Evidence TSN - Manresa 2020 - PDFCOFFEE.COM (2025)

EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

RULE 128 GENERAL PROVISIONS

Section 1. Evidence defined. — Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. Four components of the definition 1. Means of ascertainment Includes not only the procedure or manner of ascertainment but also the evidentiary fact from which the truth respecting a matter of fact may be ascertained. 2.

Sanctioned by the rules The means of ascertainment must not be prohibited by the Rules of Court. The methodology which you are supposed to prove a matter of fact in court in a manner that is actually sanctioned by the Rules.

In a judicial proceeding Contemplates an action or proceeding filed in a court of law. From this component of the definition, we can actually imply that when we talk about proceedings other than the court of law, the Rules of Evidence do not strictly apply.

The truth respecting a matter of fact Refers to an issue of fact and is both substantive (determines the facts needed to be established) and procedural (governs the manner of proving said facts). To explain that it is both an issue of fact that is both substantive and procedural, on the substantive aspect, you can find that in laws that govern the prosecution of actions. For example, what would be the elements of a cause of action? In Civil Procedure, we learn that the elements of a cause of action are right, obligation, a violation of the right and the fourth, which is normally not included in the different textbooks, which is damage. Damage is important because without damage, mahimo syang damnum absque injuria. There might be some form of injury but the law does not give you the right to sue upon it.

For example, in a contract of sale, you are provided with different sets of obligations on the part of the buyer and the seller. So, what if the seller violates one of his obligations, like the obligation to warrant the thing sold. Kintahay nag-breach sya sa iyahang implied warranty against hidden defects, that is actually provided by substantive law. Your cause of action is provided by substantive law. How do you prove it? That is the question that is answered by referring to the Rules of Evidence, because the Rules of Evidence govern the manner of proving the said facts.

July 1 | Campaner

Evidence is defined by the rules of Court and is a technical term. When it comes to technical terms, the principle that you need to remember is that it admits of no other definition than that which the law provides. Meaning, if you’re asked in the bar examinations or in any of my examinations to define evidence, there’s no other definition than that which the law provides which is Section 1, Rule 128.

FIRST EXAM

Why is evidence required?

It is required because of the presumption that the court is not aware of the veracity of the facts involved in a case. It is therefore incumbent upon the parties to prove a fact in issue through the presentation of admissible evidence. EVIDENCE PRINCIPLES IN OTHER PROVISIONS OF THE RULES Rules 128 to 133 are not the sole repositories of evidentiary rules. Some may be found elsewhere in the Rules of Court. 1.

EFFECT OF FAILURE TO FILE A REPLY WHERE AN ANSWER PLEADS AN ACTIONABLE DOCUMENT There’s a case that states that the filing of a reply before the 1997 rules of court prior to the amendments is merely optional. Why? Because all new matters alleged in the answer are deemed automatically controverted. So, a civil action can actually end its pleading stage simply by the filing of the answer, no reply is actually mandated to be filed. But if the answer pleads an actionable document, as defined under Rule 8, then case law would tell you that it is a situation where you need to file a reply because otherwise you are deemed to have admitted the genuineness and due execution of the actionable document. So that effect is actually evidentiary because it leads to an admission.

EFFECTS OF AMENDMENT OF PLEADINGS Admissions remove a fact from contention, meaning you no longer have to prove it or present any evidence with respect to the subject matter of the admission. But what happens now if the admission is deemed abrogated because the party filed an amendment to his pleading? Whether it is a matter of right or a matter of judicial discretion, what would be the effect? According to case law, the pleading would turn the admissions made in the original pleading from being a judicial admission to a mere extrajudicial admission. And we will learn later on that there is a big difference between a judicial admission and an extrajudicial admission in terms of proving them in court.

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EVIDENCE 3.

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

REQUIREMENT OF PROOF FOR CLASSES OF DAMAGES Like actual damages. In short, when you talk about actual damages, mao ni sya ang imong injury. For example, the amount you spent for hospitalization, or for repairing your damaged car, these are actual damages that would require proof of pecuniary loss. But with respect to other forms of damages (moral, exemplary, nominal and liquidated) there is no need for proof of pecuniary loss.

TORTS AND DAMAGES PRESUMPTIONS

for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. Take note, that is an evidentiary rule in the guise of a Civil Procedure provision. Why? Because it affects your ability to call witnesses. And the matter of calling of witnesses to prove your cause of action is actually one that is governed primarily by the rules on evidence. 4.

Sec. 4. Pre-trial agreements must be signed. – No agreement or admission made or entered during the pretrial conference shall be used in evidence against the accused unless reduced to writing and signed by him and his counsel.

The problem was it was not signed by the accused and his counsel. Fule was convicted before the Trial Court, but he appealed his conviction, eventually reaching the Supreme Court. The SC overturned his conviction based on the admission simply because his pre-trial agreement was not signed. EVIDENCE PRINCIPLES IN CIVIL LAW 1.

STATUTE OF FRAUDS Art. 1403 (2) Those that do not comply with the Statute of Frauds as set forth in this number. In the following cases an agreement hereafter made shall be unenforceable by action, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing, or a secondary evidence of its contents. This requires that an agreement must be in writing in order for you to enforce it, in order for you to file a case in court about it. Remember that if there is no writing or note or memorandum of the agreement between the parties, you would have a hard time proving your cause of action in court

Res Ipsa Loquitor (The thing speaks for itself)

This has an evidentiary effect. This doctrine actually places the burden of moving forward with the evidence upon the defendant to prove that he is not negligent. Because ordinarily in a case based on Art 2176 of the Civil Code, the burden is upon the plaintiff to prove that the defendant was negligent. If this doctrine actually applies, it will reverse everything, in a sense that it is now that the defendant who should prove that he was not negligent.

FULE DOCTRINE IN CRIMINAL PROCEDURE This doctrine found in case law actually led to the amendment to the rules on Criminal Procedure.

What happened in Fule was that they entered into stipulations of fact, and in fact obtained a confession from the accused during the pre-trial conference and there was a pretrial agreement that now embodies these admissions.

if it is based on the unwritten contract.

FAILURE TO SERVE WRITTEN INTERROGATORIES TO PARTIES

Rule 25, Sec. 6. Effect of failure to serve written interrogatories – Unless thereafter allowed by the court

FIRST EXAM

Presumptions of negligence in vehicular accidents EVIDENCE PRINCIPLES IN CRIMINAL LAW 1.

PRESUMPTIONS RELATING TO DISCERNMENT AND EXEMPTION FORM CRIMINAL LIABILITY A child below nine years of age is always exempt from criminal liability, it doesn’t matter whether he acted with or without discernment. But if it is nine to fifteen, remember that to be exempt from criminal liability, he must have acted without discernment. Why is that? The law presumes that a child below nine years old is incapable of discernment.

2 WITNESS RULE IN TREASON In order to convict an accused for the crime of treason, there should be testimony of at least two witnesses to the same overt act of treason. The law itself tells you the number of evidence you must be able to produce.

To Atty. Espejo’s mind, there’s something weird about Section 1. What’s weird about this is the word “TRUTH” Is truth really important in the court of law? Is it really important that what the court declares in the end by means of its judgement is actually the truth? Truth has a different treatment under the law compared to its treatment in morality. Why? Truth, of course, is absolute. But in a court of law, the word “truth” is actually relative. Let us suppose that there is a guy standing around the corner of Bonifacio and Bolton Street. Two policemen happen to not like the face of this fellow because he looks suspicious. So, without

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

FIRST EXAM

warning, they went to him and immediately frisked him and found a packet of shabu. By reason of the fact that he had a packet of shabu found in his person, he was arrested.

opportunity to be heard. Thus, the due process requirement can already be satisfied, not by the presentation of evidence but through the submission of position papers.

But was the search valid? Don’t you recall under the Constitution, the right of the people against unreasonable searches and seizures is actually inviolable. The law further provides that any evidence obtained in violation of the right against unreasonable searches and seizures would make the evidence inadmissible. In a court of law, illegally obtained evidence will be inadmissible. But is that the truth?

Judicial proceedings can be Civil or Criminal

The truth here is that he had shabu on his person, he was caught. But the search was invalid. Will he be convicted? In all probability, a lawyer of adequate skill would be able to make sure that his client is acquitted on the basis of the illegal search conducted upon his person. Why? Because there was no probable cause to frisk him in the first place. But the truth was that he had shabu with him. But would that prevail in the court of law, using the Rules of Evidence itself that proclaims to ascertain the truth? So, I would say the reverse. That actually, skillful use of the Rules of Evidence might enable you to actually disregard the truth. Dura lex sed lex. As Winston Churchill once said, “The truth is sacred, but you have to surround it with a bodyguard of lies.”

Section 4, Rule 1. In what case not applicable – These Rules

shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient. This provision is applicable to the entirety of the Rules of Court. Meaning, when you talk about election cases, the rules used are different, not necessarily Rule 128 to 133. But they are applicable suppletorily.

Section 1. Evidence defined. — Evidence is the means, sanctioned by these rules, of ascertaining IN A JUDICIAL PROCEEDING the truth respecting a matter of fact. This means the law on evidence are not strictly followed when the proceedings are administrative or quasi-judicial. Going back, what happens when you prosecute a labor case? Is there presentation of evidence in a Labor Case? Let’s go to the case of Ang Tibay v CIR. This case is actually a very doctrinal case inasmuch as it provides the 7 cardinal requirements of due process in administrative cases. An opportunity to be heard does not necessarily mean the presentation of evidence because in labor cases, there’s no presentation of evidence, it simply affords the parties the

EVIDENCE Civil Cases Criminal Cases The party having the The guilt of the accused burden of proof must prove has to be proved beyond his claim by a reasonable doubt. preponderance of evidence. An offer of compromise is An offer of compromise by not an admission of any the accused may be liability, and is not received in evidence as an admissible in evidence implied admission against the offeror The concept of The accused enjoys the presumption of innocence presumption of innocence does not apply. under the Constitution.

But there is a correlative presumption of good faith (Rule 131) Doctrine of equipoise or equiponderance applies.

Under this doctrine, if the evidence of the parties are of equal weight, the Court will rule in favor of the defendant. This is because if the evidence is equiponderant, the plaintiff has failed to discharge his burden of proof. There is no such thing as a confession in civil cases.

There is no equipoise.

The accused can only be convicted by proof beyond reasonable doubt. So, the prosecution and the accused never start at an even scale in the first place.

The concept of confession is applicable.

However, there are admissions. The concept of confessions are exclusively applicable to criminal cases.

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

The Rules of Evidence is PROCEDURAL in character Evidentiary rules may therefore be given retroactive effect. When the rule on Judicial Affidavits were promulgated by the Supreme Court. The Rule on Judicial Affidavits would already be applicable already to pending cases. Q: Are there vested rights under the Rules of Evidence? A: NO. Any evidence inadmissible according to the laws in force at the time the action accrued, but admissible according to the laws in force at the time of the trial is receivable. PROOF EVIDENCE These terms are often used interchangeably The effect when the requisite The mode and manner of quantum of evidence of a proving competent facts in particular fact has been duly judicial proceedings. admitted and given weight. The probative effect of The means of proof. evidence.

Section 1. Evidence defined. — Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a MATTER OF FACT. There are two kinds of fact under the law on pleadings: FACTUM PROBANDUM AND FACTUM PROBANS. FACTUM PROBANDUM Ultimate facts are the principal, determinate and constitutive facts upon the existence of which the plaintiff’s cause of action rests. They do not refer to the details of probative matters or particulars of evidence by which these material elements are to be established. Under the law on pleadings, only ultimate facts are required to be stated. They consist in propositions still to be established and therefore, ultimate facts are necessarily hypothetical. To put it simply, your ultimate facts in a civil case would be 1. the rights violated, 2. the obligation of the defendant, 3. how the defendant violated the rights of the plaintiff

FACTUM PROBANS Evidentiary or intermediate facts, on the other hand, ar facts which are necessary for the determination of the ultimate facts. They are premises upon which conclusions of ultimate facts are based. They are brought forward as a reality to convince the tribunal that the factum probandum is also real.

FIRST EXAM

July 2 Part 1 | Acevedo Under the law on pleadings, only ultimate facts are to be required to be stated. They consist in propositions still to be established. Therefore, ultimate facts are necessarily hypothetical. Q: What is now the treatment, under the amended rules, on Evidentiary Facts? Because Rule 8, Sec. 1 of the 1997 Rules of

Civil Procedure previously provided that:

Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts. It was by direct provision of the Rules that pleadings should omit evidentiary facts or factum probandum. Note under the Amendment: However, under A.M. No. 19-10-20-SC, which amended the Rules of Civil Procedure and which took effect on May 1, 2020, “Every pleading shall contain in a methodical and logical form, a

plain, concise and direct statement of the ultimate facts, including the evidence on which the party pleading relies for his or her claim or defense, as the case may be.” [Rule 8, Sec. 1, as amended]

Under the law on pleadings right now, you also include your evidentiary facts. The statement that you should also include the evidence in which the party pleadings relies for his or her claim or defense, that would already include judicial affidavits. That is one thing that is monumental under the Rules on Civil Procedure. Your right judicial affidavits should be included already in your pleading, in your complaint. It is quite a difficult matter when it comes to lawyering. We, lawyers, when we file a case, we have to make sure that our judicial affidavits are already prepared.

Rules for defendant under the amendment There is also a similar requirement that if you are the defendant, there is also this change with the reglementary period within which you are supposed to file an answer. Before it used to be 15 days after receipt of the summons. Now, the Rules on Civil Procedure, as amended, require already 30-days already because of the requirement that probably you are supposed to attach your judicial affidavits already. So it is a little bit more difficult right now to file pleadings.

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EVIDENCE FACTUM PROBANDUM Ultimate Facts. Proposition still be established. Hypothetical.

Because they are not proven yet.

The end to be achieved.

Ultimate fact, that is where you want to arrive at in litigation. You need to be able to prove your ultimate facts, otherwise, you lose in litigation. Factum probandum is described as facts in issue.

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

FACTUM PROBANS Intermediate or evidentiary facts. Material evidencing the proposition. Existent.

The means to achieve such end [the end is the ultimate facts]. Note: Every evidentiary question involves the relationship between the factum probandum and factum probans. The relationship between the factum probandum and factum probans is described as

RELEVANCY [to be discussed in Sec. 3 and Sec. 4].

The law on pleadings requires the parties to state only the ultimate facts.

The law on pleadings requires that statements of mere evidentiary facts should be omitted.

Note: When you say “a matter of fact”, it can also mean reference to whether one is a question of fact or a question of law. QUESTION OF FACT V. QUESTION OF LAW [Can v. Chief of PNP, et. Al. GR No. 139368, Nov. 21, 2002]. Question of Fact Question of law There is a question of fact There is a question of law when doubt or difference where the doubt or difference arises as to the truth or arises as to what the law is on falsehood of the alleged facts. a certain state of facts. There is a question of law if we are not in agreement as to how the law is applicable. Illustration: Suppose there is a law which makes it a criminal act to be below 5 feet 5 but above 120 pounds. That is a weird law. Q: What is the question of fact in that scenario? A: Whether a person, the accused is below 5 feet 5 and over 120pounds. That is a question of fact.

FIRST EXAM

You do not care what the law says here. You simply presenting facts as whether the accused is guilty. Jurisdictional Consequence There is jurisdictional consequence to the determination of whether it is a question of fact or question of law this is because under: Sec. 5 (2) (e), Art. VIII, of the Constitution xxx the Supreme Court shall have appellate jurisdiction over “all cases in which

only an error or question of law is involved.”

Only questions of law therefore may be raised before the Supreme Court. Example: You are going to file a petition for review of the decision of the Court of Appeals rendered in its appellate and not original jurisdiction. Because if it is the Court of Appeals rendering a judgment for example under Rule 47 of the Rules of Court referring to Annulment of Judgment of the RTC. That is something that falls on the original jurisdiction of the RTC. The mode of review should be appeal. But you can only raise questions of law can be raised before the Supreme Court. The Supreme Court is not a trier of facts.

That is why your mode of review is: 1. 2.

petition for review under Rule 45 or simply appeal by certiorari as distinguish from a Rule 65.

Rule 65 petition consists of special civil action of: (a) certiorari, (b) prohibition and (c) mandus. Recall that when a petition for certiorari under Rule 65 recall that it is only one that questions or raises a jurisdictional error because it is to be lack or excess of jurisdiction or grave abuse of its discretion amount to lack or excess of jurisdiction there being no plain, speedy or adequate remedy in the ordinary course of law. That is what Rule 65, Sec. 1 provides for us in relation to the Special Civil Action of Certiorari. Only questions of law may be raised under a petition for review under Rule 45 because the Court is not a trier of facts and the factual findings of lower courts are final, binding or conclusive on the parties and to the Court [G.R. No. 204039 January 10, 2018

United Coconut Planters Bank v. Spouses Walter Uy And Lily Uy]

While Jurisprudence is replete of examples where the Supreme Court entertained direct recourse to it if the case, through raising questions of fact, invokes compelling reasons, such as the transcendental or paramount importance of the case, this exception to the rule has recently been clarified in:

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

GIOS-SAMAR, INC. V. DOTC G.R. NO. 217158, March 12, 2019 The Supreme Court declared in this case that: The 1987 Constitution and the Rules of Court promulgated, pursuant to its provisions, granted us original jurisdiction over certain cases. In some instances, this jurisdiction is shared with Regional Trial Courts (RTCs) and the Court of Appeals (CA). However, litigants do not have unfettered discretion to invoke the Court's original jurisdiction. The doctrine of hierarchy of courts dictates that, direct recourse to this Court is allowed only to resolve questions of law, notwithstanding the invocation of paramount or transcendental importance of the action. This doctrine is not mere policy, rather, it is a constitutional filtering mechanism designed to enable the Court to focus on the more fundamental and essential tasks assigned to it by the highest law of the land. Accordingly, for the guidance of the bench and the bar, we reiterate that when a question before the Court involves determination of a factual issue indispensable to the resolution of the legal issue, the Court will refuse to resolve the question regardless of the allegation or invocation of compelling reasons, such as the transcendental or paramount importance of the case. Such question must first be brought before the proper trial courts or the CA, both of which are specially equipped to try and resolve factual questions. Recall cases where the court took cognizance of a case because of its transcendental importance or because there are constitutional issues that the court will have to decide on first impression. Examples are the cases of Spark v. Quezon City and Republic v.

Sereno

SPARK V. QUEZON CITY The Supreme Court was confronted with the question of whether or not it can entertain a petition to declare unconstitutional curfew ordinances in Metro Manila. Because of the Anti-Drug War of President Rodrigo Duterte the Cities in Metro Manila imposed very strict curfew ordinances. They began to strictly implementing them. Facts: Spark like a Samahan ng Mga Kabataan filed a petition directly to the Supreme Court assailing the ordinances and questioned their constitutionality before the Supreme Court. Ruling: According to the Supreme Court that it can actually entertain this even if it is one that questions the constitutionality of the ordinance on the ground that under the expanded definition of judicial power under Article 8 of the 1987 Constitution, it actually includes the question on whether there is grave abuse of discretion amounting lack or excess of

FIRST EXAM

jurisdiction on the part of any instrumentality of the government which includes city governments and local sanggunians. Even if, technically speaking, the proper recourse should have been a petition for declaratory relief under Rule 63, the SC, you can question the Constitutionality of a law before the Supreme Court because it is of transcendental importance. July 2 Part 2 | Amistad What else? Recent cases, Republic vs. Sereno, where the Supreme Court entertained direct recourse to it in a quo warranto petition against the Chief Justice of the Supreme Court Maria Lourdes Sereno. The Supreme Court here said that this is an issue of transcendental importance and therefore we should take cognizance of this petition for quo warranto despite the fact that there is supposed to be a doctrine of judicial hierarchy. Under the doctrine of judicial hierarchy, when there is concurrence of jurisdiction among the several courts, like in a petition for quo warranto, “diba na’ay concurrent jurisdiction ang RTC, CA and the SC” but the Solicitor General Jose Calida went directly and straight to the Supreme Court. The SC entertained it and in fact it led to the ouster of CJ Sereno. Now by way of review, because I believe that this is a case that might come out again in the bar examinations, the Supreme Court in Republic vs. Sereno made a dichotomy. The SC distinguished between qualifications for office of impeachable officers AND the conduct of the officers while they are in office. So, if you want to remove an impeachable officer because of his/her conduct in office that's the time that impeachment is the proper proceeding. But if your questioning the qualifications of the of the Justice or the impeachable officer in the first place to hold that position, quo warranto is a viable remedy. So that in short ended the tenure of CJ Sereno in the Supreme Court. It's a case of first impression before the Supreme Court, but ironically, in this case of Gios-Samar Inc. vs. DOTC (G.R. No. 217158, March 12 2019), the SC said that the 1987 Constitution and the Rules of Court promulgated, pursuant to its provisions, granted us original jurisdiction over certain cases and in some instances, there would be concurrence of jurisdiction. The doctrine of hierarchy of courts dictates that, direct recourse to this Court is allowed only to resolve questions of law, notwithstanding the invocation of paramount or transcendental importance of the action. This doctrine is not mere policy, rather, it is a constitutional filtering mechanism designed to enable the Court to focus on the more fundamental and essential tasks assigned to it by the highest law of the land.

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

And then, according to the SC, for the guidance of the bench at the bar, we reiterate that when a question before the Court involves determination of a factual issue indispensable to the resolution of the legal issue, the Court will refuse to resolve the question regardless of the allegation or invocation of compelling reasons, such as the transcendental or paramount importance of the case. Such question must first be brought before the proper trial courts or the CA, both of which are specially equipped to try and resolve the factual questions. Question (Situation): The Solicitor General filed a case against ABS-CBN questioning its franchise directly before the Supreme Court. Comment (Application): If we go by the ruling in Republic vs. Sereno, and invoke that such issue is of transcendental importance then it is allowed to be first filed with the Supreme Court. However, if we based it on the ruling of Gios-Samar Inc. vs. DOTC, it has to be first filed before the RTC or CA (and not the SC) because there are still some facts to be tried and discussed. Because when you question, whether or not ABS-CBN violated the terms of its franchise, what type of question is that? That's a question of fact and that's not a question of law. Therefore, if it's a question of fact it would require presentation of evidence which the Supreme Court said in the case of Gios-Samar Inc. vs. DOTC, we are not going to do that anymore, precisely because we are not a trier of facts. You are allowed to go to the Supreme Court only if it is a question of law. So, in my opinion, Solicitor General Jose Callida made a mistake when he directly filed a petition for quo warranto before the Supreme Court against ABS-CBN given that the SC already declared that it would not entertain cases of first impression if there are questions of fact involved. So, if I were the Supreme Court, I will deny the petition of the Solicitor General or maybe ask the latter to file it before the CA. So, based on everything that we have discussed so far, about question of fact and question of law, “unsaon man nato pag-relate ana karon sa subject nato?” A question of fact is something that would require presentation of evidence, but if it is a question of law then no need for factual determination. If there's no need for factual determination, there's no need for presentation of evidence. That's what I wanted you to take away from that whole discussion.

FIRST EXAM

Section 3. Admissibility of evidence. — Evidence is admissible when it is relevant to the issue and is not excluded by the Constitution, the law of these rules. Take note that the phrase “the Constitution” is underlined because that is one of the insertions/amendments to the rules of evidence as introduced in May 2020. It simply includes the Constitution because it is replete with evidentiary rules. Difference between Admissibility and Probative Value Admissibility Probative Value Admissibility answers the Weight or probative value question of whether certain answers the question of pieces of evidence are to be whether the admitted considered at all. evidence proves an issue by the quantum of evidence required by law. When you talk about admissibility, “dawaton ba sa Korte?” but when you talk about probative value or weight of evidence it's like saying “tuo-han ba sa Korte?” So, when you talk about probative value, it's actually the believability of the evidence and not the admissibility thereof. Take note, that a particular item of evidence may be admissible but its evidentially weight depends on judicial evaluation within the guidelines provided by the rules on evidence. Requisites of Admissibility of Evidence 1. Relevancy - such a relation to the fact in issue as to induce belief in its existence or non-existence; and 2. Competency - meaning the evidence that is to be presented is not excluded by the Constitution, by law or by the rules of court. Now we always go back to the basic principles when it comes to evidence and it happens to be that our Section 3 is patterned from the Axioms of Admissibility according to Wigmore. Two Axioms of Admissibility 1. Axiom of relevancy - none but facts have been rational probative value are admissible. a. Components of relevancy: i. Materiality - whether the evidence is offered up on a matter properly in issue; ii. Probativeness - the tendency to establish a proposition for which it is offered as evidence. So if you really look at it, we will learn that materiality is simply a component of relevancy, meaning relevancy is actually a broader term compared to materiality.

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

July 2 Part 3 | Bahalla 2.

Axiom of Competency Facts having rational probative value are admissible unless some specific rule forbids their admission. The rules of exclusion are rules of exception to the general admissibility of all that is rational and probative. Because the basic rules in evidence is that for as long as the evidence presented is rationally probative of the issue or if it is relevant to the fact in issue in the case then it should be admitted. But by way of exception, even if it is relevant but it is not competent, it will still not be admitted as evidence in any court of law.

Competency Take note that this means that the evidence should not be excluded by law, the Constitution, or the Rules of Court. Thus, if there is a provision of law or the Constitution, jurisprudence or the Rules of Court which declares certain evidence as inadmissible, then, no matter how material or relevant it may be, it would still be excluded for not being competent. ARTICLE III. BILL OF RIGHTS

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause xxx

Section 3. (1) The privacy of communication and correspondence shall be inviolable xxx So, in these two provisions of law, you have Right against illegal Searches and Seizures and then you have the Right to Privacy. Now, what if in the course of criminal investigation or in the course of police work, either of these two rights have been violated. What would be the effect? The effect of violation is very simple:

Section 3. xxx (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. So, that is the effect of violation. So, it is an evidentiary rule relating to the competency of evidence. FRUIT OF THE POISONOUS TREE DOCTRINE The doctrine provides that illegally seized documents, papers, and effects are inadmissible in evidence. The exclusion of these evidence is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures.

FIRST EXAM

Q: So, if it is evidence that has been secured from the accused, for example, in his violation of his right against unreasonable searches and seizures. What would be the effect? A: You cannot use that evidence against the accused because that use of that evidence is considered fruit of the poisonous tree. Read the case in the book, Ejercito vs SB (2006). Because not a lot of professors would actually know what is the proper interpretation on this “Fruit of the Poisonous tree.” Pag muingon man gud sila

“ah. Basta illegally seized, pag nay illegal element, then it is fruit of the poisonous tree.” But in Ejercito vs. SB, the Supreme Court had

the occasion to really tell us the nuances of the doctrine because it said that evidence would be excluded if it was gained through the evidence uncovered in violation of a particular exclusionary law or rule. It is an offshoot of an exclusionary rule which applies to primary evidence. Meaning, before you apply the doctrine dapat naay giviolate nga exclusionary rule. If there is no exclusionary rule that is being violated, you cannot invoke the doctrine. And the doctrine applies only to secondary or derivative evidence. That’s why I told you earlier, it’s the use of the illegally seized items that would call for the application of the Fruit of the Poisonous Tree Doctrine. So, there must be primary evidence which is determined to have been illegally obtained then secondary evidence is obtained because of the primary evidence. Q: For example, in an illegal search- shabu. Okay? that’s the primary evidence illegally obtained. And then, what possible secondary evidence can be obtained because of the primary evidence? A: Testimonial evidence, for example, of the police officers that would identify the shabu or the testimony of the forensic chemist saying that it is really shabu that was confiscated from the accused. Okay? That’s the fruit of the poisonous tree Doctrine. That’s the proper by which we should apply it. So, do not be misled. Republic Act 4200 “AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND

OTHER RELATED VIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES.”

Q: What is the constitutional right that is being violated act to prohibit and penalize wiretapping? A: It’s the constitutional Right to Privacy.

Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone

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or walkie-talkie or tape recorder, or however otherwise described “xxx however otherwise described”- for as long as it used used to secretly overhear intercept, or record private communication or private persons. Because everything else here has been rendered obsolete. (referring to dictaphone or dictagraph or Dictaphone…) Q: My question is this, is it not feasible for me to file a case for violation of my right to privacy- wiretapping for example because you’re recording my communication with you (referring to the online class). Can that be considered as wiretapping? A: No, sir. Because according to Section 1- “other device or arrangement, to secretly overhear.” By reason of the fact that I asked for your permission, I don’t think its unlawful to record the discussion. Very good. Not to mention that in addition of what was said, its supposed to apply to private communication. We’re not having a private communication (referring to the online class), right? This is a lecture. A public intercourse between inviduals. We are having a conversation publicly. Q: What would be the effect if you violate this Section 1 of Republic Act 4200? A: The effect would be not admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.

Section 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. So, it is very clear in its effect. It is an Exclusionary Rule. July 2 Part 4 | Du Republic Act No. 9372 also known as the “Human Security Act of 2007” Section 7. Surveillance of Suspects and Interception and Recording of Communications. — The provisions of Republic Act No. 4200 (Anti-Wire Tapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept

FIRST EXAM

and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways and means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.

Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized. Now, the Human Security Act, has somehow provided a loose exception to R.A. 4200. Because now, upon written order of the CA, a police or law enforcement official and the members of his team, may listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, for as long as ang gina-try nilag intercept would be any person charged with or suspected of the crime of terrorism or a conspiracy to commit terrorism. So ingana ka-bugat, supposed to be, our Human Security Act. But I’ve always given it the criticism that it’s one of the weirder antiterrorism bills because it still uses/borrows the nomenclature of the RPC. In other words, you do not commit terrorism unless the act of terrorism is also a felony under the RPC. We need to remember right now that the anti-terrorism law is being reviewed by Congress. Navarro vs. CA G.R. No. 121087, August 26, 1999) The SC said that if the communication was not private, its tape recording is not prohibited. And therefore, you cannot sure the person who recorded for wiretapping, or violation against the law on wiretapping. Article III of the 1987 Constitution: Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. Okay, katong Miranda rights, that we know. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret

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detention places, solitary incommunicado, or other similar forms of detention are prohibited. And what would be the effect? (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. Again, that is an exclusionary rule that is provided by the 1987 Constitution. What is this Section 17? It is the right against self-incrimination. Article III of the 1987 Constitution: Section 17. No person shall be compelled to be a witness against himself. You cannot force him to be the source of his own condemnation. Dili pwede nimo gamiton iyang gi-ingon against him. Republic Act No. 7438 (AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF) Section 2. Right of Persons Arrested, Detained or under Custodial Investigation; Duties of Public Officers. – (a) Any person arrested detained or under custodial investigation shall at all times be assisted by counsel. x x x (d) Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter's absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding. (Emphasis supplied in PPT) We are done already discussing competency, ngadto napud ta sa relevancy; collateral matters: Section 4. Relevancy; collateral matters. – Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. In fact, this is one of my favorite provisions of the Rules on Evidence. Because if you look at it, mao gyud na siya ang relevancy.

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GENERAL RULE: Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Meaning, ang evidence ba, that is presented in a court of law, naa ba siya kalambigitan sa issue sa kaso, sa unsa atong ginalalisan nato sa kaso, that it either advances of forestalls discussion on the issue. Sa ato pa, kanang piece of evidence ba na na, does that have a relation/ship or kalambigitan to the fact in issue. Kung naa siya relationship, then in all probability the fact in issue exists. If not, then probably it’s not true as well. That’s the general rule. RELEVANT EVIDENCE Evidence which has a tendency in reason to establish the probability or improbability of the fact in issue. Relevant evidence is evidence tending to prove or disprove a material fact. Evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. TAKE NOTE: Relevancy is not the same as materiality. MATERIAL EVIDENCE Evidence which tends to directly prove the fact in issue in the case. Or the so-called “smoking gun”. Like, you see the accused having shot the victim already, unya naa pa sa iyang kamot and naga-aso pa nga pusil. That’s direct evidence, that’s material evidence which tends to directly prove the fact in issue in the case. So in that example, what’s the fact in issue in that case? Gipatay ba sa akusado ang biktima? Unya nakita man nimo. You are an eye-witness and then you see him holding the gun. You saw him shoot the victim. That’s material evidence, diba, without any need of inference or analysis, you come up with the conclusion that he shot the victim.

Examples:

To prove the existence of a loan, the promissory note is material. The contract of loan or mutuum, diba. To prove the cause of death, the death certificate is material. There is no need to bring the cadaver inside the court room so that it can be subjected to autoptic preference by the court.

Classic example of Dean Inigo:

A was shot from a long distance right in between the eyes. (Meaning, that is an accurate targeted shot, direct). B was the main suspect and was prosecuted for the crime. During the presentation of the evidence, the fiscal presented testimony trying to prove that B was a former Olympic Gold Medalist in long distance shooting.

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So kung ikaw and defense counsel, of course you will object because it is immaterial. Why? Ang fact in issue ba is whether or not naa siyay gold medal sa Olympics? No, definitely not. The fact in issue is, gipatay ba niya ang bikitima? So it is not material at all. Q: Is the evidence material? A: No. It does not tend to prove the fact in issue of whether or not B killed the victim. The issue is not about his Olympic Record. Q: But if you were the judge, will you sustain or will you overrule the objection? Does such evidence have a tendency to prove that B is the killer due to his ability as a sharpshooter? A: Yes. The evidence may not be material but it is (clearly) relevant. It has such a relation to the fact in issue as to induce belief in its existence or non-existence. It may not be material pero kung ikaw ang judge, you will overrule the objection on the ground that relevant man gihapon sya. Because materiality is simply one minor or maybe half element of relevancy. July 2 Part 5 | Escritor I want you to memorize Section 4 because you can use it all the time – in practice, in the bar examinations, kung wala kay laing matubag in realtion to the inadmissibility of evidence. Pwede na nimo itubag ang Section 3 and Section 4. Please try to memorize

Section 3 and Section 4 of the Rules on Evidence. MATERIALITY Evidence is material if you want to prove or disprove a fact in issue.

RELEVANCY Relevancy, on the other hand, relevant ang evidence if it has a tendency in reason to establish the probability or improbability of the fact in issue.

In other words, when you talk about relevancy, you’re talking about exercise of common sense. Tendency in reason lang man. So dapat, you exercise your intelligence, your common sense to determine kung naa bay relationship between the evidence and the fact that you want to prove.

Material evidence is direct proof of a fact without any inference whatsoever, it proves the fact in issue. Material evidence is selfevident. Material evidence is always relevant.

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Relevancy, on the other hand, can be directly or circumstantially relevant. Relevant evidence may require reasoning or inference. Relevant evidence is not always material. Broader na term ang relevancy actually, compared to materiality.

KINDS OF ADMISSIBILITY 1.

Multiple admissibility Evidence that is plainly relevant and competent for two or more purposes will be received if it satisfies all the requirements prescribed by law in order that it may be admissible for the purpose for which it is presented. Even if it does not satisfy the other requisites of admissibility for other purposes. Example: You have a piece of paper. Ang nakabutang didto, “Pay to B or to his order, the amount of P50,000. Signed by A.” what is that evidence of? It’s evidence of a negotiable instrument, diba? The obligation upon the holder of that negotiable instrument to pay B or his order, the amount of P50,000. That is clearly documentary evidence. It’s a document that proves the existence of a contract, of the existence of an obligation. But there are several requisites in order for the court to admit documentary evidence. o

It has to be the original - Original Document Rule (after the amendment) or Best Evidence Rule (before the amendment) So dapat, original gyud na. Pero photocopy ra man ang gidala nimo. Will you be able to prove? As a general rule, that obligation on the part of the holder of the negotiable instrument exists, you won’t be able to prove it. Why? Because it’s a mere photocopy. It is not an original of the document. But, when you present it for another purpose, let’s say, you are not going to prove what is written in the document. All that you’re trying to prove is that that document exists; that it is written on paper without reference to what it contains. Will that be admissible in that situation? The answer is YES. Why? Because you’re not presenting it as a documentary evidence; you’re presenting it as an object evidence. Meaning, you are presenting the paper as an object addressed to the senses of the

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court; particularly, the sense of sight. Makita sa korte na mao ni sya.

supposed to be a hearsay answer. Kung tubagon man, the question calls for a hearsay answer.

That’s what multiple admissibility is all about. It may not be admissible as paper or document, but it is admissible as an object. That’s multiple admissibility.

What is hearsay? Evidence that someone merely told you about. Wala kay personal knowledge. Dili ikaw ang nakabalo. It’s not you who knows about that fact. It was simply relayed to you by another person. It is secondhand information. And so, the adverse party objected. “Objection, Your Honor. The question calls for a hearsay answer because the witness cannot testify as to what that person told her/him. It cannot be verified anymore inasmuch as the decedent or the testator has already died.” Patay na man. Dili ma corroborate. Possible kaayo na iyahang testimony would be bakak. It could be a lie.

Later on, when we go to Section 37 of Rule 130 and the other exceptions to the Hearsay Rule, Makita nato ang concept of a dying declaration and the concept of Part of the Res Gestae or kanang ginatawag na excited utterances. Without explaining too much ahead of time, ang dying declaration is a declaration made by a dying person under the consciousness of an impending death. A dying declaration might be admitted even if patay na katong nagdeclare. Why? Because it is considered to be necessary and trustworthy. Necessary because patay na man ang nag-utter. What if ang gi-utter niya kay, “Ang nagpatay sa akoa kay si Cardo. Love, Hyun Bin.” Pero pagkahuman ata kay napatay sya. He cannot testify anymore; but because necessary sya, dili sya available to testify in court. And it is also trustworthy kay dili pud ka makahuna-huna na ang tao na mamatay, mamakak pa gyud. So, that’s a dying declaration.

But, what if the Court allows it? So, the Court says, “Objection is overruled for now. It seems to be hearsay but I will allow the witness to answer the question. And then if the witness answers, “On that particular date, the testator said, that he is Gong Yoo.” 3.

Curative admissibility

CONDITIONAL ADMISSIBILITY

But the question is, what if the declarant in a dying declaration did not die? Meaning, nacomatose lang. What will happen then? Remember, dying declaration sya. It requires the death of the victim and he uttered something on the cause and surroundings of his death. Pero wala man sya namatay? Comatose lang man? What are we going to do? What’s going to happen then? Dili sya pwede na dying declaration. But later on we will learn, that even if it may not be admissible as a

dying declaration, it is admissible as part of the res gestae. It is an excited utterance. 2.

