2016 Law On Evidence Tsn - Second Exam (part 2 Of 2).pdf

LAW ON EVIDENCE August 17, 2016 INTERPRETATION OF DOCUMENTS Rule 130, 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. 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. 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 to 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. Rule 130, 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. HARMONY IS THE ULTIMATE GOAL According to Section 11, one has to harmonize provisions in a contract with each other. 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:

based on the lectures of ATTY. JESS ESPEJO

“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. HOME DEVELOPMENT MUTUAL FUND vs. COURT OF APPEALS G.R. No. 118972, April 3, 1998 HELD: 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.

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LAW ON EVIDENCE 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. 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. DOMINGO G.R. No. 158676, November 27, 2006

based on the lectures of ATTY. JESS ESPEJO

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. 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. LIGON vs. COURT OF APPEALS G.R. No. 84644, August 29, 1989 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)

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.” HELD: 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 sub-leasing 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.

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 (now Section 12), 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."

Rule 130, Section 12. Interpretation according to intention; general and particular provisions. - In the construction of an instrument, the 3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.

LAW ON EVIDENCE 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.

based on the lectures of ATTY. JESS ESPEJO

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. CASES TO READ: BANK OF COMMERCE vs. GOLDMAN FIELDER G.R. No. 191561, March 7, 2011 MARQUEZ vs. ESPEJO G.R. No. 168387, August 25, 2010 GUIDE QUESTIONS: 1.

2.

3.

CASES TO READ: CORTES vs. INTERMEDIATE APPELLATE COURT, ET AL. G.R. No. 73678, July 21, 1989 But see: GLOBAL HOLIDAY vs. METROBANK G.R. No. 184081, June 19, 2009 LICAROS vs. GATMAITAN G.R. No. 142838, August 9, 2001

In Goldman, what particular facts and circumstances supported the Supreme Court’s conclusion that the bank did not intend to issue a bank guaranty? In Marquez, how was Rule 130, Section 13, in relation to Articles 1370-71 of the Civil Code, used to determine the applicability of the Parol Evidence Rule? Also in Marquez, why did the Supreme Court hold that the Best Evidence Rule was inapplicable?

Rule 130, 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. ORDINARY MEANING IS PREFERRED

EQUITABLE PCI BANKING CORPORATION vs. RCBC CAPITAL CORPORATION G.R. No. 182248, December 18, 2008 GUIDE QUESTIONS: 1. 2. 3. 4. 5.

6.

In Cortes, what “specific intent” overrode what “general intent”? Why was the ruling in Cortes not applied in Global Holiday? In Licaros, how did the Supreme Court differentiate between conventional subrogation and a mere assignment of credit? In Licaros, from what specific facts did the Supreme Court determine the true intention of the parties to the contract? Explain how the Supreme Court applied Rule 130, Section 11, in relation to Article 1374 of the Civil Code, in finally determining the nature of the contractual relationship of the parties in Licaros? In Equitable, why did the Supreme Court rule that there was no need to rely on Sec. 12, Rule 130 despite the fact that two different provisions of the contract applied to the same subject matter?

Rule 130, 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.

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. SECURITY BANK vs. COURT OF APPEALS 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

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LAW ON EVIDENCE 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 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 coguards’ 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 nonrecovery 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. MORENO 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.:

based on the lectures of ATTY. JESS ESPEJO

term "indicative price." Under No. 6.1 of the General Bidding Procedures and Rules of respondent, "an indicative price is a ballpark 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. 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. Rule 130, 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. RATIONALE OF THE RULE

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

The rationale for this rule is that the written words are the latest expression of the will of the parties (DE LOS SANTOS vs. VIBAR, G.R. No. 150931, July 16, 2008). SALUDO, JR. vs. COURT OF APPEALS 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.

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

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."

RELATED PROVISION

CASES TO READ:

CASES TO READ:

DE LOS SANTOS vs. VIBAR G.R. No. 150931, July 16, 2008

ASTURIAS SUGAR CENTRAL vs. THE PURE CANE MOLASSES CO. 57 Phil. 519

JARQUE vs. SMITH, BELL AND CO. G.R. No. L-32986, November 11, 1930

ENRIQUEZ vs. A.S. WATSON & CO. LTD. G.R. No. L-7180, March 30, 1912

GUIDE QUESTIONS:

HORRIGAN vs. TROIKA COMMERCIAL G.R. No. 148411, November 29, 2005

1. 2. 3.

In Jarque, how did the Supreme Court apply the rule that written words control the printed? In Vibar, what printed and written words were inconsistent? Still in Vibar, what fact or facts did the Supreme Court consider in determining whether the petitioner De Los Santos was a guarantor of De Leon’s debt?

Rule 130, 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. DECIPHERING CHARACTERS AND UNDERSTANDING OBSCURE LANGUAGE 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 raise the same during trial, on cross-examination or even present his own expert or interpreter to rebut the same. Rule 130, 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. DIFFERENT INTERPRETATIONS 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. 2.

The interpretation which the other party believed and used will prevail; 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.

Article 1377 of the Civil Code provides: ART. 1377. The interpretation of obscure words or stipulations in a contract shall not favor the party who caused the obscurity.

GUIDE QUESTIONS: 1.

2. 3.

How did the Supreme Court interpret the term “obras” in Enriquez? What older incarnations of present rules of interpretation did the Supreme Court use to aid its interpretation? Explain the ambiguity that the Supreme Court interpreted in Horrigan. Still in Horrigan, how did the Supreme Court apply Rule 130, Section 17 and Article 1377 of the Civil Code?

Rule 130, 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. A natural right is one that exists by virtue of natural law. This rule is usually applicable to waivers and renunciations. Rule 130, Section 19. Interpretation according to usage. - An instrument may be construed according to usage, in order to determine its true character. 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.

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

If the words appear to be contrary to the evident intention of the parties, the latter shall prevail over the former.

evidence. Generally, therefore, documentary evidence prevails over testimonial evidence.

Art. 1371. In order to judge the intention of the contracting parties, their contemporaneous and subsequent acts shall be principally considered.

However, despite the testimonial evidence being the weakest in our judicial system in terms of hierarchy, it is important because all types of evidence must, in a sense, be sponsored by a witness. Without a witness, no evidence can ever be authenticated. The reason is simple. Being inanimate, a document or an object cannot speak for itself.

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. 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. 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. 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. 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. Art. 1377. The interpretation of obscure words or stipulations in a contract shall not favor the party who caused the obscurity. 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.

Recall that competent evidence means evidence that is not excluded by the law or rules. In other words, it refers to the eligibility of an evidence to be admitted by the court. When applied to a witness, competence means that the witness is qualified to take the stand and testify. It means that he is fit or eligible to testify on a particular matter in a judicial proceeding. Presumption in favor of competence of a witness As a general rule, a person who takes the stand as a witness is presumed to be qualified 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 incompetency are apparent. QUALIFICATION OF A WITNESS Rule 130, 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. Basic qualifications of a witness 1. 2. 3. 4.

Art. 1379. The principles of interpretation stated in Rule 123 of the Rules of Court shall likewise be observed in the construction of contracts. TESTIMONIAL EVIDENCE Testimonial or oral evidence is evidence elicited from the mouth of a witness as distinguished from real and documentary evidence. It is sometimes called viva voce evidence which literally means “living voice” or by word of mouth. In this kind of evidence, a human being is called to the stand, is asked questions, and answers the questions asked of him. The person who gives the testimony is called a “witness”. In the hierarchy of evidence, it is considered the weakest because it is the most prone to fabrication. GSIS vs. COURT OF APPEALS Testimonial evidence is easy of fabrication and there is very little room for choice between testimonial evidence and documentary

Can perceive; In perceiving, can make known his perception to others; He must take either an oath or an affirmation; and (Section 1, Rule 132) He must not possess any of the disqualifications imposed by law or the Rules.

Ability to perceive (Capacity of Perception) A witness must be able to perceive an event. Corollary to this capacity to perceive is the requirement that the witness must have personal knowledge of the facts surrounding the subject matter of his testimony. Without this personal knowledge, the witness lacks the competence to testify. Ability to make known his perception to others This ability involves two important factors: 1. 2.

Capacity of Recollection Capacity of Communication PEOPLE vs. TUANGCO

The Supreme Court discussed the competence of deaf-mute witnesses. Deaf-mutes are competent witnesses where they:

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LAW ON EVIDENCE (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. Oath or affirmation The willingness to take an oath or affirmation is an essential qualification of a witness. No court would allow the testimony of someone who desires to testify but refuses to swear or make an affirmation.

based on the lectures of ATTY. JESS ESPEJO

not disqualified by the Rules of Court on that ground alone. The Supreme Court held that it should not to be lightly supposed that relatives would callously violate their conscience, e.g. in a case of murder, to avenge the death of their loved one by blaming it on persons whom they believe to be innocent. Atty JZE: Again, with respect to admissibility, it is okay. But with respect to credibility, not necessarily. It depends on the weight given by the court. Conviction of a crime (unless otherwise provided by law)

The oath of a witness signifies that he is swearing to the Creator “to tell the truth, the whole truth, and nothing but the truth, so help me God” and that if he does not, he will later on answer for all the lies he is guilty of (perjury or false testimony).

Mere pendency of a criminal case does not disqualify a witness from testifying. Moreover, in case of conviction, a convict will not be stripped of his ability to perceive and to communicate his perception to others just because he is convicted.

What if the witness does not believe in God, in that he cannot, in good conscience, utter the words “so help me God”? That is when an affirmation comes into play.

PEOPLE vs. TANEO (1993)

In affirmation, the witness affirms by uttering the statement “I hereby affirm that everything I am going to testify on is the truth, the whole truth, and nothing but the truth.”

The fact that the witnesses have been convicted does not affect their believability. 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.

The law, therefore, does not distinguish between a witness who believes in God and a witness who is an atheist. Competence vs. Credibility of a witness Competency of a witness has reference to the basic qualifications of a witness as his capacity to perceive and communicate his perception to others. It also includes the absence of any of the disqualifications imposed upon a witness. Credibility of a witness refers to the believability of a witness and has nothing to do with the law or the rules. It refers to the weight and trustworthiness or reliability of the testimony. In deciding the competence of a witness, the court will not inquire into the trustworthiness of a witness. Accordingly, a prevaricating witness or one who has given contradicting testimonies is still a competent witness. x x x 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. x x x Religious or political belief Q: Is it not a fact that one’s religious or political belief may prejudice another who has an adverse belief, if the former testifies against the latter? Don’t you think that the bias that it creates should be a ground for disqualification? A: Not really. Bias is not even a basis for declaring a witness incompetent to testify. (US vs. Pachecho) And besides, a fabricated testimony can be revealed by a skillful cross-examination.

PEOPLE vs. DE LEON (1995) An accused is being prosecuted for murder and the witness for the prosecution is also a murderer. The defense questions the credibility of the witness-murderer. The defense counsel also raises the fact that his client is merely charged with murder and is pending investigation but the witness who will testify against the accused has already been convicted of murder, thereby creating a doubt as to his qualification as a witness. Is the defense counsel correct? No. 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. Unless otherwise provided by law Art. 821, Civil Code. The following are disqualified from being witnesses to a will: (1) Any person not domiciled in the Philippines; (2) Those who have been convicted of falsification of a document, perjury or false testimony. Other examples not falling squarely with Section 20 1.

Is a party declared in default disqualified to testify as a witness? CAVILI vs. FLORENDO (1987)

PEOPLE vs. BONIAO (1993)

FACTS: A filed a complaint against B and C. B failed to file an answer and so, he was subsequently declared in default after A's motion. However, C, who is B’s co-defendant, employed B as his witness. A objected on the ground that B has already lost all his standing to participate in the trial because he has been declared in default. In effect, as A contended, B can no longer be called as a witness.

Relationship does not by itself preclude the trier of facts to believe testimony or to impair credibility of the witnesses. Witnesses are

ISSUE: Is a party declared in default disqualified to testify as a witness?

Interest in the outcome of the case

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

1. HELD: No. There is no provision of the Rules disqualifying parties declared in default from taking the witness stand for nondisqualified parties. The law does not provide default as a disqualification. The specific enumeration of disqualified witnesses excludes the operation of causes of disability other than those mentioned in the Rules. It is a maxim of recognized utility and merit in the construction of statutes that an express exception, exemption, or saving clause excludes other exceptions.

2.

The person must be incapable of intelligently making known his perception to others; and His incapability must exist at the time of his production for examination.

Section 21 (a) establishes the rule that the mental incapacity of a witness at the time of his perception of the events subject of the testimony does not affect his competency as long as he is competent at the time he is produced for examination to make known his perception to others.

Rationale: 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.

The test is simple: Is the mental condition of the proposed witness at the time he is called to testify is such that he is incapable of intelligently making known his perception to others? The answer to this question will determine whether or not a person is a mentally competent witness.

2.

Examples:

Is drunkenness a ground to disqualify a witness? No. PEOPLE vs. MELENDRES (2003)

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. Atty JZE: What you need to remember here is that the mere fact that the witness is drunk does not necessarily result to his disqualification. A witness only needs to be responsive to the questions and he should be able to give sufficiently intelligent answers. Disqualification by reason of mental incapacity or immaturity Rule 130, 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.

An insane person cannot be called to testify, as a general rule, because he has a different perception of reality. However, by way of exception, he may be called to testify during his lucid interval. A mental retardate is not per se disqualified from being a witness, because a mental retardate still has the ability to make known his perception to others. A mental retardate is not, by reason of such handicap alone, disqualified from testifying in court. One who has been diagnosed with poor memory is likewise not disqualified as a witness unless his condition affects his ability to make known his perception to others. Immaturity To be disqualified as a witness by reason of immaturity, the following must concur: 1. 2.

The mental maturity of the witness must render him incapable of perceiving the facts respecting which he is examined. He is incapable of relating his perception truthfully.

Note that in disqualification by reason of mental incapacity under Section 21(a), the incompetence of the witness must exist, not at the time of his perception of the facts, but at the time he is produced for examination, and consists in his inability to intelligently make known what he has perceived. On the other hand, in disqualification by reason of immaturity, the incompetence of the witness must occur at the time he perceives the event including his incapability to relate his perceptions truthfully. PEOPLE vs. GALAS (1996) All persons who can perceive, and perceiving, can make their known perception to others, may be witnesses. Insofar as child witnesses are concerned, only those 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.

Mental incapacity To be disqualified as a witness by reason of mental incapacity, the following must concur:

Therefore, any child, regardless of age, can be a competent witness if he meets the following criteria: 1. Capacity of observation 2. Capacity of recollection

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LAW ON EVIDENCE 3. Capacity of communication The rule on disqualification by reason of immaturity must, however, be construed in relation to the Rule on Examination of a Child Witness. Child Witness A child witness is any person who, at the time of giving testimony, is below the age of eighteen (18) years. Presumption in favor of competence of a child witness Section 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. (Rule on Examination of a Child Witness) MARITAL DISQUALIFICATION RULE (SPOUSAL IMMUNITY) Rule 130, Section 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. The rule prohibiting testimony by one spouse against the other is based on society’s intent to preserve the marriage relations and promote domestic peace. This rule is also intended to discourage the commission of perjury. PEOPLE vs. FRANCISCO (1947) The specific reasons for the marital disqualification rule are as follows: 1. There is identity of interests between husband and wife; 2. If one were to testify for or against the other, there is a 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. Adverse or favorable testimony covered by the Rule The marital disqualification rule forbids the husband or the wife to testify for or against the other without the consent of the affected spouses, 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.

based on the lectures of ATTY. JESS ESPEJO

Furthermore, Section 22 requires not only a valid marriage but also the existence of such valid marriage at the moment the witnessspouse gives the testimony. So, it does not matter if the facts subject of the testimony occurred or came to the knowledge of the witnessspouse before the marriage. The affected spouse may still invoke the rule by objecting to the testimony as long as it is offered during the marriage. Hence, the rule does not prohibit a testimony for or against the other after the marriage is dissolved. One may now testify for or against the other despite an objection interposed by the latter because there is no more marriage to speak of. Illustration: Before the marriage of W to H, she witnessed the murder of X by H but she never reported what she witnessed to the authorities. A year after the murder, H and W married. Barely six months after the marriage, W became a battered wife and to get even with H, she decided to report the murder to the police. Q: May she testify against H over the latter’s objection even if the murder took place before the marriage? A: She cannot testify over the objection of H. The situation is covered by the marital disqualification rule. Q: Suppose a year after the marriage, the marriage is annulled, may W now testify despite the objection of H? A: She can now testify after the marriage is annulled. The prohibition no longer applies since the testimony is to be offered after, not during the marriage. Coverage of the testimony The testimony covered by the marital disqualification rule not only consists of utterances but also the production of documents. Witness-spouse need not be a party to the case The rule applies whether or not the witness-spouse is a party to the case but the other spouse must be a party. Can the marital disqualification rule be waived? Yes. The testimony is prohibited only over the objection of the affected spouse or the spouse against whom the testimony is offered. It goes without saying that the testimony is admissible where 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 and it may be done so impliedly or expressly. Exceptions to the marital disqualification rule 1. 2.

in a civil case by one against the other, or in a criminal case for a crime committed by one against the other, or the latter's direct descendants or ascendants

Valid marriage is essential

Note that in a criminal case, the exception does not cover a crime committed against the other spouse’s collateral relatives. This is only limited to direct descendants or ascendants.

In order that the husband or wife may claim the privilege, it is essential that they be validly married. The rule, therefore, does not cover common-law spouses and illicit cohabitation.

May an estranged spouse testify against the other?

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

ALVAREZ vs. RAMIREZ (2005)

August 26, 2016

FACTS: Susan Ramirez (respondent) is the complainant in a criminal case for arson of her house against the accused Maximo Alvarez (petitioner). Maximo is the estranged husband of Esperanza Alvarez, the sister of the respondent. At the time of the alleged arson committed by Maximo, Esperanza was living with her sister.

SURVIVORSHIP DISQUALIFICATION RULE

During trial, Esperanza was called to the witness stand to testify against her husband. Petitioner and his counsel raised no objection. In the course of Esperanza’s direct testimony against Maximo, the latter showed “uncontrolled emotions”, prompting the trial judge to suspend the proceedings. Subsequently, before the continuation of the testimony of his estranged wife, petitioner, through counsel, filed a motion to disqualify Esperanza from testifying against him.

Rule 130, Section 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. Also called: 1.

ISSUE: May an estranged spouse testify against the other spouse? HELD: Yes. The act of Maximo 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 of interests 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. 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. Atty JZE: If we are to apply the marital disqualification rule strictly, the prohibition would cover the testimony of an estranged spouse against the other because a separation de facto does not sever the marriage bonds and the spouses remain legally married to each other. A testimony under such a situation would still technically be a “testimony during their marriage.” However, in this case, the literal construction of the rule has been rejected by the Supreme Court because of the strained relations between the spouses. 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. Thus, the marital disqualification rule will not apply.

2.

3.

The Dead Man’s Statute [This rule is not a rule of procedural law, rather it is a rule of substantive law prior to the promulgation of the Rules of Court. This is actually a product of statute, not a product of rule-making by the SC.] Survivorship Disqualification Rule [This is the more appropriate appellation because that is what the rule really seeks—to disqualify a survivor.] Surviving Parties Rule

Review: Parol Evidence Rule Rule 130, 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 the written agreement if he puts in issue in his pleading: xxx The term “agreement” includes wills. Situation that can be covered by the PER: 



In Gerald’s will, there is a bequest of P200,000 to Matteo. During the probate of the will, Matteo claimed that Gerald told him that, in the event of Gerald’s death, Matteo will get P2 million. [The provision in the will gives a gift of P200,000 but there is information coming allegedly from the deceased himself that Matteo will be receiving P2 million, not P200,000.] Matteo cannot prove by extrinsic evidence that the bequest was P2 million and not P200,000. This is not allowed under the PER. Otherwise, there will be a lot of spurious claims against the estate of a deceased person. [And if you recall our discussion regarding PER, you cannot testify in court about facts that are not found in an agreement, in this case a will, if the effect of such testimony is to change, modify or add to the testamentary dispositions. Because If the rule was otherwise, I can simply go to any case or estate’s executor/administrator or any case for probate of the will that I have been promised by the testator a certain bequest of whatever amount of money or a particular type of property.]

Why is the Rule applied to wills? 3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.

LAW ON EVIDENCE 



The dangers sought to be avoided by the requirement of the rule is present in the making of wills and are deemed to be more prevalent inasmuch as the maker of a will, the decedent, can no longer object to attempts to vary his testamentary intent as his voice is already silenced by death. [Based on decisions by the SC, the reason behind the enactment of the PER would be the fact that his lips are already sealed by the death. You cannot therefore contradict what remains of his testamentary dispositions. There’s phrase “sealing of the lips” or “his voice is already silenced by death.”+

based on the lectures of ATTY. JESS ESPEJO



The rule applies only to a civil case or a special proceeding [with particular reference to the death of a person]. Example of special proceeding that has some implications: 1. where the estate of a deceased person is to be settled 2. if there is a will, cases for the probate of a will, or 3. in petitions for guardianship. The rule not only covers instances where the contracting party is dead but also covers instances where the contracting party becomes of unsound mind. And under Rule 92, that person is considered incompetent and a petition of guardianship over his person and his property may actually be instituted by the interested party. Thus, if it is a criminal case or an administrative proceeding, you do not apply the rule.





The situation under Section 23: 



 





 Matteo approaches Gerald to borrow P1 million to be paid in 2 months time. Without hesitation, Gerald gives Matteo the amount requested without any contract, receipt or any other written proof of the loan. [So the existence of the loan is only known to the two parties—the debtor and the creditor.] Exactly a day before the agreed date of payment, Matteo was electrocuted then fell of the balcony of his condo, hit by a train and then splattered to pieces. In short, he died. What does Gerald do? He goes to the executor of what remains of the estate of Matteo, Rayver, and tells him of the debt of Matteo. Rayver, having no knowledge of the debt, refuses to pay Gerald. Gerald is forced to sue the estate of Matteo. During the trial, can Gerald testify and establish his claim which existed before Matteo died? No. It is forbidden under the Dead Man’s Statute. According to Riano: Gerald is rendered incompetent to testify as to the transaction he had with Matteo. He is incompetent because of the possibility that his claim is fraudulent. There would be a high risk of paying a fraudulent or a fictitious claim. It is Gerald who has the motive to lie. He is the survivor. Matteo cannot lie. He is dead and cannot answer back. He cannot disprove the claim of Gerald. To level the playing field between the lucky survivor and the poor deceased, the rule would seal the lips of the survivor by declaring him incompetent to testify on the transaction between him and the deceased. The rule is 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. *It’s called that way because the rule protects the dead man, or more particularly, his estate against spurious claims.] It doesn’t really matter if there is a miscarriage of justice.

Object of the rule 

The SC had repeatedly held in not a few cases that the object of the rule is to: guard against the temptation to give false testimony in regard to the transaction on the part of the surviving party and thereby put the parties upon equal terms. Its purpose is to close the lips of the plaintiff when death has closed the lips of the defendant, in order to remove from the defendant the temptation to do falsehood and the possibility of fictitious claims against the deceased (Tan vs. CA, 1998).

In what case is it applied?

What is the cause of action? 

It is a claim against the estate of the deceased person or insane person.[Hence, if it is a claim by the estate againsta survivor, the rule will not be applicable. The rule does not apply when the estate is the plaintiff. The estate has to be the defendant here.] Thus, if a person is still alive and not insane, you do not apply the rule. The claim can be prosecuted by an ordinary personal action. [What about lucid intervals? The status of a person who is formerly insane but now is laboring under a lucid interval is in possession of his full mental faculties. He has capacity to act. So, no problem there. You do not apply Section 23; file an ordinary civil action.] The rule does not apply when the action brought is not “against” the estate, or not upon a claim “against” the estate.





Who is the defendant? 1.

2.

3.

The executor *when there’s a will+ or administrator *when there’s no will, or when there is a will but does not provide for an executor, or when there’s an executor but he declines the appointment] of the estate of a deceased person; or Other representative of such deceased person (example: an heir or heirs where no executor or administrator is appointed, or a surviving spouse); or The person of unsound mind himself.

Note: 

Under Rule 92 and 93, a guardian can be appointed over incompetent persons, including those persons suffering the penalty of civil interdiction or who are hospitalized lepers, prodigals [or spendthrifts], deaf and dumb who are unable to read and write, those who are of unsound mind, even though they have lucid intervals, and persons not being of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of themselves and manage their property, becoming thereby an easy prey for deceit and exploitation.

Let’s focus on a person of unsound mind. It is quite possible that a person becomes insane and a guardian is appointed over his person and his property.

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LAW ON EVIDENCE 

 

Situation: A contracted a debt with B. B gave him the money without anything recorded, no document whatsoever to prove the debt other than by word of mouth. Then, the debtor becomes insane. What happens? How do you collect? Do you wait until that person is under the lucid interval stage before you can collect? Section 23 provides: “…(a)gainst an executor or administrator or other representative of a deceased person, or against a person of unsound mind…” The rule does not seem to mention a guardian of a person of unsound mind as defendant. [The rule does not apply to a representative of a person of unsound mind because if that was the intention of the law, there should have been no comma after “deceased person”.+ General Powers and Duties of Guardians

Rule 96, Section 2. Guardian to pay debts of ward.— Every guardian must pay the ward's just debts out of his personal estate and the income of his real estate, if sufficient; if not, then out of his real estate upon obtaining an order for the sale or encumbrance thereof.

based on the lectures of ATTY. JESS ESPEJO

sue, you always implead the guardian. So the guardian becomes a defendant as well, by reason of the guardianship.] Who is the plaintiff? 

The plaintiff is the person who has a claim against the estate of the deceased or person of unsound mind. The rule will not apply where the executor or administrator is the plaintiff.



What is prohibited? 

The testimony of the plaintiff-witness or his privies which, by such testimony alone, would tend to establish a claim against the deceased or insane person. The subject matter of the testimony is a matter of fact occurring before the death of such deceased person or before such person became of unsound mind. [If it occurred after, it is not covered by the rule. The transaction must occur before and must establish a claim or demand against the estate of the deceased person or the person of unsound mind.] [The plaintiff who has no proof whatsoever as to his claim against the deceased person or insane person goes to court and wants to establish by his testimony alone that the estate has a debt to him. That is what is prohibited. But can he testify, for example, that the deceased person also owes him moral damages? He can do that. Because this is merely incidental.] o [Therefore, if it is not related to the main claim, he can testify about it even if he is the plaintiff-witnesssurvivor.] In other words, it is the adverse testimony of the survivor that is prohibited under the Rule. Thus, where the testimony of the survivor is favorable (i.e., establishes a claim by the estate and not against it), such testimony is not prohibited.

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Question: Can a creditor-plaintiff testify to establish an oral claim against the guardian of the insane person? In other words, is Section 23 inapplicable in cases where the defendant is the guardian of the insane person? 

