Evidence Notes and Reviewer

EVIDENCE
PRELIMINARIES - HISTORICAL BACKGROUND Revisions Rules of Court started in 1901, then revised in 1940 Rules of Evidence separately revised in 1997 Sources ROC (128-133) Jurisprudence (DNA admissibility) Special laws (electronic evidence, wiretapping) Succession (wills) Criminal law (treason) Other parts of the rules (child witness rule) RULE 128 - GENERAL PROVISIONS INDEX 1. Definition (MIS FACT) 2. Scope (same in all) 3. Admissibility of evidence a. relevance + non-exclusion 4. Relevancy a. Induce belief + not collateral b. Except when establishes probability Sec. 1 . Evidence defined. Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. (1) CODAL Means of ascertaining truth (i.e. Evidence is not an end in itself). Sanctioned by rules In a judicial proceeding Respecting matter of fact
When evidence is NOT required 1. When there is no factual issue (ascertain truth as matter of fact) 2. Agreement in writing to dispense of evidence 3. Matters of judicial notice 4. Matters judiciall admitted Applicability - Only to judicial proceedings. Not applicable to CLEIN: o Election o Land registration o Cadastral o Naturalization o Insolvency o Findings of administrative matters especially labor cases, as long supported by substantial evidence. Vis a vis ELECTRONIC EVIDENCE: Latter is applicable to civil actions, quasi-judicial and administrative offenses. Kinds of evidence 1. Relevant vs. irrelevant 2. Positive vs. negative (perception is operative) o Positive evidence that proves something happened (I saw him stab X); only able to give positive evidence of things one can perceive. o Negative Evidence where the witness was there, but he did not perceive anything (I did not notice anything). o Positive has greater weight than negative. Witness may forget a fact that existed, but will not remember something that never existed. o For negative evidence to hold weight, it must be buttressed by strong evidence of non-culpability. 2. Direct vs. Circumstantial o Direct prove a matter without need for inference or presumption (e.g. eyewitness, testimony of medico legal) o Circumstantial facts, from which the existence of another fact may be inferred as a necessary or probable consequence; there must be more than one circumstance May be enough to convict provided the ff. are present: 1. QUANTITY: More than one circumstance. 2. CONSISTENT: Facts from which inferences are derived are consistent and proven. 3. UNBROKEN CHAIN: Combination of circumstances
A T T Y .T R A N Q U I L S A L V A D O R
LECTURE/NOTES Evidence, in general Every material/ factual proposition shall be supported by evidence. To be evidence, it must be sanctioned/ not excluded by the Rules of Court. Most common evidence used in Philippines is testimonial evidence. Purpose - Ascertain TRUTH (legal or judicial not actual) of a matter of fact.
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3.
4.
5.
must be such as to produce conviction beyond reasonable doubt Positive identification is possible. o Exact opposites of each other, although neither is stronger than the other. o Therefore, direct evidence is not indispensible to prove a crime. Primary vs. Secondary o Primary best available evidence to prove a particular fact Testimony can be primary evidence (e.g. victim of stabbing who survives the attack). Moreover, one does not have to be the victim to perceive. Therefore, if the victim dies, testimonial evidence can still be admissible. However, HEARSAY is NOT admissible as primary evidence, EXCEPT in certain instances (e.g. dying declaration) Hearsay is only secondary evidence, albeit not classified by law. o Secondary You can NOT present secondary evidence when there is no basis for its presentation. LOST DESTROYED CUSTODY OF ADVERSE PARTY Rebuttal and surrebuttal o Rebuttal is NOT mandatory but left to sound discretion of Court. (e.g. When after presentation of evidence, something new comes up). o Only allowed as to NEW MATTERS. Cumulative and corroborative o Cumulative - same kind and character as that already given and tends to prove the same proposition (e.g. more than one witness to an event) o Corroborative - supplements one already given as to strengthen or confirm the latter; Usually of a different type, although such is not necessary so long as it proves the same fact. Corroborative testimony is NOT always required, where the testimony if credible, positive and sufficient to prove beyond reasonable doubt the guilt og accused. Child witness testimony needs no corroboration, and shall suffice to support a finding of fact.
Sec. 2 . Scope. The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules. (2a) CODAL Same in all courts, trials, hearing Except as otherwise provided
LECTURE/NOTES Principle of uniformity states that rules of evidence same in all courts, but rule is not absolute as can be seen from the differences in evidence requirements for criminal and civil cases. Criminal vs. civil Quantum of Proof Compromise Criminal Beyond reasonable doubt Implied admission of guilt Civil Preponderance Not implied admission and not admissible in evidence against the offeror None, except for certain exceptions as in common carriers
Presumption
Innocence
Proof vs. Evidence - Evidence is the means by which a fact is proved; proof is the effect of evidence. Falsus in uno, falsus in omnibus - To be applicable, the following have to be shown: 1. Falsity must be as to a material point. 2. Deliberate and willful intent to falsify a material point. Defenses DEFENSE Alibi
WEIGHT Weak
AGAINST Positive Identification Presumption of Regularity in Performance of Duties None mentioned None mentioned
Frameup
Weak
REASON Negative in nature Self-serving Easily fabricated
Selfdefense Delay
Weak Weak
Easily fabricated Fear of reprisal, reticence,
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denial stage Requisites for ALIBI to prosper 1. Presence of accused in another place at the time of the commission of the offense. 2. Must be shown that it was physically impossible for accused to be at the scene of the crime at the time. 3. Must be so airtight as to admit of no exception Requisites for FRAME UP to prosper 1. Clear and convincing evidence to overcome presumption of regularity in the performance of duties Factum Probans facts/material evidencing the fact or
proposition sought ot be established
Other kinds of admissibility Multiple admissibility Proffered evidence may be used for more than one purpose, or for one purpose and not for the other. Specify purpose so opposing party may interpose proper objection. Conditional admissibility evidence may be conditionally admitted in the meantime subject to condition that one is going to establish relevancy and competency at a later time. If such is not shown, court may, upon motion of adverse party, strike evidence out from the record. Curative Admissibility - party is allowed to introduce evidence otherwise inadmissible to answer the opposing partys previous objected introduction of inadmissible evidence if it would remove any unfair prejudice caused by the admission the earlier inadmissible evidence. Party seeking admission of curative evidence MUST have OBJECTED to the admission of the earlier inadmissible evidence. Relevance Relevant evidence - have such a relation to the fact in issue as to induce belief in its existence or nonexistence. Fact in issue must be a disputed fact. Immediate fact must have a relation to Ultimate fact sought to be established. Test for determining relevance Logic and common sense: Existence of RELATIONSHIP between fact in issue and offered evidence Irrelevant opposite of relevant Collateral Matters auxiliary; generally irrelevant, but may be relevant (conditional admissibility) if it tends in any reasonable degree to establish the probability of the fact in issue. 1. If relevant, it should be material. If material it should be relevant. 2. HOWEVER. If irrelevant, it could still be material. Competence Competent evidence evidence not excluded by rules; for witnesses, competence goes right into their qualifications as witnesses. Test for determining competence Law and rules: is the evidence allowed by law?
Factum Probandum fact or proposition to be established Civil: elements of cause of action Criminal: elements of crime Sec. 3 . Admissibility of evidence. Evidence is admissible when it is relevant to the issue and is not excluded by the law of these rules. (3a) Sec. 4 . Relevancy; collateral matters. Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. CODAL Admissible evidence Relevant to issue Not excluded Determining relevance GR: Must induce belief in existence of fact in issue to be relevant GR: Evidence on collateral matters NOT allowed E: establish in reasonable degree probability of fact in issue LECTURE/ NOTES Requisites for admissibility 1. Relevance 2. Competence 3. Formally offered
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Objecting to competency of evidence Must be specific, e.g. leading, parole, hearsay Admissibility vs. Credibility ADMISSIBILITY Acceptance by court pursuant to rules. *
shown that the evidence is clear and convincing, and the totality of such evidence constitutes an airtight excuse as to exclude the least possibility of his presence at the crime scene. Criteria for positive identification: 1. Must come from a credible witness 2. Story must be believable, not inherently contrived. Alibi, definition & requisites: Inherently weak and unreliable defense, for it is easy to fabricate and difficult to disprove. To establish alibi, the accused must prove by positive, clear, and satisfactory evidence that: 1. he was present at another place at the time of the perpetration of the crime 2. that it was physically impossible for him to be at the scene of the crime. When alibi assumes importance: It is only when the identification of the accused as the author of the crime charged is inconclusive or unreliable that alibi assumes importance. Two types of positive identification People v. Villacorta Gil, G.R. No. 172468, October 15, 2008 (Keywords: Destructive Arson with Homicide, identified by kagawad, person who lives with arsonist, and confession, damay-damay na tayo) Types of positive identification: 1. EYEWITNESS: As an eyewitness to the very act of the commission of the crime, which constitutes direct evidence 2. CIRCUMSTANTIAL EVIDENCE: Not an eyewitness (did not actually see the act of commission), but still able to positively identify a suspect or accused, as for instance when the latter is the person or one of the persons last seen with the victim immediately before and right after the commission of the crime. Admissibility (Rule 128, Section 3) Garcillano v. House of Representatives (Keywords: Hello Garci, Senate Investigation, no publication of rules, rules on booklet and on website) People v. Lauga, G.R. No. 186228, March 15, 2010 (Rape, Bantay Bayan, admitted at polic outpost) Physical Evidence Suerte-Felipe v. People, G.R. No. 170974. March 3, 2008. (Homicide, .45 mm caliber.)
CREDIBILITY Worthiness of belief
After consideration of admissibility, consideration of credibility follows. A witness may be competent, but his testimony may be incredible. Vice versa.
Admissibility vs. Probative value ADMISSIBILITY PROBATIVE VALUE Depends on relevance and Tendency to persuade competency * Generally, credibility given by trial court / quasi judicial agencies to testimonies of witnesses is accorded great weight. Child-witnesses, rape victims: testimonies accorded great weight, but story must be believable by itself. Quality of witnesses over quantity. EXCEPTIONS: o Where trial judge did not hear the testimonies himself o Overlooked, misunderstood, misapplied facts and circumstances that would substantially affect outcome of case.