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Conditional admissibility Evidence that appears to be immaterial, is admitted to the court subject to the condition that its connection with another fact subsequent to be proved will be established. Otherwise, such fact already received, will be stricken off the record at the initiative of the adverse party. Example: For a case for the probate of a will. Remember, when you make a will, dapat during probate, i-prove sa proponent that the testator was of sound and disposing mind. Meaning, kasabot sya sa iyahang ginabuhat. Kasabot sya kung unsa ang consequences sa pagbuhat sa usa ka will. That’s what you call the requisite that the testator must be of sound and disposing mind. So, namatay na karon ang testator. The oppositors to the will calls a witness to the witness stand. And then, nangutana sya karon. On a particular date, let’s say, August 15, 1995, what did the testator tell you? Take not that that is

CURATIVE ADMISSIBILITY

What does he mean when he says he’s Gong Yoo when clearly he’s not Gong Yoo. What does is say when the testator believes that he is somebody else that he is a Korean Movie Star, it means he is not of sound mind. That is conditional admissibility even if it is inadmissible at first because it appears to be immaterial and it is admitted by the court subject to the condition that ang iyahang connection to another fact makes sense of it all. Kay ang pagtuo sa testator he is somebody else he is not of sound mind and therefore the will is not valid. Evidence that is otherwise improper is admitted (despite objection from the other party) to contradict improper evidence presented or introduced by the other party, to cure, contradict, or neutralize such improper evidence. This is what you call fighting fire with fire. The court made a mistake procedurally by admitting inadmissible evidence. By doing so, it has prejudiced the rights of the adverse party. Now, what the court should do is to allow the other party to present improper or supposed to be inadmissible evidence.

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Theories on Curative Admissibility 1. American Rule- the admission of such incompetent evidence, without objection by the opponent does not justify such opponent in rebutting it by similar incompetent evidence. If walay objection from the adverse party, you cannot rebut anymore kay gi waive na nimo. Dapat nag object ka in the first place. And your objection was overruled by the court. 2.

English Rule- if a party has presented inadmissible evidence, the adverse party may resort to similar inadmissible evidence. Literally fighting fire with fire.

Massachusetts Rule- the adverse party may be permitted to introduce similar incompetent evidence in order to avoid a plain and unfair prejudice caused by the admission of the other party’s evidence. This is still fighting fire with fire but with qualification, that there is plain and unfair prejudice. This is what is practiced in the Philippines.

Discussion: I handled a case and it involved a violation of the Rules on Summary Procedure in an MTC in GenSan. I tried to present evidence na wala na pre-mark and previously identified during pretrial. The witness that was going to identify the said evidence did not previously execute an affidavit. Under the Rules on Summary Procedure, kung unsa lang na evidence ang na naidentify or kinsa lang naka execute ug affidavit mao lang na ang dawaton. But the court allowed me to present. But clearly, that will prejudice the other party.So the lawyer of the other party vehemently objected to it. But the court told him that in the interest of justice he is allowed to resort to similarly characterized evidence, under the principle of curative admissibility of evidence. Q: What should determine the application of the rule of curative admissibility? 1. Whether the incompetent evidence was seasonably objected to; and 2. Whether regardless of the objection, the admission of such evidence shall cause a plain and unfair prejudice to the party against whom it is admitted. July 2 Part 6 | Macacua DIFFERENT TYPES OF EVIDENCE: Material vs Immaterial Competent vs Inadmissible Relevant vs Irrelevant Positive vs Negative Direct vs Circumstantial

FIRST EXAM

Competent evidence is evidence not excluded by the the law, the Rules of Court, and the Constitution. Inadmissible evidence is evidence that is excluded. Irrelevant evidence is evidence has no relation to the fact and issue as to induce belief in its existence and non-existence. LET’S GO TO THE CLASSIFICATION AS TO WHETHER EVIDENCE AFFIRMS OR NEGATES A FACT: 1. POSITIVE EVIDENCE is when a witness affirms that a fact occurred or did not occur. 2.

NEGATIVE EVIDENCE is when a witness avers that he did not see or know the occurence of a fact.

Example in book (Evidence Explained):

Question No. 1 At the time of the collision, was the headlight of the motorcycle turned on? Answer of the witness: Yes, it was turned on.

In other words, based on his personal knowledge, he affirms that the headlight of the motorcycle was turned on. Question No. 2 At the time of the collision, was the headlight of the motorcycle turned on? Answer of the witness: No, it was not turned on. What is that? Is that positive evidence or negative evidence? That is still positive evidence, because the witness affirming that a fact did not occur. What is that fact? Whether or not the headlight of the motorcycle was turned on. So, when would it be negative evidence? Question No. 3 At the time of the collision, was the headlight of the motorcycle turned on? Answer of the witness: I do not know. I did not notice it. That is when it becomes negative evidence, because he did not know. He did not see. He did not know that a fact in fact occurred. Perfect example would be alibi. Alibi is a defense which tells you nga wala man ko ngadto. Kintahay naay gipatay somewhere, ikaw ang main suspect. Karon,

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ang imohang defense in your counter-affidavit is wala man ko ngadto, imposible man nga ako ang nagpatay niya kay ang pagpatay nahitabo sa Davao. At that time, naa ko sa Cebu. At the very date and time the incident occured, naa ko sa Cebu. Wala ko sa Davao. That is alibi. That is a negative evidence. Why? In effect, you are saying is, ikaw ba ang nangpatay or dili? Ambot lang, wala mang ko ngadto. Mao na ang ginaingon nimo kung naga alibi ka lang. That’s why alibi is negative evidence. Denial is negative evidence, like alibi. It is considered by jurisprudence to be a very weak form of defense and can never overcome an affirmative or positive testimony particularly when it comes from the mouth of a credible witness (People vs Mendoza). Informally, there is a third type: 3.

NEGATIVE PREGNANT EVIDENCE is a form of negative expression which carries with it an affirmation or at least an implication of some kind favorable to the adverse party. It is a denial pregnant with an admission of the substantial facts.

Example in book (Evidence Explained): Question: Have you ever smoked Marijuana? Answer of the witness: I have never smoked Marijuana in school. What does it mean? You never smoked Marijuana in school. But maybe you smoked Marijuana at work, you smoked at home. That is a denial with an admission favourable to the adverse party. Negative pregnant is like talking to Donald Trump. I don’t know if your watching tv. But, there’s an intelligence report daw that the Russians gave the members of the Taliban in case makapatay sila og United States Military stationed in Afghanistan. At first, Donald Trump says I don’t think so. That’s a hoax. And then later on, being asked the same question, “Well the intelligence report was not properly corroborated and therefore my intelligence officers did not see the need to brief me about it. At one time, he is affirming. At one time, he is denying. July 2 Part 6 | Maglinte As to the need to infer or presume DIRECT EVIDENCE – proof of the fact or point in issue, as distinguished from circumstantial proof; that if believed, establishes the truth or falsity of a fact in issue and does not arise from presumption.

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In an eyewitness testimony there is no need to infer or presume.

CIRCUMSTANTIAL EVIDENCE – evidence not being directly on the fact in dispute but on various attendant circumstances from which the judge might infer the occurrence of the fact in dispute. o Require inference or drawing presumption from attendant facts. o Not directly probative of a certain fact and needs more analysis. DIRECT EVIDENCE Establishes the existence of a fact in issue without the aid of any inference or presumption

The witness testifies directly of his own knowledge as to the main facts to be proved.

CIRCUMSTANTIAL EVIDENCE Does not prove the existence of a fact in issue directly, but merely provides for logical inference that such fact really exists Each proof is given of facts and circumstances from which the court may infer other connected facts which reasonably follow, according to the common experience of mankind.

Under our Rules of Court, conviction based on circumstantial evidence is sufficient if: a. There is more than one circumstance; b. The facts from which the inferences are derived are proven; c. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. This will be detailed in Rule 133. Case Study I remember handing this case in 2005. Y is my client. X was murdered and the primary suspect was Y. They were neighbors and had a long-standing grudge. They were seen in public having altercations. Y was reputed to be a gun-for-hire in the community. There were, however, no eyewitnesses to the fatal shooting. Y was accused of the crime. The prosecutor’s evidence consisted in testimony offered to prove that the accused was at the vicinity when the crime was committed, that a person wearing a helmet with the accused’s same height and built was seeing fleeing in a motorcycle away from the scene of the crime. There was also a testimony offered to prove the history of animosity between the parties. Our defense ALIBI (a negative defense). The accused said that he was in a different municipality at the time of the shooting. We presented witnesses placing him elsewhere attending a barrio fiesta than at the place of the incident.

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Evidence for the prosecution What was the purpose of the testimony that the accused was at the vicinity and that a person matching the accused’s description was seen feeling from the crime scene? Take note no one directly saw the accused shooting the victim. It was an attempt to prove OPPORTUNITY. The prosecution wanted to place the accused at the scene of the crime to prove that it was possible that he was the one who shot the victim. What was the purpose of the testimony that the accused and the victim has a history of animosity? It was an attempt to prove MOTIVE. The prosecution wanted to impress upon the judge that their longstanding grudge may have been the reason why the accused shot the victim. Would evidence on motive and opportunity be material? In other words, did the testimonial evidence of the prosecution prove the fact in issue in the case which is whether the accused was the one who shot the victim? Of course not. Direct evidence of the shooting would have been an eyewitness account that the accused shot his brother-in-law or maybe a video or photograph of the shooting itself. So these are 2 circumstantial events, motive and opportunity, to pin the blame upon the client. Were the testimonies offered by the prosecution on motive and opportunity admitted by the court considering that they were immaterial? Yes. They may have been immaterial but they were still relevant. That the accused had opportunity and motive were collateral matters on, in more familiar terms, circumstantial evidence of the fact in issue. Although they do not tend to prove the fact in issue directly, they have the tendency in reason to establish the probability or improbability of the fact in use. That made them admissible. Did I win the case? Of course. What about the negative defense of alibi? The evidence of the prosecution as purely circumstantial. No one can directly identify that my client was the one who shot the victim. The negative defense of alibi, although inherently weak as a defense and frowned upon, but that was my only defense. Our defense was a negative one which is weak but one that negative defense is defeated only by positive evidence. It was therefore very easy to cross-examine the witnesses by asking “did any one of you see the accused shoot the victim?”. Because none of them actually saw the accused actually shoot the victim and none of them can also say that it was someone else, what type of

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evidence is produces from their testimony? Also negative because they can neither confirm nor deny that specific fact in issue in the case. That was enough to create a reasonable doubt in the mind of the judge that my client did not shoot the victim. July 2 Part 7 | Flores and Cagas COMPROMISE Q: Remember the effect of a compromise? When affidavit of desistance in a criminal case. What will happen? Can the prosecution continue to prosecute? A: Actually pwede man kung naa syay laing evidence but if ang imuhang affidavit of desistance comes from the complaining witness, the main witness of the case, how will the prosecution win the case with that situation? Manglisud na sila, so the prosecution has no choice sometimes but to accept the compromise agreement and my client was released from prison, out to the world to kill again actually. CONSPIRACY Remember that conspiracy is not susceptible of direct proof. How do we define conspiracy? Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. When this people come to that agreement, do they reduce their agreement to writing? Like si A, si B og si C, conspired to kill D. niingun ba si A na ang obligations ni A are as follows nya ang obligations ni B are as follows, ang obligations ni C are as follows and then gipirmahan nila, gipanotaryuhan nila sa legal aid kang dean quibod. Di ba? That will not happen. Conspiracy therefore cannot be proven

directly but it can be deduced from the acts of the perpetrators before, during, and after the commission of the crime which are indicative of common design, concerted action and concurrence of sentiments. We will discuss more of conspiracy later on when we go to rule 133. Other types of evidence: Primary or best vs Secondary Evidence Cumulative vs Corroborative Evidence Prima Facie vs Rebutting vs Conclusive Evidence Intrinsic vs Extrinsic Evidence Kani tanan Makita ni sa akong libro. We will not spend too much time to discuss this. Let’s go over them in passing.

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PRIMARY OR BEST EVIDENCE It applies only to documents so the best evidence for example of the contents of the document is the original of the document itself. Mao na sya ang evidence which the law regards effecting the greatest certainty of the fact in question.

SECONDARY EVIDENCE Inferior or substitutionary evidence which indicates na naa gyud syay original. Q: What is a photocopy indicative of? A: nga naay original diin sya gikan pag-photocopy. Ingana ang secondary evidence. Note that the Best Evidence Rule now called ORIGINAL DOCUMENT RULE is already in Rule 130, Section 3 under the amended rules. SECTION 3. Original Document Must be Produced; Exceptions. — When the subject of inquiry is the contents of a document, writing, recording, photograph or other record, no evidence is admissible other than the original document itself, except in the following cases: (a) When the original is lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice, or the original cannot be obtained by local judicial processes or procedures; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; (d) When the original is a public record in the custody of a public officer or is recorded in a public office; and (e) When the original is not closely-related to a controlling issue. As the law now stands, ang document dili na lang limited to paper. RULE 130, SECTION 2. Documentary Evidence. — Documents as evidence consist of writings, recordings, photographs or any material containing letters, words, sounds, numbers, figures, symbols, or their equivalent, or other modes of written expression offered as proof of their contents. Photographs include still pictures, drawings, stored images, x-ray films, motion pictures or videos.

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For example we’ll apply this characteristic to Statute of Frauds, di ba for an agreement to be enforceable in court, dapat naay note or memorandum that would at the very least inform the court of the intention of the parties, or the elements of the contract, di ba mao man na ang sa statute of fraud? And then we normally refer to an agreement to be one that is reduced into writing, kay note or memorandum gud. Q: Is it now possible to maintain an action in court for a contract that is not written but is recorded by means of cellphone? The definition is actually expanded with respect to documentary evidence kay mag-include naman syag non-papyric na type of evidence. CUMULATIVE EVIDENCE Additional evidence of the same kind & character as that already given & tends to prove the same proposition. Example naay nag-away na duha ka tao diha sa Bolton, then in this instance, it is possible nga naay several eye witnesses. If all the eye witnesses will be testifying on the same incident, their testimonies will be cumulative evidence, so cumulative of one another. CORROBORATIVE EVIDENCE Additional evidence of a different kind & character, tending to prove the same point. It is deemed necessary only when there are reasons to suspect that the witness did not tell the truth, or that his observation had been inaccurate. [PEOPLE v. MANZANO] For example, naa kay eye witness account na si A og si B nagsumbaganay, pero naa pod kay laing evidence nga CCTV footage, nga nag-away jud si A og si B. So lahi-lahi ang type of evidence, naay testimonial evidence and naa poy object evidence which the video nga nag-away ang duha. NOTE: It is deemed necessary only when there are reasons to

suspect that the witness did not tell the truth, or that his observation had been inaccurate.

It is quite possible that the witness testifies on an incident but his testimony was not credible. Q: What will the party or the lawyer do to corroborate the testimony? A: The corroboration here will not be upon the material points of his testimony but, the corroborative testimony

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will be something that will try to rehabilitate the reputation of the witness for truth. Kay kung inconsistent iyang testimony, you need one more witness to say or explain what that witness is actually talking about. This would be considered as a corroborative evidence. In PEOPLE v. AYUPAN, the SC held that the testimony of a lone witness – if found by the trial court to be positive, categorical & credible – is sufficient to support a conviction. This is so, especially if the testimony bore the earmarks of truth & sincerity & was delivered spontaneously, naturally & in a straightforward manner.

Evidence is assessed in terms of quality, not quantity. It is to be weighed, not counted.

In PEOPLE v. GUMAYAO, the testimony of a single prosecution witness, as long as it is positive, clear and credible is sufficient on which to anchor a judgment of conviction. Corroborative or cumulative evidence is not a prerequisite to the conviction of the accused. Truth is established not by the number of witnesses but by the quality of their testimonies. In PEOPLE v. LUMAYAG, the SC held that an accused is always a competent witness for or against his co-accused, and the fact that he had been discharged from the information does not affect the quality of his testimony. The uncorroborated testimony of an accused, when satisfactory & convincing may be the basis for a judgment of conviction of his co-accused. July 2 Part 8 | Ugdang So, we have prima facie evidence, rebutting evidence and conclusive evidence PRIMA FACIE Evidence that is sufficient to establish a fact, and if not rebutted becomes conclusive of that fact

REBUTTING That which is given by the party in the case to explain, repel, counteract or disprove facts given in evidence on the other side. The term rebutting evidence is more particularly applied to that evidence given by the plaintiff, to explain or repel the evidence given.

CONCLUSIVE Evidence which is incontrovertible, that is to say “either not open or not able to be questioned as where it is said that a thing is conclusively proved, it means that such result follows from the fact shown as the only one possible.

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PRIMA FACIE EVIDENCE Meaning, standing alone, it already proves the fact. Without rebuttal, it is sufficient to prove that fact. REBUTTAL EVIDENCE This is your counter or what you call your countervailing evidence to explain or repel the evidence given by the adverse party. CONCLUSIVE EVIDENCE Is not susceptible to countervailing evidence. It is not one that can be repelled or countered or disproved, because it is not susceptible questions anymore. As it is said, that the thing is conclusively proved, it means that it shows that such fact is the only one possible. You cannot do anything. You cannot produce evidence against it anymore because it is already conclusive. INTRINSIC EVIDENCE EXTRINSIC EVIDENCE

Information necessary for the determination of an issue that is gleaned from the provision of a document itself. Also called PAROL EVIDENCE or EVIDENCE ALIUNDE. Refers to evidence from a source outside the subject document (aliunde means “from another source”

INTRINSIC EVIDENCE Meaning, what has been written or placed in the document itself which it is intrinsic in the document or the agreement, that is intrinsic evidence. What is in the document, in the four corners of the instrument. EXTRINSIC EVIDENCE Is evidence aliunde or evidence from another source. Ok, we’ll go to that when we discuss the parol evidence rule under Rule 130 sec. 10. Before that used to be sec. 9, now it is sec. 10. You also encounter that in wills and succession and later on when we take up parol evidence rule. TYPES OF EVIDENCE 1. Object or real evidence 2. Documentary evidence 3. Testimonial evidence 4. Demonstrative evidence OBJECT EVIDENCE

DOCUMENTARY EVIDENCE

Those addressed to the senses of the court and are exhibited to, examined or viewed by the court (Rule 130, Sec.1) Proves the existence, appearance and condition of objects. Writings, recordings, photographs or any material containing letters, words, sounds, numbers, figures, symbols, or their equivalent, or other modes of

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written expression offered as proof of their contents (Rule 130, Sec.2) Oral or written assertions offered as proof of the truth of what is being stated if the witness can perceive and in perceiving can make known his perception to others (Rule 130, Sec. [natabunan sa pop-up]

OBJECT EVIDENCE These are evidence that prove the existence, appearance, and condition of the objects. In the appreciation of object evidence, the court uses its senses. Its sense of sight, smell, hearing, taste, and touch, that is object evidence. DOCUMENTARY EVIDENCE We’ll go to that when we reach rule 130. Tan v. Hosana (2016) The purpose of introducing documentary evidence is to ascertain the truthfulness of a matter at issue, which can be the entire content or a specific provision/term in the document. DEMONSTRATIVE EVIDENCE Is informally, the fourth type. It is not mentioned but, it is not actually prohibited by the rules of court. This would be evidence in the form of objects (like maps, diagrams or models) that has in itself no probative value but, is used to illustrate and clarify the factual matter at issue broadly. Demonstrative evidence is evidence is not prohibited, although not specifically mentioned in the Rules of Court. Let’s take the case of a map, for example, you use the map, an actual map or you drew it yourself and you ask the witness to point, where did he see the car that was carnapped, and he will point. Is the evidence that you are trying to present is the map? Or is it the testimony of the witness as aided by the map. So, that is demonstrative evidence. It is the testimony as aided by the demonstrative object that is considered as the object that you are going to present. In appreciating demonstrative evidence, the court uses the same five senses but, more importantly, applies intelligence to draw conclusions or inferences from the objects presented. Thus, for demonstrative evidence, what is important is not the object, but the INFORMATION that the objects create. People v. Lavapie (2001) If the physical evidence runs counter to the testimonial evidence, conclusions as to physical evidence should prevail. Physical evidence is that mute, but eloquent manifestation of truth which rate high in our hierarchy of trustworthy evidence. In light of the physical evidence obtaining in the case, contrary

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to oral assertions cannot normally prevail. Greater credence is given to physical evidence as evidence of the highest order because it speaks more eloquently than a hundred witnesses. The SC had the occasion to lay down what I term as the hierarchy of evidence. Which has more weight? Object, documentary or testimonial? According to the case of People v. Lavapie, the object or physical evidence is evidence of the highest order because it speaks more eloquently than a hundred witnesses. So, that is the highest form of evidence. So, what follows after that? GSIS v. CA (May 28, 1993) Testimonial evidence is easy of fabrication and there is very little room for choice between testimonial evidence and documentary evidence. Generally, documentary evidence prevails over testimonial evidence.

1. 2. 3.

HIERARCHY OF EVIDENCE Object evidence Documentary evidence Testimonial evidence

But, remember, there are different types of testimonial evidence, there is a possibility that written testimonial evidence like an ordinary affidavit and there is also oral testimony. Types of testimonial evidence 1. Written testimonial evidence 2. Oral testimony People v. Balleno (2003) An affidavit is not a complete reproduction of what the declarant has in his mind because it is generally prepared by the administering officer and the affiant simply signs it after it has been read to him. In any case, open court declarations take precedence over written affidavits in the hierarchy of evidence. Unlike written statements, there is flexibility on the part of the questioner to adapt his questions to elicit the desired answer in order to ferret out the truth. According to the SC in the case of People v. Balleno, an oral testimonial evidence made in an open court is more reliable because there is an opportunity to cross-examine the witness and not to mention the questioner has the flexibility to adapt the questions to elicit the desired answer in order to ferret out the truth.

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IMPORTANCE OF TESTIMONIAL EVIDENCE While testimonial evidence occupies the lowest wrung in the hierarchy of evidence, it is conversely the most indispensable. Neither object nor documentary evidence can be presented within an accompanying testimony. It is through testimonial evidence that objects and documents are identified, authenticated, and given relevance. Testimonial evidence therefore gives context to the other types of evidence. Indeed, objects and documents, as evidence must be sponsored by a witness. Remember, while testimonial evidence is the lowest in the hierarchy of competent evidence, it is still very important. Why? because there can never be another form of evidence like object evidence or documentary evidence if they cannot be presented if there is no testimonial evidence in the first place. In other words, you have a smoking gun. You have a contract in your hands, but these contracts or these objects, they do not testify by themselves, so they need to be sponsored by a competent witness who will deliver testimonial evidence. TYPES OF TESTIMONIAL EVIDENCE 1. Oral 2. Written testimony

CHARACTER OR REPUTATION EVIDENCE Evidence attesting to one’s character and moral standing in the community. Generally, the character of a party is regarded as legally irrelevant in the determining [of] a controversy. When allowed, the character evidence must be limited to the traits and characteristics involved in the type of offense charged (CSC v.

Belagan, 2004)

OPINION EVIDENCE Evidence of what the witness thinks, believes or infers in regard to facts in dispute, as distinguished from personal knowledge of the facts themselves. The rules of evidence ordinarily do not permit witnesses to testify as to opinions or conclusions. EXPERT EVIDENCE Consist in the opinion of a witness on a matter requiring special knowledge, skill, experience or training which he [has] shown to possess (Rule 130, sec. 52)

ORDINARY EVIDENCE Consist in the testimony of a witness who testifies to those facts which he knows of his personal knowledge; that is, which are derived from his own perception (Rule 130, sec. 22) LIBERAL CONSTRUCTION OF THE RULES OF EVIDENCE The rules of evidence must be liberally construed (sec. 6, rule 1) the Rules of Procedure are mere tools intended to facilitate rather than to frustrate the attainment of justice. A strict and rigid application of the rules must always be eschewed if it would subvert their primary objective of enhancing substantial justice. Because the rules of evidence, and the rules of procedure in general, are mere tools to facilitate rather than to frustrate the attainment of justice. A strict and rigid application of the rules must always be eschewed if it would subvert their primary objective of enhancing substantial justice. Quiambao v. CA (2005) They must be liberally interpreted and applied so as not to frustrate substantial justice. Barcenas v. Tomas (2005) However, to justify relaxation of the rules, a satisfactory explanation and a subsequent fulfillment of the requirements have always been required.

TENOR OF TESTIMONY 1. Ordinary 2. Character or reputation 3. Opinion 4. Expert All of them you can see in my book, but we will discuss further once we reach 130. Lets not explain it, lets just pass the same. Just take note of where they can be found.

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July 8 Part 1 | Acevedo

RULE 129 WHAT NEED NOT BE PROVED

RULE 129 COVERS A. JUDICIAL NOTICE, which can be: 1. Mandatory 2. Discretionary 3. When Hearing is Necessary. B.

JUDICIAL ADMISSIONS In the case of Mejia-Espinoza v. Carino, the Court discussed those matters that courts would not require proof anymore. Mejia-Espinoza v. Carino GR 193397 January 25, 2017

Ruling: The general rule is that courts must base their factual findings on such relevant evidence formally offered during trial. Recognized exceptions to this are matters which courts can take judicial notice of, judicial admissions, and presumptions created by law or by the Rules. WHEN CAN PROOF BE DISPENSED WITH

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When conclusive presumption applies, no proof is required (Conclusive Presumption)

Example: A child below 9 is conclusively presumed to be incapable of discernment. Thus, if a child below 9 years of age commits a crime, no proof is required that he did not act with discernment. He will be exempt from criminal liability.

When a fact is admitted by a party in court (Judicial Admission)

Example: During pretrial[under Rule 1], the parties are allowed to propose and make stipulations of fact. If the existence of a debt, in a collection case, is admitted and stipulated upon, the fact is withdraw from contention and it need not be proved anymore. 3.

When a matter falls within the realm of judicial notice a.

(1) It merely defers the presentation of proof, in the meantime. Ex: The presumption under Article 131 that “an unlawful act was done with an unlawful intent.” This means that the prosecution need not prove, in the meantime, that the accused committed an act with criminal intent because criminal intent or mens rea is actually presumed. However, if the accused proves that the act was done without intent, the prosecution should now present proof to rebut what the accused was able to prove in the meantime.

Ex: You should wear a helmet every time you ride a motor vehicle. If you don’t, that is a violation of any traffic regulation. If you bump someone, but you were not negligent, but you were not wearing a motorcycle helmet, you are going to be presumed negligent unless you were able to prove that you were not negligent in the first place. Effect: The plaintiff need not prove negligence on the part of the defendant. The burden shifts to the defendant to prove that he was not negligent.

What is Judicial Notice 1) Judicial notice is the cognizance [or pagtagad in Bisaya] of certain facts that judges may properly take and act on without proof because these facts are already known to them. 2)

(2) A disputable presumption shifts the burden of evidence upon the party against whom the disputable presumption is applicable. Example: Under torts and damages: Article 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation. (n)

Rule: Confessio facta in judicio omni probatione major est [Admission made during trial is stronger than all proof]. Therefore, if you have already admitted a matter of fact whether in your pleading or during trial, that fact can no longer be disputed anymore. In other words. Proof is already dispensed with because of the fact that you made a judicial admission].

Try to compare that if the crime was committed by the child between the ages of 9 and 15. If the child is between 9-15, the only way that that child can be exempt from criminal liability at least from the point of view of the Revised Penal Code, the Pangilinan Law, you need to prove that the child acted without discernment. Effects of the presence of a mere disputable presumption [Note: When you say disputable, it is susceptible to the proof to the contrary. You can present countervailing evidence to defeat the presumption]

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Put differently, it is the assumption by a court of a fact without need of further traditional evidentiary support. The principle is based on convenience and expediency in securing and introducing evidence on matters which are not ordinarily capable of dispute and are not bona fide disputed [Republic v. Sandiganbayan G.R. No. 152375 December 16, 2011]. Latin Maxim to remember: Manifesta probatione non indigent [Manifest things require no proof.]

Rationale for judicial notice The taking of judicial notice is a matter of expediency and convenience for it fulfills the purpose that the evidence is intended to achieve, and in this sense, it is equivalent to proof [Degayo v. Dinglasan GR No. 173148 April 6, 2015]. It would be superfluous, inconvenient, and expensive both to parties and the court to require proof, in the ordinary way, of facts which are already known to them [People v. Rullepa, GR No. 131516, March 5, 2003]. Note: Insistence on not taking judicial notice might lead to absurd results. Ex: There is an American plaintiff. He filed a case against a Filipino.

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Would it be okay for the judge to require proof that the United States of America is actually a country, that it is a state that exists outside of the Philippines or should the judge require proof that there is really USA? That is what is meant by absurd results resulting if for example you insist on not taking judicial notice on the simple matter such as the existence and territorial extent of states. MANDATORY JUDICIAL NOTICE PRIOR TO AMENDMENT [Under the 1997 Rules of Court] Section 1. Judicial notice, when mandatory. — A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (1a) Under the Amended Rules of Court [A.M. No. 19-08-15-SC] Section 1. Judicial notice, when mandatory. — A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of legislative, executive and judicial departments of the National Government of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (1a) Actually it is 99% similar, except that there is a change on the qualification on what legislative, executive and judicial department does this refer to. The Supreme Court. Notice “National Government of”. Importance of Clarifying that it is the legislative, executive and judicial departments “National Government of” the Philippines It is the official government of the National government contrasted with those of Local Governments only which are of mandatory judicial notice. Example: While laws enacted by Congress fall within the purview of mandatory judicial notice, the same cannot be said, as a general rule, for ordinance enacted by the Sangguniang Panlungsod of a city. July 8 Part 2 | Amistad Ang gi-clarify lang dire by the amendment is that dapat "National Government of the Philippines". This rule should be committed to memory.

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For the sake of unity and simplicity of discussion lets focus on Judicial notice of "laws" What laws are subject of mandatory judicial notice? 1. The Law of nations 2. Laws as official acts of the legislative, executive and judicial department of the National Government of the Philippines 3. Ordinances 4. Laws of nature (as to the other items under Sec. 1 just read the discussions in my book.) LAW OF NATIONS The 1987 Constitution of the Philippines provides that "the Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy peace, equality, justice, freedom, cooperation, and amity with all nations.

(Sec. 2, Article II 1987 Constitution)

We know from our studies in Constitutional Law that that is the incorporation clause of the 1987 Constitution, whereby generally accepted principles of international law can be considered as part of the law of the land. Remember that there are 2 modes by which international law can become part of the law of the land, first would be by way of incorporation and the second mode would be by way of transformation, meaning you have an international law which you have adopted into a local statute or if an international law/agreement that requires concurrence by congress then that would already be judicial notice of an official act of the legislative department of the Philippines. With respect to international law to become generally accepted principles it requires 2 elements: 1. Widespread state practice among nations; and 2. Physiological Element: Opinio juris (belief that the international law is good) The "law of nations" does not mean the "law of a particular nation" The existence of foreign law per se is not within the realm of mandatory judicial notice. Kay ngano? wala tay labot. Ang Philippine Courts walay silay pakialam anang law of a specific country. Foreign laws present a QUESTION OF FACT. Thus, as a general rule, they may not be taken judicial notice of and have to be proved. They have to be pleaded and proven as any other fact. If your defense is based on a foreign law then you have to properly state that in your pleading and proved it as in any other fact. HOW TO PROVE FOREIGN LAW?

For written foreign law:

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We follow the process stated in Sections 24 - 25 of Rule 132. (This rule would not be discussed now to avoid confusion)

For unwritten foreign law: We follow Section 48 of Rule 130 or the so-called learned treatises which is an exception to the rule on hearsay evidence. Take note however of the following principles: A foreign law may be admitted without proof if it is subject of a judicial admission. So, if it is admitted by the other party then no need to prove In the absence of proof or admission, foreign law is presumed to be the same as that in the Philippines. Under the doctrine of PROCESSUAL PRESUMPTION. CONDON v. COMELEC G.R. No. 19874, August 10, 2012 FACTS: Maja was the winning vice-mayoralty candidate of Caba, La Union. A petition for quo warranto was filed against her on the ground that she is a dual citizen, who under R.A. No. 9225, must execute a sworn renunciation of her Australian citizenship. Maja answered that, when she executed a declaration of renunciation of Australian citizenship in Australia, she is deemed to have lost her foreign citizenship. She wanted the Court to take judicial notice of the laws of Australia regarding loss of citizenship. She also contended that the mere act of running for public office is a clear abandonment of her foreign citizenship, citing Valles vs. COMELEC. HELD: Foreign laws are NOT a matter of judicial notice. Like any other fact, they must be alleged and proven. To prove a foreign law, the party invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court. LAWS AS OFFICIAL ACTS OF THE LEGISLATIVE DEPARTMENT All judges are presumed to know ALL statutes and their status whether the same are still effective or have already been repealed or amended LEGISLATIVE ACTS OTHER THAN LAW In Chavez vs. PEA, a senate investigation report is deemed covered by mandatory judicial notice. Congressional debates and other records that predicated the passage of the law are matters considered to be official acts of Congress and are therefore within the realm of mandatory judicial notice. Judges are supposed to take judicial notice of that also, so it helps that they watch those congressional hearings.

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OFFICIAL ACTS OF THE EXECUTIVE DEPARTMENTS AS LAW Executive orders and presidential decrees have the full force of law when they take authority from a legislative power directly granted to the Executive by the Constitution, or are made pursuant to a valid delegation of power to the President.

Example,the Family Code of the Philippines.

The 1973 Constitution and the 1986 Provisional Constitution gave the President legislative powers. EO 09 was issued by President Aquino in 1987 after the present constitution was ratified. Under Article XVIII, Section 6, the incumbent President shall continue to exercise legislative powers until the first Congress is convened. Presently, the President does not have anymore such delegated legislative power by default, it was only under the 1986 Provisional Constitution and the transitory provision of the 1987 Constitution. July 8 Part 3 | Bahalla Under the 1973 Constitution, the President, as prime minister, had legislative powers. During those times, the National Assembly, where laws are supposed to be made, became a mere rubber stamp of President Marcos. So, when President Marcos declares this and declares that, the Assembly will simply give it an imprimatur and pass it on as their own law. But during that time, I would suppose that President Marcos simply had complete control of the government- Executive, Legislative, and, to a certain extent, Judiciary. That’s absolute power. And remember, absolute power corrupts absolutely. OFFICIAL ACTS OF THE EXECUTIVE DEPARTMENT Pasei vs. Torres tells you about dichotomy. Kung dili bitaw siya result of a delegated power, di na siya gina-take judicial notice. So, to form part of the law of the land, the decree, order or LOI must be issued by the President in the exercise of his extraordinary power of legislation as contemplated in Section 6 of the 1976 Amendments to the 1973 Constitution. So, dili tanan. Okay? Kadto lang result of a valid delegation of power. In the case of Sañado vs. CA, the action of an administrative agency in granting or denying, or in suspending, or revoking a license, permit, franchise or certificate of public convenience is administrative or quasi-judicial. Decisions of the Office of the President are official acts of and are exercises of quasi-judicial powers of the executive department. They, thus, squarely fall under matters relative to the executive department which courts are mandatorily tasked to take judicial notice of under Section 1, Rule 129 of the Rules of Court. Judicial notice must be taken of the organization of the Executive Department, its principal officers, elected or appointed, such as the President, his powers and duties. Now, let’s go to that phrase “Certificate of public Convenience.”

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A certificate of public convenience allows you to operate a franchise.

management contract as an official act of an executive department as the PPA being under the DOTC.

As to ABS-CBN, when their franchise was not renewed, they were issued Cease and Desist Order by the National Telecommunication Commission. And according to NTC, despite the fact that there are plenty of precedents to the contrary that a tv station or radio station cannot continue operating if their license has expired and it cannot give it provisional authority to continue broadcasting. Definitely, if that is a decision, whether in administrative of quasijudicial function of the NTC, diba ang dapat nga administrative remedy diha is an Appeal to the Office of the President. But ABSCBN really never did that. Why? Because they are scared of President Duterte.

According to the Supreme Court, the Management Contract entered into by Asian Terminals and PPA is NOT among the matters which the Court can take judicial notice of. It cannot be considered an official act of the executive department. And obviously, the PPA was only performing a proprietary function when it entered into a Management Contract with Asian Terminals. As such, judicial notice cannot be applied.

Let’s go to the case of Republic vs. Southside Homeowners

Association, Inc.

What happened here? There’s this military reservation that was used to house military officers together with their families. And throughout the passage of time, they made a subdivision there. They were treating it already as private property. They even made a homeowners’ association, SHAI, not knowing that they cannot have it titled because it is actually part of a military reservation. And, in resolving this case, the Court took judicial notice of Proclamation 423 which actually made the land, where they were living in, a part of military reservation. Nuclear epic fail sila on their contention that it can be considered as property of public dominion. Remember in Property, there is Property of the public domain or public dominion and you also have Property of private ownership. Remember that Property of Private ownership actually includes Patrimonial Property of the State. Patrimonial Property is reserved by the state for some commercial purposes. But that’s considered to be private property. And what would be the implication if you call it private property? It can be subject to Expropriation. Private property shall not be taken except for public use and payment of just compensation. Just a review. Take note, however, of the case of Asian Terminal vs. Malayan

Insurance Corp.

So, what happened here? In a case for damages, Asian Terminals was adjudged liable by the RTC in the amount of P643,600.25 for losses due to the mishandling of cargo. But Asian Terminals says that di man dapat ingana kadako amoang liability. Why? because under its management contract which was entered into between Asian Terminal and Philippine Ports Authority under the Department of Transportation and Communiaction (DOTC), its liability for losses due to mishandling of cargo is only P5,000 per package. So, let’s assume that there were 3 packages. And then, they mishandled it and the cargo was lost. And it’s worth 600,000 plus. But under their contract, since there are only 3 packages, dapat 15,000 lang ang bayaran. Murag ingana ang contention. Asian Terminals urges the court to take judicial notice of the

With respect to the functions of the executive department of the national government of the Philippines, you have to draw a distinction: If it is a governmental function that is being performed by the government through any of its instrumentalities- courts would take judicial notice on that. If it is only performing a proprietary function- the court will NOT take judicial notice on that. So, that’s a very short principle that you can easily remember. POWER OF EXECUTIVE CLEMENCY Now, let’s go to the Power of Executive Clemency. It has several forms like Pardon, Amnesty, Commutation of Sentence, and so on and so forth. Q: Are all the exercises by the President of his power of executive clemency subject to mandatory judicial notice? A: No. To answer this, we have the case of People vs. Casido (March 7, 1997). Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and proved by the person pardoned because courts take no judicial notice thereof. That’s with respect to Pardon only. But when you talk about amnesty by the proclamation of the Chief Executive with the concurrence of Congress, that is a public act of which the court should take judicial notice. Remember the event regarding Trillanes? Syempre, he was a very vocal opponent of President Duterte kuno. At one time, the Department of Justice is saying that “we have no proof that he has actually been amnestied.” But later on in one case, we will learn that the Supreme Court actually took judicial notice of the fact that Trillanes and company have already been given Amnesty. 1. 2.

