Group 7

IBANEZ
JAPOS
JARALES
JUAREZ
LAROGA
1. QUALIFICATIONS
OF WITNESSES
Q: Who are qualified to be witnesses?
All persons who:
1. can perceive and perceiving;
2. can make known their perception to others (Sec. 20, Rule 130);
3. must take either an oath or an affirmation (Sec. 1, Rule 132; Riano, Evidence: A
Restatement for the Bar, p. 245, 2009 ed.)
4. must not possess the disqualifications imposed by law or the rules (Riano,
Evidence: A Restatement for the Bar, p. 246, 2009 ed.)
NOTE: The ability to make known the perception of the witness to the court
involves two factors: (a) the ability to remember what has been perceived; and
(b) the ability to communicate the remembered perception. Consider a witness
who has taken the oath and who has personal knowledge of the event which he
is going to testify (Riano, Evidence: A Restatement for the Bar, p. 248, 2009 ed).
Q: What are the qualifications of a witness?
A prospective witness must show that he has the following abilities:
1. To Observe – the testimonial quality of perception;
2. To Remember – the testimonial quality of memory;
3. To Relate – the testimonial quality of narration; and
4. To Recognize a duty to tell the truth – the testimonial quality of sincerity.
What cannot be considered as grounds for disqualification?
1. Religious or political belief;
2. Interest in the outcome of the case; or
3. Conviction of a crime (Sec. 20).
XPN: Unless otherwise provided by law like the following:
1. Those convicted of falsification of document, perjury or false testimony is prohibited
from being witnesses to a will (Art. 821, NCC).
2. Those convicted of an offense involving moral turpitude cannot be discharged to
become a State witness (Sec. 17, Rule 119; Sec. 10, R.A. 6981).
3. Those who fall under the disqualification provided under Secs. 21-24, Rule 130.
2. CREDIBILITY V.
COMPETENCY
 COMPETENCY CREDIBILITY

The legal fitness or legal capacity of The character of the witness to be

a person to testify as a witness. believable or not.

Involves a determination of whether This goes to the truth of the

the person offered as a witness has testimony. It includes the ability of
all the qualifications prescribed by the witness to inspire belief or not.
law and is not among those
disqualified by law or by the rules of
evidence.
It is a matter of law or, in this Has nothing to do with the law or
jurisdiction, also a matter of rule. the rules it refers to the weigh and
Has a reference to the basic trustworthiness or reliability of the
qualifications of a witness as his testimony.
capacity to perceive and
communicate his perception to
others. It also includes the absence
of any of the disqualifications
imposed upon a witness.
ISSUES OF COMPETENCY DECIDED
BY THE SUPREME COURT
 Drug abuse will not render a person incompetent to testify.
While bias and drug abuse may not be grounds for barring a
witness from testifying, they may serve as grounds for
attacking the credibility of a witness.
 A Deaf-mute is not incompetent as a witness, they are
competent witness where they:
 Can understand and appreciate the sanctity of an oath;
 Can comprehend facts they are going to testify on; and
 Can communicate their ideas through a qualified interpreter
(People v. Tuangco)
 The victim is a competent witness, even if SHE COULD CONVEY
HER IDEAS ONLY THROUGH SIGNS OR BODY LANGUAGE. The
medical expert on mental health has proved that the victim
does not have hallucinations, is in touch with realities, does not
fantasize but only has the tendency to convey thoughts
through some body languages like checking the name of the
accused and looking or gazing at the accused for quite a few
times when he was seated beside three other suspected boys
in the locality. These make the victim competent as a witness as
she can convey her ideas in many forms like signs, writings and
body gestures aside from words. (People v. Tomentos)
PRESUMPTION OF COMPETENCY

 A person who takes the witness stand, as a general

rule is presumed to possess the qualifications of a
witness.
HOW QUESTIONED

 Ifa party desires to question the competence

of a witness he may do so by interposing an
objection; this objection should be made as
the facts tending to show incompetency are
discovered. If the objection is not made at
such time, it may be considered as waived.
VOIR DIRE EXAMINATION
Voir Dire Examination is an examination conducted by the
court on the competency of a witness whenever there is
an objection to the competency of the witness and is
usually made before the witness starts with his testimony.
The party objecting maybe allowed to present
evidence on his objection or the court itself may
conduct the questioning on the witness.
Voir dire literally means to speak the truth, and denotes in
American jurisprudence, preliminary examination under
oath of prospective jurors. The examination is conducted
to determine the competency or qualifications of the
witness in case it is objected to.
 Q. Do you understand why you are made to swear?
 A. Yes.
 Q. Why?
 A. To tell the truth.
 Q. And do you know what would happen to you (if you) tell a lie?
 A. You are being punished by God.
 Q. And do you know what will the Court do if you are caught
telling a lie?
 A. I will be put in prison.
 Q. So you will tell the truth in this Court?
 A. Yes, sir.
 When the court subjects the witness to voir
dire, the court reminds him or her about
the consequences of the truth. When the
court is satisfied that the influence of fear
or hope has been ruled out, then the
confession of the witness can be deemed
voluntary. In the case at bar, the
requisites of voir dire have been met.
DETERMINATION OF CREDIBILITY
 Questions concerning the credibility of a witness are best
addressed to the sound discretion of the trial court as it has the
best position to observe his demeanor and bodily movements.
 It is a settled rule that the conclusions of the trial judge
regarding their credibility command great respect and
consideration, especially when they are supported by the other
evidence on record. As said in one case:
The trial judge had the opportunity to observe the witnesses
personally and to determine by his own first-hand impressions
the credibility of their testimony as indicated by their
demeanor on the stand, the forthrightness of their
declarations, the shades of tone and word and pause
drawing the line between fact and fabrication.
People v. Aguilar
GR No. 177749 | December 17, 2007
 Trial judges enjoy the advantage of observing the
witness’ deportment and manner of testifying, her
“furtive glance, blush of conscious shame,
hesitation, flippant or sneering tone, calmness, sigh,
or the scant or full realization of an oath” – all of
which are useful aids for an accurate
determination of witness’ honesty and sincerity.
Trial judges therefore can better determine if such
witnesses are telling the truth, being in the ideal
position to weigh conflicting testimonies.
(a) DISQUALIFICATION OF A
WITNESS

WHO ARE DISQUALIFIED?

General Rule: Only those expressly covered under the
enumerations by law maybe disqualified from testifying.
TOTAL OR ABSOLUTE

The person is disqualified to testify in any

case:
 Mental incapacity or insanity.
 Mental immaturity
PARTIAL OR RELATIVE
The person is qualified to be a witness but is
disqualified to testify in certain matters:
 Marital disqualification rule [Sec. 22]
 Survivor's disqualification rule or dead man's statute
[Sec. 23]
 Marital communication rule [Sec. 24(a)]
 Attorney-client privilege [Sec. 24(b)]
 Physician-patient privilege [Sec. 24(c)]
 Priest-penitent privilege [Sec. 24(d)]
 Privilege of State secrets [Sec. 24(e)]
Exclusivity of The Grounds for
Disqualification

The grounds are limited exclusively and

restrictively to those enumerated by the
law. It excludes the operation of causes of
disability other than those mentioned in the
Rules.
CASES
Pp. v. Dominguez

“The fact of prior criminal conviction does not

suffice to automatically disqualify or discredit
a witness, the testimony of such a witness must
be assayed and scrutinized in exactly the
same way the testimony of other witnesses
must be examined for its relevance and
credibility.”
Pp. v. Entila

“It is true that in most instances, corroboration by

relatives of the accused is accorded scant
consideration in view of the truism that blood is thicker
than water. However, a witness' testimony cannot be
stripped of full faith and credit simply on account of
his relationship to the parties. Although relationship
can put the testimony of a witness in doubt, it cannot
affect credibility itself. The lower court should have
subjected the testimony of the defense witness to the
ordinary process of evaluation and accordingly
assigned to it the proper intrinsic weight.”
Northwest Airlines, Inc. v. Chiong

“The relationship of a witness with a party does not

ipso facto render him biased witness in criminal cases
where the quantum of evidence is proof beyond
reasonable doubt. There is no reason why the same
principle should not apply to a civil case where the
quantum of evidence is only preponderance of
evidence.”
B. DISQUALIFICATION BY REASON OF
MENTAL CAPACITY
OR MENTAL IMMATURITY
(Rule 130, Sec. 21)
Note: The disqualification here is TOTAL or
ABSOLUTE. These people are not qualified
from testifying because of their mental
incapacity.
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.
MENTAL INCAPACITY

 a) Those whose mental condition, at the time of their

production for examination, is such that they are incapable
of intelligently making known their perception to others;
Sec.21 (a) of Rule 130 establishes the rule that the
mental incapacity of a witness at the time of his
perception of the events subject of the testimony
does not affect his competency as long as he is
competent at the time he is produced for
examination to make known his perception to
others
Example:
A crime was committed and the only witness was an insane
person. Later on, the accused was charged and the prosecution
learned that their star witness used to be insane. During the trial,
he had recovered and was presented as the prosecution’s first
witness. Defense sought to disqualify the witness because at the time
the case happened, he was insane although now he is normal. If
you were the judge, would you disqualify the witness?

