The following notes are intended for exclusive use of MLQU 2009 bar reviewees. All rights reserved.
EVIDENCE Matters of judicial notice
Evidence introduced by parties
Judicial Admission
Exclusionary rule Object
Best Evidence Rule
Documentary Secondary Evidence Rule
Testimonial
Parol Evidence Rule
Admission CharacterHea Opinion Similar Testimonial DQ of and Rule Acts Rule Evidence Ru Privilege Witness Confession
BAR QUESTION (1981):
3
S is indebted to a bank. When the obligation falls due,
he fails to pay and the bank sues for collection. As part of the evidence of the bank, the accountant of S is placed on a witness stand and in the course of his examination he is asked if he in turn is also indebted to the bank. The lawyer of S interposes two objections to the question (1) that it is impertinent (2) it would therefore be improper to let him testify against himself. If you were the judge, how would you rule on the objections.
4 RULES OF EVIDENCE
Requisites for admissibility
Relevant
Competent
Exclusionary Rule Constitution
Hearsay Rule
Best Parol Evidence Evidence Rule
Disqualification Rule
NOTE: Additional requisite for admissibility for doc & object evidence: (1) authentication (2) authentication by a competent witness & (3) formal offer
EXCLUSIONARY RULES (As to competency) 5 1.
Under the Constitution & statutes
1.1. Right against self incrimination (In re: Sabio) 1.2. Right against illegal searches and seizures 1.3. Right against privacy of communication a. Editorials Privilege b. Informers Privilege c. Anti Wire Tapping Law (Torralba v. Pp.) 1.4. Confession and admission illegally obtained 1.5. Child Witness Rule
EXCLUSIONARY RULE (As to competency) 6 Rules on examination of child witness rule SEXUAL ABUSE SHIELD RULE ALSO KNOWN AS RAPE SHIELD RULE: The following are inadmissible in any criminal proceeding involving the alleged child sexual abuse: 1. Evidence offered to prove that the alleged victim engaged in other sexual behavior; 2. Evidence offered to prove the sexual predisposition of the alleged victim. Exception: evidence of specific instance 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.
EXCLUSIONARY RULES ( As to competency ) 7 2. Under the Rules of Court 2.1. Mental incapacity or immaturity (Compare with S2, R92) 2.2. Marital or Spousal Disqualification (Alvarez v. Ramirez) 2.3. Dead Mans Statute (Icard v. Masigan) 2.4. Privileged Communication 2.4.1. Husband and Wife 2.4.2. Lawyer-Client (People vs. Sandiganbayan) 2.4.3. Doctor-Patient 2.4.4. Priest-Confessant 2.4.5.Public Interest Privilege ( Neri vs. Senate: Operational Proximity Test and Presidential Communications Privilege)
BAR QUESTION (2008)
8
On August 15, 2008, Edgardo committed estafa
against Petronilo in the amount of P3M. Petronilo brought his complaint to the NBI which found that Edgardo had visited his lawyer twice, the first time on August 14, 2008 and the second on August 16, 2008; and that both visits concerned the swindling of Petronilo. During the trial of Edgardo, the RTC issued a subpoena ad testificandum to Edgardos lawyer for him to testify on the conversations during their first and second meetings. May the subpoena be quashed on the ground of privileged communication? Explain fully.
PROOF OF FACT IN LIEU OF EVIDENCE
9
Judicial notice R129
Mandatory 1. 2. 3. 4. 5. 6. 7. 8. 9.
Existence and territorial extent of states
Their symbols of nationality, political history Forms of government Laws of the nations (doctrine of processual presumption). Admiral and maritime law and their seals Philippine Constitution and history Official acts of legislative, executive and judicial departments of the Philippines Measure of time Geographical division.
