Remedial Law Review 2 (evidence).pdf

REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D December 11, 2016 EVIDENCE - out of the 5 provisions, the most important are Rules 130 and 132 -Evidence is the means sanctioned by these rules of ascertaining in a judicial proceeding the truth respecting a matter of fact; -It is the means of proving factual allegations in the complaint/information or criminal complaint; -without evidence, the facts would remain as mere allegations; Factum probandum – ultimate facts; facts that are to be proved Factum probans – facts that would establish factum probandum TN: the court in its decision must base it under both facts and law  

Factum probandum – refers to the ultimate facts that are sought to be established Factum probans–refers to the facts which establish the factum probandum

Importance of presenting evidence - Such is important because the decision of the court must be based on facts and law. Take note that FACTS = EVIDENCE - Presentation of evidence is required only if there are factual issues in a case.  So, if during pre-trial, the defense admits everything in his answer, there will be no more presentation of evidence because there will be no factual issues anymore. The court will directly render judgment on the pleadings. - There is no need to prove law because everyone is presumed to know the law. Only facts need to be proved. (Though at certain cases, the court may require parties to submit memoranda) Section 1.Evidence defined. — Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact Purpose of the Rules of Evidence - to save time - to safeguard against prejudice and arbitrariness on the part of the court or judge Evidence vs. Proof Evidence – means of proving or disproving the facts Proof – result of evidence

Sources of Evidence 1. Rules of Court (R128-133)– main source 2. Constitution – Exclusionary rules a. particularly, its provisions on the Bill of Rights (Art 3, Sec 12) and the Article on the Supreme Court 3. Civil Code – Statute of Frauds 4. Special Laws – RA 4200, Anti-Wiretapping Act (if a private conversation is recorded without the consent of parties, such would be inadmissible..) RA 9165 Sec 21 – requirement on taking of pictures and inventory Section 2.Scope. — The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules. TN: Administrative bodies and quasi-judicial (Ombudsman, NLRC, etc) have their own set of rules.

bodies

Kinds of Evidence a. Object b. Documentary c. Testimonial Scene: In a crime of murder, to be able to prove the killer you present different kinds of evidence, as follows:  Witness – Testimonial  Death certificate – Documentary  Knife or weapon used – Object Evidence

a. b. c.

a. b.

a.

Relevant – it has logical relation to the issues of the case Material – evidence is directed to prove a fact in issue Competent – 3 meanings: 1. Not excluded by any law or rules 2. Witness has personal knowledge – if the witness has no personal knowledge, the objection is: ―Objection! Incompetent.‖ 3. Sane

Direct – that which proves the fact in dispute without the aid of any inference or presumption Ex: Eye witness Circumstantial – 2 or more circumstances are used to prove a factual issue in dispute. This is the opposite of direct.

Cumulative – evidence of the same form/kind, proving the same point

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D

b.

Ex: A, to prove he did not kill, he testified in his behalf and also presented the testimony of his brother that they were together during the death of the victim (here, there are 2 testimonial evidence proving 1 point – that the accused did not kill) Corroborative – different form/kind but proves the same point Ex: A, to prove he did not kill, he showed his plane ticket to another place (documentary) and testimony of his brother that they were together during the killing (testimonial)

More Terms:  Multiple Admissibility of Evidence– a piece of evidence could be admitted for 2 or more purposes provided it satisfies all the requirements of law for its admissibility Ex: Dying declaration – a statement made by a dying person. This could also be admitted as part of res gestae because the statement is also made right after the occurrence of a startling incident  Conditional Admissibility– a piece of evidence could be admitted provided that conditions for its admissibility would be complied with later on. For Example: In a murder case, the accused was subjected to direct examination by his counsel. Defense counsel: What is your highest educational attainment? Prosecutor: Objection your Honor! What has educational attainment got to do with the crime of murder? That is IRRELEVANT

Court: Question is allowed. Witness may answer provided that connection must be showed later on otherwise the answer will strike out of the record for being irrelevant Accused: I got my Bachelor of Laws from Harvard University. Defense Counsel: When did you finish your law course? Prosecutor: Same objection. What has this to do with the crime? The crime is murder. Defense Counsel: Your honor, same manifestation. Court: Same ruling. Witness may answer. Accused: I finish my law course in Harvard University on August 28, 2015. Defense Counsel: And so, sometime on August 27, 2015, where were you at that time? Accused: At that time, I was already at the United States of America preparing for my graduation. So, when the crime of murder was committed, I was not in the Philippines but in the United States.

The above is an example of Conditional Admissibility of evidence. A piece of evidence could be conditionally admitted provided that the facts testified to by the witness would be connected to the issue of the case.

Defense Counsel: Your Honor, we will show the materiality of the answer of the witness after a series of questions.

Admissibility of Evidence SEC. 3 Evidence is admissible when it is relevant to the issue and is not excluded by the law of these rules.

Court: Okay, witness may answer provided that connection must be showed later on otherwise the answer will strike out of the record for being irrelevant.

Requisites of Admissibility a. Materiality[Material] b. Competency [Competent]

Accused: I am a law graduate.

The evidence must comply with the above requirements to be admissible.

Defense Counsel: Okay, Where did you finish your Bachelor of Laws? Prosecutor: Objection your Honor! IRRELEVANT Defense Counsel: We have the same manifestation. We will show the materiality after a series of question.

For Example: A firearm was illegally obtained from the accused. The firearm was presented as evidence in the case filed against the accused. The firearm is RELEVANT but the same is not COMPETENT being a product of illegal search.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D SEC. 4 Relevancy; collateral matters Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. For Example: The Rape victim testifies regarding the circumstances pertaining to the rape incident. The testimony is relevant because it tends to prove the facts in issue as to whether it was rape or it was the accused who committed the crime. If the accused testifies for himself stating that it was not him who committed the crime. His testimony is ADMISSIBLE because it tends to disprove the fact in issue.  

A piece of evidence is admissible when it tends to prove or disprove a fact in issue. Admissibility is different from credibility.

The court may admit a piece of evidence but the court may not believe or would not give it weight. Evidence on collateral matters This evidence is those that have no relation to the issue. As a rule, evidence on collateral matters is inadmissible except when it tends in any reasonable degree establish the probability or improbability of the fact in issue. For Example:  Character of a person  Flight after commission of the crime These are collateral matters but are admissible because they establish the probability or improbability of the fact in issue. The admissibility of evidence depends on its relevance and competence while the weight of evidence pertains to the evidence admitted and its tendency to convince and persuade. [San Luis vs. Rojas, March 3, 2008] ―Curative Admissibility‖

This refers to the right of a party to introduce evidence which is inadmissible when the court admitted evidence of the same kind presented by the adverse party. For Example: The court admitted a hearsay evidence of the plaintiff; the defense may present the same evidence. A piece of evidence even if hearsay when admitted by the court could likewise be used by the adverse party. ―Competency of evidence‖ A piece of evidence is competent when it is not excluded by the law or the rules of court. To have better grasp of what is competent, the exclusionary rules i.e., fruit of the poisonous tree, must be familiarized. --- oOo--In the study of evidence, there are 2 important areas. One of which is the admissibility of evidence. So, the rules of admissibility must be mastered! The rule on admissibility is embodied in Rule 130 of the Rules of Court. Another important area is the presentation of evidence. The rule on presentation is embodied in Rule 132 of the Rules of Court. Jump to Rule 130. RULE 130 Rules of Admissibility A. OBJECT (REAL) EVIDENCE SEC. 1

Object as evidence Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. Object Evidence is often called as Physical Evidence, Real Evidence, and Demonstrative Evidence. These are evidence addressed to the senses of the court. [Five Senses –Sight, Smell, Hear, Touch, Taste] When the evidence is relevant to the fact in issue, it may be exhibited to or examined by the court. The court may conduct ocular inspection as well.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D – For Example: A male patient went to a cosmetic surgeon to have his sex organ enlarged. After his surgery, although his penis was enlarged, it was deformed. He filed a case against the doctor for medical malpractice. During the trial, the court required the plaintiff to present as evidence his deformed penis. What kind of evidence is the penis? It is an Object Evidence because it is addressed to the senses of the court. Aside from relevancy and competency, there are other requisites, these requisites are: c.

It must be authenticated – it must be proven before the court that it is the same evidence referred to by the witness For Example: An icepick used in the stabbing is presented before the court. It is relevant and competent. However, it must likewise be authenticated. It means that it must be proven before the court that it is the same icepick used in the stabbing incident.

Object evidence must be identified by the witness. – 3.

What is the weight or evidentiary value of an object evidence? – –

The evidence must be marked [Marking] – the purpose of marking is for identification. The markings of the prosecution uses letters from A – Z, then double letters and so on. On the other hand, the defense uses numbers.

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1.

2.

Object evidence has to be marked.

Judge ordered the parties to bring their mother cows (US vs ____, 118 Phil 421)

BAR Q: Can a document be considered as object evidence? –

Yes, if the purpose is to prove its existence or condition – NOT THE CONTENTS. (Ex. Action for damages)

B. DOCUMENTARY EVIDENCE Section 2 What do you mean by documentary evidence? –

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Object evidence has to be authenticated. – Why? To prove that it was the very same object the witness refers to. And also, to prove that there was no switching; that there was no tampering.

Yes, if it would cause delay, unnecessary or contrary to morals or public policy.

Case: Theft of an offspring of a cow

A. OBJECT (REAL) EVIDENCE Section 1

SC: Object evidence is mute but speaks eloquently more than a hundred witnesses. There are object evidence that are considered the corpus delicti of the crime. (Ex. Shabu)

Can the court deny the presentation of object evidence?

It is the same rule that is applied to the confiscation of other evidence i.e., Shabu d.

Called the testimonial sponsor.

Object evidence must be formally offered in evidence.

– In order to authenticate, a witness must be presented to identify the object. The witness may be the eyewitness, person who confiscated the knife or the police.

When? Done during the taking of the Judicial Affidavit of the witness. There could also be marking during the pre-trial and even during the trial.

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It refers to any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents. If a document is offered not to prove its contents but merely to establish its existence or condition, that is object evidence. But if a document is offered to prove its contents, that is documentary evidence. Also includes documents in electronic form.

RULE ON ELECTRONIC EVIDENCE

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D ―Electronic document‖ is now admissible in evidence. That is, any information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.

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Examples:

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a)

Electronic: Email; Text Messages

b) Not Electronic: Xerox copy; Facsimile transmission (MCC Industrial Sales Corp. vs. SSANGYONG Corp., G.R. No. 170633, October 17, 2007)

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If the subject of the inquiry is not the contents of the document, the Best Evidence Rule can be dispensed with. – Example, in a buy-bust operation the accused objected to the admission in evidence of the machine-copy of the 500-peso bills used in the entrapment operation. Objection is not proper because the subject of the inquiry is not the 500peso bill, but whether or not the accused was guilty of selling shabu. Sec. 4 Original of document (a) The original of the document is one the contents of which are the subject of inquiry.  A mere photocopy could be considered as an original

1. Best Evidence Rule Section 3 –

– –

When the subject of inquiry (or case) is the contents of a document, no evidence shall be admissible other than the original document itself. So, if a machine copy is presented, or a testimonial evidence is presented, that is objectionable! To avoid fraud, mistake or error.

For Example: A document was photo copied. The photocopy was the document that was falsified. As it was the one that was altered and is now the subject of the inquiry, it will be considered as the original document.

Exceptions: (Secondary evidence can be presented; the presentation of the original can be dispensed with)

(b) When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. [Judge D: The best example for this is the copy in a receipt where a carbon paper is used. The paper below the receipt a buyer [the blue one] receives is likewise considered an original]

(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; – –

Ex. Lost due to fire or misplace. All copies of the original must be accounted for.

(c) When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals.  Account ledgers are considered Originals[Ramos vs. CA, 203 SCRA 657]

(b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; –

For example, original of the title in the Office of the Registry of Deeds. You photocopy from the office and have it certified – certified true copy from the original.

You can ask the court to require the adverse party to produce the original in court. If the latter refuses, that is the time that you can present your secondary evidence.

(c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and (d) When the original is a public record in the custody of a public officer or is recorded in a public office.

2.

Secondary Evidence

SEC. 5 When original document is unavailable When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D authentic document, or by the testimony of witnesses in the order stated.  Destroyed – it must be unintentional

The party calling for the presentation of such document is not bound to offer the same.

Before secondary evidence is presented, the offeror must present proof of its existence. In order to prove its existence, the persons who signed or saw the signing of the document could be presented. Likewise, the reason why the document is not available must be stated and that it was without bad faith.

[Judge D: How to Mark scars? For purpose of marking object evidence, the scars need not be marked but rather the party must MANIFEST and PUT IN RECORD the presentation of such evidence. It would be considered as marked. It is the same with Documentary evidence. It must be marked before formally offering the same as evidence.



Bad Faith – destruction of the document was purposely sought;

In order to prove secondary evidence, the order must be followed. First present the machine copy is available. If none, present the recitals of the contents. If still not available, the testimony of witness could be presented. [PRIORITY OF SECONDARY EVIDENCE (Order must be followed): 1. Machine Copy; 2. Recitals of contents of documents; 3. Testimony of witnesses] The testimony of a witness is given least priority because he could be easily be manipulated. However, there are instances wherein testimony of a witness is given priority i.e., proof of notarial will. SEC. 6 When original document is in adverse party's custody or control If the document is in the custody or under the control of adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss. A MOTION should be filed by the party in order to notify the adverse party to produce the document. If the adverse party fails to present the document, then secondary evidence could be presented. SEC. 7 Evidence admissible when original document is a public record When the original of document is in the custody of public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. SEC. 8 Party who calls for document not bound to offer it A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence.

A marked document need not necessarily be offered as evidence. Documents that were marked but not offered, as a rule subject to exceptions, will not be considered as evidence. A piece of evidence may havebeen marked but it does not follow that it needs to be presented. 3. Parol Evidence Rule [Judge D: This rule must be remembered. If forgotten, don’t bother taking the Bar Exam. Just tell the driver of the bus going to the examination site to stop in order to allow you to alight from the bus!] SEC. 9 Evidence of written agreements When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement.

―PAROLE EVIDENCE RULE‖ This rule states that when the parties to a contract have reduced their agreement into writing, there is no evidence as regards their agreement except the agreement [writing] itself. This rule is applicable only to written contracts. For Example: A document was made by the parties to contain their agreement. If evidence is introduced either oral or written to controvert the agreement contained in the document, the same would be inadmissible as evidence. As far as the parties are concerned, the document is the only evidence of what has been agreed upon. The purpose of parole evidence is the stability of written contracts and to remove temptations to commit perjury.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.

Parole Evidence refers to Evidence Alieunde [evidence other than the document presented] that would modify or contradict the terms and conditions that are reduced into writing.

For Example: A contract for the construction of a house was agreed upon. When the house was near completion, another agreement was made for the construction of the gate which was not embodied in the original contract. Parole evidence could be presented in order to show the existence of the subsequent agreement in case the same is not honored.

When the parties have reduced their agreement into writing, it is presumed that they have made the writing as the only repository or memorial of the truth and whatever not found in the writing must be understood to have been waived. EXCEPTIONS: However, a party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; Intrinsic Ambiguity This refers to latent ambiguity. The ambiguity is not shown on the face of the document. For Example: In a contract of sale, the consideration was in dollars. However, the same is ambiguous because it is not shown what dollar was agreed upon. It could be Canadian dollar, Singaporean dollar or US dollar. Parole evidence could then be presented.

The term "agreement" includes wills. In those instances where Parole Evidence could be presented, any of such instances must be put in issue. To put in issue, said instances must be alleged in the complaint or answer. If not put in issue, parole evidence could not be presented. Parole Evidence Rule can only be raised by the parties to the agreement or their successors in interest. For Example: A and B are the parties to the contract. C sued D. C nor D could raise parole evidence rule as they are not parties to the contract. Only A and B has the right to raise said rule or their successors in interest.

If the ambiguity is patent or shown on the face of the document, then the Parole evidence is not applicable. For Example: In a deed of donation, the donation must be accepted by the donee because the donor could not force his generosity to others. Another instance of Intrinsic Ambiguity is when there is erroneous description of a property. (b) The failure of the written agreement to express the true intent and agreement of the parties thereto;

For Example: The parties agreed to have a contract of sale but because they are not adept in making contracts what was created instead was a pacto de retro sale. The remedy is reformation. In such instance, Parole evidence could be presented. Parole Evidence – extrinsic evidence, this refers to evidence other than the evidence presented. (c) The validity of the written agreement; or

Read: 1. 2.

Lechugas vs. CA, 143 SCRA 355 Financial Building Corporation vs. International Corporation, October 4, 2010

Roble

December 12, 2016 PAROL EVIDENCE RULE Section 9. Evidence of written agreements. — When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement;

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.

1. 2. 3. 4.

Ability to observe Ability to remember what he observed Ability to relate what he observed Ability to recognize the duty to tell the truth.

The following things do not matter: 1. 2.

Age- there is no age limit. Relationship

The term "agreement" includes wills. (7a) -

A mother/ father can testify in favor of his own child.

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But in most cases, courts do not give much weight to testimonies of witnesses in favor of the accused who is their relative/ child because no relative specially a mother or father would testify against such accused. It‘s human instinct.

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Courts would often believe relatives who testify in favor of the victim, because according to the SC: Mere relationship by a witness to the victim, does not necessarily impair credibility. The courts could be filled with countless unresolved cases if courts were to hold otherwise. People vs. Dianos, G.R. No. 119311. October 7, 1998

REQUISITES FOR PAROL EVIDENCE RULE TO APPLY: 1. 2. 3.

4.

Valid contract The terms/ agreement are reduced into writing The rule is applicable only to the parties or their successors in interest (look if the parties to the case are the same parties to the subject contract) There is dispute as to the terms of the agreement.

Note: The rule is applicable only to the parties to the contract. Thus strangers can present extrinsic evidence. Parol evidence refers to the prohibition of the introduction or presentation of evidence either oral or written that would modify or contradict or change the terms and conditions of the written agreement. So if a piece of evidence will not modify or change but instead would strengthen the terms and conditions, the parol evidence rule will not apply.

Basis: ―bias or interest in the outcome of the case is not a ground for disqualification.‖ But again, somehow it affects the credibility. 3.

(Let’s jump to Section 20 because Sections 10 to 19 are just a matter of reading)

Religious and political belief Example: Suppose the witness and the party on whose favor he would testify belong to the same political party, is the witness qualified to testify?

C. TESTIMONIAL EVIDENCE A: Yes because religious or political belief, interest in the outcome of the case, or conviction of a crime are not grounds for disqualification unless otherwise provided by law.

1. Qualification of Witnesses Section 20.Witnesses; their qualifications. — Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make their known perception to others, may be witnesses. Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification. (18a) Q: Who can testify in court? Who can qualify as a witness? 4 QUALIFICATIONS OF A WITNESS:

Q: Can a convict testify against a senator? A: Yes. Being a convict is not a disqualification unless otherwise provided by law. Examples of express provisions by law: 1.

One of the qualifications TO BE A STATE WITNESS is that he was not convicted of a crime involving moral turpitude.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D -

2.

So if an accused is used as a state witness against a co- accused but such accused has been convicted of a crime involving moral turpitude then he is disqualified to be a state witness because the law expressly provides that persons who have been convicted of a crime involving moral turpitude cannot be a state witness.

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As what we said earlier there is no age limit, there‘s no minimum age, no age requirement.

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The only requirements are that he can perceive, is perceiving and can make known his perception to others.

Q: Suppose he will not be used as a state witness but would only testify against his co- accused, can he testify?

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So a child of tender years can testify, even if he‘s just 2 or 3 years old so long as the 4 qualifications mentioned earlier are present.

A: YES he can testify but not as a state witness just an ordinary witness.

Rules on the examination of child witness (this will be discussed thoroughly later this semester).

WILLS AND SUCCESSION. A person who has been convicted of falsification, perjury or false testimony cannot be a witness in a probate proceeding.

BUT NOTE THAT: Admissibility is different from credibility. He may be allowed to testify but it does not necessarily follow that his testimony will be given weight by the court. -

If there‘s doubt as to the capability of the child witness to testify, the court may conduct an examination as to his capability to testify.

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The child will be asked/ tested if indeed he can relate (ie. What his name is, age, name of parents, names of his classmates, teachers, school, or if he‘d return or keep his classmate‘s cellphone or tablet if he sees it, why would he return/ keep it), if he can answer these things then he‘s qualified.

Admissibility is different from giving weight to one‘s testimony.

Q: Can a BLIND person testify?

Q: Are there witnesses who are disqualified? A: Yes. Section 21- MENTALLY INCAPABLE MENTALLY IMMATURE WITNESSES.

AND

Section 21.Disqualification by reason of mental incapacity or immaturity. — The following persons cannot be witnesses: (a) Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; Reckoning point: at the time of the production for examination. -

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So even if at the time of the commission of the crime the witness was still of sound mind but at the time of his production for examination he becomes mentally incapacitated, he cannot be allowed to testify.

(b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. (19a)

A:Yes. So long as he can perceive. In fact blind people have better perception and memory. SC: Identification by the sound of the voice of the person identified is sufficient and acceptable means of identification where it is established that the witness and the accused had known each other personally and closely for a number of years. People vs Reynaldo 291 SCRA 701. -

This is a rape case and the victim here was a blind woman.

Q: What about a DEAF- MUTE? A: Yes. Through sign language. SC: Deaf-mutes are competent witnesses where they 1. 2. 3.

can understand and appreciate the sanctity of an oath; can comprehend facts they are going to testify on; and can communicate their ideas through a qualified interpreter.

But in one case, the court did not allow a deaf- mute to be a witness because this deaf- mute has not gone to a special school for persons with disabilities and the only person he can

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D communicate with is his mother. And the mother communicates with him in a manner that is not the standard way of communicating to a deaf- mute. The trial court appointed the mother as interpreter for the victim, but the problem is that the accused did not have any means of verifying whether the mother has faithfully translated what the victim said. See the court‘s ruling in the case of People vs Hyatt November 17, 1980

-The case will be dismissed. You may notice that justice is sacrifice in favor of family unity and in preservation of marriage.

WAIVER OF RIGHT TO OBJECT

Case: The accused and his wife always fight which resulted to their separation. The wife lives with her sister. The husband went to the house of his sister-in-law and told his wife to go home or else he will burn the house. The wife didn‘t listen to the husband, so the latter burned the house of his sister-in-law.

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Note that Rule 130 is about qualifications and disqualifications of a witness. These are grounds for objections and the party must raise such objection at the earliest possible opportunity, otherwise it will be deemed waived. Therefore, if a person of unsound mind or a child of tender years who couldn‘t narrate what he observed is presented in court and the adverse party does not object, he is deemed to have waived his right to object.

Section 22.Disqualification by reason of marriage. — During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. (20a) ―MARITAL DISQUALIFICATION RULE‖ For example in a murder case, Mr. X killed Y in a remote place. There was only one witness, W a 22 year old woman. Based on her testimony, Mr. X was charged with murder. While Mr. X was in jail. X and W became textmates and became sweethearts and eventually got married inside the jail. When W, the only witness for the prosecution, was presented in court – Mr X objected through his counsel on the ground that W is disqualified to testify against him without his consent. Is the objection meritorious? Answer: No. Section 22. Disqualification by reason of marriage. — During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants.

Are there exceptions? Yes, when a criminal or civil case is instituted among themselves. E.g. wife vs husband vice versa or a case of rape committed against the stepdaughter.

The sister in law filed an arson case against the husband and during the trial, the prosecution presented the wife to testify against the accused. The husband objected invoking the marital disqualification rule. Is the objection meritorious? Answer: SC: The purpose of the marital disqualification rule is to preserve the marriage. In this case, there is no more marriage to be preserved because the relationship is already strained. Marital disqualification rule no longer applies. (Alvarez vs. Ramirez G.R. No. 143439, October 14, 2005) ―But like all other general rules, the marital disqualification rule has its own exceptions, both in civil actions between the spouses and in criminal cases for offenses committed by one against the other. Like the rule itself, the exceptions are backed by sound reasons which, in the excepted cases, outweigh those in support of the general rule. For instance, where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquillity which may be disturbed, the reason based upon such harmony and tranquillity fails. In such a case, identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, the security and confidences of private life, which the law aims at protecting, will be nothing but ideals, which through their absence, merely leave a void in the unhappy home. Obviously, the offense of arson attributed to petitioner, directly impairs the conjugal relation between him and his wife Esperanza. His act, as embodied in the Information for arson filed against him, eradicates all the major aspects of marital life such as trust, confidence, respect and love by which virtues the conjugal relationship survives and flourishes.‖

What will happen to the case of the prosecution considering that W is the only witness?

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D The term criminal case is not only limited to physical injuries, adultery, bigamy- it includes any crime which directly impairs the conjugal relation between the parties. Requisites of Marital disqualification rule: 1. 2.

There must be a valid and existing marriage at the time the testimony is offered. The other spouse is a party to a case.

In one case, it was the wife who was charged with possession of dangerous drugs. When she testified, she told the court that the illegal drugs confiscated from her was not hers, but it was of her husband. Is her testimony admissible?

Marital Privilege Rule: A spouse is either a party or not. Section 23. Disqualification by reason of death or insanity of adverse party. — Parties or assignor of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. Also known as ―deadman’s statute‖.

Answer: Yes, because the husband is not a party to the case. [U.S vs. Tin Tong 25 Phil 39]

X and Y are close friends. Mr. Y borrowed Php 200,000.00 from X. Y forgot about his debt. X collected the money, but Y refused to pay. X filed a case against Y. Unfortunately, while the case is on trial, Y died. During the trial, can X testify?

The testimony of a spouse must be presented for or against the other spouse and that spouse should be a party to the case.

Answer: No.

3.

The case is not one against the other.

Sec. 24 (a) The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. -The information must be received in confidence. E.g If the spouse will tell the other: Do you remember that dead body found in the SRP? I was the one who killed the person. Let‘s keep it a secret. Later on, they had an argument and the wife shouted that her husband is a killer. A murder charged is filed against the husband. The basis is the testimony of the wife. Can the wife testify in court? Answer: No over the objection of the husband. If the husband does not object, he is deemed to have waive such right to object. The prohibition is only as regards to confidential information. Distinction: Marital Disqualification Rule: A spouse is a party to a case.

If the one you transacted with is already dead, then you can no longer testify. Suppose, X assigns his right to A. Can A testify? No. Suppose, at the time Y borrowed money from X, W was present and saw Y borrowing money. Can W testify? Yes. Because the deadman‘s statute prohibits only a party to the transaction. It does not prohibit an ordinary witness from testifying. Notes: -The Dead man‘s statute only prohibits testimonial evidence, not documentary evidence; it does not only apply when the party is dead, it can also apply if the party is insane. -does not apply where a counterclaim is interposed by the defendant; or where the defendant contracted with the plaintiff thru an agent and said agent is still alive. -does not apply if it is the administrator who files a claim against the estate; Purpose of the dead man‘s statute: designed to close the lips of the party plaintiff where death has closed the lips of the party defendant in order to remove from the latter the temptation of falsehood and the possibility of fictitious claims against the deceased. Sec. 24.Privilege Communication (B)Attorney-Client Privilege Communication

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D -lawyer cannot testify as to any communication given to him by his client without the latter‘s consent -in the course of or with a view to professional employment -includes the stenographer/clerk/secretary of the lawyer -if the purpose of giving the communication is to hire the services of such lawyer, then such lawyer is already covered from this privilege communication -purpose of this rule is to allow the client to disclose everything to his attorney with regard to his case (C) Doctor-Patient privilege communication (refer to codal provision) -only applicable in a civil case (D) Priest-Penitent Privilege Communication (refer to codal provision) -communication must be given during confession; otherwise this rule does not apply Sec. 25. Parental and Filial Privilege -no person may be compelled to testify against his parents/other direct ascendants, children or other direct descendants Sec. 26.Admissions of a party 2 kinds of admission 1. Judicial admissions – must be in the same case; otherwise it is extrajudicial

making the admission. Example is the bombing during the bar exam. How did the authority find out the bomber? It is because he declared it while he was having a drinking session. Is that hearsay? No. Testimony to prove admission is not hearsay. Necessarily you have to present as witness the person who heard such statement/admission. What if the person applied for bail, then in one of his drinking sessions, he again declared that ―I was not the one who threw the bomb during the bar exam‖. Is this admission admissible in evidence? No. It is because the admission is in favor of one‘s interest, thus self-serving. What is admissible is an admission which is against the declarant‘s interest. However, strictly speaking, an admission during trial in favor of one‘s interest is not self-serving because it is subjected to cross-examination. Thus, self-serving statements are admissions given by a party extra-judicially which are favorable to him. If the admission is given during a custodial investigation, in order for it to be admissible, it must comply with the requirements under the MIRANDA DOCTRINE. If there‘s no custodial investigation, then Miranda Doctrine is not applicable. Example, when you admitted something against your interest in the media, then later the reporter was presented in court to prove your admission. Can you object on the ground that you were given the assistance of a lawyer at the time you made your admission? NO. There‘s no custodial investigation, so Miranda Doctrine does not apply. The admission is therefore admissible in evidence. What is the evidentiary weight of admission? According to the SC, it is the HIGHEST FORM of EVIDENCE because no person in his right mind would make an admission unless it is proved. Would you boast killing many persons? No.

-An act/declaration/omission of a party as to a relevant fact may be given in evidence against him

That‘s why other people when asked would only say that ―I‘ll wait for my lawyer‖ because a statement may be used as evidence against him, especially if it is not in custodial investigation.

-Testimony to prove admission is not hearsay

What is the difference between admission and confession?

Flight is an admission of guilt. If after committing a crime, the accused would go to another place in order to hide, that is an admission or evidence of guilt. Another is suppression of evidence like giving money to the witnesses against the accused, the act of giving money to the prospective witness is an admission of guilt.

Admission maybe express or implied while confession is always express.

2. Extrajudicial admissions

What about declaration? This refers to statement against one‘s interest. Example, a married person admits having a girlfriend; this is an admission of guilt. However, this might not be enough for conviction. Statements given to the media against one‘s interest is admissible in evidence against the person

What do you mean by confession? It is an express acknowledgement of guilt. Example you‘ll say: ―it‘s true that I was the one who stabbed him.‖ Is this statement an admission or confession? It‘s an admission, because the stabbing might be justifiable, selfdefense for example. This is not confession of guilt. An admission could be presented as evidence to prove guilt. Admission involves facts that may prove guilt, whereas

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D confession is an express acknowledgement of guilt. Example you‘ll say, ―I killed him because he always bullied me.‖ This is a confession, not an admission. The distinction between admission and confession is a hair-line difference. If you admit only the acts, example you‘ll say, ―I had sexual intercourse with her‖, this is a kind of admission and not confession because the sex could have been consensual. However, this admission could be used as evidence against the accused to prove his guilt.

purpose of the mandatory requirement of filing it first in the Katarungan Pambarangay? It is for compromise agreement. Also, there are decisions by the SC. Example, offer of compromise to avoid inconvenience is not an admission of guilt. People vs Galvez, March 30, 2007. Offer to pay is not an admission of guilt even if it is an intentional injury. People vs Mejia, 275 SCRA 127 (The Good Samaritan Rule)

Admission could be express or implied.