Pardon- no judicial notice Amnesty- should be taken judicial notice of. (being a public act)

OFFICIAL ACTS OF THE JUDICIAL DEPARTMENT Now, official acts of Judicial Department. The best example for that are the Rules of Court, other Supreme Court issuances, as well

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as the cases decided by the Supreme Court. Courts should take judicial notice of Supreme Court decisions but not blindly because whether or not to apply a ruling to a controversy is still subject to the judicial determination. Remember, cases decided by the Supreme Court, the doctrine might be applicable but whether that doctrine is completely in all-fours of the issue in the case, dapat kinahanglan pa ug factual determination. Art 8, NCC – Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. So, based on Article 8, they have the force and effect of laws. DECISIONS OF LOWER COURTS What about kanang gi-decide sa RTC? Can MTC take judicial notice? Also, can RTC take judicial notice of cases pending on its own sala for a different case? According to jurisprudence, Republic vs. Sandiganbayan, courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding that both cases may have been tried or are actually pending before the same judge. This rule though admits of exceptions. So, let’s go to these exceptions or the so-called instances of permissible judicial notice of records. July 8 Part 4 | Campaner EXCEPTIONS (Permissible judicial notice of records) As a matter of convenience to all the parties, a court may properly treat all or any part of the original record of a case filed in its archives as read into the record of a case pending before it, when, with the knowledge of, and absent an objection from, the adverse party, reference is made to it for that purpose, by name and number or in some other manner by which it is sufficiently designated; or when the original record of the former case or any part of it, is actually withdrawn from the archives at the court’s discretion, at the request or with the consent of the parties, and admitted as a part of the record of the case then pending. Courts must also take judicial notice of the records of another case or cases, where sufficient basis exists in the records of the case before it, warranting the dismissal of the latter case.

In other words, to shorten everything, pwede as a matter of convenience to all parties, provided that the act of taking judicial notice of the records of the case is absent any objection coming from the adverse parties. In my legal career, I have a lot of cases which are interconnected. Meaning, one case may be an offshoot of another case which is filed before the same court and tried by the same judge.

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Sometimes, it gets confusing because the parties are the same, and the causes of action of the subsequent cases are mere offshoots of the main case. Usahay malimtan nimo na just presented the evidence in the main case but not in the other case. Although I never really had the occasion to ask the court to take judicial notice of the records of the case that is pending before it together with the main case, atleast we know that there is that exception. That it can be considered as read and part of the record of the case pending before the court. REGULUS DEV’T vs. DELA CRUZ G.R. No. 198172, January 25, 2016 This court takes judicial notice that the validity of the RTC Orders has been upheld in a separate petition before this court, under GR SP NO. 171429 entitled Antonio Dela Cruz v Regulus Development, Inc. ORDINANCES While courts are required to take judicial notice of the laws enacted by Congress, the rule with respect to local ordinances is different. Ordinances are not included in the enumeration of matters covered by mandatory judicial notice under Section 1, Rule 129 of the Rules of Court. (SJS v Atienza, GR No. 156052,

February 13, 2008).

Also take note of the amendment in Section 1 Rule 129 – “Legislative act of the National Government of the Philippines”. So only laws enacted by Congress are subject of mandatory judicial notice. The rule with respect to local ordinances or laws enacted by the Sangguians of the different cities and municipalities, they’re not included in the enumeration of matters covered by mandatory judicial notice. However, there is a lot of doctrines that exist which actually allow judicial notice of ordinance. What are these doctrines? For the sake of simplicity, these are the Rules on Judicial Notice of Ordinances. MTC – required to take judicial notice of ordinances of the municipality or city wherein they sit. RTC – must take judicial notice only: o When required to do so by statute (example: charter of a city, just like SJS v Atienza) o In a case of appeal before them wherein the inferior court took judicial notice of an ordinance involved in said case;

Meaning, the MTC took judicial notice of the ordinance, the RTC cannot require the parties to present proof of the ordinance on appeal (remember the rule in Civil Procedure that when the RTC takes a case on appeal, or determines a case under its appellate jurisdiction, it should not conduct a trial de novo).

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When capable of unquestionable demonstration

Meaning, of public knowledge gyud sya, nationally. The perfect example would be the anti-smoking ordinance of davao city. It’s not only in the Philippines that this is very notorious, but also internationally. SJS v Atienza GR No. 156052, February 13, 2008 Even where there is a statute that requires a court to take judicial notice of municipal ordinances, a court is not required to take judicial notice of ordinances that are not before it and to which it does not have access. The party asking the court to take judicial notice is obligated to supply the court with the full text of the rules the party desires it to have notice of. Counsel should take the initiative in requesting that a trial court take judicial notice of an ordinance even where a statue requires courts to take judicial notice of local ordinances. The intent of a statute requiring a court to take judicial notice of a local ordinance is to remove any discretion a court might have in determining whether or not to take notice of an ordinance. Such a statute does not direct the court to act on its own in obtaining evidence for the record and a party must make the ordinance available to the court for it to take notice. Here, the SC said that if you want the court to take judicial notice of a particular municipal ordinance, then give a copy to the trial court, so that the trial court can take judicial notice of it. LAWS OF NATURE In my book I discuss about how Abraham Lincoln (Vampire Slayer and Lawyer) used a Farmer's Almanac to prove that there was no illumination from the moon at the time of the alleged commission of the crime; here what was applied was the Law of Nature to which the Court took judicial notice of allowing Lincoln to secure an acquittal for his client. People vs. Meneses GR No. 111742, March 26, 1998 It was established that the crime took place in the wee hours of the morning, before the crack of dawn, at around three o’clock. The court can take judicial notice of the “laws of nature,” such as in the instant case, that at around three in the morning during the Christmas season, it is still quite dark and that daylight comes rather late in this time of year. Nowhere in the description of the crime scene by witness SPO3 Mendoza in his testimony was it established that there was light or illumination of any sort by which Christopher could see the attacker. Judicial

notice will overrule testimony.

One of my most favorite cases. Diri ingon sa witness, naay nagbangga na mga sakyanan. Nadunggan niya nga naay

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nagbangga, pagduol niya, didto pa lang niya nakit-an nga nagbangga ang sakyanan. So, unsa’y mauna ang kilat o ang dalugdog? Syempre, light travels faster than sound. Pero diri, unsa ni? Nauna pa ang tingog sa bangga kaysa sa bangga mismo? So, epic fail kayo. Gabriel v Court of Appeals GR No. 128474, October 6, 2004 Gonzales declared that he was on the shoulder of the road, beside the truck, when the collision took place. From his vantage point, his view was obstructed by the truck. He claimed to have first heard the collision. He immediately took five big steps onto the highway, and then saw the Beetle and the jeepney colliding. In short, the sound of the collision took place before the actual collision itself. If true, this would rate as one of the greatest scientific revelations of all time. But since the courts are obliged to take judicial notice of the laws of nature, this court prefers to side with prudence. Republic and UP vs Rosario GR No. 186635, January 27, 2016 Rosario filed an action for reconstitution of her alleged title to certain properties in Diliman. UP opposed on the ground that the properties actually belong to UP and that ownership over the said lots have been settled by law and jurisprudence. For instance, UP alleged that RA No. 9500 which provides that the absolute ownership of the national university over those landholdings, including those covered by original and transfer certificates of title in the name of the University of the Philippines and their future derivatives, is hereby confirmed. July 9 Part 1 | Du Section 2. Judicial Notice, When Discretionary. — A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. (2) Let’s first try to distinguish between Section 1 and Section 2: You can even make a case that if the court does not take judicial notice of a matter that is covered by Section 1, it would simply mean that that court is actually neglecting to perform a ministerial duty. To my mind, when it comes to Section 1, there will always be the possibility that the judge or the court might be liable in mandamus. Pwede i-compel because that is a ministerial duty. But with respect to Section 2, because of course there is exercise of discretion and it is not mandatory as is meant by the word “may”. It is purely within the judgment or the discretion of the court whether or not to take judicial notice.

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It is termed discretionary because it depends on the judgment of the court. No party can compel another to take judicial notice of a matter because it is not one of the mandatory objects of judicial notice in Section 1. Requisites: 1. The matter must be one of common and general knowledge; 2. It must be well and authoritatively settled and not doubtful or uncertain; and 3. It must be known to be within the limits of the jurisdiction of the court. What does “common knowledge” mean? The concept of "facts of common knowledge" in the context of judicial notice has been explained as those facts that are "so commonly known in the community as to make it unprofitable to require proof, and so certainly known x x x as to make it indisputable among reasonable men." (Magdalo Para sa Pagbabago vs. COMELEC) Take note of the phraseology of the SC there. “Unprofitable to require proof” - meaning, wala kay makuha kung kintahay magrequire pa ka ug proof on this matter.

Magdalo Para sa Pagbabago vs. COMELEC G.R. No. 190793, June 19, 2012

FACTS: Petitioner Magdalo sa Pagbabago (MAGDALO) filed its Petition for Registration with the COMELEC, seeking its registration and/or accreditation as a regional political party based in the National Capital Region (NCR) for participation in the 10 May 2010 National and Local Elections. Remember, if you are a political part, if you are duly registered, you are accorded certain rights under the Omnibus Election Code. The COMELEC denied their petition for registration as a political party. Why? It took judicial notice that (1) Magdalo was responsible for the Oakwood Mutiny; and (2) that it employed violence and used unlawful means “to achieve their goals in the process defying the laws of organized societies.” We know, that under Election Law, if you are such an organization, you employ violence and use unlawful means to achieve your objectives, what will happen? You will be denied registration. Magdalo posited that the COMELEC cannot take judicial notice of those facts. Magdalo contended that it was grave abuse of discretion for the COMELEC to have denied the Petition for Registration not on the basis of facts or evidence on record, but on mere speculation and conjectures. Atik2 lang kuno na ang Madgalo employed violence, etc.

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ISSUE: Was the COMELEC correct in taking judicial notice of those facts? RULING: YES. This Court has, in a string of cases, already taken judicial notice of the factual circumstances surrounding the Oakwood standoff. xxx That the Oakwood incident was widely known and extensively covered by the media made it a proper subject of judicial notice. Thus, the COMELEC did not commit grave abuse of discretion when it treated these facts as public knowledge, and took cognizance thereof without requiring the introduction and reception of evidence thereon. So, it took judicial notice. Why? Because according to the COMELEC, wala man tay makuha kung magrequire pa ta ug proof on this matter. Why do we need to require proof when in fact it was so commonly known to everybody that Magdalo was actually responsible for the Oakwood Mutiny. As publicly announced by the leaders of MAGDALO (prominently Antonio Trillanes) during the siege, their objectives were to express their dissatisfaction with the administration of former President Arroyo, and to divulge the alleged corruption in the military and the supposed sale of arms to enemies of the state. Ultimately, they wanted the President, her cabinet members, and the top officials of the AFP and the PNP to resign. To achieve these goals, MAGDALO opted to seize a hotel occupied by civilians, march in the premises in full battle gear with ammunitions, and plant explosives in the building. These brash methods by which MAGDALO opted to ventilate the grievances of its members and withdraw its support from the government constituted clear acts of violence. And practically everyone knows about it. That’s clearly constitutive of violence as would deny Magdalo registration as a political party. The SC, at the very least, upheld COMELEC’s taking judicial notice of Magdalo and its participation in the Oakwood Mutiny. BUT… In the same manner that this Court takes cognizance of the facts surrounding the Oakwood incident, it also takes judicial notice of the grant of amnesty in favor of the soldiers who figured in this standoff. xxx In view of the subsequent amnesty granted in favor of the members of MAGDALO, the events that transpired during the Oakwood incident can no longer be interpreted as acts of violence in the context of the disqualifications from party registration. SC took judicial notice of two relevant matters in the case: 1. That Magdalo employed violence [Oakwood Mutiny] 2. It also took judicial notice of the grant of amnesty in favor of the soldiers including their public spokesman Trillanes.

So, there is double judicial notice in this case.

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[Discussion about amnesty of Trillanes raised in another case when DOJ question if Trillanes was in fact given amnesty] In amnesty, the offense is completely obliterated. There is no more offense. As opposed to pardon which is a private act by the President that needs to be pleaded and proved, amnesty is subject to mandatory judicial notice as an official act of the executive branch of the National Government of the Philippines with the concurrence of the legislative branch.

State Prosecutors vs. Judge Manuel Muro A.M. No. RTJ-92-876, September 19, 1994 FACTS: Judge dismissed 11 cases against Mrs. Marcos for violation of CB Circular 960 or the CB Foreign Exchange Restrictions. The dismissal was based solely on newspaper reports concerning the announcement of the president of the Philippines of the lifting of all foreign exchange restrictions as embodied in the circular. Judge said that the announcement had the effect of repealing CB 960. In other words, naghoard ug dollars si Imelda Marcos. The judge’s dismissal was because of newspaper reports saying na ingon daw ang president lifted na ang restrictions, not a law being enacted. Meaning, Imelda could no longer be charged. Nagreklamo ang SP against Judge Muro. Tama ba ang pagtake niya ug notice aning newspaper reports? RULING: No. The mere personal knowledge of the judge is not the judicial knowledge of the court, and he is not authorized to make his individual knowledge of a fact, not generally or professionally known, the basis of his action. Judicial cognizance is taken only of those matters which are "commonly" known. Jurisprudence dictates that judicial notice cannot be taken of a statute before it becomes effective. The reason is simple. A law which is not yet in force and hence, still inexistent, cannot be of common knowledge capable of ready and unquestionable demonstration, which is one of the requirements before a court can take judicial notice of a fact. Section 3. Judicial Notice, When Hearing Necessary. During the pre-trial and the trial, the court, motu proprio or upon motion, shall hear the parties on the propriety of taking judicial notice of any matter.

Before judgment or on appeal, the court, motu proprio or upon motion, may take judicial notice of any matter and shall hear the parties thereon if such matter is decisive of a material issue in the case. (3a) Changes and comments: 1. From “During trial” to “During the pre-trial and the trial”: The amendment makes the propriety of taking judicial notice a discretionary, not a mandatory, object of pre-trial. o Rule 18 does not mention the propriety of taking judicial notice as a mandatory object of pre-trial.

What did the SC do here? It remanded the case to the RTC for determination of facts as to whether or not there are really papers as to whetherr rillanes did or did not apply for amnesty. In fact in the case of Magadalo, it already took judicial notice of the amnesty. Trillanes figures prominently in this case. What is the effect of taking judicial notice? No proof is already required. But what did the SC do? The decision of the SC was really weird.

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If you examine the new Rule on Pre-trial (still under Rule 18, Section 1), the taking of judicial notice after hearing is not included as one of the purposes of pre-trial. o Naay objects of pre-trial, naa pud kanang ginatawag nato na purposes of pre-trial. However, take note that when judicial notice is taken of a matter, it dispenses with proof. This coincides with the purposes of pre-trial such as: 1. The simplification of the issues; 2. The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; and 3. Such other matters as may aid in the prompt disposition of the action. Because if a matter is already taken judicial notice of, giving the parties opportunity to be heard, in the taking of judicial notice, it avoids unnecessary proof and such other matters as may aid in the prompt disposition of the action.

July 9 Part 2 | Escritor If judicial notice is taken of a matter during pre-trial, issues are simplified, and facts are withdrawn from the necessity of proof which in turn, leads to a prompt disposition of the action, which of course, is the object of a pre-trial. 2.

From “announce its intention to take judicial notice”, to “hear the parties on the propriety of taking judicial notice”. So, what is meant by this change? From “announce” to “hear”? Take note, judicial notice can be motu proprio or upon the court’s own initiative, or upon motion. If motu proprio, it means that the court is mulling, taking judicial notice of a matter which it believes might be beneficial for purposes of expediting trial. Para di na kinahanglan i-prove gud. However, taking notice might prejudice a party. The party’s possession over the propriety of taking notice must be heard and therefore, put on record. So, if upon motion of the party, it means the taking of

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judicial notice of a matter might benefit him. Ngano man daw nimo ipa-take judicial notice if it does not give you a procedural advantage in the case? Diba? If kintahay the court will take judicial notice upon your motion, what will be the effect? You don’t have to prove it, right? So, just the same, the party heard will be allowed to oppose the motion. The same reasoning applies to the taking of judicial notice before judgment or on appeal. 3.

From “allow the parties to be heard thereon”, to “shall hear the parties on the propriety of taking judicial notice”. Unsa may significance ani? Before I used to really, really hark on this. Dili gyud ko ganahan aning Section 3 na ni. I think I made it clear in my book also. To my mind, Section 3, Judicial Notice when hearing is necessary, is actually very repugnant to the concept of judicial notice. Nganon sya repugnant? Because what is the purpose of a hearing? Under the 1997 Rules? The purpose of a hearing is to receive the evidence. And diba, judicial notice supposedly, dispenses with proof? But, with Section 3, prior to the amendment, what happens is that, before the court takes judicial notice, you have to prove to the court first that judicial notice is proper. How do you do that? By presenting evidence.

Let’s compare and contrast judicial notice with hearing during pretrial, and trial, and judicial notice hearing during judgment and on appeal. JUDICIAL NOTICE JUDICIAL NOTICE HEARING WITH HEARING BEFORE JUDGMENT AND ON DURING TRIAL AND APPEAL PRE-TRIAL Can be motu proprio or upon motion The subject can be any The subject of judicial notice must be matter. a matter that is decisive of a material issue in the case.

On appeal, the appellate court shall not conduct a trial de novo. And the whole process of appeal, as a general rule, is made thru pleading work. Wala nay presentation of evidence diha. What if the appellate court now, deems it necessary for the determination of a material issue of the case to take judicial notice na lang? Because again, it cannot conduct a trial de novo. It cannot accept new evidence as a general rule.

But, the use of the phrase, “shall hear”, contemplates a situation where the taking of judicial notice will only require oral arguments. Why do I say that? Because of the change as well to Rule 15 on hearings of motion. Unsay nakabutang sa Section 2?

A motion made in open court or in the course of a hearing or trial should immediately be resolved in open court, after the adverse party is given the opportunity to argue his or her opposition thereto.

If motu proprio, the court believes that a matter might benefit from the effect judicial notice which is expediency.

If motu proprio, the court may want to take notice of a matter that was not proved during trial and consider it for purposes of judgment.

If upon motion by one of the parties, the party feels that he may benefit from judicial notice because you feel

If made upon the motion of the party, the party feels that he will benefit from the judicial notice of a matter he was not able to present during trial.

When a motion is based on facts not appearing on record, the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (2a) Argue lang. Meaning, oral arguments lang sya. Mao na ang buot pasabot ana. Because again, kintahay dili sya oral arguments lang, what will happen? Diba mag present pa kag evidence. And right now, the presentation of evidence will be by way of judicial affidavit. Don’t tell me mag JA pa ta on the matter of whether or not the court should take judicial notice of the matter that is relevant to the litigation. That will be counter-productive to the

concept and purpose of judicial notice which is to dispense with proof. The SC changed it. Oral arguments na lang ta. Dili kinahanglan ug presentation of evidence under the old Section 3 and under the old dispensation on motions and hearing on motions.

That was Section 3 prior to the changes. To me, repugnant gyud sya to the concept of judicial notice itself.

Section 2. Motions must be in writing. — All motions shall be in writing except those made in open court or in the course of a hearing or trial.

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Meaning, the court, gikulangan. I cannot rule accordingly if there’s a certain matter of fact na wala gi-present sa mga parties. And it cannot reset itself na magbalik ta’g uno. Magpresentation na pud ta’g evidence. No.

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EVIDENCE like you wouldn’t need it anymore.

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

Kumbaga, mutake kog judicial notice kay kinahanglan nako ipahabol ning butanga nga ni. Last ditch effort. Mao ni sya ang purpose kung ikaw ang magmotion kung before judgment or on appeal.

Judicial notice is repugnant to the concept of autoptic preference. What is Autoptic Proference? Kana bitawng presentation or examination of objects. Autoptic meaning, pertaining to the eyes. Self-observation. For example, appearance or physical condition, is admissible to the court as object evidence, the same being addressed to the senses of the court under Rule 130, section 1. In relation to that, can the court take judicial notice of age as evidence by looking at a person’s appearance? Naa bay instances under the law where importante ang age? Daghan kaayo. Age sometimes can be considered as a qualifying circumstance. Age can be a mitigating or exempting circumstance. Specifically in rape cases where age can sometimes qualify a simple rape into a different form of rape.

Example: The accused had sexual intercourse with a woman below 12 years of age with her consent. Rape gihapon sya, diba? That would be statutory rape. Consent is immaterial in statutory rape. So, pag file sa case sa accused, nakita karon sa korte ang rape victim ay clearly below 12 years of age na sya. Statutory rape gyud ni. You don’t have to prove her age. Why? Because I’m taking judicial notice that clearly that kid is below 12 years of age. Is that allowed? The answer is no. because when the court observes the appearance of a person to ascertain his or her age, the court will not be taking judicial notice of anything. The court is actually taking autoptic preference. Meaning, it’s examining the evidence which is the appearance of the person. And such a process takes upon the very object of judicial notice, which is to do away with the presentation of evidence. July 9 Part 3 | Estrosas In Rule 67 (expropriation), the principle to remember there is that the fixing of just compensation is actually a judicial function. Fixing of just compensation in expropriation cases is a judicial function. It cannot be dictated. There is no law that needs to be

passed that would fix the just compensation of something, to a certain price or an equivalent in another property. That’s not

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allowed in Rule 67. In fact, when there is dispute as to the valuation of the property, it is mandatory upon the Court to appoint not more than three commissioners to determine just compensation. Meaning, there is a need to ascertain facts, but in this case of LBP v. Wycoco, what did they do? LAND BANK vs. FELICIANO F. WYCOCO G.R. Nos. 140160 & 146733, January 13, 2004 In determining just compensation of agricultural lands, the Courts cannot simply take judicial notice prevailing market value of agricultural lands. Instead, it should ask the parties to present evidence under Rule 129, Section 3. The mere personal knowledge of the judge is not the judicial knowledge of the court, and he is not authorized to make his individual knowledge of a fact, not generally or professionally known, the basis of his action. It took judicial notice of the prevailing market value of the property. According to the Supreme Court, that is not allowed. Instead, what the court should have done was to ask the party to present evidence under Rule 129, Section 3. Going back to what I was telling you a while ago, why are you going to present evidence if your purpose is to take judicial notice of something? You should have just let them present evidence without necessarily resorting to take judicial notice, right? Prior to the amendment of the rules, Section 3 was really weird because it required presentation of evidence. Now, it is made clear, merely by oral arguments. SINGSON vs. SINGSON G.R. No. 210766, January 8, 2018 Courts cannot take judicial notice that “personality disorders are generally incurable” as this is not a matter that courts are mandated to take judicial notice under Section 1, Rule 129 of the Rules of Court. If I remember it correctly, this case tackles Article 36 (Declaration of nullity of marriage on the ground of psychological capacity) – psychological incapacity to comply with the essential marital obligations of marriage.

Article 36 is really weird. Naa ba diay dili marital obligations ang marriage? Mao gani marital obligations diba kay marriage siya. Wala ma’y essential marital obligations sa boyfriend and girlfriend. Wala ma’y ing-ana, diba? So, weird ang phraseology sa Article 36. There are three elements for you to make a finding that a party is psychologically incapacitated: a) Gravity b) Juridical antecedence

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EVIDENCE c)

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Who is imputing the admission against you?

Incurability

In this case, the parties wanted the court to take judicial notice that the personality disorder is incurable, and therefore, already proven that the party is psychologically incapacitated. Assuming I remember the case wrongly, again, you may apply this to Article 36 – you should prove that the personality disorder is incurable. How do you do that? Usually by testimony of a psychiatrist or clinical psychologist (as mentioned in Republic v. Molina). Take note: Case law is now to the effect that the testimony of a medical practitioner is not indispensable to prove psychological incapacity.

It will be the adverse party who will “impute” an admission against the other party. Definition Under the case law, judicial admission or an ADMISSION IN JUDICIO is a deliberate, clear, unequivocal statement by a party about a concrete fact within that party’s knowledge. Under the law on pleadings, a judicial admission is a formal concession in the pleadings or stipulations by a party or counsel that is binding on the party making them. Although a judicial admission is not itself evidence, it has the effect of withdrawing a fact from contention.

JUDICIAL ADMISSIONS Before Amendment Section 4. Judicial admissions. – An admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. After Amendment Section 4. Judicial admissions. An admission, oral or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that the imputed admission was not, in fact, made. (4a) CHANGES and COMMENTS FIRST. From “verbal or written” to “oral or written” o With “verbal”, it means relating to or in the form of words. “Verbal” can therefore be also “written.” It might also be interpreted to mean actions as the root word is “verb.” o With “oral”, it means “by word of mouth or spoken rather than written.” o Thus, with the amendment, admissions are now clearly either spoken (by testimonies or by open court declarations) or written (by pleadings or other submissions in writing). SECOND. From “no such admission was made” to “the imputed admission was not, in fact, made” o This amendment takes into consideration applicable jurisprudence such as: o Admission was taken out of context or not in the

sense in which the admission is made to appear

SPOUSES BINARAO vs. PLUS BUILDERS, INC. G.R. No. 154430, June 16, 2006 A party may make judicial admissions in (a) the pleadings, (b) during the trial, either by verbal or written manifestations or stipulations, or (c) in other stages of the judicial proceeding. NOTE also that admissions can be express or implied, verbal or written. You can trace it already that from verbal or written, it now becomes oral or written. The phraseology before is verbal or written. ADOLFO vs. ADOLFO G.R. No. 201427, March 18, 2015 Judicial admissions may be made in (a) the pleadings filed by the parties, (b) in the course of the trial either by verbal or written manifestations or stipulations, or (c) in other stages of the judicial proceeding, as in the pre-trial of the case. Admissions obtained through depositions, written interrogatories or requests for admission are also considered judicial admissions. The facts of this case are very interesting for it allow us to review some concepts that we have previously learned in remedial law. What happened in the case of Adolfo vs. Adolfo? Note: the names of the parties are changed.

(Atillo v. Court of Appeals, G.R. No. 119053, January 23, 1997)

Remember, when you say imputed admission, you will not impute something against yourself.

ADOLFO vs. ADOLFO G.R. No. 201427, March 18, 2015 FACTS:

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Rrramon is married to Maja. In 2004, Rrramon filed a petition for judicial separation of property against his estranged wife. Maja answered that one of the properties is her exclusive property and therefor should not be made part of any judicial separation. Rrramon filed a Request for Admission asking Maja to admit that, in another case decided by the same court, Maja alleged in her answer that the same property is conjugal.1 Maja did not respond to the Request. This other case was pending appeal before the Court of Appeals. 1

If there’s an admission that such is a conjugal property, then it will be included in the judicial separation. If it is a paraphernal property, then it is really an exclusive property of Maja. Hence, not included in the judicial separation. What is the effect if you do not respond to the Request for Admission? (Take note: This is one of the modes of discovery) Under Section 2, Rule 26, each of the matter of which an admission is requested shall be deemed admitted unless you deny it. Section 2. Implied admission. — Each of the matters

of which an admission is requested shall be deemed admitted unless, within a period designated in the request, which shall not be less than fifteen (15) days after service thereof, or within such further time as the court may allow on motion, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. What was the Request for Admission about? It’s about whether you state in your pleadings in that other case that the property subject of this case is conjugal and not paraphernal. Maja did not answer so there is now an implied admission based on Rule 26. What did Rrramon do now? …continuation… Rrramon filed a Motion for Judgment on the Pleadings, stating that since Maja failed to answer his request for admission, the matters contained in the request are deemed admitted pursuant to Rule 26, Section 2 and that, as a consequence of the application of the rule, Maja is in effect considered to have admitted that the subject property is a conjugal asset of their

FIRST EXAM

subsisting marriage which may thus be the subject of his petition for judicial separation of property. The court a quo treated Maja’s failure to respond as an admission as to the nature of the property, took judicial notice of its own judgment and records in the other case, treated the prayer for judgment on the pleadings as one for summary judgment and rendered summary judgment in favor of Rrramon. There was a mistake on the part of the lawyer because what he asked was Judgment on the Pleadings, but in view of the Court, it should be for Summary Judgment. When is it permissible for the court to take judicial notice of its own judgment or records in a case that is pending before it? Courts may take judicial notice of a decision or the facts prevailing in another case sitting in the same court if: 1) The parties present them in evidence, absent any opposition from the other party; or 2) The court, in its discretion, resolves to do so. ISSUE: Was the court a quo correct in rendering judgment in favor of Rrramon on the basis of judicial notice and the judicial admission attributable to Maja’s failure to respond to the request for admission? RULING: The Supreme Court said in the matter of Judicial Notice that

while there is nothing irregular with the taking of judicial notice, the trial court disregarded the fact that its decision was then the subject of a pending appeal before the Court of Appeals. It should have known that until the appeal is resolved by the appellate court, it would be premature to render judgment on petitioner’s motion for judgment on the pleadings; that it would be presumptuous to assume that its own decision would be affirmed on appeal. One of the issues raised in the appeal is precisely whether the subject property is conjugal, or a paraphernal asset of the respondent. Thus, instead of resolving petitioner’s motion for judgment on the pleadings, the trial court should have denied it or held it in abeyance. With that, nadungagan atong knowledge. First, what is the general rule? General Rule: A court cannot take judicial notice of the records of a different case even if it is pending before it, or even if the court has knowledge that it is one handling the case previously. Exception: In the absence of objection, the court may treat it as read into the record of the present case July 9 Part 4 | Fernandez

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The court may treat it as read into the records of the present case, just like what we reviewed earlier. But as an exception to the exception: If that case that the court wants to take judicial notice of, is still pending appeal, the court should not take judicial notice of this. Because it has no right to presume that it will be upheld on appeal. After the appeal you can still file a Petition for Review (MTC to RTC; RTC to CA; CA to SC). It’s a long way to go if it’s initially cognizable by the MTC. But here it’s the CA to SC Summary judgment/ Judgment on the Pleadings ….continuation….. Petitioner could not have validly resorted to a motion for judgment on the pleadings or summary judgment. While it may appear that under Rules 34 and 35 of the 1997 Rules, he may file a motion for judgment on the pleadings or summary judgment as a result of the consequent admission by respondent that the subject property is conjugal, this is not the actually the case. Quite the contrary, by invoking the proceedings and decision in the other civil case, petitioner is precluded from obtaining judgment while the appeal in said case is pending, because the result thereof determines whether the subject property is indeed conjugal or paraphernal. He may not preempt the appeal in CAG.R CV No. 78971. Whether its summary judgment or judgment on the pleadings, the Supreme Court said No, because we don’t know if the alleged admission will be upheld on appeal. Be it again, ruling by the court was premature. REVIEW ON JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT (Amended Rules 34 and 35) JUDGMENT ON THE PLEADINGS

SUMMARY JUDGMENT

They are similar in the following respects: 1. They are both modes of accelerated judgment 2. Judgment is accelerated because there is no need for trial or reception of evidence 3. In both, all the court has to do is to examine the pleadings and other matters already on record. WHEN PROPER JUDGMENT ON THE PLEADINGS

SUMMARY JUDGMENT

FIRST EXAM

1. Proper when an answer fails to tender an issue or when an answer otherwise admits all the material allegations of the adverse party’s pleadings.

1. Proper when there is no genuine issue as to any material fact or the issue raised is a sham issue.

2. The defendant did not make any specific denial of the allegations in the complaint and therefore failed to tender issues.

2. The pleader actually pleaded specific denials and affirmative defenses and therefore tendered issues.

3. It is the plaintiff, counterclaimant, crossclaimant, or third-party plaintiff who avails of the remedy

3. Both the claimant or the defending party can avail of this remedy

4. Based solely on the pleadings

4. Based not only on the pleadings but also on affidavits, admissions, depositions and other documents

Both of them are considered litigious motions under Rule 15, Section 15 As to the First Distinction Judgment on the Pleadings Q: When is there an issue? A: In a civil complaint, there is an issue when the plaintiff and the defendant do not agree.

Q: When can you say that there issues are already joined? A: There is the complaint, defendant files answer and defendant takes issue. Meaning, does not agree to what the complaint states. Here, the court is informed of the misunderstanding or lack of agreement between the plaintiff and defendant. Summary Judgment When plaintiff asks for Summary Judgment, it means he feels the defendant is trying to raise an issue when in fact there is supposed to be no issue. And it can be proven by affidavits and depositions. As to the Second Distinction Judgment on the Pleadings Q: What’s the effect of a general denial in civil procedure? A: Effect is it’s an admission, because for you to make a denial, you have to make it specific. You have to tell the court what your version of the facts is. Summary Judgment Defendant tendered issues but were sham (atik2 lang).

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As to the Third Distinction Judgment on the Pleadings You have to be a claiming party Summary Judgment Both the claimant or the defending party can avail Both Judgment on the pleadings and Summary Judgment are considered litigious motions Brought about by the change in the Amended Rules. Remember in the Old Rules, in Rule 15, when you file a motion it should be 3 days prior to the intended date of hearing which should not be less than 10 days from the date of filing of the motion. But under the New Rules, it is wholly dependent on the discretion of the court whether to hear the motion. Section 1, Rule 34. Judgment on the pleadings. – Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading, the court may; on motion of that party, direct judgment on such pleading. However, in actions for declaration of nullity or annulment of marriage or for legal separation, the material facts alleged in the complaint shall always be proved. In actions for declaration of nullity or annulment of marriage or for legal separation, the abovementioned is always the rule. Something that would lead to the possibility of collusion or compromise, veracity of allegations should always be proved. And that there is contention between the parties.

EXAMPLE: In an action for collection of sum of money, the plaintiff alleges that the defendant secured a loan from the plaintiff and there was a prior demand to pay and the defendant did not pay. The defendant admitted all the allegations in the complaint and simply prayed to the court for leniency. In a case like this, the plaintiff may now apply Rule 34. He can file a motion in court for Judgment on the Pleadings. He will ask the court to render judgment based on what the complaint says and what the answer says. There is no more trial or presentation of evidence because the court can render a decision based on what the complaint says and what the answer says. GROUNDS: 1) When an answer fails to tender an issue; or

FIRST EXAM

When an answer otherwise admits all the material allegations of the adverse party’s pleading.

First Ground: Fails to tender an issue a. When the answer neither admits nor denies the allegations on the complaint (evasive); b.

When all the denials in the answer are general denials and not specific. A denial is general if the pleader does not state the facts relied upon in support of his denial. Such answer does not tender an issue because all the denials are general, or “no knowledge or information sufficient to form a belief” with respect to a veracity of the facts stated. (Capitol Motors v. Yabut) July 9 Part 5 | Jamero

Rule 35 Summary Judgments A motion for summary judgment may be filed by the claimant or defending party. Section 1, Rule 35. Summary judgment for claimant. — A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his or her favor upon all or any part thereof. What’s the situation here? The plaintiff filed the complaint; the defendant filed the answer. Then, at any time after the answer has been served and filed,

makita naman na karon sang plaintiff, uy burit ning issues sang defendant! Naga imbento lang sya’g defense, therefore I will move for summary judgment. What will I do? I will move with supporting affidavits, meaning I would gather some evidence na written lang no—Affidavits, depositions or admissions—saying na ang kanang mga contentions diha sa defendant, atik ra na. Walay tinuod diha, he’s lying! Or if it’s for the defending party: Section 2. Summary judgment for defending party. — A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits, depositions or admissions for a summary judgment in his or her favor as to all or any part thereof. Same philosophy applies, same thing that I told you about Section 1, pareha lang gihapon. The defendant feels burit lang nang complaint sang plaintiff! Imbento lang na sya. Maybe it could be an anticipatory filing, kay kabalo sya na file-an nako sya’g kaso, gi unahan na lang ko niya. Pwede, what will he do? He will move with supporting affidavits, depositions or admissions for summary judgment to be rendered in his favor.

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Review: What are the options available to the defendant after service of summons? Except motion for extensions. How many options does he have (at least in the 1997 Rules)? There are 4. The defendant, after service of summons, has the following options: 1. File an answer; 2. File a motion for bill of particulars; 3. File a motion to dismiss; or 4. File a motion for summary Judgment Motion to dismiss (Rule 16) has already been removed entirely from the Rules of Court. The only time you can file a motion to dismiss would be, what? When the ground is lack of jurisdiction of the subject matter, res adjudicata, litis pendencia, and prescription. Mao nalang to, kato bitaw 4 grounds that will not be barred even if you raise them for the first time on appeal. Di jud na sya ma bar, kana na mga grounds for motion to dismiss. It’s not barred by the omnibus motion rule, under Rule 9, Section 1 of the omnibus motion rule. So, mao ni sya ang imong 4 ka-options. The filing of a mere motion, either to dismiss or for bill of particulars, instead of filing an answer, allows the plaintiff to: (a) amend his complaint as a matter of right under Rule 10, Section 2; and (b) dismiss his complaint upon mere notice under Rule 17, Section 1. When a motion for summary judgment is filed, the plaintiff can no longer dismiss his complaint upon mere notice. There must be a motion approved by the court, giving the defendant an opportunity to be heard. Q: Can the plaintiff amend his complaint as a matter of right if the defendant files a motion for summary judgment in lieu of an answer? A: Technically, yes. Remember that a motion for summary judgment is not a pleading. The filing of a responsive pleading is what converts amendment from one which is a matter of right to one which is a matter of judicial discretion. So, kung dili answer ang imo i-file sa complaint, kung motion lang—whether a motion to dismiss or a motion for summary judgment—

pwede gihapon mag amend ang plaintiff sa iyang pleading as a matter of right.

BUT… Why would a defendant move for summary judgment instead of filing an answer? The defendant will only do so because he believes that the plaintiff’s cause of action against him is a sham. It is non-existent.

