EVIDENCE (REMEDIAL LAW REVIEW 2) Atty. Ferdinand Tan

1. What is evidence? - It is the means, sanctioned by the Rules,

of ascertaining in a judicial proceeding, the truth respecting a matter of fact.

2. Factum Probandum v. Factum Probans

Factum Probandum Factum Probans Fact or proposition sought to be established.

Fact or material evidencing the fact or proposition sought to be established

It is the ultimate facts. It is the intermediate facts.

It is hypothetical. It is existent.

3. Evidence v. Proof - Proof is the probative effect of evidence,

and is the conviction or persuasion of the mind of the person hearing the case resulting from a consideration of evidence.

4. Nature of Evidence a. It is UNIFORM because under Rule 128,

Section 2, “the rules of evidence shall be the same in all courts, and in all trials and hearings, except as otherwise provided by the law or by the Rules.

b. It gives no vested right because the rules of evidence are subject to change by the Supreme Court pursuant to the rule making powers, but subject to the prohibition on the enactment of an ex post facto law.

5. Rules on the Application of the Rules of

Evidence General Rule: it is only applicable in a judicial proceeding. Rule 1, Section 4 provides that “the Rules of Court shall not be applicable in the following cases: (CLINE-0) a. Cadastral b. Land registration c. Insolvency d. Naturalization e. Election f. Other cases

Exception: (ASPC) - By analogy, or in a suppletory

character, whenever practicable and convenient.

Exception to the Exception: Rule 1, Section 2 of the Rules on Electronic Evidence provides that the said rules shall apply to:

a. Civil actions and proceedings b. Quasi-judicial proceedings c. Administrative proceedings

6. Is the Rules of Evidence applicable in labor cases? - No. Because under Article 221 of the

Labor Code, technical rules of evidence are not binding in labor cases.

7. Sources of the Rules of Evidence a. Rules of Court (Rule 128-134) b. Jurisprudence c. Supreme Court Circulars d. The Efficient Use of Paper Rule (AM No. 11-9-

4-SC) e. Judicial Affidavit Rule (AM No. 12-8-8-SC) f. Comprehensive Dangerous Drugs Act of 2002

(RA 9165) regarding the rule on Chain of Custody under Section 21, and its implementing rules

g. Anti-Wiretapping Law (RA 4200) h. Rule on Child Witness Examination i. Rules on Electronic Evidence j. Rules on DNA Evidence k. E-Commerce Law l. RA 6981 – Providing for the Witness

Protection Program m. 1987 Constitution n. Articles 1370-1378 of the Civil Code o. Revised Penal Code Provisions

- Falsification of public documents - Forgery - Manufacturing, importing, and possession

of instruments intended for commission of falsification.

- Other falsities

8. Constitutional Provisions (Note: Exclusionary Rules nalang ang kelangan dito sa part na eto. Wag mo na subukan irecite ang due process at equal

protection. Hahaha! Pwede na din ang rule making power)

Article III, Section 1

- No person shall be deprived of life, liberty, or property without due process of the law nor shall any person be denied the equal protection of the laws

Article III, Section 2

- The right of the people to be secure in their persons, houses, papers, and effects

- Against unreasonable searches and seizures of whatever nature

- And for any purpose shall be inviolable, - And no search warrant or warrant of arrest

shall issue - Except upon probable cause to be determined

personally by the judge - After examination under oath or affirmation

or the complainant - And the witnesses he may produce, - And particularly describing the place to be

searched - And the persons or things to be seized.

Article III, Section 3

(1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Section 12.

1. Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

2. No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

3. Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

4. The law shall provide for penal and civil sanctions for violations of this Section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families.

Section 14.

1. No person shall be held to answer for a criminal offense without due process of law.

2. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable.

Section 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.

Section 17. No person shall be compelled to be a witness against himself.

ARTICLE VIII JUDICIAL DEPARTMENT

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to

determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

Section 5. The Supreme Court shall have the following powers:

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

9. Rules on Right against Self-Incrimination

a. Under Rule 132, Section 3 (4), a witness has the right not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law.

b. The rule cannot be applied when the witness is given a privilege under an immunity statute. (ex. Section 17 of the Ombudsman Act gives the Ombudsman the right to give any person immunity when the testimony of any person is necessary to prosecute a public officer)

c. It applies only to natural persons. d. Right of the Accused v. Right of a Witness

Right of the Accused Right of a Witness - The accused

cannot be compelled to testify against himself for whatever reason,

- The witness may be compelled to answer questions, although his answer may tend

even if it involves only a civil liability.

to establish a claim against himself. But he cannot be compelled to answer questions which will subject him to a penal liability.

e. Administrative Cases – The right to refuse to take the stand does not generally apply to parties in administrative cases or proceedings. The parties thereto can only refuse to answer if incriminating questions are propounded. This Court applied the exception – a party who is not an accused in a criminal case is allowed not to take the witness stand – in administrative cases/proceedings that partook of the nature of a criminal proceeding or analogous to a criminal proceeding. (Rosete v. Lim, GR No. 136051, 6/8/2006)

f. Senate Inquiries – applicable only when the incriminating question is asked.

10. How to Construe the Rules of Evidence Rule 1, Section 6 provides that “it shall be LIBERALLY CONSTRUED in order to promote their objective of securing a just, speedy, and inexpensive disposition of every action and proceeding.”

11. May the rules of evidence be waived? How?

- Yes. It may be waived by: a. Not objecting to an evidence otherwise

objectionable. b. Stipulation of the parties.

Kinds of Evidence:

1. Object Evidence/Real Evidence/Evidence of Autoptic Preference (Rule 130, Section 1)

- An evidence which is 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.

2. Documentary Evidence - It consists of writings, or any material

containing letters, words, numbers, figures, symbols, or other modes of written expression OFFERED AS PROOF OF THEIR CONTENTS.

3. Testimonial Evidence/Viva-Voce Evidence - A narration or deposition by a person who

has observed or has personal knowledge of that to which he is testifying.

4. Best Evidence - When the subject of an inquiry is the contents

of the document, no evidence shall be admissible other than the original document itself.

- An evidence which affords the greatest certainty of the fact in question.

5. Secondary/Substitutionary Evidence - An evidence which is only admissible AFTER

LAYING THE BASIS THAT THE BEST EVIDENCE CANNOT BE PRODUCED IN COURT.

6. Parol Evidence - An evidence, when put to issue in the

pleading, which modifies, explains, or adds to the terms of the written agreement.

7. Admissible Evidence - An evidence which is relevant to the issue and

not excluded by the law or by the Rules. (Rule 128, Section 3)

8. Relevant Evidence - An evidence which has a relation to the fact in

issue as to induce belief in its existence or non-existence.