CASES Positive Identification and Alibi People v. Payot, G.R. No. 175479, July 23, 2008 (Keywords: rape, bolo, erect penis v. 2 fingers, lesbian friend, alibi, Caridads house. ) Categorical and consistent positive identification, absent any showing of ill motive on the part of the eyewitness testifying thereon, prevails over the defenses of denial and alibi which, if not substantiated by clear and convincing proof constitute self-serving evidence undeserving of weight in law. Lejano vs. People, 638 SCRA 104 , December 14, 2010 (Keywords: Vizconde massacre) Totality of evidence: While it is true that presentation of passport, plane ticket and other travel documents can serve as proof that an accused was indeed out of the country at the time of the killings, it must still be
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Physical evidence has to be identified. Picture must be authenticated. RULE 129 - WHAT NEED NOT BE PROVED (INVOLVES NON- INTRODUCTION OF EVIDENCE) INDEX 1-3: Judicial notice: 1. Mandatory Nature (3) Nation (5) Phils (2) 2. Discretionary (3) 3. When hearing necessary During After trial/on appeal
Unquestionable demonstration - when one repeats a process, the outcome is the same. a. Surveys: INGAT DITO. THEY CAN BE RIGGED. 3. When hearing necessary only for the reason for informing the court
4: Judicial admission Verbal Written Exceptions: Palpable mistake No admission was made
SECTION 1 . Judicial notice, when mandatory. A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the word and their seals, the political constitution and history of the Philippines, the official acts of legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (1a) CODAL Judicial notice is mandatory in the ff instances: Nations 1. existence and territorial extent of states 2. political history 3. forms of government and symbols of nationality 4. law of nations 5. admiralty and maritime courts of the word and their seals Philippines 6. political constitution and history of the Philippines (e.g. Liberation of Manila, EDSA Revolution, I shall return.) 7. official acts of legislative, executive and judiciary ordinances NOT qualified as per SJS v. Atienza case when administrative act is of lesser importance, judge matter may not be covered by judicial notice.
SUMMARY Three kinds 1. Mandatory settled and established, no need of introduction of evidence; you will usually learn about it in the decision; all judge needs to do is research or source it out. Exception: Yu vs. Samson-Tatad, G.R. No. 170979, February 9, 2011 Although the main issue is w/n Neypes ruling applies in criminal cases, the case also involved the judge not being familiar, and asking to be provided, with the Neypes doctrine. It must be noted that since the Neypes ruling is a judicial matter, judge should already be familiar with the same. The important thing to remember here is that providing a judge with a copy of a ruling is NOT proving. Proving involves a process; When one provides a copy, one merely informs the court. 2. Discretionary courts notice; JUDGE may require presentation of evidence; If judge does not want to exercise discretion, one cannot take it against him. Exception: GADALEJ in not taking judicial notice. Public knowledge a. National/ provincial highways (smaller roads become tests of public knowledge): Espana, the road, may be subject of discretionary judicial notice. b. Status of celebrity: not mandatory, but could be discretionary depending on facts.
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Nature 8. laws of nature, the measure of time, and the geographical divisions (e.g. gravity, inertia, friction, city of Iligan) Others 9. Supreme Court decisions 10. Amendments in Rules
Sec. 2 . Judicial notice, when discretionary. A court may take judicial notice of matters which are of public knowledge, or are capable to unquestionable demonstration, or ought to be known to judges because of their judicial functions. (1a) CODAL Discretionary Judicial Notice 1. Matters of public knowledge 2. Matters capable to unquestionable demonstration Mathematical computations Statistics Combination of colors Chemical effects 3. Matters ought to be known to judges Those matters required in his decision making process (administrative matters pursued by the Supreme Court; administrative cases of counsels appearing before his sala) LECTURE/NOTES Judicial notice - Functions to abbreviate litigation by the admission of matters that need no evidence; substitute for formal proof of a matter by evidence. Judicial notice allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known, or so authoritatively attested, that it cannot reasonably be doubted. Notable matters There is no need to present proof in matters in the nature of mandatory judicial notice. Fact should have attained a certain level of notoriety, and the fact should have been established. Judge must know. He could not force parties to prove. If mandatory and ignored, treat as assignment of error. It is only upon the rendering of judgment that one would know if judge took mandatory judicial notice of a fact. Hence, remedy is to appeal. Mandatory judicial notice Those enumerated Rule 129, Sec. 1 Acts of executive, legislative, judiciary o Court decisions o Declaration of President Rivers/ other tributaries/ roads and national highways o When a river/ body of water is of lesser importance, judges may not be
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expected to know. Big rivers and bodies of waters, judge expected to know (under section Discretionary judicial notice Applicability 1. Facts of common knowledge facts so commonly known as to make it unprofitable to require proof, so certainly known as to make it indisputable among men. 2. Capable of unquestionable demonstration - Pertain to fields of professional and scientific knowledge 3. Judge ought to know because of his judicial functions ascertainable from court records Guide NOTORIETY/ PUBLIC KNOWLEDGE OR RECORDS 1. Fact must be known within general jurisdiction of court 2. Capable or ready and accurate determination by resorting to unquestionable sources Resolution of doubt Construed against judicial notice Fact which is dependent on existence/inexistence of another fact Foreign law (E) when law is generally well-known and had been ruled upon in prior cases and none of the parties claim otherwise (E) part of published treatise, and writer recognized as an expert. Law of nations Municipal ordinances w/in jurisdiction Courts own acts and records in another case (E) contents of other case clearly referred to (E) original of other case is actually withdrawn and admitted as part of the record of pending case Post office practice Banking practices that are well known Financial condition of government Presidential powers under law Rental amount General increase in rent Ineffective statute/regulation Municipalities without lawyers or notaries public Age (has to be alleged) Transactions made through teleconferencing Scene of rape not necessarily isolated/secluded Inbred modesty and shyness of Filipinas A highly urbanized city within its jurisdiction Courts task to unclog dockets Trial testimonies are much more exact than sworn statements
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Scientific drug abuse results Persons have committed crimes for no reason at all Change of address of counsel A matter within the locality in which the Court sits
File motion or manifest before CA to present matter (pursuant to rule 129, you might like to take judicial notice of the following facts). CASES Corinthian Gardens v. Spouses Tanjangco, G.R. No. No. 160795, June 27, 2008. (Spouses Tanjangco v. Cuaso, implicating engineer and Corinthian, Corinthian negligent, table inspection, CA increased amount prayed for in complaint) Rental amount is a matter of fact, and as such could not be the subject of judicial notice. Courts cannot take judicial notice of a matter of fact. Rental amount is a matter of fact. The reasonable amount of rent may not be determined by judicial notice but by supporting evidence, such as (1) the realty assessment of the land, (2) the increase in realty taxes, and (3) the prevailing rate of rentals in the vicinity. Social Justice Society v. Atienza, G.R. No. 156052, February 13, 2008. (Chevron-Petron-Shell, reclassification from industrial to commercial, MOU, injunctive writs, Ordinance 8027/8119) Can the Court take notice of an ordinance?
Sec. 3 . Judicial notice, when hearing necessary. During the trial, the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon. After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case. (n) CODAL During trial: When the Court announces intent to take judicial notice of ANY matter, it shall allow parties to be heard thereon. After trial/before judgment/on appeal: court may still take judicial notice provided matter is of deciding in material case issue.
LECTURE/NOTES Notable matters When the court is in doubt, conduct a hearing. There is NO issue in judicial notice before or during trial. Parties may present ANY evidence. The issue is after trial or on appeal because only matters decisive of a material issue may be introduced in judicial notice. This is because you have already been given the chance to present the same in trial. Can court call for its own expert witness? NO When does one know that judge takes mandatory judicial notice of a fact Only upon rendering of decision; hence remedy is appeal How to call courts attention AFTER trial/ on appeal File notice of appeal submit memoranda call for a hearing (motion to set case for hearing, in connection with rule 129 sec 4), NOT to introduce evidence, but to call attention to matter one would like to court to take notice of. Notice of appeal to RTC for records to be elevated to CA, and parties to present brief
While courts are required to take judicial notice of the laws enacted by Congress (legislative act), the rule with respect to local ordinances is different. Ordinances are not included in the enumeration of matters covered by mandatory judicial notice. Although, Section 50 of RA 409 provides that all courts sitting in the city shall take judicial notice of the ordinances passed by the [Sangguniang Panglungsod], this cannot be taken to mean that this Court, since it has its seat in the City of Manila, should have taken steps to procure a copy of the ordinance on its own, relieving the party of any duty to inform the Court about it. Even where there is a statute that requires a court to take judicial notice of municipal ordinances, a court is not required to take judicial notice of ordinances that are not before it and to which it does not have access. The party asking the court to take judicial notice is obligated to supply the court with the full tex t of the rules the party desires it to have notice of. Counsel should take the initiative in requesting that a trial court take judicial notice of an ordinance even where a statute requires courts to take judicial notice of local ordinances.
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G Holdings, Inc. v. National Mines and Allied Workers, G.R. No. 160236, October 16, 2009 (GHI purchasing MMC through APT, mortgage, NAMAWU, writ of execution) Courts have taken judicial notice of previous cases to determine whether or not the case pending is a moot one or whether or not a previous ruling is applicable to the case under consideration. For as long as a case is pending, then judicial notice cannot be taken. Courts cannot take judicial notice of: 1. Cases out of this court 2. Cases within the same court but are still pending 3. Cases within the same court, but pending appeal Spouses Latip v. Chua, G.R. No. 177809, October 16, 2009 (Practice in baclaran of handing in goodwill money, lease of 2 stalls by Spouses Latip) Judicial notice is not judicial knowledge: The doctrine of judicial notice rests on the wisdom and discretion of the courts. The power to take judicial notice is to be exercised by courts with caution; care must be taken that the requisite notoriety exists; and every reasonable doubt on the subject should be promptly resolved in the negative. Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. The reason why our rules on evidence provide for matters that need not be proved under Rule 129, specifically on judicial notice, is to dispense with the taking of the usual form of evidence on a certain matter so notoriously known, it will not be disputed by the parties in this case, the requisite of notoriety is belied by the necessity of attaching documentary evidence, i.e., the Joint Affidavit of the stallholders, to prove the alleged practice of paying goodwill money in a particular area. Things of common knowledge, of which courts take judicial notice, may be matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration.
