Evidence.docx

EVIDENCE CHAPTER I: INTRODUCTION - Sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. - It must be adduced of all facts on which a party relies, whether in issue or relevant in issue. PROOF VS EVIDENCE - proof is the result or perfection of evidence - evidence is the means by which proof is established - the former is the end result, the latter means to the end

* Direct: which proves the facts in dispute without the any aid of any inference or presumption. * Circumstantial: proof of facts which, taken collectively, the existence of the particular fact in dispute may be inferred as a necessary or probable consequence. Requisite of Circumstantial Evidence: 1. there is more than one circumstance 2. facts which the inferences are derive have been established 3. combination of all circumstances is such as to warrant a finding of guilt beyond reasonable doubt. * Primary: affords the greatest certainty of the fact in question. * Secondary: which is inferior to primary evidence and shows in its face that better evidence exists.

WHAT THE RULES OF EVIDENCE DETERMINES - relevancy of facts, or what sorts of facts may be proven in order to established the existence of right, duty, or liability defined by substantive law. - proof of facts, that is what sort of proof is to be given of those facts. - the production of proof of relevant facts, that is, who is to give and how it is given. FACTUM PROBANDUM AND FACTUM PROBANS - the former = proposition to established: while the latter = material evidencing the proposition CLASSES OF EVIDENCE * Relevant: when it has a tendency in reason to establish the probability or improbability of a fact in issue; that a reasonable mind might accept as adequate to support a conclusion * Competent: when it is not excluded by law in a particular case.

* Positive: when a witness affirms that a fact did or did not occur * Negative: when a witness states that he did not see or know the occurrence of facts. * Corroborative: additional evidence of a different kind and character, tending to prove the same point. * Cumulative: evidence of the same kind and character as that already given tending to prove the same proposition. * Prima Facie: that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence. * Conclusive: which is incontrovertible. * Rebuttal: which is given to explain, repel, counteract or disprove facts given in evidence by adverse party.

* Testimonial: testimony of witness, usually on oath or affirmation, given by his word of mouth in the witness stand.

* Sur-rebuttal: when plaintiff in rebuttal is permitted to introduce new matter, defendant should be permitted to introduce evidence surrebuttal, and to decline to permit him to do so is error

* Documentary: consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents.

* Expert: the testimony if one possessing in regard to a particular subject or department of human activity, knowledge not usually acquired by other persons.

* Object: which proves the facts in dispute without the aid of any inference or presumption.

* Substantial: that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.

SCOPE - rules shall be same in all courts and in all trial and hearings EXCEPT as otherwise provided by law or these rules. - in civil there is no presumption while in criminal presumption of innocence attends to the accused until proven guilty. - offer of compromise in civil does not amount to admission of liability, whereas in criminal is an implied admission.

RULES MAY BE WAIVED - during trial of the case, if such waiver constitute public policy then the waiver is void.

ADMISSIBILITY OF EVIDENCE 2 REQUISITE: - RELEVANCY: relevant to the issue - COMPETENCY: not excluded by the rules - the admissibility must tend to convince and persuade and depends upon its practical effect of inducing belief on the part of the judge trying the case. Involves credibility of the witnesses RELEVANCY OF EVIDENCE - when it has such a relation to the fact in issue as to induce belief as to its existence or nonexistence. - depend upon its tendency to establish a controverted facts. MATERIALITY OF EVIDENCE - when it is directed to prove a fact in issue as determined by the rules of substantive law and pleadings. - its quality if substantial importance to the particular issue, apart from its relevancy. *Arevalo vs Layosa: evidence formally offered by a party maybe admitted or excluded by the court. If a party offered documentary or objective evidence and excluded by court, he may move or request that it be attached to form part of the record of the case. IF the excluded evidence is oral, he may state for the record the name or personal circumstances of the witnesses and substance of the testimony.”

COMPETENCY OF EVIDENCE - when it is not excluded by the law or by the rules. - which the very nature of the thing to be prove requires as the appropriate proof in the particular case. * Best Evidence Rule: when the subject inquire is the contents of the documents, no evidence shall be admissible other than the original document itself. * Parole Evidence Rule: when the terms of agreements are reduce in writing, no evidence of such term other than the contents of written agreement; forbids any addition to or contradiction of the terms of a written instrument by testimony. * Hearsay Evidence Rule: witness can only testify to those facts which he knows of his personal knowledge that is derived from its own perception. It bars testimonies dictated to him whether oral or in writing. * Offer of Compromise: in civil case it does not amount to admission of liability, hence, in criminal case it is an implied admission. * Disqualification by reason of mental incapacity or immaturity: - those whose mental condition at the time of their production of examination, is such they are incapable of intelligently making known their perception. - 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. * Disqualification by reason of marriage: - during their marriage, neither husband or wife may testify for or against the other without the consent of the affected spouse. - EXC: in civil case by one against the other or criminal case for a crime committed by one against the other or the latter descendant or ascendants. (+) * Disqualification by death or insanity of adverse party: - parties or assignors of parties to a case, or person whose behalf a case is prosecuted, against an executor or administrator or other

representative of the deceased, or against a person of unsound mind, upon claim or demand against the estate of such deceased or unsound of mind cannot testify as to any matter of fact occurring before the death or became insane. * Disqualification by reason of privilege communication: - the husband or wife during or after marriage cannot be examined without the consent of the other as to communications receive in confidence by one from the other during the marriage: EXC; stated above (+) - an attorney, without the consent of its client be examined as to communications made by client to him or his advice given thereon in the course of professional employment. - a person authorized to practice medicine cannot in civil case without the consent of the patient, be examined as to any advice or treatment given by him - a minister or priest, without the consent of the person making confession, cannot be examined as to any confession made or advice liven by him - a public officer cannot be examined during his term of office or afterward, as to communications made to him in official confidence.