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No [a guardian can be a defendant]. The same possibility of making spurious claims is similarly extant even if a guardian is appointed who has the power to pay the debts of the incompetent person. The purpose of guardianship is to safeguard the rights and interests of the incompetent person and the court should be vigilant to see that the rights of such persons are properly protected. *Let’s say, a person sues an insane person. He brings the insane person to court to collect the debt. Being insane, he could simply say that the claim is true and that, in fact, it’s not only for P1 million but P500 million. Because he is insane!  So the court has to appoint a guardian. Whether the guardian is appointed prior or during a case, the law ought to apply still.] [Now, a guardian is already appointed. Can the guardian now ascertain whether the claim is real, without any written agreement or contract whatsoever? No. What is the only source of the guardian’s information? The insane person, who cannot be trusted to give the correct information. And the law should be applicable even if it’s merely the guardian who is the defendant in a civil case.]

Example: Matteo approaches Gerald to borrow P1 million to be paid in 2 months time. Without hesitation, Gerald gives Matteo the amount requested without any contract, receipt of any other written proof of the loan. Exactly a day before the agreed date for payment, Matteo became insane, his mental condition now complementing his looks . 



What does Gerald do? He goes to the guardian of Matteo, Rayver, and tells him of the debt of Matteo. Rayver, having no knowledge of the debt, refuses to pay Gerald. Gerald is forced to sue Rayver. Rayver cannot confirm the existence or validity of the debt because Matteo is of course insane. [Remember, when you

 

The Rule is very harsh. 

The survivorship disqualification rule raises legitimate questions on the justness of the rule. In trying to avoid fictitious claims against the estate, it ignores the rights of persons with legitimate claims and whose lips are sealed when the law levels the playing field so to speak.

EXCEPTIONS TO THE RULE (memorize): 1.

Testimony of mere witnesses who are neither party plaintiffs, nor their assignors, nor persons in whose behalf a case is prosecuted, nor to a nominal party, nor to officers and stockholders of a plaintiff corporation. a. [Mere witnesses who are neither party plaintiffs nor their assignors. Example: A contracted a debt from B. They did not draw up a promissory note. A died. B cannot testify. But what if the secretary of B, an employee of the creditor, witnessed the transaction? Will the secretary be barred from testifying? The answer is no.]

Example of Riano: The case is an action for a sum of money against the decedent’s estate. The decedent is Mr. D, the debtor. The plaintiff is Mr. C, the creditor. Mr. C claims that Mr. D borrowed P200,000 from him and that the debt has been due even before the death of Mr. D who despite demand upon him, failed to pay. Mr. C

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO



calls his secretary to testify about the transaction that occurred in her presence. 



Here, the witness is not the survivor. Thus, offering the testimony of a so-called “disinterested witness” is not a transgression of the rule since the prohibition extends only to the party who survives or person in whose behalf the case is prosecuted. [When you talk of privity here, you’re talking about financial privity. Now, if I assign the credit to somebody else, he is a successor-in-interest. He is also prohibited from testifying. But if my witness is simply a mere employee, the rule will not be applicable.] Ordinary witnesses, who are not the plaintiff, assignor of plaintiff, or person in whose behalf the case is prosecuted may testify (Francia vs. Hipolito, 93 Phil. 968). The dead man’s statute does not operate to close the mouth of a witness as to any matter of fact coming to his knowledge in any other way than through personal dealings with the deceased person, or communication made by the deceased to the witness. SANSON vs. CA (GR 127745, 22 April 2003)



SUNGA-CHAN vs. CHUA (2001) Petitioner filed a compulsory counterclaim against respondents 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 rule. When it is the executor or administrator or representatives of the estates that sets up the counterclaim, the plaintiff, herein respondent, may testify to occurrences before the death of the deceased to defeat the counterclaim. Moreover, as defendant in the counterclaim, respondent is not disqualified from testifying as to matters of facts occurring before the death of the deceased, said action not having been brought against but by the estate or representatives of the deceased. 3.

Where the deceased contracted with the plaintiff through an agent and said agent is alive and can testify, but the testimony of the plaintiff should be limited to acts performed by the agent (Goñi vs. CA, GR L-27434, 23 September 1986).  [If you are acting through an agent, the agent is only an extension of the personality of the principal. Under the law, they’re one and the same under certain conditions. But it is different under the SDR because if the agent is alive and can testify, he can testify but only with respect to acts performed by the agent.]  [How to make sense out of this? An agent is like an employee and, in cases where the plaintiff is the corporation, he can actually testify. Also, if there is an agent, the transaction is no longer unwitnessed. There is another witness, who can corroborate the testimony of the plaintiff.]

4.

Land registration cases instituted by the deceased’s representative, where the oppositor is considered as defendant or in cadastral cases where there are no oppositors.  [Example: When you file a land registration case and you are the applicant. You are like a petitioner. But there is no definite party defendant. In fact, because it is a proceeding in rem, it’s supposed to be filed against the whole world. When it is filed, there is already notice to the whole world that anybody who has a claim over the land should come forward and present their claims.]  [What happens here would be, an oppositor appears and that oppositor happens to be the representatives of the deceased person, who becomes the defendant. The applicant-plaintiff here is the survivor. More so in cadastral proceedings where it is the government itself who is the plaintiff and invites all those interested to make their claims known. It is the initiative of the government.]

Felicito filed before the RTC a petition for the settlement of the estate of Sy (the deceased). Felicito claimed that the deceased was indebted to him in the amount of P603,000 and to his sister Celedonia in the amount of P360,000. Felicito, in support of the claim of his sister Celedonia, testified that she has a transaction with the deceased. Celedonia, in support of the claim of her brother Felicito, testified that he knew that the deceased had a transaction with his sister. The administratrix objected to the testimonies upon the ground that the witnesses are disqualified under the Dead Man’s Statute. Is it admissible? Yes. 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. [If it were Felicito testifying for his own transaction with the deceased, disqualified. Same thing with respect to the sister.] Principle to remember 

The rule only applies to cases where the transaction is unwitnessed. If there is any other witness, the claim can be proved. [The witness, however, must be “disinterested”.+ LICHAUCO vs. ATLANTIC GULF

When the plaintiff is a corporation, the officers or stockholders thereof are not disqualified. The rule does not apply to persons who are merely employed by such disqualified parties or assignors of parties. 2.

If the person or persons mentioned under the rule file/s a counterclaim.

Example: X sues the estate of Y for the collection of a debt which was obtained prior to the death of Y. The executor filed a counterclaim. Effect: X can now testify against the estate of Y. Is he cannot do so, he has nothing with which to defend against the counterclaim. It would be unfair if he cannot testify because, if his lips are sealed, there is virtually a confession of judgment already.

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

 5.

6.

7.

When there is waiver. a. By not objecting to plaintiff’s testimony on prohibited matters (Marella vs. Reyes, 12 Phil. 1; Ty vs. Ty, G.R. No. 165696)  [What to do? Just manifest your objection for the record. But do not cross-examine.] b. By cross-examining the plaintiff on prohibited matters (Tongco vs. Vianzon, 50 Phil. 698) c. By calling witnesses to testify on prohibited matters (Arroyo vs. 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 (Goñi vs. CA, G.R. No. L-27434) e. By offering evidence to rebut the prohibited testimony If the plaintiff is the executor or administrator or other representative of a deceased person, or the person of unsound mind.  [The plaintiff here is no longer the survivor. But what if the defendant here, the survivor, files a counterclaim? Analyze it on your own.] When the testimony refers to fraudulent transactions committed by the persons mentioned in the rule, provided such fraud is first established by other evidence.  When there is an imputation of fraud against the deceased, the plaintiff is not barred from testifying to such fraud (Go Chi Gun vs. Co Cho, 96 Phil. 622)

8.

Negative testimony, that is, testimony that a fact did not occur during the lifetime of the deceased.  The plaintiffs-appellees did not testify to a fact which took place before their representative’s death, but on the contrary denied that it had taken place at all, i.e. they denied that a liquidation had been made or any money remitted on account of their shares which is the ground of their claim. The rule does not apply. (Mendezona vs. Vda. De Goitia, 54 Phil. 557)  [The claim relates to a negative fact, that there was no liquidation that was made in the partnership. According to the SC, the rule does not apply.]

9.

Testimony on the present possession by the witness of a written document signed by the deceased because such fact exists even after the death of the decedent.  If the proffered testimony, while ordinarily barred under the survivorship disqualification rule, is actually founded on a document. If the claim of plaintiff and the testimony of his witnesses are based on a contract or document, and not on dealings and communications with the deceased, the testimony is admissible. This is also known as the Foundation Testimony Exception.

[Here, the testimony is already corroborated by a document and the PER and BER may be applied, as the case may be.] BORDALBA vs. CA (2002)

Since the claim of private respondents and the testimony of their witnesses in the present case is based, inter alia, on the 1947 Deed of Extrajudicial Partition and other documents, and not on dealings and communications with the deceased, the questioned testimonies were properly admitted by the trial court. SANSON vs. CA (2003) 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. Since the separate claims of Sanson and Celedonia are supported by checks-documentary evidence, their claims can be prosecuted on the bases of said checks. 10. When the defendant/s, though heirs of the deceased, are sued in their personal and individual capacities.  When the defendant/s, though heirs of the deceased, are sued in their personal and individual capacities, the plaintiff may testify against them (Go Chi Gun vs. Co Cho, supra.) 11. In actions against a partnership  Example: Matteo, a partner in RayverMaYa partnership with Rayver and Richard Yap, approaches Gerald, to borrow P1 million to infuse capital into the partnership to be paid in two months time. Without hesitation, Gerald give Matteo the amount requested without any contract, receipt or any other written proof of the loan. Exactly a day before the agreed date for payment, Matteo died [this time, because of AIDS ].  Gerald approaches Rayver and Richard to collect the debt. They refuse and claimed that they have no knowledge of the debt. Gerald was forced to sue the RayverMaYa partnership. Gerald was to testify about his claim when Rayver and Richard objected, claiming that the Dead Man’s Statute prohibits him from testifying. o Who is testifying? The survivor, Gerald. o What is he testifying about? A claim based on a matter of fact which occurred prior to the death of Matteo. o Who is the plaintiff? Gerald. o Who is the defendant? Not the estate of Matteo. It’s the partnership.  When a partner dies, there are two options for the surviving partners: 1. They can continue the partnership. In this case, Article 1840(3) applies. [They continued the partnership, which is why they can be sued as a partnership. The SDR is not applicable.] 2. Or they can dissolve, under Article 1835. [Take note of the example. The debt was contracted for infusing capital into the partnership. Regardless of whether it is a

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LAW ON EVIDENCE partnership debt or a personal debt, just the same. The partnership can be sued and the survivor can testify.] 12. When the survivor’s testimony is favorable to the deceased (Icard vs. Marasigan, 71 Phil. 419)  When is it favorable? When the testimony tends to establish a claim by the estate or to negate a claim against it. [Even if you are the survivor and you are testifying but you are actually negating a claim or establishing a claim by the estate, that is allowed.] 13. Opening Doors Exception  If the disable party “opens the door” by introducing a testimony or a deposition concerning conversations and/or events in the presence of the deceased person. o Reason: There is, in effect, a waiver of the rule. (Arroyo vs. Azur, supra.)  [Example: I am the executor-defendant. I opened the door by introducing a deposition that would refer to a transaction that is the basis of the claim of the survivor. And the rule does not apply.] Whose deposition contains the prohibited matters? 





When it is the deposition of the plaintiff. a. If the defendant himself introduces into evidence the deposition of the survivor which contains the matter of fact occurring before the death of the deceased person, he waives the protection of the rule. b. If it is the plaintiff himself, the defendant can object. When it is the deposition of the defendant. a. This is admissible because he is not the survivor. b. Also, if the deposition of the defendant tends to support the claim of the survivor, it is considered an admission against interest. c. Thus, it does not matter who introduces the deposition into evidence. If it is the survivor, it is allowable being an admission against interest. If it is the executor, he waives the protection of the law by himself introducing evidence on prohibited matters. When it is the deposition of the deceased. a. If it is the defendant (executor/administrator) who presents the deposition, he “opens the door”. Plaintiff may now testify on the prohibited matters. b. If it is the plaintiff (survivor), the deposition will be allowed because the dead man’s statute does not apply anymore under the foundation testimony exception. [It is only when the plaintiff presents his own testimony that it will not be allowed under Section 23.] 14. Only under American Jurisprudence:If the testimony to be introduced relates to any fact relating to the heirship of the decedent.  [There is yet no case regarding this exception. Just know that this exists.] GARCIA vs. CAPARAS (2013)

based on the lectures of ATTY. JESS ESPEJO

In their Complaint, Garcia and Salamat claimed that when their father Eugenio died, they entered into an agreement with their brother Pedro that they would alternately farm the land on a “perseason basis”. They further claim that the landowner Makapugay knew of this agreement and that, when Makapugay passed away, Pedro reneged on their agreement excluding them and misrepresenting to Amanda [the successor-in-interest of Makapugay+ that he is Eugenio’s sole heir. As a result, Amanda was deceived into installing Pedro as sole agricultural lessee in their 1979 Agricultural Leasehold Contract. When Amanda learned of Pedro’s misrepresentation, she executed on July 10, 1996 an Affidavit stating among others that Pedro assured her that he would not deprive Garcia and Salamat of their cultivatory rights. When Pedro passed away, his wife Dominga took over the land and, despite demands, continued to deprive them of their rights as co-lessees. On October 24, 1996, Garcia and Salamat filed a Complaint for nullification of leasehold and restoration of rights as agricultural lessees against Pedro’s heirs, represented by his surviving spouse Dominga before the office of the Provincial Agrarian Reform Adjudicator (PARAD). 

What is the matter of fact that occurred before the death of Pedro? The averment in Amanda’s affidavit that Pedro assured her that he will not deprive Garcia and Salamat of their cultivatory rights. Who are the plaintiffs/survivors? Garcia and Salamat. Who is the defendant? Pedro’s surviving spouse and lawful successor-in-interest Dominga. [This falls under the term “other representatives of the deceased person.”+

 

Does the SDR apply in the case? 

 

SC said yes. Amanda’s declaration in her affidavit covering Pedro’s alleged admission and recognition of the alternate farming scheme is inadmissible for a violation of the Dead Man’s Statute. Since Pedro is deceased and Amanda declaration which pertains to the leasehold agreement affects the 1996 Kasunduan sa Buwisan ng Lupa, which he is assigned entered into with petitioners and which is now the subject matter of the present case and claim against Pedro’s surviving spouse and lawful successor-in-interest Dominga. Such declaration cannot be admitted and used against the latter who is placed in an unfair situation by reason of her being unable to contradict or disprove such declaration as a result of her husband’s xxx. [The outcome of the case would have been different had Amanda been presented as a witness. Because Amanda is a witness to the assurance given by Pedro to the siblings.] Anything wrong with the decision? Nothing much except maybe the fact that the case is considered an agrarian dispute under Section 3(d) of RA 6657. o Remember: Section 23 is supposedly applicable only to civil cases or special proceedings. o Agrarian dispute refers to any controversy relating to tenurial arrangements, whether leasehold tenancy, stewardship or otherwise, over lands devoted to agriculture, including disputes concerning farmworkers associations or representation of persons in negotiating, fixing, maintaining, changing or seeing to arrange terms

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LAW ON EVIDENCE

o

based on the lectures of ATTY. JESS ESPEJO

or conditions of such tenurial arrangements. [It is heard by an administrative tribunal. Does it make it an administrative case?] Is an agrarian case a civil case? A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. [This is precisely that, a civil action. It fits the definition.]

SUMMARY OF EXCEPTIONS 1.

2. 3.

4.

5. 6.

7.

8. 9.

10. 11. 12. 13. 14.

Testimony of mere witnesses who are neither party plaintiffs, nor their assignors, nor persons in whose behalf a case is prosecuted, nor to a nominal party, nor to officers and stockholders of a plaintiff corporation If the person or persons mentioned under the rule file/s a counterclaim Where the deceased contracted with the plaintiff through an agent and said agent is alive and can testify, but the testimony of the plaintiff should be limited to acts performed by the agent Land registration cases instituted by the deceased’s representative, where the oppositor is considered as defendant or in cadastral cases where there are no oppositors When there is waiver If the plaintiff is the executor or administrator or other representative of a deceased person, or the person of unsound mind When the testimony refers to fraudulent transactions committed by the persons mentioned in the rule, provided such fraud is first established by other evidence Negative testimony, that is, testimony that a fact did not occur during the lifetime of the deceased Testimony on the present possession by the witness of a written document signed by the deceased because such fact exists even after the death of the decedent When the defendant/s, though heirs of the deceased, are sued in their personal and individual capacities. In actions against a partnership When the survivor’s testimony is favorable to the deceased Opening Doors Exception If the testimony to be introduced relates to any fact relating to the heirship of the decedent (American Jurisprudence)

estate of a deceased or insane person Dead Man’s Statute vs Parol Evidence Rule Dead Man’s Statute Parol Evidence Rule Both Rules may entail a situation where certain evidence cannot be offered due to the death of a person [Under the DMS/SDR, you cannot testify as to a claim or demand based on a matter of fact which occurred prior to the death or before such person became of unsound mind.] [In PER, testimony that tends to add or modify testamentary dispositions.] Prohibits testimony that tends Prohibits testimony that tends to establish a claim against the to add to or modify estate of a deceased person testamentary disposition May be invoked only by the May be invoked by the parties defendant (the executor or to an agreement. In the case of administrator) a will, it may be invoked by the executor or administrator, heirs, devisees, legatees, and oppositors, if any. Can the PER and the SDR be invoked at the same time?  

 

Why not? Example: In Gerald’s will, there is a bequest of P200,000 to Matteo. During the probate of the will, Matteo claimed that Gerald told him while he was bedridden that, in the event of Gerald’s death, Matteo will get P2 million both as a gift and as payment of a debt. Matteo cannot prove by extrinsic evidence that the bequest was P2 million and not P200,000. This is not allowed under the PER. Matteo cannot also testify on his claim because it violates the SDR.

Revising the Codal Provision “A party to an alleged transaction and his successors-in-interest are precluded from testifying against the representative of the other party who dies or becomes insane if such testimony is offered in a case which tends to establish a civil claim against the estate of the deceased or the insane party.”

Dead Man’s Statute vs. Marital Disqualification Rule Dead Man’s Statute Only a partial disqualification as the witness is not completely disqualified but is only prohibited from testifying on the matters therein specified [You cannot testify if your testimony tends to establish a claim or demand against the estate of a deceased person or a person of unsound mind.] Applies only to a civil case or special proceeding over the

August 31, 2016

Marital Disqualification Rule A complete and absolute disqualification

DISQUALIFICATION BY REASON OF PRIVILEGED COMMUNICATION

[Regardless of the tenor of the testimony, you are disqualified.]

Rule 130, Section 24. Disqualification by reason of privileged communication. – The following persons cannot testify as to matters learned in confidence in the following cases:

Applies to a civil or criminal case

(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 (Marital Privileged Communication Rule)

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LAW ON EVIDENCE (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 Privileged Communication 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 capacity, and which would blacken the reputation of the patient (Physician-Patient Privileged Communication 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 Privileged Communication Rule)

based on the lectures of ATTY. JESS ESPEJO

PRESUMPTION: In the absence of evidence to the contrary, any communication given by one spouse to the other is presumed confidential. HYPOTHETICAL PROBLEM: Spouses Maja and Ramon were deep in conversation when Ramon confessed to Maja that he, before they got married, killed Maja’s exboyfriend, Gerald. 1. Can Maja be called to testify against Ramon? NO. The Marital Privileged Communication Rule applies. In Fact, the Marital Disqualification Rule applies as well. 2. But the crime was committed before their marriage? It does not really matter. What matters is that the communication was made during their marriage. Conversely, the Marital Disqualification Rule applies also because they are still married. 3. What if their marriage was annulled? Can Maja testify then?

(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 (Public Officers Privileged Communication Rule)

Under the Marital Disqualification Rule – YES, unless Ramon consents.

Briefly, they are the following:

Under the Marital Privileged Communication Rule – NO because it applies during or after the marriage, unless Ramon waives the privilege.

a. Marital Privileged Communication Rule b. Attorney-Client Privileged Communication Rule c. Physician-Patient Privileged Communication Rule d. Priest-Penitent Privileged Communication Rule e. Publuc Officers Privileged Communication Rule 1. MARITAL PRIVILEGED COMMUNICATION (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. REQUISITES: 1. 2.

3.

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

MARITAL DISQUALIFICATION Can be invoked only if one of the spouses is a party to the action Applies only if the marriage is existing at the time the testimony is offered Constitutes a total prohibition against the spouse

MARITAL PRIVILEGE Can be claimed WON the spouse is a party to the action Can be claimed even after the marriage has been dissolved Applies only to confidential communications between the spouses

To determine what rule applies, you look at the given facts. If it refers to a specific confidential information, you apply the Marital Privileged Communication Rule. If it refers to a general information between the spouses, apply the Marital Disqualification Rule. HYPOTHETICAL PROBLEM: Suppose that, in the foregoing problem, Ramon’s confession to Maja was overheard by their minor daughter Majess, and their nosy housemate Bangs. 1. Can Majess be called to testify?

EXCEPTIONS: 1. 2.

DISTINCTIONS (Favorite source of BAR Qs)

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.

TAKE NOTE that these are the same exceptions under the Marital Disqualification Rule.

Under the Marital Privileged Communication Rule – NO because Majess is still a minor. What if Majess is no longer a minor? She can testify (if she wants) but cannot be compelled to do so. 2. What about Bangs, the nosy housemate?

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

GENERAL RULE: YES. She can testify. Third persons who, without knowledge of the spouses, overhear the communication are NOT disqualified to testify. EXCEPTION: When there is collusion and voluntary disclosure to third party, that third party becomes an agent of the spouses and cannot testify. TAKE NOTE THAT, IN THE EXAMPLE: 1. Majess can voluntarily testify under Section 25: Rule 130, Section 25. Parental and Filial Privilege. - No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. 2. What is prohibited under Section 25 is testimony by compulsion. It does not forestall testimony by volition. DOCTRINES TO REMEMBER COMMUNICATION RULE:

IN

MARITAL

PRIVILEGED

1. Every communication between spouses is presumed to be confidential. 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. 3. Communications overheard by third persons remain confidential as betvween the spouses, but the third person who overheard may be called to testify. (Pp v Carlos) rd

4. If the 3 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. 5. Communications intended for transmission to 3rd persons are not confidential. (US v Antipolo) BAR QUESTION: 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 had 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 DEF, the minor daughter of ABC by her first husband who was a Filipino, was molested by XYZ earlier. Thus, ABC had filed for legal separation from XYZ since last year. Q: May the court admit testimony and affidavits of the wife, ABC, against her husband, XYZ, in the criminal case involving child prostitution? Reason. YES. The court may admit the testimony and affidavits if the wife against her husband in the criminal case where it involves child prostitution of the wife’s daughter. It is not covered by the marital disqualification rule. One exception thereof is where the crime is committed by one

against the other or the latter’s direct descendants or ascendants. A crime by the husband against the daughter is a crime against the wife and directly affects or vitally impairs the conjugal relation. (Ordonio v Daquigan) BAR QUESTION 1995: Allan and Narita were married on August 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 Basilio, a married man. In 1992, Narita obtained a judicial decree of nullity of 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 purportedly 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 ground of marital disqualification. 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. (Sec 22, Rule 130, Rules of Court) 2. Suppose Narita’s testimony as offered while the decision nullifying her marriage to Allan was pending appeal, would your answer be different? NO. The answer would not be different and a valid objection may still be interposed. 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 after, 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 (Allan) 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. Yes. 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. However, Riano posits that: The testimony could not be validly objected upon by Basilio’s counsel on the basis of the marital privileged communication rule. Basilio does not own the privilege. The prerogative to object to a confidential communication between spouses is vested upon the spouses themselves, rd particularly the communicating spouse, not a 3 person. This is clear from the provision: “…..cannot be examined without the consent of the other…” (Sec. 24, Rule 130) 2. ATTORNEY-CLIENT PRIVILEGED COMMUNICATION

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LAW ON EVIDENCE (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 RATIONALE The policy underlying this 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 attorney-client privilege is considered as one of the strongest privileges available under the law. REQUISITES: 1. 2. 3.

4.

There must be a communication made by the client to the attorney or an advice given by the attorney to his client; The communication or advice must have been given in confidence; The communication or advice must have been given either in the course of the professional employment or with view to professional employment; and The client has not given his consent to the attorney’s testimony; or if the attorney’s secretary, stenographer or clerk is sought to be examined, that both the client and the attorney have not given their consent.

IS A PERFECTED CONTRACT REQUIRED? NO. The present rules do not require a perfected attorney-client relationship for the privilege to exist. The communications between the attorney and the client no longer need be in the course of an actual professional employment. It is enough that the communication or advice be “with a view to” professional employment. EMPLOYEES OF THE LAWYER ARE COVERED The statements of the client need not have been made to the attorney in person. Those made to the attorney’s secretary, clerk or stenographer for transmission to the attorney for the purpose of the professional relationship or with a view to such relationship or the knowledge acquired by such employees in such capacity are covered by the privilege. Like the attorney, their employer, these persons cannot be examined as to the communication made by the client or the advice given by the attorney without the client’s consent. LAWYER MUST BE CONSULTED IN HIS PROFESSIONAL CAPACITY Where a person consults an attorney not as a lawyer but merely as a friend, or a participant in a business transaction, the consultation would not be one made in the course of a professional employment or with a view to professional employment as required by Sec 24(b) Rule 130, Rules of Court, and if proven to be so, would not be within the ambit of the privilege. HYPOTHETICAL PROBLEM:

based on the lectures of ATTY. JESS ESPEJO

KA consulted Sakee, a lawyer. He asked about Sakee’s professional opinion as to how to import goods and bring them out from customs without paying any taxes or dues. 1. Assume that KA was caught smuggling goods, can Sakee be called to testify as to what KA asked him? YES. Sakee can be called to testify. The privilege does NOT extend to communications where the client’s purpose is the furtherance of a future intended crime or fraud, or for the purpose of committing a crime or tort. 2. Suppose that KA, after being arrested, sought Sakee’s services as lawyer to defend him in the criminal case. KA then discussed facts that can be used in his defense. Can Sakee be called to testify? NO. The discussion of the communications in confidence with the lawyer after the crime has been committed will be privileged even though the earlier communications were not. SUMMARY: 1. The privilege does NOT extend to communications where the client’s purpose is the furtherance of a FUTURE intended crime or fraud or for the purpose of committing a crime or a tort. 2. Although communications made when used to further crimes are not privileged, the discussion of the communications in confidence with the lawyer after the crime has been committed may still be privileged even though the earlier ones were not. However, where the lawyer himself was a co-conspirator: PP vs. SANDIGANBAYAN (1997) The privilege does NOT apply where the lawyer himself was a CONSPIRATOR in the commission of the crime of falsification which he and his clients 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 lawful end. The existence of an unlawful purpose prevents the privilege from attaching. WORK-PRODUCT DOCTRINE: HICKMAN vs. TAYLOR (1947) Under the Federal Rules of Procedure, the work-product doctrine protects materials prepared in anticipation of litigation from discovery by opposing counsel. Thus, during the discovery stage, oral and written statements made by the witnesses to a defendant’s attorney cannot be produced as it is considered work-product. In the Philippines, we have Rule 27: Rule 27, Section 1. Motion for production or inspection; order. — Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any

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LAW ON EVIDENCE matter involved in the action and which are in his possession, custody or control, XXXX With that, is the work-product doctrine exception applicable here? YES but we do not have any specific work-product rule. It is subsumed under the very general Attorney-Client Privileged Communication Rule. It has once been mentioned by the SC in the case of Fortune vs. CA, Jan. 1994 in a mere obiter. BAR QUESTION 2008: A tugboat owned by Speedy Port Service, Inc. (SPS) sank in Manila Bay while helping tow another vessel, drowning 5 of the crew in the resulting shipwreck. At the maritime board inquiry, the 4 survivors testified. SPS engaged Atty. Ely to defend it against potential claims and to sue the company owning the other vessel for damages for to the tug. Ely obtained signed statements from the survivors. He also interviewed other persons, in some instance making memoranda. The heirs of the 5 victims filed an action for damages against SPS. Plaintiff 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. Q: Is the contention tenable? Explain. YES, considering that he was acting in his professional capacity in bringing about the statement he obtained from the witnesses and the memoranda he made. The notes, memoranda, and writings made by the counsel in pursuance of his professional duty, form part of his private and confidential files in the cases handled by him; hence privileged. COMMUNICATIONS COVERED: 1.

