. A person who has been in danger of death under other circumstances and whose existence has not been known for four years; If a married person has been absent for four consecutive years, the spouse present may contract a subsequent marriage if he or she has a well-founded belief that the absent spouse is already dead. In case of disappearance, where there is danger of death under the circumstances hereinabove provided, an absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage. However, in any case, before marrying again, the spouse present must institute a summary proceeding as provided in the Family Code and in the rules for a declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. PRESUMPTION OF DEATH Summary: 1. When can a person be presumed dead for ALL purposes except succession? 7 years. 2. Exceptions: a. the absentee shall not be considered dead for purposes of opening his succession until the absence of 10 years. b. If the absentee disappeared at the age of more than 75 years, an absence of 5 eyars shall be sufficient so that his succession may be opened. c. A period of 4 years shall be sufficient for all purposes including for the opening of his succession under the 4 circumstances of in danger of death. d. A period of 2 years for contracting a subsequent marriage when a spouse was absent for 2 years under the circumstances provided in 1,2,3 and 4. Remember article 41 of the Civil code: Article 41. For civil purposes, the foetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the foetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. (x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact; (y) That things have happened according to the ordinary course of nature and the ordinary habits of life; You do not presume the supernatural or the unnatural. (z) That persons acting as copartners have entered into a contract of copartnership;
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law on evidence
PARTNERSHIP BY ESTOPPEL Article 1825. When a person, by words spoken or written or by conduct, represents himself, or consents to another representing him to anyone, as a partner in an existing partnership or with one or more persons not actual partners, he is liable to any such persons to whom such representation has been made (ESTOPPEL or admission by silence) CORPORATION BY ESTOPPEL Sec. 21. Corporation by estoppel. - All persons who assume to act as a corporation knowing it to be without authority to do so shall be liable as general partners for all debts, liabilities and damages incurred or arising as a result thereof: Provided, however, That when any such ostensible corporation is sued on any transaction entered by it as a corporation or on any tort committed by it as such, it shall not be allowed to use as a defense its lack of corporate personality. One who assumes an obligation to an ostensible corporation as such, cannot resist performance thereof on the ground that there was in fact no corporation. CASES LIM TONG LIM V. PHILIPPINE FISHING GEAR INC. November 3, 1999 Thus, even if the ostensible corporate entity is proven to be legally nonexistent, a party may be estopped from denying its corporate existence. "The reason behind this doctrine is obvious — an unincorporated association has no personality and would be incompetent to act and appropriate for itself the power and attributes of a corporation as provided by law; it cannot create agents or confer authority on another to act in its behalf; thus, those who act or purport to act as its representatives or agents do so without authority and at their own risk. And as it is an elementary principle of law that a person who acts as an agent without authority or without a principal is himself regarded as the principal, possessed of all the right and subject to all the liabilities of a principal, a person acting or purporting to act on behalf of a corporation which has no valid existence assumes such privileges and obligations and becomes personally liable for contracts entered into or for other acts performed as such agent. The doctrine of corporation by estoppel may apply to the alleged corporation and to a third party. In the first instance, an unincorporated association, which represented itself to be a corporation, will be estopped from denying its corporate capacity in a suit against it by a third person who relied in good faith on such representation. It cannot allege lack of personality to be sued to evade its responsibility for a contract it entered into and by virtue of which it received advantages and benefits. On the other hand, a third party who, knowing an association to be unincorporated, nonetheless treated it as a corporation and received benefits from it, may be barred from denying its corporate existence in a suit brought against the alleged corporation. In such case, all those who benefited from the transaction made by the ostensible corporation, despite knowledge of its legal defects, may be held liable for contracts they impliedly assented to or took advantage of. CHRISTIAN CHILDREN’S FUND V. NLRC June 30, 1989 As an organization lawfully created, the doctrine of corporation by estoppel will apply. When a third person has entered into a contract with an association which represented
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law on evidence itself to be a corporation, the association will be estopped from denying its corporate capacity in a suit against it by such third person. It cannot allege lack of capacity to be sued to evade responsibility on a contract it had entered into and by virtue of which it received advantages and benefits RONALDO LOZANO V. DE LOS SANTOS June 19, 1997 The doctrine of corporation by estoppel[16] advanced by private respondent cannot override jurisdictional requirements. Jurisdiction is fixed by law and is not subject to the agreement of the parties.[17] It cannot be acquired through or waived, enlarged or diminished by, any act or omission of the parties, neither can it be conferred by the acquiescence of the court. Corporation by estoppel is founded on principles of equity and is designed to prevent injustice and unfairness. [19] It applies when persons assume to form a corporation and exercise corporate functions and enter into business relations with third persons. Where there is no third person involved and the conflict arises only among those assuming the form of a corporation, who therefore know that it has not been registered, there is no corporation by estoppel. (aa) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; (bb) That property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, has been obtained by their joint efforts, work or industry.