9. Competent Evidence - An evidence which is not excluded by the law

or by the Rules. 10. Prima Facie Evidence - An evidence which, standing alone,

uncontradicted or unrebutted, is sufficient to maintain the proposition affirmed.

11. Conclusive Evidence - An evidence which the law does not allow to

be contradicted. 12. Corroborative Evidence - Additional evidence of a DIFFERENT KIND

AND CHARACTER FROM THAT ALREADY GIVEN tending to prove the same point.

13. Cumulative Evidence - Additional evidence of SAME KIND AND

CHARACTER AS THAT ALREADY GIVEN tending to prove the same point.

14. Positive Evidence - An evidence that affirms that a fact did or did

not happen. 15. Negative Evidence - An evidence that denies the fact did happen

or denies of knowing a fact that happened. 16. DNA Evidence - The totality of the DNA profile result, and

other genetic information directly generated from the DNA Testing of the biological samples. (DNA= Deoxyribonucleic Acid)

17. Electronic Evidence/Electronic Document - An 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.

18. Evidence-in-chief - Evidence primarily relied upon by the party

in asserting his claim or defense. 19. Rebuttal Evidence - An evidence which explains, repels,

counteracts, or disproves facts given by the adverse party.

20. Evidence on motion (Rule 133, Section 7) - When a motion is based on facts not

appearing of record, the court may hear the

matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

21. Surrebuttal Evidence - An evidence which explains, repels,

counteracts, or disproves facts given by the claiming party in his rebuttal.

22. Hearsay Evidence Rule - A witness can testify only to those facts which

he knows of his personal knowledge; that is, which is derived from his own perception.

23. Credible Evidence - An evidence which is not only admissible, but

also believable and relied upon by the trier of the case.

24. Direct Evidence - An evidence which can prove the fact in issue

without inference or presumption. 25. Circumstantial Evidence - An evidence which proves a fact in issue

through an inference which the fact finder draws from the evidence established.

26. Demonstrative Evidence - An evidence that merely illustrates a matter

of importance in the litigation. 27. Material Evidence - An evidence directed to prove a fact in issue. 28. Proof Beyond Reasonable Doubt - A kind of evidence proving a moral certainty,

which is a degree of proof which produces conviction in an unprejudiced mind.

29. Clear and Convincing Evidence - An evidence which produces in the mind of a

trier of fact A FIRM BELIEF OR CONVICTION as to the allegations sought to be established.

30. Preponderance of Evidence - Superior weight of evidence on the issue. 31. Substantial Evidence

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

RULE ON COLLATERAL MATTERS: General Rule: It is not allowed. Exception: When it tends to establish any reasonable degree the probability or improbability of the fact in issue. Rules on Admissibility

1. An evidence is admissible when it is: a. Relevant, and b. Competent (Not excluded by the law or

Rules)

2. Kinds of Admissibility

A. Multiple Admissibility – an evidence is admitted for two or more persons.

Examples of Multiple Admissibility:

Declaration of a Dying Person

a. Dying Declaration b. Parts of the Res Gestae c. Declaration Against Interest

DNA Evidence

a. As an object evidence – to determine as to whether there was indeed a DNA Test conducted and there is a corresponding DNA Result

b. As documentary evidence – to determine the contents of the DNA Result as part of the inquiry.

Affidavit/Document

a. As object evidence to determine the following:

- What material the paper is made of? - Comparison of the handwriting - Existence of the affidavit/document - To see whether alterations are made - Condition of the affidavit/document b. As documentary evidence to determine the

contents of which it is the subject of an inquiry.

B. Conditional Admissibility

- Where evidence appears to be immaterial unless it is connected with the other facts to be subsequently proved, such may be received on the condition that the facts be afterwards proved.

C. Curative Admissibility

- Where improper evidence is admitted over the objection of the opposing party, the said party must be allowed by the court to contradict it with similar improper evidence. Example: hearsay v. hearsay

3. When is an Electronic Document

Admissible? a. When it complies with the rules on

admissibility prescribed in the Rules of Court, and

b. Authenticated in the manner prescribed by the Rules on Electronic Evidence

4. Rules on Summary Procedure a. In Civil Cases - The Rules on Testimonial Evidence are not

applicable because there is no trial and no testimonies are taken on the witness stand, however, the rest of the Rules are applicable.

b. In Criminal Cases - Rule on testimonial evidence is applicable.

JUDICIAL NOTICE

1. Definition - The cognizance of certain facts which judges

may properly take and act upon without proof.

2. Matters need not be proved: a. Immaterial allegations b. Failure to specifically deny material averment

in the complaint, other than those as to the amount of unliquidated damages. (Rule 8, Section 11)

c. Allegations of usury in a complaint to recover usurious interest, not specifically denied UNDER OATH.

d. Failure to specifically deny under oath the genuineness and due execution of the written instrument.

e. Presumptions under Rule 131 f. Facts subject to Judicial Notice

g. Agreed and admitted facts (Rule 129, Section 4)

3. Mandatory Judicial Notice, when required: a. Existence and territorial extent of the state, b. Political history c. Forms of government and symbols of

nationality d. Laws of the nations e. The admiralty and maritime courts of the

world including their seals f. Political constitution and history of the

Philippines g. Official acts of the legislative, executive and

the judiciary departments of the Philippines. h. Laws of nature i. Measure of time j. Geographical divisions.

Note: The list of mandatory judicial notice is not exclusive.

a. Post office practices b. Banking practices c. Municipal ordinances d. Financial condition of the government e. General increase in rentals of real estate f. Persons have killed or committed serious

offenses for no reason at all. g. Filipino’s inbred modesty and shyness h. A grocery buyer does not spend so much time

in a grocery store to buy goods.

4. Discretionary Judicial Notice (Rule 129, Section 2) a. Matters of public knowledge b. Capable of unquestionable demonstration c. Ought to be known to judges because of

their judicial functions.

5. Judicial Notice, When Hearing Required a. During trial

- The court may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon.

b. After trial, and Before Judgment

- If such matter is decisive of a material issue in the case, the court may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon.

6. Doctrine of Processual Presumption - Foreign laws must be alleged and proved. In

the absence of proof, the foreign law will be presumed to be the same as the laws of the jurisdiction hearing the case.

7. Rule on Foreign Laws; Judicial Notice a. Apply the Doctrine of Processual

Presumption b. Where the foreign law is within the actual

knowledge of the court such as when the law is generally well known, had been ruled upon in previous cases before it and none of the parties claim otherwise.

c. Rule 130, Section 46. 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.