2.

3.

based on the lectures of ATTY. JESS ESPEJO

The matters communicated to the attorney are evidently not intended to be confidential when they were made to the lawyer but rd in the presence of 3 persons who neither stand in a position of peculiar confidence to the client or are not agents of the attorney. If the communications made by the client to his attorney were also rd made to 3 persons, the intention of secrecy does not appear. EAVESDROPPER Under the Marital Privileged Communication Rule, 3rd persons who overheard the communication can be permitted to testify. What is the rule Communication Rule?

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. CONFIDENTIALITY Before the statements of the client and the advice of the attorney be deemed as privileged, the same should have been intended to be confidential.

Attorney-Client

Privileged

LAWYER CANNOT BE DAMNED BY THE PRIVILEGE 1. A lawyer may circumvent the privilege if revealing would relieve him of accusations of wrongdoing. 2. When the client and attorney become embroiled in a controversy between themselves, as in an action filed for payment of attorney’s fees or for damages against the negligence of the attorney, the privilege is removed from the attorney’s lips. This rule, however, should be made to apply only where the suit is between the attorney and his client. The communication would still be privileged where the suit is by or against a 3rd party. PRIVILEGE IS OWNED BY THE CLIENT AND SURVIVES HIS DEATH 1.

The privilege is PERSONAL and belongs to the client. If the client waives the privilege, no one else including the attorney can invoke it. If the client is asked on cross examination of his communications to his lawyer and reveals the same, there would be waiver of the confidentiality of the communication.

The communication may be ORAL or WRITTEN. It is deemed to extend to other forms of conduct like physical demonstration as long as they are intended to be confidential.

PP vs. SANDIGANBAYAN (1997)

the

Philippine jurisprudence is somehow silent about this. However, it is submitted that, similar to American jurisprudence, the EAVESDROPPER MAY TESTIFY. This is subject of course to the usual challenge based on right to privacy (i.e., fruit of the poisonous tree).

The privilege is NOT confined to communications regarding ACTUAL PENDING cases. The communications may refer to ANTICIPATED LITIGATIONS or may not refer to any litigation at all.

The communication between a client and his lawyer is not deemed lacking in confidentiality solely because the communication is transmitted by facsimile, cellular telephone, or other electronic means.

under

There would also be a waiver if the client does not object to his attorney’s testimony on the communication. 2.

The protection of the privilege will generally survive the client’s death. However, where there is an attack on the validity of the will, communications made to the attorney on the drawing of the will, while confidential during the lifetime of the client are not intended to require secrecy after his death.

EXAMPLE: X has 2 sons, Y and Z. Before he died, his constant companion was A, a young lady. X went to his lawyer to have his will prepared covering an estate worth 12M. The lawyer was surprised because X gave 8M to A and only 2M each to Y and Z. The lawyer asked why and X told him that A was his lovechild with his one true love AAA and that Y and Z, his children with BBB, he suspected were not really his.

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LAW ON EVIDENCE When X died, his will was probated. Y and Z opposed on the ground that they were preterited and that their legitime was impaired. They claimed that, being X’s sole heirs, they are entitled to ½ each of the whole estate. Can the lawyer be compelled to reveal the information he received from X about A? YES. There is an attack on the validity of the will. The communication made to the lawyer on the drawing of the will, while confidential during the lifetime of X, is not intended to require secrecy after his death. In fact, if he reveals the information, the will becomes perfectly valid as it does not impair the legitime of the heirs.

based on the lectures of ATTY. JESS ESPEJO

FACTS: Allegedly, Cojuancgo, et al., with the assistance of ACCRA Law Firm, set up, through the use of the coconut levy funds, the financial and corporate framework and structures that led to the establishment of UCPB, UNICOM, COCOLIFE, COCOMARK, CIC and more than 20 other coconut levy funded corporations, including the acquisition of San Miguel Corporation. Said corporations are subject to investigation by the PCGG involving ill gotten wealth. ACCRA refuses to provide information on fear that it may implicate them in the very activity from which legal advice was sought from them and it may breach the fiduciary relationship of the petitioner with their client. ISSUE: WON disclosure of the client’s identity is proper in this case HELD: NO.

SAURA, JR. vs. ATTY. AGDEPPA (2000) The request for the information regarding the sale of the property and to account for the proceeds is not a violation of the attorneyclient privilege. The information requested by petitioners is not privileged. They are only asking for the disclosure of the amount of the sale or account for the proceeds. They have the right to ask for such information since they own the property as co-heirs. Hence, the lawyer cannot refuse to divulge such information to them and hide behind the cloak of atty-client relationship. DOES THE PRIVILEGE PRECLUDE INQUIRIES INTO THA FACT THAT THE LAWYER WAS CONSULTED? In other words, can the lawyer be asked if a person is his client? Is the identity of the client privileged? GENERAL RULE: An inquiry into the fact of consultation or employment is NOT privileged. Even the identity of the client or the lawyer is NOT privileged. EXCEPTION: Regala vs Sandiganbayan case (Atty JZE: Read the full text of this case) REGALA vs. SANDIGANBAYAN (1996) PRINCIPLE: As a matter of public policy, a client’s identity should not be shrouded in mystery. Under this premise, the general rule in our jurisdiction as well as in the US is that a lawyer may not invoke the privilege and refuse to divulge the name or identity of the client. Reasons: 1. The court has a right to know that the client whose privileged information is sought to be protected is flesh and blood. 2. The privilege begins to exist only after the atty-client relationship has been established. The atty-client privilege does not attach until there is a client.

GENERAL RULE: The attorney-client privilege may not be invoked to refuse to divulge the identity of the client. EXCEPTIONS: 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 (LAST-LINK DOCTRINE) LAST-LINK DOCTRINE 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. Non-privileged information such as the identity of the client is protected if the revelation of such information would necessarily reveal the privileged information. 3. PHYSICIAN-PATIENT 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 capacity, and which would blacken the reputation of the patient REQUISITES: a.

The action in which the advice or treatment given or any information is to 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.

3. The privilege generally pertains to the subject matter of the relationship. 4. 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 is opponent is.” He cannot be obliged to grope in the dark against unknown forces.

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LAW ON EVIDENCE 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.

based on the lectures of ATTY. JESS ESPEJO

It is necessary for the operation of the privilege that the physician is acting in his “professional capacity” and that the advice or treatment given or 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. Results of autopsies may not be deemed covered by the privilege because autopsies are not intended for treatment. PROFESSIONAL CAPACITY

RATIONALE To encourage the patient to freely disclose all the matters which may aid in the diagnosis or in the treatment of a disease or an injury. For this purpose, it is necessary to shield the patient from embarrassing details concerning his condition. Accordingly, this privilege protects the interest of the patient. It is designed to promote health, not truth. It encourages free disclosure in the sickroom by preventing disclosure in the courtroom. SURVIVES THE DEATH OF THE PATIENT The privilege survives the death of the patient. Death does not permit the living to impair the deceased’s name by disclosing communications held confidential by law.

The rule does not require that the relationship 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 the result of a quasi-contractual relationship as when the patient is seriously ill and the physician treats him even if he is not in a condition to give his consent as in the situation described in Art 2167 of the Civil Code of the Philippines. (PATIENT IN EXTREMIS) Article 2167 (Civil Code). 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. WHEN INAPPLICABLE:

GONZALES vs. CA (1998)

a.

Communication is not given in confidence.

FACTS: Ricardo Abad died, leaving sizable estate. His siblings, including Gonzales, filed a petition for settlement of the intestate estate of Ricardo and alleged that they were the sole heirs. This was opposed by Honoria Empaynado, claiming that the siblings deliberately concealed the existence of her children with Ricardo as well as another child with another woman.

b.

Communication is irrelevant to the professional employment.

c.

Communication was made for an unlawful purpose, as when it is intended for the commission or concealment of a crime.

d.

Information was intended to be made public.

Why is this relevant? Under the law on succession, in the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased.

e.

There was a waiver of the privilege either by provisions of contract or law.

Also, if there are no children or a surviving spouse, the collateral relatives (siblings) shall succeed to the entire estate of the deceased.

This privilege belongs to the patient, so that it is only he who can claim or waive it. It is waivable expressly or impliedly. It is impliedly waived like any other privilege rule. The waiver may be by a contract as in medical or life insurance.

In answer thereto, the siblings presented the affidavit of Dr. Arenas, Ricardo’s phyisician, delaring that in 1935 or prior to the birth of the supposed children, he had examined Ricardo and found him to be infected with gonorrhea, and that the latter had become sterile as a consequence thereof. ISSUE: Should the affidavit be excluded for violation of the Physician-Patient Privileged Communication Rule? HELD: YES. Ricardo’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 sexuallytransmitted disease, would be sufficient to blacken the reputation of any patient. We thus hold the affidavit inadmissible in evidence, notwithstanding the death of Ricardo.

PRIVILEGE BELONGS TO THE PATIENT

When the patient answers questions on cross examination, there is also a waiver. Rule 28, Section 1. When examination may be ordered. — In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may in its discretion order him to submit to a physical or mental examination by a physician. Section 2. Order for examination. — The order for examination may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties, and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.

TREATMENT

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LAW ON EVIDENCE Section 3. Report of findings. — If requested by the party examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial. Section 4. Waiver of privilege. — By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination. Under Rule 28, 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. LIM vs. CA (1992) This privilege does not apply when the doctor is presented as an expert witness and only hypothetical problems were presented to him. The privilege does not cover expert opinion as long as the witness does not testify to matters specifically referring to the patient. CHAN vs. CHAN (2013) FACTS: On Feb 6, 2006, Josielene filed a petition for the declaration of nullity of her marriage to Johnny. Josielene claimed that Johnny failed to care for and support his family and that a psychiatrist diagnosed him as mentally deficient due to incessant drinking and excessive use of prohibited drugs. During the pre-trial conference, Josielene pre-marked the Philhealth Claim Form that Johnny attached to his answer as proof that he was forcibly confined at the rehab unit of a hospital. The form carried a physician’s handwritten notes that Johnny suffered from methamphetamic and alcoholic abuse. Josielene filed with the RTC a request for the issuance of a subpoena duces tecum addressed to Medical City, covering Johnny’s medical records when he was confined there. Johnny opposed the motion, arguing that the medical records were covered by the physician-patient privilege. Josielene claims that the hospital records subject of this case are not privileged since it is the testimonial evidence of the physician that may be regarded as privileged. Sec 24(c) of Rule 130 states that the physician cannot in a civil case without consent of the patient, be examined regarding their professional conversation. That the privilege does not cover the hospital records, but only the examination of the physician at the trial.

based on the lectures of ATTY. JESS ESPEJO

ISSUE: WON the medical records were covered by the physicianpatient privilege HELD: YES. To allow, however, the disclosure during the discovery procedure of the hospital records – the results of tests that the physician ordered, the diagnosis of the patient’s illness, and the advice or treatment he gave him – would be to allow access to evidence that is inadmissible without the patient’s consent. Physician memorializes all these information in the patient’s records. Disclosing them would be the equivalent of compelling the physician to testify on privileged matters he gained while dealing with the patient, without the latter’s prior consent. KROHN vs. CA (1994) Non-physician testimony on a medical psychologist’s report is NOT covered by the physician-patient privilege. This is hearsay. 4. PRIEST-PENITENT PRIVILEGE (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. Atty JZE: It’s only the Catholic Church that views confession as a course of discipline of the denomination or sect to which the priest belongs. Whether we like it or not, this is only favorable to the Catholics. a.k.a CLERGY PRIVILEGE Communications made by a person to a priest, rabbi, cleric, or minister in the course of confession, or similar course of discipline by other religious bodies, are privileged from disclosure. The communications to clergy members must be made while clergy members are acting in the professional capacity of a spiritual adviser and with the purpose of dispensing religious counsel, advice, solace, or absolution. PROFESSIONAL CAPACITY The person making the confession holds the privilege and the priest or minister hearing the confession in his professional capacity is prohibited from making a disclosure of the confession without consent of the person confessing. The privilege also extends to any advice given by the minister or priest. 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 confessions of sins (Wigmore). As clearly provided in the rule, the advice given as a result of the confession must be made in the minister’s professional character or in his spiritual capacity. Accordingly, where the penitent discussed business arrangements with the priest, the privilege does NOT apply.

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

5. PRIVILEGE OF STATE SECRETS (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. REQUISITES: 1. 2. 3.

YES. Even where the injury is in aid of legislation, there are still recognized exemptions to the power of inquiry, which exemptions fall under the rubric of executive privilege (Senate of the Phils vs Ermita, April 2006). OTHER PRIVILEGED COMMUNICATIONS: 1. RULES ON ELECTRONIC EVIDENCE

The communication must have been made to a public officer; The communication was given to the public officer in official confidence; and The public interest would suffer by the disclosure of the communication. BANCO FILIPINO vs. MONETARY BOARD (1986)

This privilege is intended not for the protection of the public officers but for the protection of public interest. Where there is no public interest that would be prejudiced, this invoked rule will not be applicable. The rule that a public officer cannot be examined as to communication made to him in official confidence does not apply when there is nothing to show that the public interest would suffer by the disclosure in question. The government must establish that public interest would suffer by the disclosure of the papers and documents for the privilege to be invoked. WHEN INAPPLICABLE: If what is asked: 1. is useful evidence to vindicate the innocence of an accused; 2. lessens the risk of false testimony; 3. is essential to the proper disposition of the litigation; 4. the benefit to be gained by a correct disposition of the litigation was greater than any injury which could inure to the relation by a disclosure of the information. IS THE PRIVILEGE APPLICABLE TO ALL PUBLIC OFFICERS IN GENERAL? NO. The privilege only applies to communications to such officers who have a responsibility or duty to investigate or to prevent public wrongs, and not to officials in general. The court, not the witness, will determine the necessity of regarding the communication as privileged. CONCEPT OF EXECUTIVE PRIVILEGE Certain types of information like military, diplomatic, and other national security matters may be withheld from the public. HYPOTHETICAL PROBLEM: Director of Animal Husbandry Matteo received an invitation for questioning in a hearing from the Senate of the Philippines regarding Animal Abuse Scam. During the hearing, Matteo did not answer the questions propounded to him by Senator Pacman, a self-confessed animal lover, claiming that his position entitles him to invoke the executive privilege.

Privileged communications apply even to electronic evidence. Under Sec. 3, Rule 3 of Rules on Electronic Evidence, the confidential character of a privileged communication is not lost solely on the ground that it is in the form of an electronic document. 2. NEWSMAN’S PRIVILEGE Editors may not be compelled to disclose the source of published news. RA 53, Section 1. Without prejudice to his liability under the civil and criminal laws, the publisher, editor, columnist or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news report or information appearing in said publication which was related in confidence to such publisher, editor or reporter x x x 3. POLITICAL VOTE PRIVILEGE Voters may not be compelled to disclose for whom they voted, which is a constitutional privilege to a degree inasmuch as the 1987 Constitution itself mandates the secrecy and sanctity of the ballot. 4. INFORMATION CONTAINED IN TAX CENSUS RETURNS Under RA 2070, as amended by RA 5268, no information in the tax register shall be published except in the form of tabulations or summaries having no reference to individuals. Note however that the income tax returns (ITRs) are NOT confidential. Section 71 of the Tax Code makes ITRs public records and opens them to inspection upon order of the President of the Philippines (Dipad vs Sps Oliban, July 2012) 5. BANK DEPOSITS (RA 1405) Section 2. All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation. However, This Section and Section 3 were both amended by PD No. 1792 issued January 16, 1981, PD 1792 was expressly repealed by Sec 135 of R.A. No. 7653, approved June 14, 1993. The original sections 2 and 3 of R.A. No.1405 are hereby reproduced for reference, as follows:

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

"Section 2. All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written per-mission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials. or in cases where the money deposited or invested is the subject matter of the litigation,"

shall not testify in any court or body regarding the matter taken up at the conciliation proceedings conducted by them.

"Section 3. It shall be unlawful for any official or employee of a banking institution to disclose to any person other than those mentioned in Section two hereof any information concerning said deposits."

9. CHILD WITNESSES

The privileged nature of bank deposits has been diluted by: RA 9372 (Human Security Act of 2007) Section 27. Judicial Authorization Required to Examine Bank Deposits, Accounts, and Records. “ The provisions of Republic Act No. 1405 as amended, to the contrary notwithstanding, the justices of the Court of Appeals designated as a special court to handle antiterrorism cases after satisfying themselves of the existence of probable cause in a hearing called for that purpose that (1) a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) of a judicially declared and outlawed terrorist organization, association, or group of persons, and (3) of a member of such judicially declared and outlawed organization, association, or group of persons, may authorize in writing any police or law enforcement officer and the members of his/her team duly authorized in writing by the anti-terrorism council to: (a) examine, or cause the examination of, the deposits, placements, trust accounts, assets and records in a bank or financial institution; and (b) gather or cause the gathering of any relevant information about such deposits, placements, trust accounts, assets, and records from a bank or financial institution. The bank or financial institution concerned shall not refuse to allow such examination or to provide the desired information, when so ordered by and served with the written order of the Court of Appeals. RA 10168 (An act defining the crime of financing of terrorism)

8. ALTERNATIVE DISPUTE RESOLUTION ACT (RA 9285) Section 9(a) – Information obtained through mediation shall be privileged and confidential. Sec 23 also provides for the confidentiality of arbitration proceedings. Arbitral records in the CIAC are also confidential.

The guardian ad litem shall not testify in any proceeding concercning 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 interest of the child (Sec 5e, Rule on Examination of a Child Witness). 10. INFORMER’S PRIVILEGE Informers, for the protection of their identity, cannot be compelled to testify by the prosecutor when their testimony would merely be cumulative and corroborative. It is the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law. PARENTAL AND FILIAL PRIVILEGE Rule 130, Section 25. Parental and filial privilege. — No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. The privilege does not disqualify a person from testifying against his parents or children or other direct ascendants and descendants. A person may testify against his parents or children voluntarily but if he refuses to do so, the rule protects him from any compulsion. He cannot be compelled to testify against any of the relatives mentioned in the rules. UNDER THE FAMILY CODE:

The AMLC is hereby authorized to inquire into or examine deposits and investments with any banking institution or non-bank financial institution and their subsidiaries and affiliates without a court order.

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.

6. TRADE SECRETS

NOT COVERED:

AIRPHIL vs. PENSWELL, INC., (2007) The chemical composition, formulation and ingredients of respondent’s special lubricants are trade secrets within the contemplation of the law. Rule 27 cannot justify production of information as the same is limited to documents or things that are not privileged in nature.

1. 2. 3. 4. 5.

Relatives by affinity Brothers and sisters Aunts, uncles, nephew, nieces Cousins of whatever degree Other collateral relatives

ADOPTED CHILDREN

7. ART 233 OF THE LABOR CODE

It is believed that adopted and adopter are covered by the parental and filial privilege rule but only insofar as the parent and child is concerned.

All information and statements made at conciliation proceedings shall be treated as privileged communications and shall not be used as evidence in the NLRC, and the conciliators and similar officials

It does NOT extend to the direct ascendants of the adopter because the adoptive relation is between the adopter and the adopted only.

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LAW ON EVIDENCE The reason for this opinion is the rationale behind the privilege, which is to preserve the 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.

based on the lectures of ATTY. JESS ESPEJO

A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to 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.

LEE vs. CA (2010) FACTS: Spouses Lee and Keh entered the Philippines in 1930s as immigrants from China. They had 11 children. In 1948, Lee brought from China a young woman named Tiu, supposedly to serve as housemaid. Tiu left Lee-Keh household, moved into another property of Lee nearby, and had a relation with him. Shortly after Keh died in 1989, the Lee-Keh children learned that Tiu’s children with Lee claimed that they, too, were children of Lee and Keh. This prompted the Lee-Keh children to request the NBI to investigate the matter.

Under this Section, an offer of compromise by the accused is actually an implied admission of his guilt. Admission by declaration Example: A was sued by B for a collection of a debt. In his answer, A categorically denied having contracted any loan to B. However, prior to the case being filed, A spoke to C and told him that he borrowed money from B to buy a car. Q: Can C testify as to what A told him?

Tiu who invoked the filial privilege claims that she is the stepmother of petitioner Emma Lee. ISSUE: WON the privilege can be invoked HELD: NO. The privilege cannot apply to them because the rule applies only to DIRECT ascendants and descendants, a family connected by a common ancestry. A stepdaughter has no common ancestry by her stepmother. Article 965 thus provides: “Art 965. The direct line is either descending or ascending. The former unites the head of the family with those who descend from him. The latter binds a person with those from whom he descend.”

Analysis: Note that the witness to be presented, C, is one who has no personal knowledge about whether there was really a contract of loan between A and B. What he knows is what A told him. A: Under the law, this is hearsay which is normally inadmissible. However, under Section 26, the declaration of a party as to a relevant fact may be given in evidence against him. Note that in the present case, the declaration of A to C is relevant to the fact in issue which is the existence of debt. Thus, C may be able to testify as to what A declared to him. Omission

Consequently, Tiu can be compelled to testify against petitioner Emma Lee.

Omission means failure to act or to make a declaration when one ought to. An example is Section 32.

September 7, 2016

Rule 130, Section 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.

ADMISSIONS AND CONFESSIONS Admissions can be judicial or extrajudicial. A judicial admission or an admission in judicio is a deliberate, clear, and unequivocal statement by a party about a concrete fact within that party’s knowledge.

The perfect example of omission is the case of Estrada vs. Desierto. Q: Are all types of admissions admissible against the party thereto?

Extrajudicial admission (Section 26) Rule 130, Section 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.

A: No. According to whether or not an admission is favorable to the party making it, an admission can either be an admission per se (under Section 26) or a self-serving admission. Self-serving Admission

Admission by an Act Rule 130, Section 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 offeror. In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromised by the accused may be received in evidence as an implied admission of guilt.

It is an admission made by a party out of court at one time and which is favorable to the party making it. It is excluded on the same ground as any hearsay evidence – lack of opportunity for crossexamination by the adverse party, on the consideration that its admission would open the door to fraud and fabrication of testimony. It is an admission favorable to the party making it. (Lichauco vs. Atlantic Gulf)

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LAW ON EVIDENCE Take note that the concept of self-serving admission does not include a party’s testimony as a witness in court. Why? This is because a party’s testimony in court is sworn and affords the other party the opportunity for cross-examination. What is covered therefore is when a third party witness testifies in court about the self-serving admission made by the party.

based on the lectures of ATTY. JESS ESPEJO

Example (actual JZE case) JZE: You mentioned in your answer Mr. Witness, that it was not the plaintiff who planted the crops in the subject land. If it was not the plaintiff, who was it then? Witness (Defendant): I was the one who planted it together with my father.

Requisites of a self-serving admission Atty Um: Objection your honor, self-serving! 1. 2. 3.

The testimony is favorable to the declarant. It is made extrajudicially. It is made in anticipation of litigation. It means that you fear any case that may be filed against you. That is why you do this, you do that.

In anticipation of litigation This requisite covers evidence that is seemingly “planted”, for the lack of a better term. Example: A has been in default of his loan obligations to B Bank. Sensing that B Bank is about to sue him to collect on the debt, A goes around and tells C, D, E that he had actually paid the bank. In effect, by telling C, D, and E that he had already paid the loan, he is actually planting evidence. He can use their testimony to corroborate his defense of payment. Is that allowed? The answer of course is no. Such planted evidence is not admissible, it being selfserving. Take note of the effect if the admission is not self serving: Example: A was sued by B for collection of a debt. In his answer, A categorically denied having contracted any loan from B. However, prior to the filing of the case, A spoke to C, D, and E and told them that he actually borrowed money from B to buy a car. What is different here? He is actually advocating something that would tend to establish a claim against him rather than something that would establish his own interest. Will that be admissible? In this case, C, D, and E can all testify because the admission by A is one that is against his interests instead of being favorable to his cause. Rationale of the inadmissibility of a self-serving admission A man may be safely believed if he declares against his own interests, but not if he advocates his interest. (Lichauco vs. Atlantic Gulf and Pacific, 84 Phil 342) 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 Compnay vs. Workmen’s Compensation Commission) Self-serving admissions, when admissible 1. 2.

If they are made in open court; Giving full opportunity to the adverse party to exercise his right of cross-examination.

Is it self-serving? If you look at the concept of a self-serving admission in the context of whether or not it favors the party making the admission, then that will be serving, but is that the selfserving admission guarded by the law against? That is actually a misconception borne out of ignorance! Not every testimony that is favorable to the party is considered selfserving. If the rule were otherwise, all testimonies of party-litigants would be self-serving and therefore inadmissible because it is very rare for a party to advocate against his own cause. CLEMEÑA vs. BIEN (2006) "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. 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. 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. In contrast, a party's testimony in court is sworn and subject to cross-examination by the other party, and therefore, not susceptible to an objection on the ground that it is self-serving. Another example (actual JZE case) JZE: The defendant testified it was his father and himself, not the Plaintiff, who planted the crops in the subject land. What knowledge do you have of this, if any? Non-party Witness: I know this because they paid me to help them clear the forest. Atty. Um: Objection, Your honor! Self-Serving! Is Atty. Um’s objection correct? No. Take note that a self-serving admission is one made by a party. It does not apply to the testimony of a mere witness who testifies based on his personal knowledge. In this case, the witness has no interest in the case, unless he is a coparty plantiff or a co-party defendant.