The same with the relationships without benefit of marriage. (cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquired property through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal. (dd) That if the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: 1. A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage; 2. A child born after one hundred eighty days following the celebration of the subsequent manage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage.
relate with article 168 of the Family Code. (ee) That a thing once proved to exist continues as long as is usual with things of that nature;
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law on evidence PRESUMPITON OF CONTINUITY OF EXISTENCE (ff) That the law has been obeyed; (gg) That a printed or published book, purporting to be printed or published by public authority, was so printed or published; (hh) That a printed or published book, purporting to contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases; (ii) That a trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest; (jj) That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and age of the sexes, according to the following rules: 1. If both were under the age of fifteen years, the older is deemed to have survived; 2. If both were above the age of sixty, the younger is deemed to have survived; 3. If one is under fifteen and the other above sixty, the former is deemed to have survived; 4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived; if the sex be the same, the older; 5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived.
(kk) That if there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall be considered to have died at the same time. Counterpart: article 43 of the Civil Code: Article 43. If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other. SEC. 4. No presumption of legitimacy or illegitimacy. — There is no presumption of legitimacy or illegitimacy of a child born after three hundred days following the dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation.
RULE 132 Presentation of Evidence
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law on evidence A. EXAMINATION OF WITNESSES SECTION 1. Examination to be done in open court. — The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. REQUIREMETNS Three requriemetns: 1. That the examination be done in open court; 2. Under oath and affirmation and 3. Examination is to be answered by the witness and shall be given orally. EXAMINAITON IN OPEN COURT Affidavits are generally admissible as testimony and the affiant himself is not required in court to testify. In these cases would actually say that it is hearsay. Any written testimony in the form of written afficavit is hearsay because there is no opportutnity to crossexamine. The rationale that examination be doen in open court is wrespect for ht accused constitutional right of Confrontation or to meet the witness face to face with specific reference to specific cases, to safeguard his right under section 1 and 2 of Rule 132 PEOPLE V. SERVANO July 17, 2003 Vitug, Dissenting opinion Section 1, Rule 132, of the Rules of Court provides that the “examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation,” and that, unless “the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally.” The reason for the requirement obviously is to enable the court to judge the credibility of the witness by the manner he testifies, by his intelligence, and by his appearance. [18] It is unquestionably the safest and most satisfactory method of investigating facts, and affords the greatest protection to the rights of the individual. [19] Section 1, Rule 133, of the Rules of Court requires that in determining the preponderance or superior weight of evidence on the issues involved, the court may, among other things, consider the “witnesses’ manner of testifying” which can only be done if the witnesses give their testimony orally and in open court. A sworn statement is not a substitute for testimony given at and during the trial. The demeanor of a witness at the stand and in responding to questions is a matter that can prove to be invaluable in determining the credibility of the witness. The trial court must have the full opportunity to observe the behavior of the witness in all the declarations that can be significant to the case, its outcome and in decreeing judgment. It is not enough that the affiant broadly confirms the contents of the extrajudicial statement. Wigmore, an eminent authority on the rules on evidence, has said: “No one has ever doubted that the former testimony of a witness cannot be used if the witness is still available for the purpose of testifying at the present trial.” [20] Truly, it is well-entrenched that the findings of the trial court bear great weight because of the vantage point it enjoys in scrutinizing the deportment of the affiant-witness; each twitch of the witnesses’ muscle, the blink of the eyes, the sweating palms, or the rise and fall of the voice, as well as the varied change in behavior, could well spell the difference between truth and falsehood, and determine whether the witness can be relied on or not. EXCEPTIONS TO THE RULE
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law on evidence Where there is no examination in open court: Rule in examination of Child Witness (Section 8) SEC. 8. Examination of a child witness.— The examination of a child witness presented in a hearing or any proceeding shall be done in open court. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. The party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow him to testify in the manner provided in this Rule. WHAT ARE ALLOWED? 1. By live television (section 25) 2. Video-taped deposition (section 27)-- SEC. 27. Videotaped deposition.—(a) The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be taken of the testimony of the child and that it be recorded and preserved on videotape. Before the guardian ad litem applies for an order under this section, he shall consult with the prosecutor or counsel subject to the second and third paragraphs of section 25(a). (b) If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape. 3. SEC. 29. Admissibility of videotaped and audiotaped in-depth investigative or disclosure interviews in child abuse cases. 