Judicial admissions- R129
Presumed facts R131
3.1. Conclusive Presumptions
3.2. Disputable Presumptions
ADMISSIONS AND CONFESSIONS
(Party Admissions) 10
S26, R130: the act, declaration or omission of a party as to
relevant fact may be given in evidence Forms of Admissions
Admission by conduct Offer of compromise Admission by silence Res Inter Alios Acta Rule/ Vicarious Admissions
Admission by co-partner or agent of a party
Admission by co-conspirator Admission by privy of party
** Admission against interest vs declaration
against interest.
Bar Question (2008)
11
The mutilated cadaver of a woman was discovered near a creek. Due to
the witnesses attesting that he was the last person seen with the woman when she was alive, Carlito was arrested within five hours after the discovery of the cadaver and brought to the police station. The crime laboratory determined that the woman had been raped. While in the police custody, Carlito broke down in the presence of an assisting counsel and orally confessed to the investigator that he had raped and killed the woman, detailing the acts he had performed up to the dumping of the body near the creek. He was genuinely remorseful. During the trial, the State presented the investigator to testify on the oral confession of Carlito. Is the oral confession admissible as evidence of guilt?
CONDUCT AS EVIDENCE 12
Similar Acts Rule
Evidence that one did or did not do a certain
thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time; Exceptions: specific intent, plan, knowledge, Identity, scheme, system, habit, custom, usage and the like
BAR QUESTION (1994) 13 Through his lawyer plaintiff A sent to defendant B, through Bs counsel, a request for admission of certain facts stated therein material to the case pending between them, B did not reply at all. On appeal from an adverse decision, A assigned as error the trial courts disregard of the facts, the admission of which was the subject of his unanswered request. A contended that as his request for admission forms part of the records of the case, although not formally submitted in evidence, and the records do not show that the defendant ever replied thereto, there was a clear judicial admission by the defendant of all the material facts stated in the request, and that had the trial court considered such admissions, it would have been contrary to the findings of fact. Is the plaintiff correct?
BAR QUESTION (2003) 14 X and Y were charged of murder. Upon application of the prosecution, Y was discharged from the information to be utilized as a state witness. The prosecutor presented Y as witness but forgot to state the purpose of his testimony much less offer it in evidence. Y testified that he and X conspired to kill the victim but it was X who actually shot the victim. The testimony of Y was the only material evidence establishing the guilt of X. Y was thoroughly cross examined by the defense counsel. After the prosecution rested its case, the defense filed a motion for demurrer to evidence based on the following ground: Ys testimony is not admissible against X pursuant to the rule on res inter alios acta. Rule on the motion for demurrer.
Bar Question (2008)
15
Bembol was charged with rape. Bembols father, Ramil,
approached Artemon, the victims father, the victims father,
during the P.I. and offered P1M to Artemon to settle the case. Artemon refused the offer. a. During trial, the prosecution presented Artemon to testify on Ramils offer and thereby establish an implied admission of guilt. Is Ramils offer to settle admissible in evidence? B. During PT, Bembol personally offered to settle the case for P1M to the private prosecutor, who immediately put the offer on record in the presence of the trial judge. Is Bembols offer a judicial admission of his guilt?
Bar Question (2009)
16
Arrested in a buy-bust operation, Edmond was brought to the
police station where he was informed of his constitutional rights. During the investigation, Edmond refused to give any statement. However, the arresting officer asked Edmond to acknowledge in writing that six (6) sachets of shabu were confiscated from him. Edmond consented and also signed a receipt for the amount of P3,000.00 allegedly representing the purchase price of the shabu. At the trial, the arresting officer testified and identified the documents executed and signed by Edmond. Edmonds lawyer did not object to the testimony. After the presentation of the testimonial evidence, the prosecutor made a formal offer of evidence which included the documents signed by Edmond. Edmonds lawyer objected to the admissibility of the documents for being the fruit of the poisonous tree. Resolve the objection with reasons.
Bar Question (2009)
17
Blinded by extreme jealousy, Alberto shot his wife, Betty in the
presence of his sister, Carla. Carla brought Betty to the hospital. Outside the operating room, Carla told Domingo, a male nurse, that it was Alberto who shot Betty. Betty died while undergoing emergency surgery. At the trial of the parricide charges filed against Alberto, the prosecutor sought to present Domingo as witness, to testify on what Carla told him.