8. Rule on Municipal Ordinances - It is mandatory judicial notice if the case is

still in the MTC where the ordinance is applicable

- It is mandatory in judicial notice in the RTC if: a. Required by the law or ordinance b. When the ordinance is the subject of an

appeal c. Substantial justice

Judicial Notice of Records of Another Case Previously Tried General Rule: Courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court and pending before the same judge. Exceptions: 1. When, at the initiative of the judge or of the

parties, and without objection of any party, the records of the previous action are read and adopted into the present action, or attached to the records of the present action by court order;

2. When the present action is closely interrelated to another case pending between the same parties;

3. Where the interest of the public in ascertaining the truth are of paramount importance;

4. In cases seeking to determine what is reasonable exercise of discretion or whether or not the

previous ruling is applicable in a case under consideration;

5. Where there is finality of a judgment in another case that was previously pending determination and therefore, res judicata.

ADMISSION Definition:

- It is an act, declaration, or omission of a party as to a relevant fact.

Kinds of Admission:

1. Judicial Admission - An admission, verbal or written, made by a

party in the course of the proceedings in the same case.

2. Extra-Judicial Admission

- An admission made by a party not in the same case.

Other Kinds of Admission

1. Express Admission - A positive statement or act 2. Implied Admission - An admission which may be inferred from

the declarations or acts of a person. 3. Adoptive Admission - An admission occurring when a person

manifests his assent to the statements of another person.

How to Contradict a Judicial Admission

a. By showing that it was made through palpable mistake, or

b. No such admission was made. Distinctions between Judicial Admission and Judicial Confession

a. As to the manner of making: Judicial Admission – act, declaration, or omission. Judicial Confession- declaration

b. As to the fact admitted: Judicial Admission – admit as to any relevant fact.

Judicial Confession – admit by acknowledging his guilt in the offense charged or of any offense necessarily included therein.

c. As to Scope Judicial Admission – broader in scope. Judicial Confession – a kind of admission. d. Express or Implied Judicial Admission – Yes. It may be express or implied. Judicial Confession - it must be express. There is no instance of an implied confession. e. As to the Nature of the Proceeding Judicial Admission – applicable in all cases, whether civil or criminal. Judicial Confession – applicable only in criminal.

Admission v. Declaration Against Interest Admission Declaration Against

Interest Made by a person while he is alive

Made by a dead person or a person unable to testify

May be made at any time, even during the trial.

Made before the controversy arises

Admissible as long as it is inconsistent with his present claim, and need not be against one’s pecuniary or moral interest.

Made against one’s pecuniary or moral interest

it is not an exception Exception to the hearsay rule.

Rule 130: Rules on Admissibility Object Evidence/Real Evidence/Evidence of Autoptic Preference

- 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.

Demonstrative Evidence

- An evidence which illustrates a matter of importance in a litigation.

- It is not the actual thing but illustrates the real thing.

Requisites for Admissibility of an Object Evidence: (RACO)

a. It must be relevant b. It must be authenticated c. Authentication made by a competent

witness. d. The object must be formally offered in

evidence. Limitations against the Use of Real Evidence:

1. Irrelevant evidence 2. Illegally obtained evidence 3. Indecency and impropriety 4. Undue prejudice 5. Offensiveness to sensibilities 6. Inconvenience and unnecessary expenses.

How to authenticate an electronic evidence:

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.

Documentary Evidence

- Documents as evidence consist of writings or any material containing letters, words, figures, numbers, symbols, or other modes of written expressions offered as proof of their contents.

A. Best Evidence Rule 1. Under the Rules of Court:

When the subject of an inquiry is the contents of the document, no evidence shall be admissible other than the original document itself, except in the following cases:

a. When the original is lost, destroyed, or cannot be produced in court, without bad faith, on the part of the offeror.

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.

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.

d. When the original is a public record in the custody of a public officer or is recorded in a public office.

2. Under Electronic Evidence

An electronic evidence shall be regarded as the equivalent of the 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. Principle of Laying the Basis

1. Requisites to Present Secondary Evidence in the 1st Exception of the Best Evidence Rule: a. Proof of existence of original. b. Proof of execution of original c. Cause of unavailability or loss of original d. Proof of contents through secondary

evidence.

2. How to prove a lost or destroyed document: a. Any person who new the fact of the loss. b. Any person who has made sufficient

examination in the places where the document or paper of similar character are usually kept by the person in whose custody the document lost was.

c. Any person who has made investigation which is sufficient to satisfy the court that the instrument was indeed lost.

3. How to prove a lost or destroyed will:

(Rule 76, Section 6)

- No will shall be proved as a lost or destroyed will unless: a. The execution and validity of the same

shall be established. b. The will is proved to have been in

existence at the time of the death of the testator, or

c. Is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge,

d. Unless its provisions are clearly and distinctly proved by at least two credible witnesses.

4. How to prove execution of the document: a. Any person who executed the document. b. Any person to whom the parties to the

instrument had previously confessed that they executed such.

c. Any person before whom its execution was acknowledged.

d. Any person who was present and saw it executed and delivered.

e. Any person who after its execution and delivery, saw the instrument and recognized the signatures.

5. Requirements if the document is in the

Possession of the Adverse Party: a. Proof of existence of original b. Proof of execution of original c. Proof that said document is under the

custody of the adverse party. d. Proponent of secondary evidence has given

the adverse party reasonable notice to produce the original

e. Adverse party failed to produce it despite reasonable notice.

Note: Claiming party can give notice by doing the following:

a. Motion for Production of the Original Document

b. Make notice in open court when the adverse party is present

c. Subpoena duces tecum

6. Second Exception to the Best Evidence Rule v. Rule 27 of the Rules of Court

2nd exception Rule 27 Exception to the Best Mode of Discovery

Evidence Rule Procured by mere notice to the adverse party, which is a condition precedent for subsequent introduction of secondary evidence.

Made by way of a Motion for Production or Inspection and show good cause before permitted by the court.

Document to be produced is intended as evidence for the proponent who is presumed to have knowledge of its contents.

Document is either assumed to be favorable to the party in possession thereof, or that the party seeking production is not sufficiently informed of the contents of the same.

7. Original in the custody of a public officer

or is recorded in a public office a. Certified copy issued by the public officer in

custody thereof.

What is the principle of “Irremovability of a Public Record”? (Rule 132, Section 26)

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 of a court where the inspection of the record is essential to the just determination of a pending case.

8. A party is not obliged to offer the document ordered to be produced as evidence

B. Original of a Document I. Under Section 4, Rule 130 of the Rules of

Court a. The contents of which is the subject of an

inquiry. b. Document is in tow or more copies executed

at or at about the same time, with identical contents, all copies are equally regarded as originals.

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 equally regarded as originals.