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

Another example (actual JZE case): My client filed an action for declaration of the nullity of marriage on the ground of mutual psychological incapacity of both my client and his wife. His wife opposed the petition. During the trial, I presented my client as a witness to testify on what constitutes about his psychological incapacity.

“You have the right to remain in silent. Anything you say can and will be used against you in a court of law.”

JZE: What psychological disorder are you referring to Mr. Witness?

2.) It must be categorical and definite.

Requisites for the admissibility of an admission 1.) It must involve matters of fact and not of law.

It means that it is not susceptible to interpretation. It has to be categorically stated. It must also specifically relate to a definite fact.

Husband: I am a sex maniac, Sir. JZE: Would you care to elaborate? Husband: Sure! I crave for sex constantly. My wife cannot satisfy me on this aspect. Sometimes, I call her to go home just so we can do it. If she refuses, I can’t help but look for it from someone else or I just play with myself.

3.) It must be knowingly and voluntarily made. 4.) It must be adverse to the admitter’s interest. It must be adverse because if not, it will be considered as a self-serving admission and therefore, inadmissible.

OC: Objection, your Honor! Self-serving! Court: Atty. Espejo, Comment?

Adverse to the admitter’s interest

JZE: Your honor, please, this is not self-serving. Counsel can cross examine. Besides, testimony is self-serving only when it is favorable to the witness. Here, your Honor, he is actually advocating against his own interest. Testimony is self-deprecating, your Honor.

Flight is considered a disserving act, since it is prejudicial to the interest of the accused. Flight is considered as circumstantial evidence of his guilt. FATETUR FACINUS IS QUI JUDICUM FUGIT.

Court: Objection is overruled. It is self-deprecating. You may continue.

However, 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.

Was the Court or JZE correct?

ADMISSION CAN EITHER BE

Yes, the court was correct in overruling the objection but the ground relied upon is not correct. Therefore, I am also wrong.

1.) Express - those made in a definite and unequivocal language; or

The fact that the testimony was self-deprecating is not a proper ground. It was destructive of his personality but it is favorable to his cause because if it is to be believed by the court that he is indeed a sex maniac, that will prove his psychological incapacity. Admissions per se under Section 26 An admission is any statement made by a party to a lawsuit, either before a court or during its pendency, which tends to support the position of the other side or diminish his own position. Q: An admission about a fact in issue in a case made while the case is pending will always be a judicial admission. True or False? A: False. It depends on where he made the admission. If he made it in open court, or if he made it in a deposition or in a judicial affidavit, that is a judicial admission. But if he made it outside the court, then it becomes an extra-judicial admission. For example, if a husband sues his wife for divorce on the grounds of adultery, and she states out of court that she has had affairs, her statement is an admission. Any admission made by a party is admissible evidence in a court proceeding, even though it is technically considered hearsay (which is normally inadmissible). Now cross reference this with Miranda Rights enshrined in Article 3, Section 12 (1) of the Constitution:

2.) Implied - those which may be inferred from the act, conduct, declaration, omission, or silence of a party. EXAMPLES OF IMPLIED EXTRA-JUDICIAL ADMISSIONS 1.

Laches

Laches is 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 considered to be an implied admission of lack of merit of one’s cause of action. 2.

Flight and Concealment

Flight strongly indicates a guilty mind and betrays the existence of guilty conscience. It is an implied admission of guilt. (People vs. Herrera) 3.

Silence

Rule 130, Section 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. PEOPLE vs. ESPANOL (2009)

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LAW ON EVIDENCE 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 under Section 27, Rule 130. 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. 4.

Offer of Compromise

An offer of compromise by the accused may be received in evidence as an implied admission of guilt. (Section 27, Rule 130) The repeated offer of one conspirator constitutes a strong indication and an implied admission of guilt of said conspirator and the two accused and appellants in this case. (US vs. Torres). 5.

Plea of Forgiveness

The perfect example is the case of People vs. Abadies, which is about a father who raped his own daughter. He sent a letter asking for his daughter’s forgiveness. PEOPLE vs. ABADIES (2002) A cursory reading of the relevant parts of the letter will readily show that accused-appellant 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 sobra-sobra 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. 6.

Offer of Marriage

based on the lectures of ATTY. JESS ESPEJO

A change for the better in the financial condition of a person accused of a crime involving money, immediately or shortly after the date of the crime, may be shown upon the theory that sudden and unexplained possession of funds has a tendency to connect said person to the said crime. COMPROMISES Rule 130, Section 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 offeror. 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 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. The Good Samaritan Rule provides that, in both civil and criminal cases, 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. Civil Code Provisions on Compromise Art. 2028. A compromise is a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced. Art. 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. Art. 2035. No compromise upon the following questions shall be valid: (1) The civil status of persons; (2) The validity of a marriage or a legal separation; (3) Any ground for legal separation; (4) Future support; (5) The jurisdiction of courts; (6) Future legitime.

An offer of marriage during the investigation of the rape case is considered an implied admission of guilt. (People vs. Oliquino)

Under Section 27, an offer of compromise by the accused may be received in evidence as an implied admission of guilt except:

7.

Withdrawal of Appeal and Acceptance of Lowered Penalty

8.

Influence

1. 2. 3.

An attempt to influence witnesses, whether the influence tended to bring forth false testimony, or to suppress evidence, is an implied admission of the weakness of a party’s cause. 9.

Sudden Affluence

in cases involving quasi-offenses (criminal negligence); those allowed by law to be compromised; Godoy Doctrine (See discussion below)

Examples of cases allowed by law to be compromised 1.

Sec 204, NIRC of the 1997, as amended by Republic Act No. 7646, which lays down the power of the BIR Commissioner to compromise tax liability.

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LAW ON EVIDENCE 2.

3.

Paragraph 2 of Article 144 of the Philippine Cooperative Code expressly provides that all unpaid assessments of previously registered cooperatives shall be the subject of compromise settlement on terms favorable to such cooperatives. Criminal cases which are mandatory subject of arbitration and mediation.

based on the lectures of ATTY. JESS ESPEJO

SECOND PART. Under Rule 130, Section 34, 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. FIRST PART OF RES INTER ALIOS ACTA RULE

Godoy Doctrine PEOPLE vs. GODOY (1995) 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 or for some other reason which would justify a claim by the accused that the offer to compromise was not in truth an admission of his guilt or an attempt to avoid the legal consequences which would ordinarily ensue therefrom. Atty JZE: Remember that the Godoy Doctrine is not really a direct restriction but merely a limited restriction. Why? It is because of the general rule that an offer of compromise is an implied admission of guilt. What Godoy is saying is if you made an offer, you are allowed to plead that you made an offer not because you are guilty but because you want to avoid the consequences of a prolonged trial or inconvenience of imprisonment. Summary: An offer of compromise is admissible as an implied admission of guilt. But you can rebut the presumption. That is what Godoy is saying. IT IS ADMISSIBLE BUT REBUTTABLE. PEOPLE vs. YPARRIGUIRRE (1997) 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. This means that an offer to compromise may be made in anticipation of a litigation. That is why lawyers will immediately tell their client to settle the case before a formal complaint is filed. After settlement, the victim will have to sign a waiver. In that situation, if the victim will still file a case, what you should do is file a motion to dismiss and offer as evidence the waiver signed. RES INTER ALIOS ACTA RULE Rule 130, Section 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. Latin Maxim: Res Inter Alios Acta Alteri Nocere Non Debet English Translation: Things done between strangers ought not to injure those who are not parties to them. TWO PARTS OF THE RULE FIRST PART. The rights of a party cannot be prejudiced by an act, declaration, or omission of another. This means that statements made or matters accomplished between two parties cannot prejudice a third party. (Blanza vs. Arcangel, 21 SCRA 4)

The rights of a party cannot be prejudiced by an act, declaration, or omission of another. A person’s admission is binding upon himself but his admission is binding upon himself but his admission cannot bind another. Otherwise, it would be unfair and inequitable. Example: A filed a case against B and C for ejectment. B and C are 30-year occupants of the land which was previously unregistered under the Torrens System. Suddenly, in 2015, A came to the land and showed B and C his Certificate of Title and demanded that they vacate the property. In 2016, during trial, B settled with A and executed a quitclaim stating that B has no right whatsoever over the land. Q: Can A claim that, since B and C are similarly situated with similar defenses, B’s quitclaim should also apply to C? A: No. the right of C cannot be prejudiced by the act and declaration by B, applying the Res Inter Alios Acta Rule. Q: Suppose B, in his quitclaim, also stated categorically that C’s defenses are false and that B and C did not really possess the land for 30 years. Can that bind C? A: Again, no. By virtue of Res Inter Alios Acta Rule, C cannot be prejudiced by the act or declaration of B. However, take note of the effect that A can call B as his witness and ask him to testify. His testimony is admissible, subject to cross examination by C. EXCEPTIONS TO THE RES INTER ALIOS ACTA RULE: 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: 1. 2. 3. 4. 5.

partnership agency joint interests conspiracy or privity

VICARIOUS ADMISSIONS Rule 130, Section 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. Note that under Section 29, there are three vicarious admissions: 1. 2.

admission by a partner admission by an agent

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LAW ON EVIDENCE 3.

based on the lectures of ATTY. JESS ESPEJO

admission by a joint owner, joint debtor, or other person jointly interested with the party.

Q: If A defaults, can C use the declaration of A in order to hold B liable?

Example: A filed a case against B and C for ejectment. B and C claim to be co-partners or co-owners and 30-year occupants of the land which was previously unregistered under the Torrens system. They claim that they contributed money and industry in the cultivation of the land for 30 years. Suddenly, in 2015, A came to B and C, showed his certificate of title, and demanded them to immediately vacate the land. In 2016, during trial, B settled with A and executed a quitclaim stating that B has no right whatsoever over the land.

A: No. The rights of B cannot be prejudiced by the act or declaration of C. This is because there are no indications from the facts that he was able to establish the existence of the partnership by evidence other than such act or declaration.

Q: Can A claim that B’s quitclaim be admitted against C? Atty JZE: This is similar to the previous example that I gave you under Res Inter Alios Acta Rule. In the previous example, remember that C cannot be prejudiced by the act or declaration by B. A: This time, YES. They are co-owners or partners over the land. Thus, the rights of C can now be prejudiced by the act or declaration of B. The quitclaim executed by B is admissible against C. Now, they are vicars. They stand in the place of each other.

Q: What should C do? A: He must first establish by testimonial or documentary evidence the existence of the partnership, independent of the act or declaration of A that he and B are partners. For instance, C can present documentary evidence such as an Articles of Partnership or contracts jointly entered by A and B as partners. C can also present the testimony of a witness other than the declarant which establishes the partnership may be introduced. If C succeeds, that is the time he can now introduce into evidence the declaration of A. Note: The declaration alone cannot be used to establish the partnership or agency.

RATIONALE VILLANUEVA vs. BALAGUER (2009) The partner or co-agent is, in legal contemplation, a MERE EXTENSION OF THE PERSONALITY of the partner or principal and unless he acts in his own name, the partner and the principal must comply with all the obligations which the co-partner or agent may have contracted within the scope of his authority. Hence, whatever is said by a co-partner or agent to third person, during the course of the partnership or agency and within the scope of his actual or apparent authority, relative to the business contemplated by the partnership or agency, is for legal purposes also the statement of the co-partner or principal and is therefore, admissible against him. REQUISITES UNDER SECTION 29 1.

There is an act or declaration of a partner or agent that is prejudicial to the other co-partner or principal;

2.

The act or declaration must have been within the scope of the partner or agents authority;

3.

During the pendency of the labor case, news articles about irregularities in IBC-13 were published in several newspapers. In these news articles, respondent Virgilio P. Balaguer, then President of IBC-13, was quoted to have said that he uncovered various anomalies in IBC-13 during his tenure which led to the dismissal of an Operations Executive for selling forged certificates of performance.

If a partner performs acts which are ultra-vires or beyond the scope of his authority, then this exemption will not apply. The general rule will apply that whatever he does, whatever he says, it will not bind the partner and the principal.

On September 25, 1992, petitioner Villanueva filed before the Regional Trial Court of Quezon City a complaint for damages against Balaguer, which was later amended by impleading IBC-13 as additional defendant.

The act or declaration must have been made during the existence of the partnership or agency;

Petitioner claimed that respondents caused the publication of the subject news articles which defamed him by falsely and maliciously referring to him as the IBC-13 Operations Executive who sold forged certificates of performance.

It does not apply if made before the agency or even after the partnership or agency is terminated. 4.

FACTS: On March 31, 1992, petitioner Francisco N. Villanueva, then Assistant Manager for Operations of Intercontinental Broadcasting Corporation Channel 13 (IBC-13) was dismissed from employment on the ground of loss of confidence for purportedly selling forged certificates of performance, which are official reports certifying the airing of ads for the entities that placed the ads. These reflect the dates and times when the ads were broadcast as required by the COMELEC. Contesting his termination, petitioner filed a complaint for illegal dismissal before the National Labor Relations Commission.

The existence of the partnership or agency must be shown by evidence other than such act or declaration.

Shown by evidence other than such act or declaration Example: A secured a loan from C. A claimed that he is obtaining the loan in behalf of his partnership with B.

IBC-13 also denied participation in the publications, claiming that the press statements were done solely by Balaguer without its authority or sanction. IBC-13 also filed a counterclaim against petitioner and a cross-claim against Balaguer. In its cross-claim against Balaguer, IBC stated that “The acts complained of by the plaintiff were done solely by co-defendant Balaguer. Balaguer resorted to these things in his attempt to stave off his impending removal from IBC.”

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LAW ON EVIDENCE Villanueva therefore points to this as an admission that can be taken against Balaguer inasmuch as this is an admission of IBC that its own agent, Balaguer, committed the libelous acts. ISSUE: Whether or not Section 29 applies. HELD: Rule 130, Section 29 does not apply. IBC-13’s cross-claim against Balaguer effectively created an adverse interest between them. Hence, the admission of one defendant is not admissible against his co-defendant. NARRA NICKEL MINING vs. REDMONT MINING (2014) FACTS: Narra Mining, Tesoro Mining, and McArthur Mining filed Mineral Production Sharing Agreement (MPSA) applications before the DENR over an area in Palawan. Redmont also filed an application for the same area and opposed the other applications on the ground that the other applicants are disqualified as they are controlled by MIBMI Resources Inc, a 100% Canadian corporation. The DENR granted Redmont’s application and disqualified the others. On appeal, the CA justified upholding Redmont’s contention using the exceptions to the Res Inter Alios Acta Rule (Section 29 and 31) on the ground that corporate documents of MBMI Resources, Inc. furnished its stockholders in their head office in Canada suggest that they are conducting operations through local counterparts. Petitioners question the CA’s use of the exception of Res Inter Alios Acta or the “admission by co-partner or agent” rule and “admission by privies” under the Rules of Court in the instant case, by pointing out that statements made by MBMI should not be admitted in this case since it is not a party to the case and that it is not a “partner” of petitioners. Atty JZE: This argument is really good because if you remember, a corporation cannot be a partner in a partnership. ISSUE: Can you apply the term “partner” for a corporation doing business through a local subsidiary? HELD: Yes. A partnership is defined as two or more persons who bind themselves to contribute money, property, or industry to a common fund with the intention of dividing the profits among themselves. On the other hand, joint ventures have been deemed to be "akin" to partnerships. Since it is difficult to distinguish between joint ventures and partnerships, thus: [T]he relations of the parties to a joint venture and the nature of their association are so similar and closely akin to a partnership that it is ordinarily held that their rights, duties, and liabilities are to be tested by rules which are closely analogous to and substantially the same, if not exactly the same, as those which govern partnership. In fact, it has been said that the trend in the law has been to blur the distinctions between a partnership and a joint venture, very little law being found applicable to one that does not apply to the other. Though some claim that partnerships and joint ventures are totally different animals, there are very few rules that differentiate one from the other; thus, joint ventures are deemed "akin" or similar to a partnership. In fact, in joint venture agreements, rules and legal incidents governing partnerships are applied.

based on the lectures of ATTY. JESS ESPEJO

Accordingly, culled from the incidents and records of this case, it can be assumed that the relationships entered between and among petitioners and MBMI are no simple "joint venture agreements." As a rule, corporations are prohibited from entering into partnership agreements; consequently, corporations enter into joint venture agreements with other corporations or partnerships for certain transactions in order to form "pseudo partnerships." Obviously, as the intricate web of "ventures" entered into by and among petitioners and MBMI was executed to circumvent the legal prohibition against corporations entering into partnerships, then the relationship created should be deemed as "partnerships," and the laws on partnership should be applied. Thus, a joint venture agreement between and among corporations may be seen as similar to partnerships since the elements of partnership are present. Considering that the relationships found between petitioners and MBMI are considered to be partnerships, then the CA is justified in applying Sec. 29, Rule 130 of the Rules by stating that "by entering into a joint venture, MBMI have a joint interest" with Narra, Tesoro and McArthur. DOCTRINES TO REMEMBER 1.

The fact that a counter-claim was filed against the putative copartner or agent makes Section 29 inapplicable (see VILLANUEVA vs. BALAGUER)

2.

Section 29 is applicable to joint ventures between corporations, foreign and domestic. (see NARRA vs. REDMONT)

Rule 130, Section 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 of declaration. Under Section 30, the existence of the conspiracy, which exists when two or more persons come into an agreement concerning the commission of a felony, must be established by evidence other than the act or declaration of the conspirator. THE RAPE OF RRRAMON: AN ILLUSTRATION A month after Rrramon was kidnapped, rendered unconscious and molested, Bangs was arrested as main suspect of the crime. When she was interviewed on TV, she admitted her participation in the crime and implicated Maja and Sarah as her fellow culprits in planning and executing the crime. Q: Is her statement admissible? A: It is admissible against herself by reason of Section 26, which provides that the act, declaration, or omission of a party as to a relevant fact may be given in evidence against him. But as to Maja and Sarah, it is not admissible as a general rule because Section 28 provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. Q: How to implicate Maja and Sarah? A: The requisites under Section 30 must be present.

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LAW ON EVIDENCE REQUISITES UNDER SECTION 30 1. 2. 3.

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

Q: Going back to the example, did the declaration relate to the conspiracy? Yes.

based on the lectures of ATTY. JESS ESPEJO

4.

Where the statement of the co-conspirator is made as witness in court, there is no need for the conspiracy to be shown by independent evidence. (People vs. Serrano)

Q: Are extrajudicial admissions made by a conspirator after the conspiracy has terminated and even before the trial admissible against the co-conspirator? A: No, except in the following cases: 1.

If made in the presence of the conspirator who expressly or impliedly agreed therein;

2.

Where the facts in said admission are confirmed in the individual extrajudicial confessions made by the co-conspirator after their apprehension;

3.

As a circumstance to determine the credibility of the witness; or

A: It is because conspiracy cannot be proved by direct evidence. Necessarily, it has to be proven by circumstantial evidence in the form of testimonies. There is no documentary evidence because the conspirators do not reduce their agreement into writing.

4.

As circumstantial evidence to show the probability of the coconspirators participation in the offense.

So if the prosecutors can present testimonies that tend to establish the existence of conspiracy by clear and convincing evidence, the declaration may be admissible.

These are extrajudicial confessions identical in their material respects.

Q: Was the declaration made during the existence of the conspiracy? No, the declaration of Bangs was made long after the conspiracy was over. Q: Can the prosecutors prove the conspiracy other than the declaration of Bangs? Maybe. But how? Q: Why evidence aliunde?

THE RAPE OF RRRAMON (Same example but this time, admissible) Rrramon was kidnapped, rendered unconscious and molested. Before Rrramon was abducted, Julia overheard Bangs, Maja and Sarah planning the crime. Bangs also told her manager about their plan to abduct Rrramon because he was “so darn cute but pakipot.” Bangs was arrested and she promptly implicated Maja and Sarah. Is Bang’s statement to her manager admissible? Q: Applying the requisites, did the declaration relate to the conspiracy? Yes. Q: Was the declaration made during the existence of the conspiracy? Yes. The declaration of Bangs was made during the existence of the conspiracy. Q: Can the prosecutors prove the conspiracy other than the declaration of Bangs? Yes. They can present Julia who overheard them planning the abduction. DOCTRINES TO REMEMBER 1.

Incriminating declarations of a co-conspirator made in the absence or without the knowledge of the others after the conspiracy has come to an end is inadmissible.

2.

The arrest of the declarant results in the termination of the conspiracy. Anything said by the declarant out-of-court after that would not anymore be made “during its existence.”

3.

If the declarant takes the witness stand and repeats the extrajudicial admission about his co-conspirators in court, the same is admissible.

INTERLOCKING CONFESSIONS

Extrajudicial confessions independently made without collusion and are identical with each other in their material respects and confirmatory of the others 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 vs. Encipido, 146 SCRA 492) Rule 130, Section 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. REQUISITES UNDER SECTION 31 1. 2. 3.

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

Take note that under Section 31, the declaration must be prejudicial over the claim in the property because otherwise, you apply the Res Inter Alios Acta Rule. Stated in another way, you cannot apply Section 31 as an exception if the declaration made is not adverse to the claim in the property. WHO ARE PRIVIES? Those who have mutual or successive relationship to the same rights of property or subject matter such as personal representatives, heirs, devisees, legatees, assigns, voluntary grantees, or judgment creditors or purchasers from them with notice to the facts. (Black Law’s Dictionary) The Supreme Court, in certain cases, calls this as “causahabientes” or successor, assignee, or heir. Examples:

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LAW ON EVIDENCE 1. 2. 3.

A lessor and his lessee, a grantor and a grantee, an assignor and an assignee (by contract) An executor or an administrator and the estate of the deceased ( by representation) An heir and his ascendant (by blood)

Illustration: X, the 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. DOCTRINE TO REMEMBER When the former owner of the property made the declaration after he ceased to be the owner of the property, the rule on admission by privies does not apply and what applies is the general rule that the rights of a party cannot be prejudiced by the act, declaration or omission of another (Gevero vs. IAC, 189 SCRA 201)

September 9, 2016 SECOND PART OF RES INTER ALIOS ACTA RULE Rule 130, Section 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 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. The rule prohibits the admission of the so-called "propensity evidence" which is evidence that tends to show that what a person has done at one time is probative of the contention that he has done a similar act at another time. Why is it that that is a rule of thumb? There are two simple issues that we need to remember here: 1. 2.

Issue of relevancy Issue of propriety

WHY INADMISSIBLE? ■ ISSUE OF RELEVANCY. What a person did in the past is irrelevant to the issue of whether he did what he is charged at present. ■ ISSUE OF PROPRIETY. Evidence of similar acts or occurrences compels the defendant to meet allegations that are not mentioned in the complaint, confuses him in his defense, raises a variety of relevant issues, and diverts the attention of the court from the issues immediately before it. (CRUZ vs. COURTOF APPEALS) EXCEPTIONS UNDER SECTION 34 1.

MODUS OPERANDI

Evidence of similar acts may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit custom or usage, and the like.

based on the lectures of ATTY. JESS ESPEJO

When you admit evidence of similar acts by way of this exception, you are not actually receiving evidence as to the truth. In the example I gave you, there’s this guy MATEO who has this habit of molesting his helper. In 2010, he was accused of rape, he settled this case. 2011 – accused of acts of lasciviousness this time by his labandera (settled). 2012 – rape again this time, accused by his cook (settled). This year, he was again accused of molesting his helper. When you say that evidence of similar acts may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like, you are not actually receiving evidence of why he did it. But this will become a circumstantial evidence to prove that he has a propensity to do these acts by the weight of this history. Illustrative Case: CRUZ vs. CA (1998) FACTS: The Cruz heirs (Sunshine, Geneva and Rayver) executed a deed of partition of their father's estate. In the said Deed, they declared themselves to be the absolute owners over the respective lands adjudicated to them individually. Subsequently, however, the same heirs executed a MOA which stated that: "Despite the execution of the Deed of Partition and the eventual disposal or sale of their respective shares, the contracting parties herein covenanted and agreed among themselves that they shall share alike and receive equal shares from the proceeds of the sale of any lot or lots allotted to and adjudicated in their individual names by virtue of this deed of partial partition." Atty JZE: What I’m trying to point out here based on the facts so far is that there is this estate, there are heirs and they already partitioned it so they put an end to their co-ownership. They declared that whatever was given to them by way of partition, is already theirs. They are the absolute owners of the property. But subsequently for whatever reason, they executed a MOA. So what is the effect of that? You can actually contend that because they are still sharing in the proceeds, there still exists some semblance of co-ownership. Why did this become an issue? Because… Geneva obtained a loan which she was unable to pay. A case was filed against her which she lost. Still unable to pay, a parcel of land adjudicated to Geneva under the Deed of Partition was levied on execution and was bought by her creditor as highest bidder. Her coheirs filed a case to question the execution sale on the ground that, as co-owners, they have the right to redeem the property. Atty JZE: Remember that there are two contracts here. First is the deed of partition where they declared that they are absolute owners of the land adjudicated to them. Second, the MOA where they agreed to share proceeds. So if you are a co-owner, remember that you have the right of redemption to keep the property within the family. During trial, Geneva's creditor belied this co-ownership by presenting deeds of sale and contracts of mortgage entered into by Geneva where she stated that she was the absolute owner of the lands given to her by the Deed of Partition, including the one levied upon during execution. Geneva objected on the ground of Res Inter Alios Acta.

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LAW ON EVIDENCE Atty JZE: What is the creditor here trying to do? The creditor is trying to establish that by prior contracts entered into by Geneva, she has already declared that she is the absolute owner of such property. This includes a contract of mortgage executed over the very same property levied at execution. . HELD: Res inter alios acts prohibits the admission of evidence that tends to show that what a person has done at one time is probative of the contention that he has done a similar as act at another time. Evidence of similar acts or occurrences compels the defendant to meet allegations that are not mentioned in the complaint, confines him in his defense, raises a variety of irrelevant issues, and diverts the attention of the court from the issues immediately before it. Hence, this evidentiary rule guards against the practical inconvenience of trying collateral issues and protracting the trial and prevents surprise or other mischief prejudicial to litigants. The rule, however, is not without exception. While inadmissible in general, collateral facts may be received as evidence under exceptional circumstances, as 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. Atty JZE: According to the SC, this is an exception that is applicable. Is there any rational similarity? Is there any resemblance to prove what was probably the state of mind of Geneva at the time the property was levied at execution? Is she of the belief that there is coownership or that she is the absolute owner of the property? Evidence of similar acts may frequently become relevant, especially 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.

based on the lectures of ATTY. JESS ESPEJO

1.

MODUS OPERANDI – What do you need to remember here? When you admit evidence of similar acts by way of exception of MODUS OPERANDI, you are not admitting evidence for its truth, YOU ARE ADMITTING IT AS CIRCUMSTANTIAL EVIDENCE OF SUCH PROPENSITY. In all probability, because this is what he tends to do all the time, there is probability that he may have done something similar to it.