Answer: NO. He should not be disqualified. He is qualified because

the reckoning point is AT THE TIME OF HIS PRODUCTION. At the time
of his testimony. So the witness is not covered by Sec. 21.
Test of competency to testify:
Whether the individual has sufficient understanding to
appreciate the nature and obligation of an oath and
sufficient capacity to observe and describe correctly the
facts in regard to which he is called to testify.
As long as the witness can convey ideas by words or signs and give
sufficiently intelligent answers to questions propounded, he/she is a
competent witness even if he/ she is feebleminded. (People vs. De
Jesus, L-39087, April 27, 1984)
Presumption of Sanity
Mental unsoundness alone does not per se disqualify a
witness, it must be of such degree that the person’s ability
to perceive, recall, and testify are so impaired that the
witness’s testimony is worthless. (Herrera, 5, 1999 ed., p285)

Exception
If the witness is a lawful inmate of an asylum for the insane.
(Torres vs. Lopez, 48 Phil. 72.)
Mental Immaturity

a) xxx
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.
Basic requirements of a child’s
competency as a witness:
a) Capacity to distinguish right from wrong or to comprehend
the obligation of his oath;
b) Capacity to receive correct impressions;
c) Capacity to relate those facts truly to the court at the time
he is offered as a witness.
competency examination
Q: How do we know if that minor meets the standards?
A: According to books on Trial Techniques, the minor must be
subject to PRELIMINARY QOESTIONS either by the judge or
counsel. He will be asked innocent questions dealing with
everyday life.

Example questions:
 Ask him why he is in court. If he does not know why, then
everything has to be explained still to him. That he is there to
tell the truth about something. Ask him if what happen if he
lie in court. If he says that telling a lie is bad, and for that he
can go to hell-then it can be concluded that he is aware of
his obligation of telling the truth.
To be disqualified as a witness by reason
of immaturity, the following must concur:
a. The mental maturity of the witness must render him
incapable of perceiving the facts respecting which
he is examined; and
b. He is incapable of relating his perception truthfully
 the incompetence of the witness must occur at the time
he perceives the event including his incapability to relate
perceptions truthfully
Q: If an 11 year old child is called to testify on a
crime which he witnessed 10 years ago, may he
validly so?

A: YES, for as long as he can remember what took

place and can communicate these details before
the court. The reckoning point is still the time of his
production for examination.
THE RULE ON EXAMINATION OF
CHILD WITNESS
(A.M. No. 00-4-07-SC)
Effectivity: December 15, 2000
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 1).
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 (Sec 4(a)).
Presumption of Competency

Every child is presumed qualified to be a witness.

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 (Sec 6).
A party seeking a competency examination must present
proof of necessity of competency examination. The age
of the child by itself is not sufficient basis for a
competency examination (Sec. 6a)

To rebut the presumption of competence enjoyed by a

child, the burden of proof lies on the party challenging his
competence (Sec. 6b).
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 (Sec.6c).
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 (Sec 6d).
The questions asked at the competency examination
shall be:
a. Appropriate to the age and developmental level
of the child;
b. It shall not be related to the issues at trial;
c. It shall focus on the ability of the child to
remember, communicate, distinguish between
truth and falsehood, and appreciate the duty to
testify truthfully (Sec. 6e).
Before testifying, a child shall take an oath or affirmation to tell the
truth (Sec.7).

The examination of a child witness presented in a hearing or any

proceeding shall be made as follows:
1. It shall be done in open court.
2. 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.
3. 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.8).
The court may:
1. Allow the child witness to testify in a narrative form.
2. Allow leading questions in all stages of the examination of a child if the
same will further the interests of justice.
3. Permit the child to use dolls anatomically correct dolls, puppets,
drawings, mannequins, or any other demonstrative device to assist him
in his testimony.
4. Allow the child to have an item of his own choosing such as blanket,
toy or doll (emotional security item).
5. Allow the child reasonable periods of relief while undergoing
direct, cross, re-direct, and re-cross examinations as often as
necessary depending on his developmental level
6. Allow that the testimony of the child be taken in a room
outside the courtroom and be televised to the courtroom by
live-link television.
 The trauma must be of a kind which would impair the completeness
or truthfulness of the testimony of the child. (Sec. 25f, Rule on
Examination of a Child Witness)
7. Permit that a deposition be taken of the testimony of the
child and that it be recorded and preserved on videotapes.
8. Excluded the public from the court room when they do not
have a direct interest in the case. The court may also, on
motion of the accused, exclude the public from trial, except
court personnel and the counsel of the parties.
 Child Witness Ordinary witness
Only the judge is allowed to ask questions Opposing counsels are allowed to ask
to a child witness during preliminary questions during preliminary examination
examination
Leading questions are allowed Leading questions are generally not
allowed
Testimony in a narrative form is allowed Testimony in a narrative form is not
allowed
The child witness is assisted by a facilitator An ordinary witness is not assisted by a
facilitator
C. DISQUALIFICATION BY REASON OF
MARRIAGE
“SPOUSAL IMMUNITY”
(Rule 130, Sec. 22)
Note: The next three sections refer to
disqualifications which are PARTIAL OR
RELATIVE. In this case, the witness is not
insane or minor, but is barred from testifying
on certain matters.
As a general rule, during their marriage, neither the husband
nor the wife may testify for or against the other without the
consent of the affected spouse.
Purpose
To obviate perjury and to prevent domestic disunity and
unhappiness.
To preserve the marriage relations and promote domestic
peace.
Who May Object
Only the spouse-party and not the other spouse who is
offered as a witness.
The requisites of this rule are the following:
1) That the spouse for or against whom the testimony is
offered is a party to the case;
2) That the spouses are legally married (valid until
annulled);
3) Testimony is offered during the existence of marriage;
4) The case is not one of the exceptions provided in the
rule (5 Herrera, 1999 ed., p.302).
Duration of the Privilege

 It is essential that they be validly married. If not, there is no

privilege.
 It requires also existence of that valid marriage at the moment
the witness-spouse gives the testimony.
 It does not matter if the facts subject of the testimony
occurred or came to the knowledge of the witness-spouse
before the marriage as long as it is offered during the
marriage.
Illustration:
Before the marriage of W to H, she witnessed the murder of X by H but she
never reported what she witnessed to the authorities. A year after the murder,
H and W married. Barely six months after the marriage, W became a battered
wife and to get even with H, she decided to report the murder to the police.
(a) May she testify against H over the latter's objection even if the murder took
place before the marriage?
Answer: She cannot testify over the objection of H. The situation is covered by
the marital disqualification rule.
(b) Suppose a year after the marriage, the marriage is annulled, may W now
testify despite the objection of H?
Answer: She can now testify after the marriage annulled. The prohibition no
longer applies since the testimony is to be offered after, not during the
marriage.
Nature of the Prohibition
It is an absolute prohibition against the spouse's testifying to
any fact affecting the husband or the wife however the
knowledge of these facts may have been acquired.