Sec. 28 Res Inter Alios Acta

Flight is an implied admission of guilt. Entering into a comprise agreement in a criminal case is an implied admission of guilt.

What do you mean by res inter alios acta? This means that the rights of a party cannot be prejudiced by the act, omission or declaration of another. So your admission, as a rule, would only bind you and not other people.

Confession, as a rule is applicable only in criminal cases, while Admission is available in criminal and civil cases. Admission can be made by other person, while confession must be made by the accused himself. Admission refers to act, declaration and omission of a party. Is there an admission by omission? Yes. Admission by silence. Sec. 27 Offer of Compromise In civil cases, offer to compromise is not considered as admission of liability. However, in criminal cases, as a rule, an offer of compromise is an admission of guilt. Example, you are accused of murder, and then you offered money to the heirs of the victim to withdraw the case. Such offer is admissible in evidence against you. How about asking forgiveness? It is an implied admission of guilt. How about offering marriage? It is an implied admission of guilt. But if the girl would accept, your liability would be extinguished. Take note that it must be the accused himself would make the offer and not other person. There are instances where offer of compromise is not admission of guilt such as in criminal negligence. Payment of hospital expenses is not admission of guilt. Another, plea of guilty later withdrawn is also not an admission of guilt. Another, plea to lesser offense which is not accepted by the prosecution is not an admission of guilt. Offer to pay or payment of hospital expenses on occasion of an injury is also not an admission of guilt. (This is known as THE GOOD SAMARITAN RULE). Another is cases which the law allows compromise. Example of this is compromise under the NIRC for non-payment of taxes. Another is mediatable cases such as cases under the Katarungang Pambarangay. What is the

This admission, the res inter alios acta, refers only to ExtraJudicial admission. When this admission is made during trial, this can bind other person because there is cross-examination. But there are exceptions. The Rules give us three exceptions: 1. When the admission is made by the co-partner. The admission of a partner may bind other co-partners provided that: a. The admission was made during the existence of the partnership; b. The partnership is proved other than the admission; and c. The admission is done within the scope of his authority as a partner. EXAMPLE: In the book of accounts of a partnership, a partner made entries would affect his liability in the partnership. The entry was made during the existence of the partnership and made within the authority given to him and if the adverse party can present evidence other than that admission in the entry, then that evidence is binding not only against that partner but also against the partnership. Agent and Principal The act or admission of the agent could be binding against the principal provided that the agent acted within the scope of his authority. EXAMPLE: Lawyer-Client Relationship – the lawyer is acting as an agent of the client, so whatever admission or omission made by the lawyer could be binding against his client. If during trial, the lawyer would made an admission, that admission would be binding against the client.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D

CASE: Estrada vs Desierto 356 SCRA 108 Estrada questioned the legitimacy of the Arroyo government; he claimed that he did not resigned. The Supreme Court held that Estrada resigned and the basis was the Angara Diary. Angara was the Executive Secretary of Estadra. Angara noted in his diary that Estrada told him that ―Pagod na pagod na ako, alis na tayo.‖ The act of Angara was made binding against Estrada because the act of an agent done within the scope of his authority and during the existence of the agency is binding against the principal. Section 30. Admission by conspirator. — The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the coconspirator after the conspiracy is shown by evidence other than such act of declaration. As a rule the admission given by an accused is only binding against him, but if the admission is a made during the existence of conspiracy and the prosecution is able to present evidence other than the said admission then that admission is binding against other conspirators. TAKE NOTE: the declaration or act must be made during the existence of the conspiracy. Q: when can you say that conspiracy still exists? A: BEFORE the commission of the crime. EXAMPLE: After the accused has been arrested, he made a declaration that he conspired with other in committing the crime – the conspiracy has already ended! So your admission is ONLY BINDING AGAINST YOU! REASON: because one of the requirements for the admission to be binding against other conspirator is that the admission must be made during the existence of the conspiracy. if the admission is made after the conspiracy then it shall not be binding against other conspirators, UNLESS, that admission is repeated or made during trial. Admissions made during trial will always bind the co-accused because they have the opportunity to cross examine. REQUISITES: 1. The conspiracy is shown by evidence other than the admission itself 2. The admission was made during the existence of the conspiracy 3. The admission related to the conspiracy itself. CASE: It was Monday when X, Y and Z planned to kill A. They planned to commit the crime on Wednesday. Before the said date, Z went to W, his friend, and asked him if he could borrow his bolo. He then told W

that they were planning to kill A. W refused Z. Nevertheless, X, Y and Z’s plan to kill A was still carried out. During trial, one of the witnesses was W. Q: Is the admission made by Z to W binding against Z? YES Q: Is the admission also biding against Z‘s coaccused? YES, because all the requisites are present. Q: What are the requirements of EXTRAJUDICIAL CONFESSION? 1. The conspiracy is shown by evidence other than the admission itself 2. The admission was made during the existence of the conspiracy – Z made the admission during the existence of the conspiracy 3. The admission related to the conspiracy itself. Section 31. Admission by privies. — Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former. o o

o

This is an exception to the res inter alios acta rule. Admission made by a previous owner of the property is binding against the present owner. Also known as vicarious admission.

Section 32. Admission by silence. — An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him CASE: People vs Paragasa 184 SCRA 105 A rape victim went to the police, and complained that she was raped by the accused. There was a confrontation between the two in the police station. During the said confrontation, the accused told the private complainant and in the presence of the police investigator that the sexual intercourse was consensual. The rape victim did not make any reaction. When the case was appealed to the Supreme Court, since the accused was convicted, it held that the failure of the private complainant to make a reaction when that statement by the accused was made in her presence and with the presence of the police investigator was considered as an admission. TAKE NOTE: this rule does not apply to an accused in a criminal case during a judicial proceedings or custodial investigation. TAKE NOTE OF THE TERMS USED: a. Police level = suspect b. Fiscal = respondent c. Court = accused

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D d.

Appealed cases= appellant/ appellee

REQUISITES: 1. He must have heard or observed the act 2. He must have the opportunity to deny it 3. He must have understood the statement 4. He must an interest to object such that he would have naturally have done so if the statement was not proved 5. The facts were within his knowledge 6. The fact admitted or the inference to be true from his silence is material to the issue 7. When is it proper of possible for him to do so EXAMPLE: if during the party, you were told that you stole something. Then you can explain why you did not react in order not to cause a scandal. January 8, 2017

a motion for preliminary investigation and at the same time a lifting of the warrant of arrest issued by the court. Can the court entertain the motion? YES. Because even if the accused has not yet been arrested, custody of the law over the person of the accused is only required if the accused will post bail. See Miranda vsPoliao. Judge D: As I said last time, if you find my questions hard to answer, you find the questions in the bar harder. *** Rule 130 is very important because it gives us the rules on admissibility of evidence. Because it gives us rules on admissibility, this is where we ground our objections. So if a piece of evidence contradicts the rules, that is objectionable. And if you cannot object, it is waived. Section 33.Confession. — The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him. (29a)

Now you should be able to distinguish the jurisdiction over the person of the accusedand custody of the law.

Q: What is confession? A: declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein.

Q: how can the court acquire jurisdiction over the person of the accused?

TN: Confession is sometimes confused as admission and vice versa. But they are actually different.

A: through arrest or voluntary appearance in court.

Confession- an express acknowledgment of an accused of his guilt. He pleads guilty, that it is his fault.

Voluntary appearance does not necessarily mean personal appearance in court. The same concept as in voluntary appearance in civil cases; filing any motion in the court, the accused has already submitted himself to the jurisdiction of the court. Because of that, the court already has the power to entertain any motion or the accused can already ask for ay remedy from the court. In fact, according to the SC, there are instances where even if the accused did not file any motion, the court may dismiss the case. Remember that upon the filing of the case in court, the court will review the resolution of the public prosecutor and the supporting evidence. What will the court do if it does not find any probable cause? DISMISS the case. Custody of the law over the person of the accused is only required in posting bail. If the accused wants to post bail, he must be under the custody of the law, physically. He must be detained because it would be inconsistent with the purpose of the bail if the accused is not detained. If not, he must personally appear in court. But if he will only ask for remedy, such as filing a motion for preliminary investigation because it was irregularly conducted (because the complainant purposely stated the wrong address so he will not receive the subpoena). For example, if he will file

Admission- the accused only admitted certain facts but his admission does not necessarily include his guilt. The facts he admitted can be just used to prove his guilt. For example, if you say, ―Nakapatayko/I killed somebody.‖ Is that confession or admission? Admission because the killing could be justifiable. Another, if you say, ―yes, there was sexual intercourse between the two of us.‖ Is that confession or admission? Admission because the sexual intercourse could be consensual. But such admission is admissible to prove the crime you are charged with. But if you say, ―true, I committed the crime of rape.‖ That is a confession! You already admitted your guilt. There are 2 kinds of confession: 1. Judicial  Done in court  Remember during arraignment, where the accused is required to stand in front of the court and the information/criminal com-

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D

2.

plaint is read to him. If he pleads guilty, his confession is judicial

volunteered, not extracted during a custodial investigation.

Extrajudicial  Express acknowledgment of guilt made outside of court  For example, the accused was investigated in the precinct and he admitted before the police that he killed the victim  Could be oral or in writing  If it is made during custodial investigation, it must comply with the requirements under the Miranda Doctrine to be admissible  MIRANDA DOCTRINE: o TN: Suspect- police level  Respondentprosecutor level  Accused- court o Suspect must be informed of his rights  Right to remain silent  Right to have a lawyer of his own choice  Right to be informed that whatever he admission/confession he would make, the same is admissible against him in court o During the actual investigation, he must be assisted by a lawyer  Any admission made by the person made outside of a custodial investigation is admissible even without the assistance of a counsel o Ex: interview by the media; if the prosecution presents the interviewer and the defense objects on the ground that the accused was not assisted by a counsel, is the objection valid? NO. the confession was not done during a custodial investigation.  Suppose the accused surrendered to the police, bringing with him the knife he used to stab the victim and confessed to him. He was arrested and a case was filed in court for homicide. He was advised by his lawyer to plead not guilty because there was no witness. How can the prosecution prove the crime? Present the police to whom he made the confession. Admissible? YES, because the desk officer was not conducting a custodial investigation. The statements were

Q: when is there custodial investigation? A: when there is questioning made by a law enforcer to the suspect regarding the commission of the crime. Requisites for a confession to be admissible: 1. Must be express  Cannot be implied; no implied confession 2. Against whom the confession is admissible  For example, Mr. X confessed his guilt to the police that he was the one who killed Mr. A. To whom is it admissible? Against the confessant.  Supposed when Mr. X made the confession, he also said that he killed Mr. A with Mr. Y. is the confession also admissible against Mr. Y? As a rule, NO. Extrajudicial confession is admissible only against the confessant. But there are exceptions.  Exceptions to the GR that the extrajudicial confessions are only binding to the confessant: 1. When there is interlocking confessions o Happens when several accused made separate confessions, voluntarily and independently made identical confessions without collusion o For example, there are 4 accused, and each of them made separate confessionsthe contents thereof are identical; the confession of one could be used against his coaccused. TESTIMONIAL EVIDENCE Sec 36 is the rule against hearsay evidence. The witness can only testify only to those facts which he knows of his own personal knowledge- of his own perception unless otherwise provided by these rules. The rules did not provide for definition of what is hearsay. A witness can only testify which he knows of his personal knowledge. Three kinds of out of court statements: 1.

Hearsay- if the purpose is to prove of the facts asserted therein.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D 2.

3.

Non-hearsay if the purpose of the statement was only to prove the tenor thereof. Independently relevant statement. The purpose is not to prove the truth of the statement but merely to prove that there was such a statement made. Not to prove the truth of the statement. Exceptions to the hearsay rule

Independent relevant statement- same is admissible because the purpose is merely to prove that there was a statement made and not the truth thereof. Example, X said to Y, ―You are crazy‖ heard by W. Suppose Y wants to file a case against X for oral defamation. How can Y prove that X made such statement? Present W. What will W say? That indeed X uttered this word. The testimony of W is presented to prove that there was such a statement and not to prove that Y is really crazy. Merely to prove that there was such a statement. Example If W told to Y. I saw X killed A. If Y goes to court that would be hearsay because he has no personal knowledge if only to prove that indeed X killed A. His testimony is admissible because the rules especially the Constitution gives the right to the accused of the right to cross-examination. The only test that we have to determine if the person is lying or not is only the CROSS-EXAMINATION. If W says that he saw X killed A. He will be cross-examined in order to determine whether he is telling the truth. While answering, the examiner will observe his demeanor. This is called demeanor evidence. That is why hearsay evidence is not admissible. He is only allowed to testify which he learns of his knowledge. If you are only told of that, it is not admissible. But there are exceptions such as independently relevant statements. It is merely to prove that there was a statement made. Example W told his wife. I saw X killed A. Wife of W was presented to the court. Her testimony is admissible merely to prove that indeed W made such statement to her and not to prove that it was X killed A. Just to prove that there was such a statement. Just to prove that there was a statement and not to prove the truth of the statement. Cross-examination of a person who has personal knowledge of the facts/statements.

There was a case of rape. The rape victim executed an affidavit. After finding probable case, the prosecutor‘s office filed information of rape with the court. During the trial, the private complainant who was a nurse went abroad. Public prosecutor instead of presenting the victim herself presented the mother of the victim. The purpose is to identify the affidavit of the victim that the signature of the victim was really indeed of the victim; that indeed there was rape. Is it admissible? Doctor was also presented and then offered in evidence the affidavit of the victim. Is it admissible? What will be your objection if you are the defense counsel? Answer: It is hearsay. Hearsay is not just limited to oral statements. It may also refer to a document where the affiant or signatory himself takes to identify his own signature appearing on the document and to testify on the contents of the document. Hearsay may be oral or documentary evidence as to somebody‘s words or actions. Hearsay could also be nonverbal example the victim was called by the police station in order to identify the suspect. Earlier that day, the victim went to the police and complained that she was a victim of snatching. Later that day, the police called her to got to the police station to identify the suspect if he was the one who snatched the victim. The accused together with some persons in the police line-up. The accused pointed to the accused. During the trial, the victim was not able to attend despite notices and subpoenas. It was the police who testified in court. He testified that during the police line-up, he saw the victim pointing to the accused. Is the testimony of the policeman admissible? NO. this is non-verbal hearsay. Hearsay could be oral, written, verbal or non-verbal. 5. Testimonial Knowledge Section 36.Testimony generally confined to personal knowledge; hearsay excluded. — A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. This is the rule against hearsay evidence. Under this section, a witness can testify only to those facts which he knows of his personal knowledge (i.e. derived from his own perception, except as otherwise provided in these rules). You notice that the section does not give a definition of what is hearsay evidence.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D Outside of a witness‘ personal knowledge, that would be hearsay. There are three (3) kinds of out of court statements: 1. Hearsay If the purpose of presenting the out of court statement is to prove the truth of the facts asserted therein. 2. Non-hearsay AKA Independently Relevant Statement If the purpose is to prove that such statement is made or just to prove the tenor thereof. The purpose is not to prove the truth asserted in the statement.

The prohibition of the admission of hearsay evidence has something to do with the right to cross-examination. Hearsay evidence, if admitted, deprives the adverse party of his right to cross-examine the witness. If W says he saw X kill A. W will be cross-examined to determine the truth of his statements. While he is answering the questions, the examiner and the court should watch carefully his demeanor (did he hesitate, how long did it take for him to answer, was he spontaneous etc.). This is called DEMEANOR EVIDENCE. If you ask another person to state what W said, you will deprive the other party the right to cross-examine W. That is why hearsay evidence is not admissible. A person may testify only to those facts which he knows of his personal knowledge.

3. Exceptions to the Hearsay Rule

But there are exceptions and one of those is Independently Revelant Statement, which is submitted merely to prove that there was such a statement made.

Independently Relevant Statement -admissible because the purpose is merely to prove that there was such a statement made

Example: W saw X kill A. W then tells his wife about it.

Examples: 1.X tells Y ―Boangka!!‖ W heard X.

Q:

Q:

Q: A:

A:

A

Assuming Y files a case (oral defamation) against X, how will he prove that X made such statement? Present W.

Q: A:

What will W say? That X uttered those words.

The testimony of W is presented to prove that there was such a statement, not to prove that indeed Y is insane / not to prove the truth asserted in the statement. 2.W tells Y ― You know Y, I saw X kill A.‖ If Y is presented in court, that would be hearsay if the purpose is to prove that it was really X who killed A and the testimony of Y would be inadmissible because our rules and the Constitution give to the accused the right to cross examination. Admission of a hearsay evidence deprives the adverse party to cross examine. There is no technology that can detect accurately whether one is lying or not. For now, the only way to discover whether one is telling the truth is through crossexamination. This is so important that the right to crossexamination is embodied in the Constitution.

Suppose the wife is presented in court, what will she say? That W told her of the incident. Is the statement admissible? It could be admitted merely to prove that indeed W made such statement to her and not to prove that it was X who killed A, nor prove the truth asserted in the statement.

Purpose of the rule against hearsay: To prove the right of the adverse party to confront and cross-examine the original person who has the knowledge of the transaction / incident. [Case: When the case for rape was filed with the prosecutor‘s office, the rape victim executed an affidavit. After finding probable cause the prosecutor‘s office filed an information for rape with the court. There was arraignment, pretrial, then trial. During the trial, the private complainant who was a nurse went abroad. So the public prosecutor, instead of presenting the victim herself, presented the mother of the victim to identify the affidavit of the victim, that the signature of the victim was really that of the victim. Is the testimony of the mother admissible? Or is the affidavit admissible in evidence? What will be your objection? The purpose of the public prosecutor is to prove that there was such a rape incident that occurred. So the public prosecutor as

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D part of his evidence, after presenting the doctor, offered in evidence the affidavit of the victim. Is the affidavit identified by the mother admissible in evidence? What is your objection? Hearsay is not limited to oral statement. It may also refer to a document where the affiant / signatory himself fails to identify the signature appearing on the document and to testify on the contents of that document. In other words, if the signatory of a certain document is not presented in court to identify his own signature and the contents of the document then the document could be objected on the ground that it is hearsay, such as an affidavit. Hearsay is oral or documentary evidence as to somebody‘s words or actions. Hearsay could also be non-verbal. Example: The victim went to the police and complained that he was a victim of snatching. Later in the day, the police called up the victim to go to the police station because they have arrested somebody and for the victim to identify whether or not he was the one who snatched the bag. The accused, together with other persons in the police line-up, was identified by the victim. During the trial the victim was not able to go to court despite notice / subpoena. Recall that the accused should be identified in court. So it was the police who testified in court that during the police line up that he made, he saw the victim pointing to the accused. Is the testimony of the policeman admissible? No, that is hearsay -- non-verbal hearsay. Hearsay could be: 1. Oral 2. Written 3. Non-verbal Wherein the accused was charged with Homicide. Among the witnesses presented was his classmate. The purpose of presenting the testimony of his classmate is to prove that the accused admitted to this classmate, or told his classmate, that he was the one who stabbed the building. So, while there were no charges filed against the accused, the accused boasted towards his classmate that he killed someone. Eventually, charges were filed against the accused. The accused denied to be the author of the crime and the prosecution presented his classmate in order to prove that he told his classmate that he was the one who killed the victim. The defense counsel objected, invoking the hearsay rule. Meritorious? Remember: Testimony that is presented to prove admission is not hearsay. - How else can you prove admission?

Example: The person admitting denied his admission. Then present what he admitted before the court. Supreme Court: Admission by an accused to his classmate is not hearsay. The testimony is offered to prove extra-judicial admission of his involvement in the crime. Such admission is against his personal interest, and is admissible under Section 26, Rule 130 of the Rules of Court. Emphasis: What is admissible is an admission against his interest. Testimony that is favorable to him is not admissible for being self-serving. But take note that a self-serving statement is only applicable to an extrajudicial statement. - If the statement is given in open court, and it is favorable to the accused, that cannot be considered as self-serving since the declarant can be subjected to cross-examination. Exceptions to the Hearsay Rule Section 37.Dying declaration. — The declaration of a dying person, made underthe consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. [*One of the provisions in the Rules of Court which must be memorized, or if not, familiarized.] The declarant here made a declaration or a statement outside the court, and the declarant cannot anymore be crossexamined as to the veracity of his statement, because he is already six feet below the ground. (Known as an ante-mortem statement) Requisites: 1. The declarant is dying; 2. He is aware of his impending death; - The fact that he is aware of his impending death takes the place of an oath. Before you testify, you need to take an oath to tell the truth, the whole truth and nothing but the truth. So, in lieu of him being under oath, how do we know he is telling the truth? It is the fact that he is aware of his impending death. Supreme Court: A person, who is aware he is dying, cannot afford to tell a lie. 3. The declaration is presented to prove the circumstances in a case regarding his death. - The subject of the inquiry is his own death.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D Example: A person is dying of cancer. He tells his wife that he killed a person. Can it be considered as a dying declaration? No. Here, it is not the subject of his own death but of another. Note: The declaration may be oral or written, and it need not be under oath. Judge: I was able to handle a case before. The case was murder. The victim was taken to the hospital by taxi. While on board, the witness asked the victim who stabbed him. The accused said it was Mr. X. (The prosecution would use dying declaration in case there are no eye witnesses. Meaning no direct evidence. If there are eye witnesses, dying declaration will not play much of an important role.) Note: It is not enough that the declarant supplied a name. Remember that the second element is important. How do you determine that the person is dying? You ask him. ―Can you make it?‖ If he says something like ―He can‘t do it. I think I‘m going to die‖, it means that he is aware of his impending death. *It‘s the fact that he is aware of his impending death that takes the place of an oath. Ok?* Simple Example: So in one case, assuming that he is dying, the victim told another to go to Padre so and so because I want to confess. It means that he is aware of his impending death. The Supreme Court considered this as a manifestation that he is aware of his impending death. Another: The dying person told his wife ―Please take care of our children‖. What does that mean? It means he is aware of his impending death. *Lesson: You must ask the victim if he can make it. If he states that he can, then it cannot be considered as a dying declaration, even if the victim would die later. Note: If he is aware, then his statement could be considered as a dying declaration, even if his death would not come sooner. In one case, the victim died 14 days later. People vs. Jacinto, G.R. 51908, November 29, 1984:

Objection interposed by the accused: The said statement does not fall under the category of a dying declaration since it was not executed under a consciousness of impending death as the deceased was discharged from the hospital on the same day, and death occurred 14 days after the incident, and that there is no evidence that he is the "Boy Juaning" referred to by the deceased. Ruling: The fact that the deceased died 14 days after the statement was taken does not affect its admissibility. It is sufficient that the circumstances are such as to lead inevitably to the conclusion that, at the time the statement was made, the declarant did not expect to survive the injury from which he actually died. Judged by the nature and extent of the wound inflicted — a deep wound at the back which penetrated the vertebra and spinal cord — Bantigue could not have ignored the seriousness of his impending death. What if he did not die? Could it be considered as a dying declaration? No. It could be admitted as part of the res gestae. Remember: The intervening time, from the making of the declaration up to the actual death of the declarant, is immaterial as long the declaration was made under the consciousness of an impending death. What are the reasons of why dying declaration is an exception to the hearsay rule? (Note that the declarant can no longer be cross-examined.) According to the Supreme Court in People vs. Preciados, G.R. 122934, January 5, 2001 1. Necessity – because the declarant can no longer testify; 2. Trustworthiness – because a person who is at the point of death, every motive to falsehood is silenced, and the mind is induced by the most powerful consideration to speak the truth. Case Notes: Negative example for application of dying declaration and part of the res gestae. 1. Cannot be considered as a dying declaration because ―it was patently incorrect for the trial court to have allowed prosecution witness PO3 Leonardo Inoc to testify on Antonios so-called dying declaration because

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D Antonio was alive and later even testified in court.‖

accused? You can also question the person to whom the declarant made his declaration.

2. Cannot be considered as part of the res gestaebecause ―the element of spontaneity is lacking in the alleged ante-mortem statement. Antonios statement was taken by PO3 Inoc at around 3:00 oclock P.M., May 14, 1992 or some thirty-nine (39) hours after the incident. Thirtynine hours is too long a time to be considered subsequent immediatelyto the startling occurrence.‖

So for example, in a case I handled, we questioned the truthfulness of her statement because according to the death certificate, the victim was dead on arrival, and the place of the incident was very near, about 1 kilometer from the hospital, and the victim was on board a taxi. It would take only 3 to 5 minutes to get to the hospital. Meaning if he was dead on arrival, he might have died already in the taxi.

What is the weight of a dying declaration? Case: People vs. Sagario, 14 SCRA 468. Ruling: It has been held that conviction or guilt may be based mainly on the ante-mortem statements of the deceased (People vs. Serrano, 58 Phil. 669). In the face of the positive identification made by deceased Gomez of Antipas Sagario and Luis Gui-e, it is clear that the two participated in the crime denounced. Case: People vs. Marollano, G.R. 105004, July 24, 1997 Ruling: A dying declaration, as an exception to the general rule on the inadmissibility of hearsay evidence, is entitled to highest credence because no person who knows of his impending death would make a careless and false accusation. When a person is at the point of death, every motive for falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth. Such a declaration, made in extremis when the party is at the point of death and the mind is induced by the most powerful consideration to speak the truth, occasioned by a situation so solemn and awful, is considered by the law as creating an obligation equal to that which is created by a positive oath administered in a court of justice. The idea, more succinctly expressed, it that "truth sits on the lips of dying men." You might ask that when there is a dying declaration, the court should automatically admit it and give it weight? Answer: No. You can impeach the witness or even the declarant. Example: The person who died was blind; or he has hazy vision; or the place where the crime was committed was dark, and there‘s no light. Then how did he identify the

We also questioned the motive of the witness because she was impregnated by the accused and the accused did not marry her. I‘m showing to you how to attack a dying declaration. It‘s also possible that the Police supplied a name in order to apparently solve a case. *Even if there is a dying declaration presented by the prosecution, it does not mean your defense is hopeless. It‘s possible to question the witness on the abovementioned. It‘s up to the court to rule on the matter. Note: Dying declarations can be used by the defense. Example: There is an eye witness who named the accused. The eye witness, when interviewed the victim as to who stabbed him, supplied another name. The accused presented the eye witness. Is the testimony of the eye witness admissible? Yes. It is still a dying declaration. SEC. 38 – Declaration against interest. The declaration made by a person deceased, or unable to testify against the interest of the declarant, if the fact asserted in the declaration was at the time was made so far contrary to the declarant’s own interest, that a reasonable man in his position would have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons. JD: Remember in our example earlier, a cancer patient who is dying and he confessed that he had killed somebody some time ago. Would be considered as a dying declaration? A: no. not considered as dying declaration but nevertheless it can be admitted as declaration against interest.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D TAKE NOTE: that under this exemption the declarant is already dead or unable to testify. Q: what do we mean by unable to testify? A: it could be that he is still alive but unable to speak, or he could be already in comatose or dying, or outside the Philippines and you do not know his whereabouts but has made a declaration against his interest. EXAMPLE: X made a dying declaration under section 38, he told his wife that he had killed somebody but the police authorities had accused somebody else who is a wrong guy.

2.

An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: 1. 2.

The open and continuous possession of the status of a legitimate child; or Any other means allowed by the Rules of Court and Special Laws.

JD: what are the provisions of the ROC that is used to prove pedigree? We start with section 40.

The wrong guy can present the wife of x in court. Or if the one who killed told the brother of the wrong accused, because he asked for forgiveness, the brother can be presented in court. TAKE NOTE: that this is different from section 26 which is admission against interest, because in section 26, the declarant is alive but in section 38, the declarant is already dead, but he made a declaration against his own interest. The declaration against how own interest could be financial, penal, or proprietary.

SECTION 40. Family reputation or tradition regarding pedigree. – The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon shall also be a member of the family, either by consanguinity of affinity. JD: there was a case involving child abuse. Remember that in cases involving child abuse, the prosecution has to prove that the child is below 18 or if above 18 that he is unable to fully take care of himself. How can you prove the age?

Financial – possible that the dying declarant would say that he had incurred a debt

Through birth certificate

CASE: PEOPLE VS BERNAL 274 SCRA 197

The problem is that the victim is not registered.

SECTION 39 and SECTION 40 is about pedigree.

Through baptismal certificate

Q: what is pedigree?

But the victim was not yet baptized.

A: under section 39 ―the word pedigree includes relationship, family genealogy, birth, marriage, death and the dates when the places where these facts occurred and the names of the relatives. It embraces also facts of family history intimately connected with pedigree.

How else?

JD: this is about filiation like paternity.

The prosecution presented the mother of the victim who testified the birth date of the victim.

Q: how is pedigree prove? A: under the family code, proof of filiation is established by any of the following: (art. 172 of FC) 1.

The record of birth appearing in the civil register or a final judgment; or

School records, but the victim is unschooled. How will the prosecution prove the minority of the victim?

The defense counsel objected that the testimony of the mother is hearsay. Q: is the testimony of the mother admissible? A: yes under section 40.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D JD: if for example the victim has no more mother, and it was her older sibling or younger sibling would testify, is it admissible? A: yes, because the rules allowed members of the same family to testify as to pedigree. JD: the victim also may testify as to his date and place of birth. The testimony of the victim himself as to his birth date and place is admissible as evidence. Object evidence can also be presented to prove pedigree.

evidence. Monuments and inscriptions in public places may be received as evidence of common reputation. Example: I had once a neighbor whom I though they were married. They had already 7 children. A dispute arises when the father died. The wife was not included in the inheritance by the children. The mother now wants to prove that they were married but she was not able to present any proof or marriage certificate. If the wife wanted to prove that they were actually married, she can prove through common reputation and through to section 3 (aa) of rule 131 which provides: That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage.

Q: what are these objects? A: Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like may be received as evidence of pedigree. Examples: family pictures during wedding, obituaries in the news papers, gravestones or lapidas, wall decors are admissible as evidence to prove pedigree SECTION 39. – Act or declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy and the relationship between the two persons is shown by evidence against other than such act or declaration. In section 40 the relative testifying is still alive while in section 39 the one who declares the relationship is already dead but the person presented in court was the one who heard the deceased of such declaration. EXAMPLE:

The neighbors can be presented in court to prove marriage. The neighbors also may be presented in court to prove reputation especially in oral defamation cases. Example: An accused is arreseted in a house in Kamagayan. He is charged of visiting a drug den. As Kamagayan is not only know for prostitution but also for shabu. Q: Is it allowed to present evidence that Kamagayan is commonly known to be one of the areas where drug dens are located? A: yes due to common reputation. SECTION 42. Part of the res gestae. – Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of res gestae.

Y has a son named S X is the brother of Y Z is the friend of X

Section 40 is part of res gestae.

Y died. X told z that s is the son of his brother y. days later x also died.

A: res gestae means incident, transaction or things done, or unusual occurrence.

Q: what do you mean by res gestae?

