Evidence

I. PRELIMINARY CONSIDERATION:

A. Importance of the study of Evidence in Law Enforcement:

As an element of our Criminal Justice System, it is the duty of every law enforcement agencies to provide the prosecution with the materials and information (Evidence) necessary in order to support conviction.

Every person is entitled to be presumed innocent of a crime or wrong, unless proven otherwise. This is a prima facie presumption which must be overcome by proof beyond reasonable doubt. Prima facie also refers to specific evidence that, if believed, supports a case or an element that needs to be proved in the case. The term prima facie evidence is used in both civil and Criminal Law. For example, if the prosecution in a murder case presents a videotape showing the defendant screaming death threats at the victim, such evidence may be prima facie evidence of intent to kill, an element that must be proved by the prosecution before the defendant may be convicted of murder. On its face, the evidence indicates that the defendant intended to kill the victim.

B. Connecting the chain of events through Evidence during Trial:

Trial refers to “the examination before a competent tribunal, according to the laws of the land, of the facts in issue in a cause, for the purposes of determining such issue” (U.S. v. Raymundo, 14 Phil 416).

Evidence helps in the determination of Questions of Facts by helping the judge reconstruct the chain of events from the conception up to the consummation of a criminal design.

C. Factum Probandum and Factum Probans

Factum Probandum – The ultimate facts to be proven. These are the proposition of law.

Examples:•    murder was committed thru treachery•    robbery was made through force upon things

Factum Probans – The evidentiary Facts. These address questions of fact.

Examples:•    exit wounds were in front indicating that victim was shot at the back•    destroyed locks indicative of force upon things

Thus, the outcome of every trial is determined by:

•    Propositions of law, and•    Questions of fact.

D. Proof and Evidence

Evidence – the means to arrive at a conclusion. Under the Revised Rules of Court, evidence is defined as “the means, sanctioned by the rules, for ascertainment in a judicial proceeding, the truth, respecting a matter of fact”.

Proof – the result of introducing evidence. The establishment of a requisite degree of belief in the mind of the judge as to the facts in issue. It refers to the accumulation of evidence sufficient to persuade the trial court.

Quantum of evidence – the totality of evidence presented for consideration

Quantum of proof – refers to the degree of proof required in order to arrive at a conclusion.

Burden of evidence – the duty of a party of going forward with evidence.

Burden of proof – the duty of the affirmative to prove that which it alleges.

Variations on degrees of proof based on type of action:

1.    Criminal Action – proof beyond reasonable doubt [that degree of proof which produces conviction in an unprejudiced mind]2.    Civil Action – preponderance of evidence [evidence of greater weight or more convincing than that which is offered to refute it]3.    Administrative Action – sufficiency of evidence [that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion]

E. Exclusionary Rule. (Fruit of   the poisonous tree doctrine)

Evidence ILLEGALLY OBTAINED are inadmissible for reasons of public policy. This is so because of the constitutional requirement of due process. Due process has been defined as “the law that hears before it condemns, which proceeds upon inquiry, and renders judgment only after fair trial”.

As a result, jurisprudence has evolved a rule that renders inadmissible any evidence obtained in an illegal search from being introduced in trial.

F. Principle of Chain of Custody of Evidence

If the evidence is of a type which cannot be easily recognized or can readily be confused or tampered with, the proponent of the object must present evidence of its chain of custody. The proponent need not negate all possibilities of substitution or tampering in the chain of custody, but must show that: The evidence is identified as the same object which was taken from the scene;It was not tampered with, or that any alteration can be sufficiently explained (i.e. discoloration due to the application of ninhydrine solution, etc.); and The persons who have handled the evidence are known and may be examined in court with regard to the object.

II. GENERAL PROVISIONS:

A. Concepts of evidence:

1.    It is a means of ascertainment – used to arrive at a legal conclusion2.    It is sanctioned by the rules of court – meaning, not excluded by the rules on relevancy and admissibility3.    It is used in a judicial proceeding – there is a jural conflict involving different rights asserted by different parties4.    It pertains to the truth respecting a matter of fact – evidence represents a “claim” either for the prosecution or for the defense where issues (clashes of view) are present.

Admissibility of Evidence:

For evidence to be admissible, it must be:    1) relevant to the issue [relevancy test], and 2) not excluded by the law or rules of court [competency test].

Note:  To determine the relevancy of any item of proof, the purpose for which it is sought to be introduced must first be known (There must be a formal offer).

Test of relevancy of evidence:

Whether or not the factual information tendered for evaluation of the trial court would be helpful in the determination of the factual issue that is disputed.

When is evidence relevant? 

When it has a relation to the fact in issue as to induce belief in it’s:    1) existence, or 2) non-existence 

In other words, evidence is relevant when it is:1) material, and2) has probative value

What is meant by “probative value”?

It is the tendency of the evidence to establish the proposition that it is offered to prove.

“Collateral Matters” not admissible except when it tend in any reasonable degree to establish probability or improbability of the fact in issue.

Collateral matters – matters other than the fact in issue and which are offered as a basis for inference as to the existence or non-existence of the facts in issue.

Collateral matters are classified into:

1.    Antecedent circumstances – facts existing before the commission of the crime [i.e. hatred, bad moral character of the offender, previous plan, conspiracy, etc.]2.    Concomitant circumstances – facts existing during the commission of the crime [i.e. opportunity, presence of the accused at the scene of the crime, etc.]3.    Subsequent circumstances – facts existing after the commission of the crime [i.e. flight, extrajudicial admission to third party, attempt to conceal effects of the crime, possession of stolen property, etc.]

Query: Is modus operandi an antecedent, concomitant or subsequent circumstance?

B. Judicial Notice, basis of:

Judicial notice is based on necessity and expediency. This is so because what is known need not be proved.

Different kinds of judicial notices:

1.    mandatory2.    discretionary3.    hearing required

C. Confession and Admission, distinguished:Confession – an acknowledgement of guilt.Admission – an acknowledgment of facts.

Different kinds of confession/admission:1.    Judicial2.    Extrajudicial3.    Oral4.    Written5.    Voluntary6.    Forced

Different kinds of evidence:1.    Relevant evidence – evidence having any value in reason as tending        to prove any matter provable in an action.2.    Material evidence – evidence is material when it is directed to prove a 

       fact in issue as determined by the rules of substantive law and        pleadings.3.    Competent evidence – not excluded by law.4.    Direct evidence – proves the fact in issue without aid of inference       or  presumptions.5.    Circumstantial evidence -  the proof of fact or facts from which, taken            either singly or collectively, the existence of a particular fact in dispute        may be inferred as necessary or probable consequence.6.    Positive evidence – evidence which affirms a fact in issue.7.    Negative evidence - evidence which denies the existence of a fact        in issue.8.    Rebutting evidence – given to repel, counter act or disprove facts        given in evidence by the other party.9.    Primary/Best evidence – that which the law regards as affording        the greatest certainty.10.  Secondary evidence – that which indicates the existence of a        more original source of information.11.  Expert evidence – the testimony of one possessing knowledge        not usually acquired by other persons.12. Prima facie evidence – evidence which can stand alone to support       a conviction unless rebutted.13. Conclusive evidence – incontrovertible evidence14. Cumulative evidence – additional evidence of the same kind bearing       on the same point.15. Corroborative evidence – additional evidence of a different kind       and  character tending to prove the same point as that of previously           offered evidence.16. Character evidence – evidence of a person’s moral standing or       personality traits in a community based on reputation or opinion.17. Demeanor evidence – the behavior of a witness on the witness stand         during trial to be considered by the judge on the issue of credibility.18. Demonstrative evidence – evidence that has tangible and       exemplifying   purpose.19. Hearsay evidence – oral testimony or documentary evidence which       does not derive its value solely from the credit to be attached to the      witness himself.20.Testimonial evidence – oral averments given in open court by      the witness.21. Object/Auotoptic proferrence/Real evidence – those addressed to       the senses of the court (sight, hearing, smell, touch, taste).22. Documentary evidence – those consisting of writing or any material             of written expression offered as proof of its contents.      containing letters, words, numbers, figures, symbols or other modes 

Best Evidence Rule:When the subject of the inquiry is the contents of a document, no evidence shall be admissible other than the original of the document.