* Exclusionary provisions in the Constitution: - obtained in violation against unreasonable searches and seizures - privacy of communication and correspondence - obtained in violation of a person under investigation - obtained against right against selfincrimination. COLLATERAL MATTERS - those that are outside the controversy or not directly connected with the principal matter or issue in dispute. - not allowed, however admissible when they tend in any reasonable degree to establish the probability or improbability of the fact in issue.

- certain circumstances which tend in a natural or logical manner to fasten guilt upon a person is considered relevant. - all doubt should be resolved in favor of admissibility

FACTS IN ISSUE and FACTS RELEVANT IN ISSUE Fact in issue are those which h a plaintiff must prove in order to establish his claim and those facts which the defendant must prove in order to establish defense set up by him but only as to fact allege that are not admitted by the defendant. - to determine relevancy: pleadings must be first looked for ascertaining the issue Facts relevant to issue are those facts which render probable existence or non-existence of a fact in issue, or some other relevant fact. MULTIPLE ADMISSIBILITY - for one of these purposes it may be competent, but for another is incompetent, the normal practice is to admit the evidence only for the allowable purpose. CONDITIONAL ADMISSIBILITY - evidence of a particular fact hinges upon the proof of other facts not yet evidenced, and the party is unable to introduce them both at the same moment. CURATIVE ADMISSIBILITY - if the opponent made a timely objection at the time the admissible evidence was offered and his objection was erroneously overrule, the claim to present similar inadmissible facts would be untenable since his objection would save him, on appeal, from any harm which may accrue. Hence, if hi did not object, this protection is not extended to him DIFFERENT WAYS COURT TREAT QUESTION - admission of inadmissible fact, without objection, does not justify the opponent in rebutting by other admissible facts - the opposite rule, the opponent may resort to the same inadmissible fact - intermediate rule, the opponent may reply with similar evidence whenever it is needed for removing an unfair prejudice.

CHAPTER II: PRESUMPTION ADMISSION JUDICIAL NOTICE

JUDICIAL AND

NOTICE, JUDICIAL

- is cognizance of certain facts which judges may properly take and act without proof because they already know them. “What is known, need not to be proved.”

* Matters relating to legislative department: when Congress begins and closes its session, numbers and function. To its legislative committees and its creation.

Object: - to save time, labor and expenses in securing and introducing evidence and tenor which can safely be assumed by the tribunal’s general knowledge.

* Matters relating to executive department: its principal officers or appointees; the president and cabinet members, and all other executive head.

- judicial notice is limited to the facts evidenced by public records and facts of general notoriety. REQUISITE OF JUDICIAL NOTICE: - matter must be one of common and general knowledge - it must be well and authoritatively settled and not doubtful or uncertain - must be known to be within the limits of jurisdiction of the court.

MANDATORY JUDICIAL NOTICE * Territorial Extent: all courts of justice are bound to take judicial cognizance of the territorial extent of the jurisdiction exercised by the government, the laws it administered and boundaries of the territory * General History: courts have always and without exception take judicial cognizance without proof of those great historical events which have affected the destiny of our nation or other nation. * Forms of Government of States: it relates only to such governments as have been recognized by the home government. * Symbols of Nationality: where the government has recognized the existence of a foreign nation, cognizance on the flag and seal of the nation. - foreign laws do not prove themselves in out jurisdiction and courts are not authorized to take judicial notice to them. Must be alleged and proved. * Admiralty courts and their seals: no proof need be given of the seal of foreign maritime and admiralty courts. * Political Constitution and History of the PH:

* Matters relating to judiciary: SC has judicial notice of its records in a previous case in connection with the conduct of a litigant or witness on a similar matter but not to proceedings in the various courts of justice in PH. (*******) * Laws of Nature: familiar and unquestioned laws of nature and of the existence of facts which must have happened according to the constant course of nature. * Measure of Time: things properly belonging to Almanac, calendars and its period * Geographical facts of PH: division of province, municipalities, barangay, barrios, etc. DISCRETIONARY JUDICIAL NOTICE - which are of public knowledge or are capable of unquestioned demonstration or ought to be known to judges because of their judicial function. * Matters of Public knowledge: the court will take judicial notice must be a subject of common and general knowledge, when its existence or operation is accepted by the public without qualification or contention. * Matters capable of unquestionable demonstration: no party would think of imposing a falsity on tribunal in the face of an intelligent adversary. * Matters ought to be known to judges because of their judicial function:

WHEN HEARING NECESSARY - during the trial, the court, on its own initiative or on request of the party

- after the trial and before judgment or on appeal, the proper court, on its own initiative or on request of the party. DISTINCTION: during the trial the court may, in of any matter and hear the parties thereon while after the trial but before judgment or on appeal the court may in of any matter and hear the parties if such matter is decisive of a material issue in the case.