Example: Z now told S that he is the son of y. If s wanted to prove his filiation with y, he can present z, even x who told z that he is the y‘s son is already dead. SECTION 41. Common Reputation. – Common reputation existing previous to the controversy, respecting facts of public or general interest more than 30 years old, or respecting marriage or moral character, may be given in

In a snatching incident, have you experience it or have you seen it? What happened? What was shouted by the victim? Usually help, tabang, ayay.. (haha )

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D That statement which is uttered during that unsual occurrence or startling occurrence is considered as part of res gestae. Example 2: Y was stabbed by x. y shouted that ―help I was stabbed by x.‖ that statement is already part of the stabbing incident. If on the other hand x uttered the words ―this is my revenge to you‖ That words uttered by x is already part of the stabbing incident. Part of res gestae, which is admissible in evidence with respect to the fact and circumstances, Take note that the accompanying statement could be uttered during the incident or immediately before is considered part of res gestae or subsequent to the incident. It is as if the incident is talking through the person who made the statement. The statement here could be made by: 1. Victim himself 2. Accused 3. Ordinary witness Section 42.Part of res gestae. — Statements made by a person while a starting occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. What are these statements? - They could be shouts or outcry When can you say it is part of the res gestae? 1. Immediately before the incident occurs; Example: Before the stabbing incident, the stabber says ―At last, we see each other‖. Or the victim says, ―No, no, no, no! Have mercy! My children are still small‖ and the stabber says, ―Mercy?‖ - The statements are part of the res gestae. 2. When made during the incident; 3. Subsequent thereto (more difficult than the previous two) Note: When is it still part of the incident? How many minutes, hours or days can it still be considered as part of the res gestae? Example: Robbery with Homicide. The victim was rushed to the hospital. The victim

told somebody that the accused stabbed her. She was able to make a statement at the hospital but it was made 4 hours after the incident. Can it be considered as part of the res gestae? Yes. Case: People vs. Berame, G.R. L-27606, July 30, 1976 Fact: The statement was made nine hours after the killing. Ruling: All that is required for the admissibility of a given statement as part of the res gestae, is that it be made under the influence of a startling event witnessed by the person who made the declaration before he had time to think and make up a story, or to concoct or contrive a falsehood, or to fabricate an account, and without any undue influence in obtaining it, aside from referring to the event in question or its immediate attending circumstances" Another example: You were snatched or stabbed, you ran to the Police and told them what happened. Your statement of the incident is considered as part of the res gestae. It is as if the incident is speaking through the declarant. But take note of this case: Case: People vs. Lobrigas, G.R. 147649, December 17, 2002 Brief Facts: On February 19, 1996, the victim asked his employer (Castor Guden) for permission not to work that day. On the same day, at around 4 P.M., he returned to his employer, with bruises and injuries on his face. He imputed the same on the accused. The following day, February 20, 1996, he went to his daughter’s (Rosa TaylaranSolarte) house and he told her about his bruises and injuries, and who did it. The next day, the victim died. Ruling: Declaration to Castor Guden is part of the res gestae: A declaration is deemed part of the res gestae and admissible in evidence as an exception to the hearsay rule when the following requisites concur: (1) the principal act, the res gestae, is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise; and (3) the statements must concern the occurrence in question and its immediately attending circumstances. All these requisites concur in the case at bar. The principal act, the mauling of the victim, was a startling

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D occurrence. The declarations were made shortly after the mauling incident while the victim was still under the exciting influence of the startling occurrence, without any prior opportunity to contrive a story implicating accusedappellant. The declaration concerns the circumstances surrounding the mauling of Felix Taylaran. Declaration to Rosa TaylaranSolarte is not part of the res gestae but is admissible as an independent relevant statement: However, the declaration made by the victim to his daughter does not satisfy the second requirement of spontaneity because they were made a day after the incident and the exciting influence of the startling occurrence was no longer present. Nevertheless, we hold that Rosa Solarte’s testimony on what her father told her constitutes independent relevant statements distinct from hearsay, and are thus admissible not as to the veracity thereof, but as proof of the fact that they had been uttered. Under the doctrine of independently relevant statements, only the fact that such statements were made is relevant, and the truth or falsity thereof is immaterial. The hearsay rule does not apply, hence, the statements are admissible as evidence. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact. Example: The victim was stabbed. He was able to supply the Police with the name of the perpetrator. Hours later, the victim died. What is the classification of the statement? Answer: It is both a Dying Declaration and it is also part of the res gestae. This is what you call multiple admissibility of evidence. A piece of evidence, such as testimonial evidence, could be admitted in evidence for two or more purposes. If the victim does not die here, it is only part of the res gestae. There are two kinds of res gestaeunder Section 42: 1. Spontaneous statements, outcry, shouts or statements; - To be considered as such, the statement must be spontaneous. The victim must have no chance to contrive or make-up his stories. Spontaneous in a sense that it must be done as a result of your reflexes.

-Note that the res gestaehere is the startling occurrence. The statements made immediately before or after, or during such is part of the res gestae. 2. Statement accompanying an equivocal act. (Verbal Acts) - There is an act, but it is equivocal or vague. To give meaning to such, the statements accompanying it could be admitted in evidence to prove what the act is all about. Example: (Judge give Colleen a one thousand peso bill). What is the act? Is it for support pendente lite? Or payment for goods? A loan? It‘s equivocal because it can mean a lot of things. So if I gave her money with the following statement, ―Here is my payment for the money I borrowed last Christmas‖ the statement accompanying an equivocal act can be admitted in evidence. It is considered as part of the res gestae. The res gestaeis the equivocal act. Illustration: For Support. Husband gives money but eventually stops. He also does not recognize the child as his own. A case was filed against him. The husband says, ―That‘s not my child!‖ and the wife replies, ―If he is not your child, why did you give support?‖ The husband asks, ―How do you know it‘s for support? The wife says, ―While you were giving me the money, you told me ‗Here is money for buying milk.‘‖ The statement ―Here is money for buying milk‖ can be admitted in evidence as part of the equivocal act of giving money. Distinguish Dying Declaration from part of the res gestae. (Memorize at least three. These are some.) Res gestae in connection with a homicidal act may be distinguished from dying declaration in that: 1. A dying declaration can be made only by the victim, while a statement as part of the res gestae may be that of the killer himself after or during the killing (People vs Reyes, 82 Phil 563) or that of a third person. 2. Dying declarations are made only after the homicidal attack has been committed; but in res gestae, the statement may precede, accompany or be made after the homicidal act was committed. 3. The trustworthiness of a dying declaration is based upon its being given under an awareness of

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D impending death, while the rule of res gestae has its justification in the spontaneity of the statement. Consequently, while the statements of the victim may not qualify as a dying declaration because it was not made under the consciousness of impending death, it may still be admissible as part of the res gestae if it was made immediately after the incident. However, were the elements of both are present, the statement may be admitted both as a dying declaration and as part of the res gestae. What are the reasons for admitting: Dying Declarations – (1) Necessity and (2) Trustworthiness – because the statements were made under the consciousness of an impending death. Res Gestae- trustworthy because it is based on the spontaneity of the statement. It was made during a startling occurrence, while the victim was still shocked by the event. Section 43.Entries in the course of business. — Entries made at, or near the time of transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. The evidence presented here are the entries made in the regular course of business. - ―Business‖ refers to any occupation. It could be made by a doctor, teacher, nurse, guard or any occupation, and the entries made are part of their business. Note: There is no law requiring them to do so. They just made the entries as part of their business. - The person who made the entries is deceased or unable to testify. The entry is presented as evidence. Remember: The Hearsay Rule also applied to documentary evidence, which requires that the person identify it. In this case, the person can no longer be cross-examined, and as a general rule, should be considered hearsay. But under Section 43, this is an exception. Example: The guard‘s logbook. A husband files a case for Adultery against his wife. The wife went to a motel with her concubine. The husband presents the guard‘s logbook as proof to show that the guard saw the wife go in with her concubine. In that logbook is the plate number of the car driven by the wife. During the trial, when the entry was to be presented, the

guard is already dead or his whereabouts are unknown. Is the logbook entry admissible? Yes. It is an exception to the hearsay rule. Note: For the entry to be admissible, it must be made regularly. If, for example, the guard doesn‘t regularly makes logs in his logbook, and he makes an entry only for a specific incident, it is not considered as made ―in the regular course of business‖. Other examples: - Doctors have a day book. In the case of a surgeon, he writes down what kinds of procedure is being conducted. - Nurses also have a patient‘s chart which lists what kind of medicine they gave the patient. Here, if the patient suffers from an overdose, you can present the patient‘s chart. Note: It is important that the person who made the entry is dead or unable to testify. If he is alive and can still testify, he must testify. If you present the entry alone, it is not covered by the exception to the hearsay rule. It can only be used as part of his testimony. Remember: You first determine if it was part of the regular course of business to make a record, and if the record was kept in the ordinary course of business. Example: A student was charged with theft. According to the class records, he was present on the day of the theft. Suppose the teacher in this case is already dead or unable to testify. Can the class records be used to prove that the student was present in class on the day of the theft? Yes, provided it was done in the regular course of business. But if the teacher does not regularly check the student‘s attendance, No. Case: PAL vs. Ramos, 207 SCRA 461 Ruling: The plane tickets of the private respondents, exhs. "1," "2," "3," "4," (with emphasis on the printed condition of the contract of carriage regarding check-in time as well as on the notation "late 4:02" stamped on the flight coupon by the check-in clerk immediately upon the check-in of private respondents) and the passenger Manifest of Flight PR 264, exh. "5," (which showed the non-accommodation of Capati and Go and the private respondents)are entries made in the regular course of business which the private respondents failed to overcome with substantial and convincing evidence other than their testimonies. Consequently, they carry more weight and credence. A writing or document made contemporaneously with a transaction in which are evidenced facts pertinent to an issue, when admitted as proof of those facts, is ordinarily regarded as more reliable proof and of greater probative

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D force than the oral testimony of a witness as to such facts based upon memory and recollection (20 Am Jur S 1179, 1029 cited in Francisco, Revised Rules of Court in the Philippines Annotated, 1973 Edition, Volume VII, Part II, p. 654). Spoken words could be notoriously unreliable as against a written document that speaks a uniform language (Spouses Vicente and Salome de Leon v. CA., et al., G.R. No. 95511, January 30, 1992). Section 44.Entries in official records. — Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. What is the difference between Section 43 and Section 44? - In section 43, there is no law requiring for the entry to be made. The entry is just made in the regular course of business. - In section 44, there are two kinds. - First, public officers. All entries made by public officers in the course of the performance of their duties are considered official records. - Second, entries made by private persons in compliance with the mandate of existing law. Example is a passenger manifest. Current laws require that it be made. Section 44. Entries in official records. — Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. Record of marriages made by the priest, that is required by law. The priests are required by law to make a record of marriages they solemnized. The entries in the record of marriages are considered entries in official records. Q: What are the example of entries prepared by public officers?

Q: What is the evidentiary value of entries in official records? A: They are Prima Facie evidence of the facts stated therein. In other words, they are presumed to be true. But take note, the presumption is only prima facie, meaning, they are rebuttable. Q: What is the evidentiary value of Police Blotter? A: SC: they are prima facie evidence of the facts stated therein. (Judge: What does it mean?) Being prima facie, if they remain uncontroverted, then, they are sufficient to establish a fact. But if rebutted, the presumption is done away. -So according to the Supreme Court in another case, the entry in the police blotter is not necessarily entitled to full credit for it could be incomplete and inaccurate, sometime from either partial suggestions or for want of suggestions or inquiries. Judge: Meaning the entries in the police blotter could be explained further, could be rebutted during the trial. Q: What are the basis of its admission? A: They are: (1) Necessity- to avoid inconvenience or difficulty in requiring attendance or disruption in the government function (2) Trustworthiness- presumption of regularity in the performance of official duty. Q: What is the name of the records made by the public officers in the course of the performance of their duties? A: Official Records. Q: Is the term ―official records‖ exclusive only to those records or entries made by public officers? A: No, there are also official records that are prepared by private persons when they are specifically enjoined by law, such as Passenger manifest of an aircraft or passenger aircraft or vessel.

A: Police Blotter Blotter is the log book. The entries in the police blotter made by the police (usually the desk officer) are entries made in the course of performance of their duties and so the entries in the police blotter are considered entries in official records. Q: What is the difference between Section 43 and 44? A: Under Section 43, there is a need that the one who made the entry/entries must already be dead; while in Section 44, it is not necessary that he must be dead, anybody can testify on the entry. (Is this hearsay? He is not the one who made the entry. No. Exception to the Hearsay Rule).

Section 45. Commercial lists and the like. — Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein. - Another exception to the Hearsay Rule is Commercial lists and the like. - For example, telephone directories.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D - For example, there is a case, wherein the defendant filed a motion to dismiss on the ground of improper venue arguing that the main office/ principal office of the plaintiff is not located in Cebu City but located in Lapu-Lapu City and the case was filed in Cebu City. To prove such fact, the defendant presented a telephone directory wherein it was listed that the principal office located in lapu-Lapu City and not in Cebu City. Q: What if the person who made the entries in the telephone directory is already dead or cannot be presented in court? Are they (entries) admissible?

Section 47. Testimony or deposition at a former proceeding. — The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. - Deposition- is a testimony made outside the court. - ―unable to testify”: he may be still alive but could not make it anymore to court because he is, for example, seriously ill or he is abroad and his whereabouts were unknown or could not anymore located.

A: Yes. Because they are commercial lists. -It is not necessary the one who made the entry is already dead as long as such entry is considered a commercial list. It is the same with official records. We have learned in official records that the entry/entries can be presented in the court even if the one making those entries are not presented in court because they are exception to the Hearsay Rule. -Another example of Commercial List is Business Section of a Newspaper showing the currency rate of exchange. - For example, there is a contract and it was based on the exchange rate of the dollar on that date. The case was filed. In order to prove the exchange rate on that date it was presented the exchange rate listed in the commercial section 9classified ads) in the newspaper. -Judge: Are they admissible? Yes, they are admissible.

- For example, the witness is just there but refused to testify--This will not fall under the term ―unable to testify” he should be compelled to testify. How? By sending subpoena. If he refuse subpoena, as a consequence, he can be cited for contempt and he can be arrested.

Section 46. Learned treatises. — A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. -The writings in the field of history, law, science and art are admissible if the same are made or written by expert and if the court takes judicial notice that they are expert. -if their (those experts) writings are presented to prove any matter in court. If the court takes judicial notice that they are expert in that field. For example, Bernas in the Constitution. Who can question the expertise of Bernas in the field of Constitution? - Even if you are known as an expert, or even if the court does not recognized the writer as an expert, provided that there is an expert who can vouch the expertise of that writer. For example, the court will just take judicial notice that Bernas is indeed an expert in Constitutional Law. Supposed, here an author which the court does not recognize to be an expert; but Bernas could vouch that he (the author) is also an expert in Constitutional law. So the Court may admit the writings of such author because there is an expert who can vouch that indeed he is an expert.

ILLUSTRATION: W is a witness to a killing done by a police, PO1 P. The latter killed a civilian (tokhang). An administrative case was filed against P on the ground of grave misconduct. Aside from the administrative case, a criminal case for murder was filed against P and the witness in the two cases is the same--W. The administrative case was filed first in the NAPOLCOM, W was able to testify there and he was crossed-examined by the counsel of P. On the other hand, in the criminal case for murder, P was arraigned, pre-trial and trial, and during the trial, the prosecution tried to present Mr. W again. Mr. W testify the same occurrence he witnessed during the killing (the same testimony in the administrative case) The problem is, W is already dead. - The Rules provided for the solution to the above problem. Section 47 of Rule 130 of the Rules of Court. It says the testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. - The phrase “who had the opportunity to cross-examine him” is important because the adverse party has not given the opportunity to cross-examine, that provision (Section 47) will not apply. Take note opportunity to cross-examine; if P was given the opportunity to cross examine; but he did not conduct cross-examination, that could not matter. As long he has been given the opportunity to cross-examine. -What will happen now? What will the prosecution should do? The public prosecutor can ask that the testimony of W given in the administrative case will be reproduced in the criminal case for murder. It is done through the presentation of the transcript of stenographic notes (TSN) in the criminal case. TSN is an official record because it is prepared by the stenographer who is a public officer. So it is not necessary that

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D the stenographer should be the one who will present it in court; but the stenographer may also be the one who will go to court and identify the TSN. So, the testimony of W in the administrative case could be used as evidence by the prosecution in the criminal case, as far as the testimony of W is concerned. -What if W is still alive? Is it allowed that W will not testify in the court? It can be as long as P will agree that the statements given by W will be the same as with the NAPOLCOM. But if P objected, W should be presented in court to testify. TAKE NOTE: The same parties and the adverse party has the opportunity to cross-examine. REMEMBER that during preliminary investigation, the respondents or the parties do not have the right to crossexamine any witness presented during the preliminary investigation at the prosecutor‘s office. Classmate’s Q: Regarding testimony and deposition, for example, in the previous case, there was an opportunity to cross-examine but the testimony was not formally offered. Is this can still be used in the subsequent case? Judge’s A: There was a waiver on the part the adverse party to object on the absence of offer. You know, regarding testimonial evidence, offer is made before the witness starts his testimony. Meaning, before the witness will testify, the counsel offering/presenting his testimony will have to state for the record what is the purpose of presenting him. The counsel would say: ―Your Honor, the witness is presented to prove the following facts:…That sometime on etc etc.‖ So, supposed that the counsel failed or forgot to make an offer, he just go directly or just let the witness testify without making any offer, then after the witness completed his direct testimony; so then, it is waived! Opinion Rule Section 48.General rule. — The opinion of witness is not admissible, except as indicated in the following sections. What are admissible in court are facts. - As a rule, opinion of a witness is not admissible Facts Acts such as stabbing, running, or shouting Ex. The driver was driving on the wrong side of the road or at a high speed. Ex. There were packs of white crystalline substance recovered from the house of the accused Admissible

Opinion Thoughts about the facts Ex. The driver was driving recklessly

Ex. There were packs of shabu recovered from the house of the accused.

Only the court is allowed to make an opinion - It is a conclusion of facts GR: Opinion of a witness is not admissible - An inference or conclusion drawn from facts - An informal expression of what the witness believes Except: 1. Opinion of expert witness (Sec. 49) - Only admissible when there is a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence - Before an expert is allowed to testify, there must be a matter that is to be proved that requires an expert opinion o If there is none then there is no basis for requiring an opinion from an expert. Ex. Cause of Death - A cadaver in decomposing state is found and the accused is charged with murder o Was the dead person killed or was there suicide? - If it was a woman and there was rape. o Was she raped then killed or killed then raped? - These matters require an expert witness Even if there is a matter that requires an expert witness, the witness to be presented must be qualified as an expert before he is presented. A. Rape cases - forensic pathologist - Special training and experience - Cannot just be a doctor who just passed the board exam - Must be a doctor who undergone several special training and experience - He must have conducted seminars, made books andhandled a number of cases testified - Must prove to the court that the witness is indeed qualified before he can testify. B. Shabu identification - forensic chemist - Undergone special training - Course acquired, seminars, work experience - if the adverse party admits that the witness is an expert then there is no need for the party presenting the witness to qualify the expert witness. The testimony will be taken right away. The testimony of the expert is only up to the subject matter. His testimony is only limited and does not include the facts of the case or that the accused indeed had possessed the contraband for he has no personal knowledge of the actual case.

Not admissible

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D - Only a criminal case requires an in court identification. There is no in court identification in civil cases. Instances where even an ordinary witness can give his opinion: a. Identity of a person about whom he has adequate knowledge o Voice, odor and smell is sufficient, provided he has adequate knowledge b.

A handwriting with which he has sufficient familiarity with the handwriting in question. o An ordinary witness can identify the handwriting if he has sufficient knowledge o In cases where the witness is a child of the writer or a secretary

c.

The mental sanity of a person with whom he is sufficiently acquainted o Even an ordinary witness can testify the sanity of a witness. It does not necessarily need to be an expert.

There was one case where there was rape and the victim was mentally retarded. The prosecution did not present a psychiatrist but merely presented the mother of the victim who testified regarding the mental condition of the daughter. - The testimony of the mother was sufficient to prove the mental capacity of the daughter. d.

The witness may also testify on his impressions on the A. Emotions - sad, happy, angry - when the accused told the private complainant that he is a thief, what was the reaction of the private complainant? o that is asking for an opinion o ―nasuko! Hilabihanglagotaunyanamula kay nauwaw‖ – admissible even if it is an opinion o behavior - was the accused calm, was the private complainantscared B. Condition or appearance - when you apprehended the driver of the vehicle was he sober? Other matters requiring an expert witness: - Firearm identification - ballistician o Every firearm has its own special grove similar to a fingerprint. - Fingerprint identification - Paternity What is the weight of the expert opinion on the court?Is the

court obliged to accept the opinion of the witness? - The courts are not bound by the conclusions of the expert - The courts may accept or deny the opinion of the expert Paraffin Test - are not used in the court - it is unreliable - it is only used in the investigation - positive results in nitrates: o firearm o fertilizer o cigarette o cosmetics o urine - usefulness in this test is very small although it has investigative value Character Evidence Section 51.Character evidence not generally admissible; exceptions: — (a) In Criminal Cases: (1) The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. (2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged. (3) The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. (b) In Civil Cases: Evidence of the moral character of a party in civil case is admissible only when pertinent to the issue of character involved in the case. (c) In the case provided for in Rule 132, Section 14. GR: Character evidence is not admissible Except: A. Criminal cases - relevant to the moral trait of the evidence charged o Murder  presenting evidence as to his honesty cannot be admitted because it is not relevant to the moral trait involved  but presenting evidence that he is god-fearing, law-abiding, and religious can be admitted. o Theft

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D 

Evidence as to being honest can be admitted.

- Prosecution o The prosecution cannot present evidence against the moral trait of the accused during its presentation of evidence in chief. o Only during rebuttal can the prosecution present such evidence if the accused presented evidence to his good moral character. If the accused did not then the prosecution cannot do so. Weight of evidence of good moral character: - Theft, malversation and Estafa o Presentation of evidence of the accused being honest and religious is not sufficient to acquit him. A case for robbery with rape - Defense – ―It is impossible for him to have committed a crime because he is a person of good moral character holding the position of ministerial servant in the congregation ofJehova‘s Witnesses, a godly man, a righteous family person, a responsible family man, and a good Chirstian who preaches the word of God.‖ - The Supreme Court – ―The fact the accused has sterling qualities hardly justifies the conclusion that he is innocent. Religiosity is not always an emblem of conduct and it is not the unreligious alone who succumbs to the impulse to rob and rape.‖ o

People vs. Diopita 436 SCRA 794

Evidence of good character on the part of the offended party can be presented. What is watched out for is only on the part of the accused. B. Civil cases: - Either party can present evidence of good moral character. C. Ordinary witness: - Evidence against the good moral character may be presented but is reversed as that of the accused. o For the accused the first presented is the good moral character then the bad o For the witness there must be bad character evidence presented first before the good moral character evidence. January 9, 2017 Rule 131 Burden of proof

Burden of Proof Onus Probandi The duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. Claim = plaintiff Defense = defendant

Burden of Evidence Factum Probandum The facts that the to be proved.

Factum Probandum If there is a person who has a debt and did not pay the debt upon demand and the due date has lapsed. A case is filed against the debtor and in the complaint; there are facts that are stated for the cause of action. o Sometime on (date), the defendant obtained a loan in the amount of (amount) payable on (date). That despite of the period given and demands, the defendant failed to pay. o Is the statement of facts enough? NO Why? Bec. what you stated in your complaint are mere allegations. That is what you call factum probandum. You still have to prove it. So during the trial, if you will not come into an agreement during the pre-trial, the defendant will now file his answer either he will admit or deny that he loaned money or admit that he loaned money but that it was already paid. There is no problem if he admits; there could be now judgment on the pleadings. Problem is if he denies the loan. Bec.if the defendant will deny then the plaintiff will now have to present evidence to prove his allegations. Bec.if he will not present evidence, if he will not present for example a witness or he does not testify or if does not present any promissory note or the demand letter, the case will be dismissed. Bec. he failed to prove his allegations or his complaint. So, those allegations in the complaint are called factum probandum. These are the facts that are to be proved. Now, those evidences presented during the trial, the testimony, presenting the witness, the demand letter, and those facts which support (evidence means facts bec. laws need not be proved) or are presented during the trial presented by the parties are called factum probans. Bec. cases decided by the court must be based on facts and law. So, where should the court get all those facts? From the evidence presented by the parties, those presented during the trial. Those are called factum probans, these are evidentiary facts. To establish the factum probandum. On the part of the defendant his allegations in his answer is also factum probandum. All his evidences during trial are also

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D called factum probans. So, if he alleged that he has already paid his loan, ―tinuodnkakuhakougnka-utangkoniya pro ako nan a nabyran, fully paid.‖ The allegation in his answer that he has fully paid, does it mean that he already won the case? That the case should now be dismissed? NO. Bec.these are just allegations. The defendant has to present evidence during the trial to support his defense. So, he has to present receipts, or present a witness. If he himself paid for it, then he must testify. He should testify during the hearing and that is what you call factum probans. Who has the burden of proof? In CRIMINAL cases; it is always the prosecution that has the burden of proof regardless of the defense the accused may raise. o In criminal cases the usual defenses are denial and alibi. You are charged with theft, your usual defense would be denial. Or alibi. ― Oy wa jud ko dha pag kahitabo. Didto ko sa Manila.‖ When an accused raise the defense of alibi (TN: Alibi – meaning the accused was not at the place where the crime was committed, he was in another place away from where the crime was committed.) or when charged with crimes against person there are justifying and exempting circumstances. Whatever it is the defense of the accused, it is always the prosecution that has the burden of proof. So, the prosecution has to present evidence to prove that the accused is guilty beyond reasonable doubt of the crime charged. What is the rationale behind? Because the accused is presumed innocent whatever his defense. Either the defense is denial or alibi. He‘s always presumed innocent. That is why the prosecution has the burden of proof bec. of the presumption. So, it is wrong to say that you will prove that the accused is innocent. The accused is not required to present evidence to prove his innocence because that is presumed. When is the accused required to present evidence? Only when the prosecution has presented its evidence that would erase the presumption or rebuts the presumption. o If the prosecution has not yet presented any evidence to prove the guilt of the accused, the accused is not required to present any evidence. To prove his innocence, bec. that is presumed. In CIVIL cases; Who has the burden of proof? Now in civil cases it depends upon the pleadings.

-

If the defendant would raise an affirmative defense.

For example:  In a sum of money if the defendant would raise prescription. If the defendant would raise payment, that is in a way admitting that he has obtained the loan and is a way of admitting his debt. If the defendant would raise affirmative defense then the burden of proof is on the defendant. He has to present evidence to prove his affirmative defensebut if the defendant would simply deny the complaint. But if the defendant would say, ―dili na tinuod na nangutang ko.‖, then the burden of proof is with the plaintiff. So it depends upon the pleadings. -

In ADMINISTRATIVE cases; Like LABOR. o In the administrative cases the burden of proof is always on the complainant. It is always on the complainant. How does burden of proofvsburden of evidence? For example: Burden of proof once it is fixed, if for example after filing the answer of the defendant the defendant raised affirmative defense. So who has the burden of proof? The defendant.Now once it is fixed it remains with that party until the end of the proceedings that is burden of proof. Burden of proof remains with the party until the end of the proceedings while burden of evidence transfers from one party to another depending upon the development during the trial. Burden of evidence - that refers to the presentation of evidence. For example: In criminal cases, who has the burden of proof? PROSECUTION. The party who has the burden of proof is usually the party who would first present their evidence. So after the prosecution presents their evidence, then the presentation of evidence would transfer to the defense. Burden of evidence would now be with the defense. After the defense presented their evidence, the presentation of evidence will now transfer to the prosecution. The burden of evidence now transfers to the prosecution. The prosecution will now present rebuttal evidence. After presenting rebuttal evidence the burden of evidence now transfers to the defense. The defense may present sur-rebuttal evidence. Now as a rule a party need not prove a negative allegation. JD: Can you still remember our discussion on Violation of PD 1866, there is a NEGATIVE ELEMENT.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D What is the negative element? That the accused does not have any license! What about in drug cases such as in possession of dangerous drugs or selling dangerous drugs. Negative element: That the accused does not have authority to sell or authority to possess dangerous drugs not authorized by law to possess. JD: dangerous drugs can be sold or bought provided you have doctor‘s prescription. It can be used as pain reliever. The drugstore/ pharmacy and the buyer must be authorized by law. Drugstores must be authorized to sell nubane and the buyer must have a prescription from the doctor, the doctor who prescribes the drugs should likewise be authorized. (not all doctors may prescribe, they should be authorized by the Dangerous drugs board) If you buys such drugs without the required prescription then you could be arrested. So that is a negative element that you are not authorized by law. Take note: The negative element under RA 9165 need not be proved by the prosecution. If the accused is licensed by the appropriate government agency then he has the burden of evidence. It is incumbent upon him to present that license or permit in court. However, if an accused is prosecuted for Violation of PD 1866. For possession of an unlicensed firearm or ammunitions the prosecution must present a certification from the PNP or from the firearms and explosives unit that the accused is not licensed to possess firearm. Failure on the part of the prosecution to prove that negative element, the case shall be dismissed. So there are instances that the negative element has to be proved and there are also instances that the negative element need not be proved. Now there are facts, evidence means facts; there are facts that need not be proved. The presentation of evidence is required when there are factual issues in a case. If there is no factual issue in a case, there is no need to present evidence the case can be submitted for decision based on the pleadings. JD: BTW, in the earlier discussion the example on factum probandum is in civil cases. What if criminal cases? Where can we find factum probandum, the facts that has to be proved? In the INFORMATION. Criminal complaints are more or less the same with the information. Those allegations in the information, or in the criminal complaint those are factual allegations. The information contains the elements of the crime. For example:  You are charged with murder, the elements of the crime are in the information. or theft, the elements of the theft is contained in the body of a criminal

complaint. If the elements of the crime charged does not appear in the criminal complaint, then the case should be dismissed. On what ground? That the facts charged do not constitute an offense. [FACTUM PROBANDUM – the allegations in the information or criminal complaint. FACTUM PROBANS - those are the testimonies, documentary evidence and object evidence presented during the trial. ] Now what are the facts that need not be proved? 1. Facts which are presumed. 2. Facts which are of judicial notice. - facts which are already admitted by the court. 3. Facts which are judicially admitted. What would happen if the defendant admits in his answer all the material allegations in the complaint? Would there still be presentation of evidence? NO NEED. Why? Because facts which are judicially admitted do not require presentation of evidence. TN: Facts which are judicially admitted. Bec. Those which are extra judicially admitted still requires the presentation of evidence. Kinds of Presumptions: 1.

Conclusive Presumptions controverted/rebutted

–

cannot

be

Section 2.Conclusive presumptions. — The following are instances of conclusive presumptions: (a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led to another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it: Ex: In the Corporation Code and Civil Procedure: when a group of persons represent themselves to be duly incorporated and transacted with a person and in case there will be an action which arises, that group of persons is not allowed to deny that they are not duly incorporated. They can be sued as a corporation. They are estopped. They are presumed to be a corporation and that is conclusive – This is ESTOPPEL IN PAIS. Case: Law professors had a party in a restaurant which had a signage stating ―We accept credit cards.‖ One professor got the bill and presented his credit card. His card was not honored, though it did not expire yet. He filed a case. The

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D restaurant in its defense said that creditors are not obliged to receive credit. The SC said that the restaurant was estopped because of the signage saying ―We accept credit cards.‖ (Mandarin Villa Inc vs CA 257 SCRA 538) (b) The tenant is not permitted to deny the title of his landlord at the time of commencement of the relation of landlord and tenant between them. - even if the ―landlord‖ was not the real owner, as far as the tenant is concerned, he is the owner. This presumption is conclusive. Contrary evidence cannot be admitted. 2.