Kana bitaw, ay binuang gyud ni, na dili pwede na kwanon ko lang ni, kana bitaw mu file ko ug

answer because otherwise I am recognizing that

FIRST EXAM

he has a cause of action. Mu-file ko ug summary judgment. Knowing this, the plaintiff can simply amend his complaint to cure a non-existent cause of action. Note that if it appears to the court that the motion was made with intent to delay or confer jurisdiction on the court, or the pleading stated no cause of action from the beginning which could be amended, the amendment is substantial and would thus require leave of court to be made.(Mao nay nakabutang sa Sec. 3, Rule 10.) However, this does not change the fact that a motion for summary judgment is not a responsive pleading in the context of Rule 10, Sec. 2. Motion ra sya, and because it’s a motion, it does not affect the plaintiff’s right to amend his complaint as a matter of right. Section 3. Motion and proceedings thereon. — The motion shall cite the supporting affidavits, depositions or admissions, and the specific law relied upon. The adverse party may file a comment and serve opposing affidavits, depositions, or admissions within a nonextendible period of five (5) calendar days from receipt of the motion. Unless the court orders the conduct of a hearing, judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions and admissions on file, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Any action of the court on a motion for summary judgment shall not be subject of an appeal or petition for certiorari, prohibition or mandamus. (3a) 1st par: Mao ra to, no genuine issue, Sham issue ra sya. 2nd par: That’s a new insertion under Rule 35. So, unsa ning action na ni that shall not be subject to an appeal? Di nimo pwede iappeal, or petition for certiorari, prohibition or mandamus. Q: What action is the rule talking about that is not appealable? A: The action of the court whether granting or denying the motion for summary judgment, not the summary judgment itself. Because if it is the summary judgment itself, meaning gi-dismiss ang complaint sa plaintiff, or the court granted summary judgment if favor of the plaintiff and decides in favor of the plaintiff, mao na ang pwede nimo i-appeal, katong judgment mismo and not the action. Dili gani pwede ang certiorari, prohibition or mandamus. Because otherwise, that would be giving an imprimatur to litigants not to delay the determination of the main case.

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As a general rule, based on jurisprudence, ang pagrender of summary judgment—that the exception rather than the general rule. It’s extra-ordinary and rendering of summary judgment. Meaning of “genuine issue” A genuine issue means an issue of fact which calls for the presentation of evidence, as distinguished from an issue which is fictitious or contrived or which does not constitute a genuine issue for trial. (BASBAS vs. SAYSON, G.R. No. 172660, August 24, 2011) NO GENUINE ISSUE Question: What differentiates this from “fails to tender an issue”? When an answer fails to tender an issue, in effect, the plaintiff’s allegations are all admitted. Because of the admissions, there is no more need for evidence. (ngano pa man ta magpresent ug evidence, gidawat nya man tanan) If there is no need for evidence, there is no need for trial, which under Rule 30, is set for the sole purpose of receiving evidence (and no other). July 9 Part 6 | Macacua Example No. 1 In an action for a collection of sum of money, the plaintiff alleges that the defendant secured a loan from the plaintiff and there was a prior demand to pay and the defendant did not pay. The defendant admitted all the allegations in the complaint and simply prayed to the court for leniency. Take note, because of the admissions, no need for evidence. No need for trial, because judicial admission require no proof under

Rule 129 Section 4: Sec. 4 Judicial admissions. An admission, or or written, made by the party in the course of the proceedings in the same case, does not require proof. Example No. 2 In an action for collection of sum of money, the plaintiff alleges that the defendant secured a loan from the plaintiff and there was a prior demand to pay and the defendant did not pay. The defendant specifically denied all the allegations in the complaint. How will he make a specific denial? Specific Denial Defendant specifically denies the allegations in the complaint insofar as it alleges that the defendant secured a loan from the plaintiff, that there was a prior demand to pay and that defendant has not paid yet. The truth of the matter is that the defendant did not secure a loan from the Plaintiff and, assuming that there was a loan, defendant has already paid it. Question:

FIRST EXAM

Do you notice something here? Do you notice something about the specific denial of the defendant? What do you notice from his defense? Answer: The specific denial of the defendant is wholly inconsistent. You cannot deny a loan and at the same time allege that you have already paid it. Thus, the issue raised, even if there is a specific denial, is not genuine. At least one of them is clearly a sham issue. In that sham issue, what would be the effect? Pwede ka mag-move for summary judgment. Kay sham jud nah, either one of them is sham. Example No. 3 In an action for collection of sum of money, the plaintiff alleges that the defendant secured a loan from the plaintiff and the defendant did not pay. The defendant specifically denied all the allegations in the complaint. How will he make a specific denial? Specific Denial Defendant specifically denies the allegations in the complaint insofar as it alleges that the defendant secured a loan from the plaintiff, that there was a prior demand topay and that defendant has not paid yet. The truth of the matter is that, while defendant did indeed secure a loan from the plaintiff, defendant has already paid it. Very clear iyang denial, naa koy utang pero gibayran ko na na. It is an Affirmative Defense, a defense of confession and avoidance. Oo, I admit that I have a debt. But, I am avoiding payment because I already paid it. Diba affirmative defense na under the rule on pleadings. There are three (3) possible situations there: Possibility No. 1 Defendant has already paid the plaintiff (payment) If defendant has already paid the plaintiff, he will plead the existence of an actionable document, a receipt (or katong giuli na na promissory note). Thus, under Rule 8, Section 7, the substance of such document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading. (at least under the 1997 Rules). In this situation, there is a need to proceed to trial because reception of evidence (receipt) must be had. The plaintiff cannot move for judgment on the pleadings because there is a specific denial. In fact, the plaintiff has to file a reply under oath. Otherwise, the existence and

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due execution of the receipt would be deemed admitted (Rule 8, Section 8). In the same situation, the plaintiff cannot move for summary judgment because the existence of a receipt for payment tenders a genuine issue. The only time that that receipt will not tender a genuine issue is when, if that receipt is forged. Forgery siya, gipeke lang. In order for the plaintiff to properly argue na peke lang siya, and therefore it’s a sham issue, he needs to move affidavits, depositions or admissions. So, if there really is a genuine receipt, there is a need to go to trial to receive evidence as to their respective claims and defense of the parties. Possibility No. 2 Defendant has really paid the plaintiff but has no proof (payment, no proof) Defendant really paid the plaintiff but he was never issued a receipt or maybe he lost his receipt. What will happen? Defendant will prove by testimony the circumstances that show that he has already has paid. What is the ultimate effect? Reception of evidence is still required. Hence, the plaintiff cannot move for summary judgment.

IMPORTANT: Summary Judgment and Judgment of the Pleadings, none of them are viable if there is still a requirement to present evidence.

If there is anything that needs to be presented to the court, to determine a particular issue, if naa pay evidence, dili ta mag-accelerated judgment. Possibility No. 3 Defendant never really paid the plaintiff (no payment) In other words, he is inventing a defense. Nangatik ra. He is lying. Even if he specifically denied the allegations in the complaint and attempted to make an issue, everything is a SHAM. This time, the plaintiff can move for summary judgment on the ground that the answer fails to raise a genuine issue.

What will the plaintiff do? The plaintiff will move with supporting affidavits, depositions or admissions for a summary judgment in his favor. In other words, he will attach his proof that the defendant has never really paid. He will tell the Court that the defendant is lying. That’s the simplest I can explain, Rule 35 for you.

FIRST EXAM

Take note, the defendant has the option to oppose the motion together with his affidavits, depositions or admissions. But if he never really paid the plaintiff, he would not have any proof. Take not also na if wala gyud niya gibayran ang plaintiff, unsa may proof niya? Example No. 4 Plaintiff filed an action to collect a loan based on a promissory note, claiming that the defendant has not paid him yet. In his answer, defendant admitted that the plaintiff’s pleading states no cause of action as the promissory note is not yet due. That’s an affirmative defense, that’s allowed. Can the plaintiff move for summary judgment? Can the defendant, for that matter, move for summary judgment also?

Analysis

Q: How will the court determine the maturity date of the promissory note? A: By looking at the complaint. The promissory note and its maturity date are there. The attachments, the promissory note being an actionable document should be there. Q: Would the court require reception of evidence to determine if the note is due or not? A: No. Everything is stated in the pleadings. Q: If the plaintiff moves for summary judgment, what will happen? A: If the court determines that the promissory note is already due by examining the pleadings only, there is no more need for trial. The Court will simply order the defendant to pay. Anyway, the defendant already admitted the existence of the loan. In effect, the defendant did not raise a genuine issue.

That is when sometimes the Judgment on the Pleadings can become confusing with Summary Judgment. Unsa may basis diri sa korte? Tha pleadings, but it’s not summary judgment. Why? Because the defendant tried to make issue, nag-deny siya. Except that, hindi siya genuine issue. Kay pag mag ingon siyag dili pa man maturity sa note pero klaro, makita nimo sa pleadings by pleading an actionable document that it’s already matured. Q: Can the defendant move for summary judgment? A: Yes. In effect, he is telling the court to simply look at the attached promissory not and see that the debt is not yet due. If the debt is not yet due, the court will dismiss the case on the ground of prematurity. Premature pa man, wala pa man nag-ripen imong cause of action. The complaint did not raise a genuine issue. In fact, there is still no cause of action yet because there is no violation.

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I hope that clarifies Rule 34 in relation to Rule 35. Ang point lang nako na gi-raise didto, ang point nga gusto nako mahinumduman ninyo: You need to know the subtle differences between judgment on the pleadings and summary judgment (Rule 35). You need to remember that kay favourite na sa Bar Examinations. Not to mention the fact that Rule 34 and Rule 35 would be proper if the resolution of the issue, whether it is not a genuine issue or whether giadmit tanan but would require still the presentation of evidence. Dili proper ang Rule 34 and Rule 35 if manginahanglan pa og presentation of evidence. Why? Gipangutana nako na sa akong estudyante last year. Nobody got the question. ADMISSIONS ON THE PLEADINGS Admissions can be made in both initatory and responsive pleadings. Pwede ba ka naay admissions in the complaint? Pwede. Example No. 1 In a complaint, defendant Geronimo contracted a loan with plaintiff Sarah. While defendant had paid the first 5 installments, all succeeding installments remain unpaid.

FIRST EXAM

Section 8, Rule 8. How to contest such documents. — When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath specifically denies them, and sets forth what he claims to be the facts, but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. Casent Realty vs Philbanking GR No. 150731, 14 Sept 2007 Since respondent failed to file a Reply, in effect, respondent admitted the genuineness and due execution of said documents. This judicial admission should have been considered by the appellate court in resolving the demurrer to evidence. This is pursuant to Rule 129, Section 4 of the Rules of Court. IMPORTANT: Under the Rules of Procedure (1997), filing of reply is optional. If you do not file a reply, all matters alleged in the answer are deemed automatically controverted. In Casent Realty vs Philbanking (2007), you need to file a reply. It is not optional to file a reply here, according to the Supreme Court.

Unsa ang admission diha sa complaint, ang first 5 installments nabayran na, ang remaining kay wala pa. The first part is an admission, the latter part is an allegation.

Under the Amended Rules (2020), plaintiff may file a reply only if the defending party attaches an actionable document to his or her answer.

In an answer, defendant admits the allegations contained in paragraphs 1 and 2 of the complaint inasmuch as they merely allege the personal circumstances and capacities of the parties.

NATURE OF REPLY UNDER THE AMENDED RULES Section 10, Rule 6. Reply. – All new matters alleged in the answer are deemed controverted. If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint. However, the plaintiff may file a reply only if the defending party attaches an actionable document to his or her answer.

Usually, ginaadmit na lang namo na. I deny that he is a a juridical being given civil personality by the law! Alangan muingon pag ing ana, admit na lang na oy. Diba civil personality is determined by birth. Example No. 2 Actionable Documents It is a document which is the foundation of your cause of action or defense. And the law tells you how to plead an actionable document. The requirement that, kung wala nimo gi-deny under oath ang actionable document, you are deemed to have already admitted the genuineness and due execution of that actionable document.

What is this? This is Casent Realty vs Philbanking. It is a case where jurisprudence becoming the Rule. July 9 Part 7 | Maglinte A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged in, or relating to, said actionable document. In the event of an actionable document attached to the reply, the defendant may file a rejoinder if the same is based solely on an actionable document. Under the 1997 rules, there are 7 pleadings allowed, but under the amended rules, there are 8. 1. Complaint 2. Answer

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EVIDENCE 3. 4. 5. 6. 7. 8.

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Reply Counterclaim Crossclaim Third-(fourth) party complaint Complaint-in-intervention Rejoinder

The rejoinder is filed if an actionable document is attached to the reply. Rule 8, section 8 specifically applies to actions or defenses founded upon a written instrument and provides the manner of denying it. It is more controlling that Rule 6, Section 10 which merely provides the effect of failure to file a Reply. Thus, where the defense in the Answer is based on an actionable document, a Reply specifically denying it under oath must be made; otherwise, the genuineness and due execution will be deemed admitted. EFFECTS OF AMENDMENT Sec. 9. Effect of amended pleadings. – An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be offered in evidence against the pleader, and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived. EFFECT OF ADMISSIONS MADE IN THE ORIGINAL PLEADING Admissions made in the original pleadings cease to be judicial admissions (Ching v. CA, 331 SCRA 16). They are to be considered as extrajudicial admissions (Torres v. CA, 131 SCRA 224). However, admissions in superseded pleadings may be received in evidence against the pleader (Sec. 8, Rule 10, Rules of Court) and in order to be utilized as extrajudicial admissions, they must be formally offered in evidence (Ching v. CA, 331 SCRA 16). (b) Admissions during trial Admissions during trial can be verbal or written. A verbal judicial admission can take in the form of a manifestation or testimony in court. A written judicial admission can be in motions, written manifestations, briefs, memoranda, affidavits and even in a submission in answer to a request for admission. (c) Admission in other stages There can also be admissions in other sages of a case such as o PRE-TRIAL (Admissions and stipulations of fact are mandatory subjects of pre-trial) o THE AVAILMENT OF DISCOVERY PROCEDURES before trial or pending appeal (ex. Depositions, request of admission etc.) CONSTANTINO v. HEIRS OF CONSTANTINO

FIRST EXAM

Judicial admissions are legally binding on the party making the admissions. Pre-trial admission in civil cases is one of the instances of judicial admissions explicitly provided for under Section 7, Rule 18 of the Rules of Court, which mandates that the contents of the pre-trial order shall control the subsequent course of the action, thereby, defining and limiting the issues to be tried. Once the stipulations are reduced into writing and signed by the parties and their counsels, they become binding on the parties who made them. They become judicial admissions of the fact or facts stipulated. Even if placed at a disadvantageous position, a party may not be allowed to rescind them unilaterally, it must assume the consequences of the disadvantage. A party who judicially admits a fact cannot later challenge a fact cannot later challenge the fact as judicial admissions are a waiver of proof; production of evidence is dispensed with. A judicial admission also removes an admitted fact from the filed of controversy. Consequently, an admission made in the pleadings cannot be controverted by the party making such admission and are conclusive to such party, and all proofs to the contrary or inconsistent therewith should be ignored, whether objection is interposed by the party or not. The allegations, statements or admissions contained in a pleading are conclusive as against the pleader. A party cannot subsequently take a position contrary of or inconsistent with what was pleaded. STATEMENT OF THE RULE AND EFFECTS Well-settled is the rule that the judicial admissions are conclusive on the party making them (Konghun v. UCPB, G.R. NO. 154334) Conclusive – you cannot present countervailing proof. SANTIAGO VS DELOS SANTOS An admission cannot be controverted by the party making such admission and are conclusive as to him and that all proofs submitted by him contrary thereto or inconsistent therewith shall be ignored whether objection is interposed by the party or not. MUST BE MADE IN THE SAME CASE REPUBLIC GLASS VS QUA To constitute a judicial admission, it must be made in the same case in which it is offered. If made in another case or court, the fact of such admission must be proved as in the case of any other fact. Although, if made in a judicial proceeding, it is entitled to greater weight. EXCEPTIONS The admissions may be contradicted only b showing 1. That the mistake was made through PALABLE MISTAKE; or 2. That NO SUCH ADMISSION WAS IN FACT MADE. PALPABLE MISTAKE

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Palpable mistakes are mistakes that are obvious to all sides. These are mistakes that are glaring that the judge or the adverse party can see that there was really no admission made. Under the old rules, this is the only exception to the rule that a judicial admission binds the party making it.

FIRST EXAM

KING v. PEOPLE True, a pretrial agreement not signed by a party is inadmissible. However, the conviction of petitioner was based not on that agreement but on the documents submitted during the trial, all of which were admitted without any objection from her counsel.

NO SUCH ADMISSION WAS MADE They have not been made at all (Palma Devt Corp v. Municipality of Malangas Zamboanga del Sur, GR 152492) Admission was taken out of context or not in the sense in which the admission is made to appear (Atillo v. CA, GR 119053)

In Fule, prosecutor merely relied on the confession made during the pre-trial, and no other evidence was presented. In King v. People, the conviction was based not merely on the confession, but rather on the documents admitted without nay admission.

ATILLO III VS CA If a party invokes an admission of an adverse party but cites the admission out of context, then the one making the admission may show that he made no show admission or that the admission was taken out of context. This may be interpreted to mean not in the sense in which the admission is made to appear that is the reason for the codifier “such”.

RULE 130 RULES OF ADMISSIBILITY

SILOT v. DEL ROSA More importantly, Silot's counsel clearly made admissions of the content of the testimony of witness Goingo, whose presentation was dispensed with. In People v. Hernandez, we held that admissions made for the purpose of dispensing with proof of some facts are in the nature of judicial admissions. An admission made by counsel is binding upon the client. FULE v. CA The omission of the signature of the accused and his counsel, as mandatorily required by the Rules, renders the stipulation of facts inadmissible in evidence. The confirmation by the defense of the said stipulation of facts by a memorandum does not cure the defect because the Rules require both the accused and his counsel to sign such stipulation of facts. What the prosecution should have done, upon discovering that the accused did not sign the Stipulation of Facts, as required by Rule 118, was to submit evidence to establish the elements of the crime, instead of relying solely on the supposed admission of the accused in the Stipulation of Facts. Section 2. Pre-trial agreement. — All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. The agreements covering the matters referred to in section 1 of this Rule shall be approved by the court. Compare the ruling of Fule . CA and King v. People

July 22 Part 1 | Rojo

Section 1. Object as evidence. – Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. OBJECT or REAL EVIDENCE These are tangible evidence (as a weapon or visible injury) directly involved in the underlying events of the case. Matters of fact which object evidence tend to prove relate to appearance, existence, condition and other matters related to the physical characteristics of an object. Thus, in the appreciation of object evidence, the court uses the senses of sight, touch, taste and smell. It is called Real Evidence because it has reference to the RES or thing and it is the thing or object that is addressed to the senses of the court. When you talk about object evidence, the court is supposed to use its senses. By its definition, objects as evidence addressed to the senses of the court. When they are relevant to the fact in issue, they may be exhibited to be examined or viewed by the court. Remember that it is also called as real evidence because it has reference to the res or the thing, and it is the thing or object addressed to the senses of the court. When we are talking about forms of evidence, there is such thing as hierarchy of evidence. Such that in the case of People v. Lavapie, PEOPLE v. LAVAPIE G.R. No. 130209 March 14, 2001 Since the physical evidence as record runs counter to the testimonial evidence of the prosecution witnesses, conclusions as to physical evidence should prevail. It bears reiteration that

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physical evidence is that mute but eloquent manifestations of truth which rate high in our hierarchy of trustworthy evidence. In the light of the physical evidence obtaining in the case, contrary oral assertions cannot normally prevail. Greater credence is

(example: In a murder case, the murder weapon)

Object evidence is classified into: 1. Actual, physical or “autoptic” evidence: Those which have a direct relation or part in the fact or incident sought to be proven and those brought to the court for personal examination by the presiding magistrate; and 2.

Demonstrative evidence: those which represent the actual or physical object (or event in the case of pictures or videos) being offered to support or draw an inference or to aid in comprehending the verbal testimony of a witness.

Demonstrative Evidence Or evidence in the form of objects (as maps, diagrams, or models) that have in themselves no probative value but is used to illustrate and clarify the factual matter at issue. Demonstrative evidence as evidence is not prohibited, although not specifically mentioned in the Rules of Court. In appreciating demonstrative evidence, the court does not only use its 5 senses, but it also applies intelligence. Meaning, if the court is intelligent enough, it will be able to draw conclusions or inferences from the object presented. Remember also, that the evidence offered there is not the demonstrative object, but rather the testimony that is aided by the demonstrative object. Distinctions: REAL EVIDENCE Tangible object that played some actual role in the matter that gave rise to the litigation. (example: gun, knife, drugs, marked money) Intends to prove that the object is used in the underlying event.

DEMONSTRATIVE EVIDENCE Tangible evidence that merely illustrates a matter of importance in the litigation.

Intends to show that the demonstrative object fairly

represents or illustrates what it is alleged to be illustrated. To make the testimony of the witness more coherent

given to physical evidence as evidence of the highest order because it speaks more eloquently than a hundred witnesses.

Like for example, when you are talking about testimonial evidence, it can be changed. A person can always at the witness stand. A documentary evidence can be forged. But, when you talk about object evidence, an object is still the object and it actually speaks for itself. Take note of the case of People vs. Olarte. PEOPLE v. OLARTE G.R. No. 233209, March 11, 2019

FIRST EXAM

Autoptic Proference A very important term that you need to remember, in a sense that when we are talking about object evidence, mugawas jud ni siya na term. This means, in a legal parlance, as a tribunal’s self-perception, or autopsy of the thing itself (Balingit v. COMELEC). This comes from the Latin words: auto = self optic = pertaining to the eyes. That’s why this autoptic preference is related to the term autopsy being conducted. Take note of this case, CALDE v. CA G.R. No. 93980, June 17 1994 In the making of a notarial will, there is a requirement that the witnesses should sign in the presence of one another. In Calde, two witnesses testified that only one pen was used in signing the will. However, the court noted that there were two colors of pen used: black and blue. Held: A review of the facts and circumstances fails to convince us that the testamentary documents in question were subscribed and attested by the instrumental witnesses during a single occasion. The signatures of some attesting witnesses were written in blue ink, while the others were in black. This discrepancy was not explained by petitioner. Nobody of his 6 witnesses testified that two pens were used by the signatories on the two documents. In fact, two of petitioner’s witnesses even testified that only one ballpen was used in signing the two testamentary documents. The Supreme Court further discussed – That a person is of small height or is of dark complexion; as to such matters, the perception by the tribunal that the person is small or large, or that he has a dark or light complexion, is a mode of acquiring belief which is independent of inference from either testimonial or circumstantial evidence. It is the tribunal’s self-perception, or autopsy, of the thing itself. From the point of view of the litigant party furnishing this source of belief, it may be termed Autoptic Proference.

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In the case at bench, the autoptic preference contradicts the testimonial evidence produced by petitioner. The will and its codicil, upon inspection by the respondent court, show in black and white—or more accurately, in black and blue – that more than one pen was used by the signatories thereto. Thus, it was not erroneous not baseless for respondent court to disbelieve petitioner’s claim that both testamentary documents in question were subscribed to in accordance with the provisions of Art. 805 of the Civil Code.

Then, we found out by means of ocular inspection, that the trees were actually planted on the land of my client, pero naay isa ka sanga na ni intrude into the property of the private complainant. So, it was not true that the mangoes harvested were from the private complainant’s land. With that, we were able to tell the court, na kung naa may na belong kay private complainant, was katong isa lang ka sanga na naa sa boundary line of my client and the private complainant.

The Court went further said, that a person is of small height or is of

dark complexion; as to such matters, the perception by the tribunal that the person is small or large, or that he has a dark or light complexion, is a mode of acquiring belief which is independent of inference from either testimonial or circumstantial evidence. It is the tribunal’s self-perception, or autopsy, of the thing itself. From the point of view of the litigant party furnishing this source of belief, it may be termed Autoptic Proference.

That which consists in the EXHIBITION or PRODUCTION of the object inside the courtroom – Example: objects of the crime, means to perpetrate the crime, murder weapon; This means that you are physically bringing object evidence inside the courtroom for the court’s observation and perusal. Like, object of the crime, mga nakawat na na recover. So, these are brought to the court and identified by a witness.

That which consists in the INSPECTION of the object outside the courtroom – Examples: ocular inspection in a boundary dispute or ocular inspection of a crime scene;

We now went to an ocular inspection; the judge went there. There was also an interpreter, you enter your appearance just like in any other case in the land which was subject of the dispute.

What did the Supreme Court say here? According to the Supreme Court, murag dili tinuod that the witnesses signed in the presence of the testator and of one another. Also, it may lead into an inference that the witnesses did not sign the will in one single occasion. There were signatures in blue, and also in black – which means that it is not true katong g’ingon sa witnesses na isa lang daw ka pen ilang g’gamit in signing the will and codicil of the testator.

CLASSIFICATION OF OBJECT EVIDENCE BY MORAN

The usual example that I always give would be the criminal case that I have handled previously. It is a criminal case for theft. My client is the accused. My client is actually harvesting mangoes from a farmland. The contention of the private complainant was that the mangoes harvested by my client kay kawat from the land of the complainant. My client’s defense was that, he harvested the mangoes from their own land.

Discussion: In making a notarial will, we all know that the witnesses should sign in the presence of the testator and of one another. In this case of Calde, the witnesses testified that there is only 1 pen used in signing of the will. However, the court noted here that there were actually 2 pens used in the signing of the will, black and blue.

The case at bench, according to the Supreme Court clearly shown black and white, or more accurately in black and blue. So, it was clearly shown by autoptic proference that mali ang testimony sa mga witnesses, that it is not true that they signed it in one occasion, in the presence of the testator and of one another, and contrary to the provisions of the Civil Code in wills and succession.

FIRST EXAM

Take note that an ocular inspection conducted by the judge or court without the presence of the parties or without due notice is not valid, as an ocular inspection is part of the trial. At that time, we really entered our appearance in the disputed property. It was as if the court was moved outside from the courtroom, when we talk about inspection. 3.

That which consists in EXPERIMENTATION Experimentation, in evidence, refers to autoptic proference that requires manipulation of physical objects within or without the courtroom to determine a fact in issue in the case. EXPERIMENTATION INSIDE THE COURTROOM Example 1 The accused, Tyrion (a dwarf), is charged with murdering Matteo by repeatedly bashing his head with a sledgehammer. The defense can ask the accused to brandish the sledgehammer and demonstrate before the court the physical impossibility of him using it as a murder weapon. The defense may also invite the court and the prosecution to similarly manipulate the murder weapon.

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An experimentation can be the defense, asking the accused to brandish the sledgehammer and illustrate before the court the impossibility of a dwarf, for example to hit Matteo, a normal size individual. Kaya ba na sa isa ka dwarf na mabuhat na. The defense can actually also invite the court and the prosecution to similarly manipulate the murder weapon.

case] and is therefore an ineffectual means of committing the crime, the gun can be test-fired outside the courtroom. REQUISITES FOR ADMISSIBILITY OF OBJECT EVIDENCE It must: 1) BE RELEVANT TO THE FACT IN ISSUE; It must have such a relation to the fact in issue as to its existence or non-existence. Object evidence must have such a relation to the fact in issue as to induce belief in its existence or non- existence.

Also, in the case of People v. Yatar, pwede ang blood sampling conducted in open court in the presence of counsel.

Example 2 Here’s another experimentation inside the courtroom, the case of O.J. Simpson, a case of double murder happened in the United States.

PEOPLE v. RULLEPA G.R. No. 131516 March 5, 2003 A persons appearance, where relevant, is admissible as object evidence, the same being addressed to the senses of the court.

He is a popular and rich African-American athlete, played for the national league for football in the US. It just so happened that he and his wife separated. The wife went on with her life, had a boyfriend, Ron Goldman. Then, later on the crime happened, Ron Goldman and Nicole Brown were killed.

According to Wigmore: Object evidence, like any other evidence, must pass the test of admissibility and relevancy. Example. There is an exclusionary rule that would not have it admitted, the court will also not admit it.

Recovered from the scene of the crime was a pair of a bloody gloves, which the prosecution contended belonged to OJ Simpson. In order to impress in the mind of the jury, that OJ Simpson is the perpetrator, the Assistant District Attorney Christopher Darden tried to pull off a gambit. The prosecution wanted to leave an image sa jury that it was actually Simpson committed the crime, if makita sa jury na nag suot siya ug pair of the gloves. Unfortunately for the prosecution, the gloves didn’t fit. In other words, dili siguro siya ang owner of the bloody gloves, and that was enough reasonable doubt to acquit.

Thus, if an object is excluded by the law or the rules, the object is inadmissible. Autoptic preference must also be relevant and it is relevant only if it makes a fact of consequence more or less probable than in the absence of such autoptic preference. Note: Object evidence in itself does not establish the factum probandum. There is no factum probandum provable solely by object evidence.

July 22 Part 2 | Acevedo If the gloves don’t fit, you must acquit Because the gloves did not fit here, the jury actually acquitted O.J. Simpson. He actually got away with murder if he really committed the murder of Nicole Brown Simpson and Ron Goldman. EXPERIMENTATION OUTSIDE THE COURTROOM Ex: 1) A crime scene reenactment. 2) In a crime of murder, where the accused contends that the alleged murder weapon retrieved from his person is defective [meaning, it is gun pero di siya nagabuto, it could not be the murder used to kill the victim in the murder

FIRST EXAM

This means that, there is a need for testimonial sponsorship. In the case of People v. Olarte, the Supreme Court said that with respect to object evidence, it has to be authenticated in the sense that there has to have testimonial sponsorship. Someone should identify, authenticate the object in the courtroom. 2)

BE AUTHENTICATED; Meaning of Authentication Authentication simply means that the genuineness of the object must be proven.

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It requires that the admission of an object be preceded by evidence sufficient to support a finding that the object in question is what the proponent claims it to be. Purposes of Authentication (1) To prevent the introduction of an object from the one testified about; and (2) To ensure that there has been no significant changes in the object’s condition. Example. When we talk about dangerous drugs where the quantity of the illegal drugs actually is important to determine the penalty against the accused, then there should be no dag-dag-bawas. When it comes to the dangerous drugs taken by virtue of a buy-bust operation. Process of Authentication (a) Proof of Identity. Through the testimony of a witness as to objects which are readily identifiable by sight provided there is a bases for the identification by the witness which may either be: (1) The markings placed by the witness upon the object, such as his initials, his pictures in the digital camera; or Ex: You will see like when you go have court visitation, you will see taped guns. There is masking tape all around the gun, trigger and there is an initial of the police officer who takes it into custody, that is proving identity. (2) By the peculiar characteristics of the object i.e. by certain physical features which sets it apart from others of the same kind or class by which it is readily identified. Ex: (1) A hole caused by burning in a sweater, (2) the broken hilt of a knife. (3) Bolo that was used to hack or kill the victim has a defect on its handle. (b) Proof of Integrity By proving that there was no break in the chain of custody in the event the object passed into the possession of different person. This means proving the chronological sequence through which the object was handled only by persons who, by reason of their function or office, can reasonably be expected to have the right or duty to possess or handle the object. This is done by calling each of these persons to explain how and why he

FIRST EXAM

came into possession of the object and what he did with the object. When the object passed into the possession of a stranger, then there is doubt as to the integrity, if not identity of the object. This is because, there could be substitution for example. (c) Proof Integrity By proving the Proper Preservation of the object was kept in a secure place as to make contamination or alteration difficult, and it has not been brought out until its presentation in court. With respect to certain object evidence, there are still required means of authentication. Ex: Pictures or Photographs [discussed below] Authentication—Specific Objects As to pictures and photographs, maps, diagrams, the authenticity refers to proving the accuracy of the things, persons, things or places depicted in the photographs which may through the testimony of: (1) The photographer; or (2) Any one who is familiar with the persons, things, places, shown therein. Comment: Before, when we were talking about photographs, like I was starting out in practice, of course there are really cases where you need to take a photograph of something and present that in court. You cannot bring for example, the object inside the court room like illegal structures that were erected by illegal occupants over the property of your client. You cannot bring those structures inside the court room. Rather, you can photograph them and the photograph would now be the representation of the object evidence that cannot be brought inside the courtroom. In that situation, the one who authenticates the photographs would be the photographer. But in the case of Sison v People, the Supreme Court here expanded the types of persons who can actually authenticate already photographs. SISON v. PEOPLE GR No. 108280-23, Nov. 16, 1995 Facts: In a criminal case for murder, the prosecution offered as evidence photographs showing the accused mauling the victim with several of the latter’s companions. The person who took the photograph was not presented as a witness. Instead, the prosecution presented the companions of

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the victim who testified that they were the ones in the photographs.

FIRST EXAM

The daughter was not presented as a witness, only the complainant who testified that he was not familiar with the process of making the recording.

The defense objected to the admissibility of the photographs because the person who took the photographs was not presented as witness. In other words, they objected on the admissibility of the evidence on the ground that it was not authenticated by the actual photographer.

Issue: Was the tape recording properly admitted considering that the adopted daughter was not presented by the complainant who was the one who made the recording?

Issue: Is the contention of the defense, that it is only the photographer who can cause the authentication of the photograph when presented in court, tenable?

Ruling: No. The person who actually recorded should have been presented by the prosecution in order to lay the proper foundation for the admission of the purported tape recording.

Ruling: No, it is not needed. Generally, it should be identified by the photographer as to its production and testified under the circumstances in which they were produce.

In our jurisdiction, it is a rudimentary rule of evidence that before a tape recording is admissible in evidence and given probative value, the following requisites must first be established, to wit: (1) a showing that the recording device was capable of taking testimony; (2) a showing that the operator of the device was competent; (3) establishment of the authenticity and correctness of the recording; (4) a showing that changes, additions, or deletions have not been made; (5) a showing of the manner of the preservation of the recording; (6) identification of the speakers [the Supreme Court considers this as the most important]; and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.

Photographs, when presented in evidence, must be identified by the photographer as to its production and testified as to the circumstances under which they were produced. The value of this kind of evidence lies in its being a correct representation or reproduction of the original, and its admissibility is determined by its accuracy in portraying the scene at the time of the crime. The photographer, however, is not the only witness who can identify the pictures he has taken. The correctness of the photograph as a faithful representation of the object portrayed can be proved prima facie [meaning, disputably proved], either by the testimony of the person who made it or by other competent witnesses who can testify to its exactness and accuracy, after which the court can admit it subject to impeachment as to its accuracy.

The person who actually recorded should have been presented by the prosecution in order to lay the proper foundation for the admission of the purported tape recording.

Here, the photographs are admissible as evidence inasmuch as the correctness thereof was testified to by the companions of the victim.

Comment: We need to remember that during this time, cellphones are not yet available or if there is a cellphone, only those analog cellphones. Now, everybody has a smart phone. You can take a recording using your cellular phones instead of brining a tape recorder with you. Before, it was still separate. You have to buy a device, an MP3 Player and recorder [for us before]. For example, if you have an Ipad shuffle before, you are already famous, you can record, you can play music. But during our time when were still in law school, it was still Walkman [which plays a cassette tape]. Later, if you can afford, you buy deskman [a portable device that can play CDs].

Comment: The photographs here were properly authenticated and therefore it was correct for the court to admit them in evidence. AS TO TAPE RECORDINGS TORRALBA v. PEOPLE G.R. No. 153699, Aug. 22, 2005 Facts: The accused was convicted of libel. Presented in evidence was a tape recording of the radio broadcast made by the adopted daughter of the complainant.

Without the requisite authentication, there was no basis for the trail court to admit the tape recording in evidence.

July 22 Part 3 | Amistad PEOPLE v. OLARTE GR No. 233209 | March 11, 2019

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Again take note, to avoid substitution or contamination, these nonunique objects should be made unique by the law enforcers (i.e. there should be proper handling and marking in order for these objects to be authenticated later on) CATEGORIES OF OBJECT EVIDENCE (For purposes of authentication) Unique objects – a. Already exhibit identifiable visual or physical peculiarities such as particular paint job or an accidental scratch, dent, cut, chip, disfigurement or stain (objects made unique). b. Have a readily distinguishable mark such as a unit-specific serial number in case of an industrially manufactured item (unique objects per se). When you compare objects made unique with unique objects per se, the former became unique because of certain peculiarities. Non-unique objects – Those which have no identifying marks and cannot be marked (e.g. footprints left at a crime scene) Chain of Custody It is necessary to establish chain of custody when the object evidence is non-unique as it is not readily identifiable, was not made identifiable or cannot be made identifiable, e.g. drops of blood or oil, drugs in powder form, fiber, grains of sand and similar objects. The onus is upon the officer who retrieved or confiscated this non-unique object.

Purposes of establishing a chain of custody 1. To guaranty the integrity of the physical evidence; and 2. To prevent the introduction of evidence which is not authentic.

Actual evidence is subdivided into three categories: 1. Unique objects or those that have readily identifiable marks; 2. Object made unique or those that are made readily identifiable; and 3. Non-unique objects or those with no identifying marks. Non-unique objects such as narcotic substances, industrial chemicals, and body fluids cannot be distinguished and are not readily identifiable; that is why they present an inherent problem of fungibility or substitutability and contamination which adversely affects their relevance or probative value. This is the reason why non-unique objects have to be made unique by law enforcers upon retrieval or confiscation in order for these articles to be authenticated by a sponsoring witness so that trial and reviewing courts can determine their relevance or probative value.

FIRST EXAM

NOT BE HEARSAY; The one who should testify about the object evidence is somebody who has a personal knowledge of the object itself .

NOT BE PRIVILEGED OR OTHERWISE EXCLUDED; and Otherwise excluded—The Axiom of Competency. If it is not excluded by the law or the rules, it can be admitted into evidence. Examples: Wiretapped recording proposed to be played in court, exhibition of a private video which might offend a person’s right to privacy, fruit of the poisonous tree.

RIGHT AGAINST SELF-INCRIMINATION PEOPLE v. YATAR GR no 150224 | May 19, 2004 Would the use of blood samples taken from the Accused violate his right to remain silent and his right against self-incrimination? HELD: NO. The kernel of the right is not against all compulsion, but against testimonial compulsion. (Meaning, it does not apply to purely physical and mechanical acts.) The right against selfincrimination is simply, against the legal process of extracting from the lips of the accused an admission of guilt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence. Hence, a person may be compelled to submit to fingerprinting, photographing, paraffin, blood and DNA, as there is no testimonial compulsion involved. This case is very important since this is the case where the Supreme Court held that compulsory DNA testing is allowed and in Herera vs. Alba, the SC also paved the way for compulsory DNA testing in civil cases.