Sec. 4 . Judicial admissions. An admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. CODAL Forms: verbal or written Does NOT require proof EXCEPT: palpable mistake/ no such admission made Judicial admissions Judicial admission - formal statement made either by a party or his or her attorney, in the course of judicial proceeding which removes an admitted fact from the field of controversy. When made Any stage could involve an admission, depending on how it is made. Elements 1. Made by party to a case 2. Made in same case 3. No form required Effects 1. No proof required 2. Cannot be contradicted 3. Admission made by a party may be given in evidence AGAINST him. Exceptions 1. Palpable mistake clear to the mind/ plain to see 2. No such admission was made admission taken out of context Classifications 1. Express vs. Implied 2. Judicial vs. Extrajudicial 3. Adoptive manifesting assent to another persons statements a. Express b. Hears and repeats statement c. Utterance of acceptance d. Rebuts some but not all statements e. Reads and signs written statement made by another
Samples of judicial admissions Stipulation of facts at pre-trial / Pre-trial brief
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Admissions in pleadings / Failure to specifically deny material allegations in pleadings, except o amount of unliquidated damages o immaterialallegations o conclusions o non-ultimate facts Usury allegations not specifically denied under oath. Actionable documents, as to genuineness and due execution (fraud, mistake, compromise, statute of limitations, estoppel may still be used) Pre-trial in admissions in civil cases Pre-trial in criminal cases where it is in writing and signed by parties and counsel. Arraignment plea of guilt Confession Testimonial evidence in court Matters scoped out in depositions Depositions upon written interrogatories Answer to interrogatories Implied admission Admissions made in open court Material allegations in MTD Admissions by counsel except o Reckless or gross negligence resulting to deprivation of due process o Application will result to deprivation of liberty or property o Where interests of justice require
Only as to party making admission
Extrajudicial confessions Requisites 1. In writing and sign by accused and counsel 2. Supported by evidence of corpus delicti * Above requirements are applicable only in the context of custodial investigation. Spontaneous statements are not covered by constitutional safeguards. Corpus delicti substance of the crime; Elements 1. Proof of occurrence of a certain event 2. Persons criminal responsibility for the act Examples Dangerous drugs: follow special procedure, Theft: property los tby owner, lost by felonius taking Illegal possession of firearms: lack of license to possess Death/murder: death and criminal agency (body not necessary) Admission by silence Requisites 1. Person heard and understood statement 2. Person at liberty to make denial 3. Statement was about matter affecting his rights as which would naturally call for a response 4. Facts were within his knowledge 5. Materiality of admitted fact to issue. Admissions by third parties Generally, not admissible against anyone but himself . Applies only to extrajudicial confessions. Exceptions 1. Copartner/ agent requisites as follows: a. Made during existence of partnership b. Done in scope of authority c. Existence is proven by evidence other than declaration of partner/agent 2. Co-conspirator - requisites as follows: a. During existence of conspiracy b. Must be relevant to conspiracy c. Existence is proven by evidence other than declaration or act of conspirator
NOT judicial admissions Admission in drafted documents (drafted for purpose of pleading but not filed) Amended pleadings Superseded pleasings Dismissed pleadings * In demurrer to evidence, loss of right to present evidence does NOT amount to judicial admission. Admission versus ADMISSION Confession Declarations Against interest As to a relevant fact Declarant able to testify Made any time Not necessarily made against interest CONTRASTING CONCEPT Guilt Declarant unable to testify made before controversy arises Made against interest Admissible as to 3rd persons
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3.
Privies - requisites as follows: a. During period where one is privy b. Must be made by predecessor in interest c. In relation to object of dispute
Toshiba Information v. Commissioner of Internal Revenue, G.R.No.157594, March 9, 2010 (xxx) Philippine Bank of Communications v. Court of Appeals, May 22, 1991, G.R. No. 92067 (xxx) RULE 130 - RULES OF ADMISSIBILITY INDEX A: Object Evidence B: Documentary evidenc Best evidence Secondary evidence Parol evidence Interpretation C: Testimonial evidence Qualifications Disqualifications Privileged Communication
Other admissions 1. Withdrawn plea of guilt not admissible 2. Unacepted plea of guilt to lesser offense not admissible 3. Payment of expenses not admissible 4. Subsequent remedial measures not resolved, although in US, such is not admissible, except for purposes other than proving negligence 5. Propensity evidence (similar acts) not admissible except for the ff. purposes a. Specific intent b. knowledge c. Identity d. plan e. Scheme f. Habit g. Custom h. System i. Usage etc. CASES Social Justice Society v. Atienza, G.R. No. 156052, February 13, 2008 While it is true that a party making a judicial admission cannot subsequently take a position contrary to or inconsistent with what was pleaded, the aforestated rule is not applicable here. Respondent made the statements regarding the ordinances in civil case nos. 03-106379 and 06-115334 which are not the same as this case before us. To constitute a judicial admission, the admission must be made in the same case in which it is offered. Hence, respondent is not estopped from claiming that Ordinance No. 8119 did not supersede Ordinance No. 8027. Cuenco v. Talisay Tourist Sports Complex, G.R. No. 174154 The stipulation of facts at the pre-trial of a case constitutes judicial admissionsthe admissions of parties during the pre-trial, as embodied in the pre-trial order, are binding and conclusive upon them. *However, parties have first to agree as to the offer to stipulate. Even the offer to stipulate cannot be used as an admission against the party offering to stipulate. HOWEVER. In case of pleadings, stipulations therein are judicial admissions. If defendant denies, then it has to be proved in Court. Iba ang usapang di kumibo. Failure to raise an objection is tantamount to an admission.
A. OBJECT (REAL) EVIDENCE SECTION 1 . Object as evidence. Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. (1a) CODAL Those addressed to the senses of the Court Relevant to fact in issue
How presented Exhibited to, examined/viewed by Court LECTURE/NOTES Object evidence the real thing itself; appeals directly to senses (sight, smell, hearing, touch, taste). Weight: Very persuasive Scope: All sorts of objects that can be perceived by the 5 senses Requisites 1. RELEVANT: relationship to fact in issue
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2.
3.
4.
AUTHENTICATED (in relation to competence)1 a. Must pass test of authentication: must be the VERY thing that is the subject of the issue/ needed to prove a fact or issue AUTHENTICATION BY COMPETENT WITNESS a. Must be supported by testimony of competent witness b. Witness must be capacitated to identify the object as the very thing involved in litigation c. Actual and personal knowledge of the exhibit he is presenting for admission. Formally offered
b.
Identified, explained, or quthenticated by: i. Person who made recording ii. Person competent to testify accuracy thereof.
on
Categories Category Unique
Description readily identifiable marks made identifiable readily
Made unique
Non-unique
no identifying marks ** proponent must establish chain of custody
Example Gun with serial number; drivers license Kitchn knofe with unique marks; money with name on it Droops of blood, oil, drugs in powder form; finer, grains
Motion pictures and recordings Requisites o Testimonies as to the: Qualification of operator Description of equipment Conditions of operation Faithful and accurate representation Voices/ identity of speakers Reason for recognition of the same people Not taken in vilation of anti-wiretapping laws Diagrams, maps and models Touchstone is ability to authenticate exhibit X-ray pictures Requisites o Made in circumstances as to assure their accuracy and where relevant to a material issue ina case o Testimony of x-ray technician/ physician who attests to competence of person taking it o Procedure taken to authenticate o What is shown is person/ part of person in issue. Scientific tests, demonstrations and experiments Held admissible to help illustrate testimonies, but admitting such depends upon sound court discretion Ephemeral electronic communication phone/ text/ chat/ streaming/ audio sessions, which evidence is not recorded or retained. Requisites Proven by testimony of person party to same, or one who has personal knowledge thereof. DNA Testing A court order is needed when one is to require DNA testing for litigation. Also, the ff: 1. Relevance to case 2. Not previously subjected to DNA testing/ previous tests requiring confirmation 3. Scientifically valid technique
Chain of custody Generally For non-unique objects, to guarantee integrity of physical evidence. Links are the people who handled/had custodyof the object As long as the testimony negate sthe possibility of tampering, it is adequate to prove chain of custody. In drugs cases Duly recorded authorized custody of seized drugs etc. of each stage, from seizure to receipt in forensic laboratory to safekeeping and presentation in court for destruction. Demonstrative evidence Definition Not the actual thing, but represents or demonstrates the actual thing. E.g. mapd, diagrams, photographs, models. Photographs Requisites: a. Presented, displayed, and shown to court
1
Issue of authentication is commonly called laying the foundation. NO TES A T T Y .T R A N Q U I L S A L V A D O R
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4. 5.
Can produce new information that is relevant to resolution of case Other factors which may affect the accuracy and integrity of DNA testing.
Court may stop introduction of evidence if it cannot reasonably expected to ne additionally persuasive.
Self-serving testimony made out of court CASES Paraffin Test Marturillas v. People, G.R. No. 163217, April 18, 2006 (Help me pre, I was shot by the Capitan; Gunshot wound; negative paraffin test) Dying Declaration: To be admissible, a dying declaration must 1) refer to the cause and circumstances surrounding the declarants death; 2) be made under the consciousness of an impending death; 3) be made freely and voluntarily without coercion or suggestions of improper influence; 4) be offered in a criminal case, in which the death of the declarant is the subject of inquiry; and 5) have been made by a declarant competent to testify as a witness, had that person been called upon to testify. Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. Requisites for dying declaration to be part of res gestae: A declaration is deemed part of the res gestae and admissible in evidence as an exception to the hearsay rule, when the following requisites concur: 1) the principal act, the res gestae, is a startling occurrence; 2) the statements were made before the declarant had time to contrive or devise; and 3) the statements concerned the occurrence in question and its immediately attending circumstances. Admissibility/weight of paraffin tests: A negative paraffin test result is not a conclusive proof that a person has not fired a gun.63 In other words, it is possible to fire a gun and yet be negative for nitrates, as when culprits wear gloves, wash their hands afterwards, or are bathed in perspiration.64 Besides, the prosecution was able to establish the events during the shooting, including the presence of petitioner at the scene of the crime. Hence, all other matters, such as the negative paraffin test result, are of lesser probative value.