2.

RATIONAL SIMILARITY- 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 vs. CA)

3.

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.

Rule 130, Section 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. Now, what’s the first instinct of man? Self-preservation. If you hear something that’s damning to you, your natural reaction is to correct a possible misconception. But when something is done or said that ought to have affected you and you did not react, the logical presumption is that maybe you did not react because it might be true.

In this case, petitioners argue that transactions relating to the other parcels of land they entered into, in the concept of absolute owners, are inadmissible as evidence to show that the parcels in issue are not co-owned. The court is not persuaded. Evidence of such transactions falls under the exception to the rule on the res inter alios acta. Such evidence is admissible because it is relevant to an issue in the case and corroborative of evidence already received.

REQUISITES UNDER SECTION 32

Atty JZE: So that’s when you apply this exception. First, when it is relevant – there’s a rational resemblance. Second, if it is used as corroborative evidence of evidence already received. READ THIS CASE! IT IS VERY IMPORTANT. Gamay man gud questions under this section so in all probability, if this topic is asked in the bar, this will be the case.

5. 6.

The relevancy of such transactions is readily apparent. The nature of ownership of said property should be the same as that of the lots in question since they are all subject to the MOA. If the parcels of land were held and disposed by petitioners in fee simple, in the concept of absolute owners, then the lots in question should similarly be treated as absolutely owned in fee simple by Geneva's creditor. Unmistakably, the evidence in dispute manifests petitioner’s common purpose and design to treat all the parcels of land covered by the deed of partition as absolutely owned and not subject to coownership. SUMMARY OF ALL EXCEPTIONS

1. 2. 3. 4.

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

DOCTRINES TO REMEMBER 1.

The rule does not apply when a person is under an official investigation. A person under a custodial investigation for the commission of an offense has the right to remain silent and to be informed of that right. Why? Because even if it is under custodial investigation, you have the right to remain silent. You have even the right to be told that you have the right to remain silent. So when your silence is pursuant to that, then it is not admission.

2.

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)

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LAW ON EVIDENCE 3.

Where no good reason exists for the party to comment on the act or declaration, as when the act or declaration was not specifically directed to the party who remained silent, the rule does not apply.

4.

The rule also does not apply when the party had no opportunity to comment on the act or declaration.

5.

Where the act or declaration was made in the course of an official investigation (People v. Tia Fong, 98 Phil. 609) or when his silence is upon the advice of counsel, the rule does not apply.

There are reasons why lawyers do the talking and the clients are just supposed to keep quiet unless they are asked.

based on the lectures of ATTY. JESS ESPEJO

Estrada did not object to the suggested option but simply said he could never leave the country. HELD: His silence on this and other related suggestions can be taken as adoptive admissions by him. 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. SIR: Again, I criticize this case: 1.

It is based on Hearsay Evidence. It is not based on personal knowledge. To my mind, this is triple-deck hearsay.

2.

The SC practically invented an exception to the doctrine of Res Inter Alios Acta Rule taken from American Jurisprudence. Somehow, to my mind, what is important here is to really put the Arroyo administration on legit grounds. The grounds by the SC are quite flimsy but the SC had no choice because at that time, Arroyo is already in Malacanang. SC said “WE ARE FINAL NOT BECAUSE WE ARE INFALLIBLE, WE ARE INFALLIBLE ONLY BECAUSE WE ARE FINAL.”

DOCTRINE OF ADOPTIVE ADMISSION It states that a party may, by his words or conduct, voluntarily adopt or ratify another's statement. Where it appears that a party clearly and unambiguously assented to or adopted the statements of another, evidence of those statements is admissible against him. It is a party's reaction to a statement or action by another person when it is reasonable to treat the party's reaction as an admission of something stated or implied by the other person. EFFECT: A third person's statement becomes the admission of the party embracing or espousing it.

Section 32: “Qui Tacet Consentire Videtur.” - He who is silent is deemed to consent. Rule 130, Section 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.

Why is it discussed under Sec. 32? Because the effects are the same. WHAT IS A CONFESSION? Section 32 – admission by silence, you ought to have reacted but failed to do so despite having an opportunity to do so. So the effect is you admit it by your silence. Under the doctrine of adoptive admission, someone says a statement but somehow, because of what you say or what you do, you did not refute it, you are deemed to have adopted it. That statement becomes the admission of the party who adopts the statement. ADOPTIVE ADMISSION MAY OCCUR WHEN: a. b. c. d.

e.

Expressly agrees to or concurs in an oral statement made by another; Hears a statement and later on essentially repeats it; Utters an acceptance or builds upon the assertion of another; Replies by way of rebuttal to some specific points raised by another but ignores further points which he or she has heard the other make; or Reads and signs a written statement made by another. (Republic v. Kendrick Development Corp., G.R. 149576, Aug. 8, 2006)

It is a categorical acknowledgment of guilt made by an accused of the offense charged or of any offense necessarily included therein, without any exculpatory statement or explanation. Thus, even if he admits the offense but alleges a justification therefor, the same is merely an admission. It cannot be considered a confession. From the definition, what do we need to remember, CATEGORICAL. He has to say “YES I DID IT! I killed that guy.” AND WITHOUT ANY EXCULPATORY STATEMENT – “Yeah I killed him but…” No buts. CLASSIFICATIONS OF CONFESSION 1.

It can happen while the witness is in the witness stand or it could be during pre-trial. Remember the so called Fule Doctrine that we discussed where it was categorically declared by the SC that any agreement, confession or admission made during pretrial must be signed by the accused and counsel, otherwise those admissions are inadmissible.

ESTRADA vs. DESIERTO (2001) One good example of adoptive admission is the alleged admission made by President Estrada. His options had dwindled when, according to the Angara Diary, the Armed Forces withdrew its support from him as President and Commander-in-Chief. Thus, Angara had to allegedly ask Senate President Pimentel to advise Estrada to consider the option of "dignified exit or resignation."

Judicial confession is one made by the accused before a court in which the case is pending and in the course of legal proceedings therein and, by itself, can sustain conviction.

2.

Extrajudicial confession— is one made in any other place or occasion and cannot sustain a conviction unless corroborated by evidence of corpus delicti.

So, a judicial confession is sufficient in itself to convict. An extrajudicial confession, on the other hand, is not sufficient to

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LAW ON EVIDENCE convict but admissible, and when corroborated by evidence of corpus delicti, would be sufficient to produce a conviction.

based on the lectures of ATTY. JESS ESPEJO

4.

If they are charged as co-conspirators of the crime which was confessed by one of the accused and said confession is used only as corroborating evidence;

5.

Where the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator;

6.

When the confessant testified for his co-defendant; and

7.

Where the co-conspirator's extrajudicial corroborated by other evidence of record.

REQUITES FOR A CONFESSION TO BE ADMISSIBLE AS EVIDENCE 1.

It must involve an express and categorical acknowledgement of guilt; This must be unequivocal.

2.

Facts admitted must be constitutive of a criminal offense; In other words, if you are charged with murder and yet you admitted only to a robbery, it would not suffice as a confession. It must have been given voluntarily;

4.

It must have been intelligently made, the accused realizing the importance or legal significance of his act;

Admission Statement of fact which does not involve an acknowledgement of guilt or liability : it may be an acknowledgment of guilt or liability but not all the time, remember that there are self serving or favorable admission

During trial or even during plea bargain, the judge should always ask: “Are you making this intelligently, voluntarily and with full knowledge of the consequences?” 5.

There must have been no violation of Section 12 (Miranda rights), Art. III of the 1987 Constitution.

CONFESSION IS EVIDENCE OF HIGHER ORDER (compared to object evidence)

Form

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)

Made by

Party or 3rd person

Type of case

example of 3rd persons: partner, agent, privy Any case

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) Q: May the extra-judicial confession of an accused be admitted in evidence against his co-accused? A: No, because of the general rule on Res Inter Alios Acta. However, there are exceptions.

is

Admission vs. Confession

Definition 3.

confession

Express/Implied

Confession

Declaration acknowledging one’s guilt of the offense charged

Must be express should be categorical The party himself (accused) Criminal case

BAR QUESTION 2014 Rene, bothered by his conscience, surrendered to the authorities with his counsel. As his surrender was broadcasted all over media, Rene opted to release his statement to the press which goes: "I believe that I am entitled to the presumption of innocence until my guilt is proven beyond reasonable doubt. Although I admit that I performed acts that may take one's life away, I hope and pray that justice will be served the right way. God bless us all” Love, Rene Q: Is this a confession?

EXCEPTIONS 1.

In case of implied acquiescence of the co-accused to the extrajudicial confession;

2.

In case of interlocking confessions;

3.

“I confessed!” and then the other co accused would also testify as to practically the same confession. Where the accused admitted the facts stated by the confessant after being apprised of such confession;

Atty JZE: Is it a categorical and express acknowledgement of guilt that is also unconditional and unqualified? Take note that he only said “Although I admit that I performed acts that may take one's life away” So it is not categorical. It is not constitutive of an offense. A: No. Rene's statement is not a confession but an admission. A confession is one wherein a person acknowledges his guilt of a crime, which Rene did not do. RULE RE: EXTRAJUDICIAL CONFESSIONS

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

Rule 133, Section 3. An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti.

Atty JZE: Be mindful of these things because these are the kind of questions that I love to ask in the exam. Something that would test your foundation or stock knowledge.

Corpus delicti (body of the crime) means the actual commission of the crime charged (People vs. Madrid, 88 Phil. 1), or the specific fact of loss or injury (People vs. Garcia, 99 Phil. 381).

Rule 130, Section 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.

In a crime of murder, the corpus delicti therefore is the body of the deceased person. So you cannot convict an accused unless you present the body of the deceased? TAMA or MALI? MALI, you don’t need to produce the body of the victim. That would be scary! Objection your honor, I’m scared! Is it possible to convict an accused for the crime of murder if the body of the victim was never found? YES. Jurisprudence provides that there can still be conviction. So do not interpret corpus delicti literally because it does not mean “the body”. It means the actual commission of the crime charged or the specific fact or loss. EXAMPLES OF CORPORA DELICTI 1.

In murder or homicide, the corpus delicti is the fact of death which may be proved even circumstantially. (People vs. Garcia)

2.

In robbery or theft, the corpus delicti is fact of loss (People v. Niem, 75 Phil. 668).

3.

In arson, the corpus delicti is the fact of burning. (People v. Marquez, 77 Phil. 83)

Rule 133, Section 3 in effect requires that, for a conviction to be made based on an extrajudicial confession, there must be evidence of corpus delicti. Thus, the law absolutely requires more than one type of evidence to convict the accused. (extrajudicial confession + corpus delicti). Q: What are other instances where the law absolutely mandates the presentation of more than one type or piece of evidence in order to prove a matter of fact?

Atty JZE: Sleep the night away because Section 35 will never be asked in the bar exams.

September 14, 2016 HEARSAY RULE Rule 130, 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. Atty. Espejo: In my experience, majority of objections come from this (hearsay rule) after objections based on relevancy and competency of witnesses. Take note on the requirement that when you testify or give testimonial evidence in a case in court, it has to be based on personal knowledge, your own personal perception. What did you see, smell, taste, or touch? Beyond that, or when it was related to you by somebody else, that is no longer considered as an admissible testimony. BASICS 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.

Atty JZE: I’ll tell you examples where even one piece of evidence is sufficient to convict: 1. 2.

Conviction for rape can be made even from the sole testimony of the victim. Conviction for murder can be made even from just the testimony of one eyewitness.

A: Going back to the question, the following are the other instances where the law mandates the presentation of more than one type of evidence to prove a matter of fact: 1. 2.

3.

A conviction based on circumstantial evidence requires that there be more than one circumstance (Rule 133, Section 4). In the crime of treason under Art. 114 of the Revised Penal Code, no person shall be convicted unless on the testimony of two witnesses at least to the same overt act or on confession of the accused in open court. A person executing the notarial will should sign on every page and must be witnessed by at least three (3) persons who should also sign the will (Art. 805, Civil Code of the Philippines).

UNCHUAN vs. LOZADA (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. Atty. Espejo: The situation in vision there is that there would be a witness who will testify in court as to what somebody else told him. Have you cross-examined that person who told him the information? No. When you swear to tell the truth, the whole truth and nothing but the truth, you are the only one who can be subjected to perjury. The witness could not lawfully attest that what he will be saying is the truth. He could not have had the idea whether or not the declarant’s information is true. CHARACTERISTICS  It is an out-of-court declaration repeated by a witness who himself did not make the declaration  It is offered to prove the truth of the matter asserted  It is inadmissible, as a general rule Atty. Espejo:

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LAW ON EVIDENCE [On out-of-court declaration] If you heard it from a different court in a different case, that would still be considered an out-of-court declaration. So, the venue would not matter. It is when and where you made it. Did you make your testimony in court based on personal knowledge? If not, then it is hearsay. [On offered to prove the truth of the matter asserted] This is a very important characteristic that you need to remember. If your statement is simply to prove that it was said but you are not offering it as the truth of the statement, then it is not considered hearsay. TWO CONCEPTS OF HEARSAY EVIDENCE 1. 2.

Second hand information (not derived from personal knowledge of witness); and Testimony by a witness derived from his personal knowledge BUT the adverse party is not given opportunity to crossexamine. 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.

Atty. Espejo: [On no. 2] This is subject to a motion to strike on the ground that it is hearsay since there was no cross-examination. On second-hand information made by out-of-court declarant repeated by a witness in court, you cannot examine the declarant. Therefore, it is hearsay. REQUISITES: A statement will be considered hearsay if it is: 1. 2.

3.

An assertive statement [it has to be an intentional communication of a fact] Made by an out-of-court declarant [Remember the postulate that even if it was made in court but in a different case, it would still be considered as an out-of-court declaration] Offered to prove the truth of the matter asserted therein [If you only repeat a declaration but then you do not say it is true, that would be different]

REASONS FOR INADMISSIBILITY [of hearsay] 1. Absence of cross-examination  While you can examine the witness, you cannot crossexamine the source of his information 2. Absence of demeanor evidence  The court cannot determine the credibility of an out-ofcourt declarant by judging his demeanor 3. Absence of oath or affirmation  The out-of-court declarant cannot be subjected to perjury Atty. Espejo: On no. 1 Here, there is no telling whether the information is true or not. You cannot test the truthfulness and accuracy of the statement of an outof-court declarant.

based on the lectures of ATTY. JESS ESPEJO

On no. 2 As a judge, you have the ability to observe the demeanor of a witness. You are not a passive referee. When a witness testifies, the judge would be able to remember if the witness was immediately able to offer an explanation to a particular question or naghunahuna pa basya? This may mean that the witness is trying to contrive something. The judge will be able to ascertain the credibility of the witness. This is very important in determining the weight of the evidence that may be considered by the court. AS A RULE OF EXCLUSION The hearsay character of evidence may be waived by failure to object. However, admissibility is not the same as evidentiary weight or probative value. PHILIPPINE REALTY HOLDINGS CORPORATION vs. FIREMATIC PHILIPPINES, INC. (2007) 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 statements. 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). 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. Atty. Espejo: If you are going to submit an affidavit, as a general rule, that affidavit will not testify for itself. The witness, the affiant, has to repeat the testimony in court unless counsel is allowed to conduct the affidavit as the witness’ testimony. But in quasi-judicial tribunals such as in labor cases, an illegal dismissal for example. What happens before the Labor Arbiter? You do not conduct direct examinations of witnesses. The cases are decided through the position papers. Remember, position papers do not only show *the party’s+ legal position. It also shows a factual position. For example, an employee submits a position paper, he proves the circumstances that led to his dismissal by attaching an affidavit. The LA, by deciding the case through the position papers alone, is in effect ruling based on hearsay evidence. UNCHUAN vs. LOZADA 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. NEWSPAPER ARTICLES

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LAW ON EVIDENCE 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. Atty. Espejo: Recall Estrada vs. Desierto. The Angara diary itself is hearsay. When it was published in a newspaper and used as evidence in the Supreme Court, that is already triple deck hearsay. However, in American Jurisprudence, newspapers are considered self-authenticating. Atty. Espejo: This is because of the sheer number of units (of newspapers) published. You can expect that the copy of the newspaper that you have is the very exact copy that another person has. Then, there is no need for authentication. It is already selfauthenticating. BAR QUESTION 2003 Homer Honesto Henson was charged with robbery. On the strength of a warrant of arrest issued by the court, Homer Honesto Henson was arrested by the police operatives. They seized from his person a handgun. A charge for illegal possession of firearm was also filed against him. In a press conference called by the police, Homer Honesto Henson admitted that he had robbed the victim of jewelry valued at P 500, 000. The robbery and illegal possession of firearm cases were tried jointly. The prosecution presented in evidence a newspaper clipping of the report to the reporter who was present during the press conference stating that Homer Honesto Henson admitted the robbery. It likewise presented a certification of the PNP Firearms and Explosive Office attesting that the accused had no license to carry any firearm. The certifying officer, however, was not presented as a witness. Both pieces of evidence were objected to by the defense. Question: Is the newspaper clipping admissible in evidence against Homer Honesto Henson? Suggested Answer: Yes, the newspaper clipping is admissible in evidence against Henson. Regardless of the truth or the falsity of a statement, the hearsay rule does not apply and the statement may be shown where the fact that it has been made is relevant. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact; in issue, or be circumstantially relevant as to the existence of such a fact. (Gotesco Investment Corporation vs. Chatto, 1992) Doctrine of Independently Relevant Statements (IRS) While the testimony of a witness regarding a statement made by another person given for the purpose of establishing the truth of the fact asserted in the statement is clearly hearsay evidence, IT IS NOT HEARSAY if the purpose of placing the statement on the record is merely to establish the fact that the statement, or the tenor of such statement, was made. Atty. Espejo: In an IRS, as an exception to the hearsay rule, you are not offering it as truth. You are not trying to convince the court that what you are repeating in court is true but only to prove that the statement was made.

based on the lectures of ATTY. JESS ESPEJO

ESPINELI vs. PEOPLE (2014) Regardless of the truth or falsity of a statement, when what is relevant is the fact that such statement has been made, the hearsay rule does not apply and the statement may be shown. As a matter of fact, evidence as to the making of the statement is not secondary but primary, for the statement itself may constitute a fact in issue or is circumstantially relevant as to the existence of such a fact. This is known as the doctrine of independently relevant statements. Atty. Espejo: What we need to determine therefore is when would the hearsay statement be the very fact in issue and when would it be a circumstantial evidence of the fact in issue. Either way, it is not covered by the hearsay rule. (?) Tenor The testimony of a witness is made to prove the mere fact that something said to him by someone and not the truth of what was said. PEOPLE vs. MALIBIRAN (2009) The law provides for specific exceptions to the hearsay rule. One is the doctrine of Independently Relevant Statements (IRS), where only the fact that such statements were made is relevant, and the truth or falsity thereof is immaterial. xxx 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. Atty. Espejo: An evidence is relevant when it tends in any reasonable degree the truth of the probability and improbability of the fact in issue. So when it is an IRS, the fact that the statement was made is in itself relevant. When is a hearsay statement is the very fact in issue? CASE SAMPLE The accused told his neighbor (private complainant), “Nganongastig-astig man ka?” However, the complainant heard it as “Nganongadik-adik man ka?” The latter statement is an imputation of a vice or defect which can be a source of prosecution for defamation. Here, when the private complainant testifies in court, he will narrate to the court what is technically hearsay. He is not testifying based on his personal information. He is merely relating what was told by the accused. But because in the prosecution for slander and defamation, the very fact in issue is the mere fact that the statement was made. It is not covered by hearsay rule it being an independently relevant statement. Why is IRS admissible despite being hearsay? 1. Because it is RELEVANT. 2. They are relevant because the statement itself is: a. Either the very fact in issue; or b. Circumstantial evidence of a fact in issue The very fact in issue:

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LAW ON EVIDENCE 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!” Circumstantial evidence of the fact in issue: 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. Q: How long have you known the testator? A: For 20 years by the time he died, Sir. Q: How did you come to know him? A: I was her nurse for 20 years, Sir. Q: On January 3, 2004, what did you hear the testator say? Objection, Your Honor! (Opposing counsel objects) Court: Not so fast, witness may answer! A: In the morning of January 3, he said, “I am DARNA!” Atty. Espejo: The statement of the testator is not the very fact in issue but it is circumstantially relevant to the fact in issue, which is that the testator was of unsound mind at the time the will was made. Technically speaking, this is hearsay. You are testifying to a second hand information. OTHER NON-CODAL EXCEPTIONS

based on the lectures of ATTY. JESS ESPEJO

(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. (c) The child witness shall be considered unavailable under the following situations: (1) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (2) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. (d) When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence. 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. Atty. Espejo: When you make an admission to a third person, which is a deserving admission, it is admissible. When that third person is presented in court, what he will be testifying is what was your admission against your interest. This is admissible. 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. (Unchuan vs. Lozada, ibid.)

Section 28 of Rule on Examination of a Child Witness: Section 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 rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules:

RELAXATION OF THE HEARSAY EXCLUSION IN WRIT OF AMPARO CASES

(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.

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.

Atty. Espejo: Here, the act of cross examination removes the [testimony] from the advent of hearsay. (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;

RAZON, JR. vs. TAGITIS (2009) (Note: This is a potential BQ. It is very informative on Writ of Amparo)

Atty. Espejo: Razon vs. Tagitis is a case of enforced disappearance. Mrs. Tagitis was told by a certain Col. Kasim that her husband was in custody of the police and was being interrogated. This statement was the basis of filing of the writ of amparo. When the wife testifies in court, her testimony of what was told by Col. Kasim is hearsay. In fact, the information coming from Col. Kasim was also related to him by somebody else. It is double deck hearsay already. But SC said in this case, there is no need to be strict. Somehow without saying, SC took judicial notice of the fact that in cases of forced disappearances, guarded against writ of amparo, the usual pieces of evidence is hearsay. PRESENT SENSE IMPRESSION

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LAW ON EVIDENCE LOZANO vs. PEOPLE (2010) 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. Atty. Espejo: This is when you speak according to your present sense, how you feel at the very moment. This is your immediate spontaneous reaction to particular event. This somehow relates to one of the exceptions, the res gestae exception. For example, you say “It is cold!” when it is cold. People around you would most likely agree. This present sense impression is admissible because it could be easily verified. CODAL EXCEPTIONS TO THE HEARSAY RULE CODAL EXCEPTIONS: 1. Dying declaration 2. Declaration against interest. 3. Act or declaration about pedigree 4. Family reputation or tradition regarding pedigree 5. Common reputation 6. Part of res gestae 7. Entries in the course of business 8. Entries in official records 9. Commercial lists and the like 10. Learned treatises 11. Testimony or deposition at a former proceeding Rule 130, 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. Other Names: 1. Ante Mortem Statement 2. Statements in Articulo Mortis 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: 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." (People vs. Toledo, 1928) Atty. Espejo: Note that a dying man (and who subsequently died) who declared to his child that he is not his biological son would not destroy the legitimate filiation of the child. This is not a dying declaration. It fulfills none of the requisites except that it was made under the consciousness of an impending death.

based on the lectures of ATTY. JESS ESPEJO

The Fugitive (A Movie) One popular example of a dying declaration was in the movie “The Fugitive”. Dr. Richard Kimble (Harrison Ford), a successful vascular surgeon in Chicago, came home one night to find his wife Helen fatally wounded by a man with a prosthetic arm, and though he attempted to subdue the killer, the man escaped. Before the wife died while she was being attacked, she managed to contact 911. While on the line, she saw her husband (Ford) arriving home and all she could say was “Richard. Richard.” Then, she died. The lack of evidence of a break-in, fingerprints being found on the gun and the bullets, and Helen’s misunderstood 911 call led the Chicago Police Department to charge Kimble with murder, and he is sentenced to death by lethal injection. REASONS FOR ADMISSIBILITY PEOPLE vs. BAUTISTA G.R. No. 111149 September 5, 1997 There are two (2) obvious reasons for the admissibility of a dying declaration: (a) NECESSITY and (b) TRUSTWORTHINESS. Necessity, because the declarants 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 TRUSTWORTHINESS MARTURILLAS vs. PEOPLE G.R. No. 163217April 18, 2006 FACTS: Lito Santoswas eating supper in their kitchen when he heard a gunshot. From a distance of about ten (10) meters, he also noticed smoke and fire coming from the muzzle of a big gun. Moments later, he saw his neighbor Artemio (the victim) clasping his chest and staggering backwards to the direction of his (Lito’s) kitchen. Artemio shouted to him, ‘Tabangiko Pre, gipusil ko ni kapitan.’ (Help me, Pre, I was shot by the captain.) Shortly, Lito saw Ernita Pantinople, the wife of Artemio, coming from her house towards the direction where Artemio was sprawled on the ground. Ernita was hysterical, jumping and shouting, ‘Kapitan, ngano nimo gipatay ang akong bana!’ HELD: 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. PEOPLE vs. PALANAS G.R. No. 214453 June 17, 2015 This declaration is considered evidence of the highest order and is

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LAW ON EVIDENCE entitled to utmost credence since no person aware of his impending death would make a careless and false accusation. Verily, because the declaration was made in extremity, when the party is at the point of death and when every motive of falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth, the law deems this as a situation so solemn and awful as creating an obligation equal to that which is imposed by an oath administered in court. REQUISITES (Bar 1998) – Memorize! PEOPLE vs. PALANAS For a dying declaration to constitute an exception to the hearsay evidence rule, four (4) conditions must concur: (a) the declaration must concern the cause and surrounding circumstances of the declarant’s death; (b) that at the time the declaration was made, the declarant is conscious of his impending death; (c) the declarant was competent as a witness (if he survived); and (d) the declaration is offered in a criminal case for Homicide, Murder, or Parricide where the declarant is the victim.

based on the lectures of ATTY. JESS ESPEJO

Requisite #2: When the declaration was made, the declarant is conscious of his impending death What factors should be considered in determining whether the declarant is conscious of his impending death? 1. Utterances; 2. Actual character and seriousness of his wounds; and 3. By the declarant’s conduct and the circumstances at the time he made the declaration, whether he expected to survive his injury. On No. 2: Actual character and seriousness of the wounds: PEOPLE vs. VILLARIEZ G.R. No. 211160 September 2, 2015 FACTS:At the brink of death and with a voice she could hardly hear, her father uttered the name “Toti.” HELD: This is a DYING DECLARATION. Although he made no express statement showing that he was conscious of his impending death, it was clear however, considering the fatal quality of his injury and that he was barely heard by Ana when he uttered accused-appellant's name, that his death was imminent.

Requisite #1: Declaration concerns the cause and surrounding circumstances of the declarant’s death

On No. 3: Conduct and the circumstances at the time the declaration was made:

Example: X, the husband, was shot while Y, the wife, was stabbed. At the emergency room of the hospital, X said that it was Z who stabbed his wife. Then, he died.