Handwriting? Q: Can a person be compelled to produce a sample of his handwriting as basis for determining his criminal liability as the author of a certain document?

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III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

FIRST EXAM

July 22 Part 4 | Bahalla A: NO. Writing is not a mere mechanical act but involves the application of the intellect. However, if the accused testifies in his own behalf and denies authorship, he may be compelled to give a sample of his handwriting. PEOPLE v. WILLIAM G.R. No. 93742 | June 15, 1992 Would object evidence be inadmissible on the ground that it is “beyond the commerce of man”? Brief background: His client’s marijuana was confiscated. He says, “inadmissible your honor because it is beyond the commerce of man” HELD: NO. The probative value of an object evidence is not affected by the fact that it is beyond the commerce of man. Appellants raise the strange argument that Exhibit “C” has no probative value because the subject thereof – marijuana – is beyond the commerce of man. This is simple absurd. The transfer of marijuana was incidental to the arrest of appellants and the confiscation of the subject matter of the crime. Exhibit “C” is in the same category as a death certificate and autopsy report which are admissible evidence of the subject of the crime – the human cadaver which is also beyond the commerce of man. Transfer of goods as a consequence or by virtue of police or state action such as forfeiture, seizure, condemnation, confiscation did not fall within the phrase “commerce of man” even in its broadest meaning. PEOPLE v. BRECINIO G.R. No. 138534 | March 1, 2004 Matteo was charged with murder for shooting Gerald. After trial, Matteo was found guilty as charged. On appeal, Matteo argued that the trial court should have acquitted him as his guilt was not proved beyond reasonable doubt. He argues that the paraffin test conducted on him 2 days after he was arrested yielded a negative result. Hence, he could not have shot Gerald. Is Matteo correct? HELD: NO. While the paraffin test was negative, such fact alone did not ipso facto prove that Matteo is innocent. A negative paraffin result is not conclusive proof that a person has not fired a gun. It is possible to fire a gun and yet be negative for nitrates, as when the culprit is wearing gloves or he washes his hands afterwards. Hence, since Matteo submitted himself for paraffin testing only two days after the shooting it was likely he had already washed his hands thoroughly, thus removing all trace of nitrates therefrom.

PEOPLE v. BRECINIO GR no 138534 | March 17, 2004 Held: Matteo is not correct. A negative paraffin result is not conclusive proof that a person has not fired a gun. It is possible to fire a gun and yet be negative for nitrates as when the culprit is wearing gloves or he washes his hands afterwards. Here, since Matteo submitted himself for paraffin test only two days after the shooting, it was likely he had already washed his hands thoroughly, thus removing all traces of nitrates therefrom. Paraffin Test: When you discharge a gun, it will leave nitrates on your hands because of the gun powder that is used. 5)

MEET ANY ADDITIONAL REQUIREMENT SET BY LAW. Section 21, RA 9165 or the Special Chain of Custody requirement in Drug Cases. Remember, we also included Chain of Custody in our earlier discussion. But when you talk about RA 9165, remember that the chain of Custody requirement is unique to drugs cases only. The procedures that are described here are uniquely applicable only when you talk about confiscated drugs. These witnesses would then describe the precaution taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. (Lopez vs. People)

Now, let’s look at that Chain of Custody Requirement.

Section 21. Custody and Disposition of Confiscated, Seized,and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: 1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice, and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

FIRST EXAM

Remember, this requirement is for drugs cases only. For guns, for example, there is no requirement that there should be a representative from media, and the Department of Justice, and elected public official.

chain starting from the turnover by the accused to the investigator and from the latter to the forensic chemist. Acquitted ang accused because there was no explanation why they deviated from the usual chain of custody requirements.

And Section 21 was supposed to answer the call for more accountability on the part of the PDEA or police officers conducting buy-bust operations kay kuno, ingon nila, planted daw. Daghan kaayo mga defense na planted lang ang drugs. Everybody will say that it is planted. Parehag defense tanan halos.

RA 9165 was amended by RA 10640. It simply legislates the saving clause stated by the Supreme Court.

Q: What would be the effect now if this Chain of Custody in Section 21 is not followed strictly? What’s the effect of lapses of Chain of Custody? In People vs. Eugenio, its non-compliance will not render the arrest illegal or the item seized or confiscated from him inadmissible. So, it does not affect admissibility of the seized drugs. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items as the same would be utilized in the determination of guilt or innocence of the accused. In People vs. Macatingag, the Supreme Court said here that if there is non-compliance of Section 21, the problem is not admissibility but merely weight- the evidentiary merit or probative value- to be given the evidence. The weight to be given by the courts on said evidence depends on the circumstances obtaining in each case. So, the court has always been consistent here. Minor lapses basta ma-explain lang sya ngano nay ingana nga lapse, it does not affect the admissibility of the evidence. So, in People vs. Almorfe, a different ruling was reached by the Supreme Court. So here, after a buy-bust operation, the drugs in the possession of the accused were seized. However, the drugs were not physically inventoried and photographed in the presence of the accused. The accused were later on convicted. The issue is whether the drugs are admissible. The Supreme Court said, anent the noncompliance with the inventory and photographic requirement, the same does not necessarily render void and invalid the seizure of the dangerous drugs. There must, however, be justifiable grounds to warrant exception therefrom, and provided that the integrity and evidentiary value of the seized items are properly preserved. So, according to the Supreme Court, for the saving clause to apply, it is important that the prosecution should explain the reasons behind the procedural lapses and that the integrity and value of the seized evidence had been preserved. So, there must be explanation if there’s a deviation from the usual chain of custody procedure, dapat iexplain kaning mga lapses. And the Supreme Court took judicial notice of the fact that while a prefect chain of custody is impossible to achieve, an unbroken chain becomes indispensable and essential in the prosecution of drug cases owing to its susceptibility to alteration, tampering, contamination, and even substitution and exchange. Hence, every link of the chain must be accounted for. Here, since the prosecution failed to account for every link on the

“(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, That the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures: Provided, finally, That noncompliance of these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures and custody over said items. Now, here’s an interesting case also- the case of People vs. Villarta. So, what happened here? After a buy-bust operation, the arresting officer seized the illegal drugs from the accused at the locus crminis or the scene of the crime and did not mark them immediately but marked the same only after he got to the police station. He testified that he forgot to bring a marking pen at the place of arrest and seizure. Should he be acquitted? According to the Supreme Court, the accused should be acquitted. Di lang ni siya basta gap in the chain of custody. It is a gap in the very first link of the chain. Marking after seizure is the starting point in the custodial link. Marking is important because: 1. Succeeding handlers of the specimen will use the markings as reference. 2. Marking serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of the criminal proceedings, obviating switching, ‘planting,’ or contamination of evidence. Q: Is it a procedural matter or a substantive matter (considering that the chain of custody requirements are provided by statute or substantive law, RA 9165 as amended by RA 10640)?

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III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

FIRST EXAM

A: According to the Supreme Court, while substantive law is that which declares what acts are crimes and prescribes the punishment for committing them, as distinguished from the procedural law which provides or regulates the steps by which one who commits a crime is to be punished. Based on the above, it may be gleaned that the chain of custody rule is a matter of evidence and a rule of Procedure. It is, therefore, the Court who has the last say regarding the appreciation of evidence. (People vs. Teng)

Q: What are the relevant objects in a buy bust operation? A: Drugs and marked money.

When can presentation of objects be dispensed with and replaced by mere testimony or documents? IF: 1. Its exhibition is contrary to public morals or decency

Q: Will the chain of custody requirements also apply to marked money? Sir: Only to the drugs and the drug paraphernalia because the amount of money that is simulatedly exchanged in a buy bust operation is not relevant in determining the penalty of the accused.

To require being viewed in court or in ocular inspection would result in delays, inconvenience, or unnecessary expenses which is not in proportion to the evidentiary value of such object. Such object evidence would be confusing or misleading as when the purpose is to prove the former condition of the object and there is no preliminary showing that there has been no substantial change in the said condition; which is applicable to ocular inspections; or

The testimonial or documentary evidence already presented clearly portrays the object in question as to render the view thereof unnecessary.

Where the existence of the object is not very the fact in issue but is merely a collateral fact or is merely used as reference.

Where the article cannot be recovered or outside the coercive jurisdiction of the court.

In crimes the gist of which is the illegal possession of article, a distinction must be made. If the article is common or familiar such that it can be readily identified by sight, its presentation is not necessary. Its presentation is not necessary as existence may be shown by the testimony of the witnesses. July 30 Part 1 | Campaner

Q: How can a human be considered object evidence? A: Presenting the Cadaver before the court. Q: Can a living human be considered object evidence? A: Yes, where the individual can show his wounds before the court in a case for physical injuries. Sir: Pwede ang human body because it can be subject of autoptic proferrence.

Q: When it comes to authentication, what is the main distinguishing characteristic between marked money and the dangerous drugs themselves? A: Drugs are amorphous, the marked money are objects made unique

How is money marked? 1. 2.

By actually placing markings on the money; or Recording their serial numbers

Q: In evidentiary terms, how is an object per se considered evidence? A: An object is evidence if: The object itself is relevant to the fact in issue; It is addressed to the senses of the court; and Its presentation is made by exhibition of the object to and by examination or viewing of the object, by the court. Just a review, because we’ll be discussing about documentary evidence. Take note that prior to the amendment, the documentary evidence provision used to be quite simple. Now, there is a new phraseology that is used under the amended rules. DOCUMENTARY EVIDENCE Before amendment

Section 2. Documentary evidence. – Documents as evidence consist of writing or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents. Q: For example, you have a check, is there any situation when a blank check can be presented into evidence? A: It can be subject of theft. Q: But in that situation, will you consider it as an object or a document? A: As an object because you are not concerned about the writings on the check, but the check itself. In this instance, we are talking about the check as an object and not as a mode of written expression offered as proof of its contents. Q: What about a check that is filled up?

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

FIRST EXAM

A: If you compare this with a blank check, the previous one is an object, while this check is a document.

DOCUMENTARY EVIDENCE After amendment

When you talk about documentary evidence, at least in the simplistic way that it was defined prior to the amendments in the Rules, ang mga importante nga concepts diri kay:

Section 2. Documentary evidence. – Documents as evidence

It is a mode of written expression Meaning, it involves a deliberate intent to convey information.

consist of writings, recordings, photographs or any material containing letters, words, sounds, numbers, figures, symbols, or their equivalent, or other modes of written expression offered as proof of their contents. Photographs include still pictures, drawings, stored images, x-ray films, motion pictures or videos.

It should be offered as proof of their contents Because if the paper, for example the check, is offered not as proof of its contents but rather as proof that it simply exists, then dili sya documentary evidence, but should be properly appreciated as object evidence.

The current definition of documentary evidence, by including photographs (which encompass still pictures, drawings, stored images, x-ray films, motion pictures or videos) recordings and even sounds, has blurred the distinctions between objects and documents as evidence.

Object Evidence Addressed to the senses of the court. Offered as proof of its physical characteristics. Puti ba ang papel, gisi-gisi na ba sya Exhibited to, examined or viewed by, the court. An object is not necessarily non-papyric. A “document” can be treated as an object.

Documentary Evidence Addressed to the intelligence of the court. Offered as proof of its contents.

Read and construed by the court. A document is not necessarily paper. An “object” can be treated as a document.

Example. A ceramic tile is an object. However, if you look closely, there are writings in this tile, “hey x, you sh*thead, for the crappy services you rendered, I promise to pay 500 pesos” and signed by the person who wrote it. Now, it becomes a source of rights and obligations. It doesn’t necessarily mean that if something is in paper, it is necessarily documentary evidence or if something is non-papyric, it is necessarily object evidence. Q: Why is it important to distinguish documents from objects? A: It is important because different rules apply. Examples of such rules are: BEST EVIDENCE RULE which applies to documents only CHAIN OF CUSTODY REQUIREMENT, which apply to objects MANNER OF AUTHENTICATION, which are different for objects and documents. For documents, we apply Rule 132. For objects, we apply jurisprudence. Now let’s go to this very weird rule. Weird because somehow, it expands the definition of what consists documentary evidence.

WRITINGS, RECORDINGS, PHOTOGRAPHS Note that under the current definition, in addition to writings, recordings and photographs can now be considered as documents.

Recording

If a debtor, for example, admits in a recording that he is indebted to the creditor, the creditor may then use the material containing such admission as evidence to prove his cause of action against the debtor. So, the recording serves an evidentiary purpose. But, in the context of Section 2, is this a “mode of written expression”? Because at the simplest form, documentary evidence is simply a mode of written expression, offered as proof of its contents. So when you record something, Is it written? That’s the question that I pose to all of you. Just think about it for now. Q: In the case of Torralba vs. People, do you recall if the tape recording was offered as documentary evidence? A: It was offered as an object evidence. Q: To what sense of court was it presented? A: Sense of hearing. Gipapaminaw sa Korte ang tape recording. If you recall the case of Torralba vs. People, very clearly it was offered as an object evidence although the Supreme Court did not make a categorical announcement as to the type of evidence that was presented. Q: Would you agree with me that the tape recording was not a written expression? A: Not by its nature. This was an oral expression which was recorded by means of a recording device.

Photographs Now, let’s go to photographs. Originally, when we talked about object evidence, that there is a manner of

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

authentication of photographs. We mentioned that the manner of authenticating photographs, in the context of object evidence, na dili lang ang photographer ang pwede mag-authenticate sa photograph. It can also be someone who is familiar with the scene or situation depicted in the photograph. So, if he has personal knowledge or he is a participant in that photograph, he can authenticate the photograph. But right now, PHOTOGRAPHS include Still pictures Drawings Stored images X-ray films Motion pictures or videos Q: What do you understand of “still A: An ordinary photograph, non-moving pictures

FIRST EXAM

If you’re going to prosecute, you’re going to need both songs so that the court can determine whether or not the song was really plagiarized. Q: How would you treat the copies of both songs? Both are coherent sounds, masabtan nato ilang ginaingon. Would that be object evidence or documentary evidence? A: Object evidence because what you’re asking the court to do is to listen and compare kung naa ba gyuy similarity. Q: Is there plagiarism here? A: Yes, they are the same. They have the same musical sequence and arrangement.

pictures”?

Q: How about a drawing of a person’s face, is that documentary or object? A: By nature, it is object evidence, because we are talking about the physical characteristics of the drawing. And yet, photographs, by themselves, are also subsumed under documentary evidence. Q: How about stored images? A: However stored, an image can still be considered a document. For example, screenshots of a word or pdf file. Q: Are X-Ray films a mode of written expression? It is a photographical representation. So, it’s properly under the term photograph. But, as a mode of written expression, I don’t think so. MOTION PICTURES OR VIDEOS Recall the example that I gave you last meeting about the prosecution for concubinage where the husband recorded a VHS tape of him having carnal knowledge of another woman on the marital bed. Remember that I offered the tape as object evidence addressed to the senses of the court. How can motion picture or video be considered as a document? Is it a mode of written expression? Example. Let’s go to a footage of a CCTV camera. You can see that in the video, there’s a time and date. So, the time stamp and the date under the time stamp, what is that? That can be considered as a document because it is a mode of written expression tending to prove that an event happened at a particular time and date.

*Sir plays the Pinoy Ako and Chandeliers song What if the band who composed the Chandeliers song noticed that Orange and Lemons was trying to copy their song and try to enforce their intellectual property rights over the song?

Q: What if it is a plagiarism of lyrics of the songs? A: It can be offered as documentary evidence. Now, we are talking here not of musical expression but of written expression. We are not talking about the melody anymore, but of the lyrics. July 30 Part 2 | Du My last question to you is this, sounds man siya, right? Organized sound actually, you can hear what it is. Q: Ang music ba, per se, without looking at the lyrics, it is nonlyrical, ang melody or tema lang imong paminawon, can that be considered as document? Is it document by nature? Definitely not. Ginapalibog ta ug ayo aning bagong Section 2. To my mind, there really is a confusion that might go on because of all of these things.

Comments on the amendment: I want you to pay particular attention to this. Take note that the source of writings, recordings and photographs being considered as documentary evidence in the Philippine context is Rule 1001 of Article X of the Federal Rules of Evidence, where it defines what writings, recordings and photographs are: Rule 1001. Definitions That Apply to This Article (a) A “writing” consists of letters, words, numbers, or their equivalent set down in any form. (b) A “recording” consists of letters, words, numbers, or their equivalent recorded in any manner. (c) A “photograph” means a photographic image or its equivalent stored in any form. xxx xxx xxx Now, let me just comment: The Federal Rules, from where we patterned our amendments, does not actually have provisions which define either documentary evidence or object evidence. If you look at the entirety of the Federal Rules of Evidence, wala kay makita ngadto na object evidence or documentary evidence and their definitions.

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III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

Rule 1001 of the Federal Rules, under the heading “Article X. Contents of Writings, Recordings, and Photographs,” does not categorize writings, recordings, and photographs as “documents.” Take note of that. What is the purpose of Rule 1001? Rule 1001 lumps writings, recordings and photographs together, under one Article, for one purpose only: That is, the application of the succeeding rules on requiring the presentation of originals, the admissibility of duplicates and so on and so forth. So, there is a very particular reason why they lumped these together. What Philippine law does in the current incarnation of the Rules of Court is to lump them together or to subsume them under the definition of documentary evidence, which the Federal Rules do not do. In other words, under Article X of the Federal Rules on the “Contents of Writings, Recordings, and Photographs”, it does not matter whether such writings, recordings and photographs are considered as objects or documents. If they are writings, recordings and photographs, it does not matter whether you present them as object or documents, the succeeding rules (on presentation of originals and admissibility of duplicates) would apply. What it does provide is, if the proponent is presenting a writing, recording or photograph, he must follow the rules on originality (or our very own counterpart of the Original Document Rule). Take note as well that under previous incarnations of the Federal Rules (sometime in the late 1990s), this provision can be seen: (1) Writings and recordings. “Writing” and “recordings” consist of letters, words, or number, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation. (2) Photographs. “Photographs” include still photographs, X-ray films, video tapes, and motion pictures. The context in which we understand writings and recordings would be that they are compilations of data for purposes of intelligent analysis or to construe them. Under the old incarnation of the Federal Rules, writings, recordings and photographs – they are not classified as documents, nor are they classified as objects. What really matters simple is that if it is a writing, recording or photograph, this evidence will follow the rule on originality. Mao lang na ang requirement. The Federal Rules have since been simplified precisely because, according to the American Bar Association, the breath of the definitions contained in Rule 1001 seemingly expanded the coverage of the Rule beyond simple documents to all writings,

FIRST EXAM

recordings, and photographs, including virtually all methods of data storage. Take note as well that the old incarnations of the Rule prior to simplification and the current versions of the Federal Rules do not define objects and documents as evidence. But our rules do…

[Here is where the problem lies. We blindly copy what is stated in the Federal Rules and trying to keep in step and yet the committee which drafted the Rules of Court did not take into consideration the fact na walay definition ang documentary evidence under the Federal Rules. So what did we do? We lumped writings, recordings and photographs under the definition of documentary evidence, which to my mind, is counterproductive. We are confusing laymen. It confuses us because we blindly follow and blindly adapt.] EFFECT To the layman at least, our amended Rules create a lot of confusion. How can a motion picture or video be considered a document? How can a material containing sound for that matter be considered a document which should, simplistically speaking, just be a “mode of written expression”? SOLUTION We should not look at the nature of evidence as either document or object. Let us deconstruct our understanding of what documents and objects are. For the purpose of Sections 3 to 9, if the evidence consists in writings, recordings, photographs or any material containing letters, words, sounds, numbers, figures, symbols, or their equivalent, or other modes of written expression offered as proof of their contents, we should not care if the evidence is not a document by nature. Again, ang importante lang gyud na requirement is that it is offered as proof of its contents. That’s all we need to remember. Because otherwise, if we try to reconcile the nature of the objects or the documents, and try to make it as a trigger for the application of certain rules, then magkaproblema ta. We cannot reconcile it. If the pieces of evidence are enumerated in Section 2 and are offered “as proof of their contents,” we blindly apply Sections 3 to 9 accordingly.

A very important limitation If evidence is offered as proof of its appearance, existence, condition and other physical characteristics, regardless of whether it is in writing, a recording or a photograph, do not apply Sections 3 to 9. In that situation, clearly the intention is to offer that evidence not as document but as object. We do not look at it according to the nature but we look at it according to how or why it is being offered as evidence. DOCUMENTARY EVIDENCE

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III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

After amendment: SECTION 2. Documentary Evidence. — Documents as evidence consist of writings, recordings, photographs or any material containing letters, words, sounds, numbers, figures, symbols, or their equivalent, or other modes of written expression offered as proof of their contents. Photographs include still pictures, drawings, stored images, x-ray films, motion pictures or videos. (2a) What is the underlying theme of these matters enumerated? They are offered as proof of their contents. Never mind that phrase “modes of written expression” because clearly some of them are not modes of written expression. But they are, by themselves, modes of expression, not necessarily written. Purpose of Section 2: Regardless of the nature or physical attributes of evidence termed documentary under Section 2, the underlying purpose of the provision is the most important consideration. The description of what constitutes documentary evidence serves as a trigger to the application of the Original Document Rule and its related provisions (Sections 3 to 9 of Rule 130). Thus, the original of a writing, recording or photograph must, as a general rule, be presented in court. SECTION 4. Original of Document. — (a) An "original" of a document is the document itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data is stored in a computer or similar device, any printout or other output readable by sight or other means, shown to reflect the data accurately, is an "original." (b) A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original. (c) A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original, or (2) in the circumstances, it is unjust or inequitable to admit the duplicate in lieu of the original. (4a) DEFINITION OF ORIGINAL Prior to amendment, the original of the document was defined simply as “one the contents of which are the subject of inquiry.” While the previous definition no longer appears, it is submitted that the principle has not been totally abandoned. The document itself or the counterpart intended to have the same effect must still be the subject of inquiry.

FIRST EXAM

If it is not the subject of inquiry, it means that it is not relevant or material and would therefore (under Section 3 and 4) be inadmissible (axiom of relevancy). If it is not the subject of inquiry, why present it in the first place. Wala man siyay kalambigitan sa issue. Section 4 provides a new definition for the term “original” as applied to documentary evidence. As amended, an “original” of a document is now: 1. The document itself; or 2. Any counterpart intended to have the same effect by a person executing or issuing it. The attribute of originality may be bestowed upon a document by intention of its makers. That is the new addition to the Rules now. Again, this is taken from the Federal Rules of Evidence. Example. A person may separately write a couple of provisional receipts with identical contents without using a carbon paper. The receipts, of course, cannot be expected to be perfectly identical in form as there would be differences in writing. If the maker intends both receipts to be originals, then they are so. July 30 Part 3 | Escritor SECTION 4. Original of Document. — (c) A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original, or (2) in the circumstances, it is unjust or inequitable to admit the duplicate in lieu of the original. (4a) What’s the significance of this? Again, the duplicate is admissible to the same extent as the original as a general rule. Pareha sya sa duplicate despite the fact that the duplicate is merely a copy. It’s not an original. It is secondary evidence. However, it can be admitted to the same extent as the original, if there is no objection; either based on the lack of genuineness or unfairness of the situation under the circumstances presenting into evidence mere duplicates. So, if there is no objection, there is no need to apply the general rule requiring that the contents of a document or the subject of an inquiry, the original must be presented. How do we now construe this? It is a “filtering mechanism” before you apply the Best Evidence Rule (Original Document Rule) in Section 3. Diba, remember, under the Original Document Rule, when the subject of the inquiry or the contents of a document, no evidence shall be admissible other than the original document itself; provided, a duplicate is not admissible. Why is it not admissible? Because there is an objection.

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Before you apply Section 3, the Original Document Rule, you apply first 4(c). So, it is only after there is an objection or if it falls under 4(b) exceptions to foresee that you apply the Original Document Rule. That’s the way you should understand the relationship between the Original Document Rule and Section 4 (c). It’s an added “trigger” or “filtering mechanism” before you apply Section 3 which is the Original Document Rule.

Best evidence rule to Original Document Rule

Remember that prior to the amendments, ang tawag nato ana kay Best Evidence Rule but now there’s a change in the title. From “Best Evidence Rule” to “Original Document Rule”. If you read my book, prior to reading the updated chapter, I commented that the Best Evidence Rule is a source of misconception? It is given a meaning that it does not deserve because despite the term “best”, the rule does not proclaim itself as the best of the highest type of evidence in the hierarchy of evidence. The term “best” has nothing to do with the degree of probativeness of the document in relation to the other forms of evidence. And more accurately, it is the Original Document Rule or the Primary Evidence Rule. According to Riano, source gyud sya sa misconception and he calls it the Original Document Rule. For all intents and purposes, the Best Evidence Rule and the Original Document Rule are one and the same. Only the official nomenclature of the rule has been changed. 3. Original document must be produced; exceptions. – When the subject of inquiry is the contents of a SECTION

document, writing, recording, photograph or other record, no evidence is admissible other than the original document itself, except in the following cases: (a) When the original is lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice, or the original cannot be obtained by local judicial processes or procedures; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; (d) When the original is a public record in the custody of a public officer or is recorded in a public office; and (e) When the original is not closely-related to a controlling issue. When you talk about the Original Document Rule itself, you stop there, “No evidence is admissible other than the original document itself”.

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Take note that the Original Document Rule would be applicable only where the subject of the inquiry would be the contents of the document. If the subject of the inquiry is not the contents of the document, you have no business in applying Section 3. The rule applies only when the purpose is to establish the terms of the writing. When evidence introduced concerns some external fact about a writing, like its existence, execution, or delivery, without reference to its terms, the rule therefore cannot be invoked because in that situation, you’re actually not presenting documentary evidence. What you are presenting, you are presenting object evidence. In the case of Marquez v. Espejo, the Best Evidence Rule states that, when the subject of inquiry is the contents of a document, the best evidence is the original document itself and no other document. Such as a reproduction, photocopy, or other evidence is admissible as a general rule. The original is preferred because it reduces the chance of undetected tampering with the document. There is no room for the application of the Best Evidence Rule if there is no dispute regarding the contents of the documents. Take note, in any other exclusionary rule or rule of preference, the Original Document Rule can be waived. And it can be waived (1) if not raised at trial or (2) for failure of the other party to object. What’s the effect? The secondary evidence becomes a primary evidence if the secondary evidence is not objected to. Dapat mag-object ka gyud. But even if admitted as primary evidence, its probative value must still meet the various tests by which its reliability must be determined. Its admissibility must not be confused with its probative value. When exactly must a party make an objection? We have to jump to Rule 132, Section 35. SECTION 35. When to make offer. – All evidence must be offered orally. The offer of the testimony of a witness in evidence must be made at the time the witness is called to testify. The offer of documentary and object evidence shall be made after the presentation of a party’s testimonial evidence. When you should object depends on when the evidence is offered. All evidence must be offered orally. And then when you talk about documentary evidence, the offer shall be made after the presentation of a party’s testimonial evidence. Imagine litigation right now where testimony is in the form of Judicial Affidavits (JA). After presenting all of your witnesses through the medium of JA, subjected to cross-examination and all, take note that while presenting the testimony of a witness, you also identify and authenticate documents and objects.

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Remember that documents and objects cannot present themselves. They have to be subjected to testimonial sponsorship. They have to be sponsored at the witness stand by a competent witness. When do you formally offer your documentary evidence? Pag nahuman na tanang testimonies sa imohang witnesses. When you rest already meaning, you are not going to present any additional witnesses. That’s the time that you formally offer your documentary and object evidence for that matter also. So, when should you object? Diba ana ta, after offer? So, objections to offer of evidence must me made orally, immediately after the offer is made. So we now know the gist of the Original Document Rule. Meaning, kung dili sya original, objectionable sya. Ang gibuhat nimo kay Atenista man gud ka, nisulod ka sa korte. Pagkahuman, ni-present karon imong adversary ug document. Pagkakita nimo, clearly photocopy kay naa pay mga linya-linya. Clearly it’s not original. Pagkakita nimo sa document na dili diay sya original, niingon ka, “Objection, Your Honor! That is a photocopy and therefore violative of the Original Document Rule.” Dili pa panahon para mag-object. You object only when evidence is formally offered. And when is it formally offered again? At the end. After all the testimonial evidence has been presented. That’s the time that the documentary evidence is offered orally. That’s the time that you object. What would be particularly wrong in making a premature objection? 1. You do not know the rules. You were only taught that this rule exists; but you do not know how to use it. You have a weapon but you do not know how to fire. 2. You are giving your opponent the opportunity to correct himself. What if wala gyud diay syay laing evidence? Nalimtan niya in the end na i-present iyahang original unya nagrest na sya. Meaning, he waives presentation of additional evidence. So, ngadto na time pa ka mag-object because that is the proper time to object. In the case of Spouses Tapayan v. Martinez, January 31, 2017, the Best Evidence Rule requires that the original document be produced whenever its contents are subject of the inquiry. However, to set this rule in motion, a proper and timely objection is necessary. So, unsa ning proper and timely objection? According to the case of Spouses Tapayan, the proper time to object would be at the time when they were offered in evidence. Otherwise, such objection shall be considered as waived. Okay man nang mag-object dayon ka. Kana bitawng pagsulod pa lang nimo sa court, naa na kay objection daan, gamay na lang na push. That’s a vigilant approach. But, only when it comes to

FIRST EXAM

testimonial evidence. But when it comes to documents, there’s a proper time to object. Dili ka magpataka ug object. This is the general rule, the Best Evidence Rule. And the problem there is, you are required to present the original because the subject of the inquiry is the contents of the document; but your problem is, wala kay original, unavailable ang imohan original. So, take note, the proponent or party must present the original document or the clear copy thereof. So long as the original is available, no other evidence can be substituted for the original. July 30 Part 4 | Estrosas What should be done if the original cannot be presented? In other words, when should the exceptions apply? If the original cannot be presented, the party must find a legal justification for the failure to present the original and then present secondary evidence. The Original Document Rule can thus be restated as follows:

The original must be presented except when the proponent can justify its unavailability or non-presentation of the original in the manner provided by the rules. If the proponent has a legal justification, the presentation of the original can be dispensed with by the presentation of a copy.

In other words, the proponent has to lay the basis for the admission of the copy in lieu of the original. What are these allowed justifications? These are now the exceptions. JUSTIFICATIONS FOR NON-PRESENTATION OF THE ORIGINAL DOCUMENT a)

When the original is lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;

When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice, or the original cannot be obtained by local judicial processes or procedures; Take Note: There is only one exception in Letter B unlike in Letter A when there actually three types of exceptions subsumed in one paragraph.

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

When the original is a public record in the custody of a public officer or is recorded in a public office; and

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When the original is not closely-related to a controlling issue. Note: Letter E is taken from the Federal Rules but it has been mentioned in previous jurisprudence so it seems like nothing new.

So, let’s go to the first three exceptions (in Letter A):

FIRST EXCEPTION: LOSS, DESTRUCTION AND UNAVAILABILITY How do we define loss? Loss actually is a technical term. When it is a technical term, it admits of no other definition than that which the law provides. Where can we find that? If it is provided by the statute, if it is provided by the rules, then that becomes a technical term. It admits of no other definition than that which the law provides. If there is no statutory definition, then apply the doctrinal definition.

Dili man gud enough nga mutubag ka in your own words. Forgive me, pero naa ko’y nakita kana bitaw’ng mga pamphlet before nga nakabutang ‘how to survive law school?’, ‘how to answer questions in law school?’. Nakabutang ngadto kintahay it’s a definition question, diba, you endeavor as much as possible to use your own words. No, I don’t believe in that. You don’t survive law school in that way especially under my class. Why? Because in my class, you are taught to memorize these statutory definitions like loss which is a technical term. Article 1189 – A thing is lost when it perishes, or goes out of commerce, or disappears in such a way that its existence is unknown or cannot be recovered. (Note:

LOSS

Memorize) DESTRUCTION

UNAVAILABILITY

It means obliteration of a document such as by tearing, shredding, or burning. It includes acts of alteration that would render the contents of a document unintelligible for the purpose it is offered in evidence. (This is a doctrinal definition.) It may be physical or legal. Physical unavailability may refer to cases where the original consists of inscriptions on immovable objects or monuments and even gravestones. Let’s say you want to prove that someone has lived and died, and the records of that person could not be found because of the World War II, and you know the person is buried somewhere. What will you do? Take a photo of the gravestone. Do not bring

FIRST EXAM

the gravestone because that will be theft. Take a picture of it and that will be your documentary evidence. Legal unavailability, on the other hand, may refer to instances where the document is beyond the territorial or coercive jurisdiction of the court (e.g. cannot be subpoenaed).

ONG CHING PO, ET AL. v. COURT OF APPEALS, ET AL. G.R. Nos. 113472-73, December 20, 1994 Secondary evidence is admissible when the original documents were actually lost or destroyed. But prior to the introduction of such secondary evidence, the proponent must establish the former existence of the document. The correct order of proof is as follows: Existence (you prove the existence first) Execution (then you prove its execution) Loss (then you prove why and how it was lost) Contents (you prove its contents) This order may be changed if necessary, in the discretion of the court. (De Vera v. Aguilar, 218 SCRA 602 [1993]) XXX Note: The procedure laid down in Ong Ching Po is known as the process of laying the basis or laying the foundation. Remember the term “laying the basis” or “laying the foundation” because when we go to Rule 132, when we talk of evidence of prior and consistent statements, naa pud ta’y ginatawag nga laying the predicate. Just totally different from laying the basis or laying the foundation. Now, what will you do if you have laid the basis already? – Apply Section 5.

Section 5. When original document is unavailable. – When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his or her part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. Pursuant to Section 5, the offeror may now be allowed to prove the contents of the document by secondary evidence, in the following order: 1. By a copy of the original; or 2. By a recital of its contents in some authentic document; or 3. By the testimony of witnesses. CITIBANK v. TEODORO

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G.R. No. 150905, September 23, 2003 Production of secondary evidence requires compliance with the following: 1. The offeror must prove the execution or existence of the original; 2. The offeror must show the cause of its unavailability; and 3. The offeror must show that the unavailability was without bad faith on his part. DELA CRUZ, ET AL. v. COURT OF APPEALS, ET AL. G.R. No. 117384, October 21, 1998 It is a well-settled principle that before secondary evidence can be presented, all duplicates and/or counterparts must be accounted for, and no excuse for the non-production of the original document itself can be regarded as established until all its parts are unavailable. Comment: All duplicates and counterparts, i-explain pud na nimo. Let’s say it was made quadruplicate, and all quadruplicates were lost. So, you have to individually account for the loss of each of this duplicates or counterparts.

SECOND EXCEPTION: THE ORIGINAL IS IN THE CUSTODY OR UNDER THE CONTROL OF THE ADVERSE PARTY It means you do not have the original, you only have a copy. The mere fact that the original is in the custody or under the control of the adverse party does not ipso facto authorize the introduction of secondary evidence. The party who seeks to present secondary evidence must lay the basis or foundation for its introduction, subject to the following requisites: 1) That the original exists; 2) That said document is under the custody or control of the adverse party; 3) That the proponent of the secondary evidence has given the adverse party reasonable notice to produce the original document; and 4) That the adverse party failed to produce the original document despite the reasonable notice, or the original cannot be obtained by local judicial processes or procedures.

present secondary evidence. So, the original cannot be obtained by local judicial processes or procedures is not a separate exception because that exception is already covered in the first paragraph (unavailability). After compliance, what will you do? – Apply Section 6.

Section 6. When original document is in adverse party’s custody or control. – If the document is in the custody or under the control of the adverse party, he or she must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he or she fails to produce the document, secondary evidence may be presented as in the case of its loss. “Secondary evidence may be presented as in the case of its loss” – what does it mean? It means you apply Section 5 which provides that the document may be proved by: 1) A copy of the original; or 2) A recital of its contents in some authentic document; or 3) The testimony of the witnesses.

THIRD EXCEPTION: WHEN THE ORIGINAL CONSISTS OF NUMEROUS ACCOUNTS Under Section 3(c), secondary evidence may be presented if: 1.

The original consists of numerous accounts or other documents. An example of this would be book of accounts, receipts and similar documents. I remember a case that was finally decided with finality by the Supreme Court where my evidence was how many

boxes of receipts and invoices from three years of transactions between my client and the defendant, na nagreach ug about 23 Million ang claim namo. Nadaog nami sa RTC but wala jud nako giisa2x ug identify ang mga receipt ug invoice because this is an exception – when the original consists of numerous accounts. 2.

These documents cannot be examined in court without great loss of time. Imagine, I’ll go to Makati for the hearing, and duha ka kahon akong mga receipts and invoice. Isa-isahon nako na? It will result to great loss of time.

Mao lang na siya, requisites na siya. It doesn’t mean that the

original cannot be obtained by local judicial processes or procedures is a separate exception. That’s just a requisite of this exception. Why? You give notice to the adverse party first to produce the original document. If he cannot produce it, what’s your next remedy? Ask the court to subpoena it, ask the court for compulsory process so that the original document will be produced in court. Kung dili pa jud, that’s the time that you will be allowed to

FIRST EXAM

The fact sought to be established from them is only the general result of the whole. In other words, the purpose for the introduction of such evidence is not to examine all the documents or pages of

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documents but merely to give the judge a summary from which he may draw a logical inference as to the probability or improbability of the fact in issue. When the original consists of numerous accounts, our jurisprudential basis as what you should do would be Atlas

Consolidated Mining and Development Corporation v. CIR, G.R. No. 141104 and 148763, June 8, 2007. In fact, this was the case I cited in the Makati case that I was talking to you about. Our claim was 23 Million and actual damages almost 24 Million not to mention moral and exemplary damages, and attorney’s fees. In the end, the Supreme Court awarded us more than 30 Million…36 Million including legal interest. That was awarded by the Supreme Court with finality. So, our opponent, nagbayad nalang. Nakig settle nalang and, you know, my fee there was contingent. But I’m not going to tell you how much my contingency fee is…it’s contingent, so I’m going to be a one-day millionaire. ATLAS CONSOLIDATED MINING AND DEVELOPMENT CORPORATION v. CIR, G.R. Nos. 141104 and 148763, June 8, 2007 The party who desires to introduce as evidence such voluminous documents must, after motion and approval by the Court, present: a) A SUMMARY containing, among others, a chronological listing of the numbers, dates and amounts covered by the invoices or receipts and the amount/s of tax paid; and b) A CERTIFICATION of an independent Certified Public Accountant attesting to the correctness of the contents of the summary after making an examination, evaluation and audit of the voluminous receipts and invoices. The name of the accountant or partner of the firm in charge must be stated in the motion so that he/she can be commissioned by the Court to conduct the audit and, thereafter, testify in Court relative to such summary and certification pursuant to Rule 32 of the Rules of Court. Comment: Take note that the procedure laid down in Atlas Consolidated seems to be incorporated under the new Section 7 of Rule 130 (Summaries) because Atlas itself was taken from American jurisprudence. Then this new Section 7 was taken from Federal Rules of Evidence.