PRESUMPTION - they serve to relieve the parties from the burden of presenting evidence to prove certain facts - rule of law that attaches probative value to specific facts, or directs that an inference be drawn as to the existence of a fact, not actually known, arising from its usual connection with other particular facts PRESUMPTION v INFERENCE: presumption is a deduction which the law requires while inference is one which the fact finder may or may not draw according to his own conclusion, the former is mandatory while the latter is permissible. Presumption Hominis (of fact) - those which the experience of mankind has shown to be valid, founded on general knowledge and information. Ordinarily classed with inferences Presumption Juris (of law) - whose which the law requires to be drawn from the existence of established facts in the absence of contrary evidence on the subject deductions which the law expressly directs to be made from particular facts. The only true presumption. Conclusive Presumption (juris et de jure) - a rule of substantive law rather than rule of evidence. * Estoppel in pais: arises from the misrepresentation or concealment of material facts on the part of the person to be estopped. A party intentionally or deliberately led another to believe in a particular thing true, he therefor cannot claim falsity upon it. Cannot be founded

upon illegal acts, hence, party cannot be estopped by an act which is illegal and void. Elements to the party estopped: - conduct which amount to false representation or concealment of material facts. - intention or at least expectation that such conduct shall be acted upon by the other. - knowledge, actual or constructive of the real facts. Elements to the party claiming estoppel: - lack of knowledge of the truth and facts in question - reliance upon the conduct - actions is prejudicial to change position * Estoppel against tenant: tenant is not permitted to deny title of the landlord at the time of the commencement of the relation of landlord and tenant between them. Tenant is estopped to assert landlords title between them during relation. Disputable Presumptions: - sobrang dami alalahanin ko na lng. Boset. NO PRESUMPTION ILLEGITIMACY

OF

LEGITIMACY

OR

- of a child born after 300 days following dissolution of the marriage or separation of the spouses. Reason: if the ordinary average duration of pregnancy is 9months and some days a tardy birth is not an impossibility or an unusual event, and neither is it impossible or unusual to have delayed or retarded conception

JUDICIAL ADMISSION - is one so made in pleading filed or in the progress of trial as to dispense with the introduction of evidence otherwise necessary to dispense some rules of practice necessary to observed and complied with. It is conclusive upon the party making them while other admission is disputable. Formal: usually made in writing, such as in pleadings, stipulation of facts

Informal: made orally in the course of the trial or proceeding, in affidavit, deposition, pleading or while on witness stand.

CHAPTER XIII: WITNESSES AND THEIR QUALIFICATION TESTIMONIAL DUTY OF CITIZENS - is to support the administration of justice by attending its courts in giving his testimony whenever he is properly summoned. It requires the attendance of witness cognizant of materials facts and no unreasonable obstacle ought to be thrown. Witness: a person who testifies in a cause or gives evidence before a judicial tribunal. Competency: legally fit or ability to be heard on the trial of a cause. Persons Qualified to be witnesses: all person who can perceive and perceiving, can make known their perception to others may be witness EXCEPT those disqualified by reason of mental incapacity or immaturity (Sec 21 Rule 130), by reason of marriage (Sec 22 Rule 130), by reason of death and insanity of adverse party (Sec 23 Rule 130), by reason of privilege communication (Sec 24 Rule 130), and those excluded by the Constitution. - loss of perceptive sense after the occurrence of the fact does not affect admissibility of the testimony - a person incapable of perception and incapable of narration is pro tanto incapable of testifying. Person not disqualified to testify: accused, co0defendant in criminal case, accomplice, detectives, policemen and other officers, persons convicted of crime and attorney. A witness who takes the witness stand is presumed by grounds of public policy is competent. The adverse party has the right and privilege to object to the examination on the ground of incompetency to testify. Objection must be made before he has given any testimony, if it

appears on the trial, it must be interposed as soon it becomes apparent. Waiver of Objection: acceptance of incompetent witness is a matter resting in the discretion of the litigant, he may assert this right by timely objection or he may waive it orally or by silence. Waiver: - without objection at the time party knows his incompetency - who made the objection owns the witness in support of his own case Disinterested Witnesses: a person who has lack of interest in the case but actively take part in litigation as a party or witness entails willingness to commit to the proceeding. GROUNDS FOR DISQUALIFICATION: MENTAL INCAPACITY: (Sec 21 Rule 130) - test of competency: if he has the ability to observe, recollect and communicate the essentials about which he is called to testify with accuracy sufficient to make the narration correspond to the knowledge and the recollection. MENTAL IMMATURITY: (Sec 21 Rule 130) - below 18. In child abuse case a child include above 18 if found by court unable to fully take care of himself. - test of competency: presumed competent unless court conduct competency test motu propio or on motion of party when it finds substantial doubt exist regarding the child ability. MARITAL PRIVELEGE: (Sec 22 Rule 130) - deemed important to preserve the marriage relation as one of full confidence and affection. Where consent of other spouse not needed: - they are against each other in civil case - that it is not a criminal case for a crime committed by one against the other. Reason: the identity of interest disappears DEATH OR INSANITY: (Sec 23 Rule 130) Requisites to be disqualified: - witness is a party or assignor of a party to a case

- action against executor or administrator or other representative of the deceased or unsound mind - subject matter is claim or demand against the estate of the deceased - his testimony refers to any matter of fact which occurred before the death or unsoundness of mind.