II. Under Electronic Evidence Rule

(Memorize!!!)

a. If it is a printout or output readable by sight or other means, shown to reflect the data accurately.

b. When a document is in two or more copies executed at or about the same time with identical contents

c. A counterpart produced by the same impression as the original, or

d. From the same matrix, or e. By mechanical or electronic re-recording, or f. By chemical reproduction, or g. By other equivalent techniques which is

actually reproduces of the original.

C. Parol Evidence Rule/Extraneous Evidence/Evidence Aliunde

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 document. However, a party may present evidence to modify, explain, or add to the terms of a written agreement, when he puts to issue in the pleading:

a. An intrinsic ambiguity, mistake, or imperfection in the written agreement.

b. Failure of the written agreement to express the true intent and agreement of the parties thereto.

c. Validity of the written agreement d. Existence of other terms agreed to by the

parties or their successors in interest after the execution of the written agreement.

The term “agreement” includes wills.

1. Best Evidence Rule (Section 3) v. Parol Evidence Rule (Section 9)

Best Evidence Parol Evidence Original is not available in court or there is a dispute as to whether said writing is the original

Original is available in court

Prohibits the production of secondary evidence in lieu or the original

Prohibits the varying of the terms of the written agreement

document it applies to all kinds of writing

It applies only to a written agreement, which includes wills.

Can be invoked by any party whether he is or is not a party to the written agreement.

Can only be invoked by the parties or their successors in interest, to the written agreement.

2. Lord Bacon’s Rule on Ambiguities a. Latent/ Intrinsic - Non-apparent on the face of the document

but which lies in the person or thing that is the subject of the document.

b. Patent/Extrinsic - Apparent on the face of the written

agreement itself and requires something to be added to ascertain the meaning of the words used.

c. Intermediate - Ambiguity consists in the use of equivocal

words designating the person or subject matter.

3. Falsus In Uno, Falsus in Omnibus - False in one, false in all. - If the testimony of a witness on a material

issue is willfully false and given with an intention to deceive, the court may disregard all of his testimony.

- It is not an absolute rule of law and is rarely applied in modern jurisprudence.

- There must be willful falsification of the truth on one or more material points.

4. Falsa Demonstratio Non Nocet cum De

Corpore Constat - An erroneous description does not spoil the

act. - False description does not injure or vitiate a

document, provided that the thing or person intended has once been sufficiently described.

D. Rules on Interpretation

SEC. 10. Interpretation of a writing according to its legal meaning.—The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise.(8)

SEC. 11. Instrument construed so as to give effect to all provisions.—In the construction of an instrument where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.(9)

SEC. 12. Interpretation according to intention; general and particular provisions.—In the construction of an instrument, the intention of the parties is to be pursued; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it.(10)

SEC. 13. Interpretation according to circumstances.—For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those whose language he is to interpret.(11)

SEC. 14. Peculiar signification of terms.—The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is admissible to show that they have a local, technical, or otherwise peculiar signification, and were so used and understood, in the particular instance, in which case the agreement must be construed accordingly.(12)

SEC. 15. Written words control printed.—When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter.(13)

SEC. 16. Experts and interpreters to be used in explaining certain writings.—When the characters in which an instrument is written are difficult to be deciphered, or the language is not understood by the court, the evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to declare the characters or the meaning of the language.(14)

SEC. 17. Of two constructions, which preferred.—When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision is made.(15)

SEC. 18. Construction in favor of natural right.—When an instrument is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted.(16)

SEC. 19. Interpretation according to usage.—An instrument may be construed according to usage, in order to determine its true character

EFFICIENT USE OF PAPER RULE (AM 11-9-4-SC)

I. Applicability - It applies to all courts and quasi-judicial

bodies under the administrative supervision of the Supreme Court.

II. Format and Style a. Single space b. 1 ½ space between paragraphs c. Easily readable font style of the party’s choice d. 14-size font e. Long bond paper f. Left margin – 1.5 inches; upper margin – 1.2;

right hand margin and lower margin – 1.0.

III. Number of Copies To Be Filed (plus soft copies of the same and their annexes, the latter in PDR format, either by email to the Court’s Email Address or CD):

1. Supreme Court a. En banc – 1 original, 14 copies b. Division – 1 original, 4 copies

2. CA, CTA Division – 1 original, two copies

with their annexes. 3. CTA en banc – 1 original, 8 copies with

annexes. 4. Other courts – 1 original with annexes.

Testimonial Evidence/Viva-Voce Evidence - A narration or deposition by a person who

has observed or has personal knowledge of that to which he is testifying.

I. Qualifications of a Witness

Rule 130, Section 20 Except as provided in the next succeeding section, all persons who can perceive, and in perceiving, can make known their 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 a ground for disqualification.

A. Disqualification by reason of Mental Incapacity

a. Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others.

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

Rule on Examination of A Child Witness

1. Child Witness a. Any person who at the time of giving

testimony is below 18. b. In child abuse cases, a child includes over

eighteen but is found by the court as - unable to fully take care of himself - unable to protect himself from ABUSE,

NEGLECT, CRUELTY, EXPLOITATION, OR DISCRIMINATION BECAUSE OF A PHYSICAL OR MENTAL DISABILITY.

2. Competency - Every child is presumed qualified to be a

witness. However, the court shall conduct a competency examination of a child, motu propio or on motion of a party, when there is substantial doubt existing regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court.

3. Sexual Abuse Shield Rule

General Rule: in any criminal proceeding involving alleged child abuse, the following are inadmissible as evidence:

a. Evidence offered to prove the alleged victim engaged in other sexual behavior.

b. Evidence to prove sexual predisposition of the alleged victim.

Exception:

Evidence of specific instance of sexual behavior of the alleged victim to prove that a person other than the accused was

a. The source of semen b. Injury or c. Other physical evidence.

B. Disqualification By Reason of

Marriage/Spousal Immunity/Marital Disqualification Rule (Section 24)

- 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 ascendants or descendants.

Purpose: To obviate perjury and to prevent domestic disunity. Nature of the Prohibition It is an absolute prohibition against the spouse's testifying to any fact affecting the husband or the wife however the knowledge of these facts may have been acquired. Marrying the Witness An accused can effectively “SEAL THE LIPS” of a witness by marrying the witness. As long as a valid marriage is in existence at the time of the trial, the witness-spouse cannot be compelled to testify even where the crime charged is against the witness’ person, and even though the marriage was entered into for the express purpose of suppressing the testimony.

C. Survivorship Disqualification Rule/Dead Man’s Statute

- Parties, or assignor of parties - Or persons in whose behalf, - A case is prosecuted against - An executor - Administrator or other representative - Of a deceased persons or against a person - Of an unsound mind - Upon a claim or demand against the estate of

such deceased person - Or against such person of an 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.