For exceptions, see Sec. 3, Rule 130, Revised Rules of Court.

A document is legally considered “Original” when:1.    It is the subject of an inquiry2.    When in two or more copies executed at or about the same time, with identical contents.3.    When an entry is repeated in ordinary course of business, one being copied from another at or near the time of the transaction.

Question: May a “fake” document be considered as “original” or “authentic”?

Yes. A forged or spurious document when presented in court for examination is considered as the original fake/forged document. Thus, a mere photocopy of the allegedly forged or spurious

document is only secondary to the original questioned document.

Secondary EvidenceWhen the original document has been:1.    lost,2.    destroyed, or3.    cannot be produced in court.

The offeror without bad faith must:1.    prove its execution or existence, and2.    prove the cause of its unavailability.

Secondary evidence may consist of:1.    a copy,2.    recital of its contents in some authentic document, or3.    by testimony of witnesses.

When original document is in the custody of:1.    adverse party – adverse party must have reasonable notice to produce it. After such notice and satisfactory proof of its existence, he fails to produce it, secondary evidence may be presented.2.    public officer – contents may be proved by certified copy issued by the public officer in custody thereof.

III. TESTIMONIAL EVIDENCE:

Qualifications of witnesses:1.    can perceive2.    can make known their perception to others3.    not disqualified by reason of mental incapacity, immaturity, marriage, privileged communications, or “dead man’s statute”.

“Res Inter Alios Acta” RuleGeneral Rule: The rights of a party cannot be prejudiced by an act, declaration, or omission of another.

Exception:1.    admission by a co-partner or agent2.    admission by a conspirator3.    admission by privies4.    admission by silence

In the above cases, the admission of one person is admissible as evidence against another.

Testimonial Knowledge: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. Any statement which derives its strength from another’s personal knowledge is hearsay, and is therefore inadmissible.

Exceptions:1.    Dying declarations (ante-mortem statements)2.    Declaration against interest3.    Act or declaration about pedigree4.    Family reputation or tradition regarding pedigree5.    Common reputation6.    Part of the res gestae7.    Entries in the course of business8.    Entries in official records9.    Commercial lists and the like10.    Learned treatises

11.    Testimony or deposition at a former proceeding12.      Examination of child victim/witness in cases of child abuse

IV. BURDEN OF PROOF AND PRESUMPTIONS:

Burden of proof – 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.

Presumption – an inference as to the existence of a fact not actually known, arising from its usual connection with another which is known or a conjecture based on past experience as to what course human affairs ordinarily take.

2 kinds of presumptions:1.    Conclusive presumptions [jure et de jure] – based on rules of substantive law which cannot be overcome by evidence to the contrary.2.    Disputable presumptions [prima facie presumptions, rebuttable presumptions] – based on procedural rules and may be overcome by evidence to the contrary.

Kinds of Conclusive Presumptions:1.    Estoppel by record or judgment – the preclusion to deny the truth of matters set forth in a record, whether judicial or legislative, and also deny the facts adjudicated by a court of competent jurisdiction (Salud v. CA, 233 SCRA 387).2.    Estoppel by deed – a bar which precludes a party to a deed and his privies from asserting as against the other and his privies any right or title in derogation of the deed or denying the truth of any material fact asserted in it (Iriola v. Felices, 30 SCRA 202).3.    Estoppel in pais – based upon express representation or statements or upon positive acts or conduct. A party cannot, in the course of litigation or in dealings in pais, be permitted to repudiate his representation or occupy inconsistent positions.4.    Estoppel against Tenant – the tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them.

Note: For Kinds of disputable presumptions, see Sec. 3, Rule 131 of the Revised Rules of Court.

Presentation of Evidence:The examination of witnesses presented in a trial or hearing shall be done is open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answer of the witness shall be given orally.

Rights and Obligations of witnesses:1. To be protected from irrelevant, improper, or insulting questions,     and from harsh or insulting demeanor.2. Not to be detained longer than the interest of justice requires.3. Not to be examined except only as to matters pertinent to the     issue.4. Not to give an answer which will tend to subject him to a penalty     for an offense unless otherwise provided by law.5. Not to give an answer which will tend to degrade his reputation,     unless it be to the very fact at issue or to the fact from which the     fact in issue would be presumed,but a witness must answer to the     facts of his previous final conviction for an offense.

Order of Examination of individual witnesses:Direct examination by the proponentCross examination by the opponentRe-direct examination by the proponentRe-cross examination by the opponent

Direct examination – the examination in chief of a witness by the party presenting him on the facts relevant to the issue.Cross examination – the examination by the adverse party of the witness as to any matter stated in

the direct examination, or connected therewith, with sufficient fullness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue.

Re-direct examination – second questioning by the proponent to explain or supplement answers given in the cross examination.Re-cross examination – second questioning by the adverse party on matters stated on the re-direct and also on such matters as may be allowed by court.

Different Types of Questions:Leading questions –It is one where the answer is already supplied by the examiner into the mouth of the witness. [Ex. You saw Jose killed Juan because you were present when it happened, didn’t you?]Misleading question – a question which cannot be answered without making an unintended admission. [Ex. Do you still beat your wife?]Compound question – a question which calls for a single answer to more than one question. [Ex. Have you seen and heard him?]Argumentative question – a type of leading question which reflects the examiners interpretation of the facts. [Ex. Why were you driving carelessly?]Speculative question – a question which assumes a disputed fact not stated by the witness as true. [Ex. The victim cried in pain, didn’t he?]Conclusionary question – a question which asks for an opinion which the witness is not qualified or permitted to answer. [Ex. Asking a high school drop-out whether the gun used is a Cal. 45 pistol or 9mm pistol]Cumulative question – a question which has already been asked and answered.Harassing/Embarrassing question – [Ex. Are you a homosexual?]

Classes of Documents:Documents are either public or private.

Public documents are:

    1. The written official acts, or records of the official acts of sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or a foreign country.    2. Documents acknowledged before a notary public except last wills and testaments.    3. Public records (1) kept in the Philippines, or private documents (2) required by law to be entered therein.

All other writings are private.

SOME USEFUL LATIN TERMS AND LEGAL MAXIMS:

Verba legis non est decendendum – from the words of the law there can be no departure.

Dura lex sed lex – the law may be harsh but it is the law.

Ignorantia legis neminem excusat – ignorance of the law excuses no one.

Ignorantia facti excusat – mistake of fact excuses.

Praeter intentionem – different from that which was intended.

Error in personae – mistake in identity.

Abberatio Ictus – mistake in the blow

Nulum crimen, nulla poena sine lege – there is no crime when there is no law punishing the same.

Actus non facit reum, nisi mens sit rea – the act cannot be criminal where the mind is not criminal.

Actus mi invictu reus, nisi mens facit reum – an act done by me against my will is not my act.

Mens rea – guilty mind.

Actus reus – guilty act.

Res ipsa loquitor – the thing speaks for itself.

Causa Proxima – proximate cause which produced the immediate effect.

Prima facie – at first glance.

Locus Criminis – scene of the crime or crime scene.

Pro Reo – principle in Criminal Law which states that where the statute admits of several interpretations, the one most favorable to the accused shall be adopted.

Res Gestae – the thing itself.

Falsus in unum, falsus in omnibus – false in one part of the statement would render the entire statement false (note: this maxim is not recognized in our jurisdiction).

                 Evidence - Definition of Terms: Next PageEvidence - Definition of TermsAdmissible evidence - Evidence that is both relevant and competent.

Admissions - Any statement of fact made by a party against hisinterest or unfavorable to the conclusion  for  which  he  contendsor  is inconsistent with the facts alleged by him.

Best Evidence Rule - When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself.

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

Child Witness - Any person who at the time of giving testimony is less than 18 years old.

Circumstantial Evidence - Proof of fact/s from which, taken singly/collectively, the existence of the particular fact in dispute may be inferred as a necessary/probable consequence. It is evidence of relevant collateral facts.

