Evid Reviewer.docx

OBJECT (REAL) EVIDENCE  Is that which is addressed to the senses of the tribunal, as where the objects are presented for the inspection  not limited to that which may be known by the sense of vision; extends to what is perceived by the senses of hearing, taste, smell, or touch  addressed to the discretion of the trial judge, who must decide whether or not there is a “specific reason of policy/ principle” which urges against admitting the exhibit Before an object may be exhibited/viewed by the court, it must be shown that: 1. it is relevant to the fact in issue 2. present condition of the object be the same as at the time in issue or so nearly the same as to be proper evidence of its former condition  it has been held that the circumstances that any such articles haven been altered before they are offered in evidence does not necessarily affect their admissibility: o where there is no evidence that there has been any illegal tampering with them o and such alterations do not obliterate or change the condition which is sought to be shown  merely the weight of the evidence  when the object produced as evidence is indecent/improper, it should be excluded XPN: unless the same is necessary for ascertaining the truth TWO LIMITATIONS ON THE QUESTION OF INDECENCY: 1. there should be a fair necessity for inspection, trial court to determine 2. the inspection should take place apart from the public courtroom, in the sole presence of the tribunal & parties  Repulsive objects, offensive to sensibilities – should be excluded, if they are not absolutely necessary for the administration of justice 1



 

Production of real evidence should not be permitted to exaggerate and should not be allowed, through cunning presentation  to stir up passion and or unduly excite sympathy/pity and so lead the court to act upon sentiment, instead of proof Ultimate test of TRUTH: “The best and highest proof of which any fact is susceptible is the EVIDENCE OF HIS OWN SENSES” Where it is necessary to show the condition/quality of a certain article/substance, THE THING ITSELF IS THE MOST POWERFUL EVIDENCE THAT CAN BE PRODUCED  Supplementing the testimony of the witnesses  Direct evidence, when properly identified

Where Object in question cannot be produced in Court, because of IMMOVABILITY/INCOVENIENCE TO REMOVE:  Tribunal must go to the object in its place and observe PHOTOGRAPHS  if alone: CANNOT become part of the evidence to be considered by the court  must first be qualified for admission by the testimony of the witnesses  must first be accepted as material & relevant to the issues  probative value must outweigh he policy consideration and undue prejudice against its admission Relevant if: 1. Assists witnesses in presenting & explaining testimony 2. Aid the court in understanding the issues in suit 

May be qualified for admission by the testimony of any person who eye witnessed the scene pictured

2



No need for authentication: o Foundation is first laid that witness is familiar with the location o Has seen the person before × Layman is not competent to testify competence of the photo, size and distance of objects are invisible to the naked eye A.

Use of devise to accentuate photo evidence:  lay down sticks, rocks or other objects to indicate/ intensify the features of the object  does not affect admissibility  show contrast with the background

B.

Enlargements  Magnification  Subject to the usual test of accuracy & relevancy

C.

Color Pictures  Faithful representation than that of B&W  Test of probative value

D.

Aerial Photo  Ground areas pertinent to an issue

XRAY  Proof of client’s injuries  Modality of medical treatment/diagnosis

3

MOTION PICTURES Authentication: 1. circumstances surrounding the taking of the film 2. manner & circumstance surrounding the taking of the film 3. projection of the film 4. testimony of a person present at the time film was taken and saw when it occurred VIDEO TAPE:  Motion picture synchronized with a sound PHONOGRAPH &TAPE RECORDINGS:  Reproduction by the mechanical witness of the sound themselves Requisites: 1. Recording device was capable of taking testimony 2. Operator of the device was competent 3. Establishment of the authenticity and correctness of the recording 4. Changes, additions & deletions have NOT been made 5. Manner of preservation of the recording 6. Identification of the speakers 7. Showing that the testimony elicited was voluntary made without inducement Authenticated by testimony: 1. That witness personally recorded the convo 2. Tape played in court was the one he recorded 3. Voices on the tape are those of the persons such are claimed to belong