Determining probative value of DNA evidence 1. Chain of custody 2. Testing methodology 3. Forensic laboratory 4. Reliability of testing result DNA profiles are not open to scrutiny, except upon court order and only to the ff. people: 1. Source of sample 2. Lawyers of parties in case 3. Duly authorized law enforcement agencies 4. Other persons as may be determined by court 5. Person designated and authorized by person from whom sample was taken Paraffin tests Not reliable Polygraph tests Not reliable Right against self incrimination CANNOT be invoked in object evidence Subject to examination, viewing, and exhibition to senses of the Court Things must be brought before the Court for examination. However, when such is impossible, the Court may allow for a view of the object or scene. o View going out of the courtroom to observe places and objects Is it possible to use an object which could not be produced as object evidence? Yes, through corroborative evidence. Corroborative evidence evidence which tend to establish a fact Cumulative evidence evidence of the same kind Offer of testimonial evidence To alert the judge of the purpose of presenting a witness (section 34, rule 132) How to object 2 Sec.6, Rule 133.
Tranquils tip. E VIDE NCE NO TE S A T T Y .T R A N Q U I L S A L V A D O R
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Photograph as Evidence Jose v. Court of Appeals, G.R. No. 118441, January 18, 2000 (damages for collision; partying victims) (xxx) B. DOCUMENTARY EVIDENCE Sec. 2 . Documentary evidence. Documents as evidence consist of writing or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents. CODAL Forms Writing Any material expression
Sec. 4 . Original of document. (a)The original of the document is one the contents of which are the subject of inquiry. (b)When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. (c)When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. (3a) CODAL Best Evidence Rule When contents are in issue, no other than original may be presented in evidence. Exceptions when original is: o LOST: Lost/destroyed/cannot be produced in court without bad faith on part of offeror o ADVERSE CUSTODY: In custody or under the control of the party against whom the evidence I being offered and latter fails to return it after reasonable notice o SOBRANG DAMI: Document consists of numerous accounts/ other documents cannot be examined without great loss of time and the fact sought to be established is the general result of the whole o PUBLIC RECORD: Public record in custody of public officer/ is recorded in public office. Original The following are considered originals: GENERALLY: Contents are subject of iquiry 2 COPIES: o 2++ copies executed o executed at or about the same time, o identical contents REPEATED: o Repeated o In the regular course of business o one copied from another o at or near the time of transaction. Documentary evidence Proof Offered as proof of contents, and not mere existence Dual purpose
containing
written
forms
of
Purpose Contents are key. Documents are offered to prove contents. 1. BEST EVIDENCE RULE Sec. 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: (a)When the original has been lost or 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; and (d)When the original is a public record in the custody of a public officer or is recorded in a public office. (2a)
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May be offered both as documentary and object evidence 2. 3.
LECTURE/ NOTES Electronic evidence Whenever a rule of evidence refers to the term of writing, such includes an electronic document. It is admissible in evidence if: 1. It complies with ROC rules on admissibility 2. authenticated Part of documentary evidence when offered to prove contents Manner of authentication (PRIVATE DOCUMENTS ONLY) 1. by evidence that it had been digitally signed by the person purported to have signed the same; 2. 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 3. by other evidence showing its integrity and reliability to the satisfaction of the judge. Proof of electronically notarized document electronically notarized in accordance with the rules considered as a public document proved as a notarial document under the ROC. Best evidence rule Meaning Production of original to avoid substantial hazards of inaccuracy and special errors Contents must be in issue, not truth thereof o If truth, hearsay evidence will apply. o Terms must be the question, not facts which have no regerent to its contents e.g. existence, condition, execution, delivery. Reasons 1. Need to present exact words as slight variation may mean worlds of difference 2. Prevention of fraud 3. Avoid unintentional mistakes 4. Prevent erroneous interpretations What originals are 1. OFFERED 2. 2++ COPIES 3. REPEATED Exceptions 1. LOST a. Also covers immovables
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4.
Existence, execution, loss, contents i. Execution either saw or genuineness. CUSTODY OF ANOTHER a. Must have done everything in power to obtain copy NUMEROUS a. Records must still be made accessible to adverse party to very correctness/ enable testing on cross-examination. PUBLIC RECORD a. Generally not removed from place where there are recorded and kept.
b.
Waiver of rule 1. If not raised in trial 2. SECONDARY EVIDENCE Sec. 5. When original document is unavailable. When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. (4a) Sec. 6. When original document is in adverse party's custody or control. If the document is in the custody or under the control of adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss. (5a) Sec. 7. Evidence admissible when original document is a public record. When the original of document is in the custody of public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. Sec. 8 . Party who calls for document not bound to offer it. A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence. CODAL Loss, destruction, cannot be produced in court Proof of execution/existence No bad faith on part of offeror
May prove the same through (this particular order): o A copy o Recital of contents through authentic document o Testimony of witnesses
explanations must be given before a party can resort to secondary evidence. Conditions sine qua non for the presentation and reception of the photocopies of the original document as secondary evidence are: 1. there is proof of the original documents execution or existence 2. there is proof of the cause of the original documents unavailability, and 3. the offeror is in good faith The mere fact that the original of the writing is in the custody or control of the party against whom it is offered does not warrant the admission of secondary evidence. The offeror must prove that he has done all in his power to secure the best evidence by giving notice to the said party to produce the document. The notice may be in the form of a motion for the production of the original or made in open court in the presence of the adverse party or via a subpoena duces tecum, provided that the party in custody of the original has sufficient time to produce the same. When such party has the original of the writing and does not voluntarily offer to produce it or refuses to produce it, secondary evidence may be admitted. Chua Gaw v. Chua G.R. No. 160855, April 16, 2008 A notarized document carries evidentiary weight as to its due execution and documents acknowledged before a notary public have in their favor the presumption of regularity; The best evidence rule applies only when the content of such document is the subject of the inquiry. The notarization of a private document converts it into a public document, and makes it admissible in court without further proof of its authenticity. It is entitled to full faith and credit upon its face. A notarized document carries evidentiary weight as to its due execution, and documents acknowledged before a notary public have in their favor the presumption of regularity. Such a document must be given full force and effect absent a strong, complete and conclusive proof of its falsity or nullity on account of some flaws or defects recognized by law. A public document executed and attested through the intervention of a notary public is, generally, evidence of the facts therein express in clear unequivocal manner. The best evidence rule as encapsulated in Rule 130, Section 3, of the Revised Rules of Civil Procedure applies only when the content of such document is the subject of the inquiry. Where the issue is only as to whether such document was actually executed, or
Custody of adverse party Reasonable notice to adverse party Adverse party still fails to produce it despite notice Satisfactory proof of its existence Public record Certified copy Issue by officer having custody of original Option not to offer Calls for production Not obliged to offer the same LECTURE/NOTES Procedure for lost documents 1. Lay foundation 2. Present the ff, in this order: a. Copy of original b. Recital of its contents in some authentic document c. Testimony of witnesses CASES Edsa Shangrila v. BF Corporation, G.R. 145842, June 27, 2008 The only actual rule that the term best evidence denotes is the rule requiring that the original of a writing must, as a general proposition, be produced and secondary evidence of its contents is not admissible except where the original cannot be had. Secondary evidence of the contents of a written instrument or document refers to evidence other than the original instrument or document itself: A party may present secondary evidence of the contents of a writing not only when the original is lost or destroyed, but also when it is in the custody or under the control of the adverse party. Secondary evidence of the contents of a written instrument or document refers to evidence other than the original instrument or document itself. A party may present secondary evidence of the contents of a writing not only when the original is lost or destroyed, but also when it is in the custody or under the control of the adverse party. In either instance, however, certain
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exists, or on the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible. Any other substitutionary evidence is likewise admissible without need to account for the original. Moreover, production of the original may be dispensed with, in the trial courts discretion, whenever the opponent does not bona fide dispute the contents of the document and no other useful purpose will be served by requiring production. Sasan v. NLRC, G.R. No. 160855, April 16, 2008 Technical rules of evidence do not apply if the decision to grant the petition proceeds from an examination of its sufficiency as well as a careful look into the arguments contained in position papers and other documents. DECS v. del Rosario, G.R. No. 146596, January 26, 2005 ( xxx) 3. PAROL EVIDENCE RULE Sec. 9 .Evidence of written agreements. When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading. (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. The term "agreement" includes wills. (7a) CODAL When terms of agreement reduced to writing considered to contain all the terms agreed upon and there can be
There can be, as between parties/successors in interest, no other evidence other than the contents in the written agreement. Exceptions: modify, add, explain the terms agreed if he puts in issue in his pleading the ff: (VAIO) 1. AMBIGUITY: Intrinsic ambiguity, mistake, imperfection 2. INTENT: fails to express true intent of perties 3. VALIDITY: validity of the written agreement 4. OTHER TERMS AFTER AGREEMENT: other terms agreed to by parties after execution of written agreement
LECTURE/ NOTES Parol evidence evidence to modify, explain or add to a written agreement. Be it noted that written agrements are demmed to contain all terms agreed upon and there can be. Parol evidence rule - written or oral, answers question what does contract contain - without looking elsewhere for answers? Applicability Only to written contracts, no particular form, as long as it reflects and agreement Also to wills. Only to parties and successors-in-interest Purpose Give certainty to written transactions Preserve reliability Protect sanctity of written agreements Intrinsic ambiguity one that is not apparent on the face of the document Mistake/imperfection/true intent Although parol evidence may be presented, it cannot serve the purpose of incorporating into the contract conditions which are not mentioned at all in writing (E) if there has been fraud or mistake. Reformation is the remedy where true intent is not reflected, except o Simple donations intervivos o Wills o Agreement is void. Where there is not meeting of the minds, the remedy is annulment. Waiver Failure to invoke benefits
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Probative value Existence of verbal agreement may still have to be supported by evidence Best evidence vs. parol evidence BEST EVIDENCE Primacy Original over issue secondary Admission No secondary if of other original available evidence Parties Any litigant to who may action invoke Where All forms of applicable writing
PAROL EVIDENCE Presupposes original available No other except those contained in agreement Only parties to document/successors in interest Written agreements + wills
This argument is untenable. Although parol evidence is admissible to explain the meaning of a contract, it cannot serve the purpose of incorporating into the contract additional contemporaneous conditions which are not mentioned at all in the writing unless there has been fraud or mistake. Evidence of a prior or contemporaneous verbal agreement is generally not admissible to vary, contradict or defeat the operation of a valid contract. Marquez v. Espejo, G.R. No. 168387, August 25, 2010 Well-settled is the rule that in case of doubt, it is the intention of the contracting parties that prevails, for the intention is the soul of a contract, not its wording which is prone to mistakes, inadequacies, or ambiguities. The parol evidence rule may not be invoked where at least one of the parties to the suit is not a party or a privy of a party to the written document in question, and does not base his claim on the instrument or assert a right originating in the instrument. The Parol Evidence Rule excludes parol or extrinsic evidence by which a party seeks to contradict, vary, add to or subtract from the terms of a valid agreement or instrument. The Best Evidence Rule states that when the subject of inquiry is the contents of a document, the best evidence is the original document itself and no other evidence (such as a reproduction, photocopy or oral evidence) is admissible as a general rule. 4. INTERPRETATION OF DOCUMENTS3 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
3
CASES ACI Phil.Inc. v. Coquia, G.R. No. 174466, July 14, 2008 It is a cardinal rule of evidence that the written document is the best evidence of its own contents, though a party may present evidence to modify, explain or add to the terms of the agreement if he puts in issue in his pleading the failure of the written agreement to express the true intent and agreement of the parties. Seaoil Petroleum Corporation v. Autocorp.Group, G.R. No. 164326, October 17, 2008 Unsubstantiated testimony, offered as proof of verbal agreements which tends to vary the terms of a written agreement, is inadmissible under the parol evidence rule.Petitioner does not question the validity of the vehicle sales invoice but merely argues that the same does not reflect the true agreement of the parties. However, petitioner only had its bare testimony to back up the alleged arrangement with Rodriguez. The Monte de Piedad checksthe supposedly clear and obvious link between the documentary evidence and the true transaction between the partiesare equivocal at best. There is nothing in those checks to establish such link. Rodriguez denies that there is such an agreement. The parol evidence rule forbids any addition to, or contradiction of, the terms of a written agreement by testimony or other evidence purporting to show that different terms were agreed upon by the parties, varying the purport of the written contract. This principle notwithstanding, petitioner would have the Court rule that this case falls within the exceptions, particularly that the written agreement failed to express the true intent and agreement of the parties.