PRIVELEGE COMMUNICATION: (Sec 24 Rule

130) - used to designate any information which one person derives from another by reason of confidential relationship existing between parties. - husband and wife - attorney and client - physician and patient - clergyman and penitent - public officer and public interest HUSBAND AND WIFE - cannot testify as to communication receive in confidence without consent of the other except civil case among the two and in criminal case for a crime committed by one against the other or latter’s direct descendant or ascendant. REQUISITE: - spouses must be legally married - said communication was made confidentially - privilege is claimed with regard to the communication, oral or written - if made in the presence of third party = not a privilege one, but when it is overheard it shall not cease to be confidential. The third party who overheard it may testify, but comes into disclosure on the part of either spouse, he will become agent of such spouse who cannot testify without the consent of the other. If intended for transmission to third person then not a privilege one.

ATTORNEY AND CLIENT - an attorney cannot testify without the consent of its client as to communication made by client

to him, or his advice given thereon in the course of view of his professional employment nor his legal staff’s which they acquire in such capacity. - necessary to make full disclosure of all facts and circumstances that go to substantiate his claim or defense and the law Requisite: - there must be attorney-client relationship - there must be communication of client - such communication was made the course or view of professional employment. - if for unlawful purpose not privilege and then they partake of the nature of conspiracy, or attempted conspiracy. - if communicated in the presence of third person then not privilege, but if such person is a n agent of the attorney then it is privilege. - if overheard, privilege exist if the client did not notice the presence of the third person. - only attorney and his agents are covered. Third person foreign to the relation can testify - an attorney cannot transfer documents to its possession to embrace nature of a privilege one. He may be compelled to testify as whether he has possession of the documents pertinent to the case and be compelled to produce in evidence said documents belonging to his client. Implied Waiver: - client’s failure to object attorney’s testimony - giving evidence to the privilege communication - privilege party falls in the hands of adverse party - in calling or cross examining his attorney regarding privilege communication. PHYSICIAN ANG PATIENT - cannot testify without consent of the patient as to any advice or treatment given by him in his professional capacity Requisites: - action in which communication is to be used in civil case - there is physician-patient relationship - information acquired by physician in professional capacity

- information was necessary for the performance of his professional duty - disclosure would tend to blacken patients character Privilege can be claimed in civil cases only, while in criminal case it does not apply for the maintenance of public order and the life and liberty of the citizens are deemed important that the purpose for which the privilege was created. - the patient may waive this right, his representative in case of death and the beneficiary of his insurance policy. CLERGYMAN AND PENITENT - cannot testify without the consent in the course of discipline enjoined by the church to which clergyman belongs. - to compel him to testify is equivalent to annulment of confessional institution, that no one will no longer make confessions. - made not in the course of religious discipline but in contemplation of a crime is not privilege. PUBLIC OFFICER AND PUBLIC INTEREST - cannot testify during his term or afterwards as to communications made to him in official confidence. Public interest means in which the public, the community at large, has some pecuniary interest by which their legal rights or liabilities are affected. - those officers only as have responsibility or duty to investigate or to prevent public wrongs and not officials in general. - if it endangers safety of the State then it is privileged. - the privilege as to state secrets or information acquired by public official is subject to this exception which court may compel disclosure, if such useful evidence is to vindicate the innocence of an accused, or lessen the risk of false testimony, or essential to the proper disposition of the litigation was greater than injury which could be inure.

PARENTAL AND FILIAL PRIVELEGE - no person may be compelled to testify against his parents, other direct ascendants/descendants and children.

- may now be invoked in both civil and criminal cases when the action is against each other.

OTHER PRIVELEGE MATTERS Source of News Report: the publisher, editor, or duly accredited reported 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 them. Unless the court of House committee of Congress finds that such revelation is demanded by the security of state. Trade Secrets: covers formulas of manufacture, price list and customer’s list. But privilege not absolute if trial court compel disclosure where it is indispensable for doing justice. Bank Deposits: all deposits of whatever nature with the banks or banking institution in the PH including investment bonds issued by the Government, its political subdivision and instrumentalities are hereby considered absolutely confidential and may not be examined, inquired or looked into by any person, government official, bureau and 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 official or in cases where the money deposited or invested is the subject matter of litigation: - cases of unexplained wealth (Anti-Graft) are similar to cases of bribery and falls under exception.

CHAPTER XVII: EXAMINATION OF WITNESSES RULE: - shall be given orally in open court and under oath or affirmation. To enable toe court to judge the credibility of the witness by his manner of testifying, their intelligence and appearance. Only questions directed to the eliciting of testimony is relevant and competent to prove, the issue of the case may be propounded to the witness He may testify only to those facts he knows of his own knowledge. Leading questions not allowed except on preliminary matters or when there is difficulty in getting direct and intangible answers from the witness who is ignorant, a child or feeble minded or a deaf-mute. If witness incapacitated to speak or question calls for different mode of answers cannot be given orally. And still accorded full constitutional rights of due process.

