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FIRST SESSION (OCTOBER 1, 2016) TESTS TO DETERMINE INSANITY:

General Definition of a “Witness:” To determine the mental incapacity of an accused, the


A witness is one who, being present, personally sees or Court in conducting its own examination, is guided by TESTS
perceives a thing. OF INSANITY--
QUALIFICATION OF A WITNESS [a] The TEST OF COGNITION
(a) He can PERCEIVE and -which is the total deprivation of intelligence
(b) He CAN MAKE KNOWN what he perceived to others. [b] The TEST OF VOLITION
COMPETENCY REQUIREMENTS OF A WITNESS Which is the total deprivation of freedom of the will.
1. To testify truthfully under oath, and THERE ARE FIVE (5) DISQUALIFICATIONS FALLING
2. Possession of personal knowledge UNDER THIS CATEGORY:
THERE ARE TWO (2) GENERAL TYPES OF [a] INSANITY
DISQUALIFICATIONS: [b] CHILDREN/MINORITY
(1) TOTAL or ABSOLUTE DISQUALIFICATIONS- and [c] DEAF MUTES
(2) PARTIAL or RELATIVE DISQUALIFICATIONS. [d] INTOXICATED PERSONS
[e] IMBECILITY and SENILITY
There is TOTAL or ABSOLUTE DISQUALIFICATION
-when a person is totally disqualified from testifying in a case Some person are qualified to be a witness but is disqualified
from testifying on certain matters. They are the so-called
[a] MENTAL INCAPACITY or INSANITY and PARTIAL or RELATIVE DISQUALIFICATIONS
[b] MENTAL IMMATURITY.
The following fall under PARTIAL DISQUALIFICATIONS-
DISQUALIFICATION BY REASON OF MENTAL INCAPACITY [a] MARITAL PRIVILEGE
OR IMMATURITY A wife or a husband cannot testify against his or her
This refers to the competency or qualification of a person spouse on any matter without the latter’s consent.
to testify or act as a witness and does not concern the
competency of their testimony.
The rule is that without the consent of the party spouse, The FOLLOWING PERSONS CANNOT TESTIFY ON
the witness spouse cannot testify or even produce and identify a MATTERS LEARNED IN CONFIDENCE:
document, on any matter either in favor of or against the other 1. HUSBAND and WIFE
spouse. 2. ATTORNEY and CLIENT
3. DOCTOR and PATIENT
[b] FILIAL PRIVILEGE
4. PRIEST and PENITENT and
A descendant cannot be compelled to testify in a criminal
5. STATE SECRETS.
case against his parent or ascendant.