4. When the child is dead or otherwise unavailable. SEEMING EXCEPTION UNDER DEPOSITIONS However, there seems to be an exception also under DEPOSITIONS. SAN LUIS V. ROJAS G.R. No. 159127 Depositions are chiefly a mode of discovery. They are intended as a means to compel disclosure of facts resting in the knowledge of a party or other person which are relevant in some suit or proceeding in court. Depositions, and the other modes of discovery (interrogatories to parties; requests for admission by adverse party; production or inspection of documents or things; physical and mental examination of persons) are meant to enable a party to learn all the material and relevant facts, not only known to him and his witnesses but also those known to the adverse party and the latter's own witnesses. In fine, the object of discovery is to make it possible for all the parties to a case to learn all the material and relevant facts, from whoever may have knowledge thereof, to the end that their pleadings or motions may not suffer from inadequacy of factual foundation, and all the relevant facts may be clearly and completely laid before the Court, without omission or suppression. Depositions are principally made available by law to the parties as a means of informing themselves of all the relevant facts; they are not therefore generally meant to be a substitute for the actual testimony in open court of a party or witness. The deponent must as a rule be presented for oral examination in open court at the trial or hearing. This is a requirement of the rules of evidence. Section 1, Rule 132 of the Rules of Court provides: "SECTION 1. Examination to be done in open court. — The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally."
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law on evidence
Indeed, any deposition offered to prove the facts therein set out during a trial or hearing, in lieu of the actual oral testimony of the deponent in open court, may be opposed and excluded on the ground that it is hearsay: the party against whom it is offered has no opportunity to cross-examine the deponent at the time that his testimony is offered. It matters not that opportunity for cross-examination was afforded during the taking of the deposition; for normally, the opportunity for cross-examination must be accorded a party at the time that the testimonial evidence is actually presented against him during the trial or hearing. However, depositions may be used without the deponent being actually called to the witness stand by the proponent, under certain conditions and for certain limited purposes. These exceptional situations are governed by Section 4, Rule 24[24] of the Rules of Court. SEC 4. Use of depositions. — At the trial or upon the hearing of a motion of an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any of the following provisions: (a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness; (b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose; (c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness if out of the province and at a greater distance than fifty [25] (50) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (3) that the witness is unable to attend to testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; (d) If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the party introduced, and any party may introduce any other parts. The principle conceding admissibility to a deposition when the deponent is dead, out of the Philippines, or otherwise unable to come to court to testify, is consistent with another rule of evidence, found in Section 47, Rule 132 of the Rules of Court. SEC. 47.Testimony or deposition at a former proceeding. — The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to crossexamine him." It is apparent then that the deposition of any person may be taken wherever he may be, in the Philippines or abroad. If the party or witness is in the Philippines, his deposition
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law on evidence "shall be taken before any judge, municipal or notary public" (Sec. 10, Rule 24, Rules of Court). If in a foreign state or country, the deposition "shall be taken: (a) on notice before a secretary or embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines, or (b) before such person or officer as may be appointed by commission or under letters rogatory" (Sec. 11, Rule 24). Leave of court is not necessary where the deposition is to be taken before "a secretary or embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines," and the defendant's answer has already been served (Sec. 1, Rule 24). After answer, whether the deposition-taking is to be accomplished within the Philippines or outside, the law does not authorize or contemplate any intervention by the court in the process, all that is required being that "reasonable notice" be given "in writing to every other party to the action . . (stating) the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs . . . "(Sec. 15, Rule 24). The court intervenes in the process only if a party moves (1) to "enlarge or shorten the time" stated in the notice (id.), or (2) "upon notice and for good cause shown," to prevent the deposition-taking, or impose conditions therefor, e.g., that "certain matters shall not be inquired into" or that the taking be "held with no one present except the parties to the action and their officers or counsel," etc. (Sec. 16, Rule 24), or (3) to terminate the process on motion and upon a showing that "it is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party" (Sec 18, Rule 24). 2ND REQUIREMENT: OATH AND AFFIRMATION This has been discussed under the qualifications of the witness 3rd REQUIREMENT: ANSWERS OF WITNESS MUST BE GIVEN ORALLY EXCEPTIONS 1. WHERE THE WITNESS IS INCAPACITATED TO SPEAK OR IS DEAF-MUTE, in which case, the testimony can be done in sign language or with the aid of an interpreter or have the witness write the answer on a portable white board or may be illustrated or demonstrated by pictures. 2. IF THE QUESTION CALLS FOR A DIFFERENT ANSWER SUCH AS WHEN ANSWER CALLS FOR A SPECIFIC GESTURE OR ACTION—for example, gesture when there is grave threat or when witness sis asked by the court to identify the specific part of the body which has been injured by the act of the defendant. APPLICATION UNDER THE SUMMARY PROCEDURE
The Rules apply to Summary Procedure but in a modified form, since in Summary Procedure the testimonies of the witnesses, (in civil cases) will be reduced into writing in the form of affidavit. Hence, there is no direct, cross, re-cross or re-direct examination. Affiant is not allowed in Summary Procedure to embody hearsay testimony. In criminal cases under Summary Procedure, the affidavits of the witnesses take the place of the direct examination. There is cross examination of the same. The witness cannot also testify in narrative form. It has to be in a logical question and answer format. For practical purposes, 1 question, 1 fact.