Deaf-mute must be provided interpreter to inform him his rights. Absence of this is a denial of due process. EXAMINATION OF CHILD WITNESS: -presumed to be qualified. Mode: The court shall exercise control over questioning of children. - to facilitate in ascertainment of truth - to ensure question stated are understood by the child - protect children from harassment or undue embarrassment - avoid waste of time LIVELINK TELEVISION IN CRIMINAL CASE WHERE CHILD IS VICTIM OR WITNESS:

Oath and Affirmation should be administered before the examination in all cases.

Where a witness testifies without having been sworn, the judgment will be set aside if the error is not discovered until after the judgment. If party fails to object to the taking of the testimony without administration of an oath is he will be deemed have waived such objection A witness who is recalled need not to be sworn again, having been previously sworn in the case.

The taking of testimony is vested in the trial court. The counsel are allowed to manage, but the court may propound questions to a witness. JUDICIAL AFFIDAVIT RULE:

- the prosecutor, counsel or guardian ad litem (guardian for purposes of proceeding) may apply an ordered that testimony of child be taken in a room outside courtroom and be televised. And before guardian shall apply, he must consult the prosecutor or counsel and shall defer from their judgment. If guardian is convinced then he may apply said order and must be filed 5 days before trial date unless courts finds the need of such an order was not reasonably foreseeable.

Sec 2. Parties shall file to the court and serve other party, personally or by licensed service, not later than 5 days before pre-trial or preliminary conference or scheduled hearing. - JA of the direct testimonies of the witnesses - documentary or object evidence shall be attached in their JA’s and marked as Exhibits A.B… and Exhibits 1.2… in the case of respondents.

- the judge may motu propio hear and determine with notice to the parties the need for televised taking of testimony of the child.

- if original documents is desired to keep in his possession , he may after the same identified, marked exhibits and authenticated, warrant his JA that a copy or reproduction attached to such affidavits.

- the judge may question the child in chamber with the presence of its guardian, prosecutor and counsel. Issue not related to the trial but the feeling of the child about testifying. - the judge may excludes persons even accused whose presence or conduct causes fear to the child - the court shall issue an order granting or denying the live link television stating reasons. (*******page 485) OATH - an appeal by a person of God to witness the truth of what he declares and an imprecation of Divine punishment or vengeance upon him if what he says is false. Conscience and willfully falsifies the truth AFFIRMATION - solemn and formal declaration or assertion what the witness will tell the truth.

The constitutional provision against compulsory self-incrimination or that no person shall furnish evidence against him relates to criminal proceedings only and not to civil action. A witness may not be compelled to answer any questions which incriminates him or to reply to which supply evidence by which he will could be convicted. Privilege against self-incrimination extends to inculpatory documents, therefore accused cannot be required to produce a document in his possession for use against him. An accused or a witness may be required to do many things without having his constitutional rights against self-incrimination invaded for the purpose of identification and comparison. When forfeiture or loss of right is inflicted by statute of penalty = witness may refuse to give

testimony which may lead him thereto but when such is privilege is not imposed by penalty he can invoke this constitutional right. When be invoked: not to answer which has tendency to subject him to a penalty for an offense Where be invoked: at proper time when a question calling for criminating answer is propounded. Privilege is personal and must be determined by the judge. Accused has the right to remain silent and does not reverse the rule that no inference is to be drawn against him from such an omission. Statute granting Immunity: to provide substitute for the privilege against self-incrimination. - it gives rise to non-prosecution of criminal action - the one testifying is not charged criminally - can still be prosecuted but his testimony cannot be used against him. Witness cannot answer question which degrade his reputation unless it to be the very fact at issue or to a fact from which the fact at issue would be presumed. He cannot avoid answering question material to the issue. Burden must be shown affirmatively by party seeking to coerce answer tending to degrade witness.

DIRECT EXAMINATION Order of Trial in Civil Cases - plaintiff must produce evidence - defendant shall offer evidence in support of his defense, counterclaim, crossclaim and third party claim - third party defendant, if any, shall introduce evidence of his defense, counterclaim, crossclaim, third part claim - fourth party …. - the parties against whom the counterclaim or crossclaim has been impleaded, shall introduce their evidence in support of their defense in order prescribed by the court - the parties may offer rebutting evidence only unless the court permits them - when evidence is concluded unless the parties agree to submit case without argument , the plaintiff or his counsel may make the opening argument, the followed successively by other parties - if defendant or third party have separate defenses, appear by different counsel, the court must determine their relative ordered in presenting evidence or argument Order of Trial in Criminal Cases - The prosecution shall present evidence to prove the charge, in proper case, the civil liability - The accused may present evidence to prove his defense and damages if any arising from the issuance of the remedy in the case - Parties may then present rebutting evidence only, unless court permits them to present additional evidence - Upon admission of evidence ,the case shall be deemed submitted for decision, unless the court directs the parties to argue orally or submit memoranda - When accused admits the act or omission but interposes lawful defense, the order of trial may be modified. Order in which witness should be examined - Direct examination by the proponent - Cross-examination by the opponent - Re-direct by the proponent - Re-cross by the opponent Direct Examination: is the examination in chief of a witness by the party presenting him on the facts relevant to the issue. Repetitious Question: question already asked is not permissible if it is the matter which has been gone over, but if repetition is necessary for a clear