No notes, although sir said to read provisions. Most of these are self-explanatory and/or taken up in statutory construction and Obligations and Contracts. A T T Y .T R A N Q U I L S A L V A D O R
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 who 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 was 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. (17)
C. TESTIMONIAL EVIDENCE 1. QUALIFICATION OF WITNESSES Sec. 20 . Witnesses; their qualifications. Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make their known perception to others, may be witnesses. Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification. (18a) Sec. 21 . Disqualification by reason of mental incapacity or immaturity. The following persons cannot be witnesses. (a) Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; (b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. (19a) Sec. 22 . Disqualification by reason of marriage. During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. (20a) Sec. 23 . Disqualification by reason of death or insanity of adverse party. Parties or assignor of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. (20a) Sec. 24 . Disqualification by reason of privileged communication. The following persons cannot testify as to matters learned in confidence in the following cases: a. The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a
crime committed by one against the other or the latter's direct descendants or ascendants; b. 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; c. 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 capacity, and which would blacken the reputation of the patient;
o o
Perception: Mental capacity as to render them incapable of perceiving facts Making known perception: Also problem in relating them truthfully
Marital During the marriage Cannot be down without the consent of the affected spouse Exceptions o (E) Civil case by one against the other o (E) Criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. Death/insanity Pertains to matters of fact occurring before death/insanity The following cannot testify as to above matters: o Parties or assignor of parties to a case o Persons in whose behalf a case is prosecuted against an executor or administrator Against other representative of a deceased person against a person of unsound mind, upon a claim or demand against the estate of such deceased insance Privileged communication Pertains to mater learned in confidence Spouses o during or after the marriage o needs consent of the other o involves any communication received in confidence by one from the other during the marriage o Exceptions: Civ/crim case Attorney o Needs consent of client o Involves any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment o Agency: the above rule also applies to the ff: Secretary Stenographer Clerk Needs consent of client and employer Fact must have been acquired in such capacity
d. 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; e. 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. (21a)
CODAL Qualifications All persons who can perceive In perceiving can make known their perceptions to others Religious/ political belief/ interest in the outcome of case/ conviction of crime not grounds for disqualification. Disqualifications Mental incapacity Incapable of making known perceptions: o At time of production for examination o Mental condition is such that they are incapable of making known their perception Children:
Doctor-client o Doctor of medicine, surgery, obstetrics o Civil case o Needs consent of patient as to matters involving the ff: any advice or treatment given by him information which he may have acquired in attending such patient in a professional capacity info necessary to enable him to act in capacity info would blacken the reputation of the patient Minister/ priest o Involves any confession made to or any advice given by him in his professional character o in the course of discipline enjoined by the church to which the minister or priest belongs Public officer o during his term of office or afterwards o communications made to him in official confidence o when court finds that the public interest would suffer by the disclosure.
Children 1. mental maturity to render them incapable of perceiving facts respecting which he is examined 2. incapable of relating perception to others 3. disqualification must be at time of perception of event + time of relating perceptions * see Child Witness Rule for more detailed discussion Dead mans statute applicable only to civil cases and special proceedings Elements: 1. Defendant is executor/ administrator/ representative of deceased or insane person 2. Suit is upon claim by plaintiff agains the ESTATE OF DECEASED person 3. Witness is plaintiff (or assignor) 4. Subject: any matter occurring before detah of such deceased person How to apply rule: 1. Parties: Identify plaintiff and defendant must be a suit AGAINST the estate a. Defendant is representative of deceased and entitled to invoke this defense 2. Subject: Civil case, for claim against estate of deceased 3. Prohibition Waiver: 1. Failure to object 2. Cross examination of witness of prohibited testimony 3. Offering evidence to rebut testimony Spousal Immunity Complete spousal immunity Any matter During subsistence of marriage Testimony for or against the other Waiver: Failure to object No agency Exceptions 1. Civil case against the other 2. Criminal case against the other/ direct descendants/ascendants Where spouse is accused with others Cannot testify against husband, but may against those others implicated Estranged spouses Separation of spouses does not operate to terminate the marriage. However, it has been ruled in a number of cases that testimony may be allowed when the
LECTURE/NOTES Testimonial evidence - evidence elicited from mouth of witness Qualifications of witness 1. can perceive 2. in perceiving can make his perceptions known a. ability to remember b. ability to communicate what was remembered 3. oath/affirmation 4. no disqualifications Making perceptions known Deaf-mutes 1. can understand and appreciate sanctity of oath 2. comprehension of facts they ar going to testify to 3. communicate through qualified interpreter Disqualifications Mental incapacity 1. incapable of making hid perception known to others 2. incapability must exist at time of production for examination
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relationship has been so strained, so that there is no more harmony to be preserved. Marital privileged communication testimony involving
privileged communication between spouses Elements 1. Valid marriage, during or after 2. Privileged communication received by reason of marital relation and is not meant to be shared with others. 3. Such was received during marriage - If before or after the marriage, objectionable under spousal privilege (but not under spousal umminity) 4. No agency
2. 3. 4. 5.
Doctor of medicine/surgery/obstetrics. Advice, treatment, any other info given in attending patient in a professional capacity. Info necessary to enable him to act in that capacity. Info would blacken reputation of patient. There need not be a contractual relationship, as long as doctor attended to patient in his professional capacity. Professional capacity may cover preventive or curative treatment. Privilege survives death of patient.
Waiver Failure to raise timely objection Spousal immunity vs. spousal privilege IMMUNITY Matters Not necessarily covered privileged Time covered Before and (info received) during marriage Operational During marriage period Parties One spouse is party to action Agency None
Waiver Express Implied as when patient discloses information. Operation of law Priest-Penitent Privilege involving confessions/ advices made in professional capacity What are covered 1. Confession of sins 2. Made in ministers professional/ spiritual capacity Public officers - communications which would adversely affect public interest Requisites 1. Communication made in official confidence 2. When court finds public interest will suffer 3. Examination cannot be made during term of office . Executive privilege power of the government to withhold information from the public, courts, congress. Coverage 1. Military 2. Diplomatic 3. Other national security matters 4. Presidential conversations 5. Correspondences 6. Discussions in closed-door meetings Nixon, In Re Sealed Case and Judicial Watch as cited in Neri v. Senate Committees on Accountability, Investigations, trade and commerce, national defense and security Elements of executive privilege 1. information related to a quintessential and nondelegable power of the President 2. communication was received by a close advisor of the President
PRIVILEGE Privileged/ confidential, During marriage During AND after marriage Spouses need not be parties to action None
Attorney-client privilege communications between a lawyer and his client Requisites 1. Communication made to client by an attorney 2. Such must have been given in confidence 3. Given in the course of professional employment/ with a view to professional employment perfected relationship not required 4. Agency. When lawyer and client became embroiled in controversy, privilege is removed. Privilege is owned by client. Protection will survive death of client. Arises from fiduciary relationship. Evidentiary matters are not covered by privilege.
Physician-patient privilege - communications between a medical doctor and his patient Requisites 1. Civil case
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3.
showing of adequate and compelling need that would justify the limitation of the privilege and the unavailability of the information elsewhere by an appropriate investigating authority.
2. TESTIMONIAL PRIVILEGE Sec. 25 . Parental and filial privilege. No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. (20a) CODAL Parental parent cannot be compelled to testify against child/ direct descendant Filial child cannot be compelled to testify against parents/ direct ascendants LECTURE/NOTES Not absolute When a parent/child/etc voluntarily testimony, then such is not objectionable.
offers
Exceptions Under the Family code, descendant may be compelled to give testimony in the ff. criminal case instances: 1. Testimony is indispensable in a crime committed against descendant 2. In a crime committed against one parent by another. Other Privileged information PERSONS Editors Voters People Tax payer Banking transaction parties Parties to labor conciliation proceedings Institutions covered by AMLA
INFORMATION Sources of published news Votes Trade secrets Tax census returns bank deposits Information and statements therein Suspicious transactions
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APPENDIX 1
CHILD WITNESS EXAMINATION RULE
SECTION 1. Applicability of the Rule. Unless otherwise provided, this Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses. SEC. 2. Objectives. The objectives of this Rule are to create and maintain an environment that will allow children to give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of truth. SEC. 3. Construction of the Rule. This Rule shall be liberally construed to uphold the best interests of the child and to promote maximum accommodation of child witnesses without prejudice to the constitutional rights of the accused. SEC. 4. Definitions. (a) A child witness is any person who at the time of giving testimony is below the age of eighteen (18) years. In child abuse cases, a child includes one over eighteen (18) years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition. (b) Child abuse means physical, psychological, or sexual abuse, and criminal neglect as defined in Republic Act No. 7610 and other related laws. (c) Facilitator means a person appointed by the court to pose questions to a child. (d) Record regarding a child or record means any photograph, videotape, audiotape, film, handwriting, typewriting, printing, electronic recording, computer data or printout, or other memorialization, including any court document, pleading, or any copy or reproduction of any of the foregoing, that contains the name, description, address, school, or any other personal identifying information about a child or his family and that is produced or maintained by a public agency, private agency, or individual.