SEC. 2. Proceedings to be recorded.— The entire proceedings of a trial or hearing,
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law on evidence including the questions propounded to a witness and his answers thereto, the statements made by the judge or any of the parties, counsel, or witnesses with reference to the case, shall be recorded by means of shorthand or stenotype or by other means of recording found suitable by the court. A transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder and certified as correct by him shall be deemed prima facie a correct statement of such proceedings. PRESUMPITON OF REGULAIRTY OF STENOGRAPHIC NOTES “deemed prima facie correct statement of such proceedings”—this relates to presumptions. The PRESUMPITON OF REGULAIRTY OF STENOGRAPHIC NOTES. What is the effect of this presumption? The effect is that whatever is written in the TSN, that whatever happened during the direct testimony or direct exam of that witness, mao na iyang giingon. But the problem sometimes is that dili tanan makuha especially so if the witness talks very fast. What is your remedy if you were mistranscribed? FILE MOTION TO CORRECT TSN and have it corrected. The problem is there are too many errors and the court might not pay attention to your motion. USE OF TRANSCRIPT AS EVIDENCE Yes, it can be used as evidence since it is an official document. You can use it in the same case or in another case. when you present it, do you have to bring with you the stenographer to testify as to the notes he made? NO. it is covered under the exceptions of the hearsay rule. It is one made as an official record made in the performance of the duties a public officer. FULLERO V. PEOPLE September 12, 2007 Section 36, Rule 130 of the Revised Rules on Evidence, states that a witness can testify only to those facts which he knows of or comes from his personal knowledge, that is, which are derived from his perception. A witness, therefore, may not testify as to what he merely learned from others either because he was told, or he read or heard the same. Such testimony is considered hearsay and may not be received as proof of the truth of what he has learned.[57] This is known as the hearsay rule. The law, however, provides for specific exceptions to the hearsay rule. One of the exceptions is the entries in official records made in the performance of duty by a public officer.[58] In other words, official entries are admissible in evidence regardless of whether the officer or person who made them was presented and testified in court, since these entries are considered prima facieevidence of the facts stated therein. Other recognized reasons for this exception are necessity and trustworthiness. The necessity consists in the inconvenience and difficulty of requiring the official’s attendance as a witness to testify to innumerable transactions in the course of his duty. This will also unduly hamper public business. The trustworthiness consists in the presumption of regularity of performance of official duty by a public officer. SEC. 3. Rights and obligations of a witness. — A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness: 1. To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor;
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law on evidence 2. Not to be detained longer than the interests of justice require; 3. Not to be examined except only as to matters pertinent to the issue; 4. Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or 5. Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. RIGHT AGAINST SELF-INCRIMINATION “A witness “must” answer questions even if it will tend to establish a claim against you.” It is a positive command. How is this reconciled with the right against self-incrimination? If a question calls for an incriminatory answer form the witness, it may be objected to. This rule applies to criminal cases but NOT in civil cases. Hence, when a question tends to establish a civil claim against he witness, he cannot refuse to answer the question. But if it’s a criminal incrimination, we will go back to that in number 4. But that word “claim” refers to civil cases. CASE: Supposing a witness refused to answer because he feels the question is incriminatory. However, the court directs the witness to give an answer and the witness obeys the order of the court. Later on the answer turns out to be incriminatory and later on the witness was indicted for the commission of this offense, can his testimony in court be given in evidence against him in the form of an admission? ANSWER: NO, because the witness has initially objected and he gave the answer only in compliance with an order of the court. According to some decisions that could be treated as a compelled testimony given under duress and therefore could not be used against the witness. To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; This may come from the protection needed from the conduct of parties, lawyers and even the judge. This safeguard appears in a greater form when you look at the examination of child witness. Not to be detained longer than the interests of justice require; There are a lot of things that had been devised to combat that. an example would be the need to sate in the pre-trial brief how long will the witness will take the witness stand. This does not mean to be imprisoned. This merely refers to that restriction as to time when you are testifying as a witness in court. Generally, this is also a safeguard against repetitive questions where point has already been made. What can be your objections? (1) objection due to repetitive questions and the witness is detained longer than the interest of justice require and (2) the question had already been answered. Not to be examined except only as to matters pertinent to the issue; When the witness is examined on matters not pertinent toteh issue, the objection can be raised on 2 grounds: 1. The specific ground under this provision: not to be examined on mattes nto pertitnet to the issue or 2. To the general ground that the question is either immaterial or irrelevant to the fact in issue. Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or This is now the safeguard against SELF-INCRIMINATION. The first paragraph (opening paragraph) is the one tht would compel you to answer question even if it may establish a claim against you and this provision is the one that is counterpart in the CRIMINAL CASES. The exception here also has exceptions.