Collateral Matters - Matters other than the fact in issue and which are offered as a basis for inference as to the existence or non-existence of the facts in issue.

Competence -  Evidence is not excluded by law or Rules of Court.

Conclusive Evidence - That class of evidence which the law does not allow to be contradicted.

Confession - A categorical acknowledgment of guilt made by anaccused in a criminal case without  any  exculpatory  statement  or explanation.

Corroborative Evidence - Additional evidence of a different character to the same point.

Cumulative Evidence - Evidence of the same kind and to the same state of facts.

Direct Evidence - Proves the fact in dispute without aid of any inference or presumption.

Documentary Evidence : Writings or any material containingletters, words, numbers, figures, symbols or other modes of written expression offered as proof of their content.

Electronic Data Message - Information generated,  sent,  received  or  stored  by electronic, optical or similar means

Electronic Document - Information or the  representation  ofinformation/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/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.

Electronic Signature - Any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic datamessage  or  electronic  document  or  any methodology/procedure employed/adopted by a person and executed/adopted by such person with the intention of authenticating, signing orapproving an electronic data message or electronic document.

Ephemeral Electronic Communication -  Refers to telephone conversations, text messages, chatroom sessions, streamingaudio, streaming video and other electronic forms of communication the evidence of which is not recorded/retained.

Extra Judicial Admission - Any admission other than judicial.

Factum probandum – ultimate fact or the fact sought to beestablished.

Factum probans – evidentiary fact or the fact by which the factum probandum isto be established.

Judicial Admissions -  Admissions, verbal or written, made by the party in the course of the proceedings in the same case. It requires no proof.

Negative Evidence - When witness states that he did not see or know of the occurrence of a fact (total disclaimer of personal knowledge).

Object Evidence -  Directly addressed to the senses of the court.Also called real evidence.

Parol Evidence Rule - Any evidence aliunde, whether oral orwritten, which is intended or tends to vary or contradict  a  

complete  and  enforceable agreement embodied in a document.

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

Positive Evidence - When a witness affirms that a fact did or did not occur (there is personal knowledge).

Preponderance of Evidence - The evidence adduced by one side is, as a whole, superior to or has greater weight than that of the other. Where the evidence presented by one side is insufficient to  ascertain  the  claim,  there  is  nopreponderance of evidence.

Prima Facie Evidence - That which, standing alone, is sufficient to maintain the proposition affirmed.

Primary Evidence - (Best Evidence) - That which the law regards as affording greatest certainty of the fact in question.

Proof Beyond Reasonable Doubt - That  degree  of  proof  whichproduces conviction in an unprejudiced mind. It does not mean such a degree of proof as, excluding the possibility of error, produces absolute certainty. Only moral certainty is required – that degree of proof which produces conviction in an unprejudiced mind.

Relevance - Evidence has such a relation to the fact in issue as to induce belief of its existence or non-existence.

Res Gestae - It literally means “Things done”.                          1) Statements made by a person while a starting                               occurrence is taking place or immediately prior                               or subsequent thereto, with respect to the                               circumstances thereof.                          2) Statements accompanying an equivocal act                              material to the issue, and giving it a legal                              significance.

Res Inter Alios Acta - The rights of a party cannot be prejudiced by an act/declaration/omission of another.

Secondary Evidence - (Substitutionary) -  That which is inferior to the primary evidence and is permitted by law only when the best evidence is not available.

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

Testimonial Evidence - Submitted to the court through the testimony or deposition of a witness.

EVIDENCE

1. Definitions

a. Factum probandum – ultimate fact or the fact sought to beestablished

b. Factum probans – evidentiary fact or the fact by which the factumprobandum is to be established

2. Classification of evidence

a. Object (Real)( That which is directly addressed to the senses of the court andconsists of tangible things exhibited or demonstrated in open court, inan ocular inspection, or at a place designated by the court for itsview or observation of an exhibition, experiment or demonstration;always relevant regardless of contents

Documentary( Evidence supplied by written instruments or derived fromconventional symbols, such as letter, by which ideas are represented onmaterial substances

Testimonial( That which is submitted to the court through the testimony ordeposition of a witness

b. Relevant( Evidence having any value in reason as tending to prove anymatter provable in an action( Relevancy – logical relation of evidentiary fact to fact in issue

Material( Evidence directed to prove a fact in issue

Competent( One that is not excluded by law in particular case

c. Direct( That which proves the fact in dispute without the aid of anyinference or presumption

Circumstantial( The proof of the facts other than the fact in issue from which,taken either singly or collectively, the existence of the particularfact in dispute may be inferred as a necessary or probable consequence

d. Cumulative( Evidence of the same kind and to the same state of facts

Corroborative( Additional evidence of a different character to the same pointfor higher probative value

e. Prima facie( That which standing alone, unexplained or uncontradicted issufficient to maintain a proposition

Conclusive( Class of evidence which the law does not allow to be contradicted

f. Primary or Best( That which the law regards as affording greatest certainty of thefact in question

Secondary or Substitutionary( That which is inferior to the primary evidence and is permittedby law only when the best evidence is not available

g. Positive( The witness affirms that a fact did or did not occur

Negative( The witness states that he did not see or know of the occurrenceof a fact

RULE 129 WHAT NEED NOT BE PROVED

1. What do not need to be proved: [NAPITAS]

Matters of judicial notice

Judicial admissions

Facts presumed

Allegations in complaint or answer which are immaterial to the issue

Facts admitted or not denied in the answer, provided they have beensufficiently alleged

Those which are the subject of an agreed stipulation of facts betweenthe parties, as well as judicial admissions made in the course of theproceedings

Technical admission – when defendant fails to specifically deny theallegations of plaintiff

2. Doctrine of processual presumption – absent any evidence oradmission, the foreign law in question is presumed to be the same asthat in the Philippines

3. Mandatory judicial notice [SLAPTONG]

States – existence, territory, political history, government, symbolsof nationality

Law of nations

Admiralty and maritime courts and seals

Philippine – political constitution and history

Official acts

( Court cannot take judicial notice of a law or regulation that isnot yet effective

( Decisions of SC are proper subjects of mandatory judicial notice

Laws of nature

Measure of time

Geographical division

4. Discretionary judicial notice

Matters which are of public knowledge

( Common and general knowledge

( Indisputable

Matters capable of unquestionable demonstration

Ought to be known by judges because of their judicial functions

( Newspaper reports not subject to judicial notice

( Courts cannot take judicial notice of custom. Custom must beproved as a matter of fact.

Pardon is granted by the Chief Executive and as such is a private actwhich must be pleaded and proved by the person pardoned.

5. Judicial Admissions:

( Verbal or written; made by a party in course of the proceedingsin the same case

( May only be contradicted by showing that:

Made through palpable mistake; or

No such admission was made.

( Admissions made in a pleading later amended: lose their status asjudicial admissions; become merely extra-judicial admissions which mustbe offered.

( A stipulation made during a criminal proceeding is tantamount toa judicial admission and need not be signed as required by R118, §4 tobe binding on the accused.

( A court cannot take judicial notice of an admission made by aparty in another case even if the latter case is pending before thesame sala or judge, except:

In the absence of objection;

With knowledge or upon request of the parties;

It is part of the records.