Section 7. Summaries. – When the contents of documents, records, photographs, or numerous accounts are voluminous and cannot be examined in court without great loss of time, and the fact sought to be established is only the general result of the whole, the contents of such evidence may be presented in the form of a chart, summary, or calculation. The originals shall be available for examination or copying, or both, by the adverse party at a reasonable time and place. The court may order that they be produced in court.

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July 30 Part 5 | Fernandez You cannot insist it to be examined at unreasonable hours or during midnight. You also cannot demand that the examination or copying be at a 5-Star Hotel. Also, the court may order that it be produced in court. If you doubt the components of the summary, ask the court to have it produced in court. Although I don’t think the court will individually examine all these voluminous records. WHEN THE ORIGINAL IS A PUBLIC RECORD HOW PROVED It is proved by certified copy issued by the public officer in custody thereof. You want to get a copy of your marriage contract- the Certificate of Marriage. When you go to the Civil Registrar, you only get the certified copy say for example in cases of Petition under Article 36 to prove the marriage. You cannot get the original because of:

Section 26. Irremovability of public record. - Any public record,

an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of a pending case. THE ORIGINAL IS NOT RELATED TO A CONTROLLING ISSUE The description of this under several rules would be merely a collateral matter which is proved by the original- which is not the fact in issue. Therefore, the Federal Rules similar to ours dispenses with the presentation of the original document. LEE v. PEOPLE GR 159288 October 19, 1994 The rule does not apply: (these are only collateral to the document. This is not the foundation of your cause of action or defense- hence, no need to present the original) 1. Proof of facts collateral to the issues such as the nature, appearance, or condition of physical objects; or 2. Evidence relating to a matter which does not come from the foundation of the cause of action or defense; or 3. When a party uses a document to prove the existence of an independent fact, as to which the writing is merely collated or incidental. This is what we call the Collateral Facts Rule. No need to present the original in these situations. Another Example:

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When the contract or document is one that merely substantiates the testimony. PEOPLE v. ABELLA GR 195666 January 20, 2016 It is merely corroborative it is not your main evidence Based from the book of Sir JZE: The non-presentation of the original copy of the handwritten agreement is not fatal to the prosecution’s case. Miguel personally testified before the RTC as to the circumstances of her recruitment by Abella. Abella made verbal, and not written, promises to Miguel of employment abroad. The handwritten agreement merely substantiates Miguel’s testimony at best. .

ESTRADA v. DESIERTO GR 146710-15 April 3, 2001 This case shows that the Supreme Court does not really look at the law but on fairness- which is actually a good thing. It’s just sometimes the Supreme Court overstretches itself- and it no longer legal or pursuant to the accepted principles of law. FACTS: President Estrada was constrained to leave the Malacanang. In his stead, Vice- President Arroyo took her oath as the next president. Estrada alleged that he did not resign but only was constrained to leave in order to calm the situation at that time. Part of the evidence considered by the Supreme Court in declaring President Estrada as having resigned were the newspaper accounts of the diary of then Executive Secretary Edgardo Angara. These newspaper accounts of said diary were never presented to evidence, According to the reports of the Angara Diary as appearing in the Philippine Daily Inquirer:

Angara asked Sen. Pimenetel to advise Estrada to consider the option of dignified exit or resignation. Estrada did not disagree but listened intently. At 9:30 p.m, Sen. Pimentel repeated to Estrada the urgency of making a graceful and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to go abroad with enough funds to support him and his family. Estrada expressed no objection to the suggestion for a graceful and dignified exit but said he would never leave the country. From that, Supreme Court declared in the first case that Estrada have resigned as President.

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Angara diary violated the Best Evidence Rule or the Original Document Rule as the original or the diary itself was not presented. It was merely newspaper accounts of the diary- a secondary evidence not the original. HELD: It is true that the Court relied not upon the original but only the copy of the Angara Diary as published in the Philippine Daily Inquirer. In doing so, the Court did not, however, violate the Best Evidence Rule or the Original Document Rule. The decision was based on Wigmore, in his book on evidence, which states that:

Production of the original may be dispensed with, in the trial court’s discretion, whenever in the case in hand the opponent does not bona fide dispute the contents of the document and no other useful purpose will be served by requiring production. The Supreme Court said it was perfectly admissible despite the fact that it was not an original DISCUSSION Isn’t it a fact that by raising Best Evidence Rule or making an objection based on the Best Evidence Rule that Estrada bona fide disputes the contents of the document. Estrada here was asking where that Angara Diary was. But the Supreme Court (to my mind) was stretching too mucheven if this not found in our statutes or in the Rules of Procedure even quoting Wigmore in its decision. Because it would lead to a constitutional crisis- imagine having 2 Presidents having control in the Malacanang. For me, the ruling was correct- even if it was not proper procedurally. Section 9. Party who calls for document not bound to offer it. – A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence. August 5 Part 1 | Jamero

RULES OF ADMISSIBILITY OF DOCUMENTS PAROLE EVIDENCE RULE (Sec. 10, Rule 130)

While it is subsumed under the rules of admissibility of documents, we’re not really talking about the admissibility of documents, but talking about the prohibition on testimony or other evidence that tends to modify or add to the terms of a written agreement.

In the Motion for Reconsideration, Estrada points out that the admission into evidence of mere newspaper accounts of the ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

Sec. 10. Evidence of written agreements. — When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, as between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b)The failure of the written agreement to express the true intent and agreement of the parties thereto; (c)The validity of the written agreement; or (d)The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. The term "agreement" includes wills. General Rule: When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, as between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. xxx Imagine an ordinary contractual situation: there’s the creditor, the debtor, or contracting party A, B. If you recall the case of San Miguel Properties vs. Wang, the SC laid down the stages in the life of a contract: Preparation; Perfection; Execution or the Death of the contract. I want to take particular attention to the 1st phase in the life of the contract: Preparation Stage. It is the period of haggling or soliciting conditions, where the 1st party will say, “I want to buy your property for this amount xxx” and the other party would make a counter-offer that he will buy the property for a lower amount, and then the other party would then again haggle. So, there’s a series of offers and counter-offers. When the parties’ minds have already met with respect to the terms and conditions that are to govern their contractual relationship, it is now of accepted practice that contracts will be reduce into writing. Everything that they have discussed, everything that they have met their minds on will be reduced into writing. What happens to everything else that took place prior to the drafting of the contract, or prior to reducing the contract into writing? Everything is already deemed integrated into the written agreement and that written agreement is the one given primacy by the PER. Kung sa ato pa, kung ang mga Partido gisulat na ang ilahang contrata, dili na pwede pagabaguhon pa. Dili na pwede by means of testimony or other evidence utruhon ang contracta because that would be violative of the PER. Other Names for PER: EXTRINSIC EVIDENCE-evidence that can be seen outside of the contact of the parties. EVIDENCE ALIUNDE (Latin term)

FIRST EXAM

ORAL EVIDENCE (Layman’s term; or testimonial evidence that tends to vary or modify the terms and conditions of a written agreement) IT IS A RULE OF EXCLUSION When parties have already reduced their agreement into writing, the written agreement becomes supreme. It supersedes everything they have discussed prior to the perfection of the contract. A party therefore cannot say something different from what the contract says. He cannot modify or add to its terms. Because mawala ang importance sa written agreement kung i-allow lang nimo ang isa ka party to add to its terms, to change its interpretation to suit its condition better simply by introducing evidence to the contrary. EFFECT OF PER AS A RULE OF EXCLUSION If not in the contract (as to terms and conditions), it is INADMISSIBLE. The stipulations may be valid but you cannot prove it in court. RATIONALE 1. Hierarchy of Evidence Recall that there are hierarchy of evidence; that documentary evidence prevails over testimonial evidence (GSIS vs. CA) 2.

Principle of Waiver After Integration When the parties have already integrated into a written agreement, the terms and conditions that are to govern their contractual relationship, tanan nga wala nasulat, deemed waived. Because if it is important to the parties, they should have included that into their contract. The fact that they did not include that into the contract, the law presumes that it is already waived.

Comparative Accuracy of Written Evidence Over Everything Else that Rest Merely on the Fleeting Memory of Man Ginatagaan ug primacy ang written evidence over everything na pwede bitaw ma-mali or ma-misinterpret based on the memory of man. Malay nimo mali ang pagkahinumdom, so we better rely on the written evidence. The most simplistic example when it comes to PER: Moses coming down from Mt. Sinai, and he’s bringing down supposedly the 10 commandments as written by the fingers of God himself in those tablets of stones. (talks about different commands) So, for example, diba 10 commandments, naay proof si Moses na 10 commandments lang jud sya. Can Moses say later, “By the way, naa diay nakalimtan gibutang si God sa Commandments?” So nag dungag-dungag si Moses, dili na sya pwede. Whatever is written, mao lang na ang mag govern sa relationship sa parties.

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EVIDENCE 4.

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

The Belief that Parol Evidence is Prone to Fabrication (HERBON vs. PALAD, GR NO 149542, July 20, 2006) Thus, the purpose of the parole evidence rule is to give stability to written agreements, and to remove the temptation and possibility of perjury, which would be afforded if parol evidence were admissible (CONDE vs. COURT OF APPEALS,

119 SCRA 245)

Art. 1356. Contracts shall be obligatory, in whatever form they may have been entered into, provided all the essential requisites for their validity are present. However, when the law requires that a contract be in some form in order that it may be valid or enforceable, or that a contract be proved in a certain way, that requirement is absolute and indispensable. In such cases, the right of the parties stated in the following article cannot be exercised. (1278a) Again, it could be valid between the contracting parties because a contract is not usually formal. Contracts are ordinarily consensual— perfected by consent, manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract. Enough na nay consent. But we’re talking about the provability of certain terms and conditions that are not included in the contract. While PER does not proclaim itself to be limitation on the validity of a contract, it is a requirement that must be taken into consideration as a condition precedent to a party's ability to prove the same. (So, kung wala sa kontrata, you cannot prove it.) Even if the contract is valid in its oral form, contracts being in generally and essentially consensual, it is virtually futile if you cannot therefore sue upon it or you are barred by conclusive presence of the written document relative the same agreement. REQUISITES 1. There must be an agreement; 2. The terms of the agreement must be reduced to writing; 3. The dispute is between the parties or their successors-ininterest; and 4. There is dispute as to the terms of the agreement. REQUISITE 1: AGREEMENT In order for the rule to apply, there must be an agreement. As understood, an agreement is a contract. Thus, where there is meeting of the minds between the parties and the same is reduced into writing (regardless whether notarized or not), the resulting physical contract is therefore already covered by the Rule. This general understanding is not applicable to the last part of the Rule which provides that "(t)he term 'agreement' includes wills." Verily, a will is not an agreement. It is strictly personal and unilateral act. However, by force of the Rules and in an apparent legal fiction, a will is an agreement as well although there is clearly no meeting of the minds.

FIRST EXAM

If you recall in your succession, you cannot subject the making of a will to a contract. For example, ako (Sir) ang testator, I will intstitute B as my heir provided that B also institutes me as his heir. Dili na sya pwede, this is what we call disposition captatoria. Why is the Rule Applied to Wills? The dangers (perjury) sought to be avoided by the requirement of the Rule is present in the making of the wills and are deemed to be more prevalent inasmuch as the maker of a will, the decendent, can no longer objects to attempts to vary his testamentary intent as his voice is already silenced by death. REQUISITE 2: REDUCED TO WRITING Is it required that the agreement should be in a public instrument for the applicability of the PER? NO. INCIONG vs. CA GR NO 96405 | June 26, 1996 Clearly, the rule does not specify that the written agreement be a public document. xxx. Thus, for the parol evidence rule to apply, a written contract need not be in any particular form, or be signed by both parties. August 5 Part 2 | Macacua REQUISITE 3: DISPUTE IS BETWEEN THE PARTIES OR THEIR SUCCESSOR-ININTEREST LECHUGAS v COURT OF APPEALS The rule may not properly be invoked where at least one party to the suit is not a party or privy of a party to the agreement. Thus, if one of the parties to the case is a complete stranger to the contract involved therein, he is not bound by this rule and can introduce extrinsic evidence against the efficacy of the writing. MARQUEZ v ESPEJO If you recall, mao ni to siyang voluntary land transfers. Ang nagobject on the ground na wala sa agreement, which property ba gyud daw ang gibaligya, is not a party to the agreement at all. It’s the bank. Therefore, dili mag-apply ang Parol Evidence Rule. Not a party to the agreement ang nag-object. REQUISITE 4: THERE IS DISPUTE AS TO THE TERMS OF THE AGREEMENT Thus, if the dispute between parties who are contractually bound refers to matters extraneous to the agreement or with respect to rights and obligations that do not emanate from it, the Parole Evidence Rule does not apply.

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

Take note of the exceptions. Chances are, if it is going to be asked in the Bar Examinations, the examiner will not ask you about the general rule. Ang ipangutana sa inyoha, what exceptions are applicable. Commit to memory the general rule and exceptions.

EXCEPTIONS This is when the second paragraph of Section 10 comes in: However, a party may present evidence to modify, explain or add to the terms of the written agreement if he or she puts in issue in a verified pleading: a) An intrinsic ambiguity, mistake or imperfection in the written agreement; b) The failure of the written agreement to express the true intent and agreement of the parties thereto; c) The validity of the written agreement; or d) The existence of other terms agree to by the parties or their successors in interest after the execution of the written agreement.

Comments to Amendment: 1.

He/She It is virtually unchanged, except for the fact that the Rule committees decide to be equal opportunists here. Naay “she”. Dili lang man ang lalaki ang pwede mahimong criminal, contracting party, apil ang babae. He or she. Para dili siya sexist, in a way. Verified Pleading The requirement that ang imong objection, in other words, invocation to the exception of the Parol Evidence Rule should be in a verified pleading. Example. Plaintiff filed against defendant for breach of contract. The defense is that, the contract is not breached because it did not express the true intent of the parties. That’s one of the exceptions. Ang imong answer, not verified. Now, that is an added requirement. It has to be by way of a verified pleading. (Note: how a pleading is verified).

Comment to Exceptions: In (a), there are three exceptions. In (c), you are questioning the validity of the contract. You are saying that the contract is void from inception or that naay impediment as to giving it perfect validity. In (d), mao na ang ginatwag nato na “subsequent agreement”. INTRINSIC AMBIGUITY, MISTAKE OR IMPERFECTION KINDS OF AMBIGUITY 1. Extrinsic (Patent): or 2. Intrinsic (Latent) 3. Intermediate Ambiguity (jurisprudence)

FIRST EXAM

1. Extrinsic Ambiguity Extrinsic cannot be proved by parol evidence because, by nature, it is incurable. It is a glaring mistake. Example. A will provides “I give to B something”. There is really no description here. What is that something? In the case where there is no description, it cannot be proved by parol evidence. BORILLO v COURT OF APPEALS In order to admit parol evidence to aid in the description of the subject matter of a deed or other writing, there must be a description that will serve as a foundation for such evidence; the writing must at least give some data from which the description may be found and made certain. Parol evidence is not admissible to identify the property where the description thereof is so vague as to amount to no description at all. In other words, parol evidence is not permitted to supply a description, but only to apply it. “Imperfect Description” (Falsa Demonstratio Non Nocet) The situation is different where there is a mere imperfect description. The principle of FALSA DEMONSTRATIO NON NOCET -- a false or mistaken description does not vitiate -- would then apply. If, on consideration the language of a will with the aid of any admissible extrinsic evidence, the court comes to the conclusion that the testator intended to pass something and can determine what that something is, then the fact that the testator gave it the wrong description in his will does not prevent the will taking effect in regard to the subject matter intended by the testator. The principle may be applied in whatever part of the description the error occurred. For example, shares of stocks. In his will, X makes a specific gift of shares of stock in ABZ Corporation, and X at the date of his will possessed no such stock but possessed other stock oin ABC Corporation which the court decides was meant, the latter stock passes under the gift despite the false description. 2. Intrinsic Ambiguity Intrinsic Ambiguity, on the other hand, can be proved by parol evidence.

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

Example. In a will, it is provided that the testator gives to Ramon (his nephew), P200,000. However, the testator has two nephews named Ramon. Here, by way of exception, a latent ambiguity may be explained by parol evidence, for, as the ambiguity has been brought about by circumstances extraneous to the instrument, the explanation must necessarily be sought from such circumstances outside the instrument.

FIRST EXAM

The Fred Wilson & Company contended that the capacity means receptive capacity. So, they have different interpretations of the term capacity so there is intermediate ambiguity because the term capacity is susceptible in more than one interpretation.

Rationale The cause of the ambiguity here is something outside of the written instrument. Therefore, the explanation by way of Parol Evidence can be sought outside of the instrument as well.

The SC held that extrinsic evidence or parol evidence must be looked into by looking at price listing or quotations about distilling apparatus that can actually produce 6, 000 liters a day. SC found that for the price that Song Fo paid could not have been one that would produce 6, 000 liters per day. Hence, the SC, by using extrinsic evidence, construed the term capacity to mean receptive capacity and not producing capacity.

Ambiguity is susceptible of different interpretations. Naay ginakalibugan.

Parol evidence is admissible to show which of the two interpretations was meant by the parties

MISTAKE

3. Intermediate Ambiguity This arises by the use of equivocal word/s which is susceptible of more than one interpretation. Evidence aliunde may be admitted by the court to explain or add to its meaning. Wala ni siya sa Rules of Court or Civil Code. But, naa siya sa jurisprudence. In the case of Palanca vs Fred Wilson & Co., A Chinese immigrant, Tan Quin Lay, as manager of Song Fo Company, entered into a contract with Fred Wilson & Co. for the purchase of a distilling apparatus for P10,000. He purchased the apparatus with the specification that it should have a capacity of 6,000 liters a day. We are talking about an equipment making distilling spirits, alcohol. They are going to make liquor here. After using the distilling apparatus for some time, Song Fo complained that it only produced 480 liters of alcohol per day, not 6,000 liters, and filed a case for breach of contract. Fred Wilson & Co. contended that it did not breach its contract which stated that the apparatus was of ‘de capacidad de 6,000 litros cada 24 horas de trabajo’. It said that, since the apparatus was able to process 6,000 liters of raw material per day, there was no breach of the agreement. Ngano naay ambiguity? Because of the word “capacity”. What does capacity mean? If you are Song Fo, mas pabor sa imoha na producing capacity. August 5 Part 3 | Maglinte

BPI v. Fidelity G.R. No. L- 26743, Oct. 19, 1927) First, that the mistake should be a fact; second, that the mistake should be proved by clear and convincing evidence; and, third, that the mistake should be common to both parties to the instrument. The rule is, as has been above states, that the mistake must be mutual. Magellan v. CA G.R. No. 95526, August 23 1991 The mistake contemplated as an exception to the parol evidence rule is one which is a mistake of fact mutual to the parties. Furthermore, the rules on evidence, as amended, require that in order that parol evidence may be admitted, said mistake must be put in issue by the pleadings, such that if not raised inceptively in the complaint or in the answer, as the case may be, a party can not later on be permitted to introduce parol evidence therefrom. You will be estopped. The earliest opportunity to raise the exception of mistake or any other exception must be in the complaint or answer to begin with. IMPERFECTION This simply means that the writing is incomplete and does not express the whole agreement of the parties. Here, there is a failure of the parties to lay down all the terms and conditions which are to constitute the agreement. FAILURE OF THE AGREEMENT TO REFLECT THE TRUE INTENTION OF THE PARTIES

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

The exception obtains where the written contract is so ambiguous or obscure in terms that the contractual intention of the parties cannot be understood from a mere reading of the instrument. In such a case, extrinsic evidence of the subject matter may be received to enable the court to make a proper interpretation of the instrument (Heirs of del Rosario v. de los Santos)

In the case for an annulment of sale, how will A prove that B never paid him the agreed consideration when the deed of sale has been duly acknowledged and the sale duly registered? A will prove through his testimony, that he never received the consideration.

The agreement is different compared to the actual intention. In such a case, extrinsic evidence of the subject matter of the contract of the relation of the parties to each other and of the facts and circumstances surrounding them when they entered into the contract may be received in order for the court to make a proper interpretation of the instrument.

BUT, based on the general rule, A cannot really prove that he did not receive the money, because the document will show otherwise. Any attempt on the part of A to do so will be objectionable under the PER. However, since he filed the case to nullify the deed of sale – in effect, he is raising the issue on the validity of the said document. So in this case, parol evidence is allowed to prove lack of consideration, with the exception that the pleading or complaint should be verified. Hence parol evidence is allowed to prove lack of consideration.

The validity of a written agreement Here, a party seeks to present extrinsic evidence to prove that the contract is not valid. As in all the other exceptions, he must raise the invalidity of the contract in his verified pleading at the inception whether in the complaint or answer.

Article 1409. The following contracts are inexistent and void from the beginning: (1) Those whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy; (2) Those which are absolutely simulated or fictitious; (3) Those whose cause or object did not exist at the time of the transaction; (4) Those whose object is outside the commerce of men; (5) Those which contemplate an impossible service; (6) Those where the intention of the parties relative to the principal object of the contract cannot be ascertained; (7) Those expressly prohibited or declared void by law. I am using this Art. 1409 because I want to use that as an example of Dean Inigo himself. Example: A sells to B his land for 1M. They sign a deed of sale. So: “In consideration of ONE MILLION PESOS receipt of which hereby acknowledged in full, I hereby sell this property to B xxx”. But B says that he has to go to the bank to secure

manager’s cheques as 1 Million is too large an amount to be paid in cash. A agrees to wait for B, while B rings with him the deed of sale and the title of the land. But B never came back, as he went straight to the Registry of Deeds to have the title of the property transferred over to him.

Example There is a contract which looks like a contract of sale, but the real intention of the parties was to sell the property or use the property as security for the fulfillment of an obligation (like a contract of loan).

Recall the contracts that are void ab initio including those whose cause or object did not exist at the time of the transaction. There is no contract.

FIRST EXAM

What else may be raised under “validity of a written agreement”? 1. 2. 3.

Forgery (Aloria v. Celemente) Fraud & illegality (Bought v. CAntiveros) False representation (Woodhouse v. Halili) Woodhouse v. Halili G.R. L-4811, July 31, 1953

The statement of the plaintiff was not sought to be introduced to change or alter the terms of the agreement, but to prove how he induced the defendant to enter into it – to prove the representations and inducements, or fraud, with which he secured the other party’s consent thereto. These are expressly excluded from the parol evidence rule. Fraud and false representation are an incident to the creation of a jural act, not to its integration, and are not governed by the rules of integration. Subsequent Agreements This is the exception which states: The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. Rationale

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

Why is this an exception? When the parties executed the written agreement, they have yet to enter into the subsequent agreement, meaning it came after, that is why you can prove it. The parties cannot incorporate in the contract or instrument something that they will still agree on in the future. Hypothetical Case Maja borrowed money from JZE. For this, Maja signed a promissory note in favor of JZE which fixed the maturity date on August 15, 2019. When August 15, 2019 came, Maja did not pay. Thud, JZE sues Maja for payment of the due account. Maja’s defense in her answer is that the amount is not yet due because after the execution of the promissory note, for “unwritten considerations (i.e. she’s so cute), JZE agreed to extend the period of payment until January 14, 2020.

What is Maja’s evidence? Her testimony that they entered into a subsequent oral agreement which happened after the execution of the promissory note. The subject of the subsequent oral agreement is the extension of the maturity date of the promissory note Is it admissible that they entered into an extension? Yes, because that is precisely what the exception is. This is the exception: “the existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.” Ultimately, Maja can testify in court on the subsequent oral agreement she had with JZE. The extension on the fact resulted in the novation of their previously agreed-upon maturity date. Pay attention to the fact that while it would be admissible, Maja properly invoked the exceptions to the Parol Evidence Rule, there is still difference in admissibility and believability. It would still depend upon the court to believe the testimony on parol matters. Principle to remember The parties cannot incorporate in the contract or agreement something that they will still agree on in the future. SUMMARY COVERED NOT COVERED Only PRIOR AND SUBSEQUENT AGREEMENTS, CONTEMPORANEOUS despite the fact that such AGREEMENTS which are agreements may have effect of deemed to have been merged adding to, modifying, or even in writing conformably to the altogether abrogating the “integration of the agreement contract of the parties as rule.” (Woodhouse v. Halili)

Prior – what was agreed before the contract was written Contemporaneous – what was agreed while the contract was written The moment you put your agreement in writing, everything that is not stated there are deemed waived.

FIRST EXAM

evidenced by the writing (Rule 130, sec. 10 (d)) COLLATERAL AGREEMENTS which, although oral and contemporaneous with the writing, are separate and distinct agreements. These are also known as : CONTEMPORANEOUS ORAL AGREEMENTS, or in layman’s terms, SIDE AGREEMENTS.

August 5 Part 4 | Ugdang SIDE AGREEMENTS MCIAA v CA GR 121506 Oct. 30, 1996 Sometime in 1949, the National Airport Corporation informed the owners of the various lots surrounding the Lahug Airport that the government will purchase their lands for the expansion of the airport. The landowners were convinced to sell their properties otherwise, the government will be forced to institute expropriation proceedings in courts. They were also assured that their properties will be returned to them when these are no longer being used by the airport. There is what we call “buy-back” you were allowed to buy back the property if the Lahug area will no longer be used. The landowner Ouano did not want to sell at first. However, because she was reassured by the promise that the land will be returned to her when it is no longer in use, she was persuaded to enter into a contract of sale. So, she had to had to sell the property because otherwise, they had to enter into an eminent domain (case). I would just sell the property, anyway, they would sell it back if they did not use it. Vercide, another landowner testified, that in a meeting called by the NAC, the landowners were given documents to sign and be asked for a rider or certification which would indicate that the land will be returned to him should it not be used by the airport. He testified that it was only after the rider was given to him that he signed the document of sale.

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III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

So, he had made an additional provision, specifying that if they no longer used the property as an airport, they would sell back the property to the landowner. So, what does that tell you? In the case of Ouano, there was no rider, there was no provision. But the fact that for another landowner, it has that rider or certification, it proves to you that, really, there could have then be this inducement. “its ok if we would no longer use the property, we would sell it back to you” Now, years later President Aquino ordered that the airport be transferred to Mactan. So, now it was transferred there. The grandchildren of Ouano tried to repurchase the properties originally owned by the grandmother. On Oct. 2, 1991, they wrote to Capt. Antonio Oppus, the manager of MCIAA, signifying their intention to repurchase the properties originally owned by their grandmother. Capt. Oppus denied their request because the deed of sale covering the properties did not contain any condition relating to the right to repurchase. These properties, it was explained, had become the absolute properties of National Airport Corp. Imagine, you are the landowner, you sold the property that is adjacent or near the airport. Clearly, the property had now been flattened and cleared. The airport before was in Lahug, in the middle of Cebu, before Cebu became this very very developed city. Right now, the Lahug area of the previous airport, its actually being owned by Ayala it is prime real estate, that explained why they would want the property. The grandchildren filed a case for reconveyance with the RTC. What is their allegation? The promise to resell the property. But, what MCIAA did was to refuse the repurchase. What is the contention of MCIAA? They have no evidence. Its not in the contract and not in the deed of sale. Since it is not in the deed of sale, such right to repurchase does not exist. Otherwise, if you accept evidence to that effect, it will violate the parol evidence rule. Isn’t that correct? HELD: Under the parol evidence rule, when the terms of an agreement have been reduced into writing, it is considered as containing all the terms agreed upon, and there can be, between the parties and their successors-in-interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading, the failure of the written agreement to express the true intent of the parties thereto. How did the SC rule? It stated what the parol evidence rule is, and then the exception – a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading, the failure

FIRST EXAM

of the written agreement to express the true intent of the parties thereto. The fact in which private respondents seek to establish by parol evidence consist of the agreement or representation made by NAC that induced Ouano to execute the deed of sale; that the vendors and their heirs are given the right of repurchase should the government no longer need the property. Now, here comes the exception. Where a parol contemporaneous agreement was the moving cause of the written contract, or where the parol agreement forms part of the consideration of the written contract, and it appears that the written contract was executed on the faith of the parol contract or representation, such evidence is admissible. So, it was allowed by the SC to present evidence on such promise to resell the property or the right to repurchase over the property. That is what we were talking about. The side agreement. It is not necessarily one which co-exists with the contract. That its like, we have a contract, but we have this agreement. No. it can also be INDUCEMENT to the written contract itself.

So, the SC allowed parol evidence to be presented in this case of MCIAA.

It is recognized that proof is admissible of any collateral agreements that is not inconsistent with the terms of the written contract though it may relate to the same subject matter. The rule excluding parole evidence to vary or contradict a writing does not extend so far as to preclude the admission of existing evidence to show prior or contemporaneous collateral parole agreements between the parties, but such evidence may be received, regardless of whether or not the written agreement contain any reference to such collateral agreement and whether the action is at law or in equity. Compare MCIAA with the following cases: 1. Republic v. Roque (203610 Oct. 10, 2016) 2. Republic v. Diaz Heirs Association Inc. (218732 Nov. 12, 2018) There are two cases here where the facts are somewhat similar to MCIAA. Roque – the DPWH, they are the ones who took the property for a construction President Marcos, but the case was decided in 2016. The case of Jose Gamir-Consuelo Diaz Heirs Association Inc. – it’s a Davao city case, why was the ruling of the SC different with Roque and Republic compared to MCIAA, that’s for you to read. Roque is already in my book, the Diaz is in my updates. August 5 Part 5| Rojo ABELLA v. ABELLA G.R. No. 195166, July 8, 2015

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Second, that the parol evidence sought to be presented serves to form the basis of the conclusion proposed by the presenting party. SPOUSES PARAS v. KIMWA G.R. No. 171601, April 8, 2015 Provided that a party puts in issue in its pleading any of the four (4) items enumerated, a party may present evidence to modify, explain or add to the terms of the agreement. Raising any of those items as an issue in a pleading such that it falls under the exception is not limited to the party initiating an action. If the defendant set up the affirmative defense that the contract mentioned in the complaint does not express the true agreement of the parties. Moreover, as with all possible objections to the admission of evidence, a party’s failure to timely object is deemed a waiver, and parol evidence may then be entertained. Relevancy Element Now, take note that we still have a relevancy element. Apart from pleading, these exceptions, it is equally imperative that the parol evidence sought to be introduced points to the conclusion proposed by the party presenting it. That is, it must be relevant, tending to induce belief in the existence of the flaw, true intent, or subsequent extraneous terms averred by the party seeking to introduce parol evidence. Other permitted collateral agreements Inducements and representations which led to the execution of an agreement may be proven by parol evidence because they do not vary the terms of the agreement. (Woodhouse vs. Halili, 93 Phil. 526; Bough vs. Cantiveros, 40 Phil 209). So, inducements and representations similar to MCIAA Parol evidence is admissible to prove an independent and collateral agreement which constitutes an inducement to the making of the sale or part of the consideration thereof. (Robles vs. Lizarraga, 50 Phil. 387). This is also touched upon by MCIAA.

Not covered by Parol Evidence Rule 1. ALL OTHER AGREEMENTS, whether prior and contemporaneous, subsequent or collateral, if the issue revolves around fraud and false representation since they are

incidental to the execution and not to the integration. (Woodhouse vs. Halili, G.R. No. L481, July 31, 1953).

In sum, two (2) things must be established for parol evidence to be admitted: First, that the existence of any of the four (4) exceptions has been put in issue in a party’s pleading or has not been objected to by the adverse party; and

FIRST EXAM

ALL OTHER AGREEMENTS, whether prior and contemporaneous, subsequent or collateral, when third parties, who are not privy thereto, are involved. (Lechugas vs. CA, G.R. No. L-39972, August 6, 1986).

Random notes on the Parol Evidence Rule Can you for example introduce or object to the presentation of evidence on the ground that it is a violation of parol evidence rule before the labor arbiter or DOLE? ILEU-FFE vs. INTERPHIL LABS G.R. No. 142824, December 19, 2001 The parol evidence rule cannot be invoked in tribunals not strictly bound by the rules of evidence. In labor cases pending before the Commission or the Labor Arbiter, the rules of evidence prevailing in courts of law or equity are not controlling. Rules of procedure and evidence are not applied in a very rigid and technical sense in labor cases. Hence, the Labor Arbiter is not precluded from accepting and evaluating evidence other than, and even contrary to, what is stated in the CBA. The answer in the question is NO. You cannot invoke that. They are not strictly bound by the rules on evidence. How to contradict written agreement Q: What is the quantum of proof required? PHILIPPINE NATIONAL BANK v. CUA G.R. No. 199161, April 18, 2018 To overcome the presumption that the written agreement contains all the terms of the agreement, the parol evidence must be clear and convincing and of such sufficient credibility as to overturn the written agreement. CITIBANK v. SABANIANO G.R. No. 156132, October 12, 2006 When a document is presented to prove its existence or condition it is offered not as documentary, but as real evidence. Parol evidence of the fact of execution of the documents is allowed. Kay dili man siya written agreement kung tan’awon nimo. Its’ object or real evidence. Distinctions You may not be asked about the distinctions directly. But you will be given a set of facts, where it seems that applicable either, let’s say

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the parol evidence rule and best evidence rule. So, what rule should be applied? That is why you need to know the distinctions. PAROL EVIDENCE RULE Presupposes that the original document is available in court.

Prohibits the varying of the terms of a written agreement

Applies only to documents which are contractual in nature except wills Can be invoked only when the contrary is between the parties to the written agreement and their privies

FIRST EXAM

Objection should be interposed when the document is offered (i.e. after the presentation of a party’s testimonial evidence).

BEST EVIDENCE RULE The original document is not available or there is a dispute as to whether said writing is original Prohibits the introduction of secondary evidence regardless of whether or not it varies the content of the original Applies to all kind of writing, contract or not

So, when the document is offered, just before the party rests formally.

Can be invoked by any party to an action whether he has participated or not in the writing, no limitation

Q: What about the Parol Evidence Rule? What type of evidence is objectionable here? A: Parol Evidence or evidence that is extrinsic or outside the terms of the agreement.

When exactly should a party object? Cross-reference with Rule 132. Section 35. When to make offer. — All evidence must be offered orally. The offer of the testimony of a witness in evidence must be made at the witness is called to testify. The offer of documentary and object evidence shall be made presentation of a party’s testimonial evidence. (35a) Section 36. Objections. – Objection to offer of evidence must be made orally immediately after the offer is made. Objection to the testimony of a witness for lack of a formal offer must be made as soon as the witness begins to testify. Objection to a question propounded in the course of the oral examination of a witness must be made as soon as the grounds therefor become reasonably apparent. The grounds for the objections must be specified. (36a) Q: When do you make an offer? A: It depends on what you are objecting to. If it is to offer the evidence, you have to object immediately after the offer is made. Objection to the testimony of the witness, or objection to the question propounded in the course of the oral examination of a witness must be made as soon as the grounds therefor become reasonably apparent. FOR THE BEST EVIDENCE RULE: Q: What did we discuss in best evidence rule? When should we object? Pagkakita ba nimo na photocopy lang siya, do you object immediately? A: NO, after pa na i’offer siya. Which is done after the presentation of a party’s testimonial evidence.

Q: When is a party deemed to have rested its case? A: From the moment he submits his formal offer. Dira pa ka mu object sa document pag offer na sa iyaha, if your objection is based on Best Evidence Rule. For the Parol Evidence Rule: Q: Is the rule the same for the parol evidence rule? A: NO. the objection under the Best Evidence Rule is against the document. You object because it is not original.

Q: How is it usually manifested? A: Written or in the form of another document; Testimonial Pwede siya written or in the form of another document. Pwede man ka mag introduce ug another piece of paper to contradict the terms of the agreement. In this case, objection should be interposed after formal offer, which happens after the presentation of a party’s testimonial evidence. Then, that’s the time na similar siya sa Best Evidence Rule. The objectionable evidence here, more often than not, in my experience is testimonial. Meaning, kana bitaw naa nay written agreement pero nag testify ang pikas Partido nan aa silay sabot na wala sa written agreement. Q: When do you object? A: It depends in the following. If the objectionable testimony is in the course of examination: The objection should be interposed as soon as the grounds therefor shall become reasonably apparent. So, pagka dungog nimo, well, mag object na ka. If the objectionable nature of the testimony is apparent from the offer prior to testimony: Objection to evidence offered orally must be made immediately after the offer is made. Example of “in the course of examination of the witness”:

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Lawyer: You mentioned that you did not pay the debt because you

JZE: Objection your honor. Haha. The question calls for an answer that is outside the terms of the written agreement. It violates the Parol Evidence Rule.

It applies to any type of contract, and its purpose is to make sure that the parties’ final understanding, deliberately expressed in writing shall not be changed. Applies to wills. Rule of integration which applies where there is a written agreement.

That is how you object. Because as soon as the objectionable nature becomes apparent, that is the time you object. You should not wait for the witness to answer kay klaro sa question na objectionable siya.

Bars evidence of terms that exists outside the agreement.

had a subsequent agreement to extend the period of payment. What is this agreement all about?

We know for a fact that ng plaintiff nag present ug promissory note na nag due na, like in the Maja example I gave earlier.

Example of “from the offer prior to testimony”: Lawyer: The testimony of the defendant is offered to proceed that

(1) sometime after the executed the Loan Agreement on January 1, 2020, defendant was verbally granted an extension to pay the debt and (2) for other purposes material in his defenses, your honor.