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law on evidence
EXCEPTIONS TO RULE AGAINST SELF-INCRIMINATION 1. Use Immunity- the witness will still be indicted for the commission of an offense, but the statements given by the witness cannot be used against him. He is not immunized from prosecution. 2. Transactional Immunity- There is absolute immunity, both to prosecution and use of the statements given by the witness. Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense An example would be the case of declaration of nullity of marriage d/t psychological incapacity. Sir shares about his case of asking about ‘sexual promiscuity’ of the party. Exceptions under this provision: 1. If it be the very fact at issue or 2. To a fact from which the fact in issue would be presumed or 3. To the fact of his previous final conviction for an offense SEC. 4. Order in the examination of an individual witness.— The order in which an individual witness may be examined is as follows: (a) Direct examination by the proponent; (b) Cross-examination by the opponent; (c) Re-direct examination by the proponent; (d) Re-cross-examination by the opponent. DEFINITION OF TERMS proponent-he is the one who presents you so you could testify Opponent—one who will rebut and say that you are not a credible witness SEC. 5. Direct examination.— Direct examination is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. DIRECT EXAMIATNION It is the Examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. ‘examination in chief”—there is no other way of examining a witness but by direct exmiantion. ‘party presenting him”—the one who will conduct the examination About what?—about facts relevant to the issue. Otherwise, that testimony may be objected to on the ground that it is irrelevant. SEC. 6. Cross-examination; its purpose and extent.— Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue.
CROSS-EXAMINATION - When conducted: upon termination of direct examination - Matters covered: witness may be cross-examined by the adverse party as to – = Any matters stated in the direct examination, or connected therewith, with sufficient
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law on evidence fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and = To elicit all important facts bearing upon the issue. Implied waiver of cross-examination – The party was given the opportunity Dela Paz vs. IAC (1987) TWO RULES ON LIMITS OF CROSS EXAMINATION 1. English Rule- where a witness is called to testify to a particular fact, he becomes a witness for all purposes and may be fully cross-examined upon all matters material to the issue, the examination not being confined to the matters inquired about in the direct examination. 2. American Rule- restricts cross-examination to facts and circumstances which are connected with the matters that have been stated in the direct examination of the witness. (applies when witness is the accused in a criminal case; and when witness is hostile or adverse party witness) NOTE: Section 6 is actually the provision that gives examiners sufficient leeway in examining witnesses because for as long as it can be reasonably related to the fat in issue or in any one of those facts connected to it. It does not have to be limited to what is stated in the direct examination. NATURE OF THE RIGHT TO CROSS-EXAMINE DELA PAZ V. IAC G.R. No. 71537 September 17, 1987 The right of a party to confront and cross-examine opposing witnesses in a judicial litigation, be it criminal or civil in nature, or in proceedings before administrative tribunals with quasi-judicial powers, is a fundamental right which is part of due process. (Savory Luncheonette v. Lakas ng Manggagawang Pilipino, et al., 1975, 62 SCRA 258). xxx xxx xxx The right of a party to cross-examine the witness of his adversary in invaluable as it is inviolable in civil cases, no less than the right of the accused in criminal cases. The express recognition of such right of the accused in the Constitution does not render the right thereto of parties in civil cases less constitutionally based, for it is an indispensable part of the due process guaranteed