4

VOICEPRINTS (Spectograms)  consists of magnetic recording device, a variable electronic filter, a paper-carrying drum which is coupled to the recording device, and an electronic stylus that marks the paper as the drum rotates  determine if any significant similarities exist  based on the theory that NO two persons have exactly the same physical voice properties MAPS, DIAGRAMS, SKETCHES  admissibility is conditioned  pictorial communication by a witness  relevant, accurate, complete FINGERPRINTS, PALM PRINTS, FOOTPRINTS, TRACKS  usually made by experts  introduced and compared with other fingerprints PERSONAL APPEARANCE OF A PERSON  physical appearance, ethnological & racial characteristics, language, customs, dress and manners may be taken into consideration × it is a violation of accused’s right when he is to do some affirmative act, i.e.: putting of clothes found in the crime scene EXPERIMENTS  furnish the court with such knowledge, indispensable to the determination of issues under inquiry, which they could not so readily or accurately obtain from oral testimony alone  there is no precise test to determine when substantial similarity has been satisfied  depends largely upon the purpose for which evidence is to be produced

5

GR: COURT will not permit the conduct of experiments or the introduction of evidence thereof XPN: may be performed inside/outside of the court, when made under similar condition to that prevailing at the time of the controversy EXPERIMENTS IN CRIMINAL PROSECUTIONS  usually permitted when a weapon is involved and the weapon needs to tested and demonstrated SUBJECT MATTER OF EXPERIMENTS  rests with the court

6

DIRECT EXAMINATION (DE)  examination in chief of a witness by the party presenting him on the facts relevant to the issue  may cover all competent matters relevant to the case which the party producing the witness expects or desires to elicit from him  GR: leading questions ARE NOT allowed in DIRECT EXAMINATION GR: leading questions ARE NOT allowed in DIRECT EXAMINATION REASONS: a. Ready opportunity would be afforded for the exercise of bias/prejudice b. Favorable to the points party calling the witness wishes to prove c. Evade parts which are against him XPNS: a. Preliminary matters b. Difficulty in getting direct and intelligible answers from witness (ignorant, minor, feeble-minded, deaf-mute) c. For identifying a particular person/ thing d. Such questions are properly permitted where the mode of interrogative is best calculated to elicit the truth, or prevent failure of justice e. Interrogation of a hostile/unwilling witness I. REPETITION/ REPETITIOUS QUESTIONS GR: is not permissible if it merely tends to repeat a matter which has been already gone over XPNS: a. NECESSARY for a CLEAR UNDERSTANDING of essential facts and b. to impress the importance of matters really important c. in the sound discretion of the court II. LEADING QUESTIONS (LQ)  which suggests to the witness the answer which the examining party desires  suggests the answer desired by putting the words into the mouth of the witness TEST: Suggestiveness of the its substance 7

III. QUESTION IN THE ALTERNATIVE 1. NOT objectionable as leading where it is not so framed as to indicate which answer is desired TEST: Answerable by simple yes/no IV. QUESTIONS ASSUMING CONTROVERTED FACTS/ IMPLIEDLY ASSUMING MATERIAL FACTS  Leading V.

QUESTIONS SUGGESTING THE SUBJECT TO WHICH THE WITNESS IS DESIRED TO DIRECT ANSWER: not leading Rationale: it is impossible to examine a witness without referring to or suggesting the subject upon which he should answer VI. QUESTIONS ASSUMING TRUTH OF THE STATEMENT PREVIOUSLY MADE: not leading VII. PRELIMINARY QUESTIONS  Ascertainment of the competency of the witness in case it is doubted/challenged at the outset  Qualification of an expert witness a. Name b. Age c. Civil status d. Residence e. Occupation UNWILLING/HOSTILE WITNESS Reason for allowing leading question: important to elicit truth from one’s own witness -decided by the judge basing on the demeanor -attempting to promote the interest of the adverse party