Rebuttable or Prima Facie Presumptions - deemed conclusive if not controverted Recall in Demurrer to Evidence: When the prosecution‘s evidence is considered prima facie evidence, the demurrer to evidence filed by the defense shall be denied. But if it does not constitute prima facie evidence, the demurrer to evidence shall be granted and the case shall be dismissed.

Section 3. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: (a) That a person is innocent of crime or wrong; - If the prosecution can present strong evidence proving the guilt of the accused, this can be rebutted.

Q: Prosecution was not able to present a witness because he was ill or has become insane. Can there be a presumption that if she will be presented, her testimony will be adverse? A: No. because the suppression is NOT WILLFUL/DELIBERATE. In order for this presumption to exist, the evidence must be MATERIAL and AVAILABLE ONLY TO THAT PARTY who suppressed the evidence. Q: The testimony of a witness is merely corroborative, can there be a presumption that if the testimony of the witness shall be adverse? A: No. since it is not available only to that party. Other people may have access because it is merely corroborative. Ex: In a buy-bust operation, if the testimony of a poseurbuyer is merely corroborative because the arresting officers were able to see the entire transaction, the non presentation of the poseur-buyer cannot be considered adverse to the prosecution if presented. But if the arresting officers were not able to witness the entire incident and only the poseur-buyer could narrate the entire transaction. But the prosecution fails to present him arguing that they would not present him for security reasons, then that testimony of that poseur-buyer is MATERIAL. Considering that the prosecution is the only one that has access to the witness, then the nonpresentation of the testimony is presumed to be adverse to the prosecution if presented.

Remember in the RPC: if a demand to produce money is served upon an accused who is a public officer and despite demands, fails to produce the money – there is PRESUMPTION OF MALVERSATION.  This provision has been challenged to be unconstitutional because it established a presumption of guilt. But the SC said that the legislature can enact laws providing presumption of guilt/ prima facie evidence of guilt, provided there be rational connection between the facts proved and the ultimate facts presumed. (Bacasnot vs Sandiganbayan 11/5/1987; Pp vs Mengua 92 Phil 856)there is no violation becausethe accused could still present evidence to erase that presumption of guilt.

(i) That prior rents or instalments had been paid when a receipt for the later one is produced;

(b) That an unlawful act was done with an unlawful intent; (c) That a person intends the ordinary consequences of his voluntary act; (d) That a person takes ordinary care of his concerns; (e) That evidence willfully suppressed would be adverse if produced;

(k) That a person in possession of an order on himself for the payment of the money, or the delivery of anything, has paid the money or delivered the thing accordingly;

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(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possess, or exercises acts of ownership over, are owned by him; For Example: Your laptop or your book you are now using, that is presumed lawfully yours. But if that watch you are using was unlawfully taken by your friend, you are presumed to be the author of the thievery/robbery.

(l) That a person acting in a public office was regularly appointed or elected to it;

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D (m) That official duty has been regularly performed; This is usually the defense of the policeman because those who are working in the government are presumed to have performed their duties regularly except when there are clear lapses. For Example: In Section 21 of RA No. 9165, there must be inventory, taking of pictures, markings, if these requirements are not complied with by the police officers, their defense that they are presumed to have performed their duties regularly will not prevail over the presumption of innocence of the accused. There are a lot of cases for that. (n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; (o) That all the matters within an issue raised in a case were laid before the court and passed upon by it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them; (p) That private transactions have been fair and regular; (q) That the ordinary course of business has been followed; (r) That there was a sufficient consideration for a contract; (s) That a negotiable instrument was given or indorsed for a sufficient consideration; (t) That an endorsement of negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated; (u) That a writing is truly dated; (v) That a letter duly directed and mailed was received in the regular course of the mail; (w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes, except for those of succession. The absentee shall not be considered dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. The following shall be considered dead for all purposes including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aircraft with is missing, who has not been heard of for four years since the loss of the vessel or aircraft;

(2) A member of the armed forces who has taken part in armed hostilities, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and whose existence has not been known for four years; (4) If a married person has been absent for four consecutive years, the spouse present may contract a subsequent marriage if he or she has well-founded belief that the absent spouse is already death. In case of disappearance, where there is a danger of death the circumstances hereinabove provided, an absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage. However, in any case, before marrying again, the spouse present must institute a summary proceedings as provided in the Family Code and in the rules for declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact; (y) That things have happened according to the ordinary course of nature and ordinary nature habits of life; (z) That persons acting as copartners have entered into a contract of copartneship; (aa) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; We have discussed before that when a man and a woman are living together, they are presumed to be married. For Example: When there is a person filing adultery for that couple, he should present evidence of marriage contract. If he cannot present a marriage contract, they will be acquitted because they are presumed to have legally married. (bb) That property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under void marriage, has been obtained by their joint efforts, work or industry. (cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each other

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D and who have acquire properly through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal. (dd) That if the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: (1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (ee) That a thing once proved to exist continues as long as is usual with things of the nature; (ff) That the law has been obeyed; (gg) That a printed or published book, purporting to be printed or published by public authority, was so printed or published; (hh) That a printed or published book, purporting contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases; (ii) That a trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest; (jj) That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and the age of the sexes, according to the following rules: 1. If both were under the age of fifteen years, the older is deemed to have survived; 2. If both were above the age sixty, the younger is deemed to have survived; 3. If one is under fifteen and the other above sixty, the former is deemed to have survived; 4. If both be over fifteen and under sixty, and the sex be different, the male is

deemed to have survived, if the sex be the same, the older; 5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived. (kk) That if there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall be considered to have died at the same time [Judge D: The rest are just a matter of reading] ---oOo--―Doctrine of Res Ipsa Loquitor‖ [Judge D: Number 1 question in 2017 Bar: Explain the doctrine of res ipsa loquitur?] In Africa v Caltex, ―where the thing which caused injury without fault of the injured person, is under the exclusive control of the defendant and the injury is such as in the ordinary cause of things does not occur if he having such control use proper care, it affords or gives reasonable evidence, in the absence of explanation that the injury arose from the defendants want of care‖. In short, there will be presumption of negligence on the part of the person who is in control of a thing that caused injury to another person. If the person injured is not negligent then the presumption is the person who is in control of the thing that caused injury was negligent provided there is no direct evidence that can prove who is at fault. Direct evidence refers to eye witness. TN! When a lawyer erroneously filed an action for certiorari, he can be subjected for disciplinary action based on this doctrine. This is also used in disbarment cases. RULE 129 What Need Not Be Proved There are 2 kinds of judicial notice: 1. Judicial notice which are mandatory 2.Judicial notice which are discretionary Judicial notice is a cognizance of certain facts which judges may properly take and act on without proof because they are already noted. When facts are of judicial notice, the judge is presumed to have known them. There is no need for you to present evidence because the court is presumed to know. The purposes are for

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D convenience and expediency because presenting evidence will take time and efforts. TN! Judicial notice is different from knowledge of the judge.

demonstration, or ought to be known to judges because of their judicial functions. For Example: The existence of habal-habal. Can the court take judicial notice of it? Yes, that is a matter of public knowledge.

the personal

For Example: In a court there is a pending criminal case and the accused happens to be a neighbor of a judge and the accused died. Can the court take judicial notice and dismiss the case considering that the judge knew that the accused is already dead, he being his neighbor? NO. Judicial notice is different from personal knowledge of a judge. The judge may have personal knowledge of certain facts but the court cannot take judicial notice of it. Also, the judge may not have personal knowledge of certain facts but the law requires the court to take judicial notice. SEC. 1 Judicial notice, when mandatory A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. For Example: The judge has never been in Ilocos. Can the court take judicial notice that Ilocos is in Region 1? Yes. Judicial knowledge is different from the personal knowledge of the judge. Remember: The law of nations is different from foreign law. A foreign law has to be established or proved. For Example: Certain persons were given amnesty. Is there a need to present evidence that they were given amnesty? No, the court can take judicial notice. Do you need proof of the decisions of the Supreme Court? NO, the court can take judicial notice. SEC. 2 Judicial notice, when discretionary A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable

Case: The police claimed they conducted buy bust operation in squatters area where is crowded. The accused said, it is hard to believe that he will be selling illegal drugs in places where there a lot of people. SC Ruling: The court could take judicial notice that prohibited drugs are sometime sold like any other ordinary commodity. Case: Rape case. The rape incident occurred while the other members of the family where asleep. The accused said, that is impossible to happen. SC Ruling: A rapist is not a respecter of time and place Sec. 3.Judicial notice, when hearing necessary.During the trial, the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon. After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case. When can the court take judicial notice? During the trial or after trial before judgment or even on appeal. What is the purpose of the hearing? To let the parties comment whether or not it is proper for the court to take judicial notice on certain parts. The court can take judicial notice of the laws So, it is not required to present evidence regarding the existence of certain laws. If the court is not aware of the law, the court will not require the parties to present evidence. Rather, the court will require the parties to submit Memorandum. Can the court take judicial notice on certain ordinance? Regarding MTC, it can take judicial notice of ordinances of the municipality where it is located.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D Ex. MTCC in Cebu City can take judicial notice on certain ordinance of Cebu City. Can the court take judicial notice of its own record? Yes, but not in another case even if pending in the same court. Can the court take judicial notice of a foreign law? Take note of that ―doctrine of processual presumption‖. The foreign law must be pleaded (or alleged) and proved as a fact. If the foreign law is not properly pleaded and proved, our courts presume that the foreign law is the same as our domestic law. Case: Del Socorro vs Van Wilsem, 744 SCRA 516 Sec. 4.Judicial Admissions.An admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. What is a judicial admission? This refers to an admission in court in the same case. If the admission is made in another case, that admission in another case cannot be considered a judicial admission as regards the other case. Ex. Criminal Case: Mr. P admitted to have killed Mr. X, invoking self-defense and lawful performance of duties. (Admission) Civil Case: Pending in the same court So far as the criminal case is concerned, the admission of Mr. P is considered a judicial admission. If the admission is used in the civil case, even if pending in the same court, the admission in the criminal case is merely considered as an extra-judicial admission in the civil case. What is the difference between a judicial admission and an extra-judicial admission? A judicial admission does not require proof. There is no need for the prosecution to prove that an admission was made. An extra-judicial admission, on the other hand, has to be offered in evidence. Where can we find judicial admission? It could be oral or it could be in writing. Examples of written judicial admission are those contained in the complaint/answer/motion. Examples of oral judicial admission are admissions made during cross-examination or during direct examination. Problem: Suppose, the defendant submitted an answer containing an admission. Later on, the counsel realized that the admission is not good for his client. So, he opted to submit an amended answer.

What will happen to the original answer with the submission of the amended answer? The original answer will be superseded. Suppose, there are admissions in that original answer that the plaintiff wants to introduce in court - - Can the court take judicial notice of that original answer? No because so far as the court is concerned, it is the amended answer that will prevail. What will the plaintiff do? If the plaintiff wants the court to consider the admissions made in the original answer, the plaintiff has to mark that original answer as its/his own exhibit and offer it in evidence. Because the original answer that was superseded by the amended answer is already considered as an extra-judicial admission; the court cannot take judicial notice anymore. It has to be offered in evidence. Admission during Pre-trial The same must be reduced into writing and signed by the accused and his counsel Admission during Trial The same need not be reduced into writing and signed by the accused and the counsel Admissions in Annulment of Marriage, Legal Separation and Declaration of Nullity of Marriage Not allowed. Judgment on the pleadings and summary judgments are also not allowed in those cases. Inadvertent admissions Admission may be contradicted only by a showing that it was made though palpable mistake or that no such admission was made. RULE 132 PRESENTATION OF EVIDENCE A. Examination of Witnesses Sec. 1, Examination to be done in open court. The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the questions calls for a different mode of answer, the answers of the witness shall be given orally. What do you mean by open court? Open to the public. Except in cases where the public may be excluded. Under oath or affirmation Before a witness testifies, he should take an oath – that he will tell the truth, the whole truth and nothing but the truth.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D Why is taking oath important? Remember the four (4) qualifications of a witness: the ability to observe, the ability to remember, the ability to relay and the ability to recognize the value or the duty to tell the truth. In conducting direct examination, it has to be logical and chronological. [Judge D: What if it is the counsel presenting the witness who will ask the misleading question, what is the ground? No, basis. ] SEC. 11 Impeachment of adverse party's witness A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honesty, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense. Impeaching a witness means discrediting the witness. ―Ways of discrediting a witness‖ There are 4 ways of discrediting the witness: 1. By contradictory evidence– Evidence that will contradict his testimony either by his own testimony or by presenting another witness or document to contradict his testimony 2. By evidence that his general reputation for truth, honesty, or integrity is bad 3. By evidence that he has made at other times statements inconsistent with his present testimony This is the most effective. Present evidence of acts that are inconsistent with the witness testimony made prior to the giving of testimony. 4. By evidence that the accused has been convicted of an offense If you are convicted of perjury, you can still testify in court except in certain cases like probate of a will. Other than those cases, you can still testify but what is the weight of your testimony when you are already convicted of perjury? The Criminal Complaint reads: "January 17, 2016 at around 9:00 in the evening, while waiting for a jeepney ride along magallanesst., Mr. X, accused, suddenly snatched my gold necklace worth 10,000 and run

away. I tried to chase him in order to recover my necklace but when I caught up with him, he stabbed me in my chest. The bystanders boarded me to taxi, rushed me to CCMC. Had it not for the timely medical assistance and expertise of the doctor, I would have died. I stayed at the hospital for 70 days and spent 100,000 for the hospitalisation. I was absent from work within the same period and suffered sleepless nights due to my wounds. " So, during direct examination, these shall be the answer of the witness. The lawyer cannot ask the witness as to what happened and the witness will narrate. That is objectionable. The witness is not allowed to narrate. The question would be this way: Q: "On January 17, 2016 at around 9 o'clock in the evening, where were you at that time?" Witness: At that time, I was waiting for a jeepney ride. Q: "Where were you waiting for a jeepney ride?" Witness: I was waiting for a jeepney ride along Magallanes St., Cebu City. Q: "While waiting for a jeepney ride, what happened?" Witness: Mr. X snatched my gold necklace. Q: "How much is the worth of your gold necklace" Witness: I bought it for 10,000. And so on. . . . . That is how to conduct oral examination. But now, it is different. The question and answer will be written in a judicial affidavit. ―Distinction between an ordinary affidavit and judicial affidavit‖ An ordinary affidavit is just a narration of facts, like our example. The judicial affidavit is a direct examination in writing in a question and answer form. The purpose is to save time. SEC. 2 Proceedings to be recorded The entire proceedings of a trial or hearing, including the questions propounded to a witness and his answers thereto, the statements made by the judge or any of the parties, counsel, or witnesses with reference to the case,

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D shall be recorded by means of shorthand or stenotype or by other means of recording found suitable by the court. A transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder and certified as correct by him shall be deemed prima facie a correct statement of such proceedings. The recordings of the stenographer are presumed to be correct unless an objection is made. The objections could only be during trial, otherwise waived. The testimony of the witness given in court cannot be considered self- serving because he can be subjected to crossexamine. Self-serving statement refers to out of court statement. January 11, 2017 In the study of Evidence,, there are two important areas: 1. Admissibility of Evidence and 2. Rules on Presentation of Evidence. A witness will undergo an examination in the court e.g direct examination, cross examination, redirect examination, recross examination RULE 132 Presentation of Evidence A. EXAMINATION OF WITNESSES There are instances where an examination can be done outside the court by way of exception: 1. During the taking of his deposition 2. Conditional examinations under the criminal procedure e.g the defense witness is confined in the hospital. He can be examined in the hospital. 3. During ocular inspection e.g a witness will pinpoint the place where the crime is committed and the other party will refute such claim. Then the court may demand for an ocular inspection. 4. Direct examination. Under the Judicial Affidavit rule, the direct examination can be done in any place, but usually it is done in the office of the counsel of the party who will present the witness. Section 3. Rights and obligations of a witness. — A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness: (1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; - It is the lawyer who will protect him. The judge could also protect the witness even without objection from the counsel presenting the witness in court.

(2) Not to be detained longer than the interests of justice require; -Meaning to say, the cross examination, for example, should not lasts for more than 1 month. (3) Not to be examined except only as to matters pertinent to the issue -If the questions asked call for answers which are outside the issues in the case then the counsel presenting the witness can object on the ground of relevancy; (4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or -This is what we call as incriminating questions. For example, a witness is presented in a murder case and the cross examining counsel is trying to impeach, discredit or destroy the witness by asking this question: ―Mr. Witness, is it not that you are using drugs?‖. This question is selfincriminating. ―Unless otherwise provided by law‖ For example: A State witness is immune from suit, so he can be asked of incriminating question which is relevant to his participation in the case. (5) Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. -This is what we call as right against self-degradation. When he is asks if he was convicted for an offense, he should answer that question Take Note: -A witness should answer the questions. The question cannot be answered with another question nor can the witness object on the question. -There is a difference between the right of an ordinary witness and the right of the accused. -The accused can refuse to take the witness stand. So if the adverse party would like to ask. However, an ordinary witness cannot refuse to take the witness stand. His right against self incriminating question can only be raised once a question is asked. That is when the ordinary witness is already in the witness stand. He may invoke his right against self incrimination thru his counsel. Remember that the a party may use the other party as a witness- this is called as adverse witness. This is applicable to civil cases only. This is not applicable in criminal cases because the accused has the right to remain silent.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D Chavez vs CA 24 SCRA 663 Petitioner is a defendant in a criminal case. He was called by the prosecution as the first witness in that case to testify for the People during the first day of trial thereof. Petitioner objected and invoked the privilege of self-incrimination. This he broadened by the clear cut statement that he will not testify. But petitioner's protestations were met with the judge's emphatic statement that it "is the right of the prosecution to ask anybody to act as witness on the witness stand including the accused," and that defense counsel "could not object to have the accused called on the witness stand." The cumulative impact of all these is that accused-petitioner had to take the stand. He was thus peremptorily asked to create evidence against himself. The foregoing situation molds a solid case for petitioner, backed by the Constitution, the law, and jurisprudence. Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, and accused may altogether refuse to take the witness stand and refuse to answer any and all questions. For, in reality, the purpose of calling an accused as a witness for the People would be to incriminate him. The rule positively intends to avoid and prohibit the certainly inhuman procedure of compelling a person "to furnish the missing evidence necessary for his conviction." This rule may apply even to a codefendant in a joint trial. Petitioner was forced to testify to incriminate himself, in full breach of his constitutional right to remain silent. It cannot be said now that he has waived his right. He did not volunteer to take the stand and in his own defense; he did not offer himself as a witness; on the contrary, he claimed the right upon being called to testify. If petitioner nevertheless answered the questions inspite of his fear of being accused of perjury or being put under contempt, this circumstance cannot be counted against him. His testimony is not of his own choice. To him it was a case of compelled submission. He was a cowed participant in proceedings before a judge who possessed the power to put him under contempt had he chosen to remain silent. Nor could he escape testifying. The court made it abundantly clear that his testimony at least on direct examination would be taken right then and thereon the first day of the trial. Beltran vs Samson 53 Phil. 570 The question, then, is reduced to a determination of whether the writing from the fiscal's dictation by the petitioner for the purpose of comparing the latter's handwriting and determining whether he wrote certain documents supposed to be falsified, constitutes evidence against himself within the scope and meaning of the constitutional provision under examination.

Whenever the defendant, at the trial of his case, testifying in his own behalf, denies that a certain writing or signature is in his own hand, he may on cross-examination be compelled to write in open court in order that the jury maybe able to compare his handwriting with the one in question. It was so held in the case of Bradford vs. People (43 Pacific Reporter, 1013) inasmuch as the defendant, in offering himself as witness in his own behalf, waived his personal privileges. Section4. Order in the examination of an individual witness. — The order in which the individual witness may be examined is as follows; (a) Direct examination by the proponent; -Examination in chief of a witness by party presenting him on the facts relevant to the issue. -If the witness of the prosecution, for example, failed to establish the elements of the crime- the case would be dismissed. (b) Cross-examination by the opponent; -The questions here are aim to destroy the testimony of the witness. (c) Re-direct examination by the proponent; (d) Re-cross-examination by the opponent. Section 5. Direct examination. — Direct examination is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. Section 6. Cross-examination; its purpose and extent. — Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to many matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. Section 7. Re-direct examination; its purpose and extent. — After the cross-examination of the witness has been concluded, he may be re-examined by the party calling him, to explain or supplement his answers given during the crossexamination. On re-direct-examination, questions on matters not dealt with during the cross-examination, may be allowed by the court in its discretion. Section 8. Re-cross-examination. — Upon the conclusion of the re-direct examination, the adverse party may re-crossexamine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion. For example: Rape. What are the elements of rape? There was sexual intercourse that the sexual intercourse was done by the accused against the will of the victim, through the use of force,

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D intimidation, threats or the victim was otherwise deprived of reason or the victim is below 12 years old.

letter given before the case was filed, because failure to do so would amount to dismissal.

Failure to prove the elements of the crime, or the failure of your witness to state that there was sexual intercourse, or failure to state that there was force, threat or intimidation or that she was deprived of reason, that she was unconscious, or failure to provide evidence to prove that victim is 12 years old, your case will be DISMISSED.

JD: You do not present your witness just for the sake of presenting him. Your questions must be able to prove your point. It should be directed in establishing a certain point. Your questions must not be leading questions. So what are leading questions?

JD: So that is how important is direct examination. Direct examination should not be taken for granted especially the party that has the burden of proof.

Those questions that are usually answered with yes or no. your questions must be open-ended.

For example,

What questions are open ended? Those questions that starts with 5 ―wh‘s‖ and 1 ―h‖. WHAT, WHERE, WHO, WHY, WHEN and HOW.

PROSECUTION -

It is important that the witness during examination will be able to establish the elements of the crime.

There is a technique on that. Nowadays, direct examination is already done or conducted outside of court, through JUDICIAL AFFIDAVIT. -

-

In the past it is done in open court. So, what should be done if you are going to present your witness tomorrow, like for example your witness is the rape victim? What should you do? So before presenting your witness you have to practice first or do some briefing. o Sample questions:  Where were you at that time?  Why were you there?  Do you know the accused in this case?  How did you know him?  While you were in that place, were you able to meet the accused?  Do you personally know the accused?  After the party, what happened?

JD: so you have to practice first. Some will prepare questions and answers. But take note that you have to warn your witness that if she would be asked during trial, if she was coached, she should deny it. That her counsel only told her to, tell the truth and nothing but the truth. CIVIL CASE For example: Plaintiff: sum of money. You should be able to exhaust from the plaintiff the elements of the cause of action. The demand

Why is direct examination important? Because it is in the direct examination of your witness that you establish, especially if you have the burden of proof, the elements of the crime or the elements of your cause of action. On the side of the defense, you have to establish the elements of your defense. So for example you raise self-defense, so your witness should be able to state that there was unlawful aggression, that the weapon used is reasonable and necessary. He should be able to state that the knife used is only reasonable because the aggressor is using a bolo (sundang), or that the opponent is using a weapon, that there was no sufficient provocation on his part. Failure to state such defenses, would amount to jail time for your client. So when will you be able to establish those facts? During the direct examination of your witness. JD: For example you are the prosecutor and you are presenting your witness but your witness was not able to establish the elements of the crime, if I am the adverse party, I will never conduct cross-examination. ―I have no cross.‖ Why should I conduct cross examination, when in the first place I have nothing to destroy, because they were not able to establish concrete set of evidence? So I will only conduct crossexamination if you were able to establish something. But if there‘s none, then there is no need to conduct a cross. Assuming that the party presenting the witness has established the elements of the crime, or cause of action or the defense, then the next exam isCROSS –EXAMINATION. JD: During our past meetings, I told you that technologies nowadays are already hi-tech. But, no technology is ever invented that will help in determining 100% if a person is either lying or telling the truth. We have the so called liedetector but such is not reliable. It is only useful for investigation purposes but it cannot be used as basis in

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D convicting or acquitting an accused. So what is our way in determining if the witness or the victim in a crime testifying or narrating that that person is the accused or how the court would ascertain the truthfulness of his statements or if he is telling the truth or not? Still the best machinery ever invented by man to test the truth is cross- examination. What is the purpose of cross-examination? -

To determine whether the witness presented in court is telling the truth. To separate truth from falsehood.

So what is the case if the witness is not telling the truth in his testimonies? FALSE TESTIMONY if in court or PERJURY if administrative. So, cross examination is the examination that would be conducted by the adverse party, through counsel. So, when should cross-examination beconducted? Cross-Examination (Sec 6) –

JD: However, in real practice cross-examinations are done months or years after the direct examination, because of the number of pending cases in courts. But that is not really proper and is against the rules. So the witness maybe cross-examined by whom? By the adverse party. What would be the coverage of the cross- examination? As to any matters stated in the direct examination or any matter connected therewith. JD: so the coverage in the cross-examination, ―kadtotanang.hisgotansa direct examination!‖, those that are stated in the judicial affidavit, or those which are not stated therein but is related to those which are stated in the affidavit and the conduct of the cross examination shall be done with sufficient fullness and freedom. So the cross-examiner has the wide latitude. Why are they given the freedom? -

Upon termination of the direct Examination So right afterthe end of the direct examination. It is not proper to tell the court that, ―your honor, can I conduct my cross-examination next time.‖ Bec. The rule says that cross-examination should be conducted right after the end of the direct examination. However, in court, if there are lot of pending cases, cross-examination is already done days after the direct examination. (There are only 4 questions asked during direct examination: -

Q1: In relation to this case do you recall having executed a judicial affidavit? A: yes sir, yes your honor. [JD: why is it your honor, when it is the counsel who is asking the questions? Bec.the answer is directed to the court.] Q2: I am showing to you a judicial affidavit is this the one you are referring to? A: yes this is the one. [JD: let your witness scan the affidavit to avoid suspicion, that such act is rehearsed.] Q3: On the last page somewhere in the bottom here is a signature on top of the name Juan dela Cruz, whose signature is this? A: that is my signature. Q4: Before you affixed this signature have you read and understood the contents of this judicial affidavit? A: Yes. C: your honor, my witness is now ready for cross. )

To test accuracy and truthfulness of the testimony of the witness whether the same is free from interest or biased or the reverse. To elicit or to get all important facts related on the issue.

So you can get facts which are favorable to you from the witness you are cross-examining. As long as they are related to the issue or those related to the testimony made during the direct examination. Cross-examination also has techniques. So if you are conducting a cross but it is like you are conducting another direct examination, then it would be better if you do not conduct a cross-examination. Because supposed to be the purpose of conducting a cross-examination is to destroy what has been established during the direct examination. But if in conducting your cross if tends only to strengthen the evidence of the adverse party, then it would be better if you do not conduct a cross-examination. Cross examination is optional on the part of the adverse party. They may or may not conduct a cross-examination. During the cross-examination, the examiner is allowed to use leading questions. But some lawyers who are new to the practice and who do not prepare in their cross, during direct they ask leading questions but during cross they would ask open-ended questions, they do the reverse. -

So with sufficient fullness and freedom to test the accuracy and truthfulness of the witness; or To determine if his testimony is free from biased or interest and to get important facts related to the issue.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D Cross examination is very important that it is provided under the constitution especially on the part of the accused. ―The right of the accused to confront and examine the witnesses against him.‖ TN: what is given is mere OPPORTUNITY, to conduct crossexamination. Supposed the adverse party is given the opportunity to examine but he did not conduct? Would that be alright? YES. Because what is given is mere opportunity. What if there is no cross-examination? Should the court believe the testimony of the witness? NO. Whether or not there is cross-examination, the court should see to it if the testimony is with probative value. Cross-examination is discretionary. It is a prerogative of the adverse party. After the cross-examination is the re-direct examination. The purpose of which is to explain or supplement his answers during the cross-examination. So it is necessary that the questions asked in redirect examination should relate only to those matters touched during the cross-examination. However, the court may allow questions on new matters during the redirect examination in the interest of justice. After the re-direct examination comes the re-crossexamination. It is objectionable when the counsel ask questions during the re-direct examination which were not touched during the re-cross-examination. However, the court may grant such questions in the interest of justice. After the re-cross examination, the witness has finished testifying. However, the witness can be recalled only by leave of court. Can the court conduct cross-examination on the witness? Yes. But the questions should be only clarificatory questions. Here is a case. The private prosecutors only asked about 30 questions to the accused. But the Justice of the SB asked about 150 questions to the accused. The SC ruled that the Justice is clearly biased and in favor of the prosecution. The judge should not ask questions to the point that he is already acting as prosecutor or defense counsel. Judges are not mere referees. They should have as much interest as counsels, calling the attentions of counsel to points that had been overlooked. He may properly intervene in the examination of witnesses but he should exercise this with caution. TABUENA VS SB 268 SCRA 332.

Sec. 10. Leading and Misleading Question As a rule, leading question is not allowed. What is a leading question? It is a question which suggests or leads to the witness the answer which the examining party desires. Exceptions to this are questions during: 1. 2. 3.

4. 5.

Cross-examination; On preliminary matters; When difficulty in getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute; Of an unwilling or hostile witness; or Of a witness who is an adverse party or an officer, director, or managing agent of public or private corporation or of a partnership or association which is an adverse party.

What is the reason that leading question is not allowed during direct examination? Because it would be the counsel who would virtually testify for the witness. In criminal case, there are only five questions to be asked during the direct examination: 1. 2. 3. 4. 5.

In relation to the case of _____, do you recall having executed a Judicial Affidavit on ________? I have here a Judicial Affidavit, is this the Judicial Affidavit that you executed? At the last page of the JA, there is a name and signature, is that your name and signature? BLANK You mentioned in your JA that you know the accused, if he is in the court room, would you point to him? (this is the IN COURT IDENTIFICATION)

Imagine that the counsel on direct examination would ask leading questions, the witness would only be answering either ―Yes‖ or ―No‖. It would seem that the one testifying is the counsel. This is why leading questions on direct examination are not allowed. Suppose that the opposing counsel did not bother on objecting to such leading question, what is the value or worth of the answers in the leading questions asked? It has no value. The court may not believe the narration of the witness. In the case of PP vs Caparas, Jan. 18, 1982, the SC ruled that testimony on direct examination elicited through direct examination has little probative value. (Probative value refers to weight). This means the court may not believe the witness.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D So the questions that must be asked during the direct examination are open-ended questions. These are the questions that start with five ―Ws‖ and one ―H‖. (Five Wives and One Husband – What, where, when, why, who and how). You can use leading questions to an adverse or hostile witness. Who is a hostile witness? He is a witness who is reluctant to testify or misled the party to calling him into the witness stand. This is your own witness. Can you call to the witness stand an adverse party? Yes. This is your opposing party in a case. What do you mean by misleading question? There are two kinds: 1. 2.