by the fundamental law. ... Until such cross-examination has been finished, the testimony of the witness cannot be considered as complete and may not, therefore, be allowed to form part of the evidence to be considered by the court in deciding the case. (Bacrach Motor Co., Inc., v. Court of Industrial Relations, 86 SCRA 27 citing Savory Luncheonette v. Lakas ng Manggagawang Pilipino, et al., supra, Ortigas, Jr. vs. Lufthansa German Airlines, 64 SCRA 610) But we have also ruled that it is not an absolute right which a party can demand at all times. This Court has stated that: xxx xxx xxx the right is a personal one which may be waived expressly or impliedly by conduct amounting to a renunciation of the right of cross-examination. Thus, where a party has had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness will be received or allowed to remain in the record. The conduct of a party which may be construed as an implied waiver of the right to cross-examine may take various forms. But the common basic principle
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law on evidence underlying the application of the rule on implied waiver is that the party was given the opportunity to confront and cross-examine an opposing witness but failed to take advantage of it for reasons attributable to himself alone. xxx xxx xxx The case of the herein petitioner, Savory Luncheonette, easily falls within the confines of the jurisprudence given above. Private respondents through their counsel, Atty. Amante, were given not only one but five opportunities to crossexamine the witness, Atty. Morabe, but despite the warnings and admonitions of respondent court for Atty. Amante to conduct the cross-examination or else it will be deemed waived, and despite the readiness, willingness and insistence of the witness that he be cross-examined, said counsel by his repeated absence and/or unpreparedness failed to do so until death sealed the witness' lips forever. By such repeated absence and lack of preparation on the part of the counsel of private respondents, the latter lost their right to examine the witness, Atty. Morabe, and they alone must suffer the consequences. The mere fact that the witness died after giving his direct testimony is no ground in itself for excluding his testimony from the record so long as the adverse party was afforded an adequate opportunity for cross-examination but through fault of his own failed to cross-examine the witness. (Savory Luncheonette v. Lakas ng Manggagawang Pilipino,supra; at pp. 263-267) EFFECT OF LACK OF CROSS-EXAMINAITON There was direct examination but there was no cross examination The remedy is to STRIKE OFF the testimony of the witness. Why? Because it is hearsay . A motion to strike is an order issued by the court to order the removal of all or part of the opposing party’s pleading or testimony in court. A motion to strike is to be used to request elimination of all or part of a trial witness’ testimony. INSTANCES WHERE TESTIMONY STILL ADMISSIBLE DESPITE LACK OF CROSSEXAMINAITON Exceptions: 1. If cross-examination is made or 2. Waiver, express or implied –for example, you say in open court “we waive our right to cross-examine”. Then that is express waiver. DELA PAZ V. IAC G.R. No. 71537 September 17, 1987 But we have also ruled that it is not an absolute right which a party can demand at all times. This Court has stated that: xxx xxx xxx the right is a personal one which may be waived expressly or impliedly by conduct amounting to a renunciation of the right of cross-examination. Thus, where a party has had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to crossexamine and the testimony given on direct examination of the witness will be received or allowed to remain in the record. The conduct of a party which may be construed as an implied waiver of the right to cross-examine may take various forms. But the common basic principle underlying the application of the rule on implied waiver is that the party was given the opportunity to confront and cross-examine an opposing witness but failed to take advantage of it for reasons attributable to himself alone.