Purpose of the Rule: It is designed to close the lips of the party plaintiff when death or incompetence has permanently closed the lips of the party defendant in order to remove from the claiming party the temptation to give false testimony and the possibility of fictitious claims against the deceased or incompetent. When Deadman’s Statute cannot be invoked 1. Testimony of mere witnesses who are neither

party plaintiffs, nor their assignors, nor persons in whose behalf a case is prosecuted, nor to a nominal party, nor to officers and stockholders of a plaintiff corporation;

2. If the plaintiff is the executor or administrator or other representative of a deceased person, or the person of unsound mind;

3. In an action against a partnership; 4. If the person or persons mentioned under the

rule file a counterclaim; 5. When the testimony refers to fraudulent

transactions committed by the persons mentioned in the rule, provided that fraud has been clearly established by other evidence;

6. When there is waiver; 7. When the testimony of a plaintiff refers to the

NON-OCCURRENCE OF A FACT, because in that case, the plaintiff does not testify on the occurrence of a fact but on its non-occurrence;

8. In cadastral cases since there is neither plaintiff nor defendant, nor in land registration cases instituted by the decedent’s representatives, as the oppositors are considered defendants and may, therefore, testify against petitioner;

9. Testimony on the possession by witness of a written instrument made by the deceased, as such fact exists even after the decedent’s demise;

10. Where the deceased contracted with the plaintiff through an agent and said agent is alive and can testify, but the testimony of the plaintiff should be limited to acts performed by the agent.

Disqualification by Reason of A Privileged Communication:

Privileged Communication - It is a kind of communication as to matters

learned in confidence by reason of marriage, nature of work (attorney-client, doctor-patient, minister-penitent), or by reason of a public office, whether elected or appointed.

Privileged Communication as to the Following:

1. Marital Privileged Communication Rule:

- 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;

Exceptions to Marital Privileged Communication Rule:

a. Dying Declaration

b. Declaration Against Interest

c. Part of the Res Gestae

d. Overheard by a Third Person

There is a presumption of confidentiality on all communication between husband and wife: Communications overheard by third persons without knowledge of spouses are still confidential but the third party is not disqualified to testify.

- Where there is collusion and voluntary

disclosure to third party, the latter becomes an agent and cannot testify.(Beda Memory Aid)

2. Attorney – Client Relationship/Staff of Attorney

- An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his

employer, concerning any fact the knowledge of which has been acquired in such capacity;

Purpose: To encourage full disclosure by client to his attorney of all pertinent matters so as to further the administration of justice. Note: The privilege is not limited to the communication. It extends also to affidavits, documents, pieces of evidence to be presented, witnesses, strategies in prosecuting or defending a case. Test: Whether the communications are made to an

attorney with a view of obtaining from him professional assistance or advice regardless of whether there is pending or merely impending litigation or any litigation.

- Preliminary communications made for the

purpose of creating the attorney-client relationship are within the privilege. However, if the communications were not made for the purpose of creating that relationship, they will not be covered by the privilege even if thereafter the lawyer becomes counsel of the party in a case involving said statements.

CASES where disqualification based on the attorney-client privilege do NOT apply

1. Intended to be made public; 2. Intended to be communicated to others; 3. Received from third persons not acting in

behalf of or as agents of the client; 4. Intended for an unlawful purpose; 5. Made in the presence of third parties who are

strangers to the attorney-client relationship.

It is not within the profession of a lawyer to advise a client as to how he may commit a crime as a lawyer is not a gun for hire. Thus, the attorney-client privilege does not attach, there being no professional employment in the strict sense (Genato vs. Silapan, Adm. Case No. 4078, Jul. 14, 2003).

- The rule applies even to a counsel de officio. Attorney-Client Privilege as Applied to Identity of Client:

General Rule: A lawyer may not invoke the privilege and refuse to divulge the name or identity of his client.

Exceptions: 1. Where a strong possibility exists that

revealing the client’s name would implicate the client in the very activity for which he sought the lawyer’s advice;

2. Where disclosure would open the client to civil liability; and

3. Where the prosecutors have no case against the client unless by revealing the client’s name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual for a crime (Regala vs. Sandiganbayan, G.R. 105938, September 20, 1996).

3. Doctor – Patient Rule

- A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient;

4. Minister-Penitent Rule

- A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs;

Priest/Minister – a person authorized by his church of which he is a member to hear confession and to make an absolution.

5. State Secrets

- A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure.

Section 25. Parental and Filial Privilege Rule

a. Filial Privilege Rule - No person may be compelled to testify

against his parents, or his direct ascendants. b. Parental Privilege Rule - No person may be compelled to testify

against his child or direct descendants. Exceptions to Section 25: 1. If done voluntarily. 2. Under Article 215 of the Family Code, “no

descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except WHEN SUCH TESTIMONY IS INDISPENSABLE IN A CRIME: a. Committed against said descendant, or b. By one parent against the other.

ADMISSIONS AND CONFESSIONS

a. As to the manner of making: Judicial Admission – act, declaration, or omission. Judicial Confession- declaration

b. As to the fact admitted: Judicial Admission – admit as to any relevant fact. Judicial Confession – admit by acknowledging his guilt in the offense charged or of any offense necessarily included therein.

c. As to Scope Judicial Admission – broader in scope. Judicial Confession – a kind of admission. d. Express or Implied Judicial Admission – Yes. It may be express or implied. Judicial Confession - it must be express. There is no instance of an implied confession. e. As to the Nature of the Proceeding Judicial Admission – applicable in all cases, whether civil or criminal. Judicial Confession – applicable only in criminal. -

ADMISSION - It is an act, declaration, or omission of a party as to a relevant fact. Kinds of Admission:

1. Judicial Admission - An admission, verbal or written, made by a

party in the course of the proceedings in the same case.

2. Extra-Judicial Admission

- An admission made by a party not in the same case.

Other Kinds of Admission

1. Express Admission - A positive statement or act 4. Implied Admission - An admission which may be inferred from

the declarations or acts of a person. 5. Adoptive Admission - An admission occurring when a person

manifests his assent to the statements of another person.

When is a declaration considered as self-serving:

a. Declaration was made extra-judicially by the party.

b. such declaration was made to favor his interest.

Why is a Self-Serving Declaration considered Inadmissible:

a. inherently untrustworthy b. it will open the door to fraud and falsification.

Exceptions to the general rule that Self-Serving Declaration is inadmissible:

a. When the adverse party failed to object. b. When the declaration was offered by the

opponent. c. When they form part of the res gestae d. They are in the form of complaint and

exclamations of pain and suffering. e. When they are part of a confession offered by

the prosecution. Rule on Compromise: (Rule 130, Section 27)

1. In civil cases, an offer of compromise is not an admission of any liability, and is

not admissible in evidence against the offeror.