understanding of essential facts or answer to first question is not completed, then it may be allowed in the discretion of court. Leading Questions: a question which suggests to the witness the answer which the examining party desires. Test: suggestiveness of its substance. IF the question suggests the answer desired by putting the words into the mouth of the witness then it is leading. Question in alternative form is objectionable, hence if it is so framed as to suggest the answer, it is improper as leading. If it directs the attention of the witness to a desired object of testimony, it is objectionable but if the effect is to indicate the witness words which he is desired to employ or to permit him to adopt the examiner’s word and version, is leading and objectionable. Questions that assume unproved facts are leading and such question not testified to so that the answer may affirm such facts is leading too. Question which merely suggests to the witness a subject without suggesting an answer or a specific thing is not leading. Questions assuming the truth of statements previously made by the particular witness is objectionable as leading. Leading questions not generally allowed on direct examination. It is supposed that the witness has a bias or prejudice in favor of the party by and whom he is called and hostile to his opponent and party calling the witness may well know beforehand what his witness can prove or at least what he is expected to prove. When leading question are allowed. On direct examination of a witness on preliminary matters or when there is difficulty in getting direct and intelligible answer from the witness who is ignorant, or a child of tender years or is feeble-minded or a deaf-mute and for the purpose of identifying particular person or thing or when the witness is the adverse party for such he is supposed to be a hostile, biased or unwilling witness. Preliminary questions: question asked of a witness at the outset of his direct examination, what is her/his name, age, civil status, residence and occupation. No danger because there is no motive.

Discretion of the Court: in reference to the character of the investigation, the condition and disposition of the witness.

certain answers to have been given to prior questions, when such answers have not been misleading. They are not allowed.

Party in Civil Action as Witness: a party who testifies in his own behalf stands upon the same footing as other witness

CROSS EXAMINATION: is the examination of a witness by the opposed to the party who called such witness, the latter having been examine or entitled to examine the witness in chief.

Defendant in Criminal Prosecution as Witness: where defendant takes the witness stand to testify in his own behalf, he assumes the character of a witness and entitled to the same privilege and subject to same treatment. When Witness may refer to Memorandum: a witness may be allowed to refresh his memory respecting a fact provided: 1) that the memorandum has been written by him or under his direction; 2) that it was written (a) when the fact occurred or immediately after (b) at any other time when the fact was fresh in his memory and knew the same was correctly stated. A witness may testify from such memorandum though he retains no recollection of the particular facts or the past recollection recorded. When Permissible: 1) where the writing is used only for the purpose of assisting the memory of the witness, 2) where the witness recollects having seen the writing before, 3) where the writing in question is not recognize by the witness as one which he remembers to have seen before. Necessity: A witness should not be allowed to see, consult or refer to a memorandum or writing until (a) it appears the aid of such memorandum or writing is necessary on account of his being unable to testify from memory without it (b) it has been shown that it was written by himself or under his direction at the time when the fact occurred or immediately after. Memorandum need not be an original writing: if destroyed or lost it can be notes which has been copied, made, drawn or extracted from the original book. Right to Inspect and cross-examine upon memorandum: witness not be permitted to refresh his memory wile on the stand unless the opposing counsel has the opportunity to cross examine him as to the method by which he does it. Only by inspection of the paper that it can be ascertained whether the memo does assist the memory or not. Misleading questions: questions which assume as true a fact not yet testified to by the witness or contrary to that which he has previously stated or

To elicit something in favor of the cross examining party, to weaken the force of what the witness has said in direct testimony and to shat what from his present demeanor or past life he is unworthy of belief. Right to Cross Examine: absolute right; right granted by the Constitution; that the accused shall enjoy the right to meet face to face the witness; right of accused to confront at trial and cross examine the witness. If prevented, the direct examination made is incompetent, but has not been availed, direct examination will be received. Gannapo vs CSC: the right does not necessarily required but merely an opportunity to exercise this right if desired by the party entitled to it. When it is privilege: the right ceases where the cross examinations in chief is apparently concluded and the attendance of the witness is either dispensed with from the stand or the reexamination if any has begun. Leading question not allowed in direcet examination, hence can be ask in cross examination Matters on which witness may be cross examined: English Rule: a witness once called becomes a witness for all purposes and may be fully cross examined upon all matters material to the issue. Cross examination is not confined to matters inquired about direct examination. American Rule: restricts cross examination to facts and circumstances stated in the direct examination of the witness or to matters connected therewith tending to contradict or discredit the witness. The jurisdiction adopts the American rule where upon termination of the direct examination, the witness may be cross examined by the adverse party as to any matters stated in the direct examination or connected therewith.