Example:
Q: The husband is a party to the case, criminal or civil. Can the opposite
party use the wife as witness in that case whether in favor of or against
her husband?
A: NO. A spouse cannot testify in any case where the other spouse is a
party, whether for or against him or her, WITHOUT THE CONSENT OF THE
AFFECTED SPOUSE. This is the MARITAL DISQUALIFICATION RULE.
The exceptions are the following:
1) Where the testimony was made outside the marriage;
2) In a civil case by one spouse against the other; or
3) In a criminal case for a crime committed by one spouse
against the other or the latter’s direct descendant or
ascendants.
 Note: must be legally married
Civil case by one spouse against
the other
 The case must be a "civil case by one against each
other."
This contemplates the situation where one spouse is
plaintiff or petitioner and the other spouse is a
defendant or respondent.
Criminal case for a crime committed by
one spouse against the other or the
latter’s direct descendant or ascendants.
 If the wife sues the husband for fraudulently embezzling the
paraphernal funds of the former, the reason for the
prohibition in the rule ceases. The wife can now testify
against the husband.
 If the wife is sued for adultery, the husband cannot be
barred from testifying against the wife.
 When the husband raped his daughter, he had impaired
beyond repair their marriage, destroyed the conjugal
harmony. It is a crime committed against his wife, thus the
latter can testify.
Testimony where spouse accused
with others
Illustration:
Accused-appellant and his brothers were jointly accused with parricide for the
alleged killing of their own father. One of the witnesses presented by the prosecution
against all the accused was the wife of accused-appellant. May the wife testify in
the proceedings against all the accused?
In People v. Quidato, Jr. (297 SCRA 1), the Court ruled in the affirmative but,
likewise, held that the testimony of the wife in reference to her husband must be
disregarded since the husband timely objected thereto under the marital
disqualification rule. The Court explained that the disqualification is between
husband and wife, but the rule does not preclude the wife from testifying when it
involves other parties or accused. "What cannot be done directly cannot be done
indirectly."
Testimony by estranged spouse

The prohibition would cover testimony by the estranged spouse .

Exception
The disqualification does not apply where an offense directly attacks or directly and
vitally impairs the conjugal relations.
“It does not apply in the case of estranged spouses, where the marital and
domestic relations are so strained that there is no more harmony to be preserved nor
peace and tranquility which may be disturbed. Identify of interest disappears and the
consequent danger of perjury based on that identity is non-existent. Likewise, in such a
situation, the security and confidence of private life, which the law aims at protecting,
will be nothing but ideals, which through their absence, merely leave a void in the
unhappy home” (Alvarez v. Ramirez, 473 SCRA 72 [October 14, 2005] citing People v.
Castaneds, 271 SCRA 504).
Marrying the Witness

An accused can effectively "SEAL THE LIPS” of a witness by

marrying a witness. As long as a valid marriage is in existence
at the time of the trial, the witness-spouse cannot be
compelled to testify even where the crime charged is against
the witness' person, and even though the marriage was
entered into for the express purpose of suppressing the
testimony.
C. DISQUALIFICATION BY REASON
OF DEATH OR INSANITY OF
ADVERSE PARTY
Section 23, Rule 130. Rules of
Court
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.
 Applies
to civil case or a special proceeding over the estate of a
deceased or insane person
Purpose of the Rule

 To guard against the temptation to give false testimony in regard

to the transaction on the part of the surviving party and thereby
put the parties upon equal terms.
 To close the lips of the plaintiff when death has closed the lips of
the defendant, in order to remove form the plaintiff the
temptation to do falsehood and the possibility of fictitious claims
against the deceased (Tan v. Court of Appeals, 295 SCRA 247;
See also Garcia v. Vda. de Caparas, G.R. No. 180843, April 17,
2013).
The following are the elements for the application of this rule:
a. The suit is upon a claim by the plaintiff against the estate of said
deceased or person of unsound mind;
b. The defendant in the case is the executor or administrator or a
representative of the deceased or the person of unsound mind;
c. The witness is the plaintiff, or an assignor of that party, or a
person in whose behalf the case is prosecuted; and
d. The subject of the testimony is as to any matter of fact
occurring before the death of such deceased person or before
such person became of unsound mind (Sec. 23, Rule 130, Rules
of Court)
Illustration:
Mr. D approaches Mr. C, one rainy Sunday morning, to borrow
P100, 000.00 to be paid exactly a year later. Without hesitation,
Mr. C gives Mr. D the amount requested. Mr. C does not require
Mr. D to execute a promissory note. They have been very good
friends for as long as they can remember. Years ago, when Mr.
C's small business was on the verge of bankruptcy, it was the
generosity of the then wealthy Mr. D that bailed him out. Exactly
a day before the agreed date for payment, Mr. D peacefully
joins his Creator without paying the debt. What does Mr. C do?
Well, he does what every creditor would do under the
circumstances. He goes to the executor of what remains of the
estate of Mr. D, and tells him of the debt of Mr. D.
The executor will say:
"Look Sir! I am not sure if you are telling the truth.
Don't get me wrong! I am not calling you a liar but I
cannot verify the truth of your claim. Mr. D is dead.
He cannot speak. His lips are forever sealed. I would
be doing an act unfair to the memory of Mr. D if I
were to listen to you. I am sorry, I cannot pay."
What is the effect of the death of Mr. D in relation to Sec. 23 of Rule 130?
 Mr. C is rendered incompetent to testify as to the transaction he had with
Mr. D. He is incompetent because of the possibility that his claim is
fraudulent. If Mr. C were to be heard, there would be a high risk of paying
fraudulent or a fictitious claim. It is Mr. C who has the motive to lie. He is the
survivor.
 Mr. D cannot lie. He is dead. He did not survive. Worse, he cannot answer
back. He cannot disprove the claim of Mr. C. To level the playing field
between the lucky survivor and the poor deceased, our remedial law
ancestors devised a rule that would seal the lips of the survivor by declaring
him incompetent to testify on the transaction between him and the
deceased.
 The rule is definitely one that does not protect the survivor even at the risk
of not paying a just and valid claim because it is the survivor who has the
stronger reason to file a false claim. The rule is for the protection of the guy
who died. Hence, the name, Dead Man's Statute.
Scope or Application of the survivor’s disqualification (Four Parts of the Rule):
1. Disqualify the plaintiff, his assignor, or person in whose behalf the case is
prosecuted.
 This rule does not prohibit a testimony by a mere witness (disinterested witness) .

Example: A enters into a contract with B. B dies. A file a case against

the legal representative of B.

Q: Is it objectionable if A testifies on matters of fact which happened

before B died? A:YES
2. The rule protects the executor, administrator, or other representative
of the deceased, or of a person of unsound mind when he is the
defendant.
 The rule will not apply where the plaintiff is the executor or
administrator as representative of the deceased or if the plaintiff is
the person of unsound mind.
Example:
If the Executor of the estate of X sues Z to collect an unpaid debt
incurred in favor of X before the latter’s death, Z, although a survivor, is
not precluded from testifying as the transaction he previously had with X
because the case is not a claim against the estate of X but a claim by
his estate against Z.
3. The rule may be invoked in any action based upon a claim or demand
against the estate of the deceased or person of unsound mind.

4. The rule excludes testimony on any matter of fact occurring before the
death of the deceased person or the insane become of unsound mind.
 Facts favorable to the deceased are NOT prohibited.
Example:
A witness who testify on the basis of their knowledge of a transaction, not based on
their dealings with the deceased, are not barred. As the court ruled: “The dead
man’s statute does not operate to close the mouth of a witness as to any matter of
fact coming to his knowledge in any other way than through personal dealings with
the deceased person, or communication made by the deceased to the witness”
(Bordalba v. CA, 373 SCRA 555)
When Dead man's statute cannot be invoked:
1. Testimony of mere witnesses who are neither party plaintiffs, nor
their assignors, nor persons in whose behalf a case is prosecuted,
nor to a nominal party, nor to officers and stockholders of a
plaintiff corporation;

Example: B transacts with A in the presence of X. Then, A dies. If B

were to testify on any matter of fact occurring before the death of
A, B is covered because B is his (A’s) agent. But if B says that X will
testify on what happened during the transaction, then the rule will
not apply. The rule does not apply to ordinary witnesses. X, here, is
an ordinary witness.
2. If the plaintiff is the executor or administrator or other
representative of a deceased person, or the person of
unsound mind;
3. When the plaintiff is a corporation, the officers or
stockholders thereof are not disqualified.