2. In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to a lesser offence, is not admissible in evidence against the accused who made the plea.

Good Samaritan Rule (Rule 130, Section 27)

- An offer to pay or the payment of medical, hospital, or other expenses

- Occasioned by an injury - Is not admissible in evidence as proof of civil

or criminal liability for the injury. RES INTER ALIOS ACTA RULE (Things done between strangers ought not to injure those who are not parties to it.) 2 Branches of Res Inter Alios Acta Rule:

A. 1st Branch: Under Rule 130, Section 29 - The rights of a party cannot be prejudiced by

an act, declaration, or omission of another, except as hereinafter provided.

Exceptions to the First Branch:

I. Admission by co-partner or agent - The act or declaration of a partner or agent of

the party within the scope of his authority and during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration.

- The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party.

II. Admission by conspirator - The act or declaration of a conspirator

relating to the conspiracy and during its

existence may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.

III. 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.

IV. 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.

B. 2nd Branch: Propensity Rule (Rule 130, Section 34)

- Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or a similar thing at another time, but may be received to prove a: a. Specific intent or knowledge b. Identity c. Plan d. System e. Scheme f. Habit g. Custom h. Usage, and i. The like.

Confession

- It is the declaration of the accused acknowledging his guilt of the offense charged

- Or any offense necessarily included therein.

I. Kinds of Confession:

A. Judicial Confession - A confession made by the accused before a

court in which the case is pending and in the course of legal proceedings therein, and by itself, can sustain a conviction.

B. Extra-Judicial Confession - A confession made in any other place or

occasion and cannot sustain a conviction unless: a. Its voluntariness is proven, and b. It is corroborated by evidence of the

CORPUS DELICTI (Body of the Crime).

C. Doctrine of Interlocking Confession - A confession wherein the accused persons

voluntarily and independently executed identical confession without collusion and corroborated by other pieces of evidence.

II. Rule on Extra-judicial Confession of co-

accused against the other accused. General Rule: Admissible only against the confessor because as against the other co-accused, it is hearsay and it is against the first branch of the Res Inter Alios Acta Rule.

Exceptions:

A. Interlocking confession B. Accused admitted the facts stated by the

confessant after being apprised of such confession.

C. The confession was used only as a corroborating evidence.

D. Used as a circumstantial evidence to show the probability of participation of other accused.

Independent Relevant Statements

- An out of court declaration which while having certain characteristics of hearsay evidence, is not actually hearsay but is original evidence.

Rule on Unaccepted Offer:

- An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual

production and tender of the money, instrument or property.

HEARSAY RULE General Rule: 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. Exceptions to the Hearsay Rule: (They are also hearsay but are considered as exceptions; therefore, it is admissible)

I. Under the Rules of Court (Rule 130, Sections 37-47) (DDA-FCP-COC-LT)

A. Dying Declaration B. Declaration against Interest C. Act or Declaration about Pedigree D. Family Reputation or tradition Regarding

Pedigree E. Common Reputation F. Part of the Res Gestae G. Entries in the Course of Business H. Entries in Official Records I. Commercial Lists and the Like J. Learned Treatises K. Testimony or Deposition at a Former

Proceeding

II. Other Exceptions Other Exceptions: 1. Section 28 of the Rules on Examination of a Child

Witness 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 maybe

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.

b. In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof, based on various factors provided by the law, which provide sufficient indicia of reliability.

Note: When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence. 2. Rule 8 of the Rules on Electronic Evidence:

Business Records as Exception to 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 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 on hearsay evidence. This presumption may be overcome by evidence of the untrustworthiness of the: 1. Source of information; or 2. The method or circumstances of the preparation,

transmission or storage thereof. Reason for the Exceptions: They are admissible by reason of NECESSITY and TRUSTWORTHINESS. SECTION 37. DYING DECLARATION

- The declaration of a dying person - Made under the consciousness of an

impending death - May be received IN ANY CASE WHEREIN HIS

DEATH IS THE SUBJECT OF AN INQUIRY - As evidence of the cause and surrounding

circumstances of such death.

Requisites: 1. That death is imminent and the declarant is

conscious of that fact; 2. That the declaration refers to the cause and the

surrounding circumstances of such death; 3. That the declaration relates to the facts which the

victim is competent to testify to; 4. That the declaration is offered in a case wherein

the declarant’s death is subject of the inquiry (the victim necessarily must have died);

5. That the statement is complete in itself (People vs. De Joya, G.R. No. 75028, November 8, 1991);

6. The declarant should have died (if the declarant survives, his declaration may be admissible as part of the res gestae).

Notes: (San Beda Memory Aid) Truth sits on the lips of the dying man. At the point of death, every motive for falsehood is silenced. The mind is induced by the most powerful consideration to speak the truth. There must be a settled, hopeless expectation that death is at hand. It is sufficient that he believed himself in imminent danger of death at the time of such declaration. To be complete in itself does not mean that the declaration must recite everything that constituted the res gestae of the subject of his statement, but that his statement of any given fact should be a full expression of all that he intended to say as conveying his meaning in respect of such fact. Different Forms of Dying Declaration (How was such declaration made by a dying person?_ a. Oral b. Written c. Using signs/pointing at the person Doctrine of Multiple Admissibility May Apply:

- They may be regarded as part of the res gestae as they were made soon after the startling occurrence without the opportunity for fabrication or concoction.

SECTION 38. DECLARATIONS AGAINST INTEREST

Declaration Against Interest

Admissions

Exception to the hearsay rule and admissible.

Covered by the hearsay rule.

Secondary evidence and admissible only if the declarant is already dead or unavailable to testify.

Primary evidence and admissible even if the declarant is available as a witness.

Must have been made ante litem motam, i.e., before the controversy.

May be made at any time, before/during the trial.

The fact asserted in the declaration must have been at the time it was made so far contrary to the declarant’s own interest.

Need not be considered by the declarant as opposed to his interest at the time when made, it is enough if it is inconsistent with his present claim and defenses.

It is not necessary that the declarant be a party to the action; it is admissible to an action where his declaration is relevant.

It is competent only when the declarant or someone identified in interest is a party to the action.

May be admitted against himself or successor in interest and against third person.

Used only against the party admitting.

Requisites: 1. That the declarant is dead or unable to testify; 2. That it relates to a fact against the interests of the

declarant; 3. That at the time he made said declaration the

declarant was aware that the same was contrary to his aforesaid interest; and

4. That the declarant had no motive to falsify and he believed such declaration to be true.

Persons do not make statements that are

disadvantageous to themselves without substantial reason to believe that the statements are true. Self-interest induces men to be cautious

in saying anything against themselves. In other words, we can safely trust a man when he speaks against his interest.