A question which assumes as true a fact not yet testified to by the witness; or Contrary to that which he has previously stated.

Take note: Misleading question is absolutely NOT ALLOWED! Example of the first kind: The defense counsel would ask the prosecution‘s witness ―You said in your answer during the direct examination that prior to the stabbing incident there was an argument between the victim and the accused.‖ But this does not appear in the JA of the witness. So the counsel assumes such fact which was not testified by the prosecution‘s witness. Example of the second kind: What was written in the JA of the witness was that it was already stop signal but the accused still drove his car pass the red light. But the counsel, during cross-examination asked the witness, ―You said during your direct examination that it was still a go signal when you saw the accused hit the victim.‖ This question is objectionable on the ground of being a misleading question. Take Note of the party who will use misleading questions because there are different grounds: 1.

2.

If it is the opposing counsel who will use misleading questions, the ground for objection is ―misleading question‖; But if it is the counsel who uses misleading question to his own witness, e.g. during direct examination, the ground for objection is ―no basis or lack basis‖.

In conducting direct examination, it has to be logical and chronological. [Judge D: What if it is the counsel presenting the witness who will ask the misleading question, what is the ground? No, basis. ] SEC. 11 Impeachment of adverse party's witness A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honesty, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense. Impeaching a witness means discrediting the witness. ―Ways of discrediting a witness‖ There are 4 ways of discrediting the witness: 1. By contradictory evidence– Evidence that will contradict his testimony either by his own testimony or by presenting another witness or document to contradict his testimony 2. By evidence that his general reputation for truth, honesty, or integrity is bad 3. By evidence that he has made at other times statements inconsistent with his present testimony This is the most effective. Present evidence of acts that are inconsistent with the witness testimony made prior to the giving of testimony. 4. By evidence that the accused has been convicted of an offense If you are convicted of perjury, you can still testify in court except in certain cases like probate of a will. Other than those cases, you can still testify but what is the weight of your testimony when you are already convicted of perjury? January 16, 2017 Section 12. Party may not impeach his own witness. — Except with respect to witnesses referred to in paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his credibility. A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the witness stand.

merely observed the shooting (Impossibility of his testimony).

The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by the party presenting him in all respects as if he had been called by the adverse party, except by evidence of his bad character. He may also be impeached and cross-examined by the adverse party, but such cross-examination must only be on the subject matter of his examination-in-chief.

SUPREME COURT: “It is contrary to ordinary human experience”.

Four ways of impeaching the witness: 1. By presenting a contradictory evidence Example: the witness made a testimony that he was present when the crime was committed, but in fact was not. So the prosecution can present evidence on that matter and that his testimony was merely concocted.

Q: Who can impeach a witness under Section 12? A: Adverse party. General Rule: Under Section 12, a party presenting a witness is not allowed to impeach the credibility of his own witness. Exception: 1. When the witness has become hostile 2. Witness has become the adverse party.

2. 3.

4.

By presenting evidence that the reputation of the witness for truth, honesty or integrity is bad. Evidence that he has, at other times, made statements inconsistent with his present testimony. The adverse party may present statements made by the witness himself and those statements, prior to the taking to the giving of his testimony in curt, are contrary to that he testified. Example: During open court testimony, the accused testified that he killed the accused in self-defence, however the prosecution was able to present evidence that prior to the giving of his testimony (like during his arrest), the accused made a statement to the media that the crime charged against him was politically motivated and that he was not present when the incident occurred. Purpose: so that court will not believe him. By presenting that he accused has been convicted of an offense. Example: The accused has been convicted of perjury or giving false testimony, etc.

In addition to the 4 ways given under the Rule of Court 5. By presenting evidence of bias, interest, prejudice or incompetence of the witness. Example: By showing to the court that the witness is a close friend of the private complainant of accused; or that the witness is an employee of the accused (bias). 6. By showing an improbability or impossibility of his testimony or impossible or inconsistent conduct of the witness. Example: the witness testified that he saw the shooting incident and the accused fired for 7 times. When asked by the prosecution as to what he did when the gun was fired, he said that he did not flee or leave the area, but

incident

Example: Taxi driver failed to remit the rent, and told the operator that the money was stolen. But he failed to report to the police. (Testimony is inconsistent with the conduct).

Q: why is a party tempted to destroy the credibility of his own witness? A: If the adverse party has been successful in getting a statement which is favourable to them. Two Areas of credibility of a person: 1. The credibility of his testimony 2. The credibility of his person What is a hostile witness? One who has been shown to be having an adverse interest or has unjustified reluctance to testify, or has misled the party into calling him to the witness stand. TAKE NOTE: Ask the court to declare a witness as hostile witness. Q: When to Impeach? A: Cross-examination. Section 13. How witness impeached by evidence of inconsistent statements. — Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them. Effective/ most effective means of impeaching or destroying the credibility of the witness: Impeaching the witness through his own inconsistent statement. “Lutuon nimu ang witness sa iyang kaugaligong matika”. How? If a witness has made statement inconsistent with his present testimony prior to the making of the present testimony that witness must be confronted with such statement. Example: The accused in open court testified that he killed the victim in self-defense. But months ago, the accused made

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D a statement upon his arrest when interviewed by the media, saying that it was politically motivated and that he was in Manila because he was called by the President. Q: How to impeach the statement? A: Remember that conducting a cross-examination, there is a technique. First, confirm to the witness whether you have correctly heard what he said. Because it is possible that you might have misheard the witness. How? Ask, ―did I hear you correctly that you killed the victim in self-defense?‖ You let the witness recommit to his present testimony. Second, confront the witness. ―Do you recall giving an interview to the media when you were arrested?‖ Or you can ask the question by piecemeal or slowly (hinay-hinay). Also, make sure that you treat the witness as a human being; address him/her with his first name and not as ‗Mr./Ms. Witness‘. Always try to get the witness‘ trust, talk to him in a cordial manner. ―is it not that you said that the case is politically motivated, etc.?‖ What you are doing is confronting the witness, whether or not he has said that statement which is contrary to his present testimony. Let the witness confirm. What if he will not confirm because he will stand by his lie? Then you present evidence that indeed he has made such statement. How? By presenting the reporters/interviewers, or the newspaper article showing that he made such statement. If he admits, give him a chance to explain. But his explanation is merely a formality because if it will be proven that his testimony is inconsistent and such inconsistencies refer to a material matter, the court will no longer believe him. Q: When can a witness or party make in-consistent statements? A: 1.) could be through his affidavits. So, the prior inconsistent statements could be ORAL or IN WRITING. Oral, such as through interviews; written through affidavits, counter-affidavits, pleadings, motions. 2.) Or through his own testimony. His testimony is different in the judicial affidavit (JA) and in the cross examination. TN: Remember when I told you that in Criminal Procedure sometimes it is better that you will not let the accuse make a counter affidavit. If the evidence of the prosecution is so strong, it is better not to have a counter affidavit. Why? Because a counter affidavit may be used against him. If wala siya’y siluhat (?), he can adjust his testimony. If he‘s not sure of his defense, he can still build it up and he may build up his defense in court.

But the prosecution has no lusot. It is a must that the witnesses of the prosecution execute an affidavit, otherwise the case will be dismissed. Q: What is the effect if there are inconsistencies in the affidavit and the open court testimony? A: SC said: ―If the inconsistencies between the affidavit of the witness—diba the making of the affidavit is done before testifying—refer only to minor matters, the same will not affect the credibility of the witness but instead will strengthen it.‖ It implies that the testimony is spontaneous and not rehearsed. Because a 100% accurate testimony is doubtful. BUT, if the inconsistencies would refer to material matters, the same will affect his/her credibility. Remember the case of Alfaro in People vs. Webb? Hers was a case of omission. In her first affidavit in the police, she was not able to include Webb. But when it was NBI who made her affidavit, Webb was suddenly included. And the second affidavit was used as basis of her testimony in court. The SC ruled that her inconsistencies are material. Sometimes, cases are won in the cross-examination. So always be prepared so that your cross examination will be effective. If you go to court unprepared—mag widow- widow ra ka when you cross-examine--never mind. Don‘t conduct a cross examination anymore. It will be destructive to your client. Conducting a direct or cross examination requires a lot of preparation. When I was a new lawyer, I would always read the affidavit of the witness before I would conduct a cross-examination; most likely the witness‘ testimony is based on his affidavit. I would read and find the loopholes or questionable of his statements. I prepare questions before hand. If his answer is YES, what is my next question? If his answer is NO, what is the next question? His answers will not matter because all of them will lead to my point that this witness is not telling the truth. My point is, you can only conduct a cross-examination if you prepared beforehand. Okay, so now you know how to impeach the adverse party‘s witness, through prior inconsistent statements. So, the prior inconsistent statements could be ORAL or IN WRITING. Oral, such as through interviews or sturya-sturya if manghambog, or his own testimony in another case. Section 14.Evidence of good character of witness. — Evidence of the good character of a witness is not admissible until such character has been impeached. (17) Remember the character evidence of the accused? Q: can the prosecution present evidence of bad character against the accused?

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D A: during the evidence in chief, the prosecution could only present evidence of bad character during rebuttal and only if the accused present evidence of his good character. If the accused did not present evidence of his good character, then the prosecution cannot present evidence as to his bad character as well. But if we talk about ordinary character, it is the reverse. Present evidence of bad character first then the good evidence. Section 15.Exclusion and separation of witnesses. — On any trial or hearing, the judge may exclude from the court any witness not at the time under examination, so that he may not hear the testimony of other witnesses. The judge may also cause witnesses to be kept separate and to be prevented from conversing with one another until all shall have been examined. (18) A party may have many witnesses and when he presents the first witness, it is very likely that the other witnesses are present. If you are the adverse party, you may ask the other witnesses to leave the courtroom so to ensure that their testimonies are not coached or rehearsed. Section 16.When witness may refer to memorandum. — A witness may be allowed to refresh his memory respecting a fact, by anything written or recorded by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and knew that the same was correctly written or recorded; but in such case the writing or record must be produced and may be inspected by the adverse party, who may, if he chooses, cross examine the witness upon it, and may read it in evidence. So, also, a witness may testify from such writing or record, though he retain no recollection of the particular facts, if he is able to swear that the writing or record correctly stated the transaction when made; but such evidence must be received with caution. (10a) Memorandum in this section refers to any writing prepared by the witness. Q: can a witness bring a kodigo when he takes the witness stand? A: No. A witness should testify from his own testimony. But there are instances when a witness is allowed to look at a memorandum or anything that he has prepared. For example a doctor; the doctor has a lot of patients, especially if he is employed in the government. Section 16. Example I have filed a case for frustrated homicide. In order to prove that a. person was killed. A doctor may be presented. Stabbing incident happened last year. ―Doctor, have

you remembered having treated by the patient in the name of X?‖ If you are the doctor, can you still remember? (Considering he had so many patients that time) That is why the party presenting the witness may be allowed or asked the court to allow the witness to look at the document that he prepared. The court may allow him to look at the medical certificate/ record of the patient. Document prepared by the witness- memorandum in order to refresh his memory. The document must be prepared by him. It may revive or refresh the memory of the witness- Present recollection revived. There are instances that even if refreshed he can no longer remember but sure that he prepared it. He cannot remember the details- Past recollection recorded. Section 17.When part of transaction, writing or record given in evidence, the remainder, the remainder admissible. — When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its understanding may also be given in evidence.

Section 18.Right to respect writing shown to witness. — Whenever a writing is shown to a witness, it may be inspected by the adverse party B. AUTHENTICATION AND PROOF OF DOCUMENTS Section 19.Classes of Documents. — For the purpose of their presentation evidence, documents are either public or private. Public documents are: (a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; (b) Documents acknowledge before a notary public except last wills and testaments; and

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D (c) Public records, kept in the Philippines, of private documents required by law to the entered therein.

admitted that it was duly signed by him? If he admits it, it is now duly authenticated. If he denies it, and later Y during the cross-examination, it can be presented to him. Is this your handwriting? Then there will be authentication.

All other writings are private. In criminal law, documents are classified into four. But for purposes of presenting evidence, there are only two.

2.

Memorize what are public documents. (a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country;

How sure are you that it his signature? I saw him signing the instrument. This is another way of authentication.

Decisions of the court are official acts and required to be in writing. Records of official acts like when there is a hearing in court-- transcript of stenographic notes. When a recommendation coming from the mayor when you apply for a job in IT Park. Is it part of the Mayor‘s task? No. It is not a public document but a private document. (b) Documents acknowledge before a notary public except last wills and testaments; and Only those documents that are acknowledged are public. If only Jurat- private document. Deed of donations, deed of salepublic documents except last will and testaments. (c) Public records, kept in the Philippines, of private documents required by law to the entered therein. All other writings are private. What is the importance whether it is a public or private document? For purposes of presenting evidence documents do not require authentication.

because

public

Authentication? For example, the debtor is facing a collection case in court. His creditor filed a case against him. His defense is that he has fully paid his loan. During the trial, he wanted to present one of the receipts. The receipt is a private document. How can Mr. X (defendant) prove that this document is really of that Mr. Y? How to authenticate? 1.

Present the signatory himself. Let him identify the writing. For example during the pre-trial, Will Mr. Y

If the person who signed is already dead. Who can identify it? The witness. That is why in documents there are instrumental witness. Witnesses who saw that signing of the document. Suppose Y is already dead. Estate files a claim. Who can testify? The witness.

3.

What if witnesses are all dead? Present evidence of the genuineness of the handwriting. a. A person who is sufficiently familiar with the handwriting/ signature. Because for several times he has seen that person sign. Example you forge the signature of your parents. Although he has not seen the person signing. b.

c.

Comparing by the court of the signature of that person with another document that contained his genuine signature. Presenting an expert witness.

Section 22.How genuineness of handwriting proved. — The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. So those are the ways of authenticating a private document. Q : What will happen if this document / or this receipt which is a private document will not be authenticated, not

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D identified by the signatory, not identified by any witness, not identified by an expert to be really that of Mr. Y? A : This will not be admitted in court as evidence. Inadmissible. So private documents have to be authenticated. Example: Your witness, Plaintiff, wants to present a demand letter. Atty. : Mr. ___ (humanize), after the defendant failed to pay his loan on due date, what did you do? Mr. __

: I sent a demand letter.

Atty. : Showing to you a demand letter. Is this the one you are referring to ? (Identification ; part of authentication) Mr. __

: Yes, this is the one.

Atty. : At the bottom there is a signature on top of the name Juan Dela Cruz. Whose signature is this? (Authentication) Mr. __

: That is mine.

Q A

: Who identified the signature? : The signatory himself.

But what about public documents? Public documents do not require authentication. Public documents are self-authenticating. Identification is sufficient. It is not necessary that the signatory will identify the document. It needs only to be marked, identified, and formally offered in evidence. Examples: 1. Certification from FEU Recall: criminal law, particularly in the special law PD 1866. We learned that in the prosecution for the violation of PD 1866, the prosecution must be able to present in court a certification from the PNP – FEU (Firearms & Explosives Unit) certifying that the accused is not a holder of a gun license. Who will sign the certification? It will be signed by the Head of FEU, Colonel. It is not necessary to present the Colonel in court. It is enough that the document is identified by the arresting officer (A.O). Atty : After you arrested the accused, what did you do? AO : Before his arrest, we asked him of any document authorizing him to carry the firearm. Atty

: Then what happened?

AO : The accused failed to present any. So we put him under arrest and detained him. Before filing a case in court, we asked for a certification. Atty: AO

: What did you do? : We made a request with the FEU.

Atty. : What was the request for? AO : That was a request for the issuance of a certification whether or not the accused is really a licensed gunholder. Atty : What was the result? AO : That office issued a certification that the accused is not a licensed gunholder. Atty : I have here a certification. What relation has this to that you made mention? AO : That is the one. (Identification) Q :Was the arresting officer who made the request present when the certification was signed? A :No. So he cannot identify. Q : Can the certification be admitted in evidence without authentication of the signature of the FEU Head? A : Yes, because certification from the FEU is a public document and the same does not require authentication because it is self-authenticating. 2. Birth certificate from LCR Q : How about your birth certificate issued by the LCR, do you still have to present the LCR to identify it? A : No, because the document is self-authenticating. It is enough that it is identified in court. In some cases, they don‘t even need identification. Just have it marked then offer in evidence. Recall: discussion on Rule 130 That for a document to be considered by the court, it must be marked, identified or authenticated, formally offered in evidence. So, public documents are self-authenticating and presumed to be authentic and the evidentiary value is prima facie evidence of the facts stated therein. The facts stated therein are presumed to be true. [Case: People v Del Rosario, GR 142295, May 31, 2001] Re: certification issued by FEU To convict an accused for illegal possession of firearms and explosives under P. D. 1866, as amended, two (2) essential elements must be indubitably established, viz.: (a) the existence of the subject firearm or explosive which may be proved by the presentation of the subject firearm or explosive

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D or by the testimony of witnesses who saw accused in possession of the same, and (b) the negative fact that the accused had no license or permit to own or possess the firearm or explosive which fact may be established by the testimony or certification of a representative of the PNP Firearms and Explosives Unit that the accused has no license or permit to possess the subject firearm or explosive. xxx In upholding the prosecution and giving credence to the testimony of police officer Jerito A. Adigui, the trial court relied on the presumption of regularity in the performance of official duties by the police officers. This is a flagrant error because his testimony is directly contradictory to the official records of the Firearms and Explosives Division, PNP, which must prevail. -ooOooOne of the public documents is a document acknowledged before a notary public. Suppose the person who notarized the document is not duly licensed as notary public. What will happen to the document he notarized? The same is deemed not notarized and therefore considered as private document. Judges and prosecutors may notarize documents which are office-connected and jurat only. Prosecutors can notarize affidavits required for the filing of a case. Fiscal can notarize even without a notarial commission; ex-officio, meaning they can notarize documents which are office connected. The same is true with judges. Judges cannot notarize commercial documents like deed of sale except in places where there are no notary public. A document notarized by a person not duly authorized is considered a private document and it requires authentication. Q A

: Who can authenticate? : 1. The party signatory 2. The instrumental witnesses who witnessed the signing 3. Person sufficiently familiar with the handwriting.

Section 20.Proof of private document.— Before any private document offered as authentic is received inevidence, its due execution and authenticity must be proved either: (a) By anyone who saw the document executed or written; or (b) By evidence of the genuineness of the signature or handwriting of the maker. Any other private document need only be identified as that which it is claimed to be.

notas evidence ―due execution and authenticity‖ What is the difference between the two? Recall: discussion in Civil Procedure Example: I pointed a gun at you and then let you sign. Q : Is your signature authentic? A : Yes. Q : Is it duly executed? A : No, because it is executed intimidation, etc.

through

force,

Due execution has something to do with whether the document was freely executed or not. Authenticity has something to do with whether the signature appearing there is genuine or not / of the signatory or not / forged or not. ―anyone who saw the document executed or written‖ this refers to the witness Observe Section 20. It does not state that the first person who can authenticate is the party signatory himself.Halabutangidiha! Thus, the following may authenticate: 1. Party signatory 2. By anyone who saw the document executed or written 3. By evidence of the genuineness of the signature or handwriting of the maker ―evidence of genuineness‖ Find this under Sec. 22 Section 22.How genuineness of handwriting proved. — The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. By: Who is this person? ―witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person‖

―in evidence‖

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D This witness has not actually seen the person sign but he knows the signature because he is sufficiently familiar with the signature of the person. Also by: ―Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge‖ (Sec.22) Another is by: Presenting an expert witness (Sec. 49, Rule 130) Section 21.When evidence of authenticity of private document not necessary. — Where a private document is more than thirty years old, is produced from the custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given. There are private documents that do authentication. They are ancient documents.

not

require

―more than thirty years old‖ take note more than if exactly 30 years old = not ancient Recall: When preliminary investigation is required For criminal cases where the penalty imposable is at least 4years 2months 1day If you say for those crimes the penalty imposable is over 4years 2months 1day, you fail to include those imposable with exactly 4years 2months 1day. It is wrong. Stated otherwise ―4years 2months 1day or over‖ Requisites of an ancient document: 1. more than 30 years old 2. produced from the custody in which it would naturally be found if genuine -meaning it is kept by someone who has interest in that document 3. unblemished by any alterations or circumstances of suspicion All of these must be present / must concur. Example: 1. Case against defendant, recovery of ownership. Claiming to be the owner of real property, the defendant alleged that he owns the property. He presented today, 2017, a private deed of sale (not notarized) dated 1950. The document is more than 50 years (requirement #1).

It is kept by the defendant being the buyer (requirement #2). The document is computer printer ( requirement #3 not met). There is a circumstance of suspicion because at that time computer was not yet around. Q : Can it be admitted in evidence? A : Yes, but it requires authentication. You present 1.the seller 2.if seller is dead, the instrumental witness 3.if they are all dead, evidence of genuineness, such as a) a witness who is familiar with the signature or b) expert witness or c) present a witness and let the court compare the signature in the deed of sale with another document containing the genuine signature of the seller. If a document is considered an ancient document, it will just do away with authentication. It does not mean that the document is inadmissible. It can be admitted in evidence if the required authentication is complied with. [Case: Cercado-SigavsCercado Jr., GR 185374, March 11, 2015] Re: Ancient document The marriage contract however does not meet the second requirement. Ancient documents are considered from proper custody if they come from a place from which they might reasonably be expected to be found. Custody is proper if it is proved to have had a legitimate origin or if the circumstances of the particular case are such as to render such an origin probable. If a document is found where it would not properly and naturally be, its absence from the proper place must be satisfactorily accounted for.29 Gibson v. Poor30 cited the reason why it is required that an ancient document shall be produced from the proper depository: xxx that thereby credit is given to its genuineness. Were it not for its antiquity, and the presumption that consequently arises that evidence of its execution cannot be obtained, it would have to be proved. It is not that any one particular place of deposit can have more virtue in it than another, or make that true which is false; but the fact of its coming from the natural and proper place, tends to remove presumptions of fraud, and strengthens the belief in its genuineness. xxx In Bartolome v. Intermediate Appellate Court, 31 the Court ruled that the requirement of proper custody was met when the ancient document in question was presented in court by the proper custodian thereof who is an heir of the person who would naturally keep it. In this case however, we find that Simplicia also failed to prove her filiation to Vicente and Benita. -ooOoo-

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D What will happen if a private document is not authenticated? It is inadmissible in evidence. All you have to do is to determine whether the document is public or private. If it is private, it requires authentication. Section 23.Public documents as evidence. — Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated. All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter.

A: They are prima facie evidence of the facts stated therein. Now, when we say prima facie they are rebuttable. But if they are not controverted, they will become conclusive. Q: How can you prove public document? Example certification from FEU, what will you present in court? 1.

Original Copy Example: A case was filed against you in court and you raise res judicata because the case has been decided, you present the original copy of the decision in court.

2.

If there is no original copy, Official publication thereof if there is official publication Example: Decisions of the Supreme Court in the Philippine Reports or Official Gazette If no original copy or publication, Duly authenticated Machine copy or by copy attested by officer having custody of the record This is what we call Certified True Copy. Who will certify? The person who is the custodian of the original record or his deputy.

What is the evidentiary value of a public document? A public document shall be prima facie evidence of the facts stated therein. What do you mean by ―prima facie evidence of the facts stated therein‖? It means the facts stated are presumed to be true. 3. Examples of public documents: 1.Police Blotter Section 24: Q: What are examples of public documents? A: Example police blotter. Q: What is the difference between public documents official documents?

and

A:All official docs are public docs. But not all public docs are official docs. Q: What are official docs? A: Official docs are documents prepared and executed by public officers or people in the government in the performance of their duties.

If it is the deputy who attested that it is true and faithful reproduction of the original, it must be shown that the deputy is the custodian. However, if the document is a foreign document, there is another requisite, aside from the fact that it is attested to by the record custodian, there must be a certification from the secretary of the Philippine embassy or consul of the place where the document is attested that indeed the one who attested as custodian is indeed the one who is the custodian of the document. Q: If you will present a certified true copy of a foreign public document without a certification from the embassy?

Example: NBI Clearacne. Copy of the entry of police blotter. A: That is not admissible in evidence. Q: Why did we say that all official docs are public docs but not all public docs are official docs?? What would the authentication state? A: Because for example, a deed of sale notarized by a notary public, that is a public document but that is not an official document because that is not prepared and issued by a public officer. Q: What is the evidentiary value of a public or official document?

That the copy is a correct copy of the original or a specific part thereof. Section 26.Irremovability of public record. — Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D of a court where the inspection of the record is essential to the just determination of a pending case. (27a) A public record is irremovable. It cannot be removed from the office in which it is kept except upon order of the court.

certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved. (31a) How do you prove that there is a deed of sale or special power of attorney?

Example: Original copy of Title of land cannot be presented in court to avoid loss or inconvenience and to retain its integirity.You have to present a certified true copy.

Same as in a public document, present the original copy. If no original copy, present the certified true copy.

Section 27.Public record of a private document. — An authorized public record of a private document may be proved by the original record, or by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. (28a) Are there private docs that need to be recorded in a public office? -Borth Cert., Marriage Cert,

TN: you can present it in evidence without authentication because that is a notarial document. It is much ―kuti‖ if the Special power of atty is executed abroad. Its more ―kuti‖ than the public docuent executed abroad because all that is required is the certification from the embassy. But if notarized document or acknowledged abroad, three certificaitons are required. In the case of Gorgonio Medina vs. Natividad (November 7, 2008):

You can present certification or certified true copy attested by legal custodian. Section 28.Proof of lack of record. — A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry. (29) Before marriage, what will the LCR require you to present? CeNoMar or Certificate of no marriage. Or if a police arrested a person carrying a firearm without license, what must he obtain from the Firearms and Explosives Unit (FEU)? Certification that indeed that person does not have any license.

The case was dismissed because the person who was allegedly authorized to file the case was not deemed to be duly authorized because the SPA which was executed abroad was declared void for failure to comply with the requirements set for the by law. The required certifications for documents notarized abroad are: 1. Certification from the county clerk that the notary public who notarized the document is duly commissioned and authorized to take acknowledgment 2. Certification from the Secretary of State of the state where it was notarized certifying that the signature of the county clerk is genuine 3. Certificate of authentication issued by the consul general of the Philippines in that place where the authentication officer is authorized to affix the seal of the state.

In other words, that can be considered as proof of no record. Section 29.How judicial record impeached. — Any judicial record may be impeached by evidence of: (a) want of jurisdiction in the court or judicial officer, (b) collusion between the parties, or (c) fraud in the party offering the record, in respect to the proceedings. (30a) Example you filed a case and the adverse party raised res judicata?? How can you question the decision presented? Apply Section 29. Section 30.Proof of notarial documents. — Every instrument duly acknowledged or proved and certified as provided by law, may be presented in evidence without further proof, the

Section 31.Alteration in document, how to explain. — The party producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or innocent made, or that the alteration did not change the meaning or language of the instrument. If he fails to do that, the document shall not be admissible in evidence. (32a) Example if you procured a certificate of birth and you noticed that your gender there is erroneously stated as male instead of female or vice versa and you used a liquid eraser to edit it, what will happen??

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D It will become inadimissible unless it is proved that: 1. 2. 3. 4.

the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or innocent made, or that the alteration did not change the meaning or language of the instrument. If he fails to do that

Section 32.Seal. — There shall be no difference between sealed and unsealed private documents insofar as their admissibility as evidence is concerned. (33a) When it comes to public documents, most of them bear a seal. But when it comes to private documents, there is no difference if it is sealed or unsealed. Section 33.Documentary evidence in an unofficial language. — Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial. (34a) What is our official language in court?

who will mark the exhibits is the one who will present the evidence. Before the new rules on JA, the marking of the exhibits are done usually during pre-trial. Q: who will mark the exhibits? A: the one who will mark the exhibits is the court through its clerk of court or the court interpreter in open court. Q: now, what is to be marked? A: if the exhibit belongs to the prosecution or plaintiff, the markings shall be letters of the alphabet A,B,C, D and so on. If the exhibit belongs to the defendant or respondent, the markings shall be numbers 1,2,3,4 and so on and so forth. As of now, these are the officially used as mark in marking an exhibit. Do not be confused by the markings done during an arrest of an accused done by a police officer, who uses an initial to mark the things used in the arrest or confiscated during the arrest.

English or Filipino otherwise known as Tagalog Q: Suppose the Deed of sale is in Cebuano, is it admissible in evidence? A: No, it must be accompanied by a translation for it to be admissible. Who will mae the translation? The party offering it or an officer from the court (Court interpreter) January 18, 2017 RULE 132 C. OFFER AND OBJECTION Sec. 34 . Offer of evidence. — The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified.

This is different. We are talking about the presentation of evidence here. The markings by the police are used by them to identify the object taken from the crime scene. The markings in the police could be their own initials or the accused initial. And after that it shall be identified by the witness. But it is still possible that the there be marking during the trial in open court. For example the prosecution will present their exhibits consists of either documentary or object evidence and the accused sees that the exhibits presented are favorable to him, can the accused also mark such exhibits? A: yes, it is allowed. That is yours, but if you presented it in court, the defense may mark it also when such evidence is favorable to the defense. TN: that the markings of exhibit pertains only to documentary and object evidence.

JD: I keep on telling you that in order for a piece of evidence to be admitted, the same must be marked, it must be identified and offer in evidence.

After the markings of the exhibit is identification.

Q: when shall the evidence be mark?

A: before the identification is done in the court because the direct examination is also done in court. But now, direct examination is only through JA.

A: it shall be mark, taking into consideration the new rules on JUDICIAL AFFIDAVIT; it shall be mark during the preparation of the judicial affidavit of the witness and the one

Q: how to identify?

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D Before, the identification is done during the direct examination. For example the plaintiff in a collection of sum of money, he has a demand letter. He can let it be identified during the conduct of the direct examination. However, under the present rules, since the preparation of the JA is done in the law office of the lawyer who conduct and prepare the JA, the identification of the exhibits is also done in the law office where the JA was prepared. After the marking, identification is the formal offer. Under section 34 the court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified.

You will say your honor we are now going to formally offer our exhibits. Exhibit A, the death certificate, to prove that Mr. W is already dead Purpose is to establish the facts in that exhibit. But if during the pre trial, the death certificate was already admitted that the victim is already dead including the caused of death, then the offer of the death certificate is no longer necessary because it was already admitted during the pre – trial the purpose of the death certificate is no longer necessary. What about the knife? To prove that the accused used knife in killing the victim

When we say formal offer, it refers to the offer of exhibits. Q: How to make an offer?

And off course somebody must have testified in court that the accused used the knife in stabbing the victim.

Example:

That knife will corroborate the testimony of witness x.

Prosecution has 3 witnesses Exhibit C the pictures to prove that the accused was hospitalized if the picture was taken in the hospital.

X Y Z

Exhibit D the receipts, to prove that the family of the victim incurred expenses to prove actual damages.

All of them were able to testify, They also have exhibits offered which were marked by the prosecution.

This is how to make a formal offer.

After presenting all of their testimony in court, the prosecution will now offer the exhibits after the last testimony of the prosecution‘s witness who is Z in this case.