[c] SURVIVOR DISQUALIFICATION RULE. PRIVILEGED COMMUNICATION, defined. -


Also called the DEAD MAN’S STATUTE A private communication made in confidence by any
What is involved here is the disqualification of a party to person to another person in the performance of any legal, moral
testify against the interest of a dead or insane person. or social duty.
A communication that is protected by law from forced
THOSE WHO CANNOT TESTIFY AND TO WHOM THE disclosure.
OBJECTION IS DIRECTED are: CONFIDENTIAL COMMUNICATION, defined. -
1. The plaintiff or claimant A communication made within a certain protective
2. The person in whose behalf the claim is being prosecuted. relationship - such as husband and wife, attorney and client or
priest and penitent – and legally protected from forced
These persons cannot testify on any ORAL disclosure.
communication or transaction made by the deceased while he is 1. HUSBAND and WIFE
still living, or by the insane before he lost his mind. This is different from MARITAL PRIVILEGE against
REASON FOR THE RULE- testifying against a spouse.
When death closed the lips of the dead, the disqualification rule The Rule forbids the disclosure by one spouse, without the
also closes the lips of the party. consent of the other, of any communication made by one to the
[d] DISQUALIFICATION BY REASON OF PRIVILEGED other during the marriage.
COMMUNICATION.
This rule is different from the disqualification of one crime committed by one against the other including the spouse’s
spouse from becoming witnesses and prohibiting them from direct descendants and ascendants.
testifying for or against each other during the existence of the
marriage. For this Privilege to Apply, it is necessary that the following
Under this Rule, EVEN AFTER THE TERMINATION OF requisites should co-exist:
THE MARRIAGE, a spouse is not free to testify on any 1. There must be a Legal Marriage. - It is required that the
confidential communication which the other has made during spouses are legally married.
the marriage. If they live together in illicit cohabitation, they are not
All confidential communications between husband and entitled to claim this privilege.
wife cannot be afterward divulged in testimony 2. The communication must be confidential and
even though the other party be no longer living. 3. Made during the marriage. –
The communication may consist of acts as well as words,
PRIVILEGED COMMUNICATIONS between HUSBAND and either oral or written as long as they are expressions intended
WIFE include: by one spouse to convey a meaning or message to the other
(a) Any kind of oral or written statement made, learned or spouse.
given in confidence during the marriage; and Question: When is a communication between husband and
(b) Exhibition of a secret disease or physical defect which is wife considered as confidential?
considered a form of silent communication.
NOTE That- Communications are confidential when they were made -
THE PRIVILEGE DOES NOT EXTEND to a third person -during and by reason of the marital relation, and include all
who overheard the communication while being made by the statements made, facts revealed and knowledge obtained.
spouses. He is free to disclose the information in court.
NOTE That- Therefore, matters which come to the knowledge of the
THE PRIVILEGE CANNOT BE INVOKED in a civil case spouse before the marriage or after the same has been
filed by one spouse against the other, or in a criminal case for a dissolved, is not privileged.
The term “COMMUNICATION” – QUESTION: Is the dying declaration given by the husband to
is not confined to audible or oral conversations between the wife privileged?
husband and wife. ANSWER: NO. The confidential nature of the
But to all facts which one spouse would not have known communication cannot be invoked if it is NOT INTENDED to be
from the other if not for their marriage. kept in confidence by the spouse who received the same.
Note that: The DYING DECLARATION by the husband as to who
Letters passing between husband and wife are covered killed him cannot be considered confidential because obviously,
by this privilege. But if they were obtained by a third person the husband in telling so to the wife, intended that the same be
surreptitiously without the addressee’s consent, they are no reported to the authorities.
longer privileged.
Case: DYING DECLARATION
HH, the husband, wrote a letter to his wife, WW, admitting to the is the declaration of a dying person made to another
latter that he was working as a drug mule for a Nigerian drug under the consciousness of an impending death.
lord. The letter was, however, seized by a team of police officers
during an illegal search and seizure. NOTE that-
Question: Is the letter seized by the police officers admissible The DISQUALIFICATION BY REASON OF MARRIAGE or
in evidence? SPOUSAL DISQUALIFICATION is not the same as the
Answer: YES. DISQUALIFICATION BY REASON OF THE MARITAL
NOTE, therefore, that – PRIVILEGE.
This privilege cannot be invoked where the information
was not intended to be kept in confidence by the spouse who FIRST- The SPOUSAL DISQUALIFICATION may be
received the same. invoked only if one of the spouses is a party to the case. While
Example: A husband was shot at close range by his their PRIVILEGED COMMUNICATION can be claimed whether
assailant, and before the husband died, he told his wife the or not one of the spouses is a party to the case
name of his killer. SECOND- The SPOUSAL PRIVILEGE applies only if the
marriage is existing at the time the testimony of the spouse is
offered, BUT that the PRIVILEGED COMMUNICATION An attorney can best prepare the case of a client if he
between them may be claimed even after the marriage has knows all the facts.
been dissolved. But a client will disclose them only if he knows that they
THIRD- The SPOUSAL PRIVILEGE constitutes a total can be kept secret.
prohibition against any testimony for or against the spouse of To promote this confidentiality, an attorney without the
the witness consent of the client, cannot divulge any information acquired
While the SPOUSAL COMMUNICATION PRIVILEGE during the relationship.
applies only to confidential communications between the
spouses SPECIFICALLY, AN ATTORNEY CANNOT TESTIFY ON:
a. Any written or oral communication made to him confidentially
In OTHER WORDS – by his client;
Even if the communication between the spouses is not b. Any legal advice or opinion he may have given to his client;
confidential, and therefore, not privileged, the spouse who is a and
party to the case can still prevent the other spouse from c. The contents of any document given him by his client.
testifying against him under the MARITAL DISQUALIFICATION d. Acts of the client, such as the demonstration of physical
RULE. strength to show that he could or could not have committed the
But even if the spouse who is a party to the case does crime, also called SILENT COMMUNICATIONS,
not object to his or her spouse testifying therein he can still
TO BE PRIVILEGED, it is not necessary that the attorney
prevent the disclosure by his spouse-witness of any confidential
is under actual contract with the client.
communication covered by the privilege.
TO BE PRIVILEGED, It is enough if the communication is
made while the client is: EITHER
ATTORNEY AND CLIENT:
Trying to retain the services of the attorney, or
In all cases where the relation of attorney and client
MERELY seeking the professional advice of the attorney
exists, all communications between a client and his legal
adviser, made for the purpose and in the course of the
employment, are regarded as privileged.
TO BE PRIVILEGED, It does not matter if, after learning NOTE also that –
of the communication or giving his opinion, the attorney later For the attorney-client privilege to apply, the attorney
declined to act as counsel of the client. must have been consulted in his professional capacity even if
no fee has been paid to him.
TO MAKE THE PRIVILEGE EFFECTIVE, the SECRETARY, NOTE that –
STENOGRAPHER and CLERK of the Attorney are also The attorney-client privilege also covers PRELIMINARY
prohibited from testifying on the same matters. COMMUNICATIONS made by the client for the purpose of
engaging the attorney’s professional services.
However, THE FOLLOWING ARE NOT CONSIDERED NOTE also that –
PRIVILEGED: The communications covered by the Attorney-Client
(a) the contract for the pay-ment of attorney’s fees, because it privilege include verbal statements and documents or papers
is not supposed to be confidential; and entrusted to the attorney.
(b) any confidential communi-cation given in furtherance of a It also includes FACTS learned by the attorney through
crime. the acts of his client. Also called as SILENT COMMUNICATION

DURATION OF THE PRIVILEGE: The Attorney-Client privilege does not apply to the
The lawyer-client privilege is permanent, and does not following:
cease although the litigation has ceased or the relation of 1. Communications which are intended to be made public;
attorney-client is terminated. 2. Communications intended to be communicated to other
Neither will the death of the client be a ground for the persons;
lawyer to disclose the confidential information he received from 3. Communications intended for an unlawful purpose;
his client. 4. Communications received from third persons not acting in
behalf of the client; and
EXCEPT: When the issue in the case is the validity of a will,
the attorney may testify on such facts as are relevant to such END OCTOBER 1, 2016 SESSION
issues.

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