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law on evidence xxx xxx xxx The case of the herein petitioner, Savory Luncheonette, easily falls within the confines of the jurisprudence given above. Private respondents through their counsel, Atty. Amante, were given not only one but five opportunities to cross-examine the witness, Atty. Morabe, but despite the warnings and admonitions of respondent court for Atty. Amante to conduct the cross-examination or else it will be deemed waived, and despite the readiness, willingness and insistence of the witness that he be cross-examined, said counsel by his repeated absence and/or unpreparedness failed to do so until death sealed the witness' lips forever. By such repeated absence and lack of preparation on the part of the counsel of private respondents, the latter lost their right to examine the witness, Atty. Morabe, and they alone must suffer the consequences. The mere fact that the witness died after giving his direct testimony is no ground in itself for excluding his testimony from the record so long as the adverse party was afforded an adequate opportunity for crossexamination but through fault of his own failed to cross-examine the witness. (Savory Luncheonette v. Lakas ng Manggagawang Pilipino,supra; at pp. 263-267) In the case at bar, the petitioners' failure to cross-examine Loreto was through no fault of the respondents. As can be gleaned from the record, Loreto was available for cross-examination from the time she finished her direct testimony on March 12, 1984 to November 7, 1984, the last scheduled hearing of the case before her death on December 1, 1984. The petitioners not only kept on postponing the cross-examination but at times failed to appear during scheduled hearings. The postponement of the trial on May 23, 1984 to a later date duet o the correction of the stenographic notes of Loreto's testimony may be justified, but the same cannot be said for the subsequent posponements requested by the petitioners. The scheduled trials before November 7, 1984, did not push through, because of the petitioners' fault. It may also be recalled that at the scheduled hearing on September 14, 1984 neither the petitioners nor their counsel appeared leading to the presentation of evidence ex parte. And also during the scheduled hearing on September 18, 1984, when the petitioners were allowed to cross-examine Loreto despite the fact that the case was already deemed submitted for decision, the petitioners again failed to appear. Under these circumstances, we rule that the petitioners had waived their right to cross-examine Loreto. Through their own fault, they lost their right to cross-examine Loreto. Her testimony stands. FAILURE TO CROSS-EXAMINE DUE TO DEATH OR INCAPACITY OF WITNESS NOTE: When we talk about waiver, it usually talks about a cause that is attributable to a party. The opponent or the adversary is not dong the cross-examination. Now what if the cause for the failure to cross=examine is not because either of the collision or default or the adverse party. for example, FORTUITOUS EVENT such as earthquake and the witness died? What happens when failure to cross-examine was due to the subsequent incapacity or death of the witness? To my mind, it depends upon the reason why there was failure to conduct subsequent cross-examination after the direct examination.
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law on evidence 1. If cross-examination was deferred at the instance of the PROPONENT, or the witness he presents then the testimony on direct examination should be stricken because the failure to cross-examine was not due to causes attributable to the opponent. 2. If the deferment of the cross examination was due to the instance of the COURT for i.e. lack of material time the testimony on direct examination of the witness must again be stricken because the cause for failure to cross-examine was due to a cause not attributable to the opponent. 3. However, if the deferment was due to a cause attributable to OPPONENT or the party who is supposed to cross-examine, then the testimony on direct examination would stand and may be used by the court in consideration of the controversy and susceptible to any motion to strike. In this case, the conduct of the opponent himself amounts to a waiver. TRICKS OF THE TRADE: It is possible that the case will drag on for a long time. The judge may get frustrated sometimes due to several postponements. What if during the court hearing, you are not prepared (referring to counsel) then the court will insist to continue with the direct examination and cross-examination –you tell the judge that you move on with the direct examination but DEFER the cross-examination and take the risk if subsequently, cross-examination won’t be possible due to the death or incapacity of the witness to testify. WHAT WILL NOW BE THE BASIS OF YOUR CROSS-EXAMINATION? The basis for the crossexamination will be the TRANSCRIPT of Stenographic notes. Most especially If the reasons for deferment are valid, you have time to think about the questions to ask by just taking a look at the TSN. But remember, when you cause the deferment of the cross-examination at a later date, the lawyer of the other party will also be able to take a look at the case and of your possible objections, questions. DOCTRINE OF INCOMPLETE TESTIMONY: When cross examination cannot be done or completed due to causes attributable to the party who offered the witness, the incomplete testimony is rendered incompetent and should be stricken from the record. Except: where the prosecution witness was extensively cross-examined on the material points and thereafter failed to appear and cannot be produced despite a warrant for his arrest. (People v. GOrospe, GR 51513, May 15, 1984) Section 7. Re-direct examination; its purpose and extent. — After the cross-examination of the witness has been concluded, he may be re-examined by the party calling him, to explain or supplement his answers given during the cross-examination. On re-directexamination, questions on matters not dealt with during the cross-examination, may be allowed by the court in its discretion. My question is unsa ni sya, English rule or American rule? Is it a rule that gives leeway to the examiner or does it limit? If we look at Section7, it appears that there’s a limit. Why? Because the purpose of redirect is for explaining or supplementing answers given during the crossexamination. So if you asked a question that does not relate whatsoever to the cross-examination of the opponent, it is not covered. It can be objected on the ground that is it not covered by the cross examination. However, if you look at the last sentence, On re-direct-examination, questions on matters not dealt with during the cross-examination, may be allowed by the court in its discretion. So mura gihapon ug walay limit kay ang court still has the discretion. To my mind, dapat wala na ng last sentence. Why? Because if you are a lawyer what you need to remember is, tanan facts should have been stated already in the direct charge. You already have a chance. So upon cross examination, nakahunahuna ka, tama naa ko nalimtan! You cannot do that, dapat during direct