The defense counsel objected on the ground that
Domingos testimony is inadmissible for being hearsay. Rule on the
objection with reasons.
RULES ON ELECTRONIC EVIDENCE 18 What are electronic documents?
MCC Industrial Corp. v. Ssangyong Corp., 17 October 2007 (Nachura, J.) = it does not include fax transmission unless computer-generated and telexes. RA 8792 does not make the internet a medium for publishing laws, rules and regulations ( Garcillano vs. House of Rep. Comm on Public Info, 575SCRA170, 2008)
Admissibility/ Applicability
Same as under the Rules of Court (Sec. 2, Rule 1 of REE)
Authentication under REE Requisites of authentication, to present: Evidence that it had been digitally signed by the person purported to have signed the same; Evidence that other appropriate security procedures for authentication were applied to the documents Other evidence showing integrity and reliability
RULES ON ELECTRONIC EVIDENCE 19 P, a court employee sent text messages to A demanding one million
pesos in exchange for the release of L, As relative, from the National
Penitentiary. P admitted sending the text messages to A. The Investigating Officer, in finding P guilty of inefficiency and gross misconduct, considered the text messages sent by P to A.
Text messages have been classified as ephemeral electronic
communication under the REE and shall be proven by t he testimony of a person who was a party to the same or has personal knowledge thereof. Any question as to the admissibility of such messages is now moot and academic, as the respondent himself, as well as his counsel, already admitted that he was the sender of the
RULES ON ELECTRONIC EVIDENCE 20 Q:
P, a court employee sent text messages to A demanding one
million pesos in exchange for the release of L, As relative, from the National Penitentiary. P admitted sending the text messages to A. The Investigating Officer, in finding P guilty of inefficiency and gross misconduct, considered the text messages sent by P to A. A:
Text messages have been classified as ephemeral electronic
communication under the REE and shall be proven by t he testimony of a person who was a party to the same or has personal knowledge thereof.
RULES ON DNA EVIDENCE 21 Post-Conviction DNA Testing may be available without need of
prior court order, to the prosecution of any person convicted by final
and executory judgment provided that: 1. 2. 3.
A biological sample exists;
Such sample is relevant to the case; and The testing would probably result in the reversal or modification of the judgment of conviction.
DNA Testing Result
If the value of probability of paternity is less than 99.9% the results of the DNA testing shall be considered as corroborative evidence. If equivalent to 99.9% or higher, there shall be a disputable presumption of paternity.
RULES ON SMALL CLAIMS 22 No evidence shall be allowed during the hearing which was
not attached to or submitted together with the Claim,
UNLESS good cause is shown for the admission of additional evidence.
BEST EVIDENCE RULE
23
When does it apply ?
When the contents of the document is the subject of inquiry Exceptions: 1. 2. 3. 4.
Loss, destruction or unavailability
Original is in the custody or control of adverse party Original consists of numerous accounts Original is a public record
Introduction of secondary evidence,
1.
Requisites: 1.1. Proof of execution and existence 1.2. Cause of unavailability 1.3. Absence of bad faith
2.
Order of presentation 2.1 Copy of original 2.2. Recital of contents of document in some authentic document 2.3. Testimony of witness
PAROL EVIDENCE RULE 24 Statement of the rule and rationale When does it apply?