8

WITNESS MAY REFER TO A MEMORANDUM  Refresh his memory respecting a fact by anything written/recorded by himself or under his supervision  Record must be reproduced  A re-creative stimulus may be properly applied  Need not be the original writing  Witness may be cross-examined as to the same Purposes: A. Present Recollection revived: For the purpose of refreshing his mind, prov: 1. Memo was written by him or under his discretion 2. Written: a. Written when the fact occurred or immediately thereafter b. Any other time when the fact was fresh in his memory and knew that the same was correctly stated B. Past Recollection revived: testify from such memo/writing that though he retains NO recollection of the particular facts, he is able to swear that the writing correctly stated the transaction when made. Advantages Disadvantages Prompt & unpremeditated answer Witness is unable to give accurate and complete testimony No time to think = no bad faith Situations permitting use of memoranda: 1. Assisting memory of the witness 2. At the time the record/memo was presented to the witness, he knew the contents to be correct 3. Though he may not have seen the memo, knowing the same to be genuine, he is convinced and may be able to swear positively to the fact 4. contemporaneous

9

WHEN PART OF THE TRANSACTION, WRITING OR RECORD GIVEN IN EVIDENCE  the whole of the same subject may be inquired into by the other party  also detached act/transaction, etc.  the right to introduce the entire statement is limited to matters which tend to qualify/explain the admission and does not extend to unconnected self-serving statements  cannot be used to secure admission of hearsay evidence MISLEADING QUESTION 1. which assume as true a fact not yet testified to by the witness, 2. or contrary to the that which he has previously stated, 3. or certain answers to have been given to prior questions, when such answers have not been given CROSS-EXMINATION (CE)  examination of a witness by the party opposed to the party who called such witness, latter having examined, or having been entitled to examine such witness in chief  an ABSOLUTE right of the party against whom he is called  and CONSTITUTIONAL right of the accused (Art III, Sec 14(2))  if by accident/design, CE is prevented: DE is INCOMPETENT  if opposing party did not avail of CE: DE will be received  FUNCTION of counsel  Leading questions are allowed during CE; but the court may restrict the use of LQ  Witness may be asked to repeat what he has testified in the DE so as to test the variety in his answers  Evidence brought out during the CE = evidence of the party who called the witness

10



object of CE: 1. to elicit something in favor of the CEing party 2. to weaken the force of what the witness has said in DE 3. to show that form his present demeanor/ past life, he is unworthy of belief = weaken his testimony CE will be a 1. CE-in-Chief is apparently concluded privilege when: 2. Witness is dispensed with from the stand or RE-EXAMINATION, if any, has begun.

Matters on which a witness may be Cross-examined: English Rule: ALL matters material to the issue; NOT confined to matters in the DE American Rule: Restricts the CE to facts and circumstances stated in the DE of the witnesses, OR to matters connected therewith tending to contradict/ discredit the witness Reason: 1. Party the witness is called stands sponsor for the truth of the testimony which he elicits on the DE 2. Adverse party has no right to bind him by testimony brought out during the CE 3. LQ is permissible in CE 4. There will be injustice to the party calling a witness to permit the opposing party to introduce evid in support for his cause through CE 5. Promotes the orderly & methodical trial of the cause Matters on which a witness may NOT be CEd: GR: 1. A witness CANNOT be cross-examined on the facts NOT brought out in DE. 2. Evidence brought out during the DE but was subsequently stricken out.

11

XPN:

If opposing party wishes to examine a witness on matters not brought during DE, he must do so by calling the witness in his own behalf.