INTEREST COVERED: Proprietary, penal, pecuniary and penal. The declarant must realize at the very time of making the declaration that his declaration is against his interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true. It is essential that at the time of the statement,

the declarant’s interest affected thereby should be actual/real/apparent NOT merely contingent, future or conditional, otherwise, the declaration would not in reality be against interest.

If the declarant is still alive and available as a witness, his declaration would be admissible only as an admission against himself or privies or if he testifies, his statement against interest which he now denies would be admissible against him as a prior inconsistent statement in some instances.

SECTION 39. ACT OR DECLARATION ABOUT PEDIGREE Requisites: The actor or declarant is dead or unable to testify; The act or declaration is made by a person

related to the subject by birth or marriage; The relationship between the declarant or the

actor and the subject is shown by evidence other than such act or declaration;

The act or declaration was made ante litem motam or prior to the controversy.

Family Reputation or tradition in respect to one’s pedigree may be established: 1. Through testimony in open court of a witness

who must be a member of the family either by consanguinity or affinity;

2. Through entries in : a. Family bible; b. Family books or charts; c. Engravings on rings; d. Family portraits and the like.

The reputation between the declarant and the person subject of the inquiry must be legitimate, unless the issue is the legitimacy itself.

SECTION 40. FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE The word PEDIGREE includes relationship, family

genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree.

Section 39 Section 40

Act or declaration about PEDIGREE.

Family reputation or tradition regarding pedigree.

Witness need not be a member of the family.

Witness is a member of the family.

Relation of the declarant and the person subject of the inquiry must be established by independent evidence

The witness is himself the one to whom the fact relates, it is not necessary for him to establish by independent evidence his relationship to the family (Francisco, p.292).

Testimony is about what declarant, who is dead or unable to testify, has said concerning the pedigree of the declarant’s family.

Testimony is about family reputation or tradition covering matters of pedigree.

SECTION 41. COMMON REPUTATION The following may be established by common reputation: 1. Matters of public interest more than 30 yrs. old; 2. Matters of general interest more than 30 years

old; 3. Matters respecting marriage or moral character

and related facts;

4. Individual moral character; Common Reputation is the definite opinion of the community in which the fact to be proved is known or exists. It means the general or substantially undivided reputation, as distinguished from a partial or qualified one, although it need not be unanimous. As a general rule, the reputation of a person

should be that existing in the place of his residence, it may also be that existing in the place where he is best known.

CHARACTER means that which a person really is, while REPUTATION is that which he is reputed to be (Francisco, p.301). Evidence of Negative Good Repute Where the foundation proof shows that the witness was in such position that he would have heard reports derogatory to one’s character, the reputation testimony may be predicated on the absence of reports of bad reputation or on the fact that the witness had heard nothing against the person. SECTION 42. PART OF RES GESTAE Res Gestae literally means things done; it includes the circumstances, facts, and declarations incidental to the main fact or transaction necessary to illustrate its character and also includes acts, words or declarations which are closely connected therewith as to constitute part of the transaction.

Res Gestae In Connection With A Homicidal Act

Dying

Declarations

May be made by

the killer himself

after or during the

killing OR that of a

3rd person.

Can be made only

by the victim.

May precede,

accompany or be

made after the

homicidal attack

was committed.

Made only after

the homicidal

attack has been

committed.

Justification in the

spontaneity of the

statement.

Trustworthiness

based upon its

being given in

awareness of

impending death.

Two Types of Res Gestae 1. SPONTANEOUS STATEMENTS- Statements made

by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof; The statement is made instinctively: The facts speaking thru the party not the party talking about the facts.

2. VERBAL ACTS - Statements accompanying an

equivocal act material to the issue, and giving it a legal significance.

Thus, in bribery, the declaration made by the third person accompanying the delivery of money is admissible.

Verbal Acts Spontaneous Statements

The res gestae is the equivocal act.

The res gestae is the startling occurrence.

Verbal act must be contemporaneous with or must accompany the equivocal act.

Statements may be made prior, or immediately after the startling occurrence.

Requisites of Admissibility of Spontaneous Statements 1. There must be a startling occurrence; 2. The statement must relate to the circumstances

of the startling occurrence; and 3. The statement must be spontaneous. The interval of time between the startling occurrence and the statement depends upon the circumstances; but such statement must have been made while the declarant was under the immediate influence of the startling occurrence. However, if the declarant was rendered unconscious after the startling occurrence,

his statements relative thereto upon regaining consciousness are still part of the res gestae regardless of the time that intervened in between. Reasons for Admissibility of Spontaneous Statement 1. Necessity – natural and spontaneous utterances

are more convincing than the testimony of the same person on the stand.

2. Trustworthiness – the statement is made instinctively: The facts speaking thru the party not the party talking about the facts.

It is essential that they should have been caused

by something startling enough to produce nervous excitement. The declarant must be a witness to the event to which the utterance relates. He must have personally observed the fact.

What the law distrusts is not the “after speech” but “afterthought.” Requisites of Admissibility of Verbal Acts 1. The act or occurrence characterized must be

equivocal; 2. Verbal acts must characterize or explain the

equivocal act; 3. Equivocal act must be relevant to the issue; and 4. Verbal acts must be contemporaneous with the

equivocal act.

SECTION 43. ENTRIES IN THE COURSE OF BUSINESS Otherwise known as the SHOP-BOOK RULE. Requisites: 1. That the entrant made the entry in his

professional capacity or in the performance of a duty;

2. That the entry was made in the ordinary course of business or duty;

3. The entries must have been made at or near the time of the transaction to which they relate;

4. The entrant must have been in a position to know the facts stated in the entries;

5. The entrant must be deceased or unable to testify.

The law does not fix any precise moment when the entries should be made. It is sufficient if the entry was made within a reasonable period of time so that it may appear to have taken place while the memory of the facts was unimpaired.

How regularity of the entries proved: It may be proved by the form in which they appear in the corresponding book. There is no overriding necessity to bring into courts all the clerk or employees who individually made the entries in a long account. It is sufficient that the person who supervises them testify that: 1. The account was prepared under his supervision;

and 2. The entries were regularly entered in the

ordinary course of business (Regalado, p.751).

SECTION 44. ENTRIES IN OFFICIAL RECORDS Requisites: 1. That it was made by a public officer or by another

person specially enjoined by law to do so; and 2. That it was made by a public officer in the

performance of his duty, or by another person in the performance of a duty specially enjoined by law; and

3. The public officer or the other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information.

Reasons for its admission 1. Necessity - practical impossibility of requiring the

official’s attendance as a witness to testify to the innumerable transactions occurring in the course of his duty.