Example: In behalf of the corporation, B is dealing with

X. X dies. The corporation now claims X’s legal representative.
B, who dealt with X on behalf of the corporation, will now
testify on this fact. Is he disqualified? NO, because of the first
exception. B, here, is not a party but a mere witness.
4. If the person or persons mentioned under the rule file a
counterclaim;
5. When the testimony refers to fraudulent transactions
committed by the persons mentioned in the rule, provided
that fraud has been clearly established by other evidence;
The reason for this: Fraud cannot be condoned. In effect, the
fraudulent act will be protected simply because you want to
protect one who is already dead. The law cannot condone
fraud in any manner.
6. When there is waiver;
 The protection may be waived by (a) failing to object to the
testimony, or (b) cross-examining the witness on the
prohibited testimony (Santos vs Santos, 366 SCRA 395), or by
(c) offering evidence to rebut the testimony.

7. When the testimony of a plaintiff refers to the non-occurrence

of a fact, because in that case, the plaintiff does not testify on the
occurrence of fact but on its non-occurrence;
8. In cadastral cases since there is neither plaintiff nor
defendant, nor in land registration cases instituted by the
decedent's representatives, as the oppositors are considered
defendants and may, therefore, testify against petitioner;

9.Testimony on the possession by witness of a written instrument

mad by the deceased, as such fact exists even after the
decedent's demise;

10. Where the deceased contracted with the plaintiff through

an agent and said agent is alive and can testify, but the
testimony of the plaintiff should be limited to acts performed by
the agent.
 e. PRIVILEGED COMMUNICATIONS
Q: Who may assert the privilege?
The holder of the privilege, authorized persons and persons to whom
privileged communication were made can assert the privilege.
Note: The disqualification applies to both civil and criminal cases except as
to the doctor-patient privilege, which is applicable only in civil cases. Unless
waived, the disqualification under Sec. 24 remains even after the various
relationships therein have ceased to exist. The privilege cannot be invoked
where confidential information are made in contemplation of death or in
furtherance or perpetuation of fraud. Unless waived the disqualification
under Sec. 24 remains even after the various relationships therein have
ceased to exist.
 Husband and wife
Q: What are the requisites for the application of this privilege?
1. There was a valid marriage;
2. The privilege is invoked with respect to a confidential communication between the spouses during the said
marriage; and
3. The spouse against whom such evidence is being offered has not given his consent to such testimony.

Q: When is the privilege inapplicable?

1. In a civil case by one against the other; or
2. In a criminal case for a crime committed by one against the other or the latter’s direct ascendants or
descendants.

Q: Are third persons who overhear the communication between the spouses bound by the privilege?
GR: Third persons who, without the knowledge of the spouses, overhear the communication are not
disqualified to testify.
XPN: When there is collusion and voluntary disclosure to a third party, that third party becomes an agent and
cannot testify.
Distinguish marital privilege from
disqualification by reason of
marriage
Disqualification by reason of marriage
 Can be invoked only if one of the spouses is a party to the action
 Applies only if the marriage is existing at the time the testimony is offered
 Constitutes a total prohibition against the spouse of the witness
Marital privilege
 Can be claimed whether or not the spouse is a party to the action
 Can be claimed even after the marriage has been dissolved
 Applies only to confidential communications between the spouses
 Attorney-client privilege
Q: What are the requisites for the application of the privilege?
1. Attorney-client relation;
2. The privilege is invoked with respect to a confidential communication between them in the
course of professional employment; and
3. The client has not given his consent to the attorney’s testimony; or if the attorney’s secretary,
stenographer or clerk is sought to be examined, that both the client and the attorney have not
given their consent. (Regalado, Vol. II, p. 749, 2008 ed.)
Q: What is the purpose of this privilege?
To encourage full disclosure by client to his attorney of all pertinent matters as to further the
administration of justice.
Q: When is the privilege inapplicable?
A: It does not apply to communications which are:
1. intended to be made public;
2. intended to be communicated to others;
3. intended for an unlawful purpose;
4. received from third persons not acting in behalf or as agents of the client; or
5. made in the presence of third parties who are strangers to the attorney-client relationship.
Q: What is the test in applying the attorney-client privilege?
A: The test is whether the communication made is with the view of obtaining from the
lawyer his professional assistance or advice regardless of the existence or absence of a
pending litigation.
Q: May a lawyer refuse to divulge the identity of his clients?
GR: Lawyers may not invoke the privilege and refuse to divulge the name or identity of
their client.
XPNs:
1. Where a strong possibility exists that revealing client’s name would implicate the client
in the very activity for which he sought the lawyer’s advice;
2. Where disclosure would open the client to civil liability; or
3. Where the prosecutors have no case against the client unless by revealing the client’s
name, the said name would furnish the only link that would form the
 Physician - patient privilege
Q: What are the requisites for the application of the privilege?
1. The action involves a civil case;
2. The relation of physician and patient existed between the person claiming the privilege or his legal
representative and the physician;
3. The advice or treatment given by him or any information was acquired by the physician while professionally
attending to the patient;
4. The information was necessary for the performance of his professional duty; and
5. The disclosure of the information would tend to blacken the reputation of the patient.
Q: What is the purpose of this privilege?
The privilege is intended to facilitate and make safe, full and confidential disclosure by patient to doctor of all
facts, circumstances, and symptoms, untrammeled by apprehension of their subsequent and enforced
disclosure and publication on the witness stand, to the end that the physician may form a correct opinion,
and be enabled safely and efficaciously to treat his patient.
Q: When is the privilege inapplicable?
It does not apply to communications which are:
1. Not given in confidence;
2. Irrelevant to the professional employment;
3. Made for an unlawful purpose;
4. Intended to be made public; or 5. Waived either by contract or law
Q: What are the pieces of information which cannot be disclosed?
1. Any advice or treat given to the client;
2. Any information acquired in attending such patient provided that the advice, treatment or
information was made or acquired in a professional capacity and was necessary to enable him
to act in that capacity; and
3. That the information sought to be disclosed would tend to blacken the reputation of the
patient. (Sec. 24c, Rule 130)
Q: Can such privilege be waived?
Yes. The waiver may be made expressly or impliedly. The waiver may be by a contract as in
medical or life insurance. When there is disclosure by the patient of the information, there is
necessarily, a waiver. When the patient answers questions on cross on matters which are
supposedly privileged, the waiver also exists. There could also be waiver by operation of law
(sec4, Rule 28 of the Rules of Court) (Riano, p.292).
Is it necessary that the professional relationship exists between the doctor and patient when the
communication was made?
Yes. It is essential that while the doctor was attending to the patient for curative, preventive or
palliative treatment. It is not however necessary that the relationship was created through the
voluntary act of the patient. The treatment may have been given at the behest of another.
(Ibid.)
 Priest-penitent privilege
What are the requisites for its application?
1. The confession must have been made to the priest in his professional character according to the
discipline of the church to which the priest or minister belongs [Sec. 24(d)]; and
2. Communications made must be confidential and must be penitential in character e.g., under
the seal of the confessional (Regalado, Vol. II, p. 752, 2008 ed.)
What is the purpose of this privilege?
To allow and encourage individuals to fulfill their religious, emotional or other needs by protecting
confidential disclosures to religious practitioners.
When is the privilege inapplicable?
When the communication is not penitential in character as when what is divulged is the plan to
commit a crime.
What is the rationale behind the privilege granted to communications between minister/priest and
the penitent?
It is to allow and encourage individuals to fulfill their religious, emotional or other needs by
protecting confidential disclosures to religious practitioners (Peralta, Jr., p. 220, 2005 ed.).
Public officer’s privilege
communication
Q: What are the requisites for its application?
1. The communication must have been made to a public officer;
2. The communication was given to the public officer in official confidence; and
3. The public interest would suffer by the disclosure of the communication.
(Regalado, Vol. II, p. 752, 2008 ed.)
Q: When is the privilege inapplicable?
1. is useful evidence to vindicate the innocence of an accused;
2. lessen the risk of false testimony;
3. is essential to the proper disposition of the litigation; or
4. the benefit to be gained by a correct disposition of the litigation was greater
than any injury which could inure to the relation by a disclosure of the information.
(Francisco, p. 171, 1992 ed.)
Q: Is the privilege applicable to public officer in general?
No. The privilege only applies to communications to such officers who have a responsibility
or duty to investigate or to prevent public wrongs, and not to officials in general
(Francisco, p. 139, 1992 ed.).
Note: The court, not the witness, will determine the necessity of regarding the
communication as privileged (Francisco, p. 143, 1992 ed.)