Now, remember that even if you already marked it, but you forget to formally offer it, the court will not consider it because under section 34, the court shall consider no evidence which has not been formally offered.

The following are the documentary/object evidence marked by the prosecution:

You are allowed to marked everything, but it is what you offered in evidence will matter.

Exhibit A ---- death certificate Exhibit B ---- knife used in the stabbing incident Exhibit C ---- pictures (if there are many pictures, the following below shall be used) --- C-1 --- C-2 ---C-3

After the formal offer, the adverse party will be given a chance to comment or object. The court now will ask the defense counsel if they have any comment. Example: Court: defense counsel do you have any comment or objection? Defense: your honor, we object to exhibit a, because this has not been identified by any witness so this is hearsay. Exhibit b, your honor, we object because this is inadmissible in evidence because the knife seized from the accused is a product of illegal search, therefore inadmissible as evidence.

Exhibit D --- receipts Q: how will you make your formal offer? A: all you have to do is to enumerate each and every exhibit. Exhibit then description and purpose for which it is offered.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D Exhibit c, your honor because the witness who took the picture was not presented by the prosecution, thus inadmissible as evidence because it is hearsay Q: Who may testify on the admissibility of the picture? A: the person who took the photo, if he is already dead, then other persons who were present at the time the photo was taken. TN: Remember that hearsay rule does not only apply to oral evidence but also to documentary or object evidence if the witness is not presented to testify on the same. Judge D: There are others who use shotgun objections. What does a shotgun objection look like? Irrelevant, improper, immaterial. Example: The judge says, ―Any comment, defense?‖ and defense says, ―Yes, your honor. Exhibit A: Immaterial, improper and impertinent; Exhibit B: Irrelevant, improper and impertinent; Exhibit C: Irrelevant, improper and impertinent; Exhibit D: Irrelevant, improper and impertinent.‖ - Others would also do it all at once. ―Your honor, Exhibits A to D are all objected on the ground that they are all irrelevant, improper and impertinent.‖ As long as counsel has something to say. - It‘s better if you‘re able to state the ground of your objection. Using shotgun objections means that you have nothing to say, but you do so for the sake of saying something. How is the formal offer done? - As a rule, it is done orally. - But there are counsels who would ask the court to make the formal offer in writing. (Secret) Sometimes, it‘s purposely done by counsel. They would charge their clients per page. Some would charge 500 pesos per page. - If the formal offer is done in writing, then the comment will also be done in writing. - How done: After the counsel presents his last witness, he asks the court ―to give the prosecution 10 days to make our formal offer.‖ The judge would order ―to give the parties 10 days to submit their formal offer.‖ Thereafter, the judge court will resolve the offer. Where do you give your evidence? - You give it to the Court Interpreter. - How done: Exhibit A, your honor… then you give to the Court Interpreter. Exhibit B,

your honor… then you give it to the Court Interpreter. When do you make your formal offer? Documentary or Object Evidence: - After the presentation of the last witness of a party. - After the presentation of the last witness, counsels would then make their formal offer. - Is it possible that one party would have no Documentary or Object Evidence? Yes. - For example: The accused‘ only defense is denial. Denial is only oral. Testimonial Evidence: - Before the start of a witness‘ direct testimony. - How do you offer? Just give the summary or gist of the testimony of the witness. Illustration: ―Your honor, the testimony of the complainant is offered to prove the following facts: 1. Sometime on January 15, 2016, at or around 9 o‘clock in the evening, he was waiting for a jeepney ride somewhere in… 2. While waiting for a jeepney ride, the accused suddenly approached him and snatched his necklace, worth 10,000 pesos. 3. The victim tried to chase the accused but the accused turned around and stabbed the victim. 4. Bystanders brought the victim, who was wounded on his chest, to the hospital aboard a taxi; 5. The victim stayed at the hospital for 70 days and he spent one hundred thousand pesos (Catch all in case you forgot to include something) and to prove other related and relevant matters. After, you start your direct examination. Remember: The direct examination is done through question and answer and is done orally. But the question and answer for the direct examination is now done through a judicial affidavit. Now, after you state the purpose of presenting the witness, all you have to do is let the witness identify his judicial affidavit. You just need 4 questions: (1) Do you remember executing a judicial affidavit, in relation to this case? (2) I am showing to you a judicial affidavit. Will you please tell this court what relation has this to what you just mentioned. (3) On the fourth page of this judicial affidavit, there appears a name and a

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D signature on top of the name. Whose signature is this? (4) You mentioned in you judicial affidavit that the person who stabbed you is Pedro Dakoplo. Is that person around? Will you please point to this person? (In court identification) - What is the effect if counsel fails to make an objection to the formal offer of the testimony of the witness? - It will be considered as a waiver on the part of the counsel. Example: Counsel failed to make the formal offer of the witness. He then begins his questioning. Counsel cannot later on object on the ground that no formal offer was made. You must object as soon as the first question is asked and there was no formal offer. Remember: We learned in Criminal Law that minority is a privileged mitigating circumstance. - Case: Ramos vs. Dizon, G.R. 137247, 8/7/2006 During the trial, the defense was able to present the birth certificate of the accused, showing that he was still a minor when the murder incident occurred. The birth certificate was duly identified by the accused. But during the formal offer of the defense, it was not formally offered and the court did not consider the privileged mitigating circumstance in favor of the accused. The court imposed the sentence which could be imposed to an adult. The court cited Rule 132, Section 34 that the court SHALL consider no evidence which has not been formally offered. The defense argued that the court committed error in not considering the birth certificate, a copy of the same has been identified by the accused and it has been attached in the record. SC: When a document has been marked and identified by a witness, the court may consider it EVEN IF the same has not been formally offered in evidence, provided that the same has been attached to the record. -What is the common reason why a piece of evidence was not formally offered? - Counsel failed to prepare. Counsel should prepare before the formal offer. Example: Illegal Possession of Firearms. Prosecution failed to present the Certification from the Firearms and Explosives Office. When prosecution rests its case, Judge D would ask for 5 or 10 days to file his Demurrer to Evidence without leave

of court. Judge D would waive their right to present evidence. What will follow after the formal offer? - Comment or objection of the adverse party. - When is it done? After the formal offer of evidence. - When is it done for testimonial evidence? Remember: The formal offer is done before the witness will testify. Hence, you make your objection right after. - Judge D: Lazy Fiscal or Private Prosecutor would make an offer like this: ―Your honor, the witness is presented to prove the allegations in the Information and other relevant matters.‖ You should specify the facts that the witness is going to testify. Section 36.Objection. — Objection to evidence offered orally must be made immediately after the offer is made. Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent. An offer of evidence in writing shall be objected to within three (3) days after notice of the unless a different period is allowed by the court. In any case, the grounds for the objections must be specified. - Can you still object to a question made in a judicial affidavit? Yes. You can object but after the testimony of the witness is offered. Note: The question is already contained in the judicial affidavit. After making your objection, and the court will sustain it, the clerk of court will put a bracket on the question. Meaning it is excluded. - During Cross-Examination: Make the objection after the question is asked and the witness has not yet testified. IF the ground is valid, Objection Sustained. IF the ground is invalid, Objection Overruled.

Section 36. Objection. — Objection to evidence offered orally must be made immediately after the offer is made. Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D

An offer of evidence in writing shall be objected to within three (3) days after notice of the unless a different period is allowed by the court. In any case, the grounds for the objections must be specified. - The grounds for objection must be specified. Q: What do you mean by Shotgun objection? A: That is a general objection. Supposed to be that is not allowed. Another word for shotgun objection is broadside objection. - The opposite of shotgun objection is Specific Objection. It is an objection which is based on a particular ground. Q: Do you remember we have discussed search warrant? When the evidence is illegally obtained, what is your remedy? A: You can file a motion to quash the search warrant or motion to suppress the illegally-obtained evidence (it must be made before trial) - For example, you cannot file a motion to suppress evidence. What is your other remedy? Your other remedy is to wait for that evidence to formally offered. That is your another chance (one more chance) to make your objection. - Remember: If you cannot raise objection during the trial, your objection shall be deemed waived. - Some lawyers are objecting as to the purpose of the offered evidence. It is not correct. If you believe that the purpose is not relevant to the purpose, the ground must be Irrelevant, (For Example: “We object your honor on the ground that the purpose is irrelevant to the purpose it was offered.” Section 37. When repetition of objection unnecessary. — When it becomes reasonably apparent in the course of the examination of a witness that the question being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled, it shall not be necessary to repeat the objection, it being sufficient for the adverse party to record his continuing objection to such class of questions. ILLUSTRATION: Sometimes, counsel would asked a question, then you objected such question and your objection was sustained/ overruled by the judge. Then after, the other counsel asked again (it was objectionable), your objection was the same with your first

objection (For instance, hearsay). For the third time, the counsel asked another question, and you objected on the same ground of hearsay. In this case, you do not need to repeat your objection, all you have to do is to state: “Your Honor, we raise our continuing objection to this line of questioning.” That‘s what we called Perpetual or Continuing Objection. Section 38. Ruling. — The ruling of the court must be given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling. The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon

- Whenever there is a question, and there is an objection, the court will have to make a ruling. GEN. RULE: The ruling of the court is whether: SUSTAINED OR OVERRULED. The court is not required to give the reason/ground (on his ruling). EXCEPT: When the evidence offered based on two or more grounds. EXAMPLE #1: During formal offer of evidence, the court will make a ruling on each and every offer (e.g The court will state: Exhibit A--admitted, etc.) Q: Supposed the court sustained the objection on Exhibit B (knife). What is your remedy (if you are the counsel who offered the exhibit)? A: Your immediate remedy is to ask for Motion for Reconsideration and then argue. “Your Honor, we respectfully ask for a reconsideration.” - If the Motion for Reconsideration is DENIED by the court. REMEDY: OFFER OF PROOF or TENDER OF EXCLUDED EVIDENCE

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D -You just simply say, after your Motion for Reconsideration is denied, “Your Honor, we would like to make an offer of proof or we would like to make a tender of an excluded evidence. We request Your Honor that the knife be attached to the records.”

Judge: Objection sustained. Motion for Reconsideration denied. -What is your Remedy after? How? A: Just make a gist of the testimony of the witness.

MAKE REFERENCE TO: Section 40. Tender of excluded evidence. — If documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony. Q: What is the purpose of making an offer of proof, where in fact, the court already denied the admission of such evidence? A: The purpose of offer of proof is not for the trial court, it is for purposes of appeal. So that the trial court committed an error in denying the admission of that piece of evidence, the appellate court can make a review. How can an appellate court can make a review if there was no offer of proof? EXAMPLE #2: Suppose it is your testimonial evidence Counsel 1: The testimony of PO1 W is offered to prove the following facts: 1. That… 2. That… 3. That… Counsel 2: We object Your Honor to the entire testimony to the presentation of the testimony of the supposed witness because his testimony is hearsay/his testimony is a violation of the Miranda Doctrine. The accused Your Honor, who has the suspect under the custodial investigation, was not assisted by a counsel and so the testimony of the policeman, Your Honor, who took down of the extrajudicial confession of the accused, the testimony is inadmissible for being a violation of Miranda Doctrine. Judge: Objection sustained.

Counsel 1: Your Honor, if the witness is allowed to testify, he would have to testify that: xxx EXAMPLE #3: If during direct examination (Judicial Affidavit), you have a question there (like question Number 4), that particular question and answer was objected to. The objection was sustained by the court. Such question and answer was bracketed (that means it was admissible). REMEDY/REMEDIES: (1) Make a Motion For Reconsideration. (2) If the Motion for Reconsideration is denied: -The counsel can make an offer of proof for that particular question. “Your Honor, had the court allow the witness to answer the question., he would have answer that: xxx (answer in the JA) Q: Distinguish Formal Offer of evidence from Offer of Proof. (BAR QUESTION) A: Formal Offer of Evidence is made before an objection is made; whereas Offer of Proof is made after the objection is made and the objection is sustained.

Section 39. Striking out answer. — Should a witness answer the question before the adverse party had the opportunity to voice fully its objection to the same, and such objection is found to be meritorious, the court shall sustain the objection and order the answer given to be stricken off the record. On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper.

-What shall you do? Counsel 1: Your Honor, we ask for a reconsideration. The accused, at that time, was not making an extrajudicial confession, he was making a voluntered statements. The Policeman, Your Honor, was not conducting an investigation at that time. The accused voluntarily surrendered himself to the policeman and narrated everything about the incident--the latter is not making any custodial investigation. And so his testimony is admissible to prove extrajudicial admission, or at least admission.

Q: Suppose a witness has prematurely answer a question (which is objectionable) before you (counsel) make an objection. What is your remedy? A: You may ask that the answer of the witness be deleted from the record or let the court advice the witness not to immediately answer the question.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D the greater number of witnesses but it is the weight of their testimonies that will be considered.

RULE 133 Weight and Sufficiency of Evidence -After the offer of evidence, comes now the appreciation of evidence. Appreciation- it refers to the giving or assigning of weight. Q: What are the factors that the court will consider in the appreciation of the evidence?

- According to Supreme Court, testimonies of witnesses are weight and not numbered. Is it enough for the testimony of one witness to convict the accused? -

A: See: Section 1 below Section 1. Preponderance of evidence, how determined. — In civil cases, the party having burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which there are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.

Demeanor of the Witness -

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The Trial Court has the first hand information regarding the credibility of the witness.

- ―the probability or improbability of their testimony”: - The person of the witness may be credible but his story is incredible. It is required/necessary that both the person of the witness AND the story of the witness itself must be credible. - According to Supreme Court,: testimonial evidence to be believe must not only come from the mouth of a credible witness but the testimony of the witness itself must be credible. - In other words, the person of the witness must be credible, his testimony must also be believable in order that his testimony may be given weight. - ―The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number. ” - For example: In a rape case, the prosecution has only two witnesses: the Victim and the Doctor; while the defense (accused) has 20 witnesses. Who will win? [Take Note: It is not

The 1st level courts have the first hand opportunity to observe the demeanor of the witness while testifying on the witness stand. The findings of the lower court as regards the demeanor of the witness are final as regards the Supreme Court. It is usually given high respect by the appellate court.

Doctrine of Equipoise -

Demeanor evidence-the witnesses' manner of testifying.

Yes, if the testimony of the sole witness is credible. It will be sufficient to produce conviction if it appears to be believable or trustworthy.

Preponderance of evidence means, the party that can present evidence of superior weight. When the evidence of the parties is equal, the party that has the burden of proof shall lose the case.

Doctrine of Pro Reo -

If a circumstance is capable of two or more interpretation, that interpretation that is favorable to the accused shall be considered.

Section 2. Proof beyond reasonable doubt. — In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof, excluding possibility of error, produces absolute certainly. Moral certainly only is required, or that degree of proof which produces conviction in an unprejudiced mind. Moral Certainty Degree of proof that produces conviction in an unprejudiced mind. Evidence to be worthy of credit must not only proceed from a credible source but must be, in addition, credible itself. Evidence, to be believed, should be in accord with common knowledge and experience of mankind.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D GR: The findings of the judge who tried the case and heard the witnesses are not to be disturbed on appeal EXP: Unless there are substantial facts and circumstances which have been overlooked and which properly considered might affect the result of the case.

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The credibility of the witness means that his integrity, disposition, and intention to tell the truth. When the witness makes two sworn statements and these statements incur serious contradictions, his testimony is unbelievable. When the contradictions are only minor then it would strengthen it. Falsus in uno, falsus in omnibus False in one part is considered false in whole If the witness is found to be lying in a certain part of his testimony, the entire testimony will not be believed. It is not followed in our country. The court may believe the witness in part and disbelieve the witness in another part depending on the probability and improbability in the case. Affirmative Testimony vs. Negative Testimony The private complainant states that she was raped and the accused denies it. The affirmative will prevail if both statements are probably true. Affirmative testimony is stronger than negative.

January 22, 2017 Section 3. Extrajudicial confession, not sufficient ground for conviction. — An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti Throwback: 2 important jobs of the prosecution: 1.

Delay of a witness in reporting to the authorities what was allegedly witnessed. It does not affect the credibility of the witness if there is reasonable ground in the delay in reporting to the authorities. Affidavit vs. Open court testimony Open court testimony prevails because an affidavit is often taken ex-parte and sometimes the witness/affiant would just depend on the questions propounded by the person taking his testimony. Alibi vs. Positive Testimony Positive identification or testimony prevails. For alibi to prosper the elements must be complied: Elements: 1. The accused must prove that he was in another place at the time the crime was committed. 2. It was physically impossible for him to be at the crime scene.

The accused alleged he was in Argao when the crime was committed. – not physically impossible The accused alleged he was in Cebu when the crime was committed in Manila. – not physically impossible for it takes only 1 hour to reach the place. The accused was in America when the crime was committed. – Sustained by the Supreme Court because evidence of the prosecution was weak. (Larranaga vs. Web) o Denial and alibi are weakest defenses but are still valid defenses. o When the accused raised the defense of alibi, the court should not have at once have mental prejudice against him. There are situations where an accused can have no other possible defense but alibi since that could really be the truth as to his whereabouts at the time in question.

To present evidence that would establish that the crime charged or any crime necessarily included in the crime charged has been committed. Example: The crime is Rape. The prosecution has to prove that indeed the crime of rape or any crime necessarily included therein was committed.

2.

To prove that the person named in the information as the person who allegedly committed the crime, was indeed the one who committed the crime. Example: If Juan Delacruz is charged with Rape, the prosecution has to prove that the crime of rape was committed and that it was Juan Delacruz who committed the same. Bec even if the prosecution can prove that the crime of rape was committed but couldn't prove that it was Juan Delacruz who committed the same, then Juan Delacruz shall be acquitted.

Ex.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D A: NO. Because the corpus delicti still has to be proved. The drugs shall be presented in court.

Amount of evidence required: Proof beyond reasonable doubt. NOTE: If the accused has exhibited an extrajudicial confession and the same is presented in court, that alone is not sufficient to convict the accused. -

The prosecution still has to prove the corpus delicti of the crime, that the crime was indeed committed.

THUS IN EXTRAJUDICIAL CONFESSION, THE FOLLOWING SHOULD BE PRESENTED IN COURT TO CONVICT THE ACCUSED: 1.

Extrajudicial confession

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2.

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The extrajudicial confession was made through a writing. The written confession itself must be presented in court.

Read: People vs Fronda March 15, 2000 Section 4. Circumstantial evidence, when sufficient. — Circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstances;

(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. (5) -

If it was an oral confession and provided the same is valid, it has to be presented in court. Evidence to prove that indeed the crime was committed.

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If there’s no eyewitness, how would you convict the criminal? Ans. Through circumstantial evidence. These are circumstances that if connected would establish the guilt of the accused beyond reasonable doubt. Example: The charge is Rape with Homicide. Circumstances:

The extrajudicial confession & the Evidence to prove the fact of Robbery (prove the elements) ie. that indeed the crime of robbery was committed That the accused entered into a building Through a window not intended for entrance etc. And once inside he took personal property.

Example: The offender surrendered because of the tokhang operation. And so the police filed a case against him pursuant to that admission. Will he be convicted outright?

The opposite of circumstantial evidence is direct evidence. Direct evidence- it directly proves a fact in issue. (ie. eye witness) .

Example: Robbery with force upon things. If the accused presents an extrajudicial confession before the police, assuming all the requisites under the Miranda doctrine were complied with (and so the extrajudicial confession is valid). Now the prosecution has to present: i. ii.

Delicti means crime. Prosecution has to prove the elements of the crime.

(b) The facts from which the inferences are derived are proven; and

Example: -

―Corpus delicti‖- doesn‘t refer to the dead person.

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1.

The accused was the last person seen with the victim. The victim is a call center agent and would be off from duty at 4am. The accused went to IT park to fetch her and she was never heard of since then.

2.

After that the accused could no longer be located because he went to another place.

3.

That the accused and the victim, prior to the incident were sweethearts and immediately prior to the incident the victim broke up with him.

These circumstances if proved would be sufficient to convict the accused.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D Q: What is circumstantial evidence and when is it sufficient for conviction? Elements: 1. 2. 3.

There is more than one circumstances; 2 or more The facts from which the inferences are derived are proven; and The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Example: Parricide. Nobody saw that the husband was indeed the one who killed his wife.

Ratio in allowing circumstantial evidence: To require direct evidence would in many cases free criminals and deny proper protection to society. Crimes are usually committed in secret and under conditions were concealment is highly improbable. Section 5. Substantial evidence. — In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion -

Circumstances: 1. The spouses had a quarrel immediately before the incident. This would establish motive.

TN: 2 requisites of admissibility: 1. Competency - not mentioned substantial evidence. 2. Relevancy.

Throwback: As a rule, motive is not important in the commission of a crime. But this rule presupposes that there is direct evidence. If there’s none then the prosecution can look into a person’s motive. 2.

When the house was on fire, the accused was told about it but did not do anything to save his house and his wife.

3.

When told about it, he ran to the sugarcane field instead of running towards the municipal hall about 250meters away from where the fire truck was. When caught, he was found in possession of a knife and a matchbox.

4.

SC: These circumstances, if combined will establish the guilt of the accused beyond reasonable doubt. People vs Gonzales, February 21, 1990 Q: Which is better, circumstantial evidence or direct evidence? A: Sometimes circumstantial evidence is much better. If you have only one witness and that witness is killed or gets bribed, then no more. Unlike in circumstantial evidence, you can have as much per circumstance and that would be sufficient to convict the accused.

Substantial evidence- amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion

under

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It could be that a piece of evidence is inadmissible because it is excluded by law, but the same may be used and presented before administrative bodies. Because what is required is merely that the evidence is relevant.

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Evidence may be admitted even if it is incompetent because administrative proceedings do not follow technical rules.

Sec. 6 Power of the court to stop further evidence Supposing that the accused raised the defense of alibi, he testified that he was not present during the crime scene, and then the defense after presents 3 witnesses, and the defense wanted to present 7 more, and these other witnesses have the same testimony of the previous 3, however the court stopped such presentation of witnesses, is the court correct? -now this section provides that the court may stop the introduction of further testimony on any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. -take note that this power must be exercised with caution -now what is the difference with corroborative evidence and cumulative evidence? Same form, now that is cumulative, now

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D example your evidence is the testimony of the victim and there is a medical certificate from the doctor, the latter is corroborative -remember, SC states that evidence are weighed and not numbered Sec. 7 Evidence on motion -what do you mean by evidence on motion? Now this is about presentation on evidence when a motion is filed in court, for example the accused would file a motion to prove that he is a minor, that would require presentation of evidence JUDICIAL AFFIDAVIT RULE : A.M. No. 12-8-8-SC -Before, direct examination is done orally; now it is written through a judicial affidavit. -purpose of the judicial affidavit is to speed up the judicial proceedings; it is made through open ended questions (5W1H)

(b) Should a party or a witness desire to keep the original document or object evidence in his possession, he may, after the same has been identified, marked as exhibit, and authenticated, warrant in his judicial affidavit that the copy or reproduction attached to such affidavit is a faithful copy or reproduction of that original. Q: Should the witness identify the documents and attachments in the judicial affidavit? A: No more. Identification of such is done during the taking of the judicial affidavit. All you do in court is to let him identify the judicial affidavit. (Recall the 4 questions) If it‘s a criminal case, let him identify the accused. In addition, the party or witness shall bring the original document or object evidence for comparison during the preliminary conference with the attached copy, reproduction, or pictures, failing which the latter shall not be admitted. ―Mr. Witness, I will show to you a demand letter. Is this the one?‖ This is without prejudice to the introduction of secondary evidence in place of the original when allowed by existing rules.

Sec. 1 Scope -applies to all cases EXCEPT small claims cases. -applies to all courts EXCEPT the Supreme Court. -applies in any proceedings where presentation of evidence is required, however does not include administrative bodies. -when should the parties submit their judicial affidavits? Now section 2, this applies to civil cases as well as motions that require presentation of evidence. Now the parties shall file with the court and serve on the adverse party personally or by licensed courier service, not later than 5 days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents. -now there was a question in the Bar, is the judicial affidavit required to be marked? The answer is no, the judicial affidavit does not necessarily be marked since a judicial affidavit is the direct examination of the witness reduced to writing, however there is no harm if the same is marked. Question, how will the court determine the demeanor of the witness when the direct examination is made thru a judicial affidavit? During the cross examination. 

An objection can be made to the judge if the questioning of the judge is no longer clarificatory.

IMPT! 5- STAR! MEMORIZE! (came out in Rem Law Exam 2016): Section 3. Contents of judicial Affidavit. - A judicial affidavit shall be prepared in the language known to the witness and, if not in English or Filipino, accompanied by a translation in English or Filipino, and shall contain the following: (a) The name, age, residence or business address, and occupation of the witness; - personal circumstances of the witness (b) The name and address of the lawyer who conducts or supervises the examination of the witness and the place where the examination is being held; (c) A statement that the witness is answering the questions asked of him, fully conscious that he does so under oath, and that he may face criminal liability for false testimony or perjury; (d) Questions asked of the witness and his corresponding answers, consecutively numbered, that: (1) Show the circumstances under which the witness acquired the facts upon which he testifies; (2) Elicit from him those facts which are relevant to the issues that the case presents; and (3) Identify the attached documentary and object evidence and establish their authenticity in accordance with the Rules of Court; (e) The signature of the witness over his printed name; and (f) A jurat with the signature of the notary public who administers the oath or an officer who is authorized by law to administer the same.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D Section 4. Sworn attestation of the lawyer. - (a) The judicial affidavit shall contain a sworn attestation at the end, executed by the lawyer who conducted or supervised the examination of the witness, to the effect that: (1) He faithfully recorded or caused to be recorded the questions he asked and the corresponding answers that the witness gave; and (2) Neither he nor any other person then present or assisting him coached the witness regarding the latter's answers. (b) A false attestation shall subject the lawyer mentioned to disciplinary action, including disbarment. Take Note: The contents are Sections 3 and 4. Section 5. Subpoena. - If the government employee or official, or the requested witness, who is neither the witness of the adverse party nor a hostile witness, unjustifiably declines to execute a judicial affidavit or refuses without just cause to make the relevant books, documents, or other things under his control available for copying, authentication, and eventual production in court, the requesting party may avail himself of the issuance of a subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. The rules governing the issuance of a subpoena to the witness in this case shall be the same as when taking his deposition except that the taking of a judicial affidavit shal1 be understood to be ex parte. -

If a party has a witness who refuses to proceed for the taking of the judicial affidavit, the party may ask for assistance of the court for the issuance of a subpoena especially if he is a government official

Section 6. Offer of and objections to testimony in judicial affidavit. - The party presenting the judicial affidavit of his witness in place of direct testimony shall state the purpose of such testimony at the start of the presentation of the witness. -

After the witness has given his personal circumstances, you must state the purpose or make a formal offer (gist or summary) of his testimony. Do this before the start of direct examination.

The adverse party may move to disqualify the witness or to strike out his affidavit or any of the answers found in it on ground of inadmissibility. AFTER THE OFFER/ STATING THE PURPOSE– time that the adverse party can make objections to the entire testimony, or any or some of the questions in the judicial affidavit. This is the same rule in the rules of court. So you don‘t state your objections upon the receipt of the copy.

The court shall promptly rule on the motion and, if granted, shall cause the marking of any excluded answer by placing it in brackets under the initials of an authorized court personnel, without prejudice to a tender of excluded evidence under Section 40 of Rule 132 of the Rules of Court. Section 7. Examination of the witness on his judicial affidavit. - The adverse party shall have the right to crossexamine the witness on his judicial affidavit and on the exhibits attached to the same. The party who presents the witness may also examine him as on re-direct. In every case, the court shall take active part in examining the witness to determine his credibility as well as the truth of his testimony and to elicit the answers that it needs for resolving the issues. Again, judge can ask CLARIFICATORY to determine the credibility of the witness. Disadvantage of Judicial Affidavit: The court can no longer examine the demeanor of the witness Advantage:much time is saved Sec. 8: Oral offer of and objections to exhibits. (a) Upon the termination of the testimony of his last witness, a party shall immediately make an oral offer of evidence of his documentary or object exhibits, piece by piece, in their chronological order, stating the purpose or purposes for which he offers the particular exhibit. (b) After each piece of exhibit is offered, the adverse party shall state the legal ground for his objection, if any, to its admission, and the court shall immediately make its ruling respecting that exhibit. (c) Since the documentary or object exhibits form part of the judicial affidavits that describe and authenticate them, it is sufficient that such exhibits are simply cited by their markings during the offers, the objections, and the rulings, dispensing with the description of each exhibit. Under this rule, what is allowed is only ―oral‖ formal offer. Is this rule applicable to criminal cases? Sec. 9. Application of the rule to criminal actions. (a) This rule shall apply to all criminal actions: (1) Where the maximum of the imposable penalty does not exceed six years; (2) Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or (3) With respect to the civil aspect of the actions, whatever the penalties involved are. (b) The prosecution shall submit the judicial affidavits of its witnesses not later than five days before pre-trial,

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D serving copies of the same upon the accused. The complainant or public prosecutor shall attach to the affidavits such documentary or object evidence as he may have, marking them as Exhibits A, B, C, and so on. No further judicial affidavit, documentary, or object evidence shall be admitted at the trial. (c) If the accused desires to be heard on his defense after receipt of the judicial affidavits of the prosecution, he shall have the option to submit his judicial affidavit as well as those of his witnesses to the court within ten days from receipt of such affidavits and serve a copy of each on the public and private prosecutor, including his documentary and object evidence previously marked as Exhibits 1, 2, 3, and so on. These affidavits shall serve as direct testimonies of the accused and his witnesses when they appear before the court to testify. Why ―if the accused desires‖? Because the accused has the right to remain silent What is the effect if the party does not submit a judicial affidavit? Sec. 10. Effect of non-compliance with the Judicial Affidavit Rule. (a) A party who fails to submit the required judicial affidavits and exhibits on time shall be deemed to have waived their submission. The court may, however, allow only once the late submission of the same provided, the delay is for a valid reason, would not unduly prejudice the opposing party, and the defaulting party pays a fine of not less than P1,000.00 nor more than P5,000.00, at the discretion of the court. (b) The court shall not consider the affidavit of any witness who fails to appear at the scheduled hearing of the case as required. Counsel who fails to appear without valid cause despite notice shall be deemed to have waived his client‘s right to confront by crossexamination the witnesses there present. (c) The court shall not admit as evidence judicial affidavits that do not conform to the content requirements of Section 3 and the attestation requirement of Section 4 above. The court, may, however, allow only once the subsequent submission of the complaint replacement affidavits before the hearing or trial provided the delay is for a valid reason and would not unduly prejudice the opposing party and provided further, that public or private counsel responsible for their preparation and submission pays a fine of not less than P1,000.00 nor more than P5,000.00, at the discretion of the court. Sec. 11. Repeal or modification of inconsistent rules.- The provisions of the Rules of Court and the rules of procedure governing investigating officers and bodies authorized by the

Supreme Court to receive evidence are repealed or modified insofar as these are inconsistent with the provisions of this Rule. The rules of procedure governing quasi-judicial bodies inconsistent herewith are hereby disapproved. It shall also apply to existing cases. RULE ON DNA EVIDENCE The SC applied the use of DNA evidence for the first time in the case of PP vs. Vallejo, 382 SCRA 192, as one of the circumstantial evidence. In circumstantial evidence there are several circumstances. As one of the circumstances in that case that was used to convict the accused, the SC allowed the use of DNA evidence to prove his guilt. At that time, this rule has not been promulgated or issued by the SC. What is the legal basis for the issuance of Rule on DNA, Rule on Judicial Affidavit? Constitution: That the SC shall promulgate rules regarding practice, pleading and procedure. The requirements for admissibility of DNA evidence will be the same – relevancy and competency It is still the Rules of Court that determines the admissibility of DNA evidence. In what cases that this rule shall apply? SECTION 1. Scope. – This Rule shall apply whenever DNA evidence, as defined in Section 3 hereof, is offered, used, or proposed to be offered or used as evidence in all criminal and civil actions as well as special proceedings. Sec. 3. Definition of Terms.– For purposes of this Rule, the following terms shall be defined as follows: ―Biological sample‖ means any organic material originating from a person‘s body, even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva and other body fluids, tissues, hairs and bones; ―inanimate objects‖ – means, dead objects Two kinds of biological sample: (a) Evidence sample - samples taken from the crime scene (example, blood sample, hair, bones) (b) Reference sample – samples taken from the victim and the accused. So, the evidence sample will be matched with the samples taken from the victim and/or the accused

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D ―DNA‖ means deoxyribonucleic acid, which is the chain of molecules found in every nucleated cell of the body. The totality of an individual‘s DNA is unique for the individual, except identical twins; ―DNA evidence‖ constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples; ―DNA profile‖ means genetic information derived from DNA testing of a biological sample obtained from a person, which biological sample is clearly identifiable as originating from that person; ―DNA testing‖ means verified and credible scientific methods which include the extraction of DNA from biological samples, the generation of DNA profiles and the comparison of the information obtained from the DNA testing of biological samples for the purpose of determining, with reasonable certainty, whether or not the DNA obtained from two or more distinct biological samples originates from the same person (direct identification) or if the biological samples originate from related persons (kinship analysis); and What are the factors to be considered if there is a motion for DNA testing? Sec. 4. Application for DNA Testing Order. – The appropriate court may, at any time, either motuproprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following: (a) A biological sample exists that is relevant to the case; (b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons; (c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy of integrity of the DNA testing. This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced. Sec. 4 presupposes that a case is already filed in court and a party is filing a motion for DNA examination. But before the case is filed in court, a DNA examination can already be done,

especially by a law enforcement agency to help it conduct an investigation. The NBI for example may conduct a DNA testing. Lucas vs Lucas, June 6, 2011 SC: (on Paternity) Before granting the motion, the court should see to it that there must be a finding or probable cause or prima facie case proving that indeed there is an absolute necessity for DNA testing. If there is already preponderance of evidence to establish paternity and the DNA test result would only corroborative, the court may disallow the DNA testing. In other words, it is not a matter a right for the party that each motion for DNA testing shall be granted. It must be shown that indeed there is really a need or absolute necessity for such DNA testing. The court should see to it that it was not used merely to harass the putative father. The appropriate court may, motoproprio or upon application of the party, issue and order, after hearing and notice, for the conduct of DNA testing.