RULE 130 RULES OF ADMISSIBILITY

1. Admissibility of object evidence

Relevant to fact in evidence

Object must be authenticated before it is admitted

Production of documents under this rule and Under Rule 27 (modes ofdiscovery), distinguished

Rule 130 Rule 27 Production is procured by mere notice to adverseparty, and requirements for such notice must be complied with as acondition precedent for the subsequent evidence by the proponent

Production is by proper motion in the trial court, and is permittedonly upon good cause shown (mode of discovery) Presupposes that the document to be produced is intended as evidencefor the proponent who is presumed to have knowledge of its contents,secondary evidence thereof being available in case of its nonproductionContemplates situation wherein document is either assumedto be favorable to the party in possession thereof OR that the partyseeking its production is not sufficiently informed of the contents ofthe same

Best Evidence Rule

1. General Rule: When the subject of an inquiry is the contents of adocument, no evidence shall be admissible other than the originaldocument itself. (If only the fact of execution/existence/surroundingcircumstances only is involved, or when the event is memorialized andthe writing is only incidental, the Rule does not apply)

2. Exceptions to Best Evidence Rule:

a. Original is lost or destroyed, or cannot be produced in courtwithout bad faith on the part of the offeror;

When the original is in the custody of the party against whom theevidence is offered, and the latter fails to produce it afterreasonable notice;

When the original consists of numerous accounts or other documentswhich cannot be examined in court without great loss of time and theonly fact sought to be established is the general result of the whole;and

When the original is a public record in the custody of a public officeror is recorded in a public office.

3. Meaning of “original” document

The one the contents of which are the subject of an inquiryIf in 2 or more copies executed:

At or about the same time; AND

With identical contents

( Then all copies are originalsIf entry isRepeated in regular course of business, withOne being copied from another;

At or near the time of the transaction,

( Then all entries are originals

4. If original is unavailable:

( Order of proof (but can be changed at court’s discretion):

Existence

Execution:

Established byPerson who executed it;

The person before whom its execution was acknowledged

Any person who was present and saw it executed, and recognized thesignature;

Any person to whom the parties to the instrument had previouslyconfessed the execution thereof

c. Loss or Destruction

( If there are several original copies, all copies must beaccounted for before secondary evidence may be received.

d. Contents

Proof of Contents of Lost Original or Original in custody/control of

adverse party (Secondary Evidence) – in order stated:

A copy

A recital of its contents in an authentic document

Testimony of witnesses

6. What must be proven if original in possession of adverse party

Opponent’s possession of original

Reasonable notice to opponent to produce the original

Satisfactory proof of its existence

Failure or refusal of opponent to produce original in court

( By opponent’s failure to produce the document on demand, he isnow forbidden to produce the document in order to contradict the otherparty’s copy/evidence of its contents

Parol Evidence Rule

1. General Rule: When the terms of an agreement have been reducedinto 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 writtenagreement

Exceptions to the Parol Evidence Rule:

when a party puts in issue in his pleadings: [FIVE]

Intrinsic ambiguity, mistake or imperfection in the written agreement

Failure of the written agreement to express the true intent of theparties;

Validity of the written agreement; OR

Existence of other terms agreed upon subsequent to the execution of thewritten agreement

NOTE: Parol = evidence aliunde whether oral or written which tends todeny or contradict documented agreement.

( A “Receipt” or a “Deed” is not an exclusive memorial and factscontained therein may be shown irrespective of the terms of thedocument.

( Distinction must be made between “statements of fact” expressedin an instrument and the “terms” of the contractual act. The formermay be varied by parol evidence.

( Parol Evidence Rule not applicable to strangers to the contractot third parties

Parol Evidence Rule and Best Evidence Rule Distinguished

Parol Evidence Rule Best Evidence Rule Presupposes that the originaldocument is available in court The original writing is not availableand/or there is a dispute as to whether said writing is the originalProhibits the varying of the terms of a written agreement Prohibits theintroduction of substitutionary evidence in lieu of the originaldocuments, regardless of whether or not it varies the contents of theoriginal With the exception of wills, applies only to documents whichare contractual in nature (written agreements) Applies to all kinds ofwritings Can be involved only when the controversy is between theparties to the written agreements, their privies or any party affectedthereby (does not apply to complete strangers) Can be invoked by anyparty to an action, regardless of whether such party participated inthe writing involved

Qualification of Witnesses

1. Persons Disqualified from becoming witnesses due to mentalincapacity or immaturity:

a. Those whose mental condition, at the time of their production forexamination, is such that they are incapable of intelligently makingknown their perceptions to others; or

( A mental retardate is not, for this reason alone, disqualifiedfrom being a witness.

b. Children whose mental maturity is such as to render themincapable of perceiving the facts respecting which they are examinedand of relating them truthfully.But a child, regardless of age, may be considered as a competentwitness, if he is capable of [ORC]:

Observation

Recollection; and

Communication

Marital Disqualification Rule

*During their marriage, neither the husband nor the wife may testifyfor 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 casefor a crime committed by one against the other or the latter’s directdescendants or ascendants.

1. Exemptions to Marital Disqualification

( Wife may testify against the husband in a criminal case forfalsification, where the husband made it appear that the wife gave herconsent to the sale of a conjugal house (considered as a crimecommitted against the wife)

( If husband-accused defends himself by imputing the crime to the wife,he is deemed to have waived all objections to the wife’s testimonyagainst him.

Dead Man’s Statute

*Parties or assignors of parties to a case, or persons in whose behalfa case is prosecuted, against an executor or administrator or otherrepresentative of a deceased person, or against a person of unsoundmind, upon a claim or demand against the estate of such deceased personor against such person of unsound mind, cannot testify as to any matterof fact occurring before the death of such deceased person or beforesuch person became of unsound mind.

1. Requisites for Application of Dead Man’s Statute [PACO]

a. The witness is a Party or assignor of a party to a case, or of aperson on whose behalf a case is prosecuted;( Dead Man Statute not applicable to a corporation’s officers andstockholders in a suit instituted by the corporation. Thus, theofficers and stockholders may testify.

b. The action is Against an executor, administrator or otherrepresentative of a deceased person, or against a person of unsoundmind;

( Heirs of deceased person are considered “representatives” of adeceased person.

c. The subject matter of the action is a Claim or demand against theestate of such deceased person, or against such person of unsound mind;

d. The testimony refers to any matter of Fact occurring before thedeath of such deceased person, or before such person became of unsoundmind.

( Not covered by the Rule:

Counterclaim by defendant (plaintiff may testify in his defense)

Deceased contracted with plaintiff thru an agent of the deceased/insane(in the contract which is the subject of the action) who is still aliveand can testify (but the testimony is limited to the acts performed bythe agent)

If adverse party is called as a witness by the representative of thedeceased/incompetent or if representative introduced evidence as to thetransactions or communications with the deceased/incompetentTo cadastral proceedings, where there is no defendant or plaintiff

Privileged Communications:

1. Kinds of Privileged Communications:

Marital privilege

Attorney-client

Doctor-patient

Priest-Penitent

Public Officer’s Privilege

2. Requisites for Marital Privilege

Valid marital relation must have existed

Privilege is claimed with respect to a communication made by one spouseto another during the marriage;

Communication was made in confidence

3. Marital disqualification and marital privilege distinguished

Marital Disqualification Marital Privilege Can be invoked only if oneof the spouses is a part to the action Can be claimed whether or notthe spouse is a party to the action Right to invoke belongs to thespouse who is a party to the action Right to invoke belongs to thespouse making the communication Applies only if the marriage isexisting at the time the testimony is offered Can be claimed even afterthe marriage has been dissolved Constitutes a total prohibitionagainst any testimony for or against the spouse of the witness (withcertain exceptions) Applies only to confidential communications betweenspouses made during the marriage

4. Attorney-Client Privilege

There is an attorney-client relationship

There is a communication made by the client to the attorney

Such communication was made in the course of, or with a view to,professional employment

( Extends to attorney’s secretary, stenographer or clerk; requiresconsent of both employer and the client to testify as to matterslearned in their professional capacity

( Exceptions:

Actions brought by client against his attorneyCommunications made in presence of third persons

Communications regarding an intended crime

( General Rule: Lawyer may not invoke the privilege and refuse todivulge the name of his client

Exception:

If there is a probability that the revealing the client’s name wouldimplicate the client to the activity for which he sought the lawyer’sadvice;

The disclosure would open the client to civil liability;

Where the identity is intended to be confidential( Privilege not confined to verbal or written communications, butextends to all information communicated by the client to the attorneyby other means, such as when the attorney is called to witness thepreparation of a document.