2. Trustworthiness – there is a presumption of regularity in the performance of official duty.

Probative value: only prima facie evidence of the fact stated therein. It is not essential for the officer making the

official statement to have a personal knowledge of the facts stated by him, it being sufficient that the official information was acquired by officers who prepared the reports from persons who not only have personal knowledge of the facts stated

but must have the duty to give such statements for the record.

It is well settled that entries in the police blotter

should not be given due significance or probative value as they are not conclusive evidence of the truth of their contents but merely of the fact that they were recorded. Hence, they do not constitute conclusive proof (People vs. Cabrera. Jr. G.R. No. 138266, April 30, 2003).

Entries In The

Course of Business Entries In Official

Records The person who made the entries must be dead or unable to testify.

There is no such requirement.

Needs authentication

Need not be authenticated

Best evidence rule applies

Exception to best evidence rule (irremovability of public records)

The entries are made pursuant to a duty, either legal, contractual, moral or religious.

The entrant is a public officer, or if a private individual, must have acted pursuant to a specific legal duty.

COMMERCIAL LISTS AND THE LIKE Requisites: 1. Statements of matters of interest to persons

engaged in an occupation; 2. The statements must be contained in a list,

register, periodical or other published compilation;

3. That compilation is published for use by persons engaged in that occupation; and

4. Is generally relied upon by them.

E.g. mortality tables and accepted actuarial and annuity tables. Reasons for its admission 1. Necessity – because of the usual inaccessibility of

the persons responsible for the compilation of matters contained in a list, register, periodical or

other published compilation and tremendous inconvenience it would cause to the court if it would issue summons to these numerous individuals.

2. Trustworthiness – they have no motive to deceive and they further realize that unless the list, register, periodical or other published compilation are prepared with care and accuracy, their work will have no commercial or probative value.

SECTION 46. LEARNED TREATISES In order that a published treatise, periodical or pamphlet on a subject of law, history, science or art may be admissible, it is necessary either: 1. That the court can take judicial notice of it; or 2. 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.

Learned writers have no motive to misrepresent.

He is aware that his work will be carefully scrutinized by the learned members of his profession and that he shall be subject to criticisms and ultimately rejected as an authority on the subject matter if his conclusions are found to be invalid.

SECTION 47. TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING Requisites: 1. The testimony or depositions of a witness

deceased or unable to testify; 2. The testimony was given in a former case or

proceeding, judicial or administrative; 3. Involving the same parties; 4. Relating to the same subject matter; 5. The adverse party having had an opportunity to

cross-examine him. Note: In criminal cases, either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or cannot with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the

opportunity to cross-examine him (Rule 115, Sec.1(f)). Opinion Rule (Rule 130, Section 48-50) General Rule:

- The opinion of a witness is not admissible. Exceptions:

I. Made by an Expert Witness - The opinion of a witness on a matter

requiring SPECIAL KNOWLEDGE, SKILL, TRAINING OR EXPERIENCE which he is shown to possess, may be received in evidence.

II. Made by an Ordinary Witness

a. Identity of a person about whom he has adequate knowledge.

b. A handwriting with which he has sufficient familiarity

c. The mental sanity of a person with whom he is sufficiently acquainted.

- The witness may also testify on his

impressions of the emotion, behavior, condition, or appearance of a person.

Character Evidence (Rule 130, Section 51) General Rule: Not admissible. Exceptions:

A. In a Criminal Case 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 bag 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 a Civil Case

Evidence of the moral character of a party in a 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 - Evidence of the good character of a witness

is not admissible until such character has been impeached.

JUDICIAL AFFIDAVIT RULE (JAR) (AM No. 12-8-8-SC)

1. Definition - It is an affidavit executed by a witness for a

party in a case, in the form of a question and answer, which is submitted to the court in lieu of the direct examination of the said witness.

2. Scope (Section 1)

General Rule: It shall apply to all actions, proceedings, and incidents requiring the reception of evidence.

Note: The JAR was modified for a period of 1 year in criminal cases where public prosecutors can temporarily use the sworn statements that the complainant and their witnesses submit during the initiation of the criminal action. Upon presenting the witness, the attending public prosecutor shall require the witness to affirm what the sworn statement contains and may only ask the witness additional direct examination questions that have not been amply covered by the sworn statement.

Exceptions: I. It shall apply to all criminal actions:

a. Where the maximum of the imposable

penalty does not exceed 6 years. b. Where the accused agrees to the use of the

judicial affidavits, irrespective of the penalty involved; or

c. With respect to the civil aspect of the actions, whatever the penalties involved are.

II. It shall not apply to small claims cases.

Courts and Offices within the Scope of the JAR: (Section 1)

a. MTC, MCTC, MunTC, MunCTC, Sharia Circuit Courts, except in cases of small claims.

b. RTC and Sharia District Courts c. Sandiganbayan d. Court of Tax Appeals e. Court of Appeals f. Sharia Appellate Courts g. The investigating officers and bodies

authorized by the SC to receive evidence, including the IBP

h. Special courts and quasi-judicial bodies, whose rule of procedure are subject to disapproval of the SC, insofar as their existing rules of procedure contravene the provisions of this Rule.

When to File and Serve:

- Not later than 5 days before pre-trial or preliminary conference, or the scheduled hearing with respect to motions and incidents.

How to Serve the Judicial Affidavit on the Adverse Party:

1. Personal service; or 2. Licensed courier service.

Contents of Judicial Affidavit:

a. Name, age, residence or business address, and occupation of the witness.

b. Name and address of the lawyer who conducted 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

f. A jurat with the signature of the notary public who administers the oath or any other person authorized to administer the oath.

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 to

disciplinary action, including disbarment. Procedure in the Trial Using the Judicial Affidavit:

1. The party presenting the judicial affidavit shall state the purpose of such testimony at the start of the presentation of the witness.

2. The adverse party may move to disqualify the witness or to strike out the affidavit or its portions on ground of inadmissibility.

3. The court shall rule on the motion, and if granted, shall exclude any answer or the whole judicial affidavit, without prejudice to a tender of excluded evidence under the Rules of Court.

4. The adverse party shall have a right to cross examine the witness on his judicial affidavit.

5. The party who presented the witness may examine on re-direct.

6. Upon the termination of the last witness, a party shall make an oral offer of evidence of his documentary or object exhibits, in their chronological order, stating the purpose for which he offers such exhibit.

7. After each piece of exhibit is offered, the adverse party may object and the court shall immediately make its ruling regarding that exhibit.

Effects of Non-Compliance with the JAR:

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 P 1,000.00 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 cross-examination 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 compliant 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 P 5,000.00, at the discretion of the court.