Q: What is the concept of executive privilege?

Certain types of information like military, diplomatic and other national security matters
may be withheld from the public.
 Parental-filial privilege

May a descendant be compelled to testify against his parents in a criminal case?

No, because no person may be compelled to testify against his parents, other direct
ascendants, children or other direct descendants (Sec. 25).
A descendant may not be compelled to testify against his parents notwithstanding Article
215 of the Family Code which allows the compulsion of a descendant to testify against his
parents when such testimony is indispensable in a crime against the descendant or by one
against the other. Any conflict between the two provisions should be resolved in favor of
the Rules of Court provision because although found in a substantive law, the aforesaid
Family Code provision is essentially procedural in nature.
However…………………………
caveat
Article 215 of the Family Code provides that “No descendant shall be
compelled, in a criminal case, to testify against his parents and
grandparents, except when such testimony is indispensable in a crime
against the descendant or by one against the other”. The parental and
filial privilege under the Rules of Court notwithstanding, it is submitted
that the Family Code is superior to the former since a procedural rule of
evidence cannot impair a substantive law. Hence, a descendant may
be compelled to testify against his parents if such testimony is
indispensable in a crime against the descendant or by one against the
other.
 Other privileged communication not
found in the rules
 1. 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 [Sec. 5 (e), Rule on Examination of a Child Witness];
 2. Editors, publisher, or duly accredited reporter of any newspaper, magazine or periodical of general
circulation cannot be compelled to reveal the source of any news report or any information given to him in
confidence, unless a court or a House or a committee of Congress finds that such revelation is demanded for
State security (R.A. 1477);
 3. Voters may not be compelled to disclose for whom they voted;
 4. Trade secrets cannot be disclosed although this is not absolute as the court may compel disclosure where it
is indispensable for doing justice (Francisco, p. 335, 1992 ed.);
 5. Bank deposits are absolutely confidential in nature except upon written permission of the depositor, or in
cases of impeachment, or upon lawful order of a competent court (R.A. 1405; Francisco, p. 335, 1992 ed.);
 6. Conciliators and similar officials shall not testify in any court or body regarding any matter taken up at the
conciliation proceedings conducted by them (Art. 233, Labor Code); and
 7. Informers, for the protection of their identity, cannot be compelled to testify by the prosecutor when their
testimony would merely be cumulative and corroborative (Herrera, Vol. V, p. 353, 1999 ed.).
Examination of a
Witness
 The examination of witnesses presented in a trial or
hearing shall be done in open court and under oath or
affirmation. The answers of the witness shall be given
orally except if: (a) the witness is incapacitated to speak,
or (b) the question call for a different mode of answer
(Sec. 1, Rule 132, Rules of Court).
 The questions propounded to the witness and his
answers thereto shall be recorded. Also to be recorded
are the statements made by the judge, any of the
parties or any of the counsels. In fact, the entire
proceedings of the trial or hearing must be recorded.
The recording may be shorthand, stenotype, or any
means of recording found suitable by the court (Sec. 2,
Rule 132, Rules of Court).
 The official stenographer, stenotypist, or recorder shall
make a transcript of the record of the proceedings and
shall be certified by him as correct. The transcript so
prepared and certified shall be deemed prima facie a
correct statement of such proceedings (Sec. 2, Rule 132,
Rules of Court).
 Open court examination;
exceptions
 Sec. 1 of Rule 132 provides for the examination of the
witness in open court and, unless the question call for a
different mode, the answer of the witness shall be given
orally. This method allows the court the opportunity to
observe the demeanor of the witness and also allows the
adverse party to cross-examine the witness.
 There are testimonies that need not be given in open
court. Under the Rules on Summary Procedure, the
affidavits of the parties shall constitute the direct
testimonies of the witnesses who executed the same
(Sec. 15, Rule on Summary Procedure).
 Depositions need not be taken in open court. They may
be taken before a notary public (Sec. 10, Rule 23, Rules
of Court) or before any person authorized to administer
oaths (Sec. 14, Rule 23, Rules of Court).
 In a criminal case, either party may utilize the testimony
of a witness who is deceased, out of the country, or one
who is unavailable or unable to testify despite the
exercise of due diligence, even if the testimony was one
used in another case or proceeding, judicial or
administrative, provided the said proceeding involved
the same parties and subject matter and the adverse
party had the opportunity to cross-examine the witness
(Sec. 1[f], Rule 115, Rules of Court)
 Under the Judicial Affidavit Rule, the judicial affidavit
shall take the place of direct testimonies of witnesses
(Sec. 2, Judicial Affidavit Rule)
 Oath or affirmation

 The witness must take either an oath or an affirmation

(sec.1, Rule 132, Rules of Court) but the option to do so is
given to the witness and not to the court.
 An oath is an outward pledge made under an
immediate sense of responsibility to God, or a solemn
appeal to the Supreme Being in attestation of the truth
of some statement (Black’s Law Dictionary, 5th ed.,
p.966). An affirmation is a substitute for an oath, and is a
solemn and formal declaration that the witness will tell
the truth (ibid., 55)
 Where the witness refuses to take an oath or give any
affirmation, the testimony may be barred (U.S. vs Fowler,
605 F. 2d 181 [5th Cir. 1979]).
 The rule requiring an oath or an affirmation is satisfied
when the court takes pains to impress on the witness the
need to testify truthfully and the witness says he would
(U.S. vs Salim, 855 F. 2d 944 [2nd Cir. 1988]). No special
wording is necessary for an affirmation, provided that
the language used is designed to impress upon the
individual the duty to tell the truth (U.S. vs Kalaydjian, 784.
2d 53 [2d Cir. 1986]).
Rights and obligations of a witness

 A witness must answer questions, although his answer

may tend to establish a claim against him. However, it is
the right of a witness:
 (1) To be protected from irrelevant, improper, or insulting
questions, and from harsh or insulting demeanor;
 (2) Not to be detained longer than the interests of justice
require;
 (3) Not to be examined except only as to matters
pertinent to the issue;
 (4) Not to give an answer which will tend to subject him
to a penalty for an offense unless otherwise provided by
law; or
 (5) Not to give an answer which will tend to degrade his
reputation, unless it to be the very fact at issue or to a
fact from which the fact in issue would be presumed. But
a witness must answer to the fact of his previous final
conviction for an offense. (3a, 19a)
 *Note: Under R.A. 6981 (Witness Protection, Security, and
Benefit Act), a witness admitted into the witness
protection program cannot refuse to testify or give
evidence or produce books, documents, records or
writings necessary for the prosecution of the offense or
offenses for which he has been admitted on the ground
of the right against self incrimination (Sec. 14, R.A. 6981)
Bagadiong vs Gonzales,
94 SCRA 906
 If the witness is the accused, he may totally
refuse to take the stand. A mere witness,
however, cannot altogether refuse to take the
stand. Before he refuses to answer, he must wait
for the incriminating question.
 ONE-DAY EXAMINATION OF
WITNESS RULE [AM 03-1-09-SC]
 A witness has to be fully examined in one (1) day only. It
shall be strictly adhered to subject to the courts'
discretion during trial on whether or not to extend the
direct and/or cross-examination for justifiable reasons.
Examination of a child witness; live
link television
 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. (Sec. 8, Rule
on Examination of a Child Witness).
 The examination in this provision does not refer to the
competency examination of the child pursuant to Sec. 6
of the same rule, but to a situation where the child is
already testifying in court.
 When the child is testifying, the court may exclude the
public and persons who do not have a direct interest in
the case, including members of the press. The order shall
be made if the court determined on the record that 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.
 The court may also 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. 23, ibid.).
 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 (Sec. 9 (a), ibid.). 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 (Sec. 9(b), ibid)
 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 (Sec. 10, ibid).
 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.
 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.
 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. 11, ibid.)
 An application may be made for the testimony of the
child to be taken in a room outside the courtroom and
be televised to the courtroom by live-link television. The
application may be made by the prosecutor, counsel or
guardian ad litem at least five (5) days before the trial
date (Sec. 25[a], ibid).
 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 (Sec. 25[f], ibid).
 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 (Sec. 25[g][3], ibid).
 To shield the child from the accused, the court may
allow the child to testify in such a manner that the child
cannot see the accused by testifying through one-way
mirrors, and other devices (Sec. 26, ibid).
 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. (Sec.
31[a], ibid).
 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 (Sec. 31[d],
ibid).
 Order of examination