applies to contracts only (prior and contemporaneous agreement
which are deemed to have been merged in the writing conformably to the integration of the agreement rule)
applies only to contracting parties or their privies to the contract
whose interest are adverse and not to strangers. Exceptions (Provided it is put in issue in the pleadings): 1. Intrinsic ambiguity, mistake or imperfection 2. Failure of express true intent of the parties 3. Validity of written agreement 4. Terms agreed after the execution of the written agreement
HEARSAY EVIDENCE RULE
25
Statement of the rule and rationale
Exceptions and their requisites: 1. Dying declaration (Sec. 36) 2. Entries in the course of business (Sec. 43) 3. Testimony or deposition at a former proceeding (Sec.47) 4. Acts or declaration about pedigree (Sec. 39) 5. Declaration against interest (Sec. 38) 6. Family reputation or tradition regarding pedigree (Sec. 40) 7. Common reputation (sec. 41) 8. Parts of res gestae (Sec. 42) 9. Entries in official records (Sec. 44) 10. Commercial list and the like (Sec. 45) 11. Learned treatises (Sec. 46) 12. Opinion (Secs. 49 & 50) 13. Rule on DNA Evidence ** items number 1 to 5 requires death / unavailability of declarant.
EXCEPTION TO HEARSAY RULE
26
BUSINESS ENTRIES
Entries made at or near the time of the transactions to which
they refer, by a person deceased or unable to testify, who was in the position to know the facts stated therein. The entrant must have made entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. Entrant should have personal knowledge of the information he is entering. Not limited to business in the ordinary sense of the word (jueteng bookie is a business record)
EXCEPTION TO27HEARSAY RULE
DYING DECLARATION
Declarant should die
Declarant conscious of impending death Declarant relates to cause and circumstances surrounding declarants death. Declarant must otherwise be competent.
A statement which is not admissible as a dying declaration may
be admitted as part of the res gestae
EXCEPTION TO HEARSAY RULE
28
FORMER TESTIMONY OR DEPOSITION
Testimony or deposition of a witness deceased or unable to
testify, given in a former case or proceeding, judicial or administrative involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross examine the witness.
EXCEPTION TO HEARSAY RULE
29
ACT OF DECLARATION ABOUT PEDIGREE
The declaration must be about the pedigree of a relative, that is
a person related to the declarant by birth or marriage The declarants relation by birth or marriage to the relative must be preliminarily proved by independent evidence other than the declaration.
EXCEPTION TO HEARSAY RULE
30
DECLARATION AGAINST INTEREST
As distinguished from party admission which is made by a
party, a declaration against interest is made by a non-party. Against interest means against the declarants pecuniary, moral and penal interest.
EXCEPTION TO HEARSAY RULE
31
RES GESTAE things have been done
Two exceptions
Excited utterances Verbal acts Reason for exception- truth of the verbal act is irrelevant, what is impt. is that the statement gives legal significance to the equivocal act, even if the one uttering the statement did not mean it to be true.
EXCEPTION TO HEARSAY RULE
32
FAMILY REPUTATION OR TRADITION
REGARDING PEDIGREE
The witness testifying thereto must be a member, by
consanguinity or affinity of the same family as the subject; Such reputation or tradition must have existed in that family ante litem motam.
EXCEPTION TO HEARSAY RULE
33
COMMON REPUTATION
Existing previous to the controversy, respecting facts of public
or general interest more than 30 y/o or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputation.
EXCEPTION TO HEARSAY RULE
34
OFFICIAL RECORDS Entries were made by a public officer in the performance of his duties or by a person in the performance of a duty specially enjoined by law. Entrant had personal knowledge of the facts stated by him or such facts were acquired by him from reports made by persons under a legal duty to submit the same. Such entries were duly entered in a regular manner in the official records.
EXCEPTION TO HEARSAY RULE
35
LEARNED TREATISES
A published treatise, periodical or pamphlet on a subject of
history, law, science, or art is admissible as tending to prove the matter stated therein if the court takes judicial notice or a witness expert in the subject testifies that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject.