(e) A guardian ad litem is a person appointed by the court where the case is pending for a child who is a victim of, accused of, or a witness to a crime to protect the best interests of the said child. (f) A support person is a person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support for him. (g) Best interests of the child means the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the child and most encouraging to his physical, psychological, and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child. (h) Developmental level refers to the specific growth phase in which most individuals are expected to behave and function in relation to the advancement of their physical, socio-emotional, cognitive, and moral abilities. (i) In-depth investigative interview or disclosure interview is an inquiry or proceeding conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services for the purpose of determining whether child abuse has been committed. SEC. 5. Guardian ad litem. (a) The court may appoint a guardian ad litem for a child who is a victim of, accused of, or a witness to a crime to promote the best interests of the child. In making the appointment, the court shall consider the background of the guardian ad litem and his familiarity with the judicial process, social service programs, and child development, giving preference to the parents of the child, if qualified. The guardian ad litem may be a member of the Philippine Bar. A person who is a witness in any proceeding involving the child cannot be appointed as a guardian ad litem. (b) The guardian ad litem: (1) Shall attend all interviews, depositions, hearings, and trial proceedings in which a child participates; (2) Shall make recommendations to the court concerning the welfare of the child; (3) Shall have access to all reports, evaluations, and records necessary to effectively advocate for the child, except privileged communications;
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(4) Shall marshal and coordinate the delivery of resources and special services to the child; (5) Shall explain, in language understandable to the child, all legal proceedings, including police investigations, in which the child is involved; (6) Shall assist the child and his family in coping with the emotional effects of crime and subsequent criminal or non-criminal proceedings in which the child is involved; (7) May remain with the child while the child waits to testify; (8) May interview witnesses; and (9) May request additional examinations by medical or mental health professionals if there is a compelling need therefor. (c) The guardian ad litem shall be notified of all proceedings but shall not participate in the trial. However, he may file motions pursuant to sections 9, 10, 25, 26, 27 and 31(c). If the guardian ad litem is a lawyer, he may object during trial that questions asked of the child are not appropriate to his developmental level. (d) The guardian ad litem may communicate concerns regarding the child to the court through an officer of the court designated for that purpose. (e) The guardian ad litem shall not testify in any proceeding concerning any information, statement, or opinion received from the child in the course of serving as a guardian ad litem, unless the court finds it necessary to promote the best interests of the child. (f) The guardian ad litem shall be presumed to have acted in good faith in compliance with his duties described in sub-section (b). SEC. 6. Competency. Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court. (a) Proof of necessity. A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination. (b) Burden of proof. To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence.
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(c) Persons allowed at competency examination. Only the following are allowed to attend a competency examination: (1) The judge and necessary court personnel; (2) The counsel for the parties; (3) The guardian ad litem; (4) One or more support persons for the child; and (5) The defendant, unless the court determines that competence can be fully evaluated in his absence.
(d) Conduct of examination. Examination of a child as to his competence shall be conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child. (e) Developmentally appropriate questions. The questions asked at the competency examination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully. (f) Continuing duty to assess competence. The court has the duty of continuously assessing the competence of the child throughout his testimony. SEC. 7. Oath or affirmation. Before testifying, a child shall take an oath or affirmation to tell the truth. SEC. 8. Examination of a child witness. The examination of a child witness presented in a hearing or any proceeding shall be done in open court. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. The party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow him to testify in the manner provided in this Rule. SEC. 9. Interpreter for child. (a) When a child does not understand the English or Filipino language or is unable to communicate in said languages due to his developmental level, fear, shyness, disability, or other similar reason, an interpreter whom the child can understand and who understands the child may be appointed by the court, motu proprio or upon motion, to interpret for the child.
(b) If a witness or member of the family of the child is the only person who can serve as an interpreter for the child, he shall not be disqualified and may serve as the interpreter of the child. The interpreter, however, who is also a witness, shall testify ahead of the child. (c) An interpreter shall take an oath or affirmation to make a true and accurate interpretation. SEC. 10. Facilitator to pose questions to child. (a) The court may, motu proprio or upon motion, appoint a facilitator if it determines that the child is unable to understand or respond to questions asked. The facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent, or relative. (b) If the court appoints a facilitator, the respective counsels for the parties shall pose questions to the child only through the facilitator. The questions shall either be in the words used by counsel or, if the child is not likely to understand the same, in words that are comprehensible to the child and which convey the meaning intended by counsel. (c) The facilitator shall take an oath or affirmation to pose questions to the child according to the meaning intended by counsel. SEC. 11. Support persons. (a) A child testifying at a judicial proceeding or making a deposition shall have the right to be accompanied by one or two persons of his own choosing to provide him emotional support. (1) Both support persons shall remain within the view of the child during his testimony. (2) One of the support persons may accompany the child to the witness stand, provided the support person does not completely obscure the child from the view of the opposing party, judge, or hearing officer. (3) The court may allow the support person to hold the hand of the child or take other appropriate steps to provide emotional support to the child in the course of the proceedings. (4) The court shall instruct the support persons not to prompt, sway, or influence the child during his testimony. (b) If the support person chosen by the child is also a witness, the court may disapprove the choice if it is sufficiently established that the attendance of the support person during the testimony of the child would pose a substantial risk of influencing or affecting the content of the testimony of the child.
(c) If the support person who is also a witness is allowed by the court, his testimony shall be presented ahead of the testimony of the child. SEC. 12. Waiting area for child witnesses. The courts are encouraged to provide a waiting area for children that is separate from waiting areas used by other persons. The waiting area for children should be furnished so as to make a child comfortable. SEC. 13. Courtroom environment. To create a more comfortable environment for the child, the court may, in its discretion, direct and supervise the location, movement and deportment of all persons in the courtroom including the parties, their counsel, child, witnesses, support persons, guardian ad litem, facilitator, and court personnel. The child may be allowed to testify from a place other than the witness chair. The witness chair or other place from which the child testifies may be turned to facilitate his testimony but the opposing party and his counsel must have a frontal or profile view of the child during the testimony of the child. The witness chair or other place from which the child testifies may also be rearranged to allow the child to see the opposing party and his counsel, if he chooses to look at them, without turning his body or leaving the witness stand. The judge need not wear his judicial robe. Nothing in this section or any other provision of law, except official in-court identification provisions, shall be construed to require a child to look at the accused. Accommodations for the child under this section need not be supported by a finding of trauma to the child. SEC. 14. Testimony during appropriate hours. The court may order that the testimony of the child should be taken during a time of day when the child is well-rested. SEC. 15. Recess during testimony. The child may be allowed reasonable periods of relief while undergoing direct, cross, re-direct, and recross examinations as often as necessary depending on his developmental level. SEC. 16. Testimonial aids. The court shall permit a child to use dolls, anatomically-correct dolls, puppets, drawings, mannequins, or any other appropriate demonstrative device to assist him in his testimony.
