Preweek Final Evidence

EVIDENCE

REMEDIAL LAW PRE-WEEK

EVIDENCE EVI DENCE NOTE: X = Exception

CLASSIFICATION OF EVIDENCE AS TO FORM 1) 2)

3)

3)

Object/real = Directly addressed to the court’s senses. Documentary = Writing or any material containing modes of written expression offered as proof of their contents. Testimonial = Testimony/deposition of a witness.

ADMISSIBILITY o o

When determined: At the time evidence is offered to the court. Admissible evidence = Relevant + Competent.

Definition

Test

Relevant Having any value in reason as tending to prove any matter provable in an action WON the former tends to establish probability or improbability of the latter

Material Directed to prove a fact in issue as determined by the rules of substantive law and pleading WON the fact it intends to prove is in issue

RULES ON ADMISSIBILITY 1) Object evidence. 2) Documentary evidence: a) Best evidence rule (BER) = If content of a document is subject of inquiry, no evidence shall be admissible other than the original document. o X: If original is: (1) Lost, destroyed, or cannot be produced in court, without bad faith of offeror; (2) In custody or under control of party against whom evidence is offered, and latter fails to produce it after reasonable notice; (3) Consists of numerous accounts which cannot be examined in court without great loss of time, and the fact sought to be established is only the general result of the whole; (4) A public record in custody of public officer. o Original of a document = (1) Contents are subject of inquiry (2) In 2 or more copies executed at or about the same time, with identical contents, all are equally regarded as originals (3) Entry is repeated in the regular course of business, one being copied from another at/near the time of the transaction, all entries are regarded as originals b) Secondary evidence. c) Parol evidence rule = If terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be no evidence of such terms other than the contents of the written agreement.

100% UP LAW

X: If party puts in issue in his pleading: (1) Intrinsic ambiguity, mistake or imperfection in the written agreement; (2) Failure of written agreement to express the true intent of the parties; (3) Validity of written agreement; (4) Existence of other terms agreed to after execution of written agreement Testimonial evidence: a) Disqualification of witnesses: (1) Mental incapacity or immaturity; (2) Marriage; (3) Dead Man’s Statute or Survivorship Rule = Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor/administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim/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 deceased person or before person became of unsound mind. o X: o Deceased was guilty of fraud established by evidence other than the testimony of survivor; o Survivor sued by decedent’s estate; o Estate filed a counterclaim against survivor or where he was cross-examined. b) Privileged communications: (1) Marital privilege = Spouses, during or after 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. o X: a) Civil case by one against the other; b) Criminal case for crime committed by one against the other or the latter's direct descendants/ascendants. (2) Attorney-client privilege; (3) Physician-patient privilege; (4) Priest-petinent privilege; (5) Public officer privilege; (6) Parental and filial privilege. o

UP

BAROPS

ADMISSIONS AND CONFESSIONS o Act/declaration/omission of a party as to a relevant fact may be given in evidence against him. COMPROMISE 1) Civil cases – Offer of compromise not an admission of liability. Not admissible against offeror. 2) Criminal cases – Offer of compromise by accused may be received in evidence as implied admission of guilt. o X: a) Cases involving criminal negligence; b) Allowed by law to be compromised. o

o

o

Offer to pay or payment of medical expenses not admissible in evidence as proof of civil/criminal liability for the injury. Plea of guilty later withdrawn or an unaccepted offer of a plea of guilty to lesser offense, not admissible in evidence against accused. Plea of forgiveness analogous to an attempt to compromise.

2008

Page 1 of 5

EVIDENCE o

REMEDIAL LAW PRE-WEEK

Offer to compromise does not require that criminal complaint be first filed before offer can be received as evidence against offeror.

RES INTER ALIOS ACTA = Rights of party cannot be prejudiced by an act/declaration/omission of another. (1st branch of res inter alios acta rule) o X: 1) Partner’s/agent’s admission; 2) Co-conspirator’s admission; 3) Admission by privies. o Extra-judicial statements of accused implicating a co-accused may not be utilized against the latter. o X: 1) Co-accused impliedly acquiesced/adopted the confession by not questioning its truthfulness; 2) Accused persons voluntarily and independently executed identical confessions without collusion; 3) Accused admitted after being apprised of confession; 4) If charged as co-conspirators of crime confessed by 1 and confession is used only as a corroborating evidence; 5) Confession used as circumstantial evidence to show probability of participation by co-conspirator; 6) Confessant testified for co-defendant; 7) Co-conspirator’s extra-judicial confession corroborated by other evidence on record.