Matters on which witness may not be cross examined: generally on facts and circumstances not brought out in direct examination or in any way connected therewith, if he wishes to do so then he shall call the witness in his own behalf. Witness may be asked to physically demonstrate matters testified to in chief: when it is proper to illustrate matters Witness may be asked to repeat what he testified in the direct examination: for the purpose not only of testing the recollection of the witness but for ascertaining whether he makes a statement at variance with that he testified to in chief. Cross Examination of the Accused: a defendant in criminal action who takes the stand may be cross examined at least as to any matters testified to upon his evidence in chief just like any other witness may be cross examined. Cross Examination of a party as witness: he may be compelled to answer all questions which bear directly or indirectly upon the testimony which he has given in chief or which test the credibility, knowledge or recollection of the witness Cross Examination of own witness: a party cannot cross examine his own witness but a witness first called by the stat and later by the defendant may be cross examined by the state. A party may if such witness has proved recalcitrant, unwilling, reluctant, evasive, uncandid, adverse or hostile but cannot ask question which will discredit the witness. Cross Examination of an Accomplice: allowed; examiner should be permitted to test his credibility of subjecting him to a most searching inquiry as to any promise of immunity made to him. Evidence brought out on cross examination is evidence of the party who called the witness: thus if cross examinations develops facts that an agreement testified to on direct was in writing, this permits the cross examiner to invoke the best evidence or the parole evidence and move to strike out all the evidence relating to the subject. When a witness has right to rest: when a judge sees that a witness is confused, by a long or irrelevant cross examination, that his memory seems to have left him, it is proper exercise of discretion to let the witness rest for a short time or to send him from the stand so that he may collect his thoughts and become composed in the resumption of examination.

RE-DIRECT, RE-CROSS AND RECALL WITNESS Re-Direct: limited to matter during direct; further examination by a party of his own witness after cross examination to explain or supplement his answers given during cross examination; to prevent injustice to the witness and the party who has called him by affording the opportunity to explain or amplify the testimony given in cross. Re-Cross: upon conclusion of re-direct, the adverse party may re-cross the witness on matters stated in re-direct and also such matter as may be allowed by the court in its discretion. It is excluded when no new matter has been brought out on redirect especially the matter inquired about was not disputed or had been testified to on cross. Recall: after examination of witness of both side has been concluded, witness cannot be recalled without the leave of court; refusing or allowing recall not reviewable in appellate court for there has been no abuse of discretion unless error goes to the merits of the case. IMPEACHMENT: Judicial Record: records, official entry, or files of the proceedings in a court of justice or of the official act of a judicial officer in an action, suit or proceeding. Purposes for which judgment may be given in EVID: - Judgment may be offered to prove a fact collateral to the issue involved in principal case - Judgment may be offered to show a course of conduct previously taken by a party to a principal case. - Judgment may be offered to show the divesture or acquisition of certain legal rights through rendition of the judgment. - Judgment may be offered in evidence for the purpose of showing that an issue involved in principal case was previously adjudicated. Proof of JR: by the record itself or by a copy thereof. Impeachment of JR: by evidence of want of jurisdiction in the court or judicial officer or by collusion between parties or by fraud in the party offering the record in respect to the proceeding. Jurisdiction: of plaintiff or person in whose favor it was rendered and also defendant or person against whom it was rendered, hence, void for lack of jurisdiction.

Collusion: agreement between two persons that one should institute a suit against the other, in order to obtain the decision of a judicial tribunal for some sinister purpose.

actively seeking a recovery against or opposing a recovery by, such party or a person for whose immediate benefit the action was brought or defended.

Kinds of Collusion: when the facts put forward as the foundation of the sentence of the court do not exist; when they exist, but have been corruptly preconcert for the express purpose of obtaining the evidence.

Reason: to permit an adverse party to be called as a witness to prove or to be interrogated concerning facts materials to the case of the party calling him.

Fraud: an action to annul based on fraud cannot prosper unless the fraud be extrinsic or collateral or unless the fraud refers directly to the jurisdiction of the court and the facts have not been in controversy nor resolve in the case. Extrinsic: the judgment was procured, and not fraud in the cause of action or matter put in issue and presented for adjudication. IMPEACHMENT OF OWN WITNESS: GR: a party who produces and call witness to support or prove his case cannot impeach or discredit witness by evidence of general bad character. Impeach: applied to testimony to indicate that it is erroneous. Impeach a witness: to all into question the veracity of the witness by means of evidence offered for that purpose or the witness is unworthy of belief. Exception: an unwilling or hostile witness or calls the adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party. = free to contradict witness as if he had been called by the adverse party. Requirements for Impeachment under Exception: - The party must be surprised at the testimony of the witness sought to be impeached and must exist as a matter of fact - Witness failed to testify favorably to the party calling him. - When such contradictory statements are admitted in evidence under proper condition and can only be considered for the purpose of affecting the credibility of the witness.

IMPEACHMENT OF INDISPENSABLE WITNESS: - if either party by law is compelled to call a particular person to prove any fact, the party calling him cannot be said to vouch for this witness that law enforces upon him, and such party is not concluded by the answers of such witness. He may impeach him. Where the reason ceases the rule is inapplicable. Cross Examination by Adverse party: the fact the a party called an witness on par (e)(f) of sec 10 rule 132, it does not preclude the adverse party from cross examining him on the subject matter of his examination in chief. IMPEACHMENT OF ADVERSE WITNESS: - may be impeach by: contradictory evidence, by evidence that his general reputation or truth, honesty and integrity is bad, by evidence that he has made at other times statements inconsistent with his present testimony, by conviction of an offense, by involving him during cross in contradictions, by showing impossibility or improbability of his testimony, by showing bias, interest or hostile feeling against the adverse party, and by proving acts or conduct of the witness inconsistent with his testimony. Impeachment by Contradictory Evidence: the right of contradiction exist when the contradictory evidence tends to disgrace the witness or shows that he has been guilty of particular wrongful acts. A witness cannot be impeached by contradicting him upon collateral matter unless said matters are relevant to the issue or tend in one way to prove any issue of fact under inquiry. Impeachment showing inherent improbability of testimony: made by him in the direct examination and showing that it is opposed to physical and natural facts and laws.