5. Requisites for Physician-Patient privilege [CRANB]

The action is a Civil case

The Relation of physician-patient existed

The information was Acquired by the physician while attending to thepatient in his professional capacity

The information was Necessary for the performance of his professional

dutyThe disclosure of the information would Blacken the reputation of thepatient

( A patient’s husband is not prohibited from testifying on a reportprepared by his wife’s psychiatrist since he is not the treatingphysician (although it would be hearsay)

( A physician is not prohibited from giving expert testimony inresponse to a strictly hypothetical question in a lawsuit involving thephysical or mental condition of a patient he has treatedprofessionally.

6. Requisites for Priest-Penitent Privilege

Confession was made or advice given by the priest in his professionalcharacter in the course of the discipline enjoined by the church towhich the priest or minister belongs;The confession must be confidential and penitent in character

7. Requisites for Public Officer’s Privilege

Communication made to a public officer in official confidencePublic interest would suffer by the disclosure

8. “Newsman’s privilege” – a publisher, editor, columnist or dulyaccredited reporter cannot be compelled to disclose the source of newsreport or information appearing in the publication which is related inconfidence, the disclosure of which is not demanded by the security ofthe state.

Admissions and Confessions

1. Admission and Confession distinguished

Admission Confession Statement of fact which does not involve anacknowledgment of guilt or liability Involves acknowledgment of guiltor liability May be express or tacit Must be express May be made bythird persons, and in certain cases, are admissible against a party Canbe made only by the party himself, and in some cases, are admissibleagainst his co-accused NOTE: If a justification is alleged, it ismerely an admission.

( Right against self-incrimination applies to the re-enactment ofthe crime by the accused

2. Requisites for admissibility of an admission

Involves a matter of fact, not of law

Categorical and definite

Knowingly and voluntarily made

Adverse to the admitter's interest, otherwise, self-serving andinadmissible as hearsay

3. Admissions and Declarations against self-interest distinguished

Admissions Declaration against Interest Need not be, though willgreatly enhance probative weight if made against the interest of thedeclarant Must have been made against the proprietary or pecuniaryinterest of the parties Made by the party himself and is a primaryevidence and competent though he be present in court and ready totestify Must have been made by a person who is either deceased orunable to testify Can be made at any time Must have been made antelitem motam

4. Compromises

( Civil Cases: not admission of liability

( Criminal Cases: implied admission of guilt.

Except: quasi-offenses or those allowed by law to be compromised, orwhen made to avoid risks of criminal actions against him.

( Also, offer to pay expenses occasioned by injury not admissibleas proof of civil or criminal liability for the injury.

( A plea of forgiveness made with the knowledge, consent oracquiescence of the accused is tantamount to an offer to compromise bythe accused.

( If the purpose of the offer is to buy peace and avoid litigation,then the offer is inadmissible.

( As held in the case of Daggett v. Atchinson, etc. (48 Cal.2d655), it is the general rule that evidence of precautions taken andrepairs made after the happening of the accident is not admissible toshow a negligent condition at the time of the accident.

5. Requisites for Admission by Silence (Adaptive Admissions)

The party heard the declaration or observed the act of the other personHe must have understood the statement or act

He was at liberty to interpose a denial

Statement was with respect to some matter affecting his rights or inwhich he was then interested, and calling, naturally, for an answer

Facts were within his knowledge

Facts admitted or inference to be drawn from his silence is material tothe issue

The party has no right to remain silent (as held in Commonwealth v.Dravecz, 424 Pa. 582 or 227 A-2d 904)

( If private complainant in a rape case fails to rebut testimoniesof defense witnesses that she and accused were sweethearts and thatthey had previous sexual encounters, she is deemed to have impliedlyadmitted the truth of the facts asserted by said witnesses.

6. Res inter alios acta alteri nocero non debet

a. First branch

( Section 20, the rights of a party cannot be prejudiced by an act,declaration or omission of another

( EXCEPTIONS: where the third person is a partner, agent, jointowner, joint debtor or has a joint interest with the party, or is a coconspiratoror a privy of the party, during the existence of thepartnership, conspiracy, etc. as established by evidence other thansuch act or declaration, or while holding title to property in relationto such

b. Second branch

( Sec. 34, evidence that one did or did not do a certain thing atone time not admissible to prove that he did or did not do thesame/similar thing at another time( Exceptions: [KISSHICUP] it may be received to prove a specificintent or knowledge, identity, plan, system, scheme, habit, custom, orusage

7. Admission by a Co-Partner or Agent

Partnership, agency or joint interest is established by evidence otherthan the act or declaration

Act or declaration is within the scope of the partnership, agency orjoint interest

Act or declaration must have been made during the existence of thepartnership, agency or joint interest

8. Admission by Co-conspirator

( Requisites apply only to extrajudicial acts or statements, andnot to testimony during trial

Conspiracy is shown by evidence other than the act or declaration

Admission was made during existence of the conspiracy

Admission relates to the conspiracy itself

( An extra-judicial confession of an accused is not admissible inevidence against his co-accused when the latter had not been given theopportunity to hear him testify and cross-examine him. Such confessionis not admissible as an Admission by co-conspirator because it was madeafter the conspiracy had ended and after the commission of the crime.

9. Admissions by Privies

Must be a relation of privity between the party and the declarant

Admission was made while declarant as predecessor in interest, whileholding title to the property

Admission is in relation to said property

( HOWEVER, such evidence is still not admissible to contradict theterms of the written instrument

10. Opinion of a witness

Expert – special knowledge, skill experience or training

The matter to be testified to is one that requires expertise

The witness has been qualified as an expert

*It is not enough that a witness who is being presented as an expertbelongs to the profession or calling to which the subject matter of theinquiry relates. He must further show that he possesses specialknowledge to the question on which he proposes to express an opinion.

Ordinary

Identity of person about whom he has adequate knowledge

Handwriting, if with sufficient familiarity

Mental sanity, if sufficiently acquainted

Impressions on emotion, behavior, condition or appearance which he hasobserved

Ordinary matters common to all men of common perception

Hearsay Rule

1. Exceptions to hearsay rule

Dying declaration – ante mortem or in articulo mortis

Declaration against interest

Act or declaration against pedigree

Family reputation or traditions regarding pedigree

Common reputation

Res gestae

Entries in course of business

Entries in official records

Commercial lists and the like

Learned treatises

Court takes judicial notice; or

Testified to by an expert

Testimony or deposition at a former proceeding

( Newspaper clippings are hearsay and have no evidentiary value unless

substantiated by persons with personal knowledge of the facts.

2. Doctrine of independently relevant statements

( Independent of whether the facts stated are true, they arerelevant since they are the facts in issue or are circumstantialevidence of the facts in issue( Not covered by the hearsay rule

( Example: The statements or writings attributed to a person whois not on the witness stand are being offered, not to prove the truthof the facts stated therein, but only to prove that such statementswere actually made or such writings were executed, or to prove thetenor thereof.

3. Requisites of Declaration Against Interest

a. Declarant dead or unable to testify

( Mere absence from jurisdiction does not make declarant “unable totestify.” Exception contemplates that the declarant is dead, mentallyincompetent or physically incapacitated

b. Declaration was against his own interest

c. Reasonable man in declarant’s position would not have made thedeclaration unless he believed it to be true( Declarations by accused against his interest are inadmissible ifdone in violation of his constitutional rights

4. Requisites of Act or Declaration about Pedigree

Declarant dead or unable to testify

Declarant is related to the person whose pedigree is in question

Made ante litem motam

Relationship between declarant and person whose pedigree is in questionshowed by evidence other than the declaration EXCEPT if claiming fromthe declarant, where the declaration itself is sufficient

5. Requisites of Family Reputation/Tradition regarding Pedigree

Reputation or tradition exists in family of person whose pedigree is inquestion

Reputation or tradition existed previous to the controversy

Witness testifying thereon is a surviving member of that family, byeither affinity or consanguinity

( A person’s statement as to the date of his birth and age, as helearned of these from his parents or relatives, is an ante litem motamdeclaration of family reputation.