1)

Dying declaration = Requisites: a) Made under consciousness of an impending death; b) Refers to cause and surrounding circumstances of death; c) Refers to facts the person is competent to testify to; & d) Offered in any case wherein his death is subject of inquiry. 2) Declaration against interest. 3) Pedigree. 4) Family tradition. 5) Common reputation. 6) Res gestae = Requisites: a) Made by a person while a starting occurrence is taking place or immediately prior/subsequent thereto, with respect to the circumstances thereof. b) Accompanying an equivocal act material to the issue, and giving it a legal significance. 7) Entries in the course of business. 8) Official records. 9) Commercial lists. 10) Learned treatises. 11) Prior testimony.

OPINION RULE o

CONFESSION = Declaration of accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him.

CONDUCT AND CHARACTER AS EVIDENCE CONDUCT o 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/similar thing at another time. (2nd branch of res inter alios acta rule) o X: That evidence may be received to prove a specific intent/knowledge/identity/plan/ system/scheme/habit/custom/usage. CHARACTER o Character evidence is not admissible. o X: 1) Criminal cases: a) Accused – May prove his good moral character pertinent to the moral trait involved in the offense b) Prosecution – May not prove bad moral character of accused. o X: In rebuttal. c) Offended Party – If it tends to establish in any reasonable degree the im/probability of the offense. 2) Civil cases: o If pertinent to the issue of character involved in case.

HEARSAY RULE TESTIMONIAL KNOWLEDGE o Witness may testify only as to those facts which he has personal knowledge of (those derived from his own perception). EXCEPTIONS TO HEARSAY RULE

100% UP LAW

UP

BAROPS

Opinion of witness not admissible. o X: 1) Expert witness: On matters requiring special knowledge/skill/experience/ training which he has shown to possess. 2) Ordinary witness: If proper basis is given, and regarding: a) Identity of person about whom he has adequate knowledge; b) Handwriting with which he has sufficient familiarity; c) Mental sanity of person with whom he is sufficiently acquainted; d) Impressions of emotion/behavior/ condition/appearance of a person.

BURDEN OF PROOF =

Duty of party to present evidence on the facts in issue necessary to establish his claim/defense by the amount required by law.

WHAT NEED NOT BE PROVED 1)

Judicial notice a) Mandatory: (1) Existence and territorial extent of states; (2) Their political history; (3) Their forms of government; (4) Their symbols of nationality; (5) Law of nations; (6) Admiralty and maritime courts of the world and their seals; (7) Political constitution and history of the Philippines; (8) Official acts of Philippine legislative, executive and judicial departments (9) Laws of nature; (10) Measure of time; (11) Geographical divisions. b) Discretionary: (1) Public knowledge; (2) Capable of unquestionable demonstration; (3) Ought to be known to judges because of

2008

Page 2 of 5

EVIDENCE 2)

3)

REMEDIAL LAW PRE-WEEK

their judicial functions. Judicial admissions = Written/verbal admissions made in the course of the proceedings in the same case. Presumptions: a) Conclusive: (1) Party by his own declaration/act/omission, has led another to believe a thing to be true and act upon such belief, he cannot in any litigation arising out of such declaration/act/omission be permitted to falsify it. (2) Tenant not permitted to deny title of his landlord at the time of commencement of the relation of landlord-tenant between them. b) Disputable: (1) Presumption of innocence; (2) Unlawful act done with unlawful intent; (3) Person intends ordinary consequences of voluntary act; (4) Person takes ordinary care of his concerns; (5) Evidence willfully suppressed would be adverse if produced; (6) Money paid by one to another was due to the latter; (7) Thing delivered by one to another belonged to the latter; (8) Obligation delivered to debtor has been paid; (9) Prior rents or installments paid when receipt for the later ones is produced; (10) Person found in possession of a thing taken in the doing of a recent wrongful act is the taker; Things over which a person possesses or exercises acts of ownership, are owned by him; (11) Person in possession of an order on himself for payment of money or delivery of anything has paid the money or delivered the thing; (12) Person acting in public office was regularly appointed or elected; (13) Official duty regularly performed; (14) Court or judge acting as such was acting in lawful exercise of jurisdiction; (15) All matters within an issue raised in a case were laid before the court (or arbitrator) and passed upon by it; (16) Private transactions were fair and regular; (17) Ordinary course of business followed; (18) Sufficient consideration for a contract; (19) Negotiable instrument given/indorsed for sufficient consideration; (20) Indorsement of negotiable instrument made before it’s overdue and at place where it’s dated; (21) Writing is truly dated; (22) Letter duly directed and mailed received in the regular course of mail; (23) Absence:

No. of years of absence 7 10 5

4

Instances Without it being known WON he is alive After age of 75 1. On board vessel lost during voyage, or aircraft missing 2. Member of the armed forces

100% UP LAW

4

took part in armed hostilities 3. In danger of death and whose existence has not Person whose spouse has been absent for 4 consecutive years; has a well-founded belief that absent spouse already dead Missing spouse in danger of death under extra-ordinary circumstances above

2

(24)

(25) (26) (27)

(28)

After 180 days following celebration of subsequent marriage

(30) (31)

(32)

(33)

Purpose

(34)

All purposes except opening his succession Opening his Succession All purposes including opening of his succession

UP

BAROPS

Presumption Conceived during the former marriage, provided it’s born within 300 days after termination of former marriage Conceived during subsequent marriage, even though it’s born within the 300 days after termination of former marriage.

A thing once proved to exist continues as long as is usual with things of the nature; The law has been obeyed; A printed/published book, purporting to be printed/published by public authority, was so printed/published; A printed/published book, purporting to contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases; A trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest; Survivorship: (For all purposes, X: succession)

Situation Both < 15 y/o Both > 60 y/o One < 15 y/o, the other > 60 y/o Both > 15 and < 60 y/o, Of different sexes

2008

- Spouse present must institute summary proceedings as provided in Family Code and in the rules for declaration of presumptive death of absentee, without prejudice to effect of reappearance of absent spouse

Acquiescence resulted from belief that the thing acquiesced in was conformable to law/fact; Things happened according to the ordinary course of nature; Persons acting as copartners entered into contract of co-partnership; Man and woman deporting themselves as husband and wife have entered into lawful contract of marriage; Presumptions governing children of women who contracted another marriage within 300 days after termination of former marriage (in the absence of proof to the contrary):

When child was born Before 180 days after solemnization of subsequent marriage

(29)

Remarriage:

Person presumed to have survived Older Younger One <15 Male

Page 3 of 5

EVIDENCE

REMEDIAL LAW PRE-WEEK

Both > 15 and <60 y/o, Of the same sex One < 15 or > 60 y/o, and the other between those ages

Older One between those ages

o (35)

Between 2 or more persons called to succeed each other: Whoever alleges the death of one prior to the other, shall prove the same. If no proof, they shall be considered to have died at the same time.

PRESENTATION OF EVIDENCE EXAMINATION OF WITNESS o Leading questions not allowed. O X: 1) Cross examination; 2) Preliminary matters; 3) Difficulty getting direct and intelligible answers from witness who is ignorant, child of tender years, of feeble mind, or deaf-mute; 4) Unwilling/hostile witness; 5) Witness who is an adverse party or an officer/director or managing agent of a public/private corporation or of a partnership/association which is an adverse party. OFFER AND OBJECTION o The purpose for which the evidence is offered must be specified, because such evidence may be admissible for several purposes under the doctrine of multiple admissibility. Kind of evidence Testimonial Documentary and Object

When to offer At time the witness is called to testify After presentation of a party’s testimonial evidence

Absence of offer is a defect which is waived when party fails to object when the ground became reasonably apparent. Defect caused by the absence of formal offer of exhibits can be cured by the identification of the exhibits by testimony duly recorded and the incorporation of the said exhibits in the records of the case.

o

o

What to object to Testimonial evidence

When to object Immediately after offer is made Question propounded in As soon as the grounds the course of oral become reasonably examination apparent Offer done in writing Within 3 days after notice of the offer, unless different period is allowed by the court The grounds for objection must be specified.