Sec. 5. DNA Testing Order. – If the court finds that the requirements in Section 4 hereof have been complied with, the court shall – a. b.

c.

Order, where appropriate, that biological samples be taken from any person or crime scene evidence; Impose reasonable conditions on DNA testing designed to protect the integrity of the biological sample, the testing process and the reliability of the test results, including the condition that the DNA test results shall be simultaneously disclosed to parties involved in the case; and If the biological sample taken is of such an amount that prevents the conduct of confirmatory testing by the other or the adverse party and where additional biological samples of the same kind can no longer be obtained, issue an order requiring all parties to the case or proceedings to witness the DNA testing to be conducted.

An order granting the DNA testing shall be immediately executory and shall not be appealable. Any petition for certiorari initiated therefrom shall not, in any way, stay the implementation thereof, unless a higher court issues an injunctive order. The grant of DNA testing application shall not be construed as an automatic admission into evidence of any component of the DNA evidence that may be obtained as a result thereof.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D -Although it is sanction by the court, it doesnot follow that the DNA result shall automatically be admitted into the record. *****Sec. 6. Post-conviction DNA Testing. – Post-conviction DNA testing may be available, without need of prior court order, to the prosecution or any person convicted by final and executory judgment provided that (a) a biological sample exists, (b) such sample is relevant to the case, and (c) the testing would probably result in the reversal or modification of the judgment of conviction.

-Why does this pertain to post conviction? Because when the accused is acquitted that would be the end of the case. There can be no DNA testing anymore.

If the accused has been convicted, DNA testing may be availed without the need of prior court order.

There can be post DNA testing and the result can be used to reverse the decision of the court or be modified.

b.

c.

d.

The provisions of the Rules of Court concerning the appreciation of evidence shall apply suppletorily. Sec. 8. Reliability of DNA Testing Methodology. – In evaluating whether the DNA testing methodology is reliable, the court shall consider the following: a. b. c. d.

Example: rape with homicide. It was found out that the semen found at the crime scene does not belong to the accused, so the accused has to be acquitted.

For example, it was found out that the victim was not rape, he should not be acquitted, but he should be convicted for homicide. That is the meaning of modification. Sec. 7. Assessment of probative value of DNA evidence. – In assessing the probative value of the DNA evidence presented, the court shall consider the following: a.

The chain of custody, including how the biological samples were collected, how they were handled, and the possibility of contamination of the samples; Contamination means that the samples collected were altered.

The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests; The forensic DNA laboratory, including accreditation by any reputable standards-setting institution and the qualification of the analyst who conducted the tests. If the laboratory is not accredited, the relevant experience of the laboratory in forensic casework and credibility shall be properly established; and The reliability of the testing result, as hereinafter provided.

e. f.

The falsifiability of the principles or methods used, that is, whether the theory or technique can be and has been tested; The subjection to peer review and publication of the principles or methods; The general acceptance of the principles or methods by the relevant scientific community; The existence and maintenance of standards and controls to ensure the correctness of data generated; The existence of an appropriate reference population database; and The general degree of confidence attributed to mathematical calculations used in comparing DNA profiles and the significance and limitation of statistical calculations used in comparing DNA profiles.

Sec. 9. of DNA Testing Results. – In evaluating the results of DNA testing, the court shall consider the following: a. b. c.

The evaluation of the weight of matching DNA evidence or the relevance of mismatching DNA evidence; The results of the DNA testing in the light of the totality of the other evidence presented in the case; and that DNA results that exclude the putative parent from paternity shall be conclusive proof of non-paternity. If the value of the Probability of Paternity is less than 99.9%, the results of the DNA testing shall be considered as corroborative evidence. If the value of

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D the Probability of Paternity is 99.9% or higher there shall be a disputable presumption of paternity. This is now the giving of the weight to the DNA evidence. Sec. 10. Post-conviction DNA Testing – Remedy if the Results Are Favorable to the Convict. – The convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin if the results of the post-conviction DNA testing are favorable to the convict. In the case the court, after due hearing finds the petition to be meritorious, if shall reverse or modify the judgment of conviction and order the release of the convict, unless continued detention is justified for a lawful cause. A similar petition may be filed either in the Court of Appeals or the Supreme Court, or with any member of said courts, which may conduct a hearing thereon or remand the petition to the court of origin and issue the appropriate orders. Why is a petition for writ of habeas corpus is filed in court? Because the detention of the accused is already illegal. Sec. 11. Confidentiality. – DNA profiles and all results or other information obtained from DNA testing shall be confidential. Except upon order of the court, a DNA profile and all results or other information obtained from DNA testing shall only be released to any of the following, under such terms and conditions as may be set forth by the court: a. b. c. d. e.

Person from whom the sample was taken; Person from whom the sample was taken; Lawyers of private complainants in a criminal action; Duly authorized law enforcement agencies; and Other persons as determined by the court.

Whoever discloses, utilizes or publishes in any form any information concerning a DNA profile without the proper court order shall be liable for indirect contempt of the court wherein such DNA evidence was offered, presented or sought to be offered and presented. Where the person from whom the biological sample was taken files a written verified request to the court that allowed the DNA testing for the disclosure of the DNA profile of the person and all results or other information obtained from the DNA testing, he same may be disclosed to the persons named in the written verified request. Sec. 12. Preservation of DNA Evidence. The trial court shall preserve the DNA evidence in its totality, including all

biological samples, DNA profiles and results or other genetic information obtained from DNA testing. For this purpose, the court may order the appropriate government agency to preserve the DNA evidence as follows: a.

In criminal cases: i. for not less than the period of time that any person is under trial for an offense; or ii. in case the accused is serving sentence, until such time as the accused has served his sentence;

a.

In all other cases, until such time as the decision in the case where the DNA evidence was introduced has become final and executory.

The court may allow the physical destruction of a biological sample before the expiration of the periods set forth above, provided that: a. b.

A court order to that effect has been secured; or The person from whom the DNA sample was obtained has consented in writing to the disposal of the DNA evidence.

RULE ON EXAMINATION OF A CHILD WITNESS Legal basis of the Supreme Court in enacting this rule is the Constitution. Section 1. Applicability of the Rule.— Unless otherwise provided, this Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses. This applies to all cases where a child is presented as a witness. Sec. 2. Objectives.— The objectives of this Rule are to create and maintain an environment that will allow children to give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of truth. Take note on the objectives. Sec. 3. Construction of the Rule.— This Rule shall be liberally construed to uphold the best interests of the child and to promote maximum accommodation of child witnesses without prejudice to the constitutional rights of the accused. Sec. 4. Definitions.—

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D A ―child witness‖ is any person who at the time of giving testimony is below the age of eighteen (18) years. In child abuse cases, a child includes one over eighteen (18) years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition. The definition of a child is same with R.A 7610. (c) ―Facilitator‖ means a person appointed by the court to pose questions to a child.

different. You don‘t have to ask ―How old are you‖, ―Show me your fingers‖. So, there should be a DEVELOPMENTAL LEVEL. The ―Developmental Level‖ is the specific growth phase in which an individual is expected to behave. But if that child reaches 12 years old and you still have to talk like that of a 2 or 3 years old, then there‘s something wrong with that child. He could be a special child. What do you mean by ―guardian ad litem‖?

There are times when a child cannot understand some words and only those persons who know how to talk like a child can talk to the child witness. (e) A ―guardian ad litem‖ is a person appointed by the court where the case is pending for a child who is a victim of, accused of, or a witness to a crime to protect the best interests of the said child. -The child witness here could be an ordinary witness, or an accused (child in conflict with law) or a private complainant. As long as he testifies in court and he is below 18 years or over 18 but a victim of child abuse, the court may appoint a guardian ad litem.

Section 5. Guardian ad litem. (a) The court may appoint a guardian ad litem for a child who is a victim of, accused of, or a witness to a crime to promote the best interests of the child. In making the appointment, the court shall consider the background of the guardian ad litem and his familiarity with the judicial process, social service programs, and child development, giving preference to the parents of the child, if qualified. The guardian ad litem may be a member of the Philippine Bar. A person who is a witness in any proceeding involving the child cannot be appointed as a guardian ad litem.

Guardian ad litem vs regular guardian Guardian ad litem- he is a guardian for the purpose of that case only. When the case is terminated, he is no longer a guardian of that person. (f) A ―support person‖ is a person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support for him. (g) ―Best interests of the child‖ means the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the child and most encouraging to his physical, psychological, and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child. This is also featured in R.A 9344- Juvenile Justice (h) ―Developmental level‖ refers to the specific growth phase in which most individuals are expected to behave and function in relation to the advancement of their physical, socioemotional, cognitive, and moral abilities. How will you ask a child with the age of 2 or 3? (JD in a very soft voice) ―How old are you now?‖, ―Show me your fingers, ahh, 2 years old‖ ―Are you now going to school?‖ But if that child reaches 12 years old, it would already be

So what should be considered by the court in appointing a guardian ad litem? The court shall consider the background of the guardian ad litem and his familiarity with the judicial process, social service programs, and child development, giving preference to the parents of the child. 

So the parents of the child shall be given preference that is if the parents know about the judicial process or the social service programs. Mostly likely the person appointed are from the DSWD. Although the court has a ―court social worker‖ and they are paid by the Supreme Court. The Family Courts (We have 4 family courts in Cebu City), so in every family court there‘s a designated social worker, ―Court social worker‖, paid by the Supreme Court. It is also possible that they‘ll be appointed as guardian ad litem by the court.

So what are the powers and duties of a ―guardian ad litem‖? (b) The guardian ad litem:

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D (1) Shall attend all interviews, depositions, hearings, and trial proceedings in which a child participates; (2) Shall make recommendations to the court concerning the welfare of the child; (3) Shall have access to all reports, evaluations, and records necessary to effectively advocate for the child, except privileged communications; (4) Shall marshal and coordinate the delivery of resources and special services to the child; (5) Shall explain, in language understandable to the child, all legal proceedings, including police investigations, in which the child is involved; (6) Shall assist the child and his family in coping with the emotional effects of crime and subsequent criminal or non-criminal proceedings in which the child is involved; (7) May remain with the child while the child waits to testify; (8) May interview witnesses; and

formers testimony through a Live-Link Television.  Sec. 26--- that the taking be done screens or one-way mirror. There are child victims, who upon seeing accused‘s face would cry and starts shaking. Those who experienced trauma in the hands of the accused.  (JD: One way mirrors -- Example: A heavily tainted car.)  Purpose: So that the child won‘t see the accused and will be able to testify. If the guardian ad litem is a lawyer, he may object during trial that questions asked of the child are not appropriate to his developmental level. 

JD: ―kadtoakog.ingonninyongaangbata 2 years old‖ How do you ask questions from a 2 year old? You should also ask like a child, like you are also a 2 year old. (d) The guardian ad litem may communicate concerns regarding the child to the court through an officer of the court designated for that purpose. 

(9) May request additional examinations by medical or mental health professionals if there is a compelling need therefor. (c) The guardian ad litem shall be notified of all proceedings but shall not participate in the trial. However, he may file motions pursuant to sections 9, 10, 25, 26, 27 and 31(c). If the guardian ad litem is a lawyer, he may object during trial that questions asked of the child are not appropriate to his developmental level. 





Sec. 9—this is the appointment of a special court interpreter for the child. Our courts has regular court interpreters. But if the court interpreter does not know how to communicate with the child, special court interpreter should be appointed by the court. And the guardian ad litem may file a motion to that effect. Sec. 10--- Facilitator, this is the person who can help the court in asking questions to the child. There are children who are too shy or too young, and there are people who know how to deal with that kind of children. Sec. 25--- For the conduct of ―Live- Link Television‖ if the child witness, finds it difficult to testify in court, the guardian ad litem may file a motion for taking the

This is another privilege communication between a guardian ad litem and the witness. Remember the witness here could be an ordinary witness, or he could be the victim or the CICL.

(e) The guardian ad litem shall not testify in any proceeding concerning any information, statement, or opinion received from the child in the course of serving as a guardian ad litem, unless the court finds it necessary to promote the best interests of the child. (f) The guardian ad litem shall be presumed to have acted in good faith in compliance with his duties described in sub-section. Section 6. Competency. - Every child is presumed qualified to be a witness. 

And he objects to that qualification of the witness, he objects to the competency of the witness, must present proof that the witness is not competent.



The age of the child by itself is not a sufficient basis to determine the competence of the witness.

However, the court shall conduct a competency examination of a child, motuproprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court.



(a) Proof of necessity. - A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination. (b) Burden of proof. - To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence. (c) Persons allowed at competency examination. Only the following are allowed to attend a competency examination: (1) The judge personnel;

and

necessary

Suppose you can find cellphone of your classmate? What are you going to do with that cp? A: I will return it to teacher may. [JD mimicking a 2 year old child  ] So if the child will answer that way? Do you think the child is competent to testify? YES.)

court

(2) The counsel for the parties; (3) The guardian ad litem;

That is an example of a situation where the court has to conduct competency examination to determine whether or not the child is competent to testify.

(4) One or more support persons for the child; and (5) The defendant, unless the court determines that competence can be fully evaluated in his absence. (d) Conduct of examination. - Examination of a child as to his competence shall be conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child. (e) Developmentally appropriate questions. - The questions asked at the competency examination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully. (f) Continuing duty to assess competence. - The court has the duty of continuously assessing the competence of the child throughout his testimony. 

(JD: so if there is doubt as to the competency of the child, the court has to conduct the so called competency examination. Now the examination shall be conducted only by the

JUDGE. Meaning only the judge may ask questions to the child. and the questions should not be related to the issues of the case. So for example, if the case is rape or child abuse, in order to determine whether the child is competent or not. The court will ask questions which are not related to the issues of the case. What‘s the purpose of the questioning of the court? In order to determine if witness can relate, can observe, can make his observation, can remember his observation and can relate such observation to others. Example: - how old are you now?, - what is your name?, - and your friends calls you?, - are you now going to school?

Section 7. Oath or affirmation. - Before testifying, a child shall take an oath or affirmation to tell the truth. Section 8. Examination of a child witness. - The examination of a child witness presented in a hearing or any proceeding shall be done in open court. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. 

JD: Are there questions wherein the answers are not done orally? YES.

Ex. The child saw that his father stabbed his mother. Q: will you pls. show to the court, you said your father stabbed your mother, let us suppose that this is the knife, will you pls. show to the court how did your father hold the knife? How did your father hold the knife before he stabbed your mother. A: Like this way. (So you would now manifest for the record that the child in his left hand with a clenched fist with the marker serving as a knife, with the blade and tip of the knife forward. You have to put that on record) -- then after that what did your father do? A: My father did it this way.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D (the child thrust forward his hand as if he is stabbing) 



So unless the question calls for a different mode of answer, the answers of the witness should be given orally.

(a) The court may, motuproprio or upon motion, appoint a facilitator if it determines that the child is unable to understand or respond to questions asked. The facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent, or relative.

The party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow him to testify in the manner provided in this Rule. Section 9. Interpreter for child. 

 



So I have said earlier, every court has its own court interpreter. But there are instances that the court has to appoint a special interpreter for the child. A person who can communicate to the child. JD: I remember in one case the child was a victim of rape. During cross-examination, the cross-examiner asked the witness, ― Was the organ able to penetrate your vagina?‖ Interpreter (talking to the child): Dae, angkadto organ basaimugikiha? Nakasudjud to saimukinatawo? Child:Dili man to organ, plauta man to.

So the court has to appoint if there‘s a need of a special interpreter for the child, either motuproprio or upon motion of a party. (a) When a child does not understand the English or Filipino language or is unable to communicate in said languages due to his developmental level, fear, shyness, disability, or other similar reason, an interpreter whom the child can understand and who understands the child may be appointed by the court, motuproprio or upon motion, to interpret for the child.

(b) If the court appoints a facilitator, the respective counsels for the parties shall pose questions to the child only through the facilitator. The questions shall either be in the words used by counsel or, if the child is not likely to understand the same, in words that are comprehensible to the child and which convey the meaning intended by counsel. (c) The facilitator shall take an oath or affirmation to pose questions to the child according to the meaning intended by counsel. Section 11. Support persons. 

They are the cheering squad of the child. A person who has to be by the child‘s side in order to appease the child.

(a) A child testifying at a judicial proceeding or making a deposition shall have the right to be accompanied by one or two persons of his own choosing to provide him emotional support. 

(b) If a witness or member of the family of the child is the only person who can serve as an interpreter for the child, he shall not be disqualified and may serve as the interpreter of the child. The interpreter, however, who is also a witness, shall testify ahead of the child.

―mag-gakos2xsabata, magpalingkodsabatasaiyangpaa, maoang maghapoy2x sabuhoksabata. – emotional support. ‖ (1) Both support persons shall remain within the view of the child during his testimony. (2) One of the support persons may accompany the child to the witness stand, provided the support person does not completely obscure the child from the view of the opposing party, judge, or hearing officer.

(c) An interpreter shall take an oath or affirmation to make a true and accurate interpretation.

(3) The court may allow the support person to hold the hand of the child or take other appropriate steps to provide emotional support to the child in the course of the proceedings.

What about if he is a relative? Is he disqualified? Sec. 9 (b)  Section 10. Facilitator to pose questions to child. -

It is possible that he is good in interpreting but the child is really shy or the child has difficulty in answering. So the court may appoint a facilitator. A child of tender years. Person who knows to ―ulogulog‖ 

Appropriate steps: Kadtopwedeniyapalingkuronsaiyapaaangbata.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D (4) The court shall instruct the support persons not to prompt, sway, or influence the child during his testimony.  

He will accompany the child. pwedeniyagaekuguson. He cannot whisper or coach the child in answering the questions.

(b) If the support person chosen by the child is also a witness, the court may disapprove the choice if it is sufficiently established that the attendance of the support person during the testimony of the child would pose a substantial risk of influencing or affecting the content of the testimony of the child.

The judge need not wear his robe in order not to be confused with ―Batman‖. Nothing in this SEC. or any other provision of law, except official in-court identification provisions, shall be construed to require a child to look at the accused. If the child does not want to look at the accused, he should not be compelled to do so except for ―in-court‖ identification. Accommodations for the child under this SEC. need not be supported by a finding of trauma to the child.

(c) If the support person who is also a witness is allowed by the court, his testimony shall be presented ahead of the testimony of the child.

SEC. 14

Section 12. Waiting area for child witnesses. –

Testimony during appropriate hours



A child has short attention span.

The courts are encouraged to provide a waiting area for children that is separate from waiting areas used by other persons. The waiting area for children should be furnished so as to make a child comfortable. 

So, if a child witness will testify the court must also prepare toys.

SEC. 13 Courtroom environment To create a more comfortable environment for the child, the court may, in its discretion, direct and supervise the location, movement and deportment of all persons in the courtroom including the parties, their counsel, child, witnesses, support persons, guardian ad litem, facilitator, and court personnel. The child may be allowed to testify from a place other than the witness chair.

The court may order that the testimony of the child should be taken during a time of day when the child is wellrested. SEC. 15 Recess during testimony The child may be allowed reasonable periods of relief while undergoing direct, cross, re-direct, and re-cross examinations as often as necessary depending on his developmental level. SEC. 16 Testimonial aids The court shall permit a child to use dolls, anatomically-correct dolls, puppets, drawings, mannequins, or any other appropriate demonstrative device to assist him in his testimony.

The child may testify in any place including the table of the judge if the same would make the child want to testify

For Example: In a case for Acts of Lasciviousness, the child may be given an anatomically correct doll in order for the child to identify which part of his/her body, the accused touched.

The witness chair or other place from which the child testifies may be turned to facilitate his testimony but the opposing party and his counsel must have a frontal or profile view of the child during the testimony of the child. SEC. 17 The witness chair or other place from which the child testifies may also be rearranged to allow the child to see the opposing party and his counsel, if he chooses to look at them, without turning his body or leaving the witness stand. The judge need not wear his judicial robe.

Emotional security item While testifying, a child shall be allowed to have an item of his own choosing such as a blanket, toy, or doll.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D SEC. 18 Approaching the witness The court may prohibit a counsel from approaching a child if it appears that the child is fearful of or intimidated by the counsel.

Objections to questions should be couched in a manner so as not to mislead, confuse, frighten, or intimidate the child. SEC. 22 Corroboration

SEC. 19 Mode of questioning The court shall exercise control over the questioning of children so as to (1) facilitate the ascertainment of the truth, (2) ensure that questions are stated in a form appropriate to the developmental level of the child, (3) protect children from harassment or undue embarrassment, and (4) avoid waste of time. The court may allow the child witness to testify in a narrative form. General Rule: Question propounded seeking an answer in a Narrative form is not allowed For Example: Counsel to witness: ―Mr. Witness, please tell this Honorable Court what happened on that day?‖ This is objectionable because as a rule, a witness is not allowed to narrate Exception: Child Witness If the witness is a child, he/she could be permitted to testify in a narrative form provided it is related to the purpose of the testimony SEC. 20 Leading questions The court may allow leading questions in all stages of examination of a child if the same will further the interests of justice.

Corroboration shall not be required of a testimony of a child. His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and non-criminal cases. SEC. 23 Excluding the public When a child testifies, the court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made to protect the right to privacy of the child or if the court determines on the record that requiring the child to testify in open court would cause psychological harm to him, hinder the ascertainment of truth, or result in his inability to effectively communicate due to embarrassment, fear, or timidity. In making its order, the court shall consider the developmental level of the child, the nature of the crime, the nature of his testimony regarding the crime, his relationship to the accused and to persons attending the trial, his desires, and the interests of his parents or legal guardian. The court may, motu proprio, exclude the public from the courtroom if the evidence to be produced during trial is of such character as to be offensive to decency or public morals. The court may also, on motion of the accused, exclude the public from trial, except court personnel and the counsel of the parties. The court may have the public excluded from the courtroom during the testimony of the child and may even have such testimony taken in the Chambers of the judge. SEC. 24 Persons prohibited from entering and leaving courtroom.

SEC. 21 Objections to questions

The court may order that persons attending the trial shall not enter or leave the courtroom during the testimony of the child.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D The court could order a person not to leave the courtroom when by the act of leaving the child would stop testifying and start crying.

c)

SEC. 25 Live-link television testimony in criminal cases where the child is a victim or a witness

d) e)

Live-Link Television testimony This refers to the testimony of the child taken with the use of live-link television. This is resorted to when the child finds it difficult to testify in open court i.e., the child is too shy, suffering from trauma. It is one of the alternatives modes of taking the testimony of the child. a)

The prosecutor, counsel or the guardian ad litem may apply for an order that the testimony of the child be taken in a room outside the courtroom and be televised to the courtroom by live-link television. Before the guardian ad litem applies for an order under this SEC., he shall consult the prosecutor or counsel and shall defer to the judgment of the prosecutor or counsel regarding the necessity of applying for an order. In case the guardian ad ltiem is convinced that the decision of the prosecutor or counsel not to apply will cause the child serious emotional trauma, he himself may apply for the order.

In criminal procedure, the case is under the direction of the prosecutor. In this situation, however, the direction of said prosecutor over the case is overridden by the action of the guardian ad litem. The person seeking such an order shall apply at least five (5) days before the trial date, unless the court finds on the record that the need for such an order was not reasonably foreseeable. b)

The court may motu proprio hear and determine, with notice to the parties, the need for taking the testimony of the child through live-link television.

Before granting or denying the motion, it must be heard first by the court. As to who may file the said motion, it could be the private or public prosecutor or the guardian ad litem if neither the private nor public prosecutor files the same.

f)

g)

The judge may question the child in chambers, or in some comfortable place other than the courtroom, in the presence of the support person, guardian ad litem, prosecutor, and counsel for the parties. The questions of the judge shall not be related to the issues at trial but to the feelings of the child about testifying in the courtroom. The judge may exclude any person, including the accused, whose presence or conduct causes fear to the child. The court shall issue an order granting or denying the use of live-link television and stating the reasons therefor. It shall consider the following factors: 1. The age and level of development of the child; 2. His physical and mental health, including any mental or physical disability; 3. Any physical, emotional, or psychological injury experienced by him; 4. The nature of the alleged abuse; 5. Any threats against the child; 6. His relationship with the accused or adverse party; 7. His reaction to any prior encounters with the accused in court or elsewhere; 8. His reaction prior to trial when the topic of testifying was discussed with him by parents or professionals; 9. Specific symptoms of stress exhibited by the child in the days prior to testifying; 10. Testimony of expert or lay witnesses; 11. The custodial situation of the child and the attitude of the members of his family regarding the events about which he will testify; and 12. Other relevant factors, such as court atmosphere and formalities of court procedure. The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child. If the court orders the taking of testimony by livelink television: 1. The child shall testify in a room separate from the courtroom in the presence of the guardian ad litem; one or both of his support persons; the facilitator and interpreter, if any; a court officer appointed by the court; persons necessary to operate the closed-circuit television equipment; and other persons whose presence are determined by the court to be necessary to the welfare and well-being of the child; 2. The judge, prosecutor, accused, and counsel for the parties shall be in the courtroom. The

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D

3.

testimony of the child shall be transmitted by live-link television into the courtroom for viewing and hearing by the judge, prosecutor, counsel for the parties, accused, victim, and the public unless excluded. If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor.

second and third paragraphs of Section 25(a) of this Rule. The court shall issue an order stating the reasons and describing the approved courtroom arrangement. The procedure would be for the public or private prosecutor to apply for the order. The guardian ad litem must first consult the said prosecutors and in case they would not act, he himself would be the one to file for the said order. b)

In-court Identification For Example: The court may allow the child to enter in the courtroom in order to identify the accused. However, if the child would not want to do so, the other option is to allow the child to identify the accused by showing the image of the latter on a television monitor.

SEC. 27. Videotaped deposition [This is similar to conditional examination in Criminal Procedure.] a)

Counsel to child showing the images of the persons inside the courtroom: ―Please identify the person who touched you‖ Child: ―It is the person on the last corner with the San Miguel Logo. 4.

h)

The court may set other conditions and limitations on the taking of the testimony that it finds just and appropriate, taking into consideration the best interests of the child. The testimony of the child shall be preserved on videotape, digital disc, or other similar devices which shall be made part of the court record and shall be subject to a protective order as provided in SEC. 31(b).

Another way of obtaining the testimony of the child: SEC. 26 Screens, one-way mirrors, and other devices to shield child from accused a)

The prosecutor or the guardian ad litem may apply for an order that the chair of the child or that a screen or other device be placed in the courtroom in such a manner that the child cannot see the accused while testifying. Before the guardian ad litem applies for an order under this Section, he shall consult with the prosecutor or counsel subject to the

If the court grants an application to shield the child from the accused while testifying in the courtroom, the courtroom shall be arranged to enable the accused to view the child.

b)

The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be taken of the testimony of the child and that it be recorded and preserved on videotape. Before the guardian ad litem applies for an order under this SEC., he shall consult with the prosecutor or counsel subject to the second and third paragraphs of SEC. 25(a). If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape.

Recap on when Conditional Examination may be taken: When there is a likelihood that the witness to be presented cannot appear during the trial i.e., due to illness In this case, there is also a likelihood that the child will not be able to testify. The counsel or prosecutor may make a motion before the court to have a ―VIDEOTAPE DEPOSITION‖ be taken on the testimony of the child. This is an advance testimony. The person who will preside the taking of the ―VIDEOTAPE DEPOSITION‖ would be the presiding judge. The judge himself must be the one to preside so that he can observe the demeanor of the child during his testimony. c)

The judge shall preside at the videotaped deposition of a child. Objections to deposition testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the taking of the

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D deposition. The other persons who may be permitted to be present at the proceeding are: 1. The prosecutor; 2. The defense counsel; 3. The guardian ad litem; 4. The accused, subject to sub-SEC. (e); 5. Other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child; 6. One or both of his support persons, the facilitator and interpreter, if any; 7. The court stenographer; and 8. Persons necessary to operate the videotape equipment.

described in Section 4(c), Rule 23 of the 1997 Rules of Civil Procedure, the court may admit into evidence the videotaped deposition of the child in lieu of his testimony at the trial. The court shall issue an order stating the reasons therefor.