EXCEPTION TO HEARSAY RULE
36
COMMERCIAL LIST
A statement of matters of interest to person engaged in
occupation; Such statement is contained in a list, register, periodical or other published communication Said compilation is published for the use of persons engaged in that occupation It is generally used and relied upon by persons in the same occupation
OPINION RULE 37 Expert witness
Expert opinions are not ordinarily conclusive; When faced with conflicting expert opinions, courts give more weight and credence to that which is more complete, thorough and scientific (Bacalso vs Padigos 552 SCRA 185, 2008)
Ordinary witness, as to :
Handwriting Identity Sanity
Witness may also testify on his impressions of the motion, behavior, condition or appearance
BAR QUESTION (2005)
38
Dencio barged into the house of Marcela, tied her to a chair and robbed her of assorted pieces of jewelry and money. Dencio then brought Candida, Marcelas maid, to a bedroom where he raped her. Marcela could hear Candida crying and leading Huwag, maawa ka sa akin! After raping Candida, Dencio fled from the house with the loot. Candida untied Marcela and rushed to the police station about a kilometer away and told the police officer Roberto Maawa that Dencio had barged into the house of Marcela, tied the latter to a chair and robbed her of jewelry and money. Candida also related to the police that despite her please, Dencio raped her. The policemen noticed that Candida was hysterical and on the verge of collapse. Dencio was charged with robbery with rape. During the trial, Candida can no longer be located. If the police officer will testify that he noticed Candida to be hysterical and on the verge of collapse, would such testimony be considered as opinion, hence, inadmissible in evidence? Explain.
39 PRESENTATION OF EVIDENCE
GENERAL RULE: Document or object evidence to be considered must
be formally offered. The purpose must be specified. Exception: When the evidence was previously identified by the witness and is incorporated in the records. THREEFOLD PURPOSE OF OFFER OF EVIDENCE: 1. To notify the party of possible objection, and for the offeror to make necessary correction at the trial level to meet the objection. 2. To allow the trial judge to rule properly 3. To lay basis for appeal so that the appellate court can decided intelligently.
BAR QUESTION (1991)
40 Two hours after Lt. Yap of the 2nd Air Division, PAF, at the Mactan Air Base in Lapulapu City, was shot with a .45 caliber pistol, his Division commander, Brig Gen A, visited him at the Cebu Doctors Hospital in Cebu City where he was immediately brought before treatment of the gunshot wound. Lt. Yap told A that it was Jose who shot him. Forthwith, A, who is a law graduate took the initiative of taking down in long hand the statement of Lt. Yap. The latter narrated the events surrounding and categorically stated that it was Jose who shot him. Lt. Yap signed the statement in the presence of A and the attending nurse. Ten days later, Lt Yap died as a consequence of the gunshot wound. An information for murder was filed against Jose. At the trial, the above statement of Lt Yap marked as Exh X was presented and identified by A who did not, however, testify that Lt. Yap read it, or that it was read to him before Yap signed it. A, nevertheless, testified that it was Jose who shot him. The defense objected to the testimony of A and to the admission of Exh X on the ground that they are hearsay. The prosecution contended that both are exceptions to the hearsay rule as they are part of res gestae. Is the prosecution correct? If the statement cannot be admitted as part of the res gestae, may it be considered as a dying declaration?
41 PRESENTATION OF EVIDENCE When to offer evidence
Testimonial evidence- at the time the witness is called to testify
Documentary and object after the presentation of partys testimonial evidence and before he rests Objections Testimonial: 1st: When the offer is made 2nd: When an objectionable question is asked of the witness Documentary and object evidence When the document is offered in evidence
PRESENTATION OF EVIDENCE 42
AUTHENTICATION & PROOF OF DOCS
1. Classes of documents a. b.
2. 3.
Public Document (S19, R132;Pp. v. Cayabyab BC is a pub.
record) Private Document
Proof of private document
Ancient Document Rule : private document which need not be authenticated
BAR QUESTION (1990)
43
In the trial of a case on July 5, 1990, plaintiff
offered in evidence a receipt dated July 7, 1959 issued by defendant company which was found in a cabinet for receipts of payment. It is without any blemish or alteration. As no witness testified on the execution and authenticity of the document, defendant moved for the exclusion of this receipt notwithstanding that it is a private writing. Should the said motion be granted?
WEIGHT AND SUFFICIENCY OF
EVIDENCE 44
Preponderance of evidence Proof beyond reasonable doubt Substantial evidence -