Gerald 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, Matteo who asked him what happened to him. He answered that Luis shot him but that he was okay. It was only a flesh wound. At the hospital, Gerald died after a couple of hours.

Q: Can this qualify as a dying declaration? A: NO. The statement is not a dying declaration because it pertains to the cause and surrounding circumstances of the wife’s death and not of the declarant’s OWN death. More often than not, the requisite relates 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. (Example: When the victim, after being attacked uttered “A red car!” before he died, it could be a vital information on surrounding circumstance of his case.) This also means that a dying declaration may be used not only against the Accused but also in his favour: nd

The Case of John Adams, 2 President of U.S.A.: The Boston Massacre In 1770, a street confrontation, known as the Boston Massacre, resulted in British soldiers killing five civilians. The accused soldiers were arrested on criminal charges. One of the victims, Patrick Carr, told his doctor before he died that the soldiers had been provoked. The doctor’s testimony helped John Adams to secure acquittals for some of the accused 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.

Q: Is the statement of Gerald to Matteo a dying declaration? A: NO, because he made the statement without having thought that he is already dying. He made the statement thinking that it was a flesh wound and the 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. MARTURILLAS vs. PEOPLE Consciousness of an impending death need to be explicitly stated but may be established by circumstantial evidence. The law 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. DOCTRINES TO REMEMBER: #1 PEOPLE vs. TANAMAN

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LAW ON EVIDENCE G.R. No. 71768 July 28, 1987 



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. 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.

based on the lectures of ATTY. JESS ESPEJO

This means that, had the declarant survived, he would have not have been disqualified or otherwise prohibited to testify. Thus, the utterance of the deceased must have been one borne of personal knowledge. GERALDO vs. PEOPLE G.R. No. 173608 November 20, 2008 COMPETENCE OF A WITNESS MEANS HE HAD THE OPPORTUNITY TO SEE ASSAILANT.

#2 Dying declaration has weight even if declarant did not die immediately after his declaration: The fact that the declarant died 4 hours after his statement does not diminish the probative value of the dying declaration since it is not indispensable that the declarant expires immediately thereafter.

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.

#3

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.

PEOPLE vs. BAUTISTA It is the belief in impending death and not the rapid succession of death, in point of fact, that renders the dying declaration admissible. #4 PEOPLE vs. RARUGAL alias “AMAY BISAYA” G.R. No. 188603 January 16, 2013 FACTS: On the night of October 19, 1998, at around 9:45 p.m., while victim ArnelFlorendo (Florendo) was cycling along Sampaguita St., Brgy. Capari, Novaliches, Quezon City, Rarugal, with the use of a long double-bladed weapon, stabbed Florendo; thus, forcibly depriving him of his bicycle. Immediately thereafter, appellant hurriedly fled the scene. This incident was witnessed by Roberto Sit-Jar, who positively identified appellant in court. Florendo arrived home bleeding. He was quickly attended to by his siblings, including his brother Renato. When Renato recounted the events of that night to the court, he testified that Florendo told him and his other relatives that it was Rarugal who had stabbed him. They then took Florendo to Tordesillas Hospital but had to transfer him to Quezon City General Hospital, due to the unavailability of blood. It was there that Florendo diedon October 26, 1998. NOTE: 1.

2. 3.

The victim was still alive after the stabbing incident. He had time to reach his house and confide in his brother, witness Renato, that it was appellant who had stabbed him. The victim also did not die immediately. He was stabbed on Oct. 19 and died on Oct. 26

Compare with: PEOPLE vs. VILLARIEZ The victim made a dying declaration about the person who shot him. The accused was convicted based on this and the SC affirmed and appreciated the qualifying circumstance of treachery. It found that the victim was shot at the back. Atty. Espejo: Though there is a direct contrast between the ruling cases of Geraldo vs. People and People vs. Villariez, the difference here is factual. In Villariez (though the victim was also shot at the back like in Geraldo), it did not say anything on whether the victim saw the attacker. Requisite #4: Offered in a Criminal Case for Homicide, Murder, or Parricide where the declarant is the victim. Compare this requisite with what is stated in the codal provision: “in any case wherein his death is the subject of inquiry” Atty. Espejo: The provision states that “in any case”. Could this mean that the dying declaration may be used in civil cases as well? A: No. On Art.2176 on quasi-delict for example. When a car accidentally crashed to a pedestrian who eventually died, a dying declaration of the victim could not be used. The death here is not the subject of inquiry in a quasi-delict case. The fact in issue in a quasidelict case is the fault or negligence. Though the provision states “in any case”, the SC has clarified (through jurisprudence) that dying declaration may only be used in a Criminal Case for Homicide, Murder, or Parricide.

ISSUE: Is it a dying declaration?

THE DECLARANT MUST HAVE NOT SURVIVED

HELD: It is of no moment that the victim died seven days from the stabbing incident and after receiving adequate care and treatment, because the apparent proximate cause of his death, the punctures in his lungs, was a consequence of Rarugal’s stabbing him in the chest.

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.

Requisite #3: The declarant was competent as a witness Query: Does the requirement of death include presumptive death? 3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.

LAW ON EVIDENCE Anent this issue, two questions must be asked: First: Can the prosecution for unlawful killing be made without the victim being found? A: Yes PEOPLE vs. ROLUNA G.R. No. 101797 March 24, 1994 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. Second: Can there be a situation where a dying declaration can be made in circumstances where there is presumptive death? (Note: The scenario below must have been a product of the creative mind of Sir. This example is for your consideration.) Mokong, Gerald and Tumulmol crash-landed in a deserted island. Before they were actually rescued, Mokongsaw Gerald clutching his stomach and saw that he appeared to be stabbed several times. He then asked Gerald what happened and Gerald said that Tamulmol stabbed him repeatedly with a jungle knife. As he was saying this, a boat appeared at the horizon. Hoping for rescue, Gerald swam towards the direction of the boat. A few moments later, Gerald disappeared at the deeper part of the sea and was never found again. After 4 years, Tamulmol was prosecuted for murder. Q: Can the statement made by Gerald to Mokong prior to his disappearance be considered Gerald’s dying declaration? A: Yes. It has satisfied all of the four requisites. (see Palanas case for the requisites) Q: What is the effect if the victim survives? A: 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. PEOPLE vs. SONNY GATARIN G.R. No. 198022 April 7, 2014 FACTS: On the 3rd day of November 2004, at 8:00 o’clock in the evening, Umali was riding a bicycle on his way home when he saw Januario being mauled by two persons opposite Dom’s Studio in PoblacionMabini, Batangas. Upon seeing the incident, he stayed in front of the church until such time that the accused ran away and were chased by policemen who alighted from the police patrol vehicle. On the same night, SPO3 Mendoza and PO1 Jeffrey Jefferson Coronel were on board their patrol vehicle performing their routine patrol duty when they met two men, later identified as the accused, who were running at a fast speed. When asked why they were running, the accused did not answer prompting the policemen to chase them.

based on the lectures of ATTY. JESS ESPEJO

The policemen, however, were unsuccessful in catching them and when it became evident that they could no longer find them, they continued patrolling the area. There they saw Januario lying on the street in front of Dom’s studio. As he was severely injured, the policemen immediately boarded Januario to the patrol vehicle and brought him to the Zigzag Hospital. While inside the vehicle, SPO3 Mendoza asked Januario who hurt him. He answered that it was "Jay-R and his uncle" who stabbed him. The uncle turned out to be the appellant herein, while Jay-R is his co-accused who remains atlarge. At the Zigzag Hospital, Januario was attended to by Dr. Rasa who found him in critical condition. Three fatal wounds caused by a bladed weapon were found in Januario’s body which eventually caused his death. Maria Castillo, for her part, testified on how she learned of what happened to her husband, the victim herein, the amount allegedly stolen from her husband, as well as on the expenses and loss incurred by reason of Januario’s death. She, further, quantified the sorrow and anxiety the family suffered by reason of such death. As to the identity of the perpetrators, the court considered the victim’s response to SPO3 Mendoza’s question as to who committed the crime against him as part of the res gestae, which is an exception to the hearsay rule.As to appellant’s defense of alibi, the court gave more weight to the prosecution’s rebuttal evidence that indeed the former was an actual resident of Mabini, Batangas. On appeal, the CA affirmed the RTC decision. Contrary, however, to the RTC’s conclusion, the appellate court considered Januario’s statement to SPO3 Mendoza, that the accused were the ones who stabbed him and took his wallet, not only as part of res gestae but also as a dying declaration. ISSUE: WON there is a Dying Declaration HELD: Not all the requisites of a dying declaration are present. From the records, no questions relative to the second requisite was propounded to Januario. It does not appear that the declarant was under the consciousness of his impending death when he made the statements. The rule is that, in order to make a dying declaration admissible, a fixed belief in inevitable and imminent death must be entered by the declarant. It is the belief in impending death and not the rapid succession of death in point of fact that renders a dying declaration admissible. The test is whether the declarant has abandoned all hopes of survival and looked on death as certainly impending. Thus, the utterances made by Januario could not be considered as a dying declaration. However, even if Januario’s utterances could not be appreciated as a dying declaration, his statements may still be appreciated as part of the res gestae. Res gestae refers to the circumstances, facts, and declarations that grow out of the main fact and serve to illustrate its character and are so spontaneous and contemporaneous with the main fact as to exclude the idea of deliberation and fabrication. The test of admissibility of evidence as a part of the res gestae is, therefore, whether the act, declaration, or exclamation, is so interwoven or connected with the principal fact or event that it characterizes as to be regarded as a part of the transaction itself, and also whether it clearly negates any premeditation or purpose to manufacture testimony.

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LAW ON EVIDENCE Atty. Espejo: One thing you need to take away from this case is that if you are for the prosecution (having known the elements of a dying declaration) there has to be positive testimony on all the requisites.

based on the lectures of ATTY. JESS ESPEJO

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.

FORM OF DYING DECLARATIONS PEOPLE vs. BOLLER G.R. No. 144222-24 April 3, 2002 A dying declaration may be oral or written. If oral, the witness who heard it may testify thereto without the necessity of reproducing the word of the decedent, if he is able to give the substance thereof. An unsigned dying declaration may be used as a memorandum by the witness who took it down.

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. Take note that admissibility is different from believability.

It may be in the form of an affidavit for as long as the requisites are present.

CRITICISM OF THE RULE “Physical or mental weakness consequent upon the approach of death, a desire of self-vindication, or a disposition to impute the responsibility for a wrong to another, as well as the fact that the declarations are made in the absence of the accused, and often in response to leading questions and direct suggestions, and with no opportunity for cross-examination: all these considerations conspire to render such declarations a dangerous kind of evidence.”  Orenstein, Aviva (2010). “Her Last Words: Dying Declarations and Modern Confrontation Jurisprudenct”. University of Illinois Law Review

BUT:

A DEATHBED CONFESSION IS NOT A DYING DECLARATION

PEOPLE vs. COMILING G.R. No. 140405 March 4, 2004 The dying declaration was made with the police investigators writing down the statement and thumbmarked later by the deceased when he was still alive.

PEOPLE vs. PADRONES G.R. No. 85823 September 13, 1990 The victim's alleged ante-mortem statement is not in fact, an ante-mortem statement. It was executed on August 13, 1986, when the deceased died on August 21, 1986. 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. Atty. Espejo: In this case, the statement was actually a three-page statement. The SC also said that the declarant signed it in bold strokes which would belie the seriousness of his wounds. Therefore, it could not have been made under the consciousness of an impending death. It is inadmissible as a dying declaration. CAN NON-VERBAL ACTS BE USED AS DYING DECLARATIONS? Example: While Gerald was lying in a pool of his own blood and dying, he pointed with a very angry face at one of the bystanders, Matteo. A: Not a dying declaration. It violates the 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 vs. Comiling) PEOPLE vs. DE JOYA G.R. No. 75028 November 8, 1991

Example 1: Luis, at his death bed, confessed to Rayver that he is the father of Jessy’s child. He died 2 seconds later. During the settlement of his estate, Jessy appeared in court to assert the rights of her child with Luis and wanted to present Rayver to testify as to Luis’ admission of paternity. Can the legitimate children of Luis object to the admissibility of Rayver’s testimony? A: Yes. The ground for objection is that the testimony is hearsay. Example 2: Luis, at his death bed, confessed to Jessy’s daughter, Lucy that he is her father and wanted to give her P 3 Million so that she can finish law school and take the bar. He died 2 seconds later. During the settlement of his estate, Lucy appeared in court and wanted to testify as to Luis’ admission of paternity and the gift of P 3 Million. Can the legitimate children of Luis object to the admissibility of Lucy’s testimony? A: Yes. The grounds for objection are: 1. The testimony is hearsay 2. Deadman’s Statute: “Section 23.Disqualification by reason of death or insanity of adverse party. — Parties or assignor 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.” Note: There is already a claim on the deceased’s estate. Hence, deadman statute applies.

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LAW ON EVIDENCE Example 3: Luis, at his death bed, confessed to his daughter, Lucy, that he killed Matteo, not Gerald who currently stands trial for Matteo’s murder. Luis died 2 seconds later. During the trial of Matteo he wanted to present Lucy to testify as to the deathbed confession of Luis. Can the prosecution object? A: Yes. The ground for the objection is that testimony is hearsay.

based on the lectures of ATTY. JESS ESPEJO

(c) the circumstances must render it improbable that a motive to falsify existed. Atty. Espejo: On example 3, apply the above requisites. Luis is already dead, so he would be unable to testify. The statement he made to Lucy also concerns a fact cognizable by him. Finally, there is not motive to falsify in court since he was about to die.

But would the court now overrule on sustaining the conviction? That a hearsay evidence would now be used to acquit an accused? Is there a specific rule in Philippine law about deathbed confessions?  In England, in R. vs. Gray (1841) Ir. Circ. Rep. 76, a death bed confession by a third person that he, not the accused, had committed the murder charged was held admissible.  In the US, however, under Rule 804 of the Federal Rules, a deathbed confession can be admissible in court under the right circumstances. If someone confesses knowledge of a crime and then dies or his condition worsens, the law does not consider the statement to be hearsay and can be used in criminal trial.

Q: Bangs was charged with crime of kidnapping of Adonis, her husband. One of the testimonies presented by the prosecution was that of Maja who testified that Adonis confided to her that he and Sarah were having an affair. Undoubtedly, Adonis’ infidelity was ample reason for Bangs to contemplate revenge. Consequently, the trial court convicted Bangs based on the testimonies of the witnesses. Was the testimony of Maja admissible as evidence?

Example:

Adonis, having been missing since his abduction, cannot be called upon to testify. His confession to Maja, definitely a declaration against his own interest, since his affair with Sarah was a crime, is admissible in evidence because no sane person will be presumed to tell a falsehood to his own detriment. (People vs. Bernal, G.R. No. 113685June 19, 1997)

James Brewer Case James Brewer was suffering from stroke and thought he was going to die when he decided to come clean about his life. In 1977, James, in his jealous rage, killed his neighbour, skipped bail, and then ran away with his wife and they took on new identities as the Andersons. They were model citizen and even lead a Bible study group. He confessed this in 2009 to the police on his deathbed. Subsequently, he recovered. When he was already fit to stand trial, he was prosecuted. He was later found guilty of murder and was sentenced to the death penalty. Going back to Example 3: Q: What is the ground for objection? A: That the testimony is hearsay. Q: Should the court overrule or sustatin the objection? A: Overrule. There is a rule that can be used to justify departing from the hearsay rule and that is DECLARATION AGAINST INTEREST: Rule 130, 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 against third persons. FUENTES, JR. vs. CA G.R. No. 111692 February 9, 1996 [On Sec. 38 of Rule 130] 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

A: Yes.Adonis’ revelation to Maja regarding his illicit relationship with Sarah is admissible in evidence pursuant to Section 38, Rule 130. Declaration against interest includes all kinds of interest, that is, pecuniary, proprietary, moral or even penal.

Distinguish Admission against Interest from Declaration against Interest: LAZARO, ET. AL. vs. MODESTA AGUSTIN G.R. No. 152364April 15, 2010 (Probable BQ) 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. Declarations 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.

September 16, 2016 Recap We discussed already declaration against interest. What you need to take note there are the requisites. Again, the reason why you make a declaration against interest, an exception to the hearsay, rule is simple. The rationale is necessity and trustworthiness. HEARSAY and EXCEPTIONS CONTINUED Declaration against interest Rule 130, 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

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

true, may be received in evidence against himself or his successors in interest and against third persons. JZE: It is necessary because the person is already dead. He is no longer able to testify by some incapacity that has befallen him or it is also trustworthy in the sense that a reasonable man in such a position will not make a declaration that is contrary to his interest had not the same be true. And under the circumstances he was compelled to say it. It is simple as that. Take note of the case of Fuentes vs. CA. We already discussed that last meeting. FUENTES, JR. vs. CA (1996) 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. Let me just explain this example that we skipped last meeting. Example: Bangs was charged with the crime of kidnapping Rrrramon, her husband. One of the testimonies presented by the prosecution was that of Maja who testified that Rrramon confided to her that he and Sarah were having an affair. Undoubtedly, Rrramon’s infidelity was ample reason for Bangs to contemplate revenge. Consequently, the trial court convicted Bangs based on the testimonies of the witnesses. Was the testimony of Maja admissible as evidence? Yes. (Now remember that the declarant here is Rrramon. That declaration was used as evidence.) Rrramon’s revelation to Maja regarding his illicit relationship with Sarah is admissible in evidence, pursuant to Section 38, Rule 130 of the Revised Rules on Evidence. Declaration against interest includes all kinds of interest, that is, pecuniary, proprietary, moral or even penal. Rrramon, having been missing since his abduction, cannot be called upon to testify. His confession to Maja, definitely a declaration against his own interest, since his affair with Sarah was a crime, is admissible in evidence because no sane person will be presumed to tell a falsehood to his own detriment. (People v. Bernal, G.R. No. 113685, June 19, 1997) This is very important and I am going to emphasize this once again. Distinguishing Admission against Interest from Declaration against Interest LAZARO, ET.AL. vs. MODESTA AGUSTIN (2010) (Definitive case as to Section 38) 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.

Declarations 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. Act or Declaration about pedigree Rule 130, 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. JZE: Diba, during the semester, one of the first questions I asked you was, “when was your birthday?” Do you know exactly when was your birthday? Kinsa ganin tong akong gipangutana? Ikaw to? (Pointing to Ms. Queenie R.) Kabalo na ka? What I’m trying to point out here is the fact that, technically speaking, your knowledge of when you were born is actually hearsay because remember that information is NOT hearsay only when it is based on your own perception. Were you able to perceive the time when you were born or about to be born? Of course not. Wala pa kay buot. Well, unless you claim otherwise. Then you would have to prove to me that you were really able to perceive that you were coming out of your mother. Wala kay perception ana. So, your information about your birth definitely comes from someone else who told you that your birthday is on this day. What reinforces that is the fact that many of us or at least 90% of us really have families who celebrate our birthdays. That is the basis of what I have been telling you: that you have no personal knowledge of your birthday. But because clearly, it’s something that relates to your pedigree because pedigree relates to birth, or includes birth, then it becomes an exception to the hearsay rule. More often than not, it will be accepted as true even if it is secondhand information. REQUISITES UNDER SECTION 39 (1) The actor or declarant is dead and unable to testify. (2) The act or declaration is made by a person related to the subject by birth or marriage. (consanguinity or affinity) (3) the relationship between the declarant or the actor and the subject is shown by evidence other than such act or declaration Ex. Kanang the declarant said na iya nang paryente si X. That would now be the basis for X in claiming the relationship. Now, in a case where the relationship between X and the declarant, and the declarant’s family is in issue, let’s say for example paternity suits or suits of filiation, would that declaration by itself be sufficient to prove the fact in issue? No. There must be corroborative evidence or evidence aliunde to prove such a relationship. (4) The act or declaration was made ANTE LITEM MOTAM (prior to the controversy; cannot be ‘during’ and cannot be in anticipation of litigation/ you are not planting the evidence)

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LAW ON EVIDENCE Genealogy A line of descent traced continuously from an ancestor. Simply, lineage. (Do you remember the lolo sa imong lolo? Story about great grand father.) In the olden times, people really keep track of family lineage and write them down in family heirlooms. (It’s a big thing.) However, nowadays, what we know of our lineage comes specifically from mere oral traditions. Birth Recall that you do not really have personal knowledge of your birthday. Whatever you know about this was merely told to you, making it hearsay. Revisiting an example Luis, at his death bed, confessed to Rayver that he is the father of Jessy’s child. He died 2 seconds later. During the settlement of his estate, Jessy appeared in court to assert the rights of her child with Luis and wanted to present Rayver to testify as to Luis’ admission of paternity. Can the legitimate children of Luis object to the admissibility of Rayver’s testimony? Q: What’s the ground for objection? A: THAT THE TESTIMONY IS HEARSAY Q: Should the court sustain the objection? It’s now time to apply Section 39. A: YES, if Jessy cannot present evidence other than the act or declaration of Luis that he is the father of her child. (You need evidence aliunde. It has to be proven or corroborated by evidence other than the act or declaration itself.) Q: WHAT SHOULD JESSY’S COUNSEL DO? A: Counsel can ask to have the testimony of Rayver regarding Luis’ statement conditionally admitted. (Right now, you cannot admit the corroboration. You’re presenting the witness right now. You cannot corroborate it with evidence assuming that person is your first witness. So you ask the court that it be conditionally admitted. Recall: 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. So, conditionally, the testimony will be admitted subject to the condition that counsel or the party admitting such supposedly admissible evidence will make a condition to other admissible evidence. So i-corroborate gyud niya. He has to present other evidence, i.e. documentary evidence proving the pedigree Suppose the court conditionally admits the testimony… But Jessy is unable to present corroborative evidence, what is the remedy of her opponents? A: They can move to strike the testimony on the ground that the condition for admitting the hearsay evidence was not fulfilled. Remember this principle of conditional admissibility. Now here’s an interesting case. NEPOMUCENO vs. LOPEX (2010)

based on the lectures of ATTY. JESS ESPEJO

FACTS: Born on June 8, 1999, Arhbencel claimed to have been begotten out of an extramarital affair of petitioner with Araceli; that petitioner refused to affix his signature on her Certificate of Birth; and that, by a handwritten note dated August 7, 1999, petitioner nevertheless obligated himself to give her financial th th support in the amount of P1,500.00 on the 15 and 30 days of each month beginning August 15, 1999. Q: Was the pedigree of Archbencel sufficiently established? A: First, the SC summarized the rules as follows: 1. In Pe Lim v. CA, a case petitioner often cites, we stated that the issue of paternity still has to be resolved by such conventional evidence as the relevant incriminating verbal and written acts by the putative father. 2. Under Article 278 of the New Civil Code, voluntary recognition by a parent shall be made in the record of birth, a will, a statement before a court of record, or in any authentic writing. To be effective, the claim of filiation must be made by the putative father himself and the writing must be the writing of the putative father. A notarial agreement to support a child whose filiation is admitted by the putative father was considered acceptable evidence. (Because he signed it clearly) 3. Letters to the mother vowing to be a good father to the child and pictures of the putative father cuddling the child on various occasions, together with the certificate of live birth, proved filiation. 4. A student permanent record, a written consent to a father’s operation, or a marriage contract where the putative father gave consent, CANNOT be taken as authentic writing. Standing alone, neither a certificate of baptism nor family pictures are sufficient to establish filiation. (But we are talking about filiation here. Filiation is not necessarily pedigree. You need to make that distinction.) The Handwritten note: “I, Ben-Hur C. Nepomuceno, hereby undertake to give and provide financial support in the amount of P1, 500.00 every fifteenth and thirtieth day of each month for a total of P3,000.00 a month starting Aug.15, 1999, to Arhbencel Ann Lopez, presently in the custody of her mother Araceli Lopez without the necessity of demand, subject to the adjustment later depending on the needs of the child and my income.” Q: Is that an act or declaration about pedigree? Will that be sufficient to establish the filiation of the child claiming support? Does the note indicated anywhere therein that he is admitting to his parenthood toward the child? What he concedes is that he is going to provide financial support depending on the needs of “the child” (not my child) and “my income.” Clearly advised by lawyer. haha HELD: The above quoted note does not contain any statement whatsoever about Arhbencel’s filiation to petitioner. It is, therefore, not within the ambit of Article 172 (2) vis-à-vis Article 175 of the Family Code which admits as competent evidence of illegitimate filiation an admission of filiation in a private handwritten instrument signed by the parent concerned. The note cannot also be accorded the same weight as the notarial agreement to support the child referred to in Herrera v. Alba. For it is not even notarized. And Herrera instructs that the notarial agreement must be accompanied by the putative father’s

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LAW ON EVIDENCE admission of filiation to be an acceptable evidence of filiation. Here, however, not only has petitioner not admitted filiation through contemporaneous actions. He has consistently denied it.

based on the lectures of ATTY. JESS ESPEJO

a. b.

The only other documentary evidence submitted by Arhbencel, a copy of her Certificate of Birth, has no probative value to establish filiation to the petitioner, the latter not having signed the same. Family Reputation or Tradition Regarding Pedigree Rule 130, 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. One of the things you will have to notice here immediately is: “who’s testifying?” The witness must necessarily be a member of the family. But in Section 39, what did you notice? Anybody can be the witness there provided that the declarant is the one who is related to the subject of pedigree; kadtung nagaclaim ug relationship. That’s the main difference between Section 39 and 40. REQUISITES UNDER SECTION 40 1. 2.

3.

There is controversy in respect to the pedigree of any member of the family; The reputation or tradition of the pedigree of the person concerned existed previous to the controversy (something that did not just come up because a case was filed; must exist ante litem motam and not in anticipation of litigation. Kaniadto pa lang, wala pay kaso, naa nay nagclaim na related na siya sa akoa o sa pamilya.); and The witness testifying to the reputation or tradition regarding pedigree of the person concerned MUST BE A MEMBER of the family of said person either by consanguinity or affinity.

TWO PARTS 1. Testimony Evidence of Pedigree (testimony of a family member based on the reputation existing within the family about the pedigree of a person under consideration. He may not be testifying based on personal knowledge but this is the reputation existing in the family. It is a statement of the family’s belief as to the pedigree of a person.) 2. Documentary or Object Evidence of Pedigree (entries in family Bibles or other family books or charts, engravings on rings, family portraits and the like) Testimony Recall the case of People vs. Pruna (Rules on how to prove the age of a victim in the case of rape for example) and read the case of PEOPLE vs. SARIEGO, G.R. No. 203322, February 24, 2016. The SC is still using the ruling in People vs. Pruna. It is really good law. 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 circumstance:

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… 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.