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law on evidence examination. That’s the reason the law limits it to explaining or supplementing answers given during the cross examination. But the intention of the law is it may be allowed upon discretion of the court. Section 8. Re-cross-examination. — Upon the conclusion of the re-direct examination, the adverse party may re-cross-examine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion. LIMITAITON There’s a limitation again. You can only recross on matters stated in the redirect and also on matters allowed by the court in its discretion. Again there’s that leeway. But to my mind, that’s understandable under Section8 because again if you’re in recrossexamination, you’re the one given sufficient fullness on the credibility of the witness. Ok lang ni siya. But section7 to my mind is not ok. You are only given one chance to get all the facts important to the case and that is with respect to direct examination. That is just how I see it; I’m not saying that that is the rule. Section 9. Recalling witness. — After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require. RECALLING WITNESS So di ka pwde magpatawag ug witness ug balik kay nahuman naman na siya, na discharge na siya. After the redirect examination is finished, the judge will say the witness is excused. What do you mean by that? The witness is discharged. He can go back lying. He cannot be under oath forever. As a general rule, di na siya tawagon pag-usab as witness. Of course the proponent has the duty to enter all the facts relevant to his case at the time the witness is called. But what if naa jud kulang? Well, section 9 can apply to that. The witness may be recalled but only with leave of court. Why? Because not requiring leave of court before a witness can be recalled will actually be repugnant to the right not to be detained longer than the interest of justice. The court must be given the opportunity determine first whether or not the recall is unnecessary or merely fictitious. Remember when you do that you are calling him as your witness, who is the proponent? The original opponent. What do you call that witness? A hostile witness. LEADING QUESTION During direct examination you are not allowed to ask leading questions. In redirect examination also you are not allowed to ask leading questions. Unsa manang leading question? It is a question which already projects the answer desired by the lawyer. Example: so you were there at the time of the commission of the offense? Answerable by yes or no. You are already suggesting. The correct question would be: where were you at the time the offense was committed? So W (who, what when, where, why) questions and how. But if the witness is already considered hostile or if you are calling the adverse party as your witness, you are allowed to ask leading questions even during direct examination. PEOPLE V. RIVERA AUGUST 16, 1991
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law on evidence
But obviously that discretion may not be exercised in a vacuum, as it were, entirely, isolated from a particular set of attendant circumstances. The discretion to recall a witness is not properly invoked or exercisable by an applicant's mere general statement that there is a need to recall a witness "in the interest of justice," or "in order to afford a party full opportunity to present his case," or that, as here, "there seems to be many points and questions that should have been asked" in the earlier interrogation. To regard expressed generalities such as these as sufficient ground for recall of witnesses would make the recall of witness no longer discretionary but ministerial. Something more than the bare assertion of the need to propound additional questions is essential before the Court's discretion may rightfully be exercised to grant or deny recall. There must be a satisfactory showing of some concrete, substantial ground for the recall. There must be a satisfactory showing on the movant's part, for instance, that particularly identified material points were not covered in the cross-examination, or that particularly described vital documents were not presented to the witness whose recall is prayed for, or that the cross-examination was conducted in so inept a manner as to result in a virtual absence thereof. Absent such particulars, to repeat, there would be no foundation for a trial court to authorize the recall of any witness. WHO CAN ASK QUESTIONS DURING TRIAL Who can ask questions during trial? 1. Proponent – direct and redirect examination 2. Opponent – cross and recross examination 3. The judge. Only the judge, ayaw na apila ng mga sheriff etc. SCOPE OF JUDGE’S PARTICIPATION AT TRIAL: A judge who presides at a trial is not a mere referee. He must actively participate therein by directing counsel to the facts in dispute, by asking clarifying questions, and by showing an interest in a fast a fair trial. (Clarin v. Yatco, 56 O.G. 7042, Nov. 14, 1960) He can interrogate witnesses to elicit the truth, to obtain clarification, or to test their credibility. (People v Moreno, 83 Phil. 286) However, this power must be exercised by the court sparingly and judiciously. (People v. Ferrer, 44 O.G. 112). Of course, the judge cannot curtail counsel's right to interrogate witnesses. (People v. Bedia, 83 Phil. 909) There is no prohibition against the judge conducting the examination of the witness. The counsel may object to the questions propounded by the judge. If the court has the power to ask questions to the witness, the court also has the power to stop further evidence. Under rule 133 section 6 Section 6. Power of the court to stop further evidence. — The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution. 2 powers of the judge that should be exercise with caution: 1. Interrogating witness 2. To stop further evidence POWER OF COURT TO STOP FURTHER EVIDENCE
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The