If the purpose to which the Videotape deposition was made occurs, the court will admit to evidence the videotape deposition. If the child can testify, his videotape deposition would be inadmissible. j)

The taking of the Videotape deposition is similar to an advance trial. The accused is given opportunity to cross examine the child witness. d)

The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition.

After the original videotaping but before or during trial, any party may file any motion for additional videotaping on the ground of newly discovered evidence. The court may order an additional videotaped deposition to receive the newly discovered evidence.

Another exception to the Hearsay Rule: SEC. 28 Hearsay exception in child abuse cases

e)

If the order of the court is based on evidence that the child is unable to testify in the physical presence of the accused, the court may direct the latter to be excluded from the room in which the deposition is conducted. In case of exclusion of the accused, the court shall order that the testimony of the child be taken by live-link television in accordance with Section 25 of this Rule. If the accused is excluded from the deposition, it is not necessary that the child be able to view an image of the accused.

f)

g)

h) i)

The videotaped deposition shall be preserved and stenographically recorded. The videotape and the stenographic notes shall be transmitted to the clerk of the court where the case is pending for safekeeping and shall be made a part of the record. The court may set other conditions on the taking of the deposition that it finds just and appropriate, taking into consideration the best interests of the child, the constitutional rights of the accused, and other relevant factors. The videotaped deposition and stenographic notes shall be subject to a protective order as provided in Section 31(b). If, at the time of trial, the court finds that the child is unable to testify for a reason stated in Section 25(f) of this Rule, or is unavailable for any reason

A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules: a)

Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent.

As a rule, the person who would be cross-examined would be the person who testifies. However, in this instance, in order to ascertain the truth of the Hearsay statement, the child would be the one who would be cross-examined. Example of Hearsay Statement made in Child abuse case:

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D A child was a victim of incestuous rape. The most likely person the child would confide to would be his/her teacher. The teacher in turn after coordinating with the guidance counselor and the principal would seek the help of the DSWD.

SEC. 29 Admissibility of videotaped and audiotaped in-depth investigative or disclosure interviews in child abuse cases

After determining the crime committed, a case would be filed in court.

This refers to recorded interview of the child.

The teacher or the guidance counselor whom the child told about the incident, if presented in court:

For Example:

Would his testimony be admissible?

The child complains of being subjected to Child abuse. The incident is reported to DSWD which in turn report the same to the Police. The Police which have the Women‘s desk when it conducts the interview with the use or recording, the recording would be admissible.

The testimony is admissible as an exception to the Hearsay rule. b)

In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors: 1. Whether there is a motive to lie;

In the above example, the presence of motive for the teacher or the guidance counselor to lie must be considered. 2. 3. 4. 5. 6. 7. 8.

The general character of the declarant child; Whether more than one person heard the statement; Whether the statement was spontaneous; The timing of the statement and the relationship between the declarant child and witness; Cross-examination could not show the lack of knowledge of the declarant child; The possibility of faulty recollection of the declarant child is remote; and The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused.

When can the child be considered unavailable? c)

The child witness shall be considered unavailable under the following situations: 1. Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or 2. Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. 3. When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence.

The court may admit videotape and audiotape in-depth investigative or disclosure interviews as evidence, under the following conditions: Before the recording may be admitted, the following conditions needs to be complied: a) b)

c)

The child witness is unable to testify in court on grounds and under conditions established under Section 28 (c). The interview of the child was conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services in situations where child abuse is suspected so as to determine whether child abuse occurred. The party offering the videotape or audiotape must prove that: 1. The videotape or audiotape discloses the identity of all individuals present and at all times includes their images and voices; 2. The statement was not made in response to questioning calculated to lead the child to make a particular statement or is clearly shown to be the statement of the child and not the product of improper suggestion; 3. The videotape and audiotape machine or device was capable of recording testimony; 4. The person operating the device was competent to operate it; 5. The videotape or audiotape is authentic and correct; and 6. It has been duly preserved.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D The individual conducting the interview of the child shall be available at trial for examination by any party. Before the videotape or audiotape is offered in evidence, all parties shall be afforded an opportunity to view or listen to it and shall be furnished a copy of a written transcript of the proceedings. The fact that an investigative interview is not videotaped or audiotaped as required by this Section shall not by itself constitute a basis to exclude from evidence outof-court statements or testimony of the child. It may, however, be considered in determining the reliability of the statements of the child describing abuse. If the interview was not audiotaped or videotaped but instead the same was recorded through handwriting, still, the interview is admissible. ---oOo---

Inadmissible evidence. - The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse: 1. Evidence offered to prove that the alleged victim engaged in other sexual behavior; and 2. Evidence offered to prove the sexual predisposition of the alleged victim.

If the accused presents evidence that the child is a prostitute. Said evidence is inadmissible. In RA 7610, there could be child abuse if the child is a child prostitute. The evidence would be ADMISSIBLE when the same is to prove that: Exception. - Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible.

A party intending to offer such evidence must: 1.

2.

Serve the motion on all parties and the guardian ad litem at least three (3) days before the hearing of the motion.

Before admitting such evidence, the court must conduct a hearing in chambers and afford the child, his guardian ad litem, the parties, and their counsel a right to attend and be heard. The motion and the record of the hearing must be sealed and remain under seal and protected by a protective order set forth in SEC. 31(b). The child shall not be required to testify at the hearing in chambers except with his consent.

Protection of privacy and safety

SEC. 30

b)

There should be a motion and an order.

SEC. 31

―SEXUAL ABUSE SHIELD RULE‖ a)

the court, for good cause, requires a different time for filing or permits filing during trial; and

File a written motion at least fifteen (15) days before trial, specifically describing the evidence and stating the purpose for which it is offered, unless

a)

b)

Confidentiality of records. - Any record regarding a child shall be confidential and kept under seal. Except upon written request and order of the court, a record shall only be released to the following: 1. Members of the court staff for administrative use; 2. The prosecuting attorney; 3. Defense counsel; 4. The guardian ad litem; 5. Agents of investigating law enforcement agencies; and 6. ther persons as determined by the court. Protective order. - Any videotape or audiotape of a child that is part of the court record shall be under a protective order that provides as follows: 1. Tapes may be viewed only by parties, their counsel, their expert witness, and the guardian ad litem. 2. No tape, or any portion thereof, shall be divulged by any person mentioned in sub-SEC. (a) to any other person, except as necessary for the trial. 3. No person shall be granted access to the tape, its transcription or any part thereof unless he signs a written affirmation that he has received and read a copy of the protective order; that he submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he will be subject to the contempt power of the court. 4. Each of the tape cassettes and transcripts thereof made available to the parties, their

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D counsel, and respective agents shall bear the following cautionary notice: "This object or document and the contents thereof are subject to a protective order issued by the court in (case title) , (case number) . They shall not be examined, inspected, read, viewed, or copied by any person, or disclosed to any person, except as provided in the protective order. No additional copies of the tape or any of its portion shall be made, given, sold, or shown to any person without prior court order. Any person violating such protective order is subject to the contempt power of the court and other penalties prescribed by law." 5.

c)

d)

No tape shall be given, loaned, sold, or shown to any person except as ordered by the court. 6. Within thirty (30) days from receipt, all copies of the tape and any transcripts thereof shall be returned to the clerk of court for safekeeping unless the period is extended by the court on motion of a party. 7. This protective order shall remain in full force and effect until further order of the court. Additional protective orders. - The court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of the child. Publication of identity contemptuous. - Whoever publishes or causes to be published in any format the name, address, telephone number, school, or other identifying information of a child who is or is alleged to be a victim or accused of a crime or a witness thereof, or an immediate family of the child shall be liable to the contempt power of the court.

At present, the name of the victim is no longer part of the record of the case. The victim is identified with the letters AAA or BBB. e)

f)

Physical safety of child; exclusion of evidence. - A child has a right at any court proceeding not to testify regarding personal identifying information, including his name, address, telephone number, school, and other information that could endanger his physical safety or his family. The court may, however, require the child to testify regarding personal identifying information in the interest of justice. Destruction of videotapes and audiotapes. - Any videotape or audiotape of a child produced under the provisions of this Rule or otherwise made part

g)

of the court record shall be destroyed after five (5) years have elapsed from the date of entry of judgment. Records of youthful offender. - Where a youthful offender has been charged before any city or provincial prosecutor or before any municipal judge and the charges have been ordered dropped, all the records of the case shall be considered as privileged and may not be disclosed directly or indirectly to anyone for any purpose whatsoever.

The municipal judge is no longer part of those which can conduct Preliminary Investigation. The conduct of Preliminary Investigation is now purely an Executive function. Where a youthful offender has been charged and the court acquits him, or dismisses the case or commits him to an institution and subsequently releases him pursuant to Chapter 3 of P. D. No. 603, all the records of his case shall also be considered as privileged and may not be disclosed directly or indirectly to anyone except to determine if a defendant may have his sentence suspended under Article 192 of P. D. No. 603 or if he may be granted probation under the provisions of P. D. No. 968 or to enforce his civil liability, if said liability has been imposed in the criminal action. The youthful offender concerned shall not be held under any provision of law to be guilty of perjury or of concealment or misrepresentation by reason of his failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him for any purpose.

It means the youthful offender will not be charged either criminally or administratively for his failure to acknowledge that he charged of a crime before. For Example: The youthful offender who later on studied Law, applies to take the bar will not be liable for perjury or any administrative sanction for omitting the fact that he was charged with a crime before. "Records" within the meaning of this sub-SEC. shall include those which may be in the files of the National Bureau of Investigation and with any police department or government agency which may have been involved in the case. (Art. 200, P. D. No. 603) January 23, 2017

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D Commonly used objections What is objection? It is the procedure used to oppose the introduction of improper evidence or to oppose inappropriate behavior and procedure. To make proper objection at a proper time is another indispensable skill that a trial lawyer should possess. This is usually used by trial lawyers and not by ―table lawyers‖ or ―legal officers‖. When is oral evidence objected? It is objected after its express offer immediately before the witness start his testimony on direct examination testifies. When thereafter the witness is allowed to testify, objection to a question propounded (either on direct or cross-examination) in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become apparent. Before the Judicial affidavit rule, the counsel has to opportunities to object. First is before the testimony of a witness after its offer, and the second is during the course of the direct examination. But now, there is only one opportunity to object because of the JA rule. It is after the formal offer. There are no more objections during the making of the questions (direct examination) because the questions are made ex parte. The counsel presenting the witness can make his objections during the cross-examination. When is object and documentary evidence objected? They are objected when the same are formally offered, which is done after the presentation of the party‘s testimonial evidence. The grounds for objection must be specified. Evidence not objected to is deemed admitted and becomes ―property of the case‖. However, according to jurisprudence, hearsay evidence even if not objected to, the same has no probative value. When no objection is made to the admissibility of evidence at the trial court, the same cannot be raised for the first time on appeal. Objections to evidence may be formal or substantive. Formal objections refer to the form of question. Examples are: a.

b.

Leading question – a question which suggests the answer to the witness. It is, however, allowed when questions pertains only to preliminary matters, on cross-examination, or when the witness is a child of tender years or hostile or ignorant or feeble minded or deaf mute. Misleading question – two kinds: (1) a question which assumes a fact not testified to by the witness; (2)

c.

d. e. f. g.

h.

i.

j.

contrary to what the witness has earlier testified. It usually occurs during the cross-examination. No basis or failure to lay the basis – this is similar to a misleading question. It is usually raised during direct examination. It refers to a question asked on the assumption that a certain fact upon which it is premised has already been established in the record, although in truth such fact has not yet been testified to. For example, a document or object is shown to a witness for identification when in fact there was no testimony yet from the witness that such document or object exists. Double or multiple question – contains two or more questions. Vague, unintelligible and kilometric – a question which cannot be understood as to what is its meaning. Embarrassing or insulting. Repetitious or already answered – a question that is already asked or answered. But is a cross-examiner can be allowed to ask a question which was already asked and answered during the direct exam. When you are the cross-examiner, you should be able to acquire facts from the witness which are favorable to you. This is done by using leading questions. Argumentative – For example. The witness, the private complainant herself, insists that she could remember very well the face of the accused charged with robbery even if she saw his face just for about 2 seconds. Still, the defense counsel would ask her: Is it not a fact that nobody could possibly remember the face of the robber in a span of two seconds? Calling for a narrative answer. The witness is not allowed to narrate. For example. The counsel would ask – ―Tell the Court in your own words what happened?‖ It is not allowed as it deprives the opposing counsel a chance to object the introduction of inadmissible testimony. Failure to ―lay the predicate‖ – before an open court testimony of a witness may be impeached or discredited by prior inconsistent statement, either oral or written, made by him, he must be confronted first with such prior written statement with the circumstances under which it was made, by asking him whether he made such statement, and by giving him a chance to explain the inconsistency.

An objection can also be made as to the manner of questioning of the counsel such as: ―Objection, Your Honor, the counsel is badgering or harassing the witness. May we request the Honorable Court to admonish the counsel not to harass the witness. Substantive objections are those based on the inadmissibility of the evidence offered because the Rules of Court,

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D Constitution, or other laws or rules prohibit its admission. Examples are: a.

b.

c. d.

e.

f. g.

h.

Question calls for irrelevant and immaterial answer – These are those which have no logical connection to the issues in the case. Questions which call for answers not alleged in the Complaint may be considered irrelevant. On the other hand, incompetent evidence is one which is prohibited by the rules or law. (It is different form incompetent witness). Question calls for hearsay answer. This simply means that the witness is testifying a matter which is not of his personal knowledge unless it falls under the exceptions to the hearsay rule, i.e. res gestae, dying declaration, independently relevant facts. Witness is incompetent – when a question calls for an answer to which the witness has no personal knowledge or expertise. Question calls for an opinion – Generally, an opinion of a witness is not admissible in evidence except if he is presented and qualified as an expert witness to testify on matters requiring expert opinion. However, opinion of an ordinary witness may be received regarding the following: 1. The identity of a person about whom he has adequate knowledge; 2. A handwriting with which he has sufficient familiarity; 3. The mental sanity of a person with whom he is sufficiently acquainted; 4. His impressions of the emotion, behavior, condition or appearance of a person. Question violates the best evidence rule – when the subject of the inquiry is the contents of the document, no evidence shall be admissible other than the original of the document. Secondary evidence is admissible only when the loss or unavailability of the original is satisfactorily explained. Question violates the parol evidence rule – evidence is not allowed to change or vary the contents of written agreement or contract between the parties. Question call for an answer under privileged communication – for example, communication between husband and wife; lawyer and client; doctor and patient or priest and penitent. Question is speculative or hypothetical – a question which assumes a certain given facts and on such basis the witness is asked what would happen or what would result from the existence of such facts. For example, an eyewitness to a stabbing incident is asked: ―Suppose the victim was not brought immediately to the hospital, do you think he would have died?‖ However, if a witness has been presented as an expert, a hypothetical question could be asked.

i. j. k.

l.

Question violates the witness‘ right against selfincrimination – For example. An ordinary witness is being asked if he is using dangerous drugs. Question calls for character evidence of the accused – unless the accused has earlier presented evidence of his good character. Question calls for answer involving defective confession or admission or violation of the so called ―Miranda Doctrine‖. – but the defective communication can be admitted in evidence against the law enforcer who violated the ―Miranda Doctrine‖. Question calls for an answer involving violation of res inter aliosacta – rights of a party cannot be prejudiced by an act, declaration or omission of another. Or an 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 thing at another time except to prove that he did or did not do the same thing at another time except to prove specific intent or knowledge or identity, plan, scheme, habit etc.

Some lawyers would telegraph the answer to the witness through or by objecting to the question and make some legal explanation even if not asked. To avoid argument, admonish him that he should only state the legal ground/s for his objection. When can an answer of the witness be deleted or stricken off the record? 1. The witness answers prematurely (witness immediately answers the question without giving the counsel to object); 2. The answer of the witness is unresponsive; 3. The answer is immaterial and irrelevant; 4. The testimony of the witness was not completed. For example, there was no cross-examination conducted without fault of the counsel who would crossexamine. 5. Unfulfilled condition in conditionally admitted testimony. Common objections to documentary or object exhibits: a. b. c.

There was no proper authentication. For example, the confiscated firearm or pack of dangerous drug was not identified by any witness during the trial. Hearsay. For example, the affidavit was not identified by an affiant; alleged falsified document was not identified. It violates the best evidence rule. For example, only the machine copy of a document was presented where the contents of which are the subject of the case.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D d. e. f.

It violates the parol evidence rule. For example, a supposed draft is offered in evidence which varies the terms of the finalized agreement or contract. It is illegally obtained evidence or fruit of a poisonous tree. It is irrelevant and immaterial. This is also known as ―shot gun‖ objection. This is used by a lawyer when he believes the object or documentary evidence is objectionable but cannot think of any specific ground for objection.

Important Notes: 1. The ruling on an objection must be given immediately after the objection is made unless reasonable time is needed to rule on the matter. But such ruling shall be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling. The reason for sustaining or everruling an objection need not be stated. 2. Objection to the admissibility of document or object can be raised only when the same is formally offered in evidence, not at the time when it is marked or identified by a witness. 3. A lawyer cannot object as to the purpose to which an exhibit is being offered by the proponent. If he thinks it does not serve the purpose to which it is offered, he may object on the ground that it is irrelevant.

This means that this rule shall apply to all cases where electronic document is offered in evidence. Civil, Criminal, Administrative and even to Quasi-judicial cases. SEC. 3. Application of the other rules on evidence. - In all matters not specifically covered by these Rules, the Rules of Court and pertinent provisions of statues containing rules on evidence shall apply. Regarding the requirements of admissibility, it is still the requirements in the Rules of Court that will govern. Example: There is no provision in this rule on how to offer electronic evidence. So the provision in the Rules of Court regarding formal offer shall be followed. RULE 2 DEFINITION OF TERMS AND CONSTRUCTION SECTION 1. Definition of Terms. - For purposes of these Rules, the following terms are defined, as follows: (a) ―Asymmetric or public cryptosystem‖ means a system capable of generating a secure key pair, consisting of a private key for creating a digital signature, and a public key for verifying the digital signature. Q: What do you mean by cryptosystem?

January 25, 2017

A: It is the process of encoding data into a secret code

RULES ON Electronic Evidence

Example:

There are terms here that are highly technical. We will focus on the terms that will be used in our subject.

When you enter your password and what comes out in the screen are asterisks and not letters.

The purpose why the SC issued these rules is to make electronic documents admissible because without this rule, documents in electronic form cannot be admitted because they are not provided for in the Rules of Court, specifically in the Rules of Evidence.

(e) ―Digital Signature‖ refers to an electronic signature consisting of a transformation of an electronic document or an electronic data message using an asymmetric or public cryptosystem such that a person having the initial untransformed electronic document and the signer’s public key can accurately determine:

So after the Congress enacted the E-Commerce act, the SC promulgated these rules so that docs in electronic form could be admitted in Evidence.

(i) whether the transformation was created using the private key that corresponds to the signer’s public key; and (ii) whether the initial electronic document had been altered after the transformation was made.

SECTION 1. Scope. - Unless otherwise provided herein, these Rules shall apply whenever an electronic data message, as defined in Rule 2 hereof, is offered or used in evidence.

Example:

SEC. 2. Cases covered. - These Rules shall apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases.

When you get an ID in San Jose and you are asked to sign in a pad and your digital signature will appear on the screen. (g) ―Electronic data message‖ refers to information generated, sent, received or stored by electronic, optical or similar means.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D (h) ―Electronic document‖ refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term ―electronic document‖ may be used interchangeably with electronic data message‖. TN: Electronic Data Message and Electronic Document can be interchanged. Electronic document is a document which is recorded, transmitted or produced electronically. You remember the definition of electronic document.

Recently, the COMELEC Chairman was sued because the voters‘ information in the database were leaked. You cannot access it unless you know the password or pin code. Despite that, the database was hacked. Example: Your ATM cannot be accessed without your PIN Code. Your PIN Code is your electronic key. RULE 3 ELECTRONIC DOCUMENTS SECTION 1. Electronic documents as functional equivalent of paperbased documents. – Whenever a rule of evidence refers to the term of writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules.

(j) ―Electronic signature" refers to any distinctive mark, characteristics and/or sound in electronic form. Representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedure employed or adopted by a person and executed or adopted by such person with the intention of authenticating, signing or approving an electronic data message or electronic document. For purposes of these Rules, an electronic signature includes digital signatures.

So I already mentioned when we discussed the Best Evidence Rule which states that when the contents of the document are the subject of inquiry, the term DOCUMENT there includes electronic evidence.

Earlier, we said that digital signature is one type of electronic signature.

SEC. 2. Admissibility. – An electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these Rules.

(k) ―Ephemeral electronic communication‖ refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained. THIS WAS ASKED IN THE BAR!! Familiarize! This so called ephemeral electronic communication is not included in the definition of electronic document under the ecommerce act. But the SC under these rules, considered this as electronic data message and therefore admissible in evidence. Example: Text messages under the E-Commerce Act is not considered as electronic ducment but for purpose of presenting it in evidence, it is an electronic data message and therefore admissible in court. (i) ―Electronic key‖ refers to a secret code which secures and defends sensitive information that crosses over public channels into a form decipherable only with a matching electronic key. Example of this is our password or pin code.

TN: Every time you can read the word document, instrument, memorandum or any form of writing in any law or rules that pertain to evidence, that is understood to include an electronic document.

Regarding the requirements of admissibility, the requirements of the Rules of Court apply. Q: What are the requirements of Admissibility?? A: Relevancy and Competency. With the additional requirement set forth by these rules that an electronic document aside from being relevant and competent, must also be authenticated pursuant to the procedures prescribed by these rules. SEC. 3. Privileged communication. – The confidential character of a privileged communications is not solely on the ground that it is in the form of an electronic document. Even if the communication is in electronic form, the confidential nature of such communication is not lost solely on the ground that it is in electronic form. Example:

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D A client and the lawyer are communicating thru email. The communication between them is considered privileged despite the fact that is in electronic form. RULE 4 BEST EVIDENCE RULE SECTION 1. Original of an electronic document. – An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. Example, Email. Q: Which is the original copy of an email?? A: The document which we can read on the screen or the monitor which is stored in the hard drive of the computer. And if you are going to print it, the print-out is also considered the original. So there are two original copies. So when a print-out is offered in evidence, there is no need for the offeror to produce the soft copy because both are considered originals. SEC. 2. Copies as equivalent of the originals. – When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which is accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original. Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if: (a) a genuine question is raised as to the authenticity of the original; or (b) in the circumstances it would be unjust or inequitable to admit a copy in lieu of the original. For example, I will email MR. X and I will send a copy to MR. Y, both will be considered as originals. RULE 5 AUTHENTICATION OF ELECTRONIC DOCUMENTS This is the third requirement in the admissibility of electronic documents. SECTION 1. Burden of proving authenticity. – The person seeking to introduce an electronic document in any legal proceeding has the burden of proving its authenticity in the manner provided in this Rule. It cannot be immediately admitted. It has to be authenticated.

SEC. 2. Manner of authentication. – Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means: (a) by evidence that it had been digitally signed by the person purported to have signed the same; (b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or (c) by other evidence showing its integrity and reliability to the satisfaction of the judge. We can remember that there are two kinds of documents: Private and Public Documents. Public documents are self-authenticating. There is no need for authentication, only identification. But as regards private documents, it requires authentication. It is the same as in electronic evidence. Authentication is required and the procedure is set forth in Section 2. Q: How will you authenticate that the text message was sent by a certain person? A: By anyone who witnessed that person texting. That is one way of authenticating. Or when he admits that it is his number and it cannot be accessed by another person. SEC. 3. Proof of electronically notarized document. - A document electronically notarized in accordance with the rules promulgated by the Supreme Court shall be considered as a public document and proved as a notarial document under the Rules of Court. I haven‘t heard of any issuances by the SC regarding electronic notarization of documents. But if ever it is allowed, the document notarized electronically is considered as a public electronic document and it can be used as evidence against third persons. RULE 6 ELECTRONIC SIGNATURES SECTION 1. Electronic signature. – An electronic signature or a digital signature authenticate din the manner prescribed hereunder is admissible in evidence as the functional equivalent of the signature of a person on a written document. Q: How is it authenticated? A: SEC. 2. Authentication of electronic signatures. – An electronic signature may be authenticate in any of the following manner: (a) By evidence that a method or process was utilized to establish a digital signature and verity the same; (b) By any other means provided by law; or (c) By any other means satisfactory to the judge as establishing the genuineness of the electronic signature.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D SEC. 3. Disputable presumptions relation to electronic signature. – Upon the authentication of an electronic signature, it shall be presumed that: (a) The electronic signature is that of the person to whom it correlates; (b) The electronic signature was affixed by that person with the intention of authenticating or approving the electronic document to which it is related or to indicate such person’s consent to the transaction embodied therein; and (c) The methods or processes utilized to affix or verity the electronic signature operated without error or fault.

(b) The reliability of the manner in which its originator was identified; (c) The integrity of the information and communication system in which it is recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors; (d) The familiarity of the witness or the person who made the entry with the communication and information system; That is why those members of the BEI were trained how to operate the VCM before the election date.

Rule 6 Rules on Electronic Evidence SEC. 4. Disputable presumptions relating to digital signatures. – Upon the authentication of a digital signature, it shall be presumed, in addition to those mentioned in the immediately preceding section, that: (a) The information contained in a certificate is correct; Q: what do you mean by a certificate? This is another technical term

This is one factor that the court may consider (e) The nature and quality of the information which went into the communication and information system upon which the electronic data message or electronic document was based; or (f) Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message.

A: ―Certificate‖ means an electronic document issued to support a digital signature which purports to confirm the identity or other significant characteristics of the person who holds a particular key pair.

Under section 2

(b) The digital signature was created during the operational period of a certificate;

In any dispute involving the integrity of the information and communication system in which an electronic document or electronic data message is recorded or stored, the court may consider, among others, the following factors:

(c) The message associated with a digital signature has not been altered from the time it was signed; and

This is to determine the integrity of the information whether it is reliable or not or whether it was hacked or not.

(d) A certificate had been issued by the certification authority indicated therein

(a) Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system;

Q: what is the evidentiary value of electronic evidence? A: under section 1 of rule 7 In assessing the evidentiary weight of an electronic document, the following factors may be considered: (a) The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic data message or document, in the light of all the circumstances as well as any relevant agreement; Example: Is the PCOS or VCM used during the national elections This is one factor that the court may consider

(b) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it; or Q: why are the parties during the election not allowed to operate the PCOS or VCM? A: because they have their own interest, because they are interested in the result (c) Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party tot he proceedings and who did not act under the control of the party using it.

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D Means they are impartial, otherwise if the people who have interest will be the one to operate, the information will be no longer reliable. Section 1 of rule 8 is an exception to the hearsay rule. Remember the exception on hearsay rule, entries made in the regular course of business? Those entries made in the regular course of business, in order to be an exception to the hearsay rule, the person who made the entry must be unable to testify or already dead. This is different from an entry made in the official record. But under section 1 of this rule, it says: SECTION 1. Inapplicability of the hearsay rule. – A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or 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, is excepted from the rule or hearsay evidence. As we said earlier, entries made in the regular course of business shall only be excepted from the hearsay rule if the one who made the entries is unable to testify or is already dead, but here the one who made entries may still be alive, but is still admissible in evidence as an exemption to the hearsay rule. We are talking here of entries in the regular course of business. The testimony of the custodian is enough. Overcoming the presumption The presumption provided for in Section 1 of this Rule may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof. Then section 1 of rule 9, regarding authentication SECTION 1. Affidavit of evidence. – All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein. So, just like a paper document, an electronic document requires to be authenticated or identified by a witness in court

through the execution of an affidavit. But this is no longer important because of the JA rule. SEC. 2. Cross-examination of deponent. – The affiant shall be made to affirm the contents of the affidavit in open court and may be cross-examined as a matter of right by the adverse party. Then look at this section 1 of Rule 10 this is new. SECTION 1. Electronic testimony. – After summarily hearing the parties pursuant to Rule 9 of these Rules, the court may authorize the presentation of testimonial evidence by electronic means. Before so authorizing, the court shall determine the necessity for such presentation and prescribe terms and conditions as may be necessary under the circumstance, including the protection of the rights of the parties and witnesses concerned. As we all knew in the rules of evidence that the witness who will testify must come and testify in open court. Long distance is not allowed, however in this rule, the SC allowed electronic means, but there must be a compelling reasons and before that there must be a hearing. What are these compelling reasons that will allow him not to come to court and not to take the witness stand but only through the use of any means electronically. Example of compelling reasons: If the witness is suffering from a highly contagious disease like SARS, AH1N1, ebola virus And his testimony is material to the case so the party who wants to present the testimony can file a motion in court to allow the witness to testify electronically. May be through skype, video conference or etc According to the SC, the court should take into consideration the rights of the parties and the witness concerned, especially the right of the accused to confront the witness face to face. That right of the accused is very important because that is embodied in our constitution. Whenever the court allows the taking of the testimony electronically the questions and answer must be transcribe by the stenographer.. SEC. 2. Transcript of electronic testimony. – When examination of a witness is done electronically, the entire proceedings, including the questions and answers, shall be transcribed by a stenographer, stenotypes or other recorder authorized for the purpose, who shall certify as correct the transcript done by him. The transcript should reflect the fact

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REMEDIAL LAW REVIEW (Evidence) As discussed by Judge D that the proceedings, either in whole or in part, had been electronically recorded. The court will also see to it that the witness to be sure that the witness is telling the testimony without any coach SEC. 3. Storage of electronic evidence. – The electronic evidence and recording thereof as well as the stenographic notes shall form part of the record of the case. Such transcript and recording shall be deemed prima facie evidence of such proceedings. RULE 11 AUDIO, PHOTOGRAPHIC. VIDEO AND EPHEMERAL EVIDENCE SECTION 1. Audio, video and similar evidence. – Audio, photographic and video evidence of events, acts or transactions shall be admissible provided is shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof.

Look at NAPOCOR VS CODILLA GR NO 170491 APRIL 4, 2007 Q: how about fax messages are they considered as an electronic document? Read this case of MCC INDUSTRIAL CORPORATION VS SSANGYONG GR NO. 170633 OCTOBER 17, 2007 This is about the admissibility of fax messages, whether fax messages are considered as electronic evidence.

When arguing in court: The counsel objecting should not explain his objection He should only give the legal grounds for his objection unless he is required by the court to explain. Sometimes the explanation is made to give hint to his witness. The purpose is to tell the witness the answer to the question.

So audio or photographic and video evidence, who can testify it?

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END

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A: the person who took the audio, video or photo If no longer available, The person present during the taking of such So even if you are not the one who took it, but you are present, then you can testify. SEC. 2. Ephemeral electronic communication. – Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted. A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section. If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 shall apply. Q: Such as text messages, telephone conversation How presented? A: By recording provided it does not violate the antiwiretapping act. Q: How about machine copies? Are machine copies considered electronic document?

QUANTUM LEAP (USJR School of Law Batch 2017) AbArBCDFcFmGaGuLOmOnRSaSiSuTV “Together we leap, together we will succeed.” 90