6. Requisites of Common Reputation

Facts to which the reputation refers are of public or general interest

Reputation is ancient (or more than 30 years old)

Reputation must have been formed among a class of persons who were in aposition to have some sources of information and to contributeintelligently to the formation of the opinion

Reputation must exist ante litem motam

( HOWEVER, if the reputation concerns marriage or moral character,the requisite that the reputation must be ancient does NOT apply

7. Requisites of Dying Declarations

a. Declaration is conscious of impending death

b. Declaration relates to the facts or circumstances pertaining tothe fatal injury or death

Statements referring to the antecedents of the fatal encounter oropinion, impressions, or conclusions of the declarant are notadmissible. (Professor Bautista believes that the opinion rule isstill applicable in dying declarations.

c. Declarant would have been comptent to testify had he survived

d. Declaration is offered in a case wherein the declarant’s death isthe subject of the inquiry.

Dying declarations are admissible in ANY case not only in criminal

prosecutions for homicide which was the former rule.

8. Res gestae

( 2 kinds/classes:

a. Spontaneous statements;

( Requisites:

There is a startling occurrence

Statement must relate to the circumstances of the occurrence

Statement is unconscious and unpremeditated

( Factors to be considered in determining spontaneity of statement:

Time that elapsed between occurrence and the making of the statement

Place where statement was made

Condition of the declarant when he made the statement

Presence or absence of intervening occurrences between the occurrenceand the statement

Nature and circumstances of the statement itself

b. Verbal acts:

( Requisites:

Res gestae or principal act must be equivocal

Act material to issue

Statements must accompany equivocal act

Statements must give legal significance to equivocal act

9. Res gestae and Dying Declarations distinguished

Res Gestae Dying Declarations Statement of the killer himself after orduring the killing, or that of a third person (e.g., victim, bystander)

Can be made only by the victim Statement may precede, accompany or bemade after the homicidal act was committed Made only after thehomicidal attack has been committed Justified by the spontaneity ofthe statement Trustworthiness is based upon its being given underawareness of impending death

10. Requisites of Entries in the course of business

Entrant is deceased or unable to testify

Entries made at or near the time of the transaction to which they relate

Entries made by entrant in his professional capacity or in theperformance of a duty

Entries were made in the ordinary or regular course of business

Entrant must have been in a position to know the facts therein stated

( Heirs of Conti vs. CA - baptismal certificates are admissible as

entries in the ordinary course of business, even absent the testimony

of the officiating priest or official recorder

11. Requisites of Entries in official records

Entry was made by public officer of the Philippines or by a personespecially enjoined by law to make such entry

Entry was made in the performance of entrant’s duty

Entrant must have been in a position to know the facts therein stated

( Baptismal certificates or parochial records are not public orofficial records and are not proof of relationship or filiation of thechild baptized.

12. Entries in the course of business and Entries in official recordsdistinguished

Entries in the course of business Entries in official records

Sufficient that entrant made the entries pursuant to a duty eitherlegal, contractual, moral or religious, or in the regular course ofbusiness or duty entrant is a public officer in performance of duty, orif a private individual, must have acted pursuant to a specific legalduty (specially enjoined by law) The person who made such entries mustbe dead or unable to testify there is no such requirement foradmissibility, precisely because the officer is excused

13. Requisites of Testimony or Deposition in former proceeding

Witness whose testimony is offered is dead or unable to testify

Party against whom the evidence is offered, or his privy, was a partyto the former case or proceeding, judicial or administrative

Testimony or deposition relates to the same subject matter (identity ofissue)

The requirement of identity

Adverse party had opportunity to cross-examine

Testimony given during preliminary investigation where the defense hadthe opportunity to cross-examine the unavailable witness is admissiblein the criminal case

14. Modes of Extra-judicial Identification of Accused

Show-ups – where accused alone is brought face-to-face with the witnessfor identification

Mug shots – where photographs are shown to the witness foridentification

Line-ups – where a witness identifies the suspect from a group ofpersons lined up for the purpose

( Identification will be admissible if it passes the totality ofcircumstances test which considers the following factors:

The witness’ opportunity to view the criminal at the time of the crime

Witness’ degree of attention at that time

Accuracy of any prior description by the witness

The level of certainty demonstrated by the witness at the identification

Length of time between the crime and identification

Suggestiveness of the identification procedure

15. The SC approved an additional exception to the hearsay rule inits A.M. no. 00-4-07-SC approving the Proposed Rule on Examination of aChild Witness.*

( A statement made by a child describing any act or attempted actof child abuse NOT otherwise admissible under the hearsay rule, may beadmitted in evidence in any criminal or non-criminal proceeding subjectto the following rules:

Before such statement may be admitted, its proponent shall make knownto the adverse party the intention to offer such statement and itsparticulars to allow him an opportunity to object.

If the child is available

( The court shall require the child to be present at thepresentation of the hearsay statement for cross-examination by theadverse party.

If the child is unavailable

( The fact of such circumstance must be proved by the proponent.

In ruling on the admissibility of such hearsay statement, the courtshall consider the time, content and circumstances thereof whichprovide sufficient indicia of reliability. It shall consider thefollowing factors:

Whether there is a motive to lie

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 declarantchild and witness.

Cross-examination could not show the lack of knowledge of the declarantchild.

The possibility of faulty recollection of the declarant child;

The circumstances surrounding the statement are such that there is noreason to suppose the declarant child misrepresented the involvement ofthe accused.

The child witness shall be considered unavailable in the followingsituations:

i. Is deceased, suffers from physical infirmity, lack of memory,mental illness or will be exposed to severe psychological injury;

Is absent from the hearing and the proponent of his statement has beenunable to procure his attendance by process or other reasonable means.

d. When the child witness is unavailable, his hearsay testimonyshall be admitted only if corroborated by other admissible evidence.

Rule 131 Burden of Proof and Presumptions

1. Presumptions of law

May be conclusive or absolute, or disputable or rebuttable

A certain inference must be made whenever the facts appear whichfurnish the basis of the inference

Reduced to fix rules and form a part of the system of jurisprudence

2. Presumptions of fact

A discretion is vested in the tribunal as to drawing the inference

Derived wholly and directly from the circs of the particular case bymeans of the common experience of mankind

3. Burden of proof

( Onus probandi

( Obligation imposed upon a party who alleges the existence offacts necessary for the prosecution of his action or defense toestablish the same by the requisite presentation of evidence

( In civil cases, it is on the party who would be defeated if noevidence is given on either side; in criminal cases, the prosecutionhas the burden of proof.

( Does not shift; remains on party upon whom it is imposed

( Determined by pleadings filed by party

( Effect of a legal presumption on Burden of Proof: The effect isto create the necessity of presenting evidence to meet the prima faciecase created by the presumption; and if no proof to the contrary isoffered, the presumption will prevail. The legal presumption does notshoft the burden of proof. The burden of proof remains where it is, butby the presumption, the one who has the burden is relieved, for thetimebeing, from producing evidence in suuport of his averment, becausethe presumption stands in place of evidence.

4. Burden of evidence

( Lies with party asserting affirmative allegations

( Shifts during trial, depending on exigencies of the case

( Determined by developments at trial or by provisions of law

(presumptions, judicial notice, admissions)

( In criminal cases, a negative fact must be proven if it is anessential element of the crime.

( People vs. Macagaling – in a charge of illegal possession offirearms, the burden is on the prosecution to prove that the accusedhad no license to possess the same.

( People vs. Manalo – in a charge for selling regulated drugs withoutauthority, it was held that although the prosecution has the burden ofproving a negative averment which is an essential element of the crime

(i.e. lack of license to sell), the prosecution, in view of thedifficulty of proving a negative allegation, need only establish aprima facie case from the best evidence obtainable. In this case, thelack of license was held to have been established by the circumstancesthat the sale of the drug was consummated not in a drug store orhospital, and that it was made at 10:00 PM.