 The order in which the individual witness may be

examined is as follows;
 (a)Direct examination by the proponent;
 (b)Cross-examination by the opponent;
 (c)Re-direct examination by the proponent;
 (d)Re-cross-examination by the opponent. (Sec. 4, Rule
132, Rules of Court)
 Direct examination. — Direct examination is the
examination-in-chief of a witness by the party
presenting him on the facts relevant to the issue.
(Sec. 5, ibid)
 It is a procedure for obtaining information from
one’s own witness in an orderly fashion.
 For the benefit of the one who called the
witness.
 Subject to the rules of the Judicial Affidavit Rule.
 Cross-examination; its purpose and extent. —
Upon the termination of the direct examination,
the witness may be cross-examined by the
adverse party as to many matters stated in the
direct examination, or connected therewith,
with sufficient fullness and freedom to test his
accuracy and truthfulness and freedom from
interest or bias, or the reverse, and to elicit all
important facts bearing upon the issue. (Sec. 6,
ibid)
 Where the witness is an unwilling or a hostile
witness as so declared by the court, he may be
cross-examined only as to the subject matter of
his examination in chief (Sec. 12, ibid)
 The same limited scope of cross-examination is
imposed upon the cross-examiner where the
witness examines is an accused. (Sec. 1(d), Rule
115, Rules of Court)
 Re-direct examination; its purpose and extent. — After
the cross-examination of the witness has been
concluded, he may be re-examined by the party calling
him, to explain or supplement his answers given during
the cross-examination. On re-direct-examination,
questions on matters not dealt with during the cross-
examination, may be allowed by the court in its
discretion. (Sec. 7, ibid)
 Re-cross-examination. — Upon the conclusion of the re-
direct examination, the adverse party may re-cross-
examine the witness on matters stated in his re-direct
examination, and also on such other matters as may be
allowed by the court in its discretion. (Sec. 8, ibid)
People vs Señeres
99 SCRA 92
 If the witness dies before his cross-examination is
over, his testimony on the direct examination
may be stricken out only with respect to the
testimony not covered by the cross-examination.
 Death or absence of the witness will not cause
the testimony to be stricken out if they were
sufficiently cross-examined.
De la Paz vs IAC
154 SCRA 65
 If the witness was not cross-examined because
of causes attributable to the cross-examining
party, and the witness had always made himself
available for cross-examination, the direct
testimony of the witness shall remain in the
record and cannot be ordered stricken off. The
cross-examiner is deemed to have waived his
right to cross-examine the witness.
Recalling the witness

 If a witness has been examined by both sides,

the witness cannot be recalled without leave of
court.
 Recalling a witness is a matter of judicial
discretion. (Sec. 9, Rule 132, Rules of Court)
Leading and misleading questions

 A leading question is one that is framed in such a way

that the question indicates to the witness the answer
desired by the party asking the question. In the words of
Sec. 10 or Rule 132, it is a question “which suggests to the
witness the answer which the examining party desires.”
 Leading questions are not appropriate in direct and re-
direct examinations particularly when the witness is
asked to testify about a major element of the cause of
action or defense. Leading questions are allowed in
cross and re-cross examination.
 When leading questions are
allowed in direct examination:
 On preliminary matters
 When the witness is ignorant, or a child of tender
years, or is feeble minded or a deaf mute and there is
difficulty in getting direct and intelligible answers from
such witnesses
 When the witness is a hostile witness
 When a witness is an adverse party, or an officer,
director, or managing agent of a corporation,
partnership, or association which is an adverse party
(Sec. 10, Rule 132, Rules of Court).
 *Note: Sec. 20 of the Rule on Examination of Child
Witnesses has modified Sec. 10, Rule 132 of the Rules of
Court, in so far that it allows leading questions in all
stages of examination of a child under the condition
that it will further the interest of justice.
Example:
 The fact situation is a robbery case. The accused claims
innocence and that a couple of hours after the alleged
robbery, he is arrested by the police while in the park with his
children. The defense counsel calls the accused to the stand.
 Q: What were you doing in the park?
 A: I was taking a stroll with my two adolescent children.
 Q: While you were in the park with your children, the police
officers arrived to arrest you, is that true?
 The question is leading. It suggests the next event which the
witness should testify to. The attorney could convert the
question into a non-leading one by taking the suggestive
element out of the question. Thus, “What happened if any,
while you and your children were at the park?”
 Misleading questions

 A misleading question is one which assumes as true a

fact not yet testified to by the witness, or contrary to that
which he has previously stated. It is not allowed (Sec. 10,
Rule 132, Rules of Court) in any type of examination.
Example:
 Counsel: “You testified that you and the accused were
in a car bound for Baguio City.How fast were you
driving?”
 This question is objectionable as misleading where there
was no previous testimony from the witness that he was
driving the car. The question assumes a fact not yet in
evidence.
 IMPEACHMENT OF A WITNESS
Impeachment is basically a technique
employed usually as part of the cross-
examination to discredit a witness by attacking his
credibility.

Destroying credibility is vital because it is linked

with a witness’ ability and willingness to tell the
truth.
 To “impeach” a witness means to discredit the
witness’s testimony.
 Impeaching a witness is a fundamental right on
cross-examination. Since the witness’s credibility
is always in issue, it is never beyond the
permissible scope of cross-examination (Gilbert,
Evidence, Sec. 991).
Guidepost in Impeaching a Witness:
1. Theimpeachment of a witness is to be done by the
party against whom the witness is called (Sec. 11, Rule
132, Rules of Court);

2. Asa rule, the party producing the witness is

barred from impeaching his own witness (Sec. 12,
ibid.);
 Exceptions:
(A.) If the witness is unwilling or hostile, the party calling him may
be allowed by the court to impeach the witness. Whether or not
a witness is hostile, is addressed to judicial evaluation and the
declaration shall be made only if the court is satisfied that the
witness possesses an interest adverse to the party calling him or
there is adequate showing that the reluctance of the witness is
unjustified, or that he misled the party in calling him as a witness
(Sec. 12, ibid.).

(B.) A party may also be allowed to impeach his own witness

when said witness is an adverse party or is an officer, director, or
managing agent of a corporation, partnership or association
which is an adverse party (Sec.12, ibid.).
3. It is also improper for the party calling him the witness to
present evidence of the good character of his own
witnesses. The same is allowed only if the character of the
witness has been impeached (Sec. 14, ibid.).

Thus, evidence of the good character of the witness is

allowed only to rebut the evidence offered to impeach
the witness’s character. If he has been impeached, then
he can be rehabilitated by evidence of his good
character.
(D) METHODS OF IMPEACHING OF
ADVERSE PARTY’S WITNESS
(Sec. 11, Rule 132, Rules of Court)
 Section 11, Rule 132 , Rules of Court

Section 11. Impeachment of adverse party's witness. — A

witness may be impeached by the party against whom he was
called, by contradictory evidence, by evidence that his
general reputation for truth, honesty, or integrity is bad, or by
evidence that he has made at other times statements
inconsistent with his present testimony, but not by evidence of
particular wrongful acts, except that it may be shown by the
examination of the witness, or the record of the judgment, that
he has been convicted of an offense.
Under the above rule, a witness may be impeached
through the following modes:
 (A) By contradictory evidence
 (B) By evidence that his general reputation for truth,
honesty or integrity is bad; or
 (C) By evidence that he has made at other times
statements inconsistent with his present testimony.
Other Modes of Impeachment aside from Section 11:
 By involving him during cross-examination in
contradiction;
 By showing the impossibility or improbability of his
testimony;
 By proving action or conduct of the witness
inconsistent with his testimony e.g. Failure to make
outcry in Rape case; and
 By showing bias, interest or hostile feeling against the
adverse party.
(a.) By contradictory evidence
Fairness
demands that the impeaching matter be raised in
the cross-examination of the witness sought to be
impeached by allowing him to admit or deny a matter to
be used as the basis for impeachment by contradictory
evidence.
Normally, the basis of this mode of impeachment is a
declaration made by the witness in his direct testimony.
This mode of impeachment may also be used to
contradict conclusions made by expert witnesses during
their testimonies.
 When a witness whose attention has been called during
cross-examination to an alleged contradictory statement,
denies the same, another witness may be asked the direct
question whether the particular words denied were in fact
used by the former witnesses (5 Jones Sec. 23:30).
 The content of a witness’s testimony may be rebutted by
proof of facts contrary thereto. Such rebuttal evidence
may discredit only a portion of the witness’s testimony and
does not necessarily affect her credibility as a witness per
se. (Gilbert, Evidence, Sec. 995).
 Themethod of impeachment raises no evidentiary
problems as long as the contradictory evidence is
relevant to the issues in the case (Gilbert,
Evidence, Sec. 997).