Objectionable na ba siya? Naa nay g’admit nila by the offer that there was a loan agreement, and that he was verbally granted

extension to pay the debt.

Q: Is it in the agreement? A: NO. It is not found in the agreement. So, by the offer pa lang you object. JZE: We object to the testimony, your Honor. As offered, the testimony seeks to modify the terms of the written agreement by means of parol evidence. That’s how you object. If you look at it, from the point of view of objection, lahi ang Best Evidence Rule and Parol Evidence Rule. Because if the proper time to object is always after the presentation of the party’s testimonial evidence, under the best evidence rule, the timing of the objection based on the Parol Evidence Rule depends on the form taken by evidence aliunde. So, depende. Pwede siya testimonial, pwede pud documentary. If testimonial man siya, depende kung kanus’a nimo na matikdan na objectionable d ay and testimony. PAROL EVIDENCE RULE The timing of the objection based on the Parol Evidence Rule depends on the form taken by evidence aliunde.

BEST EVIDENCE RULE The proper time to object is always after the presentation of a party’s testimonial evidence.

You should also know the distinctions between the Parol Evidence Rule and Statute of Frauds. Naa silay commonality, both affect your ability to present testimony. PAROL EVIDENCE RULE

STATUTE OF FRAUDS

FIRST EXAM

Its object is to prevent perjured testimony in proof of certain contracts and the statute applies only to those enumerated types. Does not apply to wills. Rule of enforceability which applies in the absence of an agreement in writing. You cannot enforce, meaning you cannot sue upon it. Bars proof of an agreement altogether.

If it is one of those listed and there is no writing and memoranda, dili pwede. Ang grounds sa imong objection would be statute of frauds. August 13 Part 1 | Acevedo

RULE 130 RULES OF ADMISSIBILITY MARITAL DISQUALIFICATION AND PRIVILEGE

Note: Prior to amendment, this used to be Section 22. Section 23 used to be the survivorship disqualification rule which the Supreme Court in its amendment to the Rules of Court, transferred as an exception to the hearsay rule. Why is disqualification by reason of marriage under the Rules? Recall that we are already in the topic ‘testimonial evidence’. The first couple of provisions are talking about the qualifications of witnesses. (a) Section 21 would tell us that a witness must be able to perceive and in perceiving can make known his perception to others. That is the basic qualification. There are factors in the 2nd par. of such rule which tells us what will not affect the qualifications of the witnesses. (b) Section 22 tells us that a witness may only testify based on his personal knowledge, that is which is derived from his perception. This used to be the foundational provision on the rule on hearsay because anything that the witness testifies to that is not based on his personal knowledge or not derived from his own perception is supposed to be inadmissible in court. Thus, the witness cannot testify as to matters that are not based on his personal knowledge. That is actually a disqualification—that if you are testifying on matters not based on your personal knowledge, a witness becomes incompetent. He cannot be competent to testify.

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(c) Section 23 is of the same vein because when you talk about disqualification by reason of marriage, it is a limitation on a party’s ability to present a witness in court. Thus, it is now like a continuation of the basic provisions which are Sections 21 and 22.

MARITAL DISQUALIFICATION Immunity Rule]

RULE

[a.k.a.

the other creates an ugly sight inimical to society’s interests. The rule prohibiting a testimony in favor of the spouse is intended to discourage the commission of perjury. But even, the opinion of Riano is based on Jurisprudence.

The basis of the rule is said to be the “considerations of public policy growing out of the marital relations.

(a) The marital disqualification rule under Sec. 23 of Rule 130, forbids the husband or the wife to testify for or against the other without the consent of the affected spouse except in those cases authorized by the rule.

To allow one to testify for or against the other would be to subject him or her to great temptation to commit perjury and to endanger the harmony and confidence of the marital relation. The cases

Except in those authorized by the rule—refer to the

supporting the rule are innumerable.

exceptions under the provision itself.

In other words, it cuts both ways. It is one that constitute as a privilege not to testify and disqualification from testifying.

Concepcion)

There is identity of interests between husband and wife; Remember that when a man marries a woman, they become one person under the law.

If one were to testify for or against the other, there is a consequent danger of perjury; Remember why you married your husband or wife, because you love him or her. Because you love him or her, there is a possibility that you will lie in the witness stand in order to protect somebody who you chose, somebody who you love.

ADVERSE OR IN FAVOR Thus, the martial disqualification rule consists of two parts: (1) The Incapacity to testify for the other A disqualification to obviate perjury; and (2) The Privilege not to testify against the other A right designated to prevent domestic disunion and unhappiness. The rule precludes the husband or the wife from becoming the means of the other’s condemnation

The policy of the law is to guard the security and confidences of private life, even at the risk of an occasional failure of justice, and to prevent domestic disunion and unhappiness; and Even if as a spouse is the only witness to a crime but his or her spouse is an accused for example, then we will just leave that first otherwise, there will be disharmony in the domestic life in the spouses.

Where there is want of domestic tranquility exists, there is danger of punishing one spouse through the hostile testimony of the other.

(U.S. v. Concepcion, 31 Phil. 182, Lezama v. Rodriguez, G.R. No. L-25643, June 27, 1968]. Comment:

Among the relatives, the only relative that you have a choice on is your spouse. You cannot choose who will be your parents. You do not have also a choice who will be your biological children because they are blessings from God. But as to your spouse, he or she is the only relative who you can choose. Dapat pangatawanan nimo ang

imong asawa or ang imong bana.

(US v.

Reasons/Bases for the rule In jurisprudence, there are several.

society’s intent to preserve the marriage relations and promote domestic peace. A spouse testifying against

Spousal

(b) The prohibition extends not only to a testimony adverse to the spouse but also to a testimony in favor of the spouse.

Riano, for example, cites that the rule is based on

Section 23. Disqualification by reason of marriage. — During their marriage, the husband or the wife cannot testify against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. (22a) A.

FIRST EXAM

(People v. Francisco, 78 Phil. 694 and Alvarez v. Ramirez 473 SCRA 72)

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Comment: I can relate to this not because there is domestic tranquility in my home but because of the number of cases that I have handled in the past that relates to the relationship between the husband and wife, those strained relations. Example: Petition for nullity under Article 36, Custody battles, VAWC cases, which I have encountered before. What I realized is that, what they are saying which is “hell hath no fury than a woman scorned” is true, because it is difficult to handle cases involving spouses because you do not know if there is some feeling left over there. I realized that estranged husbands and wives make for the bitterest of enemies. That is true based on my experience in practice. It is very difficult to put them back together. b.

Opinion of Atty. JZE: The basis is constitutional. This is because, no less than the 1987 Constitution declares that:

Art. XV, Sec. 2. Marriage, as an inviolable social

FIRST EXAM

REQUISITES OF SECTION 23

(1) Marriage must be valid and existing when then one spouse’s testimony is offered. Note: Cohabitation or live in is not allowed. It must be a valid and existing marriage, which means that when the testimony of the witness spouse was offered after the marriage was dissolved [in other words, it is possible that it was annulled or declared null and void under Article 36, then the marital disqualification rule will not apply anymore. (a) The spouse must be legally married to each other to invoke the benefit of the rule; it does not cover an illicit relationship. (People v. Francisco, 78 Phil. 694). A relationship that exists outside of wedlock like a live-in relationship or boyfriend-girlfriend relationship, adulterous relationship, those are not covered. (b) When the marriage is dissolved on the grounds provided by law like annulment or declaration of nullity, the rule can no longer be invoked.

institution, is the foundation of the family and shall be protected by the State.

A witness testifying against his own spouse is not one that is made pursuant to a protection that is guaranteed by the state upon marriage.

affected spouse objects to the offer of testimony.

That is why when wife argued before the Supreme Court where a case involves an issue on legitimate or illegitimate children, one of the arguments that I crafted for my wife was the fact that when you equalize legitimate and illegitimate children, you are actually not promoting the policy of the state which is protect marriage as an inviolable social institution, because it turns out that marriage is not necessary anymore. Note: The rule forbidding one spouse to testify for or against the other is based on principles which are deemed important to preserve the marriage relation as one of full confidence and affection, and that this is regarded as more important to the public welfare than that the exigencies of the lawsuits should authorize domestic peace to be disregarded for the sale of ferreting out facts within the knowledge of strangers. Exigencies of public lawsuits should take a back seat in the meantime because the harmony in the marriage needs to be preserved.

not matter if the facts subject of the testimony occurred before the marriage. It only matters that the

Situation: It could be possible that when they were still in boyfriend-girlfriend relationship, he said something to his future wife. Maybe he confessed to a crime but they got married anyway. But later on, it could be possible also that the crime was discovered and the spouse was being hailed to court to answer for the crime. Q: Will the marital disqualification rule apply despite the fact that the facts subject of the testimony occurred before the marriage? A: Yes, the martial disqualification rule would still apply thus prohibiting the testimony of the spouse. Illustration: Before they got married, wife Sarah witnessed the murder of Divine by husband Matteo but she never reported what she witnesses to the authorities. Barely six months after the marriage, Sarah became a battered wife and to get even with Matteo, she decided to report the murder to the police. August 13 Part 2 | Amistad Q: May Sarah testify against Matteo for the prosecution? A: No. She cannot testify over the objection of Matteo. The situation is covered by the marital disqualification rule.

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Principle to Remember Under the Marital Disqualification Rule, the time of occurrence of the facts subject of the testimony does not matter. Thus, it is not consequential that the testimony of the spouse-witness is based on facts that occurred before or during the marriage. Why? Because the only “timing” that matters is that the testimony is offered DURING THE MARRIAGE. If the marriage is already dissolved (or after the marriage), you can already testify. (2) The other spouse is a party to the action, whether civil or criminal. We are now introduced into two characters of the story: (1) We have the witness spouse; and (2) The litigant spouse [the one who owns the privilege to object to the testimony of the witness spouse].

One spouse must be a party to the action

This means that one spouse must have initiated an action in court as plaintiff, complainant or petitioner; or have been hailed to court as defendant, respondent or accused. Thus, if one spouse is a mere witness for a party, and the other spouse’s testimony is offered either to corroborate or rebut the testimony of one spouse, the rule does not apply. Why? Because even if he is a witness, he is not a party. So dapat he/she must be a party, whether as plaintiff/complainant, or defendant/accused. The litigant-spouse has not given consent to the testimony.

(3) The litigant spouse has not given his or her consent to the testimony. Consent can be express or implied 1. Express, if the litigant-spouse manifests in open court that he is not objecting to the testimony of the witness-spouse. 2. Implied, if the litigant-spouse does not object when the testimony is offered or if he cross-examines the witnessspouse. Take note, the act of cross-examination is implied consent. You have to remember when you become lawyers already, that if the

testimony is objectionable from the very beginning and yet the court allowed the witness to testify –the rule of thumb seems to be, you should not cross-examine. Why? Because the act of cross-examining amounts to a waiver of your objection.

Q: If the marriage is annulled, may Sarah now testify despite the objection of Matteo? A: Yes. She can now testify. The prohibition no longer applies since the testimony is to be offered after the marriage. Q: If the murder of Divine by Matteo took place during the marriage, may Matteo successfully object to the testimony on the ground that the facts subject of the testimony occurred during the existence of the marriage? A: No. Matteo cannot successfully object if the testimony is offered after the dissolution of the marriage.

FIRST EXAM

Waiver

The testimony is prohibited only over the objection of the affected spouse. It is the latter spouse who has the right to object to the competency of the witness-spouse. It goes without saying that the testimony is admissible where no objection is interposed by the spouse who has the right to invoke the prohibition. In other words, the benefit of the rule may be waived. It may be waived impliedly or expressly. Objections to the competency of a husband and wife to testify in a criminal prosecution against the other may be waived as in the case of other witnesses generally. The objection to the competency of the spouse must be made when he or she is first offered as a witness.

(People vs. Pansensoy, G.R. No. 140634, September 12, 2002)

So, the moment na i-patawag sa witness stand, that is already the time you should object. Pag offer pa lang, “Your Honor, we call to the witness stand Mrs. A, the testimony of the witness Your Honor is offered to prove the following matters: #1, 2, 3. Object na dayun ka, because the testimony of the spouse-witness is already offered into evidence, that’s the time when you need to object and NOT when nakasugod na siya og sturya. You object immediately at the first opportunity to do so. People vs. Francisco 78 Phil 694 (1947) Where the accused husband in his testimony imputed the commission of the crime to his wife, he is deemed to have waived his objection to the latter’s testimony in rebuttal. Comment: This is an interesting case, where the husband was accused of killing his own child. The husband imputed the commission of the crime to his wife, during his direct examination ang tubag niya kay “dili ako ang ning patay sakong anak, ang ning patay sakong anak kay akong asawa”, and then they rested. The prosecution wanted to rebut the testimony of the accused, because otherwise it would remain unrebutted. When the prosecution called the wife to rebut the testimony of the husband, the latter objected on the ground that it is covered under the Marital Disqualification Rule. The Supreme Court, however, said that the husband has already deemed to have waived the objection, otherwise it would be completely unfair to the prosecution and to the wife to whom he imputed the commission of the crime.

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Take Note: If the litigant-spouse already waived the rule by himself employing his spouse as his own witness, he cannot object later on if his opponent cross-examines his spouse. It is only the litigant-spouse who possesses the right to object. EXCEPTIONS (CODAL) 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 descendants or ascendants.

EXCEPTIONS (DOCTRINAL) 1. When the testimony was made outside the marriage; Meaning, the marriage is no longer valid and subsisting. It’s not really an exception but more of an application of the requisites. 2.

When the marital relations are so strained, there is no more consideration for applying the said rule. To apply the exception there must be an offense that directly attacks, or directly and vitally impairs, the conjugal relations. (Ordoño vs. Daquigan) Later on, we will know this to be the so-called, Strained Relations Doctrine. Just in case lang ipangutana sa Bar Exam, What is the strained relations doctrine? mao ni sya. CODAL EXCEPTION: 1. IN A CIVIL CASE BY ONE AGAINST THE OTHER

In order for a spouse to be allowed to testify against the other in a civil case, the case must be a “civil case by one against the other”. This contemplates a situation where one spouse is a plaintiff or petitioner and the other spouse is a defendant or respondent. In a suit for annulment of marriage, each spouse can testify against each other. Where the civil case is between a spouse and the direct descendants or ascendants of the other, the marital disqualification rule still applies. The direct ascendants or descendants requirement only applies to criminal cases, such will not apply in a civil case exception. Thus, if the wife sues the father of her husband for collection of a loan, the husband may be barred from testifying against the wife upon the objection of the latter. This is because the civil case is not by one against the other but between a spouse and the parent of the other.

FIRST EXAM

Principle to Remember Under the civil case exception, the case should be between the spouses themselves. Direct ascendants or descendants does not matter. CODAL EXCEPTION: 2. IN A CRIMINAL CASE FOR A CRIME COMMITTED BY ONE AGAINST THE OTHER OR THE LATTER’S DIRECT DESCENDANTS OR ASCENDANTS The rule is different in a criminal case. In a criminal case, the privilege of one to testify against the other is not confined to crimes committed by one against the other, but covers crimes committed by one against the direct descendants or ascendants of the latter like the latter’s children or parents. However, crimes committed against a spouse’s collateral relatives like uncles, aunties, cousins or nephews and nieces are not covered by the exception If the wife sues the husband for fraudulently embezzling the paraphernal funds of the former, the reason for the rule ceases. The wife can now testify against the husband. Also, if the wife is sued for adultery, the husband cannot be barred from testifying against the wife. Reason for the first two exceptions In these cases, the identity of interest disappears and the consequent danger of perjury based on that identity is non-existent. 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 vs. Ramirez) Direct Descendants or Ascendants The phrase “or the latter’s direct descendants or ascendants” did not appear in the older incarnation of the rule (1964 Rules). Hence, in People vs. Natividad (70 Phil 315), it was held that a wife cannot testify against her husband without his consent if the husband is accused of killing her child. But now, the present rule (1989, 2020 Rules) has been harmonized with the ruling in Ordoño vs. Daquigan, allowing the wife to testify against her husband for raping her daughter. In this case, the act of the husband raping the daughter of his wife is actually an offense committed by the husband against the wife and such offense directly and vitally impairs the conjugal relations. August 13 Part 3 | Bahalla What types of Crimes are covered? When an offense directly attacks, directly and vitally impairs the conjugal relation, it comes within the exception to the statute that one shall not be a witness against the other except in a criminal

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FIRST EXAM

prosecution for a crime committed by one against the other.

So, di nato ifollow ang rule blindly. Otherwise, it would lead to unfair results.

Mao na sya karun ang gi-harmonize because now, based atleast in the case of Castaneda- When an offense directly attacks, directly and vitally impairs the conjugal relation, again, its like a crime committed by one against the other. Now, it’s codally provided included in the 2020 Amended Rules.

THE STRAINED RELATION DOCTRINE

(People vs. Castañeda)

People vs. Castaneda In this case, the wife can testify against the husband in a case for falsification of the wife’s signature in public documents to sell share of wife in conjugal property because it is a crime committed by the husband against the wife. Q: Unsa gani mahinumdoman nato sa Sales or PFR? What would be the effect of a sale of either a conjugal property of community property where the consent of the other spouse is not obtained? What is the effect? A: Void ab Initio Q: Do you also remember in the Family Code what would be the procedure if, for example, the spouses’ consent cannot be obtained? Let’s say nag-abandon siya sa conjugal dwelling or if strained najud ilang relationship nga ang isa kay nilayas na. What would be the remedy of the spouse who wants to sell the conjugal or community property. Unsay remedy niya? A: All you have to do is to secure judicial authorization from the court. Mag-apply ka for judicial authorization attaching the proposed contract in saying nga “di man nako ma-locate akongbana/asawa.” What happened here was that he did not secure judicial authorization, gi-forge nalang niya ang signature sa iyang asawa. That is an offense that directly attacks and vitally impairs the conjugal relations. So, pwedeng mag-testify ang wife against the husband. Again, kato bitaw ingon nako sa inyoha nga gi-Plan B niya ang iyahang defense. “di ako ang nipatay, kadto siya ang nipatay-akong asawa. Plan A is you put it on the merit.s You put a credible defense. Plan B is blame it on somebody else. It just so happens that in this case, ang iya gi-blame kay ang iyang asawa. So, according to the Supreme Court, by said act, the husband must be taken to have waived all objection to the latter’s testimony upon rebuttal, even considering that such objection would have been available at the outset. Because, otherwise, it would be unfair, diba? The State must have the right to offer the rebutting testimony in question, even against the objection of the accused, because it was the latter himself who gave rise to the necessity. It may be said that the accused husband thought that he would have more chances of convincing the court of his pretended innocence if he pointed to his wife as having cause the death of their child, instead of simply denying that he was the author of the fatal act.

To my mind, this is the most important section. Why? Kapila na ni gipangutana sa Bar Examination. And if you have a copy of my book, I listed down all of those cases that applied the Marital Disqualification Rule, including the Strained Relations Doctrine. Strained Relations Doctrine When the marital relations are so strained, there is no more consideration for applying the said rule. To apply the exception, there must be an offense that directly attacks or directly and vitally impairs the conjugal relations. To that, we have the case of Alvarez vs. Ramirez (2005)

(twice asked in the Bar already. So we have to be careful of these repeating Bar examination questions because basic kayo na siya. It has to be known by the students) Alvarez vs. Ramirez In this case, Susan Ramirez was the complaining witness in a criminal case of Arson pending before the RTC. The accused was Maximo Alvarez, estranged husband of Esperanza, her sister. Esperanza was called to the witness stand as the first witness against Maximo. Maximo filed a Motion to Disqualify Esperanza from testifying against him pursuant to Rule 130 of the Revised Rules of Court on Marital Disqualification Rule. During the marriage, the husband and the wife cannot testify against the other if the other objects. Let’s try to analyze these facts: This is not a criminal case for a crime committed by one against the other.

it is a crime committed by one spouses against his sister-inlaw.

This is also not a criminal case for a crime committed by one against the latter’s direct ascendants or descendants.

Dili man direct ascendants or descendants ang sister. They are merely collateral relatives because you go up before you gondown and reach your sister in the family tree.

Note that this is a case for Arson of the ouse belonging to the wife’s sister.

Meaning, Arson case. Destruction of property ra ni. Its not even crime against person.

BUT, Maximo, when he set fire to the house, knew that his wife was there. The Supreme Court said here that the act of private respondent in setting fire to the house of his sister-in-law, Susan Ramirez, knowing fully well that his wife was there, and in fact with the alleged intent

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of injuring the latter, is an act totally alien to the harmony and confidences of marital relation which the disqualification primarily seeks to protect. The criminal act complained of had the effect of directly and vitally impairing the conjugal relation. It underscored the fact that the marital and domestic relations between her and the accused-husband have become so strained that there is no more harmony, peace, or tranquillity to be preserved. The Supreme Court has held that in such a case, identity is nonexistent. In such a situation, the security and confidences of the private life which the law aims to protect are nothing but ideals which through their absence, merely have a void in the unhappy home. Thus, there is no longer any reason to apply the Marital Disqualification Rule. So, when the Strained relations Doctrine is applicable, there is no longer any reason to apply the Marital Disqualification Rule. Okay? That is a very important exception. STRAINED RELATIONS DOCTRINE IN A CIVIL CASE So, going back to the Strained Relations Doctrine, if you look at jurisprudence, it is particularly applicable to criminal cases. But the question is applicable ba siya sa civil case? Example: Jeric and Kim are married. Kim’s family has money and property. Through the intercession of Kim, Jeric was able to persuade his parents-in-law to lend him money and authorize him to mortgage their properties so that he can use them t raise capital for his business. Unbeknownst to Kim and her family, Jeric squandered the money on luxuries instead of propagating the business. He was unable to pay the loans he owed his creditors, including his wife’s family. And now ang properties sa pamilya are now to be foreclosed because of non-payment of debts. In civil case filed by Kim’s parents against Jeric to recover the squandered amounts, can Kim testify against her own husband? Remember, this is a civil case. Can this lead to an application of Strained Relations Doctrine? Is it an offense that directly affects of vitally impairs the conjugal relations. Sa civil case, applicable lang ang exception if it is a case by one spouse against the other. Here, dili man. It is the family of the wife filing the case to recover money from the husband. A: There is no ruling to that effect. However, take note that the case should be between the spouses themselves. Direct ascendants or descendants do not matter if you are making use of the civil case exception.

But in Atty. Espejo’s opinion, yes. Ngano gud dili.

FIRST EXAM

husband or son-in-law, na-strain najud ang relation sa iyang asawa. AMERICAN RULE Now, let’s go to a different point here. Under American Rules of Procedure, the rule extends to testimony and objects. So, the testimony covered by the marital disqualification rule not only consists of utterances but also the production of documents and, conceivably also, objects. (State vs.

Bramlet, 114 S. C. 89, 2013 S. E. 755)

Q: Is this rule followed also in the Philippines? A: In the Philippines, there is a way by which you can compel the witness to testify a case. What is that? It is by applying for an issuance of a Subpoena ad testificandum under Rule 21. That’s the way you can compel production of a witness to testify, diba. Q: And, under Philippine law as well, how can a person be compelled to produce documents for use in a case? A: You apply for Subpoena duces tecum which is also under Rule 21. Example: Nag-issue ug subpoena duces tecum ang court upon the wife to bring documents against the husband. Pwede sya? Is there a law to that effect that di niya dapat na buhaton na magdala ug documents against the husband? Think about it. Analysis Q: What happens when a person is compelled to bring documents in court by a subpoena duces tecum? Does it end there? A: No. Let’s examine the law. When you talk about Subpoena duces tecum, it may also require him or her to bring with him or her any books, documents, or other things under his or her control, in which case it is called a subpoena duces tecum. But, take note of the word “also”. It means, in addition to directing a person requiring him to attend and testify, he can also be asked to bring documents. And, as what we have learned before, Documents do not testify by themselves. They have to be sponsored by a witness. Even if in the hierarchy of competent evidence kay pinaka-ubos ang testimonial. But it is the most important because no object or document could ever be presented or authenticated without testimonial sponsorship. August 13 Part 4 | Du PRINCIPLE TO REMEMBER: A subpoena duces tecum necessarily includes a subpoena ad testificandum.

Especially so because of the actions pf the prodigal ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

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You cannot just apply for a subpoena ad testificandum, [and then] to compel somebody to bring a document. [A subpoena duces tecum] includes an order for whoever brings the document, the custodian of the document, to testify about these documents as well. But a subpoena ad testificandum does not necessarily include a subpoena duces tecum. It has to be clearly specified in the writ that the witness should also bring with him documents (in which case it is now called a subpoena duces tecum). So, even if there is no rule specifically saying that the Marital Disqualification Rule extends to documents or the bringing of objects against the litigant spouse, it is still covered. It is still covered despite the fact that there is no rule directly providing that. Take note: Rule 130, Section 23 in relation to Section 24(a)is a favorite source of bar questions (1989, 2000, 2004, 2006, etc.). You need to impress upon the mind of the bar examiner that you have what it takes to practice as a lawyer. If your language is approximately the same as the language of the SC, then in all likelihood you will get better ratings. Ex. “unprofitable to require proof,” “hemorrhaging of the assets of the debtor” Cases you must read: Alvarez vs. Ramirez (GR No. 143439, October 14, 2005) Ordoño vs. Daquigan, et al. (GR No. L-39012, January 31, 1975)

FIRST EXAM

A. MARITAL PRIVILEGED COMMUNICATION RULE (a) The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants. This remains virtually unchanged under the new Rules.

“The husband or the wife, during or after the marriage” diha pa lang nakakita na ta ug difference between the Marital Disqualification Rule and the Marital Privileged Communication Rule. While the parties are the same– the husband or the wife, here it is during or after the marriage while in Marital Disqualification Rule it is only during the marriage. So what does it tell you? This Marital Privileged Communication Rule has a longer duration because it exists even after the marriage. Take note of the phraseology, save for perhaps, the middle, pareho siya sa Marital Disqualification Rule. Unsa lay nakalahi? “any communication received in confidence” – kana na part ang nakalahi. “except in a civil case by one against the other, or in a criminal

case for a crime committed by one against the other or the latter’s direct descendants or ascendants” – even the exceptions are the same

PRIVILEGED COMMUNICATIONS

REQUISITES 1. There was a VALID MARRIAGE (similar to the Marital

Disqualification Rule);

24. Disqualification by reason of privileged communications. – The following persons cannot testify as to Section

Dili applicable kung kintahay live-in relationship lang siya or cohabitation, whether licit or illicit. Because we have to admit, naa man pud licit na cohabitation – cohabitation between a man and a woman who are not incapacitated to marry each other. They are both single pero dili lang gyud sila ganahan mag-asawa. Licit na na cohabitation, dili na illicit. But here, again, it only applies if there is a valid marriage.

matters learned in confidence in the following cases: There are 5 cases. Let’s first talk about the type of disqualification under Section 24. It is a disqualification for one reason and one reason only: that reason is the nature of the information. It is not a disqualification at all times. It is a disqualification only under certain situations given the nature of the information sought to be elicited from the mouth of the witness. Briefly, they are: a) Marital Privileged Communication Rule b) Attorney-Client Privileged Communication Rule c) Physician-Patient Privileged Communication Rule d) Priest-Penitent Privileged Communication Rule e) Public Offices Privileged Communication Rule or the of State Secrets

The privilege is invoked with respect to a confidential communication between the spouses DURING the said marriage; and Q: Recall under the Marital Disqualification Rule, naa ba word na “during”? A: “During their marriage, the husband or the wife cannot… ” The rule applies while they are married.

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EVIDENCE But here, the word “during” applies to the time when confidential information was stated or communicated to other spouse. So it is the timing that matters. When was information obtained? Was it before, after, or during marriage? 3.

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the the the the

The spouse against whom such evidence is being offered HAS NOT GIVEN HIS OR HER CONSENT to such testimony.

EXCEPTIONS: 1. In a civil case by one against the other; 2. In a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants. Take note that these are the same codal exceptions under the Marital Disqualification Rule. Presumption: In the absence of evidence to the contrary, any communication given by one spouse to the other is presumed confidential. There is that presumption of confidentiality when we talk about the Marital Privileged Communication Rule. Hypothetical problem: Spouses Maja and Rramon were deep in conversation when Rramon confessed to Maja that he, before they got married, killed Maja’s ex-boyfriend, Gerald. Q: Can Maja be called to testify against Rrramon? (Are they still married? Yes they are, wala man nakabutang na the marriage has already been dissolved.) A: No. The Marital Privileged Communication Rule applies. Why? The privileged or confidential information was made or communicated while they are still married. In fact, the Marital Disqualification Rule applies as well. Why? Because they are still married.

Q: What if their marriage was annulled? Can Maja testify then?

Under the Marital Privileged Communication Rule, dili pwede. Why? Because the rule applies during or after the marriage, unless Rrrramon waives the privilege. Take note. That is a very important distinction. Why? Because even if the marriage is already dissolved, but the confidential information was communicated to one spouse during the marriage, the Marital Privileged Communication Rule would still apply even if dili na sila minyo. That’s the biggest difference between the two. MARITAL MARITAL PRIVILEGED DISQUALIFICATION RULE COMMUNICATION RULE Both rules apply only when the spouses are legally married.

Common law relationships and other cohabitations, not covered. Both rules do not apply in a civil case by one against the other or in a criminal case committed by one against the other or the other’s direct descendant or ascendant.

So, in both rules, the codal exceptions are the same. Both rules are inapplicable where the affected spouses consent to the testimony.

Gi-allow diay na pwede magtestify. So, okay lang na magtestify, diba? Can be invoked only if one of the spouses is a party to the action.

An be claimed whether or not the spouse is a party to the action.

Diba naa tay duh aka personality ngadto? Witnessspouse and litigant spouse. Applies only if the marriage is existing at the time the testimony is offered.

Can be claimed even after the marriage has been dissolved.

Constitutes a total prohibition against the spouse.

Applies only to confidential communications between the spouses.

In other words, the spouse can actually refuse to take the witness stand altogether. He cannot be compelled .

Ceases upon the death of one either spouse.

August 13 Part 5 | Escritor A: The rules are different because under the Marital Disqualification Rule, pwede na sya magtestify. Forget

about that “unless Rrrramon consents.” Why? Because the marriage is already annulled. Diba, only during the marriage mag-apply ang Marital Disqualification Rule?

So both rules apply in that situation. Q: But the crime was committed before their marriage? Does it matter? A: It does not really matter. What matters is that the communication was made during their marriage. So, the Marital Privileged Communication Rule applies. Conversely, the Marital Disqualification Rule applies also because they are still married.

FIRST EXAM

The prohibition bars testimony for or against the other.

Why? Because the law says, “during or after the marriage”.

Only when ang ginapangutana sa witness-spouse is one that relates to confidential communication or privileged communication. Continues even after the termination of the marriage of whatever cause, including the death of the spouse. Bars the examination of a spouse as to matters related in

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the

other

So, very specific ang object sa Marital Privileged Communication Rule. PRINCIPLES TO REMEMBER Under the Marital Disqualification Rule, the litigant-spouse may object to the fact that the witness-spouse is called as a witness because it is a disqualification on the part of the witness-spouse to testify. So, the moment na gitawag as witness, object na dayon dapat ang litigant-spouse. The witness-spouse may refuse to take the witness stand altogether because it is a privilege not to testify. So, gitawag sya as witness against the husband. “Uy dili ko. Di ko musugot kay akoa nang bana. Bawal na under the Marital Disqualification Rule.” SUMMARY In sum, therefore, the witness-spouse may refuse or be prevented from taking the witness stand sa sugod pa lang at the onset. The mere offer of the witness-spouse as a witness is already objectionable under the Rules on Evidence. Pwede na ka mag-object pag offer dayon sa witness-spouse as a witness. Where the testimony of the witness-spouse is not allowed either because the other spouse did not object, or the marriage is already dissolved, and thus, the Marital Disqualification Rule does not apply anymore, under the Marital Privileged Communication Rule, the witness-spouse cannot generally be barred from taking the witness stand altogether. Why? There’s no more Marital Disqualification. So, pagtawag sa iyaha as witness, the Marital Disqualification Rule does not apply anymore. Meaning, the spouse may testify, as a general rule. So, why is that? Unsay explanation ana? Clearly because the testimony of the witness-spouse ill only be disallowed if it is offered to elicit privileged information. So, the mere calling of a spouse to the witness stand does not necessarily mean na ma-bar na sya from testifying because we do not know kung unsay iyahang i-testify about, right? So, you cannot object immediately as a general rule. The privileged nature of the information sought can be determined only when a specific question is asked. “What did your husband tell you?” That’s the time. “Objection, Your Honor. It calls for an answer that reveals privileged information or privileged communication.” In sum, where the Marital Disqualification Rule is not applicable. When will it be not applicable? When the marriage is already dissolved or waiver, lack of objection. The witness-spouse cannot altogether refuse to take the witness stand under the Marital Privileged Communication Rule, as a general rule.

FIRST EXAM

When should you raise your objection? Mubalik na pud ta sa atong cross-reference to Rule 132. Depende kung kanus-a gi-offer. The offer of the testimony of the witness as evidence, must be made at the time the witness is called to testify. So, gitawag nimo karon tong spouse as a witness. When do you object? It depends gihapon, diba? Depende kung unsa imong objectionan. Objection to the offer of evidence must be made orally immediately after the offer is made. Objection to a question propounded in the course of oral examination of the witness must be made as soon as the grounds therefore become reasonably apparent.

Let me illustrate. For marital disqualification, objection should be interposed when the testimony of the witness-spouse is offered – when the witnessspouse is called to testify. And you have to make the objection immediately. What’s the case there? People v. Pansensoy. The moment the witness-spouse is called to testify. Q: Is the rule the same in Marital Privilege? When do you object under the Rule on Marital Privilege? A: Of course, the rule is not the same. The objection under the Marital Privileged Communication Rule is against the privileged in formation and not to the mere fact that the spouse is called to testify. We’re not talking about the qualification here of the spouse to testify. We’re talking about the nature of the information sought to be elicited from the witness-spouse. So, unsaon nato pagkabalo ana karon? Q: When exactly should the witness-spouse object? A: Again, the answer is: it depends. If the objectionable testimony is made in the course of examination, the objection should be interposed as soon as the grounds therefore shall become reasonably apparent. But, it is also quite possible that the objectionable nature of the testimony is already apparent from the offer prior the testimony. In that situation, objection to evidence offered orally must be made immediately after the offer is made.

Let’s illustrate. We’re going to talk here about the Marital Privileged Communication Rule only. Lawyer: You mentioned that your husband told you something about the killing of Gerald when you were in bed on February 25, 2020. What exactly did he tell you? Q: Maka object ba ka? Is the objectionable nature apparent already? A: Of course it’s apparent. So, when you object:

“Objection, Your Honor! That question calls for an answer that violate the Marital Privileged Communication Rule.”

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Diba? That’s the only time that you knew na objectionable diay ang information sought to be elicited from the witness. So, that’s the time that you object in the course of the examination – when it became reasonably apparent that it is objectionable. What about in the offer prior to the testimony? Possible na ing-ani ang i-offer: Lawyer: The testimony of the witness is offered to prove that UP is the top performing law school with at least 63 examinees and on February 25, 2020, accused told his wife that he shot Gerald, her former boyfriend, and for other purposes material to the case, Your Honor. Let’s pretend na Manila lawyer na sya. Niana dayon si JZE:

“We object to the testimony, Your Honor. First, Ateneo de Davao University is the top performing law school in the country regardless of the number of examinees and as offered, the testimony seeks to elicit information that violates the Marital Privileged Communication Rule.” Sa offer pa lang, kabalo na ka na boret. Sa offer pa lang kabalo na ka na it would be violative of the Marital Privileged Communication Rule. So, you object immediately after the offer is made. By way of exception under the Marital Privileged Communication Rule, while you cannot bar a spouse from testifying altogether, or from altogether taking the witness stand, if it is apparent in the offer that the witness will testify on privileged matters, pwede na nimo na mapa-exclude pa alng daan. You can already object. Klaro baa ng distinctions sa duha? Again, dili pareha ang timing sa offer. When you talk about the Marital Disqualification Rule, the proper time to object should always be when the spouse is first offered as witness. As I told you earlier, that’s People v. Pansensoy in relation to Rule 132, Sections 35 and 36. Marital privilege, the proper time to object on the basis of the Marital Privileged Communication Rule depends whether the privileged nature of the communication sought to be elicited becomes apparent during the offer or in the course of the examination. August 13 Part 6 | Estrosas HYPOTHETICAL PROBLEM Suppose that, in the foregoing problem, Rrramon’s confession to Maja was overhead by their minor daughter, Majess, and their nosy housemate, Bangs. Questions: Can Majess be called to testify?

FIRST EXAM

Under the Marital Privileged Communication Rule, NO, because Majess is still a minor. Why? A minor, according to American Jurisprudence, is considered a mere extension of the personality of his parents.

What about Bangs, the nosy neighbor (the eavesdropper)? o GENERAL RULE: She can testify. Third persons who, without the knowledge of the spouses, overhear the communication are not disqualified to testify. Meaning she is not an extension of the personality of the spouses. o EXCEPTION: When there is collusion and voluntary disclosure to a third party, that third party becomes an agent of the spouses and cannot testify. Meaning the spouses voluntarily mentioned to the supposedly eavesdropper that they talked on this or that matter (nga mao ni among gisturyahan). If you are imaginative about, an example will be “uy mag away mi unya, paminaw ah.” There’s collusion there. But there are limitations or qualifications with that under the new rules. Under the example previously, while Majess, the minor child, cannot be compelled to testify. She can voluntarily testify because of Section 25. Majess can voluntarily testify. Under Section 25:

No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants.

What is prohibited under Section 25 is testimony by compulsion. It does not forestall testimony by volition.

Meaning kanang personal nga mag-volunteer nga magtestify ko. This is only the general rule because there is an exception in Section 25. Exception: when the testimony is indispensable in a crime against that person or his parents against the other.

DOCTRINES TO REMEMBER 1. Every communication between spouses is presumed to be confidential. 2. The communication shall remain privileged, even in the hands of a third person who may have obtained the information, provided that the original parties to the communication took reasonable precaution to protect its confidentiality (last paragraph of Section 24). In other words, the third person who obtained the information took the pains to really listen despite the

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fact that the spouses took reasonable precaution. Nuclear iyang pagkachismosa. If you recall my example with respect to the eavesdropper – in the absence of collusion or voluntary disclosure, she may be called to testify. Now, the minimum requirement under the amended rules, is simply the spouses took reasonable precaution pero nadunggan gihapon, that will remain privileged, even in the hands of the third person.