Rule 132 Presentation of Evidence

1. Use immunity

( Prohibits use of the witness' compelled testimony and its fruitsin any manner in connection with the criminal prosecution of the witness

( Where the statute grants only use immunity, merely testifyingand/or producing evidence does not render the witness immune fromprosecution despite his invocation of the right against selfincrimination

2. Transactional immunity

( Grants immunity to the witness from prosecution for an offense towhich his compelled testimony related

3. When leading questions allowed

On cross

On preliminary matters

Difficulty in getting direct and intelligible answers

Unwilling or hostile witness

Adverse party or an officer, director or a corporation or partnershipwhich is an adverse party

( A misleading question, though not objected to, will not beevidence of the fact assumed by the improper question.

( NOTE: One who voluntarily offers a witness’ testimony is boundby such (i.e. cannot impeach or contradict), except:

Hostile witness

Adverse party or rep. of adverse party

Not voluntarily offered but required by law (e.g., subscribingwitnesses to a will)

4. Impeaching witness of adverse party

Contradictory evidence from testimony in same case

Evidence of prior inconsistent statement

Evidence of bad character/general reputation for truth, honesty,integrity

Evidence of bias, interest, prejudice or incompetence

Evidence of mental, sensory derangement or defect

Evidence of conviction of an offense which affects credibility ofwitness

5. Impeaching own witness

( General Rule: Party not allowed to impeach own witness

Exceptions:

Unwilling or adverse witness so declared by the court

Witness who is also an adverse party

Witnesses required by law (e.g., subscribing witnesses to a will)

( May be impeached in all respects as if called by other party, EXCEPTby evidence of bad moral character

( When a witness who is partly cross-examined dies, his directexamination cannot be expunged. In People v. Señeris (99 SCRA 92), thedirect testimony of a witness who dies before conclusion of the crosscan be stricken only insofar as not covered by the cross. However,

Professor Bautista does not like this decision because although thecross was substantially complete, still, the court ordered the directexamination to be stricken out.

6. Requisites of revival of present memory

Memorandum has been written by him or under his direction; and

Written by him:

When the fact occurred or immediately thereafter; or

At any other time when the fact was fresh in his memory and he knewthat the same was correctly recorded

7. Requisites of Revival of Past Recollection

Witness retains no recollection of the particular facts;

But he his able to swear that the record or writing correctly statedthe transaction when made

8. Revival of present memory and Revival of past recollectiondistinguished

Present Recollection Revived Past Recollection Recorded Applies if thewitness remembers the facts regarding his entries Applies where thewitness does not recall the facts involved Entitled to greater weight

Entitled to lesser weight Evidence is the testimony Evidence is thewriting or record Rule of evidence affected is competency of witness,examination of witness (laying the predicate) Rule of evidence affectedis the best evidence rule

9. Additional modes of authenticating a private writing

Doctrine of self-authentication

( Where the facts in the writing could only have been known by thewriter

Rule of authentication by the adverse party

( Where reply of the adverse party refers to and affirms thesending and his receipt of the letter in question, a copy of which theproponent is offering as evidence

10. Authentication not required:

Ancient document

More than 30 years old

Contains no alterations or circumstances of suspicion

Produced from a custody in which it would naturally be found if genuine

Public document or record

Notarial document acknowledged, proved or certified

Authenticity and due execution has been expressly or impliedly admitted

(e.g., actionable documents, failure to deny under oath)

( Computer printouts are inadmissible unless properly authenticatedby a witness attesting that they came from the computer system or thatthe data stored in the system were not and could not have been tamperedwith before the same were printed out.

11. Handwriting: evidence of genuineness

Witness actually saw person writing the instrument

Familiar with handwriting and witness can give opinion

Comparison of questioned handwriting and admitted genuine specimens

Expert evidence

Offer and Objection

The court shall consider no evidence which has not been formallyoffered. The purpose for which the evidence is offered must bespecified.

Exception: If there was repeated reference thereto in the course ofthe trial by adverse party’s counsel and of the court, indicating thatthe documents were part of the prosecution’s evidence.

( Two requisites must concur (People vs. Napta)

a. The document must have been duly identified by testimony dulyrecorded.

b. The document must have been incorporated to the records of thecase.

A party who has introduced evidence is not entitled as matter of rightto withdraw it in finding that it does not answer his purpose; BUT hemay withdraw an offer of an exhibit any time before the court haspassed on its admissibility.

Evidence offered is presumed to be admissible or competent until thecontrary has been established.

( Thus, the opposing party must OBJECT to its introduction.

When to object

Offer Time to Object Offered orally Made immediately after the offeris made Question propounded in the course of the oral examination of awitness Shall be made as soon as the grounds thereof shall becomereasonably apparent Offer of evidence in writing Shall be objected towithin 3 days after notice of the offer unless a different period isallowed by the court.

When is a motion to strike out answer proper?

a. When the witness answered the question before the counsel has achance to object

Where a question which is not objectionable may be followed by anobjectionable unresponsive answer

Where a witness has volunteered statements in such a way that the partyhas not been able to object thereto

Where a witness testifies without a question being addressed to him

Where a witness testifies beyond the ruling of the court prescribingthe limits within which he may answer

When a witness dies or becomes incapacitated to testify and the otherparty has not been given the opportunity to cross-examine the witness.

There must be an objection first before a motion to strike. If theparty slept on his right to object, he cannot later on avail a motionto strike to exclude the evidence.

When is a motion to strike out improper?

A party cannot insist that competent and relevant evidence be strickenout for reasons going to his weight, sufficiency or credibility

One cannot move to strike it out because it proves unfavorable to him

7. If court improperly excludes an otherwise admissible evidence,remedy is to tender the excluded evidence, also known as OFFER OF PROOF:

Documentary – by attaching the document or making it part of the record

Testimonial – by stating the personal circumstances of witness and thesubstance of proposed testimony

Rule 133 Weight and Sufficiency of Evidence

1. Proof beyond reasonable doubt

( Does not mean such degree of proof as, excluding possibility oferror, produces absolute certainty

( Moral certainty only is required, or that degree of proof whichproduces conviction in an unprejudiced mind

2. Circumstantial evidence to sustain conviction must:

More than one circumstance

Facts from which inferences are derived are proven

Combination of all circumstances such as to produce conviction beyondreasonable doubt

3. Substantial evidence

( That amount of relevant evidence which a reasonable mind mightaccept as adequate to justify a conclusion.

Pertinent Provisions of the Implementing Rules of the E-Commerce Act:

Chapter II Legal Recognition of Electronic Data Messages And

Electronic Documents

Section 7. Legal Recognition of Electronic Data Messages and Electronic

Documents. - Information shall not be denied validity or enforceabilitysolely on the ground that it is in the form of an electronic datamessage or electronic document, purporting to give rise to such legaleffect. Electronic data messages or electronic documents shall have thelegal effect, validity or enforceability as any other document or legalwriting. In particular, subject to the provisions of the Act and these

Rules:

A requirement under law that information is in writing is satisfied ifthe information is in the form of an electronic data message orelectronic document.

A requirement under law for a person to provide information in writingto another person is satisfied by the provision of the information inan electronic data message or electronic document.

A requirement under law for a person to provide information to anotherperson in a specified non-electronic form is satisfied by the provisionof the information in an electronic data message or electronic documentif the information is provided in the same or substantially the sameform.

Nothing limits the operation of any requirement under law forinformation to be posted or displayed in specified manner, time orlocation; or for any information or document to be communicated by aspecified method unless and until a functional equivalent shall havebeen developed, installed, and implemented.

Section 8. Incorporation by Reference. - Information shall not bedenied validity or enforceability solely on the ground that it is notcontained in an electronic data message or electronic document but ismerely incorporated by reference therein.

Section 9. Use Not Mandatory. - Without prejudice to the application of

Section 27 of the Act and Section 37 of these Rules, nothing in the Actor these Rules requires a person to use or accept information containedin electronic data messages, electronic documents, or electronicsignatures, but a person's consent to do so may be inferred from theperson's conduct.

Section 10. Writing. - Where the law requires a document to be inwriting, or obliges the parties to conform to a writing, or providesconsequences in the event information is not presented or retained inits original form, an electronic document or electronic data messagewill be sufficient if the latter:

Maintains its integrity and reliability; and

Can be authenticated so as to be usable for subsequent reference, inthat:

It has remained complete and unaltered, apart from the addition of anyendorsement and any authorized change, or any change which arises inthe normal course of communication, storage and display; and

It is reliable in the light of the purpose for which it was generatedand in the light of all relevant circumstances.