Family Bibles Not every bible belonging to a family, even if handed down from generation to generation, can be considered as proof of pedigree under Section 40. It will be admissible only if it is a bible that has spaces reserved for recording of important family events. This is because of the presumption that a family will not put an entry there unless they have personal knowledge of what happened. Kahibalo gyud sila nga kani siya natawo sa kani nga pamilya ining adlawa. So isuwat na nila. It’s a statement of their belief regarding the pedigree of the person. And then it’s handed down from generation to generation, which means that everybody who followed will of course have that belief that their ancestor was born on a particular date and that they are related to that ancestor. (Pictures of samples shown i.e. family charts/family trees of Black and Padilla Families, engravings on rings, family portraits) JZE: So, somebody can bring the ring and testify to what it says; that Rrramon and Lailanie were married at a certain time. That can prove their marriage. You can use family portrait to be part of the family tradition or reputation regarding pedigree. DOCUMENTARY/OBJECT EVIDENCE Kini ang daghan. In one case, what they presented to prove the filiation of a person would be letters of introduction to relatives. It was custom before that when you are travelling let’s say to Manila, gikan ka ug probinsya, magsuwat ang imong relative, “Kaning tawhana, kini siya ako ni siyang pag-umangkon, anak ni Procopio. Unta imo ni siyang tabangan inig naa na siya dinha sa Manila.” Can the following private documents be considered under the second part of Section 40? SC: Not really.  Letters of introduction to possible relatives, recommendation letter for employment from a putative relative, photograph taken at a birthday party, letter of introduction from former Vice President Fernando Lopez (relative of putative father) addressed to then United States Consul Vernon McAnnich. JISON vs. CA (1998) 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 beliefs 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

3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.

LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

objects are inscriptions on tombstones, monuments or coffin plates. Plainly then, the Exhibits, as private documents not constituting “family possessions” as discussed above, may not be admitted on the basis of Rule 130, Section 40. “These have been described as objects openly exhibited and well known to the family x x x” – i.e. albums Tombstones Why can these be used as evidence of pedigree? For the simple reason that a tombstone has been used [?] since time immemorial. In certain cases, inscribed there is the date of birth, and the date of death. Naa gyud na siya sa tombstones. Monuments What kind are we talking about? Family monuments.

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

reputation or tradition covering matters of pedigree. (It is already an existing reputation)

JZE: Recall the exceptions to the res inter alias acta rule. Admission by a co-conspirator. Remember that the conspiracy must be proved by other proof other than the act or declaration itself. Same with a partnership. The partnership must be proved by evidence other than by such act or declaration. Same thing with Section 39: the relationship must be proved other the act or declaration; Section 40 no need because the person testifying is himself a member of the family. In Section 39, you can even say that the information relating to the pedigree became relevant only because a person deceased and unable to testify made that particular declaration. Without it there is no problem; there is no controversy whatsoever.

Coffin plates Dili na uso karon. It’s expensive. What substitute these now are kadtung nakabutang bitaw na “Cosmopolitan…date of birth, age, death, internment, mass on…”

In Section 40, existing na nang reputation or tradition covering matters of pedigree.

Q: Why is it that tombstones, for example, can be considered as secondary evidence of pedigree, as proof at least of the entries there (i.e. date of birth, date of death)? A: Because it is something that is very important to the family na kung naa gani mali, usabon gyud. So there is a presumption that it is correct. Family Monument It is bigger than a tombstone. It will usually indicate kung pila ka buok nga family members and naka-bury dira.

It is the common reputation in the family, and not the common reputation in the community, that is a material element of evidence going to establish pedigree. (So importante na i-limit nimo siya sa family. The courts will not care as to what the community thinks because if the rule is otherwise, Grace Poe is already the daughter of Ferdinand Marcos. Diba? Because that is what the community believes.) Thus, matters of pedigree may be proved by reputation in the family, and not by reputation in the neighborhood or vicinity, except where the pedigree in question is marriage which may be proved by common reputation in the community.

(Picture of ribbons with family members’ names inside coffin was shown; prevalent in the Philippines. Can it be used as evidence of pedigree? JZE: To my mind, yes, it can be circumstantial evidence to pedigree. Why? Because a family, especially in the Philippines, we make a distinction as to illegitimate and legitimate filiation. Dili nimo ibutang ang pangalan dira if you are not of the belief that that person is your relative or relative of the deceased. I believe it can be used as evidence even if it is not of the same league as a tombstone, a family monument or a coffin.

Important Cases  Tecson, et. al. vs. Comelec, FPJ (G.R. Nos. 161434, 161634 & 161824, March 3, 2004) o What proof of pedigree allowed FPJ to run for president despite questions regarding his citizenship?  Tison vs. CA (G.R. No. 121027, July 31, 1997) o Read this for Sections 39 and 40 (If you are going to read only case and one case only. It’s the definitive case for these provisions.)

Distinguish (Both refer to pedigree) Section 39 Act or declaration about pedigree Witness need not be a member of the family. (Enough that somebody uttered a declaration made by a family member) Relation of the declarant and the person subject of inquiry must be established by independent evidence. (Evidence aliunde; independent corroborative evidence) Testimony is about what

Final Note about Section 40

TISON vs. CA (1997)

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

The witness is the one to whom the fact relates, it is not necessary for him to establish by independent evidence his relationship to the family Testimony is about family

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 (JZE: evidence aliunde). There must be some independent proof of this fact. As an exception, the requirement that there be other proof than the declaration 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. JZE: That is why you have to read this. Why did the Supreme Court make that distinction when in fact they were referring to practically the same type of situation covered by Section 39. Nganung nay evidence aliunde sa is aka case na kinahanglan ug nganong dili

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LAW ON EVIDENCE kinahanglan in the other case? That is for me to know and for you to find out. Basaha na ninyo.

based on the lectures of ATTY. JESS ESPEJO

It is necessary to admit this into evidence because of the inherent difficulty in obtaining evidence that can be taken from common reputation.

Common Reputation Rule 130, 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. (Revelation na common reputation ra diay sa city nang Uyangguren street kay Ramon Magsaysay diay na siya, sama sa Claveria na C.M. Recto diay. Well, kay before, Uyangguren and Claveria gyud na sila sa una, named after some well-known individuals. Na- change na ang names pero kay common reputation na man sa city na Uyangguren and Claveria na sila, mao nang they are still referred as such.) (Magellan’s cross…original casing lang diay sa cross.) (Calamba, Laguna… Birth place of Dr. Jose Rizal. We know this because of common reputation…Location of Register of Deeds as common reputation of people there. Unahan sa balay ni Rizal, muliko ka sa wala, naay daghang punerarya, then Register of Deeds.)

It is trustworthy because (everybody believes it) of (1) The presumption that the public is conversant with the fact to be so proved because of their general interest in them, and (2) The fact that any error in such evidence can easily be corrected by other testimony due to the public’s interest in such fact. TRINIDAD vs. CA (1998) Attendance in wedding and baptisms where a man and a woman purport themselves to be husband and wife evidence of common reputation regarding marriage. Res Gestae Rule 130, Section 42. Part of 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 (things done)

What is common reputation? It is the definite opinion of the community in which the fact to be proved is known or exists. It means the general or substantially undivided reputation, as distinguished from a partial or qualified one, although it need not be unanimous. (Regalado, Vol. 11, p. 787, 2008 ed.) JZE: So not everybody would know that Uyangguren is actually Ramon Magsaysay Avenue or that Claveria is actually C.M. Recto. Magallanes is actually Pichon. Note: As a general rule, the reputation of a person should be that existing in the place of his residence; it may also be that existing in the place where he is best known. REQUISITES UNDER SECTION 41 1.

When you talk about res gestae, what clearly lingers in your head is the fact that it is a statement made during a “startling” occurrence. (Recitation with a big bang from sir. He made a new best friend. Haha) JZE: Kung makakita ka ug butang o maka-experience ka ug isa ka butang that would normally elicit a reaction because of surprise, what usually comes out of your mouth is what comes natural. Like, “pak!” Nakuratan ka. Maghuna-huna pa ba ka ug, “unsa kaha ang akong reaction?” You don’t. What comes out of your mouth is naturally truthful. When you fall down, you yell out in pain. You don’t contemplate anymore if what you should say is, “aray” or “ouch.” Lol. It’s a spontaneous reaction. That is precisely what res gestae is all about.

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

A startling occurrence contemplated in Section 42 could be anything. Like when you witnessed a person being shot, that is a startling occurrence. When you are asked what you saw immediately thereafter, or while the startling occurrence is taking place, what would usually come out of your mouth is the truth. You would have no time to fabricate. So there is that all important element of spontaneity.

JZE: So why do we admit evidence of common reputation despite the fact that it is hearsay? Hearsay man siya.

Necessity and Trustworthiness 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. (Like when it was supposed to be a dying declaration but the person did not die; he was in comatose and he cannot testify. But before he was in comatose, immediately after the startling occurrence [ex. He was shot], and he uttered who his assailant was, that would mean that it cannot be admitted as a dying declaration but it can be admitted as part of the res gestae.)

2. 3.

4.

Rationale Again, the evidence of common reputation is admissible on grounds of NECESSITY and TRUSTWORTHINESS.

JZE: Again, this is admitted in evidence because of necessity and trustworthiness.

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

4. 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. 5. What are admissible as 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; and  Statements accompanying an equivocal act material to the issue and giving it a legal significance. FIRST PART – Excited Utterances REQUISITES 1. 2. 3.

the presence or absence of intervening events between the occurrence and the statement relative thereto (like when you made the statement, naa na ba kay naistorya na tao who might have influenced the way you interpret the situation); the nature and the circumstances of the statement itself.

Dying Declaration vs. Res Gestae Dying Declaration (DD) A sense of impending death takes the place of an oath and the law regards the declarant as testifying. Can be made by the victim only

The principal act, the res gestae, is a startling occurrence (something out of the ordinary); The statements were made before the declarant had time to contrive or devise (because time changes perception); and The statements concern the occurrence in question and its immediately attending circumstances. (So if you exclaimed something; you made an exciting utterance that is not related to the principal fact, the startling occurrence or the res gestae, then it is immaterial and irrelevant and should not be admitted into evidence.) (People vs. Guting, G.R. No. 205412, September 9, 2015)

Confined to matters occurring after the homicidal act Justified by trustworthiness, being given by the person who was aware of his impending death Declarant must die

Res Gestae (RG) It is the event itself which speaks. (You are merely reacting to the event) May be made by the victim or the killer after or during the killing or by a 3rd person (anybody) May precede, or accompany or follow the principal act Justification is the spontaneity of the statement. (No time to contrive) Declarant need not die. A statement inadmissible as DD may be admissible as part of the RG.

Startling Occurrence There is no standard form of human behavioral response to a shocking incident (mag-vary gyud siya), a startling occurrence or a frightful experience.

SECOND PART – Verbal/Equivocal Acts

The workings of the human mind under emotional stress are unpredictable, such that people react differently to similar situations: some may shout; some may faint; some may be shocked into insensibility; and others may even welcome the intrusion. (Some might act like freaking maniacs… insert pic of Coco Martin and Maja Salvador)

(Sir JZE shows an example by giving a money bill to Ms. Lomondot without saying anything…Equivocal siya. It could mean anything under the law i.e. loan, donation, payment of purchase price of a sale, or damages [hahaha])

MANULAT vs. PEOPLE (2015) Two tests in applying the res gestae rule: (a) the act, declaration or exclamation is so intimately interwoven or connected with the principal fact or event that it characterizes as to be regarded as a part of the transaction itself; and (b) the said evidence clearly negatives any premeditation or purpose to manufacture testimony. (ELEMENT OF SPONTANEITY). Spontaneity There is no hard and fast rule by which spontaneity may be determined although a number of factors have been considered, including, but not always confined to: 1.

2.

3.

the time that has lapsed between the occurrence of the act or transaction and the making of the statement (magchange imong recollection); the place where the statement is made (like if the statement was made where the startling occurrence took place or somewhere where he’s comfortable na); the condition of the declarant when the utterance is given (relax na ba siya or agitated pa);

Statements accompanying equivocal acts – Equivocal means ambiguous; capable of different interpretations.

JZE: What if when I gave her money, I said, “You pay me back the money next month,” there’s an equivocal act which without the statement on my part would clearly be susceptible to different interpretations. So that statement, when heard by somebody and repeated by a witness, will be admissible even if technically it’s hearsay. Why? Because it is a verbal act. It accompanies an equivocal act and gives it a legal significance. 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 hears the plaintiff say 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.] REQUISITES 1. 2. 3.

The fact or occurrence characterized must be equivocal; The verbal act must characterize or explain the equivocal act; The equivocal act must be relevant to the issue; and

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LAW ON EVIDENCE 4.

based on the lectures of ATTY. JESS ESPEJO

The verbal acts must be contemporaneous with the equivocal act (meaning, at about the same time).

Excited Utterances vs. Verbal Acts (possible Bar question) Excited Utterances Principal fact is a startling occurrence Statement may precede, accompany or succeed the startling occurrence Statement need not necessarily explain the principal fact Cases 







Verbal Acts Principal fact is an equivocal act Statement must accompany the equivocal act Statement must explain the principal fact and give it legal significance

Golden (Iloilo) vs. Pre-Stress (G.R. No. 176768, January 12, 2009) o Res gestae in a Civil Case for Replevin o There’s this warehouse. Somebody withdrew stocks stored there. The employees of the warehouse took note of what was taken. It wasn’t signed; just scribbled onto a piece of paper. The SC said that is a statement which explains an equivocal act. What is the equivocal act? Kadtong pagkuha sa mga stocks. That is admissible in evidence as part of the res gestae. People vs. Sace (G.R. No. 178063, April 5, 2010) o The res gestae statement may come from the accused himself. o Naa siyay gipatay nga tao. When he was apprehended, he was still in shock, naglupad pa ang huna-huna. When he was asked if he did it, he said, “Yes, I did it.” Then the police officer heard it, sat on the witness stand and repeated what the accused said. However, according to the accused, he never said anything. SC said that what the police witness was testifying on is actually part of the res gestae, specifically the first part. Excited utterance, even if you are the assailant, it is still startling to you because you don’t kill people every day. Marturillas vs. People (G.R. No. 163217, April 18, 2006) o The shooting itself is a startling occurrence. o The husband who was shot was still alive and coherent when he told his wife, “Si Kapitan, si Kapitan.” Sooner rather than later, he died. That is a startling occurrence and whatever he said can be used as part of the res gestae. So also kadtong gi-ingon sa iyang asawa na, “Kapitan, kapitan, nganong gipatay nimo akong asawa” is also a res gestae statement because it is startling to see your husband about to die. So that can be considered as part of the res gestae. People vs. Feliciano (G.R. No. 196735, May 5, 2014) o What prevails between res gestae (which is admissible, reliable and trustworthy according to jurisprudence) and positive identification? Positive identification.

FACTS: On December 8, 1994, at around 12:30 to 1:00 in the afternoon, seven (7) members of the Sigma Rho fraternity were eating lunch at the Beach House Canteen, near the Main Library of the University of the Philippines, Diliman, when they were attacked by several masked men carrying baseball bats and lead pipes. Some of them sustained injuries that required hospitalization. One of them, Dennis Venturina, died from his injuries. According to Leandro Lachica, Grand Archon of Sigma Rho Fraternity, he looked around when Venturina shouted, and he saw about ten (10) men charging toward them. The men were armed with baseball bats and lead pipes, and their heads were covered with either handkerchiefs or shirts. Within a few seconds, five (5) of the men started attacking him, hitting him with their lead pipes. During the attack, he recognized one of the attackers as Robert Michael Beltran Alvir because his mask fell off. Other members of Sigma Rho were able to identify some of the attackers, members of the Scintilla Juris fraternity, allegedly because some of the attackers either took their masks or some of them did not wear masks at all. According to the testimony of U.P. Police Officer Salvador, when he arrived at the scene, he interviewed the bystanders who all told him that they could not recognize the attackers since they were all masked. This, it is argued, could be evidence that could be given part of the res gestae. (Why is this important? If the res gestae statements of the bystanders were to be admitted and believed, it may cast reasonable doubt on the supposed positive identification of the accused by the victims.) HELD: There is no doubt that a sudden attack on a group peacefully eating lunch on a school campus is a startling occurrence. Considering that the statements of the bystanders were made immediately after the startling occurrence, they are, in fact, admissible as evidence in res gestae. In People vs. Albarido, however, this Court has stated that “in accord to ordinary human experience: “x x x persons who witness an event perceive the same form their respective points of reference. Therefore, almost always, they have different accounts of how it happened. Certainly, we cannot expect the testimony of witnesses to a crime to be consistent in all aspects because different persons have different impressions and recollection of the same incident x x x.” The statement made by the bystanders, although admissible, have little persuasive value since the bystanders could have seen the events transpiring at different vantage points and at different points in time. Even Frisco Capilp, one of the bystanders at the time of the attack, testified that the attackers had their masks on at first, but later on, some remained masked and some were unmasked. When the bystanders’ testimonies are weighed against those of the victims who witnessed the entirety of the incident from beginning to end at close range, the former becomes merely corroborative of the fact that an attack occurred. Their account of the incident, therefore, must be given considerably less weight than that of the victims.

PEOPLE vs. FELICIANO (2014) 3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.

LAW ON EVIDENCE JZE: To my mind, it all boils down to what prevails, positive evidence or negative evidence? Diba positive evidence: positive identification. When the bystanders were asked, they said wala sila kaila. They didn’t know: that’s negative evidence. So what prevails? Positive identification. PEOPLE vs. PASCUAL (2009) The statements of accused-appellant’s wife, Divina, immediately after the fateful incident all the more convince the Court as to the accused-appellant’s guilt. Part of the res 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 nangyari 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.

September 21, 2016

based on the lectures of ATTY. JESS ESPEJO

REPUBLIC VS. MANGOTARA (2010) The admissibility of baptismal certificates absent the testimony of the officiating priest or the official recorder, was settled, thus – xxx 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. Q: Is there an instance where business entries may be admitted in evidence even where the declarant is alive? A: The entries will not be admitted as an exception to the hearsay rule, but they may nevertheless be availed of by said entrant as a memorandum to refresh his memory while testifying on the transactions reflected therein.

Business Records Exception Rule 130, 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. What you need to remember here would be that being an exception to the hearsay rule, the same rationale of necessity and trustworthiness are applicable. Necessity. Why? Because the declarant or the proper witness is already deceased or unable to testify for reasons that we will go to later on.

We’ll go to that kang mga Present Recollection recorded and so on and so forth, these are quite technical aspects that we need to discuss still. Entries in Official Records Rule 130, 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 especially enjoined by law, are prima facie evidence of the facts therein stated. When we say “prima facie”, once that it is established, it will stand unless it is rebutted by contrary evidence. REQUISITES UNDER SECTION 44 1.

Trustworthy, because the presumption is something is done in the ordinary or regular course of business and it is repeated over and over again. It gives it a certain degree of accuracy.

2.

REQUISITES UNDER SECTION 43 3. 1. 2. 3. 4.

5.

The person who made the entry must be dead or unable to testify; The entries were made at or near the time of the transactions to which they refer; The entrant was in a position to know the facts stated in the entries; The entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious; and The entries were made in the ordinary or regular course of business or duty. (Regalado, Vol. II, pp. 791-792, 2008 ed.)

Take note that the capacity by which the entrant has made the entry is not limited to business. Dilikaykang a going concern that makes profit.That’s not the “course of business” that the law is referring to, so it’s not limited to that. It can be moral or religious. Example: A priest officiates a baptism and so naaymga records diha or let’s say baptismal certificates. This has been known to be one of those covered by Section 43.

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

So we’re talking here about people in the government who regularly take entries and records. Examples 

PEOPLE VS. MAYINGQUE (G.R. No. 179709, July 6, 2010) Anatomical Skeletons, Medico-Legal Report

That is entry in the official record. They are prima facie evidence of the facts therein stated even if the person, who himself prepared the anatomical sketch or the medico-legal report, is not present to testify. Example: There’s a report on an autopsy being made upon a cadaver and then it was made by somebody else, then later on he resigned. But when the case came where that medico-legal report became relevant and should have been presented, it was his successor who

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

testified. Pwede ba na siya? According to the SC: Yeah! In the case of People vs. Mayingque. 

PEOPLE VS. PRESAS (G.R. No. 182525, March 2, 2011) Report of an official forensic chemist regarding a recovered prohibited drug

Again, that is prima facie evidence of the facts therein stated even if the forensic chemist himself did not testify. If you are the opponent or the accused, let’s say in the case of People vs. Presas, what should you have done? You have to rebut, prima facie evidence lang man siya it can still be rebutted. Rather than object to its admissibility on the ground that it is not the forensic chemist who made the examination to testify in court. 

PEOPLE VS. SAN GABRIEL (G.R. No. 107735, February 1, 1996) Advance Information Sheet, Police Blotter and Other Police Reports

Although in practice what we usually do would be to subpoena the officer who made the blotter. Then they testify as to what that blotter includes.

Excludes mere price quotations or replies to queries as to costs. What happened was there was a collision of maritime vessels. Katongdili sad-an, the plaintiff, wanted to have the vessel repaired. What it did, it secured quotations coming from those engaged in the repair of marine vessels to determine kung pila iyahang gi-claim as damages for the repair. He got a lot of quotations and according to him they can be presented without presenting those who made the quotations themselves because it’s considered a commercial list. The SC said NO, that’s not a commercial list. It excludes price quotations or replies to queries as to costs. 

MERALCO VS. SECRETARY OF LABOR (G.R. No. 127598, February 22, 2000) Excludes mere newspaper accounts

Regarding wages to be paid by an employees, ang pangutana diha newspaper accounts, listing what is supposed to be paid by an employer to an employee all throughout the country is not considered as a commercial list? According to the SC, NO. It excludes such newspaper accounts as to wages. Q: What are the examples of commercial lists and the like?

If you ask me, there is nothing much about the police blotter. Why? Because it can be influenced, wala mana siyay actual probative value except to prove that a particular incident took place. Is it proof that a person is already guilty? No.

1.

Is it proof that in a collision case, in a traffic accident report, does it mean that if you’re Vehicle 2 you are supposed to be the one guilty? Although that’s usually what happens. If you meet an accident make sure you are Vehicle 1, because it’s supposed to be the one na nabanggaan, that’s the misconception. To my mind, there’s really no probative value especially so when traffic accident reports are based on interviews made by the officer after the accident took place. Makita ba diay sa officer ana kung giunsa an gpagbangga, kung kinsa gyud ang sala?

4.

2. 3.

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

None of them I am familiar with. To illustrate why it is necessary and trustworthy, let me explain it to you this way. Let’s go back to the past, 10 years ago, when people still use directories. Naay yellow pages di ba? And the yellow pages there would normally include a division of numbers, addresses and companies based on the business they’re engaged to. So it’s a list. If you’re looking for a printing press, you go to a directory.

Commercial Lists Rule 130, 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. REQUISITES UNDER SECTION 45 1. 2. 3. 4.

It is a statement of matters of interest to persons engaged in an occupation; Such statement is contained in a list, register, periodical or other published compilation; Said compilation is published for the use of persons engaged in that occupation, and It is generally used and relied upon by persons in the same occupation.

Cases 

Question is who compares that? Isn’t it a fact that every year naay bag-ong version sa directory. So it’s conceivable that every year the entries would change and it goes back a long long time ago when they first issued directories. Can you trace who made the first directory when it was first issued? Dili na nimo na ma-trace, maybe if it’s necessary to admit a directory for example. Is it trustworthy? Well apparently it is because people use them. If you’re looking for a printing press, you go to the directory, you call the first one that you see. If you’re not satisfied, call another one and so on and so forth. That’s how to illustrate why commercial list are supposed to be exceptions to the hearsay rule because they are necessary and they are trustworthy. Learned Treatises Rule 130, 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 therein if the court takes judicial notice, or a witness expert in the subject testified, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject.

PNOC SHIPPING VS. CA (G.R. No. 107518, October 8, 1998) Q: When are learned treatises admissible? 3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.

LAW ON EVIDENCE 1.

When the court can take judicial notice of them; or

If the court takes judicial notice of the fact that that is really a learned treatise, meaning that is supposed to be a full compendium of knowledge related to a particular branch of study then it will be admitted as such. The court can now quote from the learned treatise.

based on the lectures of ATTY. JESS ESPEJO

again, given in a former case or proceeding, judicial or administrative, involving the same parties, the same subject matter, may be given in evidence against the adverse party. But the important requisite to remember here was that in the previous case there must have been opportunity given to the adverse party to cross-examine the witness or the deponent. REQUISITES UNDER SECTION 47

2.

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

1.

What about if walani-take ugjudicial notice angcourt? Take note of the requirement that an expert of the subject must testify that the writer himself of the learned treatise is an expert. So there’s that prequalification requirement under Section 46.

2.

Grey’s Anatomy, it’s not just a name of the show, it’s a book that is used by medical professionals. Everybody in the medical field would know what this Grey’s Anatomy book is all about. Meaning it’s a treatise, and they say that Grey is an expert on that subject. That’s the reason why it’s considered as a learned treatise.

4.

Examples: 1. 2. 3.

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

Law, that I do not agree with. Remember that the law in the Philippines will always be subject to an adversarial reckoning. It will depend on how the plaintiff argues and how the defendant counterargues. Regardless of what a particular legal treaty would say, parties will always try to get portions of that legal treatise that would benefit their cause. Always subject to argumentation, to counter-interpretation by different parties. So to my mind, I don’t think that a legal treatise should be a proper exception to the hearsay rule. Do you consider the SCRA to be a legal treaty? No, I’ve never seen a lawyer bring a SCRA to the court presenting as evidence. But if you look at how the law is worded, naa gyud nakabutang na law. Akoa lang walay practical application. Testimony or deposition at a former proceeding Rule 130, 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. What happens here is that there’s a present case, a case under consideration by a particular court but sometimes cases for just offshoots of other cases. It’s quite possible that between the plaintiff and the defendant, the present case is not the only case between the two. And it’s also quite possible that evidence presented in a particular case is evidence that has already been presented in a previous case, or that the parties have already testified during that related case. What Section 47 foresees is the use of testimonies or depositions previously taken in probably a different case in the present case under consideration in the court. The testimony or deposition of a witness deceased or unable to testify, making it necessary once

3.

5.

Witness whose testimony is offered in evidence is dead or unable to testify; The testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; Former case involved the same subject as that in the present case, although on different causes of action; Issue testified to by the witness in the former trial is the same issue involved in the present case; and Adverse party had an opportunity to cross-examine the witness in the former case.

“Opportunity to cross-examine” – it does not necessarily mean actual conduct of cross-examination. It is enough that crossexamination or the opportunity to cross-examine was given to the adverse party. What if he said “No cross-examination, Your Honor”, he refuses to cross-examine for whatever reasons. That would be enough, no need for actual cross-examination, what’s important was that the adverse party was given an opportunity to cross-examine. Now again, balik ta, what would be the rationale why Section 47 is an exception to the hearsay rule? Necessity, trustworthiness. Why necessity? Because the witness is already deceased or otherwise unable to testify. Why is it trustworthy? Because in the previous case, the adverse party was given an opportunity to cross-examine. So that further cross-examination in the present case would not be expected to be different. It would illicit more or less the same facts. Q: What are the grounds, aside from death, which makes a witness unable to testify in a subsequent case? 1. 2. 3. 4.