REQUIRED QUANTUM OF EVIDENCE 1)

2)

3)

Administrative cases: o Substantial evidence = Amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Civil cases: o Preponderance of evidence = Evidence adduced by one side is, as a whole, has greater weight than that of the other. Criminal cases: o Proof beyond reasonable doubt = Degree

100% UP LAW

UP

BAROPS

o

of proof which produces conviction in an unprejudiced mind. It is not a degree of proof as, excluding the possibility of error, produces absolute certainty. Only moral certainty is required. Extra-judicial confessions are not sufficient to convict. o X: If corroborated by evidence of actual commission of a particular crime (corpus delicti). o Elements of corpus delicti: a) Existence of a certain act/result forming the basis of the criminal charge; & b) Existence of a criminal agency as the cause of the act/result. Requisites for circumstantial evidence to be sufficient to convict: a) More than 1 circumstance; b) Facts from which the inferences are derived are proven; & c) Combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

RULES ON ELECTRONIC EVIDENCE (REE) ADMISSIBILITY OF ELECTRONIC DOCUMENT o Admissible if: Compliant with ROC rules on admissibility + Authenticated in the manner prescribed by REE. o Confidential character of a privileged communication not lost solely on the ground that it is in the form of an electronic document. BEST EVIDENCE RULE (BER) o Electronic document equivalent of original document under BER: Printout or output readable by sight or other means, shown to reflect the data accurately. o Regarded as originals: 1) Document is in 2 or more copies executed at/about the same time with identical contents; 2) Counterparts produced by same impression as original, or from the same matrix, or by mechanical/electronic re-recording, or by chemical reproduction, or other equivalent techniques that accurately reproduces original. o Not admissible to same extent as the original: 1) Genuine question raised as to authenticity of original; 2) If circumstances make it unjust to admit the copy in lieu of original. AUTHENTICATION OF E-DOCUMENTS o Burden of proving authenticity is on person seeking to introduce an e-document. o Means: 1) Evidence that it had been digitally signed; 2) Evidence that appropriate security procedures/devices as may be authorized by the SC or law for authentication were applied; 3) Other evidence showing its integrity and reliability to the satisfaction of the judge. o Considered as public document: Document electronically notarized according to SC rules. FACTORS AFFECTING EVIDENTIARY WEIGHT OF E-DOCUMENTS 1) Reliability of manner/method in which it was generated/stored/communicated; 2) Reliability of manner in which its originator was identified; 3) Integrity of information and communication system in which it is recorded/stored; 4) Familiarity of witness or person who made the

2008

Page 4 of 5

EVIDENCE

5)

6)

REMEDIAL LAW PRE-WEEK

entry with the communication and information system; Nature and quality of the information which went into the communication and information system upon which the electronic document was based; Other factors which the court may consider as affecting accuracy/integrity of the electronic.

HEARSAY RULE EXCEPTION o Memorandum/report/record or data compilation of acts/events/conditions/opinions/diagnoses made by electronic, optical or other similar means at/near the time of or from transmission or supply of information by person with knowledge thereof, and kept in the regular course/conduct of a business activity, and such was the regular practice to make the memorandum/report/record or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses. o To overcome presumption: Evidence of untrustworthiness of the source of information or the method/circumstances of the preparation, transmission or storage.

RULE ON EXAMINATION OF A CHILD WITNESS o

o

o o

Child witness = 1) Person < 18y/o at time of giving testimony; 2) In child abuse cases: over 18 y/o but is found by the court as unable to fully take care of himself because of physical/mental disability or condition. Every child presumed qualified to be a witness. To rebut presumption of competence, burden of proof lies on party challenging competence. Exclusion of the public during the child’s examination to protect the child’s right to privacy. Alternative modes of giving testimony: 1) Live-link television testimony, in criminal cases where the child is a victim or a witness. 2) Screens, one-way mirrors 3) Videotaped deposition.

HEARSAY EXCEPTION IN CHILD ABUSE CASES o Before hearsay statement may be admitted, proponent must make known to adverse party the intention to offer such statement and its particulars to give fair opportunity to object. o If child is available: Require child to be present at the presentation of the hearsay statement for cross-examination. o If child is unavailable: Fact of unavailability must be proved. The hearsay testimony to be admitted only if corroborated by other admissible evidence. SEXUAL ABUSE SHIELD RULE O Evidence inadmissible in any criminal proceeding involving alleged child sexual abuse: 1) Offered to prove that alleged victim engaged in other sexual behavior; 2) Offered to prove sexual predisposition of alleged victim. o X: Admissible evidence of specific instances of sexual behavior by alleged victim to prove that a person other than the accused was the source of semen/injury or other physical evidence.

100% UP LAW

UP

BAROPS

2008

Page 5 of 5