CE of the Accused:  Subject to all proper & legit CE as to facts in issue, whether it tends to incriminate him/not CE of a party as Witness:  Compelled to answer all w/c bear directly/indirectly upon the testimony which he has given in chief or which test his credibility, knowledge, or recollection  Is not deprived of the his rights as the party, and his counsel must raise the question of privilege while he is on the witness stand CE of OWN witness GR: A party CANNOT CE his OWN witness XPN: When the same has proved to be recalcitrant, unwilling, reluctant, evasive, uncandid, adverse, hostile Section 9, Rule 119 of the Rules of Court provides for the following requirements to be a STATE WITNESS:

    

There is absolute necessity for the testimony of the accused. There is no other direct evidence available for the proper prosecution of the offense committed, apart from the testimony of the accused. The testimony of the accused can be substantially corroborated in its material points. The accused does not appear to be the most guilty. The accused hasn't been convicted of any offense involving moral turpitude. 12

RE-DIRECT EXAMINATION (RDE)  Further examination by the party of his own witness, after CE  Re-examined by the party calling him to explain any apparent contradiction or inconsistency in his statements or supplement his answers given during CE  Purpose: o Complete the answer of the witness o To add the matter which have been omitted o Correct possible misinterpretation o Complete an answer which was interrupted during the CE  May be asked his: o Reasons for the acts o Omission to the act/conduct on his part brought out during the CE o Facts & circumstances tending to refute/weaken or remove inferences, impressions  When a conversation has been drawn out by one party, the other party has the right to examine the witness as to the details  Court, in its discretion, may permit that the RDE exceed the scope of CE regarding matters not dealt during the CE RE-CROSS EXAMINATION (RCE)  NOT a matter of right; Court, may on its own, deny the RCE  On matters stated during the RDE and such others as the court may allow  May be allowed whenever explanation is required of answers on RDE  Properly secluded when NO new matter has been brought out on RDE, esp. on matters not disputed during the CE

13

RECALL OF WITNESS  after the examination of witness by both sides, WITNESS CANNOT BE RECALLED without leave of court  refusal of the trial court to recall a witness is not reviewable by the CA, where there has been no grave abuse of discretion  purpose: o to correct/ change testimony previously given through mistake, oversight or error, even before the close of the examination in chief o to lay the foundation for impeachment of an adverse witness o Counsel for prosecution: may call the accused to inquire into a fact which is entirely within the CE, if material and is discovered after the witness has left the stand. IMPEACHMENT A. Impeachment of Judicial Record JUDICIAL RECORD – record, official entry or files of the proceedings in a court of justice OR of the judicial act of a judicial officer, in an action, suit or proceeding – a judgment or a copy may be used as evidence to prove its own existence – may not be proved by parol or extrinsic evidence Purpose: 1. 2. 3. 4.

To prove a fact collateral to the issued involved in the principal case To show the course of conduct previously taken by a party to a principal case To show the divesture or acquisition of certain legal rights through the rendition of the case To show that an issue in the principal case was previously adjudicated

14

May be impeached by: 1. Evidence of want of jurisdiction in the court of judicial officer  2. Collusion between parties  Agreement between 2 persons that one should institute a suit against the other, in order to obtain the decision of a judicial tribunal for some sinister purpose  May be in 2 kinds: i. When the fact puts forward as the foundation of the sentence of the court do not exist ii. When they exist, but have ben corruptly preconcert for the express purpose of obtaining the sentence  Parties are neither may have the judgment collusively procured be vacated on such ground: he is estopped by his misconduct 3. Fraud in the party offering the record  Fraud must be extrinsic/ collateral  Refers directly to the court  Facts constituting it have not been in controversy nor resolved in the case wherein the judgment, whose nullity is sought, has been obtained.  Extrinsic Fraud – fraud in the means judgment has procured. B.

Impeachment of Own Witness IMPEACH – applied to testimony to indicate that it is ERRONEOUS - to call into the question of veracity of the witness by means if evidence offered for that purpose OR by showing that the witness is unworthy of belief - allegation, supported by proof, that a witness who has been examined is unworthy of credit

15

GR: A party who produces & calls a witness to support/prove his cannot impeach/discredit a witness by evidence of a general bad character NOR may he give any other kind of general evidence that his own witness is unworthy of belief Reason: a person who vouches for him to some extent as being not wholly unworthy of credit and that a direct attack upon the veracity of the witness would enable to destroy the witness, if he spoke against him and to make him a good witness, if he spoke for him; with the means in his hand of destroying his credit if he spoke against him

16