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

Again let me remind you, all the exceptions of the hearsay rule pareha ra gyud na ug rationale. Necessity and Trustworthiness. Common reputation for example. Why necessity? Because you really do not know who should testify there. Why trustworthy? Because it’s been common knowledge of the people in the community for at least 30 years. OPINION RULE Is it allowable for a litigant to go to court and as part of his evidence present the opinion of the people? At the witness stand, “Mr. witness in your opinion is the accused guilty or is he innocent?” Witness: “Guilty.” “Okay you’re excused.” Call another witness and ask the same question. So if that is the case, if that was allowed, what will happen to litigations? It will practically become an exercise where you’re just testing the popularity of a particular party.

3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.

LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

A: None. It is sufficient that the following factors are present: Q: What is an opinion? It is an inference or conclusion based or drawn from the facts established.

1. 2. 3.

When a witness states an opinion, he does not testify based on personal knowledge. Instead of saying what he saw, heard, smelled, tasted or touched, he is testifying as to what he thinks about a particular matter. So when you hear a question like, “So what do you think Mr. Witness?” “Objection Your Honor, calls for an opinion.”

Training and education; Particularity, first-hand familiarity with the facts of the case; and Presentations of authorities or standards upon which his opinion is based. (PEOPLE VS. ABRIOL, 2001)

Take note that the law mentions “training and education.” Education may make you an expert but training is sometimes acquired. Example: You graduate from medical school. You took and passed the licensure examination for physicians. You became a fullfledged doctor. Are you now an expert? No, you have to undergo certain trainings. You have to specialize.

General Rule Q: How is expertise acquired? Rule 130, Section 48. General rule – The opinion of witness is not admissible, except as indicated in the following sections. BERNARDINO VS. PEOPLE (2006) Witnesses can testify only to those facts which they know of their personal knowledge, that is, which is derived from their own perception. They are not generally allowed to testify on their opinion or conclusion but must state facts within their knowledge as it is the province of the court to make deductions from pertinent facts placed in evidence and to decide matters directly in issue. Their testimony must be confined to statements of concrete facts within their own observation, knowledge, and recollection – that is, facts perceived by the use of their own senses – as distinguished from their opinions, inferences, impressions and conclusions drawn from such facts, which are incompetent and inadmissible. Exceptions 1. 2.

Opinion of Expert Witness (Section 49) Opinion of an Ordinary Witness as to: a. The identity of a person about whom he has adequate knowledge; b. A handwriting with which he has sufficient familiarity’ c. The mental sanity of a person with whom he is sufficiently acquainted; and d. The witness’ impressions of the emotion, behavior, condition or appearance of a person (Section 50)

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) What’s an example? Kanang mga karpintero, mga panday, mason, those who work with concrete. You think they studied a four-year course just to know how to build a house? Or to carve a wood or manipulate wood or concrete? No, but years of experience somehow gives them that expertise. Kinsa ba nagadala sa usa ka construction? Is it the architect, engineer and the contractor or the foreman? It’s the foreman who is usually unlettered. Wala nakahuman ug skwela pero hawud kaayu. He knows that if this is the structure, this would be the amount of posts that you need without even computing anything. It’s expertise made by experience. Q: What is expert evidence? It is testimony of a person (expert witness) possessing knowledge not usually acquired by other persons in a particular subject matter. There’s that requirement of specialization. There’s no person in the world who can be considered an expert on everything, a master of everything. Q: When is expert evidence admissible?

Expert Opinion

A: It is admissible when:

Rule 130, Section 49. Opinion of expert witness. – The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he shown to possess, may be received in evidence. Q: What is an expert witness? PEOPLE VS. ABRIOL (2001) 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.” Q: Is there a definite standard of determining the degree of skill or knowledge that a witness must possess in order to testify as an expert?

1. the matter to be established requires expertise; and 2. the witness has been qualified as an expert. Let’s discuss the first requisite. For example: You go to court and then because somebody bumped you then there’s this injury in your part. An injury that is incapacitating that it now affects your capacity to earn a living for the future or your ability to procreate. If that’s the case, what do you need to show to the court? Experts, scientific or medical opinion would be the one that is desired. Another example: You go to a doctor and you had an appendectomy but you came out with a vasectomy. What is the meaning of that? There’s negligence on the part of the practitioner. Is that usual? Is that the standard operating procedure in a court of law or in the field of medicine? The court will not know. You cannot expect the court to be an expert in everything. That’s the reason why in certain issues that when the court is confronted with them, the court must

3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.

LAW ON EVIDENCE necessarily draw from expert evidence. Evidence that normally a court cannot appreciate on its own.

based on the lectures of ATTY. JESS ESPEJO

Procedure 1.

Q: What is the test in determining whether there is need to resort to expert evidence?

What’s the process of qualifying a witness? We already illustrated that.

A: The test is whether the opinion called for will aid the court in resolving an issue. 2. If the court already knows the science about it then no need to call for an expert witness because it can solve the issue on its own. But more often than not, the court is forced to rely on expert opinion.

Meaning you have to tell the court that the purpose of the testimony of this witness is to give expert opinion. That’s how you offer, “The testimony of this witness is offered to prove the following matters, . . . he will testify Your Honor, as an expert witness” That’s the way we did it before prior to the judicial affidavit rule. Right now in the judicial affidavit rule, you still have to cite the purposes at the beginning of the judicial affidavit. You have no problem if your opponent admits or stipulates that the witness you are presenting is actually an expert. In psychological incapacity cases, what do you need to prove there? Pursuant to Article 36, Republic vs. Molina, you need to prove psychological incapacity. There’s this doctor from Davao who I always see in Article 36 cases elsewhere. It’s funny because every time that guy testifies, nobody ever stipulates as to his expertise. That’s why the judge would always tell the adverse party, “Would you care to stipulate as to the expertise of the witness on this field, on the issue of psychological incapacity?” And then the adverse party say, “No, we do not stipulate.” This guy has been a constant fixture in this court, every time na nay Article 36, siya ang witness sa mga party. So if the adverse party does not stipulate as to the qualification of the witness, what do you need to do? You go to the process called qualifying a witness. Qualifying a Witness If the opponent does not admit that he is an expert witness, then before a witness proposed as an expert may testify, he must first be qualified. “Qualifying a witness” means the act of proving that the witness is an expert. This is done by making him testify, through preliminary questions, as to his training, education and expertise. What we usually do would be to ask the witness to bring his certifications, his diploma, his certificate of admission to a particular profession that he belongs. What evidence does he have as to certain trainings that would help establish his expertise and so on and so forth. So it’s a very long process actually. But now because of the judicial affidavit rule, you just put it all down to paper. You just assume that there’s no stipulation as to the expertise of the witness. Basis of Opinion An expert witness may base his opinion either on the first-hand knowledge of the facts or on the basis of hypothetical questions where the facts are presented to him and on the assumption that they are true, formulates his opinion on the hypothesis.

Present his factual testimony, if he has knowledge of the facts; Because an expert witness will of course be briefed as to the facts in the case na he’s supposed to testify about. Let’s say he’s a ballistic expert, of course he has already made his own independent investigation as to what happened in the case that necessitated his testimony as a ballistic expert.

Q: How an expert witness testifies? An expert witness is always offered as such. STIPULATION. If the opponent admits that he is an expert, he can immediately proceed with his testimony.

Introduce and qualify the witness, if his qualifications are not otherwise stipulated upon by the opponent;

3.

Begin the hypothetical question by asking him to assume certain facts as true; Assuming for the sake of argument, a sexually transmissible disease could result in sterility making a person unable anymore to procreate. Is it now possible that the child claiming paternity is not really a child of A, the defendant? So that’s a hypothetical question.

4.

Conclude the question, by first asking the expert if he has an opinion on a certain point assuming that these facts are true and secondly, asking him, after he has answered affirmatively, to give his opinion on the point.

5.

After he has stated his opinion, ask him to give his reasons or the bases for his opinion. Definitely there should be a basis. Say for example, sterility caused by sexually transmissible disease. You cannot cite a legal treatise. Asa gikan ang imong opinion?

Nature of expert opinions 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. What you’re doing when you present an expert witness will be not to establish a matter of fact but you’re giving the court an advisory, an advice that the court can base his opinion upon. TABAO VS. PEOPLE (2011) The use of the word “may” signifies that the use of opinion of an expert witness is permissible and not mandatory on the part of the courts. Allowing the testimony does not mean, too, that the courts are bound by the testimony of the expert witness. The testimony of an expert witness must be construed to have been presented not to sway the court in favor of any of the parties, but to assist the court in the determination of the issue before it, and is for the court to adopt or not to adopt depending on its appreciation of the attendant facts and the applicable law. “Permissive” that’s the keyword that you need to remember. The use of expert opinion is at most permissive.

3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.

LAW ON EVIDENCE Q: Are there instances under the law where expert evidence is actually mandated? YES. For example: 

Medical Malpractice Cases (CASUMPANG VS. CORTEJO, G.R. No. 171127, March 11, 2015)  Section 46, on learned treatises If the court does not take judicial notice that the writer of the treatise is an expert, you have to present a witness expert on the subject who will testify that that guy, the author of the treatise, is really an expert.  Article 36 Cases (REPUBLIC VS. MOLINA, 268 SCRA 198) Is it absolutely required or mandated in the case for declaration for nullity of marriage that psychological incapacity should be proven by expert? Remember naa na siya sa elements, the testimony or examination of a psychologist or a clinical psychiatrist that should prove the psychological capacity. What do you need to prove regarding psychological incapacity? Gravity, Incurability and Juridical Antecedence. BIER VS. BIER (2008) The personal examination of the party alleged to be psychologically incapacitated by a psychiatrist or psychologist is no longer mandatory for the declaration of nullity of the marriage under Article 36 of the Family Code but the totality of evidence must still prove the gravity, juridical antecedence and incurability of the alleged psychological incapacity. That’s the basis now for the holding that you can actually dispense with it. Pwede na di ka magpa-testify ug psychiatrist or psychologist. Anyway kaning mga tawhanani, I have seen cases na they don’t really make a thorough psychological evaluation of a party. So kinta hayang nag-hire sa iyaha kayang bana, so pangutan-on niya ang bana, “Unsa man gyud diay ang character sa imong asawa?” Husband: “Nagger, mahjongera, bigaon” And then based on the statements made by the husband, the psychiatrist will now only know that psychologically incapacitated ang asawa despite not being able to physically examine or psychologically evaluate the wife. CASUMPANG VS. CORTEJO (2015) Expert testimony is essential to establish not only the professional standards observed in the medical community, but also that the physician’s conduct in the treatment of care falls below such standard. When can there be a charge for medical practice? The keywords there would be deviation from standard of care required under the situation. Example: How do you usually treat, in the case of Casumpang vs. Cortejo, dengue fever? What are the accepted medical standards in the treatment of a person afflicted with dengue fever? Did the doctor deviate from those standards? How would the court know that if there’s no testimony by the expert in the medical field as to what are the acceptable standards of treatment for dengue fever? So in ana ang reason nganung kinahanglan absolutely required ang expert testimony in medical malpractice cases, simply because a court is a court of law, not a tribunal of medicine.

based on the lectures of ATTY. JESS ESPEJO

On March 30, 2000, at around 11:00 p.m., Juan delaLlana was driving a 1997 Toyota Corolla car along North Avenue, Quezon City. His sister, Dra. delaLlana, was seated at the front passenger seat while a certain Calimlim at the backseat. Juan stopped the car across the Veterans Memorial Hospital when the signal light turned red. A few seconds after the car halted, a dump truck containing gravel and sand suddenly rammed the car’s rear end, violently pushing the car forward. Due to the impact, the car’s rear end collapsed and its rear windshield was shattered. Glass splinters flew, puncturing Dra. delaLlana. Apart from these minor wounds, Dra. delaLlana did not appear to have suffered from any other visible physical injuries. The truck driver revealed that his employer was Rebecca Biong. A month and a half after the accident, Dra. delaLlana began to feel moderate pain on the left side of her neck and shoulder. Her health deteriorated to the extent that she could no longer move her left arm. She consulted with Dr. Rosalinda Milla to examine her condition. Dr. Milla told her that she suffered from a whiplash injury, an injury caused by the compression of the nerve running to her left arm and hand. She sued the defendants for damages for her whiplash injury. During trial, as a medical doctor, Dra. delaLlana herself testified about her alleged whiplash injury. Evidence of delaLlana 1. The pictures of her damaged car To show that the collision was strong and it can be reasonably inferred from these pictures that the massive impact resulted in her whiplash injury. 2. The medical certificate dated November 20, 2000 Dr. Milla categorically stated in the medical certificate that Dra. delaLlana suffered from whiplash injury. 3. Her testimony that collision can cause whiplash injury. Credible because she was a surgeon. Ruling: 1. The pictures of her damaged car According to the SC, it only proves impact. It cannot be used to infer whiplash injury. 2. The medical certificate dated November 20, 2000 HEARSAY. The doctor who issued it did not testify. 3. Her testimony that collision can cause whiplash injury. EXCLUDED FOR BEING A MERE OPINION. As to the Medical Certificate – The medical certificate has no probative value for being hearsay. It is a basic rule that evidence, whether oral or documentary, is hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge of another person who is not on the witness stand. As to her testimony – Dra. delaLlana, as the plaintiff in this quasidelict case, was the lone physician-witness during trial. Significantly, she merely testified as an ordinary witness before the trial court. Dra. delaLlana essentially claimed in her testimony that Joel’s reckless driving caused her whiplash injury. Despite the fact that Dra. delaLlana is a physician and even assuming that she is an expert in neurology, we cannot give weight to her opinion that Joel’s reckless driving cause her whiplash injury without violating the rules on evidence.

DE LA LLANA VS. BIONG (2013) 3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.

LAW ON EVIDENCE In the present case, Dra. delaLlana’s medical opinion cannot be given probative value for the reason that she was not presented as an expert witness. As an ordinary witness, she was not competent to testify on the nature, and the cause and effects of whiplash injury. Furthermore, we emphasize that Dra. delaLlana, during trial, nonetheless did not provide a medical explanation on the nature as well as the cause and effects of whiplash injury in her testimony. She was offered as an ordinary witness, a factual witness, that makes her testimony inadmissible. Dili ka pwede mahimong expert kung gi-offer ka as an ordinary witness even if incidentally you can be considered as an expert. Remember that’s the reason why a witness is qualified, if you are proposed to be as an expert witness, you have to give the opponent the opportunity to question your qualification. Otherwise, kita tanan pwede ta maghatag ug opinion/expert evidence on a particular case. CASES: 

PAJE VS. CASIÑO (G.R. No. 207257, February 3, 2015) Expert opinion in environmental cases

- How do you prove that the opening of a power plant would cause irreparable environmental damage?

based on the lectures of ATTY. JESS ESPEJO

Opinion of Ordinary Witness Rule 130, Section 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. Identity – If you look at all of these subjects of ordinary opinion, you will really consider them to be purely opinion. None of them are based on personal knowledge. Example: You got a phone call and then it’s trying to prank you or threaten but the voice seems familiar. Si Duterte na. How do you know? Nakitan nimo? The caller did not identify himself but somehow you got an opinion that the person on the other side of the line is a person you know with but you do not know that for your personal knowledge. That is merely an opinion as to the identity of that person.

SAN DIEGO VS. PEOPLE (G.R. No. 176114, April 8, 2015) Dueling expert witnesses in criminal cases involving mishandling or theft of money.

Handwriting – Example: A secretary testifying that the handwriting there is the handwriting of her boss or the signature there is purely the signature of her boss. For 10 to 12 years, she has been the secretary of that person so she knows.

This is a case for qualified theft that it was made possible through the manipulation of financial records. So an expert was presented by the prosecution and then an expert presented by the accused about the financial records may be used as evidence.

Mental Sanity – The mental sanity of a person, opinion lang na. How do you know for sure that that person is not sane? You don’t know that but in your opinion, “I think that guy is crazy.”

Reminds me of a concept that they have in the United States, the socalled “Gibson’s Law”, states that for every expert there is an equal and opposite expert.

Emotion – The witness may also testify on his impressions of the emotion. “Was he angry at that time? Was he shocked? How do you know that?” You cannot state that out of your personal knowledge but based on your observation of him, your opinion is that he was angry. You don’t know that for sure.





TOLENTINO VS. LATAGAN (G.R. No. 179874, June 22, 2015) Is it required for a handwriting expert to examine the original documents allegedly forged? And as a corollary issue, would a showing of possible bias on the part of the expert adversely affect the proponent?

There was an allegation that the expert witness was beholden to one of the parties because one of the parties gave him money for the appendectomy. 

PUNZALAN VS. COMELEC (G.R. No. 126669, April 27, 1998) Are handwriting experts required in examining or comparing handwriting in a ballot?

A possible allegation during election time some years ago, dili pa automated ang atoang elections, was that in certain precincts and certain municipalities, only one person would write the names of candidates that they favor and then replace those ballots na dili ilaha. So to determine whether or not there is electoral fraud, is it possible or is it required for the Comelec to get handwriting experts to show that the ballots have been accomplished by just one person? According to the SC, NO need. The Comelec can see for itself. But karon dili na, we don’t need handwriting experts anymore in election cases, as in absolutely not. What you would need would be tech experts to rig the PCOS machines.

Behavior – “He was acting crazy.” That’s just an opinion because how a person acts will always be subjective. An act maybe crazy to one but it may not be so crazy to another person. Condition/Appearance of a Person – Pangit, gwapa, opinion lang na tanan. Identity PEOPLE VS. PRIETO (2003) 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. Handwriting MARIANO VS. ROXAS (2002) That the receipts are not genuine was confirmed by Lorna Caraga. She testified that she is familiar with the signature of complainant who was her officemate for a period of 5 years in the RTC of 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.

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LAW ON EVIDENCE Mental Sanity When a person not an expert testifies as to the mental sanity of a person, he is actually stating a matter of opinion derived from his own perception. However, in order to be admissible, the witness must have been sufficiently acquainted with the person and his mental sanity. To be considered sufficiently acquainted, the proponent must establish the degree of familiarity between the witness and the person whose sanity he is testifying about. This is particularly useful in Succession cases considering that one of the requirements for testamentary capacity is that the testator must be of sound mind. Emotion/Behavior/Condition or Apperance BAR Question: Dencio barged into the house of Marcela, tied her to a chair and robbed her of assorted pieces of jewelry and money. Dencio then brought Candida, Marcela’s maid, to a bedroom where he raped her. Marcela could her Candida crying and pleading: “Huwag! Maawa ka sa akin!” After raping Candida, Dencion fled from the house with the loot. Candida then untied Marcela and rushed to the police station about a kilometer away and told Police Officer Roberto Maawa that Dencion had barged into the house of Marcela, tied the latter to a chair and robbed her of her jewelry and money. Candida also related to the police officer that despite her pleas, Dencion had raped her. The policeman noticed that Candida was hysterical and on the verge of collapse. Dencio was charged with robbery with rape. During the trial, Candida can no longer be located. If the police officer will testify that he noticed Candida to be hysterical and on the verge of collapse, would such testimony be considered as opinion, hence, inadmissible? Explain. UP Suggested Answer: No, it cannot be considered as opinion, because he was testifying on what he actually observed. The last paragraph of Section 50, Rule 130, Revised Rules of Evidence, expressly provides that a witness may testify on his impressions of the emotion, behavior, condition or appearance of a person. -Although to my mind, mali ang pagkatubag nila. Still opinion, it’s just that it is an admissible opinion. Pwede man siya, impression lang gud na siya of a person. “In you opinion, what was she?” “She was hysterical and on the verge of collapse.” Although you do know that for a certainty, you did not physically examine her. BAR Question: At Nolan’s trial for possession and use of the prohibited drug, known as “shabu”, his girlfriend Kim, testified that on a particular day, he would see Noland very prim and proper, alert and sharp, but that three days after, he would appear haggard, tired and overly nervous at the slightest sound he would hear. Nolan objects to the admissibility of Kim’s testimony on the ground that Kim merely stated her opinion without having been first qualified as expert witness. Should you, as judge, exclude the testimony of Kim?

based on the lectures of ATTY. JESS ESPEJO

appearance of a person.” Because I always ask this in my examinations as well, I am less impressed with people who do not get it in the proper order in which they appear in the codal. So you memorize that. CHARACTER EVIDENCE What is character evidence? Simply, it’s the perception about a person. Whether he is perceived as a good person or a bad person. Whether he is a person of good reputation or a person of bad reputation. That’s character evidence and the prevailing rule there would be Section 51. Rule 130, Section 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 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. So the general rule is if you’re prosecution, you cannot convict the accused of evidence that his reputation in the community was bad. “He’s an known hitman/drug user/thief in the community.” You cannot do that because it is not material or relevant to the issue of whether or not he committed the crime of which he is charged. Rule 132, Section 14. Evidence of good character of witness. Evidence of the good character of a witness is not admissible until such character has been impeached. You cannot therefore bolster a witness. You may only resort to introducing evidence about, let’s say, the good character of a witness only for the purpose of what we call “Rehabilitation”. To rehabilitate the credibility of the witness after his credibility has been breached. So these are the three very related matters: 1) 2)

3) Answer: No. The testimony of Kim should not be excluded. Even though Kim is not an expert witness, Kim may testify on her impressions of the emotion, behavior, condition or appearance of a person. (Sec. 50, last par., Rule 130) You know what I realized because this is a repeating question in the bar examinations, I think you need to memorize that. At least the order in which the terms appear, “emotion, behavior, condition and

Bolstering – You prove the good character or reputation of the witness even if his character has not been impeached. Impeachment – You destroy the credibility of the witness. You can do so by telling the court that the witness has a bad reputation. Rehabilitation – Kung gidaot sa kalaban nimo ang reputation sa imong witness at the witness stand, you’re allowed to present evidence to counteract that.

Rationale Generally, the character of a party is regarded as LEGALLY IRRELEVANT in determining a controversy. IT IS PURELY CIRCUMSTANTIAL. That is the reason why it is inadmissible.

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LAW ON EVIDENCE 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 case (PEOPLE VS. LEE, G.R. No. 139070, May 29, 2002) Exceptions When are you allowed to present evidence as to the good character of the accused? Good character of the accused 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. I heard this a lot in court. A person being tried for murder will present witnesses tending to show that he is a responsible son, a conscientious member of the community and so on and so forth. What’s the purpose of that? So that the court might be swayed to think that the accused is not actually a bad person.

based on the lectures of ATTY. JESS ESPEJO

Example: In a prosecution for rape, where the defense of the accused is consent, he may present evidence of the bad character of the woman (i.e., bigaon, that the woman is a prostitute, etc.) Homicide, etc. 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. The purnacious, 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. 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. But proof of the victim’s bad moral character is not necessary in cases of murder committed with treachery and premeditation. (PEOPLE VS. LEE, G.R. No. 139070, May 29, 2002) It doesn’t matter. It will only be relevant, the bad character of the victim if you’re pleading self-defense. PEOPLE VS. SAZON (1990)

Thus, a person accused of a crime involving dishonesty may present evidence tending to prove that he is honest. By the Prosecution Example: If Gerald is accused of stealing from the purse of Maja, the prosecution cannot present witnesses tending to show that Gerald has the propensity to steal. However, if Gerald presented character evidence tending to show that he is honest or that he is not a thief, the prosecution now present adverse character evidence (only in rebuttal).

The bad moral character of the offended party may be proved in evidence to establish in any reasonable degree the probability of the offense charged, 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. Kung nay lain naka witness clearly stating that he initiated the altercation and in the process killed the victim, it wouldn’t matter. PEOPLE VS. ADONIS (1995)

Kung nag-present siya ug evidence of good character, that’s the only time that the prosecution can present evidence of his bad character. In both (1) and (2) The character evidence must be relevant and germane to the kind of the act charged, e.g., on a charge of rape, character for chastity; on a charge of assault, character of peacefulness or violence; on a charge for embezzlement, character for honesty and integrity. So there is that basic requirement of relevancy. Kung ang crime in ani, dapat in ani pud ang imohang character evidence that you can present. Offended Party 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.” Example: In a prosecution for murder where the accused pleads the justifying circumstance of self-defense, he may present evidence of the bad character of the victim (i.e., that the victim is a violent person, proving unlawful aggression).

Even if it had been proved by competent evidence that the deceased was of a quarrelsome disposition, such evidence would only have established a probability that he had indeed started an unlawful assault on Eleuterio. This probability cannot overcome the positive statement of the prosecution witnesses during trial that the accused-appellant had assaulted Basas without any provocation. Rape and Similar Offenses General Rule 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. Exceptions  

When the woman’s consent is immaterial such as in statutory rape or rape with violence or intimidation. In the crimes of qualified seduction or consented abduction where the offended party must be a “virgin” which is

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LAW ON EVIDENCE “presumed if she is unmarried and of good reputation,” or a “virtuous woman of good reputation.”

based on the lectures of ATTY. JESS ESPEJO

the codal provision lang gyud. You just need to remember when it is permissible, when it’s not, what are the exceptions.

Child Sexual Abuse Cases Section 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 that the accused was the source of semen, injury, or other physical evidence shall be admissible. Adult Rape The evidence of complainant’s past sexual conduct, or reputation or opinion thereof shall not be admitted unless and only to the extent that the court finds that such evidence is material and relevant to the case (Rape Shield, Sec. 6, R.A. 8505 or Rape Victim Assistance and Protection Act of 1998) So what’s the effect of this provision under R.A. 8505? Gi-reverse raniya, kungunsaanggeneral rulemaonakaronangexception. Because the general rule, the offended party you can introduce character evidence to prove bad reputation for example, if your defense is consent. But karonbaliktadna. The exception is when the court won’t allow such evidence if it is of course material and relevant to the fact in issue in the case but the rule remains practically the same. In Civil Cases Evidence of the moral character of a party in civil case is admissible only when pertinent to the issue of character involved in the case. Examples:  Declaration of Nullity of Marriage due to Psychological Incapacity Where a party is alleged to be psychologically incapacitated to comply with the essential marital obligations of marriage, there are times when evidence of his character must be adduced (Example: The respondent is a compulsive gambler, a womanizer, a sex addict, etc.)  Custody Cases In custody cases, more often than not, one parent would be attacking the moral character of the other if only to prove that he or she is the better parent to take sole custody of the child. If the child is a minor below 7 years old, the mother is preferred. It seems that the only way for the father to take custody is to prove that the mother is manifestly unfit. For Section 50, you memorize for obvious reasons. It’s asked in the bar examinations all the time. For Section 51, what I need you to do would be to memorize the codal provision because the questions asked in the bar examinations will all depend on their knowledge on the codal provisions. It’s kinda long but any questions asked in bar examinations will be based on 3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.