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SEC. 17. Emotional security item. While testifying, a child shall be allowed to have an item of his own choosing such as a blanket, toy, or doll. SEC. 18. Approaching the witness. The court may prohibit a counsel from approaching a child if it appears that the child is fearful of or intimidated by the counsel. SEC. 19. Mode of questioning. The court shall exercise control over the questioning of children so as to (1) facilitate the ascertainment of the truth, (2) ensure that questions are stated in a form appropriate to the developmental level of the child, (3) protect children from harassment or undue embarrassment, and (4) avoid waste of time. The court may allow the child witness to testify in a narrative form. SEC. 20. Leading questions. The court may allow leading questions in all stages of examination of a child if the same will further the interests of justice. SEC. 21. Objections to questions. Objections to questions should be couched in a manner so as not to mislead, confuse, frighten, or intimidate the child. SEC. 22. Corroboration. Corroboration shall not be required of a testimony of a child. His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and noncriminal cases. SEC. 23. Excluding the public. When a child testifies, the court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made to protect the right to privacy of the child or if the court determines on the record that requiring the child to testify in open court would cause psychological harm to him, hinder the ascertainment of truth, or result in his inability to effectively communicate due to embarrassment, fear, or timidity. In making its order, the court shall consider the developmental level of the child, the nature of the crime, the nature of his testimony regarding the crime, his relationship to the accused and to persons attending the trial, his desires, and the interests of his parents or legal guardian. The court may, motu proprio, exclude the public from the courtroom if the evidence to be produced during trial is of such character as to be offensive to decency or public morals. The court may also, on motion of the accused,
exclude the public from trial, except court personnel and the counsel of the parties. SEC. 24. Persons prohibited from entering and leaving courtroom. The court may order that persons attending the trial shall not enter or leave the courtroom during the testimony of the child. SEC. 25. Live-link television testimony in criminal cases where the child is a victim or a witness. (a) The prosecutor, counsel or the guardian ad litem may apply for an order that the testimony of the child be taken in a room outside the courtroom and be televised to the courtroom by live-link television. Before the guardian ad litem applies for an order under this section, he shall consult the prosecutor or counsel and shall defer to the judgment of the prosecutor or counsel regarding the necessity of applying for an order. In case the guardian ad ltiem is convinced that the decision of the prosecutor or counsel not to apply will cause the child serious emotional trauma, he himself may apply for the order. The person seeking such an order shall apply at least five (5) days before the trial date, unless the court finds on the record that the need for such an order was not reasonably foreseeable. (b) The court may motu proprio hear and determine, with notice to the parties, the need for taking the testimony of the child through live-link television. (c) The judge may question the child in chambers, or in some comfortable place other than the courtroom, in the presence of the support person, guardian ad litem, prosecutor, and counsel for the parties. The questions of the judge shall not be related to the issues at trial but to the feelings of the child about testifying in the courtroom. (d) The judge may exclude any person, including the accused, whose presence or conduct causes fear to the child. (e) The court shall issue an order granting or denying the use of live-link television and stating the reasons therefor. It shall consider the following factors: (1) The age and level of development of the child; (2) His physical and mental health, including any mental or physical disability;
(3) Any physical, emotional, or psychological injury experienced by him; (4) The nature of the alleged abuse; (5) Any threats against the child; (6) His relationship with the accused or adverse party; (7) His reaction to any prior encounters with the accused in court or elsewhere; (8) His reaction prior to trial when the topic of testifying was discussed with him by parents or professionals; (9) Specific symptoms of stress exhibited by the child in the days prior to testifying; (10) Testimony of expert or lay witnesses; (11) The custodial situation of the child and the attitude of the members of his family regarding the events about which he will testify; and (12) Other relevant factors, such as court atmosphere and formalities of court procedure. (f) The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child. (g) If the court orders the taking of testimony by live-link television: (1) The child shall testify in a room separate from the courtroom in the presence of the guardian ad litem; one or both of his support persons; the facilitator and interpreter, if any; a court officer appointed by the court; persons necessary to operate the closed-circuit television equipment; and other persons whose presence are determined by the court to be necessary to the welfare and well-being of the child; (2) The judge, prosecutor, accused, and counsel for the parties shall be in the courtroom. The testimony of the child shall be transmitted by live-link television into the courtroom for viewing and hearing by the judge, prosecutor, counsel for the parties, accused, victim, and the public unless excluded. (3) If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor. (4) The court may set other conditions and limitations on the taking of the testimony that it
finds just and appropriate, taking into consideration the best interests of the child. (h) The testimony of the child shall be preserved on videotape, digital disc, or other similar devices which shall be made part of the court record and shall be subject to a protective order as provided in section 31(b). SEC. 26. Screens, one-way mirrors, and other devices to shield child from accused. (a) The prosecutor or the guardian ad litem may apply for an order that the chair of the child or that a screen or other device be placed in the courtroom in such a manner that the child cannot see the accused while testifying. Before the guardian ad litem applies for an order under this section, he shall consult with the prosecutor or counsel subject to the second and third paragraphs of section 25(a) of this Rule. The court shall issue an order stating the reasons and describing the approved courtroom arrangement. (b) If the court grants an application to shield the child from the accused while testifying in the courtroom, the courtroom shall be arranged to enable the accused to view the child. SEC. 27. Videotaped deposition. (a) The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be taken of the testimony of the child and that it be recorded and preserved on videotape. Before the guardian ad litem applies for an order under this section, he shall consult with the prosecutor or counsel subject to the second and third paragraphs of section 25(a). (b) If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape. (c) The judge shall preside at the videotaped deposition of a child. Objections to deposition testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the taking of the deposition. The other persons who may be permitted to be present at the proceeding are: (1) The prosecutor; (2) The defense counsel; (3) The guardian ad litem; (4) The accused, subject to sub-section (e); (5) Other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child;
(6) One or both of his support persons, the facilitator and interpreter, if any; (7) The court stenographer; and (8) Persons necessary to operate the videotape equipment.
act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules: (a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent. (b) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors: (1) Whether there is a motive to lie; (2) The general character of the declarant child; (3) Whether more than one person heard the statement; (4) Whether the statement was spontaneous; (5) The timing of the statement and the relationship between the declarant child and witness; (6) Cross-examination could not show the lack of knowledge of the declarant child; (7) The possibility of faulty recollection of the declarant child is remote; and (8) The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused.
(d) The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition. (e) If the order of the court is based on evidence that the child is unable to testify in the physical presence of the accused, the court may direct the latter to be excluded from the room in which the deposition is conducted. In case of exclusion of the accused, the court shall order that the testimony of the child be taken by live-link television in accordance with section 25 of this Rule. If the accused is excluded from the deposition, it is not necessary that the child be able to view an image of the accused. (f) The videotaped deposition shall be preserved and stenographically recorded. The videotape and the stenographic notes shall be transmitted to the clerk of the court where the case is pending for safekeeping and shall be made a part of the record. (g) The court may set other conditions on the taking of the deposition that it finds just and appropriate, taking into consideration the best interests of the child, the constitutional rights of the accused, and other relevant factors. (h) The videotaped deposition and stenographic notes shall be subject to a protective order as provided in section 31(b). (i) If, at the time of trial, the court finds that the child is unable to testify for a reason stated in section 25(f) of this Rule, or is unavailable for any reason described in section 4(c), Rule 23 of the 1997 Rules of Civil Procedure, the court may admit into evidence the videotaped deposition of the child in lieu of his testimony at the trial. The court shall issue an order stating the reasons therefor. (j) After the original videotaping but before or during trial, any party may file any motion for additional videotaping on the ground of newly discovered evidence. The court may order an additional videotaped deposition to receive the newly discovered evidence. SEC. 28. Hearsay exception in child abuse cases. A statement made by a child describing any
(c) The child witness shall be considered unavailable under the following situations: (1) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (2) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.
(d) When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence. SEC. 29. Admissibility of videotaped and audiotaped in-depth investigative or disclosure
interviews in child abuse cases. The court may admit videotape and audiotape in-depth investigative or disclosure interviews as evidence, under the following conditions: (a) The child witness is unable to testify in court on grounds and under conditions established under section 28 (c). (b) The interview of the child was conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services in situations where child abuse is suspected so as to determine whether child abuse occurred. (c) The party offering the videotape or audiotape must prove that: (1) the videotape or audiotape discloses the identity of all individuals present and at all times includes their images and voices; (2) the statement was not made in response to questioning calculated to lead the child to make a particular statement or is clearly shown to be the statement of the child and not the product of improper suggestion; (3) the videotape and audiotape machine or device was capable of recording testimony; (4) the person operating the device was competent to operate it; (5) the videotape or audiotape is authentic and correct; and (6) it has been duly preserved. The individual conducting the interview of the child shall be available at trial for examination by any party. Before the videotape or audiotape is offered in evidence, all parties shall be afforded an opportunity to view or listen to it and shall be furnished a copy of a written transcript of the proceedings. The fact that an investigative interview is not videotaped or audiotaped as required by this section shall not by itself constitute a basis to exclude from evidence out-of-court statements or testimony of the child. It may, however, be considered in determining the reliability of the statements of the child describing abuse. SEC. 30. Sexual abuse shield rule. (a) Inadmissible evidence. The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse: (1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and
(2) Evidence offered to prove the sexual predisposition of the alleged victim. (b) Exception. Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible. A party intending to offer such evidence must: (1) File a written motion at least fifteen (15) days before trial, specifically describing the evidence and stating the purpose for which it is offered, unless the court, for good cause, requires a different time for filing or permits filing during trial; and (2) Serve the motion on all parties and the guardian ad litem at least three (3) days before the hearing of the motion. Before admitting such evidence, the court must conduct a hearing in chambers and afford the child, his guardian ad litem, the parties, and their counsel a right to attend and be heard. The motion and the record of the hearing must be sealed and remain under seal and protected by a protective order set forth in section 31(b). The child shall not be required to testify at the hearing in chambers except with his consent. SEC. 31. Protection of privacy and safety. (a) Confidentiality of records. Any record regarding a child shall be confidential and kept under seal. Except upon written request and order of the court, a record shall only be released to the following: (1) Members of the court staff for administrative use; (2) The prosecuting attorney; (3) Defense counsel; (4) The guardian ad litem; (5) Agents of investigating law enforcement agencies; and (6) Other persons as determined by the court.
(b) Protective order. Any videotape or audiotape of a child that is part of the court record shall be under a protective order that provides as follows: (1) Tapes may be viewed only by parties, their counsel, their expert witness, and the guardian ad litem. (2) No tape, or any portion thereof, shall be divulged by any person mentioned in sub-section (a) to any other person, except as necessary for the trial. (3) No person shall be granted access to the tape, its transcription or any part thereof unless he signs a written affirmation that he has received and read a copy of the protective order; that he
submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he will be subject to the contempt power of the court. (4) Each of the tape cassettes and transcripts thereof made available to the parties, their counsel, and respective agents shall bear the following cautionary notice: This object or document and the contents thereof are subject to a protective order issued by the court in (case title) , (case number) . They shall not be examined, inspected, read, viewed, or copied by any person, or disclosed to any person, except as provided in the protective order. No additional copies of the tape or any of its portion shall be made, given, sold, or shown to any person without prior court order. Any person violating such protective order is subject to the contempt power of the court and other penalties prescribed by law. (5) No tape shall be given, loaned, sold, or shown to any person except as ordered by the court. (6) Within thirty (30) days from receipt, all copies of the tape and any transcripts thereof shall be returned to the clerk of court for safekeeping unless the period is extended by the court on motion of a party. (7) This protective order shall remain in full force and effect until further order of the court.
safety or his family. The court may, however, require the child to testify regarding personal identifying information in the interest of justice. (f) Destruction of videotapes and audiotapes. Any videotape or audiotape of a child produced under the provisions of this Rule or otherwise made part of the court record shall be destroyed after five (5) years have elapsed from the date of entry of judgment. (g) Records of youthful offender. Where a youthful offender has been charged before any city or provincial prosecutor or before any municipal judge and the charges have been ordered dropped, all the records of the case shall be considered as privileged and may not be disclosed directly or indirectly to anyone for any purpose whatsoever. Where a youthful offender has been charged and the court acquits him, or dismisses the case or commits him to an institution and subsequently releases him pursuant to Chapter 3 of P. D. No. 603, all the records of his case shall also be considered as privileged and may not be disclosed directly or indirectly to anyone except to determine if a defendant may have his sentence suspended under Article 192 of P. D. No. 603 or if he may be granted probation under the provisions of P. D. No. 968 or to enforce his civil liability, if said liability has been imposed in the criminal action. The youthful offender concerned shall not be held under any provision of law to be guilty of perjury or of concealment or misrepresentation by reason of his failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him for any purpose. Records within the meaning of this sub-section shall include those which may be in the files of the National Bureau of Investigation and with any police department or government agency which may have been involved in the case. (Art. 200, P. D. No. 603) SEC. 32. Applicability of ordinary rules. The provisions of the Rules of Court on deposition, conditional examination of witnesses, and evidence shall be applied in a suppletory character. SEC. 33. Effectivity. This Rule shall take effect on December 15, 2000 following its publication in two (2) newspapers of general circulation.