A witness cannot be impeached by contradictory

evidence on collateral matters, unless said matters
are relevant to the issue or tend in some way to
prove any issue of fact under inquiry (4 Jones, p.
129).
A witness’ s entire testimony may be discredited
because her credibility as a witness is suspect. The
facts that the law recognizes as sufficient to attack
credibility are as follows: (1) demonstrating poor
character for truthfulness; (b) establishing bias or
interest; and (c) establishing prior inconsistent
statements. ( supra, Secs. 1001-1002).
 (b.) By evidence that his general reputation for truth, honesty or
integrity is bad

When a witness testifies, he puts his credibility at issue because the weight of his
testimony depends upon his credibility. One way to impair his credibility is by
showing a not so pleasing reputation. Hence, the prevailing rule allows his
impeachment by evidence that he has a bad general reputation.

Evidence of a bad reputation for the purpose of impeachment should refer only
to the following specific aspects: (a) for truth; (b) for honesty; or (c) for integrity (
Sec.11, Rule 132, Rules of Court). These are aspects of a person’s reputation that
are relevant to his credibility.

It
should be noted that Sec. 11 does not allow impeachment by evidence of
bad character but by bad reputation.
 This
mode of impeachment is a direct attack
upon the general credibility of a witness.

 Preliminarily,it is necessary to show that the

impeaching witness knows the general character
of the person to be impeached or his reputation
for truth and veracity in the community in which
he has resided, or in the society in which he
moves. ( 5 Jones 207).
In a catena of cases, “Character” is made up of the things
an individual actually is and does, whereas “reputation” is
what people think an individual is and what they say about
him.

Be it noted too that the party calling a witness, cannot

initiate proof of his good character.

A witness is presumed to be truthful and of good character,

the party presenting him, therefore, does not have to prove he
is good because he is presumed to be one.
Section14. Evidence of good character of witness. — Evidence of the
good character of a witness is not admissible until such character has been
impeached. (Rule 132, Rules of Court)

The rule that bars evidence of the good character of the witness, who has not yet
been impeached, has reference only to a mere witness. It does not refer to an
accused in a criminal case. In a criminal case, the accused may prove his good
moral character relevant to the offense charged even before his character is
attacked. (Sec. 51 [a][1], Rule 130, Rules of Court).
(c.) By evidence that he has made at other times
statements inconsistent with his present testimony

Section 13. How witness impeached by evidence of

inconsistent statements. — Before a witness can be
impeached by evidence that he has made at other times
statements inconsistent with his present testimony, the
statements must be related to him, with the circumstances of
the times and places and the persons present, and he must
be asked whether he made such statements, and if so,
allowed to explain them. If the statements be in writing they
must be shown to the witness before any question is put to
him concerning them(Rule 132,Rules of Court).
 The statement to be contradicted must be related
to material facts and should tend to disprove the
case of the party by whom the witness is called (US
vs. Lasada, 18 Phil.90; 58 Am Jr 45). Immaterial
discrepancies or differences in the statements or
witnesses do not affect their credibility ( People vs
Olfindo, 47 Phil.1).
 The process of impeachment may be employed in two
different stages.
 First, the facts discrediting the witness or his testimony
may be elicited from the witness himself upon cross-
examination.
 Second, the facts discrediting the witness are proved by
extrinsic evidence, i.e., the adverse party in rebuttal
proves by another witness or documentary evidence,
the facts discrediting the testimony of the witnesses
under attack. (supra)
Impeachment by prior inconsistent statement is the most commonly used
method because of its simplicity and the impact it makes when properly
used.

Prior inconsistent statements are statements made by a witness on an

earlier occasion which contradict the statements he makes during the
trial.

To effectively impeach a witness by prior inconsistent statements requires

laying the proper foundation, commonly referred as “laying the
predicate”, for the impeachment to prosper.


The underlying purpose for laying the predicate is to allow
the witness to admit or deny the prior statement and afford
him an opportunity to explain the same.

Non-compliance with the foundational elements for this

mode of impeachment will be a ground for an objection
based on “improper impeachment.”
 The requirement for “laying the foundation” aims:
(1) to avoid unfair surprise to the adversary; (2) to
save time, as an admission by the witness may take
the extrinsic proof unnecessary; and (3) to give the
witness, infairness to him, a chance to explain the
discrepancy (Cleary, 72; People vs. Rainford).
 The impeachment process is not complete where the
witness is not given an opportunity to explain the
contradictory statements (People vs Resabal).
 A witness cannot be impeached for allegedly making
inconsistent statements in Court and before police
authorities where the alleged statement before the
police was neither offered in evidence nor shown to the
witness so she can explain the discrepancies (People vs
Molo, 88 SCRA 22 (1979).
Ifthe statements be in writing, the reading of the prior inconsistent
statement must be verbatim, not a mere summary.

InPeople v. De Guzman, 288 SCRA 346, 354), it settled the issue that the
mere presentation of the prior declarations of the witness without the
same having been read to him while testifying in court is insufficient for the
desired impeachment of his testimony, if he was not given the ample
opportunity to explain the supposed discrepancy.

Thisrule is founded, not only upon common sense, but is essential to

protect the character of the witness.
Judicial Affidavit Rule (A.M. 12-8-8-
SC)
 The most basic reason for the adoption of the Rule is to
decongest the courts of cases and to reduce delays in
the disposition of cases. Due to these delays, the
Supreme Court declares in the “whereas clause” of the
Rule, that “few foreign businessmen make long-term
investments in the Philippines because its courts are
unable to provide ample and speedy protection to their
investments, keeping its people poor.”
 The “whereas clause” of the Judicial Affidavit Rules
likewise affirms that “case congestion and delays plague
most courts in cities, given the huge volume of cases
filed each year, and the slow cumbersome adversarial
system that the judiciary has in place.” The Rule also
recognizes that “about 40% of criminal cases are
dismissed annually owing to the fact that complainants
simply give up coming to court after repeated
postponements.”
 Effectivity of the J.A.R.

 By the terms of the Rule, the Judicial Affidavit Rule took

effect on January 1, 2013 following its publication in two
newspapers of general circulation not later than
September 15, 2012 (Sec. 12, J.A.R. ).
Scope of the Judicial Affidavit Rule