Section 11. Original. - Where the law requires that a document bepresented or retained in its original form, that requirement is met byan electronic document or electronic data message if –

There exists a reliable assurance as to the integrity of the electronicdocument or electronic data message from the time when it was firstgenerated in its final form and such integrity is shown by evidencealiunde (that is, evidence other than the electronic data message

itself) or otherwise; and

The electronic document or electronic data message is capable of beingdisplayed to the person to whom it is to be presented.

For the purposes of paragraph (a) above:

The criteria for assessing integrity shall be whether the informationhas remained complete and unaltered, apart from the addition of anyendorsement and any change which arises in the normal course ofcommunication, storage and display; and

The standard of reliability required shall be assessed in the light ofthe purpose for which the information was generated and in the light ofall relevant circumstances.

An electronic data message or electronic document meeting and complyingwith the requirements of Sections 6 or 7 of the Act shall be the bestevidence of the agreement and transaction contained therein.

Section 12. Solemn Contracts. - No provision of the Act shall apply tovary any and all requirements of existing laws and relevant judicialpronouncements respecting formalities required in the execution of

documents for their validity. Hence, when the law requires that acontract be in some form in order that it may be valid or enforceable,or that a contract is proved in a certain way, that requirement isabsolute and indispensable.

Legal Recognition of Electronic Signatures

Section 13. Legal Recognition of Electronic Signatures. An electronicsignature relating to an electronic document or electronic data messageshall be equivalent to the signature of a person on a written document

if the signature:

Is an electronic signature as defined in Section 6(g) of these Rules;and

Is proved by showing that a prescribed procedure, not alterable by theparties interested in the electronic document or electronic datamessage, existed under which:

A method is used to identify the party sought to be bound and toindicate said party’s access to the electronic document or electronicdata message necessary for his consent or approval through theelectronic signature;

Said method is reliable and appropriate for the purpose for which theelectronic document or electronic data message was generated orcommunicated, in the light of all circumstances, including any relevantagreement;

It is necessary for the party sought to be bound, in order to proceedfurther with the transaction, to have executed or provided theelectronic signature; and,

The other party is authorized and enabled to verify the electronicsignature and to make the decision to proceed with the transactionauthenticated by the same.

The parties may agree to adopt supplementary or alternative proceduresprovided that the requirements of paragraph (b) are complied with.

For purposes of subparagraphs (i) and (ii) of paragraph (b), thefactors referred to in Annex “2” may be taken into account.

Section 14. Presumption Relating to Electronic Signatures. - In anyproceeding involving an electronic signature, the proof of theelectronic signature shall give rise to the rebuttable presumptionthat:

The electronic signature is the signature of the person to whom itcorrelates; and

The electronic signature was affixed by that person with the intentionof signing or approving the electronic data message or electronicdocument unless the person relying on the electronically signedelectronic data message or electronic document knows or has notice ofdefects in or unreliability of the signature or reliance on theelectronic signature is not reasonable under the circumstances.

Modes of Authentication

Section 15. Method of Authenticating Electronic Documents, Electronic

Data Messages, and Electronic Signatures. - Electronic documents,electronic data messages and electronic signatures, shall beauthenticated by demonstrating, substantiating and validating a claimedidentity of a user, device, or another entity in an information orcommunication system.

Until the Supreme Court, by appropriate rules, shall have so provided,electronic documents, electronic data messages and electronicsignatures, shall be authenticated, among other ways, in the followingmanner:

The electronic signature shall be authenticated by proof that a letter,character, number or other symbol methodology or security procedures, when applicable, were employed or

adopted by a person and executed or adopted by such person, with theintention of authenticating or approving an electronic data message orelectronic document;

The electronic data message or electronic document shall beauthenticated by proof that an appropriate security procedure, whenapplicable was adopted and employed for the purpose of verifying theoriginator of an electronic data message or electronic document, ordetecting error or alteration in the communication, content or storageof an electronic document or electronic data message from a specificpoint, which, using algorithm or codes, identifying words or numbers,encryptions, answers back or acknowledgement procedures, or similarsecurity devices.

Section 16. Burden of Authenticating Electronic Documents or Electronic

Data Messages. - The person seeking to introduce an electronic documentor electronic data message in any legal proceeding has the burden ofproving its authenticity by evidence capable of supporting a findingthat the electronic data message or electronic document is what theperson claims it to be.

Modes for Establishing Integrity

Section 17. Method of Establishing the Integrity of an Electronic

Document or Electronic Data Message. In the absence of evidence to thecontrary, the integrity of the information and communication system inwhich an electronic data message or electronic document is recorded orstored may be established in any legal proceeding, among other methods

By evidence that at all material times the information andcommunication system or other similar device was operating in a mannerthat did not affect the integrity of the electronic document orelectronic data message, and there are no other reasonable grounds todoubt the integrity of the information and communication system;

By showing that the electronic document or electronic data message wasrecorded or stored by a party to the proceedings who is adverse ininterest to the party using it; or

By showing that the electronic document or electronic data message wasrecorded or stored in the usual and ordinary course of business by aperson who is not a party to the proceedings and who did not act underthe control of the party using the record.

Admissibility and Evidential Weight

Section 18. Admissibility and Evidential Weight of Electronic Data

Messages and Electronic Documents. - For evidentiary purposes, anelectronic document or electronic data message shall be the functionalequivalent of a written document under existing laws. In any legalproceeding, nothing in the application of the rules on evidence shalldeny the admissibility of an electronic data message or electronicdocument in evidence:

On the sole ground that it is in electronic form; or

On the ground that it is not in the standard written form.

The Act does not modify any statutory rule relating to theadmissibility of electronic data messages or electronic documents,except the rules relating to authentication and best evidence.

In assessing the evidential weight of an electronic data message orelectronic document, the reliability of the manner in which it wasgenerated, stored or communicated, the reliability of the manner inwhich its originator was identified, and other relevant factors shallbe given due regard.

Section 19. Proof by Affidavit and Cross-Examination. - The mattersreferred to in Section 12 of the Act on admissibility and evidentiaryweight, and Section 9 of the Act on the presumption of integrity ofelectronic signatures, may be presumed to have been established by anaffidavit given to the best of the deponent’s or affiant’s personalknowledge subject to the rights of parties in interest to cross-

examinesuch deponent or affiant as a matter of right. Such right of crossexaminationmay likewise be enjoyed by a party to the proceedings whois adverse in interest to the party who has introduced the affidavit orhas caused the affidavit to be introduced.

Any party to the proceedings has the right to cross-examine a personreferred to in Section 11, paragraph 4, and sub-paragraph (c) of theAct.

Retention of Electronic Data Message and Electronic Document

Section 20. Retention of Electronic Data Message and Electronic

Document. - Notwithstanding any provision of law, rule or regulation tothe contrary:

a. The requirement in any provision of law that certain documents beretained in their original form is satisfied by retaining them in theform of an electronic data message or electronic document which:

Remains accessible so as to be usable for subsequent reference;

Is retained in the format in which it was generated, sent or received,or in a format which can be demonstrated to accurately represent theelectronic data message or electronic document generated, sent orreceived; and,

Where applicable, enables the identification of its originator andaddressee, as well as the determination of the date and the time it wassent or received.

The requirement referred to in paragraph (a) is satisfied by using theservices of a third party, provided that the conditions set forth insubparagraphs (i), (ii) and (iii) of paragraph (a) are met.

Relevant government agencies tasked with enforcing or implementingapplicable laws relating to the retention of certain documents may, byappropriate issuances, impose regulations to ensure the integrity,reliability of such documents and the proper implementation of Section13 of the Act.

* The resolution came out last November 21, 2000. The rule took effect

last December 15, 2000.

REMEDIAL LAW (EVIDENCE)

MEMORY AID

Ateneo Central Bar Operations 2002