(c) Additional protective orders. The court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of the child. (d) Publication of identity contemptuous. Whoever publishes or causes to be published in any format the name, address, telephone number, school, or other identifying information of a child who is or is alleged to be a victim or accused of a crime or a witness thereof, or an immediate family of the child shall be liable to the contempt power of the court. (e) Physical safety of child; exclusion of evidence. A child has a right at any court proceeding not to testify regarding personal identifying information, including his name, address, telephone number, school, and other information that could endanger his physical
APPENDIX 2
RE: RULES ON ELECTRONIC EVIDENCE
RULE 1 - COVERAGE SECTION 1. Scope. - Unless otherwise provided herein, these Rules shall apply whenever an electronic data message, as defined in Rule 2 hereof, is offered or used in evidence. SEC. 2. Cases covered. - These Rules shall apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases. SEC. 3. Application of the other rules on evidence. - In all matters not specifically covered by these Rules, the Rules of Court and pertinent provisions of statues containing rules on evidence shall apply. Scope and Coverage Whenever electronic data message is OFFERED or USED in evidence in the following kinds of cases: 1. civil actions 2. quasi-judicial 3. administrative RULE 2 - DEFINITION OF TERMS/ CONSTRUCTION SECTION 1. Definition of Terms. - For purposes of these Rules, the following terms are defined, as follows: (a) Asymmetric or public cryptosystem means a system capable of generating a secure key pair, consisting of a private key for creating a digital signature, and a public key for verifying the digital signature. (b) Business records include records of any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit, or for legitimate purposes. (c) Certificate means an electronic document issued to support a digital signature which purports to confirm the identity or other significant characteristics of the person who holds a particular key pair. (d) Computer refers to any single or interconnected device or apparatus, which, by electronic, electromechanical or magnetic impulse, or by other means with the same function, can receive, record, transmit,
store, process, correlate, analyze, project, retrieve and/or produce information, data, text, graphics, figures, voice, video, symbols or other modes of expression or perform any one or more of these functions. (e) Digital Signature refers to an electronic signature consisting of a transformation of an electronic document or an electronic data message using an asymmetric or public cryptosystem such that a person having the initial untransformed electronic document and the signers public key can accurately determine: (i) whether the transformation was created using the private key that corresponds to the signers public key; and (ii) whether the initial electronic document had been altered after the transformation was made. (f) Digitally signed refers to an electronic document or electronic data message bearing a digital signature verified by the public key listed in a certificate. (g) Electronic data message refers to information generated, sent, received or stored by electronic, optical or similar means. (h) Electronic document refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term electronic document may be used interchangeably with electronic data message. (i) Electronic key refers to a secret code which secures and defends sensitive information that crosses over public channels into a form decipherable only with a matching electronic key. (j) Electronic signature" refers to any distinctive mark, characteristics and/or sound in electronic form. Representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedure employed or adopted by a person and executed or adopted by such person with the intention of authenticating, signing or approving an electronic data message or electronic document. For purposes of
these Rules, an electronic signature includes digital signatures. (k) Ephemeral electronic communication refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained. (l) Information and Communication System refers to a system for generating, sending, receiving, storing or otherwise processing electronic data messages or electronic documents and includes the computer system or other similar devices by or in which data are recorded or stored and any procedure related to the recording or storage of electronic data message or electronic document. (m) Key Pair in an asymmetric cryptosystem refers to the private key and its mathematically related public key such that the latter can verify the digital signature that the former creates. (n) Private Key refers to the key of a key pair used to create a digital signature. (o) Public Key refers to the key of a key pair used to verify a digital signature. SEC. 2. Construction. These Rules shall be liberally construed to assist the parties in obtaining a just, expeditious, and inexpensive determination of cases. The Interpretation of these Rules shall also take into consideration the international origin of Republic Act No. 8792, otherwise known as the Electronic Commerce Act. RULE 3 - ELECTRONIC DOCUMENTS SECTION 1. Electronic documents as functional equivalent of paper-based documents. Whenever a rule of evidence refers to the term of writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules. SEC. 2. Admissibility. An electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these Rules.
SEC. 3. Privileged communication. The confidential character of a privileged communications is not solely on the ground that it is in the form of an electronic document. Electronic Documents Electronic document if it refers to term or writing. Admissible if: 1. complies with rules of ROC on admissibility 2. Authenticated in the manner prescribed by these rules Being merely an electronic document does not qualify something as privileged communication. RULE 4 - BEST EVIDENCE RULE SECTION 1. Original of an electronic document. An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. SEC. 2. Copies as equivalent of the originals. When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which is accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original. Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if: (a) a genuine question is raised as to the authenticity of the original; or (b) in the circumstances it would be unjust or inequitable to admit a copy in lieu of the original. Original 1. print out/output 2. readable 3. shown to reflect data accurately Copies (equivalent of the originals) Identical contents 1. 2++ copies 2. executed at or about the same time 3. identical contents
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Reproduction 1. accurately produced by the same means as the original, such as: a. impression b. matrix c. mechanical electrical re-recording d. chemical reproduction e. equivalent means which accurately reproduces original Exceptions to admissibility of copies genuine question is raised as to the authenticity of the original OR unjust or inequitable to admit a copy in lieu of the original (depending on circumstances) RULE 5 - AUTHENTICATION OF ELECTRONIC DOCUMENTS SECTION 1. Burden of proving authenticity. The person seeking to introduce an electronic document in any legal proceeding has the burden of proving its authenticity in the manner provided in this Rule. SEC. 2. Manner of authentication. Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means: (a) by evidence that it had been digitally signed by the person purported to have signed the same; (b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or (c) by other evidence showing its integrity and reliability to the satisfaction of the judge. SEC. 3. Proof of electronically notarized document. - A document electronically notarized in accordance with the rules promulgated by the Supreme Court shall be considered as a public document and proved as a notarial document under the Rules of Court. RULE 6 - ELECTRONIC SIGNATURES SECTION 1. Electronic signature. An electronic signature or a digital signature authenticate din the manner prescribed hereunder is admissible in evidence as the functional equivalent of the signature of a person on a written document.
SEC. 2. Authentication of electronic signatures. An electronic signature may be authenticate in any of the following manner: (a) By evidence that a method or process was utilized to establish a digital signature and verity the same; (b) By any other means provided by law; or (c) By any other means satisfactory to the judge as establishing the genuineness of the electronic signature. SEC. 3. Disputable presumptions relation to electronic signature. Upon the authentication of an electronic signature, it shall be presumed that: (a) The electronic signature is that of the person to whom it correlates; (b) The electronic signature was affixed by that person with the intention of authenticating or approving the electronic document to which it is related or to indicate such persons consent to the transaction embodied therein; and (c) The methods or processes utilized to affix or verity the electronic signature operated without error or fault. SEC. 4. Disputable presumptions relating to digital signatures. Upon the authentication of a digital signature, it shall be presumed, in addition to those mentioned in the immediately preceding section, that: (a) The information contained in a certificate is correct; (b) The digital signature was created during the operational period of a certificate; (c) The message associated with a digital signature has not been altered from the time it was signed; and (d) A certificate had been issued by the certification authority indicated therein RULE 7 - EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS SECTION 1. Factors for assessing evidentiary weight. In assessing the evidentiary weight of an electronic document, the following factors may be considered: (a) The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic data message or document, in the
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light of all the circumstances as well as any relevant agreement; (b) The reliability of the manner in which its originator was identified; (c) The integrity of the information and communication system in which it is recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors; (d) The familiarity of the witness or the person who made the entry with the communication and information system; (e) The nature and quality of the information which went into the communication and information system upon which the electronic data message or electronic document was based; or (f) Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message. SEC. 2. Integrity of an information and communication system. In any dispute involving the integrity of the information and communication system in which an electronic document or electronic data message is recorded or stored, the court may consider, among others, the following factors: (a) Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system; (b) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it; or (c) Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party tot he proceedings and who did not act under the control of the party using it. RULE 8 - BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE SECTION 1. Inapplicability of the hearsay rule. A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business
activity, and such was the regular practice ot make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule or hearsay evidence. SEC. 2. Overcoming the presumption. The presumption provided for in Section 1 of this Rule may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof. RULE 9 - METHOD OF PROOF SECTION 1. Affidavit of evidence. All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein. SEC. 2. Cross-examination of deponent. The affiant shall be made to affirm the contents of the affidavit in open court and may be cross-examined as a matter of right by the adverse party. RULE 10 - EXAMINATION OF WITNESSES SECTION 1. Electronic testimony. After summarily hearing the parties pursuant to Rule 9 of these Rules, the court may authorize the presentation of testimonial evidence by electronic means. Before so authorizing, the court shall determine the necessity for such presentation and prescribe terms and conditions as may be necessary under the circumstance, including the protection of the rights of the parties and witnesses concerned. SEC. 2. Transcript of electronic testimony. When examination of a witness is done electronically, the entire proceedings, including the questions and answers, shall be transcribed by a stenographer, stenotypes or other recorder authorized for the purpose, who shall certify as correct the transcript done by him. The transcript should reflect the fact that the proceedings, either in whole or in part, had been electronically recorded. SEC. 3. Storage of electronic evidence. The electronic evidence and recording thereof as well as the stenographic notes shall form part of the record of the case. Such transcript and recording shall be deemed prima facie evidence of such proceedings.
RULE 11 - AUDIO, PHOTOGRAPHIC. VIDEO AND EPHEMERAL EVIDENCE SECTION 1. Audio, video and similar evidence. Audio, photographic and video evidence of events, acts or transactions shall be admissible provided is shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof. SEC. 2. Ephemeral electronic communication. Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted. A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section. If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 shall apply.
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EVIDENCE

REASON Negative in nature Self-serving Easily fabricated

Easily fabricated Fear of reprisal, reticence,

CREDIBILITY Worthiness of belief

Samples of judicial admissions Stipulation of facts at pre-trial / Pre-trial brief

Only as to party making admission

Categories Category Unique

Description readily identifiable marks made identifiable readily

no identifying marks ** proponent must establish chain of custody

Issue of authentication is commonly called laying the foundation. NO TES A T T Y .T R A N Q U I L S A L V A D O R

Tranquils tip. E VIDE NCE NO TE S A T T Y .T R A N Q U I L S A L V A D O R

May be offered both as documentary and object evidence 2. 3.

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