IMPEACHMENT OF ADVERSE PARTY AS A WITNESS: - The rule that one cannot show prior inconsistent statements of his own witness does not apply where a party calls the adverse party to the action as witness. In order that a party may be deemed an adverse party under this proposition, he must be

Impeachment by prior inconsistent or contradictory statements: witness made in prior occasion statement inconsistent with his statement made on trial provided such statement is material to the issue.

A witness cannot be impeached by contradictory statement unless a proper foundation or predicate has been laid down by asking him whether he made such contradictory statement in order to give him chance to admit, explain or deny it which he has a right to do so.

Impeachment by prior inconsistent conduct: a witness may be contradicted by his inconsistent conduct or acts as well as his statements.

Exception to the rule of inconsistent statements: in the case of dying declarations. Proof of contradictory or inconsistent statements of the deceased may be admitted on the same ground without laying any foundation thereof. Signature of the deceased subscribing witness is presumptive evidence of the truth of everything appearing upon the face of the instrument.

Impeachment by showing motive: motive means inducement, cause or reason why a thing is done. It may be proved that there is an existing motive on the part of a witness to give testimony against a party regardless of its truth.

How foundation should be laid if made verbally: if there is reasonable certainty or if it is clear that the attention of the witness is called to the conversation in such manner that it is identified by him. How foundation should be laid if made in writing: must be made by showing to the witness the writing and permit him to inspect it without the necessity of questioning him in the manner necessary in case of oral statement. If counsel has neglected to lay the foundation in the cross, the court in its discretion, may allow the witness to be recalled for the purpose. When impeaching testimony may be offered: when the witness denies, directly or qualifiedly, that he made statement or when he neither directly admits nor denies the making of such statement but states that he does not remember whether or not he made it. Proof of inconsistency: if witness fails to admit the alleged statement, they may be proved by any person to whom or in who’s hearing the statement are made, in writing, the written statement should be presented as evidence after they were properly identified if they do not constitute public documents. Waiver or Want of Foundation: failure to lay the usual foundation as preliminary to the proof of witness variant statements is waived by a failure to made sufficient objection to the impeaching proof when offered in evidence. Effect of impeaching testimony: cannot be considered as substantive evidence of the truth of the facts stated;

Foundation of proof for inconsistent conduct: variant acts

Impeachment by showing bias, prejudice and hostility: Hostility may be shown by any competent evidence obtained through examination of the witness himself or through testimony of other witnesses. Prejudice may be shown through specific wrongful acts. Impeachment by evidence of particular wrongful acts: a witness may not be impeached by the party against whom he called by evidence of particular wrongful acts for reason that any person can be supposed ready to defend their general reputation for veracity, if attacked, but are not prepared at all times to defend specific act. Impeachment by showing interest: interest signifies the specific inclination which is opt to be produced by the relation between the witness and the cause at issue in litigation. The payment for testifying is admissible to impeach his credibility and by showing his relationship to, or relation with the party calling him. Necessity of foundation for proof of bias, interest, etc.: by calling the attention of the witness to the particular acts or declarations proposed to prove as to afford him an opportunity to explain. Impeachment by showing bad general reputation: a witness may be credited by evidence attacking his general reputation for truth, honesty or integrity. The impeaching testimony must be confined to the general reputation of the witness as to truth, honesty and integrity and cannot be impeached by the direct testimony of the witness as to particular instances of immoral acts, conducts. Truth means conformity to fact or reality, honesty signifies the quality or state of being straight forwardness of conduct and integrity has been defined as moral soundness Place of Reputation: knowledge of his character in the community or neighborhood in which he resides

or in place where the person is well known and has established a reputation. Time of Reputation: time when he testifies Form of Examination: is a query to whether in the opinion of the impeaching witness, the witness under attack is entitled to full credit under oath. Number of impeaching witness: the court may limit the number of impeaching witness. Impeachment of impeaching witness: is by requiring him to specify the particular rumors or statements of individuals that have led him to swear to the bad reputation of the witness and to discredit him by showing that his knowledge is inadequate. Evidence of good character: not admissible unless such character has been impeached. Distinguished evidence as to character of party and witness: in the former case character is a fact in issue or an evidentiary fact affecting a fact in issue while in the later case character is collateral matter which does not pertain to the fact in issue but merely to the weight of the evidence of such witness. Impeachment by showing conviction of an offense: it may be shown to impeach his credibility by an examination of said witness or by the record of the judgment itself (there must be a final judgment) . The conviction must be under the general law. Commutation of sentence: it does not do away with the conviction so as to prevent the introduction of the conviction to test the credibility of the person as a witness. Pardon: does not preclude his conviction from being shown to affect his credibility. Delay: does not negate the credibility of witness, especially when delay is satisfactorily explained. It does not diminish the value of testimony.