 The Rule shall apply to all (a) actions, (b) proceedings, or

(c) incidents requiring the reception of evidence (Sec. 1,
J.A.R.).
 The Rule, in effect, applies to all courts, other than the
Supreme Court. It also applies to certain non-judicial bodies.
The Rule specifies the following courts and bodies:
 Metropolitan Trial Courts, Municipal Trial Courts in Cities,
Municipal Trial Courts, Municipal Circuit Trial Courts, and the
Shari’a Circuit Courts, but shall not apply to small claims
cases;
 Regional Trial Courts and Shari’a District Courts;
 Sandiganbayan, Court of Tax Appeals, Court of Appeals and
Shari’a Appellate Courts;
 Investigating officers and bodies authorized by the Supreme
Court to receive evidence, including the Integrated Bar of the
Philippines; and
 Special courts and quasi-judicial bodies, whose rules of
procedure are subject to disapproval of the Supreme Court
(Sec. 1, J.A.R.).
Significance of the use of a judicial
affidavit; exhibits
 The judicial affidavit shall take the place of direct
testimonies of witnesses (Sec. 2 [a][1] J.A.R.). The rule,
therefore, modifies the existing practice in the conduct
of a trial and reception of evidence by doing away with
the usual oral examination of a witness in a direct
examination.
 To be attached to the judicial affidavit are the
documentary or object evidence of the parties which
shall be marked as Exhibits A,B,C and so on in the case
of the complainant or plaintiff. In the case of the
respondent or the defendant, the evidence shall be
marked as Exhibits 1,2,3, and so on. (Sec. 2 [a][2], ibid)
 The original document or object evidence need not be
attached to the judicial affidavit. The party or witness
may keep the same in his possession after the exhibit has
been identified, marked as an exhibit, and
authenticated. He must, however, warrant in his judicial
affidavit that the copy or reproduction attached is a
faithful copy or reproduction of the original (Sec. 2[b],
ibid).
 Aside from the above requirement, the party or witness is
required to bring the original document or object
evidence for comparison with the attached copy,
reproduction, or pictures, during the preliminary
conference. In case of failure to bring the originals for
comparison, the attached copy, reproduction, or
pictures shall not be admitted. (Ibid)
Applicability of the Rule to criminal
cases
 The Rule applies to criminal cases where the maximum
of the imposable penalty does not exceed six years
(Sec. 9[1], Judicial Affidavit Rule). In other cases, the use
of the judicial affidavits will now depend on the
accused. The Rule will apply, irrespective of the penalty
involved, where the accused agrees to the use of
judicial affidavits (Sec. 9[2], ibid)
 With respect to the civil aspect of the criminal action,
the Rule shall apply, irrespective of the penalty involved
(Sec. 9[3], ibid).
Contents of the judicial affidavit
 the language known to the witness.
 if not in English or Filipino, accompanied by a translation
in English or Filipino.
 The name, age, residence or business address, and
occupation of the witness
 The name and address of the lawyer who conducts or
supervises the examination of the witness and the place
where the examination is being held
 A statement that the witness is answering the questions
asked of him, fully conscious that he does so under oath,
and that he may face criminal liability for false testimony
or perjury
 Questions asked of the witness and his corresponding
answers, consecutively numbered, that:
 (1) Show the circumstances under which the witness
acquired the facts upon which he testifies;
 (2) Elicit from him those facts which are relevant to the
issues that the case presents; and
 (3) Identify the attached documentary and object
evidence and establish their authenticity in accordance
with the Rules of Court;
 (e) The signature of the witness over his printed name;
and
 (f) A jurat with the signature of the notary public who
administers the oath or an officer who is authorized by
law to administer the same. (Sec. 3, Judicial Affidavit
Rule).
Effect of non-compliance with the
content requirements of Sec. 3 of the
Rule:
 A judicial affidavit which does not conform to the
content requirements of Sec. 3 of the judicial affidavit
rule shall not be admitted by the court in evidence (Sec.
10[c], ibid).
 Not absolutely bar the submission of a complaint
replacement judicial affidavit as long as the
replacement shall be submitted before the hearing or
trial, and provided further that the following requisites
are met: (The same remedy applies for late submissions)
 The submission shall be allowed only once;
 The delay is for a valid reason;
 The delay would not unduly prejudice the opposing party;
and
 The public or private counsel responsible for the preparation
and submission of the affidavit pays a fine of not less than
1,000.00 php no more than 5,000.00 php at the discretion of
the court (Sec. 10[a], ibid)
Filing of service of the judicial affidavit
and exhibits; modes of service
 The parties shall file with the court and serve on the adverse party,
personally or by licensed courier service, not later than five days
before pre-trial or preliminary conference or the scheduled
hearing with respect to motions and incidents. (Sec. 2[a], Judicial
Affidavit Rule).
 In criminal cases, the prosecution shall submit the judicial
affidavits of its witnesses not later than five days before the pre-
trial, serving copies if the same upon the accused. The
complainant or public prosecutor shall attach to the affidavits
such documentary or object evidence as he may have, marking
them as Exhibits A, B, C, and so on (Sec. 9[b], ibid).
 No further judicial affidavit, documentary, or object
evidence shall be admitted at the trial. This means that
even before the trial, the prosecution has to lay down on
the table, all its evidence- testimonial, documentary, and
object.
 Since the accused is already aware of the evidence of the
prosecution, he has the options to submit or not to submit
his judicial affidavits. If the accused desires to be heard on
his defense after receipt of the judicial affidavits of the
prosecution, he shall have the option to submit his judicial
affidavit as well as those of his witnesses to the court within
ten days
 These affidavits shall serve as direct testimonies of the
accused and his witnesses when they appear before the
court to testify (Sec. 9[c], ibid).
Effects of failure to submit the judicial
affidavits and exhibits on time
 (a) A party who fails to submit the required judicial
affidavits and exhibits on time shall be deemed to have
waived their submission (Sec. 10)
 The court may, however, allow only once the late
submission of the same provided, the delay is for a valid
reason, would not unduly prejudice the opposing party,
and the defaulting party pays a fine of not less than P
1,000.00 nor more than P 5,000.00 at the discretion of the
court.
 The court shall not consider the affidavit of any witness
who fails to appear at the scheduled hearing of the
case as required. Counsel who fails to appear without
valid cause despite notice shall be deemed to have
waived his client's right to confront by cross-examination
the witnesses there present.
 The court shall not admit as evidence judicial affidavits
that do not conform to the content requirements of
Section 3 and the attestation requirement of Section 4
 The waiver would mean that a party who failed to
submit the judicial affidavit of a particular witness would
have no direct testimony for that witness, and the
documentary, or object evidence integrated with such
affidavit could not be identified, marked as an exhibit,
and authenticated. In effect, the exhibit could not be
offered in evidence. If the waiver extends to the required
affidavits of all the witnesses of a party because all the
judicial affidavits were not filed and served, then said
party is deemed to have not presented his evidence-in-
chief for his case.
Appearance of the witness at the
scheduled hearing:
 The submission of the judicial affidavit of the witness and
the attached exhibits does not exempt the witness from
appearing at the scheduled hearing. The rule still
requires his appearance (Sec.10[b], Judicial Affidavit
Rule).
 The appearance of the witness is necessary because the
adverse party has the right to cross-examine him. The
cross-examination shall be on his judicial affidavit and on
the attached exhibits. After the cross-examination, the
party presenting the witness may also examine him as on
re-direct. (Sec. 7, ibid)
 A postponement of the cross-examination would be
contrary to the spirit of the rule because the judicial
affidavits have been filed and served even before the
scheduled hearing.
 The questions of the court shall not be confined to mere
clarificatory questions. The Rule mandates the court to
take active part in examining the witness to (a)
determine the (i) credibility of the witness and (ii) truth of
his testimony; and (b) elicit the answers that it needs in
resolving the case (Sec. 7, ibid)
Effect of failure of a witness to appear at
the scheduled hearing; failure of counsel
to appear
 The court shall not consider the affidavit of any witness who
fails to appear at the scheduled hearing of the case as
required. Counsel who fails to appear without valid cause
despite notice shall be deemed to have waived his client's
right to confront by cross-examination the witnesses there
present. (Sec. 10[b], Judicial Affidavit Rule).
 If the affidavit is not considered, it is as if no judicial affidavit
has been executed by the absent witness. Such witness,
hence, shall be deemed as not having given a direct
testimony in the trial.
Oral offer and objections to
exhibits:
 Upon the termination of the testimony of his last witness, a
party shall immediately make an oral offer of evidence of
his documentary or object exhibits, piece by piece, in their
chronological order, stating the purpose or purposes for
which he offers the particular exhibit. (Sec. 8, Judicial
Affidavit Rule).
 After each piece of exhibit is offered, the adverse party
shall state the legal ground for his objection, if any, to its
admission, and the court shall immediately make its ruling
respecting that exhibit. (Sec. 8, Judicial Affidavit Rule).
 Since the documentary or object exhibits form part of
the judicial affidavits that describe and authenticate
them, it is sufficient that such exhibits are simply cited by
their markings during the offers, the objections, and the
rulings, dispensing with the description of each exhibit
(Sec. 8, Judicial Affidavit Rule).
 It is not necessary to describe each exhibit in the offer of
evidence. It is sufficient that such exhibits are simply
cited by their markings during the offers, the objections,
and the rulings, dispensing with the description of each
exhibit since the documentary or object exhibits form
part of the judicial affidavits that describe and
authenticate them.