Take note of this very important change under the amended rules. However, where the communication is knowingly made in the presence of third persons, such communication is not considered confidential if the spouses did not take reasonable precaution to protect its confidentiality. In addition, it can be said that the spouses have intended the transmission of the communication to such third persons. Indeed, communications intended for transmission to third persons are not confidential, unless the third person may be considered as an agent of the spouses. If the third person acquired knowledge of the communication by collusion and voluntary disclosure on the part of either of the spouses, he thereby becomes an agent of such spouses so that the privilege is claimable against him. Communications overheard by third persons, whether legally or illegally, remain confidential as between the spouses, but the third person who overheard may be called upon to testify if the spouses did not take reasonable precaution to protect the confidentiality of the information.

Sir JZE’s advice: For me, I want you to remember the last paragraph of Section 24 because that is applicable to ALL Privileged Communication Rule. Remember the language that is used in the rule with respect to the last paragraph of Section 24. LACUROM vs. JACOBA A.C. No. 5921, March 10, 2006 The marital privilege rule, being a rule of evidence, may be waived by failure of the claimant to object timely to its presentation of by any conduct that may be construed as implied consent. To any other rule, that is still the similar principle to remember – it is waived by failure to object or there is an implied consent to the testimony. Sir JZE’s advice: As I have said, there are a lot of Bar Questions here, and they are stated in my book. Kindly read them. I will just focus to the more important. BAR QUESTION 1995

FIRST EXAM

Allan and Narita were married on August 1, 1989. After two months, Narita told Allan in confidence that the 10-year old Liza whom she claimed to be her niece was actually her daughter by a certain Basilio, a married man. It was an admission that she had an affair with a married man. It was an admission on her part that she was complicit in a crime of concubinage. In 1992, Narita obtained a judicial decree of nullity of her marriage with Allan on the latter’s psychological incapacity to fulfil his marital obligations. If you are the one taking the bar examinations, pagkabasa na pagkabasa nimo ana nga nag obtain siya ug judicial decree of nullity of marriage, what are you immediately thinking about? You have to think on the fly during the bar examinations. Time is short. Uy, you’re being led into thinking that the marital disqualification rule does not apply anymore because it is already after the marriage. So, dapat you think of out of the box already when you analyzed. When the decree became final, Liza assisted by Narita, filed 10 cases of rape against Allan purportedly committed in 1991. Right? Kinsa ang gi-rape ni Allan? Si Liza. What does it tell you? Crime by one against the other or the latter’s direct ascendants or descendants.

Ana dapat mudagan atong huna-huna pag mag bar examinations ta, under time pressure. Every sentence would mean something. During the trial, Narita was called to the witness stand to testify as a witness against Allan who objected thereto on the ground of marital disqualification. QUESTIONS: As a public prosecutor, how would you meet the objection? Remember, marital disqualification rule atong ginahisgutan. SUGGESTED ANSWER: I would ask the court to overrule the objection. Under the marital disqualification rule, the objection to the testimony of one spouse against the other may be invoked only during the marriage. At the time the testimony of Narita was offered, the marriage was already dissolved (Section 22, Rule 130, Rules of Court). Note: Section 22 pa na siya sa una by the time it was asked. Suppose Narita’s testimony was offered while the decision nullifying her marriage to Allan was pending appeal, would your answer be different? Applicable ba ang marital disqualification rule if dili pa final and executory ang decision nullifying her marriage?

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If not yet final and executory, it means the marriage is still subsisting, right? Would that change your answer? ANSWER: NO, the answer would not be different, and a valid objection may still be interposed. The marital disqualification rule may not be invoked in a criminal case for a crime committed against the direct descendant of the other spouse. Here, Liza is the daughter of Narita. Sir JZE’s advice: In the process of elimination, in the process of analyzing the problem, nakita na natoh na, nga mugawas na. What I illustrated to you is called issue spotting. Mao na ang lisod sa bar, how will you spot the issue? There is no easy way of doing it, it’s just that you are actually required to think on the fly. Every sentence should have a meaning, unless it’s a filler.

Dapat paspas ka mubasa, and paspas ka muspot kung unsa ang important sa problem and you can only do that easily if you really studied. Kung wala ka nagstudy, dili jud nimo na makita. Suppose Narita died during the pendency of the appeal, and soon after, the legal wife of Basilio sued for legal separation on sexual infidelity in view of Basilio’s love affair with Narita. At the trial, Allan was called by Basilio’s wife to testify that Narita confided to him (Allan) during their marriage that Liza was her love child by Basilio. As counsel for Basilio, can you validly object to the presentation of Allan as witness for the plaintiff? Explain. Take note of the word: confided to him. Are we still talking about marital disqualification rule or not? Dili na. We are now talking about marital privileged communication rule.

FIRST EXAM

B. ATTORNEY- CLIENT PRIVILIGED COMMUNICATION PRIOR TO THE AMENDMENT (b) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity; We are to treat Attorney-Client communication similarly with the Marital-Privilege Communication Rule. In this particular instance, the witness is disqualified from testifying in relation to communication or advice given to the client in the course of Attorney-Client relationships. It’s a Privileged Communication Rule and not a Disqualification AMENDED RULE (b) An attorney or person reasonably believed by the client to be licensed to engage in the practice of law cannot, without the consent of the client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of, or with a view to, professional employment, nor can an attorney’s secretary, stenographer, or clerk, or other persons assisting the attorney be examined without the consent of the client and his or her employer. Concerning any fact that the knowledge of which has been acquired in such capacity, except in the following case:

SUGGESTED ANSWER (UP): YES, I could validly object to the presentation of Allan as a witness on the ground that the communication of Narita was a privileged communication which could be invoked during or after the marriage. Moreover, the testimony of Allan would be hearsay.

(i)

Furtherance of crime or fraud. If the services or advice of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;

Comments: Remember Narita already died, so the marriage is already dissolved. So, the problem is calling for the fact that privileged communication rule is applicable even after the marriage.

(ii)

Claimants through some deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate or by inter vivos transaction;

(iii)

Breach of duty by lawyer or client. As to a communication relevant to a issue of breach of duty by the lawyer to his or her client, or by the client to his or her lawyer;

(iv)

Document attested by the lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or

The answer makes sense but Riano makes a further analysis: However, Riano posits that: The testimony could not be validly objected upon by Basilio’s counsel on the basis of the marital privileged communication rule. Basilio does not own the privilege. The prerogative to object to a confidential communication between spouses is vested upon the spouses themselves, particularly the communicating spouse, not a third person. This is clear from the provision: “…cannot be examined without the consent of the other…” (Section 24, Rule 130, Rules of Court). August 27 Part 1 | Fernandez

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EVIDENCE (v)

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

Joint clients. As to a communication relevant to a matter of common interest between two or more clients if the communication between two or more clients if the communication was made by any of them to a lawyer retained or consulted n common, when offered in an action between any of the clients, unless they have expressly agree otherwise.

RATIONALE OF THE PRIVILEGE The policy underlying this privilege is that of encouraging open and honest communication between clients and attorneys, which is thought to promote obedience to law and reduce the chance of illegal behavior, whether intentional or inadvertent. As such, the attorney-client privilege is considered as one of the strongest privileges available under the law. Comment: You go to a lawyer you need to be able to confidently tell your lawyer about the facts of the case. Because if you are hesitant in telling your lawyer everything, the lawyer will not be able properly prepare the prosecution of your cause of action or for your defense. Ideally, there should be open and honest communication between the lawyer and his client. REQUISITES FOR THE ATTORNEY-CLIENT PRIVILEGE RULE (reflective of the changes brought about by the amendment) (a) There must be a communication made by the client to the attorney or an advice given by the attorney to his client. An “attorney” includes a person reasonably believed by the client to be licensed to engage in the practice of law; Situation: The client has revealed something to the lawyer. Or the lawyer has given an advice to the client. TAKE NOTE: The term “attorney” includes a person reasonably believed by the client to be licensed to engage in the practice of law. Hence, this privilege is not limited to an attorney or someone who has signed the Roll of Attorneys- it already includes that qualification that the person is an attorney per se. (b) The communication or advice must have been given in confidence; and (c)

The communication or advice must have been given either in the course of professional employment, with view to professional employment ; and

FIRST EXAM

(d) The client has not given his consent to the attorney’s testimony (NOTE: This is the Attorney- Client Privilege Communication Rule per se) ; or if the attorney’s secretary, stenographer, clerk or other person assisting the attorney is sought to be examined (NOTE: Derivative Attorney- Client Privileged Communication) , that both the client and the attorney have not given their consent. DERIVATIVE ATTORNEY - CLIENT PRIVILEGED COMMUNICATION If it is the attorney’: a. secretary, b. stenographer, c. clerk or d. other person assisting the attorney e. is sought to be examined or be a witness in court then f. BOTH the client and the lawyer has to give consent to the testimony. Hence, there are 2 Kinds of Attorney-Client Privileged Communication Rule: 1. Attorney- Client Privilege Communication Rule per se and 2. Derivative Attorney- Client Privileged Communication Q: Is an actual perfected contract between a lawyer and a client required for the privilege to attach? A: No. The present rules do not require a perfected attorney-client relationship for the privilege to exist; whether it is for a fee or for free, the Attorney- Client Privileged Communication Rule is already applicable. The communications between the attorney and the client no longer need be in the course of an actual professional employment. And when we say actual professional employment, the lawyer and client has already come to an agreement the fees to be paid by the client. It is enough that the communication or advice be “with a view to” professional employment. Situation A lot of clients would go to a lawyer and consult for a legal problem. Then tells the lawyer that he wants to file a case against his neighbor. The lawyer tells the client to go for Barangay Conciliation first as they are only neighbors. The lawyer then says he accepts the case and lays down the professional fees in accordance with the IBP standards. The client then tells the lawyer that he’ll just be back so he can first prepare as well; but in reality we know that client will not go back to the lawyer anymore.

In the above situation:

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EVIDENCE a. b. c.

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

There is no contract but Communication has been made by client to the lawyer The lawyer gives advice even without getting consultation fees.

*Sir narrates how new lawyers are somewhat abused by some who come to them seeking for legal advice without paying consultation fees. Tells the class that after how many years of being victimized by said situation, now charges P500 for the first 30 minutes of consultation.* Otherwise, a problem will arise. There is already an Attorney-Client Privilege that applies. The fact that you already spoke to a particular prospective client would mean that the lawyer can no longer have the adverse party as a client because there is already a conflict of interest. DOCTRINE OF IMMEDIATE BENEFIT

from Sir’s friend one Atty. Leo De Los Santos: Q: When you go to a doctor for medical consultation, are you immediately healed when the doctor tells you that you have coughs and cold? A: No. The doctor still has to prescribe some medicines before you are healed. BUT, a lawyer, the moment you go to a lawyer and ask for some legal advice and the lawyer gives you one- the client is immediately benefited from the lawyer’s knowledge. Therefore, because the client has already benefited from the knowledge of the lawyer, this triggers the right of the lawyer to bill his client accordingly LAWYER MUST BE CONSULTED IN HIS PROFESSIONAL CAPACITY Where a person consults an attorney not as a lawyer but merely as a friend, or a participant in a business transaction, the consultation would not be one made in the course of a professional employment or with a view to professional employment as required by Sec 24 (b) Rule 130, Rules of Court, and if proven to be so, would not be within the ambit of the privilege.

*Sir tells a story about a friend from high school whom he met with in a coffee shop. After hours of talking not involving any legal problem at all, the friend asks sir how much he owes him for taking so much of his time. Sir tells the friend that the conversation did not involve any legal problem or any aspect of it all. Sir tells the friend to just pay for the coffee then they’re quits.*

haha

In the above situation, the friend was not consulting Sir JZE as a lawyer but as a friend. Q: What if a case was filed against this friend, can I be made a witness as to those matters he told me about? A: Yes, because I was not acting in my professional capacity as a lawyer but rather as a confidante.

FIRST EXAM

August 27 Part 2 | Jamero NOTABLE CHANGES

Attorney or person reasonably believed by the client to be licensed to engage in the practice of law This means that even non-lawyers who are ostensibly practicing law and who the client engages as such under the belief that he is licensed to practice law are covered by the privilege. Examples could be legal researchers or even those who are not authorized to practice law who hold themselves out to the public as lawyers. The privilege therefore applies even if there is only a reasonable belief on the part of the client that the person he is consulting is a lawyer. Comment: Even in law school nagatabang-tabang sa free legal aid, attorney napud jud ang tawag sa akoa kanang mga indigent clients So, ang pagtuo nila abogado ko pero dili ko abogado. Am I covered by attorney-client privilege communication rule? Of course. Kanang mga tao nga dili abodago who hold themselves out to the public as lawyers. Kanang ginatawag nato na MA [Murag Abogado]. In Metro Manila, muadto ka’g Recto, or even near the SC, nay mga gagmay na mga stalls, pagtuo nimo mga lawyer naa diha pero dili diay. Nag imbento lang na sila ug notarial seal nila pero dili diay licensed na notary public. Sir talks about helping his community—his neighbors(settlers) regarding a property owned by a private individual. Nagpatabang sila kay naa daw meeting na pagabuhaton between them and the lawyer of the owner of the land. Ningabot and abogado kuno sa owner, sige na sya’g sturya. We were thinking why is this guy talking about the purchase price of the property when the owner wanted to help the settlers, anyway dili niya kinanglan ang property. The guy keeps talking about price, fair market value of the property, but sir, with talent of spotting bullsh*t a mile away, asked him “what’s your roll number pañero?” “What gives you the authority to transact on behalf of the owner of the property?” Ana siya na, “I have a General Power of Attorney coming from the owner of the land allowing me to transact with the purchase and sale of this land.” Recall that it has to be a SPA. So, sir told everybody that “this guy is not a lawyer.” So, this are the people who hold themselves out to the public as lawyers. If you make a confession or give information to the person holding himself as a lawyer despite the fact that he is not, that is covered under the privilege under the amended rules.

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EVIDENCE

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Hence, privilege applies when there’s reasonable belief on the part of the client that the person he is consulting is a lawyer.

Attorney's secretary, stenographer, or clerk, or other persons assisting the attorney. Persons "assisting an attorney" can include both under employment (legal researchers) and without employment (law school apprenticeship programs or legal aid clinics). Under the Federal Rules, it also covers "facilitators" or those who facilitate or make possible the rendition of legal services by the attorney. Q: What form does facilitator take in the PH context? Naay kay amiga, “uy mare, naa koy problema gusto ko magpa-annul ug kasal sakong bana. Naa kay kaila na abogado?” “Ay oo, naa koy kaila na abogado na hawud, kanang si Atty. LYCE.” “Ay sige adtuon nato pero ubani ko kay wala ko kaila niya.” So giubanan atong nakaila kay Atty. LYCE katong prospective client. Nagsturya na karon katong client kag Atty. LYCE na gwapa, during the 1st interview usually nagpaminaw tung ni-refer sa abogado sa cliyente; naminaw pud sya. So mao na sya ang “facilitator,” tung mga naga uban ba. They make possible the rendition of legal services by the lawyer to the client. So, in that situation, can the attorney-client privilege communication be claimable? Yes, derivative attorney-client privilege communication. EMPLOYESS OF THE LAWYER ARE COVERED [this is a derivative form of the attorney-client privilege communication rule] The statements of the client need not have been made to the attorney in person. Those made to the attorney's secretary, clerk or stenographer for transmission to the attorney for the purpose of the professional relationship or with a view to such relationship or the knowledge acquired by such employees in such capacity are covered by the privilege. Like the attorney, their employer, these persons cannot be examined as to the communication made by the client or the advice given by the attorney without the client's consent. The privilege is also claimable against the attorney's partners and associates. THE RULE NOW INCORPORATES CODAL EXCEPTIONS

(i) Furtherance of crime or fraud. If the services or advice of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; Hypothetical Problem: KA consulted Sakee, a lawyer. He asked about Sakee's "professional" opinion as to how to import goods and

FIRST EXAM

bring them out from customs without paying any taxes or dues. Sir: There’s this guy, pariente sakong pariente, who called me up. He went on and on, rambling for about an hour and a half, and asked about my professional opinion, in the end [daghan na siya giingon, daghan na sya pangutana], ang pangutana niya diay is “naa ba kay kaila sa customs para makakuha ko’g shipment na di na ko mubayad ug customs dues?” Meaning, “Naa ba kay kaila na fixer sa customs? What is that? You’re smuggling, you’re not paying any taxes or custom dues. Q1: Assume that KA was caught smuggling goods, Can Sakee be called to testify as to what KA asked him? A: YES. Sakee can be called to testify. The privilege does not extend to communications where the client's purpose is the furtherance of a future intended crime or fraud, or for the purpose of committing a crime or a tort. Q2: Suppose that KA, after being arrested, sought Sakee's services as lawyer to defend him in the criminal case. KA then discussed facts that can be used in his defense. Can Sakee be called to testify? A: NO. The discussion of the communications in confidence with the lawyer after the crime has been committed will be privileged even though the earlier communications were not. SUMMARY The privilege does not extend to communications where the client's purpose is the furtherance of a future intended crime or fraud or for the purpose of committing a crime or tort. Although communications made when used to further crimes are not privileged, the discussion of the communications in confidence with the lawyer after the crime has been committed may still be privileged even though the earlier ones were not. However, where the lawyer himself is a coconspirator… The privilege does not apply where the lawyer was

himself a conspirator in the commission of that crime of falsification which he and his client concocted and foisted upon the authorities. It is well settled that in order that a communication between a lawyer and his client may be privileged, it must be for a lawful purpose or in furtherance of a lawful end. The existence of an unlawful purpose prevents the privilege from attaching. (People v. Sandiganbayan, G.R. Nos. 115439-41, July 16, 1997) August 27 Part 3 | Macacua Federal rules are simpler compared to Rules of Court. But they are similar.

(ii) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim

ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

through the same deceased client, regardless of whether the claims are by testate or intestate or by inter vivos transaction; This is taken directly and almost verbatim from rules of evidence adopted by certain states (i.e. 2010 Nevada Code or Nevada Revised Statute) According to the Federal Rules This exception to the privileged communication rule basically applies to family members, heirs, and beneficiaries. This law though does not apply to creditors, usually only family members and those involved in the decedent’s estate. In the Philippines, do we know how this is applied? We don’t know yet. Wala pa may kaso, where the Supreme Court had the occassion to interpret this exception. Now, codal lang sah ta.

(iii) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to his or her client, or by the client to his or her lawyer; Situation: Abogado and kliyente, naa nay sumpake. In all probability, there’s going to be a case between the client and the lawyer. Who breached the duty here? Pwede ang lawyer, pwede ang client. Example where lawyer breached his duty, wala niya gitarong og dala ang kaso. As to client’s breach of duty, wala nagbayad sa attorney’s fees. The lawyer sues the client for attorney’s fees, the privileged communication rule does not apply. A lawyer cannot be damned by the privilege A lawyer may circumvent the privilege if revealing information would relieve him of accusations of wrongdoing. When the client and attorney become embroiled in a controversy between themselves, as an action filed for payment of attorney’s fees or for damages against negligence of the attorney, the privilege is removed from the attorney’s lips. (Attorney can now testify against the client) Remember that this rule however, should be made to apply only where the suit is between the attorney and his client. The communication would still be privileged where the suit is by or against a third party.

(iv) Document attested by the lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; This is taken directly from rules of evidence of the 2010 Nevada Code or Nevada Revised Statute. This exception covers a situation where the lawyer attests to a document under the Rules on Notarial Practice.

FIRST EXAM

Notarial Acts A notary public is authorized to perform these notarial acts: a. Acknowledgements; b. Oaths and affirmations; c. Signature witnessings; d. Copy certifications; and e. Other acts authorized under the Rules A notary public is authorized to certify the affixing of a signature by a thumb mark or other mark on a document presented for notarization. A notary public is authorized to sign on behalf of a person who is physically unable to sign or make a mark on a document. Why this is an exception? The client went to the lawyer, nagpabuhat og instrument. The lawyer attests to the veracity of the instrument. Why is it not considered privilege communication? THREE (3) REASONS: 1.

The attorney is performing a function as a notary public. Not really as a lawyer giving advice or consulted by the client. He merely takes facts and reduces facts into writing. And then, ginotaryohan niya.

Notarization converts a private document into a public one. As such, it would then belong to the public domain and may therefore be inquired into. Example, sa isa ka case, whether or not authenticate ba ang deed of sale na ginotaryohan sa abogado. It’s already a public instrument and therefore may be inquired into already. It belongs to the public domain. So the lawyer cannot attest to that anymore?

When the lawyer testifies as an attesting witness, he is not called in his capacity as a lawyer but as an ordinary witness.

(v) Joint clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients, unless they have expressly agreed otherwise. Requisites: 1) The communication must be relevant to a matter of common interest between two or more clients; 2) A communication was made by any one of them to a lawyer who was retained or consulted by all of such clients in common; 3) The lawyer’s testimony is offered in an action between any of such clients;

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EVIDENCE 4)

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

One or more of such joint clients makes a separate communication to the commonly retained or consulted lawyer; The client or clients who made the separate communication meant the same to be privileged from disclosure to the others.

Communications covered The privilege is not confined to communications regarding actual pending cases. The communications may refer to an anticipated litigations or may not refer to any litigation at all. The communication may be oral or written. It is deemed to extend to other forms of conduct like physical demonstration as long as they are intended to be confidential. Example, muingon ang abogado. Unsa diay imong gibuhat, gi-filan man kag grave threats. Nyah, ning signal siya sa imoha, kanang cutting the throat fashion, mao na siya. That is also privileged. The communication between a client and his lawyer is not deemed lacking in confidentiality solely because the communication is transmitted by facsimile, cellular telephone, or other electronic means. Take note, in any form it may take, the communication is deemed covered by the Rule. PEOPLE vs SANDIGANBAYAN GR No. 115439-41. 16 July 1997 The privilege is not confined to verbal or written communications made by the client to his attorney but extends as well to information communicated by the client to the attorney by other means. The form is not important. It’s the information that is important. Element of Confidentiality Before the statements of the client and the advice of the attorney be deemed as privileged, the same should have been intended to be confidential. The matters communicated to the attorney are evidently not intended to be confidential when they were made to the lawyer but in the presence of third persons who neither stand in a position of peculiar confidence to the client or are not agents of the attorney. If the communications made by the client to his attorney were also made to third persons, the intention of secrecy does not appear. Privileged communication in the hands of third persons

FIRST EXAM

The communication between the attorney and his client shall remain privileged, even in the hands of a third person who may have obtained the information, provided that the attorney and his client, who are the original parties to the communication, took reasonable precaution to protect its confidentiality. Privilege is owned by the client and survives his death The privilege is personal and belongs to the client. If the client waives the privilege, no one else including the attorney can invoke it. For example, if the client is asked on cross examination of his communications to his lawyer and reveals the same, there would be a waiver of the confidentiality of the communication. Q: Can the lawyer object? A: No. Ning storya na man ang client. The privilege communication rules does not apply. The client who has the right to waive it, not the lawyer. There would also be a waiver if the client does not object to his attorney’s testimony on the communication. The protection of the privilege will generally survive the death of the client. SAURA vs ATTY. AGDEPPA AC No. 4426, 17 February 2000 The request for information regarding the sale of the property and to account for the proceeds is not a violation of the attorneyclient privilege. The information requested by the petitioners is not privileged. The petitioners are only asking for the disclosure of the amount of the sale or account for the proceeds. They have the right to ask for such information since they own the property as co-heirs. Hence, yhe lawyer cannot refuse to divulge such information to them and hide the cloak of the attoryney-client relationship. Q: Does the privilege preclude inquiries into the fact that the lawyer was consulted? In other words, can the lawyer be asked if a person is his client? Is the identity of the client privileged? General Rule: An inquiry into the fact of consultation or employment is not privileged. Even the identity of the client or the lawyer is not privileged. August 27 Part 4 | Maglinte As a matter of public policy a client’s identity should not be shrouded in mystery. Under this premise the general rule in our jurisdiction, as well as in the United States, is that the lawyer may

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EVIDENCE

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not invoke the privilege and refuse to divulge the name or identity of his client. REASONS First, the court has the right to know that the client whose privileged information is sought to be protected is flesh and blood. (Meaning this is a real person. This person is not invented by the lawyer so he can evade any questions). Second, the privilege begins to exist only after the attorney-client relationship has been established. The attorney-client privilege does not attach until there is a client. Third, the privilege, generally pertains to the subject matter of the relationship and not to the parties to the relationship. If you compare for example, marital privilege communication, you know who is the wife and the husband. So similarly, under the attorneyclient privilege, you also know who is the lawyer and client). And finally, due process considerations require that the opposing party should, as a gentleman rule, know his adversary. “A party suing, or sued is entitled to know who his opponent is.” He cannot be obliged to grope in the dark against unknown forces. (Regala vs.

Sandiganbayan)

FIRST EXAM

So, is the identity of clients of ACCRA considered privileged? HELD: GENERAL RULE The attorney-client privilege may not be invoked to refuse to divulge the identity of the client EXCEPTIONS (1)When a strong probability exists that revealing the name would implicate that person in the very same activity, for which he sought the lawyer’s advice; (2) When disclosure would open the client to liability; (3) When the name would furnish the only link that would form the chain of testimony necessary to convict. In other words appear, the government, the prosecution knows everything and has evidence already except who the client is that they will prosecute. LAST-LINK DOCTRINE According to the Supreme Court, by compelling the petitioners, not only to reveal the identity of their clients, but worse, to submit to PCGG documents substantiating the client-lawyer relationship, as well as the deeds of assignment petitioners executed in favor of its clients covering the respective shareholdings, the PCGG would exact from petitioners a link that would inevitably form the chain of testimony necessary to convict the client of a crime.

REGALA v. SANDIGANBAYAN G.R. No. 105938, September 20, 1997

So according to the Supreme Court, the identity of the client, under the Last Link Doctrine is covered by privilege.

FACTS: Allegedly Cojuangco, et al., with the assistance of ACCRA law firm, through the use of the coconut levy funds, the financial and corporate framework and structures that led to the establishment, of UPCB, UNICOM, COCOLIFE, COCOMARK, CIC, and more than twenty other coconut levy funded corporations, including the acquisition of San Miguel Corporation. Said corporations are subject to investigation by the PCGG involving ill-gotten wealth. ACCRA refuses to provide information on fear that it may implicate them in the very activity from which legal advice was sought from them and it may breach the fiduciary relationship of the petitioner with their client.

This is a very important case that you need to read because it can actually can be asked in corporation law, evidence, remedial law and legal ethics.

So ACCRA contends that our fingerprints can be seen practically everywhere, doing all of these things, the corporate framework, the papers that led to the creation of these corporations. Yes, that is correct. But for whose benefit? Was it really for Cojuangco? Was it really taken from Nicola levy funds? The contention of ACCRA is that, if we provide you with an answer to whether or not Cojuangco are our clients, then you can zero in on these people, and prosecute them.

Non-privileged information such as the identity of the client is protected if the revelation of such information would necessarily reveal the privileged information. Let’s say there's this unknown person. Assume that the government already knows that Atty. JC, JZE was already consulted by an unknown client because she committed murder. The only thing that the government does not know is the identity of the client herself. Note that, if the identity of the client can be compelled from the lawyer, it will constitute the last link for the government to commence the prosecution of charges against client. C. PHYSICIAN-PATIENT PRIVILEGE PRIOR TO AMENDMENT

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EVIDENCE

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(c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in capacity, and which would blacken the reputation of the patient; Take note of the change in this provision. AMENDED PROVISION (c) A physician, psychotherapist or person reasonably believed by the patient to be authorized to practice medicine or psychotherapy cannot in a civil case, without the consent of the patient, be examined as to any confidential communication made for the purpose of diagnosis or treatment of the patient’s physical, mental or emotional condition, including alcohol or drug addiction, between the patient and his or her physician or psychotherapists. This privilege also applies to persons, including members of the patient's family, who have participated in the diagnosis or treatment of the patient under the direction of the physician or psychotherapist. Notice they removed surgery and obstetrics since they are both physicians or authorized to practice medicine. They added psychotherapist. They also added for the purposes of diagnosis and treatment. We also have derivative patient privilege communication under the second sentence, such as members of the patient's family. A “psychotherapist” is: a. A person's a person licensed to practice medicine engaged in the diagnosis or treatment of a mental or emotional condition, or b. A person licensed as a psychologist by the government while similarly engaged.

So whether public or private, the psychotherapist is covered. CHANGES AND COMMENTS From “person authorized to practice medicine surgeon or obstetrics” to a “physician, psychotherapist or person reasonably believed by the patient to be authorized to practice medicine or psychotherapy” This includes a person who you think is a doctor but he is not a doctor and only happens to be a medical transcriptionist, hence he is familiar with the medical terms. If you think he is a doctor and your proceeded upon the belief that he is the doctor, the effect would. Be it will be covered by the privilege. Also note, Surgery and obstetrics are now subsumed under practice of medicine.

FIRST EXAM

Psychotherapist is added because it is the most confidential and most intimate practice of medicine since you are dealing with the mental health of the patient. Note as well that similar to the attorney-client privilege, even non-physicians who ostensibly are practicing medicine or psychotherapy in the belief of the client are covered by the privilege. Even those who are not authorized to practice medicine or psychotherapy who hold themselves out to the public as such are covered. “made for the purpose of diagnosis, or treatment” Remember, prior to the changes, I already commented that it has to be treatment.

Treatment

It is necessary for the operation of the privilege that the physician is acting in his “professional capacity” and that the advice or treatment given or acquired in such capacity. The physician may be said to be acting in the professional capacity when he attends to the patient for either curative or preventive treatment. Results of autopsies may not be deemed covered by the privilege because autopsies are not intended for treatment. The patient therefore must be alive.

NEW REQUISITES 1. The action in which the advice or treatment is to be used in a CIVIL CASE; 2. The proposed witness is a physician, psychotherapist or person reasonably believed by the patient to be authorized to practice medicine or psychotherapy; 3. The testimony relates to any advice, diagnosis, or treatment given by the proposed witness to the patient while professionally attending to such patient; and 4. The advice, diagnosis, or treatment was obtained in the course of the performance of the witnesses’ professional duty. The phraseology of the rule implies that the privilege cannot be claimed in a criminal case presumably because the interest of the public in criminal prosecution should be deemed more important than the secrecy of the communication. The requirement that the information sought to be elicited from the physician should tend to blacken the reputation of the patient is no longer included. It doesn't really matter anymore if it will blacken or diminish the reputation of the patient For so long as it is medical information obtained through diagnosis or treatment, that is covered by the privileged communication rule. August 27 Part 5 | Ugdang

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

DERIVATIVE PRIVILEGE There is this derivative privilege that I told you about under the second sentence of this paragraph. Take note, this privilege, again, similar to attorney-client privilege communication where it’s the client who has the privilege, the same thing with respect to physician-patient. It is the physician who owns the privilege, so he can waive it, he can waive it expressly or impliedly. So, since the object of the privilege is to protect the patient. It may be waived if no timely objection is made to the physicians, similar to the attorney-client privileged communication. RATIONALE To encourage the patient to disclose matters which may aid in the diagnosis for the treatment of a disease or an injury. For this purpose, it is necessary to shield the patient from embarrassing details concerning his condition. Accordingly, this privilege protects the interest of the patient. It is designed to promote health and not truth. It encourages free disclosure in the sickroom by preventing disclosure in the courtroom. EXAMPLE My wife goes with me to the doctor, my wife cannot also reveal the information that we gained from the doctor. That is the derivative privilege. Because she went with me to the doctor, she went with me to the consultation, sa diagnosis. So, that’s the derivative privilege. So, take note, in Chan v. Chan, this rule was intended to encourage the patient to open up to the physician and give him access to his body. Enabling the physician to make the correct diagnosis and provide the appropriate cure. Any fear that a physician could be compelled in the future to come to court and narrate all that had transpired between him and the patient might prompt the latter to clam up, this putting his own health at great risk. Take note again, it survives the death of the patient. Death does not permit the living to impair the deceased’s name by disclosing communication held confidential by law. Gonzales v. CA Abad died, leaving a sizeable estate. His siblings, including Gonzales, filed a petition for the settlement of the intestate estate of Abad and allegedly that they were sole heirs. This was opposed by Honoria Empaynado, claiming that the siblings deliberately concealed the existence of their children with Ricardo as well as another child with another woman. Just read this case.

FIRST EXAM

Although I prefer to retain this in the new book, but now it is NOT APPLICABLE. The discussion of the SC here in relation to blacken the reputation of the patient even if he is dead, does not apply anymore. The only thing applicable here is that IT SURVIVES the death of the patient. But, blackening the reputation? It is not application under the current reiteration of the rules. PROFESSIONAL CAPACITY Kinahanglan ba na adunay contrata? Na ning fill up gyud kag patient information card because that is the way how they become doctor and patient if nag fill up naka atong patient information card. Diba? Take note, the professional capacity can be without a contract. Maybe there’s a quasi-contractual relationship. Such as when the patient does NOT GIVE CONSENT, like article 2167 of the Civil Code, patient in extremis. So, when a person or through an accident or other cause a person is injured or becomes seriously ill, and he is treated or helped while he is not in a condition to give consent to a contract, he shall be liable to pay of the services of the physician or other person aiding him, unless the service has been rendered out of pure generosity. Mo bayad gihapon siya, doctor-patient relationship gihapon even if wala ka nag give ug consent. Otherwise there will be what? Unjust enrichment. So, take note of these miscellaneous concepts in relation to this privilege 1. Communication is not given confidence; 2. Communication is irrelevant to the professional employment; 3. Communication was made for an unlawful purpose, as when it is intended for the commission or concealment of a crime; 4. Information was intended to be made public; 5. There was a waiver of the privilege either by provisions of contract or law. Doc, unsay pinaka maau nga hilo? Naa man gud koy hiloan. Kinsa man? Si kapitan ako hilo-an, is that covered by privilege? NO. because it is for the commission of a crime. Or mangutana ka doc, what chemical ba ang pwede gamiton na kanang di maklaro ang patay nga lawas? NO. Concealment of a crime pud na siya Or information intended to be made public and if there is waiver to the privilege, it is either by provisions of a contract or by law. Like a life insurance contract, there’s that waiver. When the patient answers questions on cross-examination there is also a waiver. kung ning tubag siya on questions relating to privileged matters, relating to confidential information then waived ang katong privilege. Under Rule 28, the court may order a physical or mental examination, so long as the mental or physical condition is in

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

dispute. The party examined may request a report of the examination. By doing so, he waives any privilege he may have in that action regarding the testimony of every other person who has examined him in respect of the same examination. That’s another form of waiver under the rules. Lim v. CA The privilege does not apply when the doctor is presented as an expert witness and only hypothetical problems were presented to him. The privilege does not cover expert opinion as long as the witness does not testify to matters SPECIFICALLY referring to the patient. In Chan v. Chan, only Feb. 6 2006, Josielene field a petition for the declaration of nullity of her marriage to Johnny. She claimed that Johnny failed to care for and support his family and that a psychiatrist diagnosed him as mentally deficient due to incessant drinking and excessive use of prohibited drugs. It is still ok. What is the issue here? Is the privilege only applicable to testimony? The testimony of the doctor or does it also cover medical records. Because diri, when the patient was admitted to the doctor, naay gi sulat ang doctor sa iyahang record na probably drug addict ni sya or alcoholic. Mao ni gib utang niya, karon kay mao ni gi gamit sa iya asawa that her husband suffered from methamphetamine and alcohol abuse. Q: Can this be covered by the privilege? Pwede ba siya ma subpoena? A: According to the SC, NO. because to allow the disclosure during the discovery procedure of the hospital records – the results of the test that the physician ordered, the diagnosis of the patient’s illness, and the advice or treatment he gave him – would be to allow access to evidence that is inadmissible without the patient’s consent. So, the memorializes all this information in the patient’s records. Disclosure them would be equivalent of compelling the physician to testify on privileged matters he gained while dealing with the patient, without the latter’s prior consent. So, this is still a good law. PRIVILEGED COMMUNICATION IN THE HANDS OF A THIRD PERSON This is still the same, refer to the last paragraph. That the physician and his patient, who are the original parties to the communication, took reasonable precaution to protect its confidentiality. D. PRIEST-PENITENT PRIVILEGE (as amended) A minister, priest or person reasonably believed to be so cannot, without the consent of the affected person, be examined as to any communication or confession made to or any advice given by him

FIRST EXAM

or her, in his or her professional character, in the course of discipline enjoined by the church to which the minister or priest belongs. August 27 Part 6 | Rojo

*Sir was asking about religion, in relation with penitence. This is the point I am trying to make, that it is only the Catholic church, a religion having a course of discipline, meaning naay doktrina or sakramento na makig sturya ka sa imong pari as a representative of God on earth nan aa siyay katungod para pasayluon ka. He has the power to absolve you of your sins by making you pray hail marry, our father and “amens.” So, this is only applicable to Catholicism. This is one designed for Catholics. *Sir talks about his religious views. Only the Catholics benefit with this Priest-Penitent Privilege. I have been teaching this subject for 12 years and none of those years can my student tell me na ang iyang religion has a course of discipline similar to pag kumpisal or confession sa Catholic church. Take note of the new requisites: 1. The proposed witness is a minister, priest or a person reasonably believed to be so by the confessant; 2. The proposed testimony relates to any communication or confession made to, or any advice given by, the witness, in his or her professional character; 3. The communication, confession or advice must have been made in the course of discipline enjoined by the church to which the minister or priest belongs; and 4. The confessant neither gave his consent to the testimony, expressly or impliedly, nor waived the benefit of the privilege, expressly or impliedly. The important here is “in the course discipline enjoined by the church to which the minister or priest belongs.” AKA Clergy Privilege Communications made by a person to a priest, rabbi, cleric, or minister in the course of confession, or similar course of discipline by other religious bodies, are privileged from disclosure. The communications to clergy members must be made while clergy members are acting in the professional capacity of a spiritual adviser and with the purpose of dispensing religious counsel, advice, solace, or absolution. According to Wigmore, communications given to members of the clergy must be one that made for the purpose of dispensing religious counsel, advice, solace or absolution. “Professional Capacity”

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

The person making the confession holds the privilege and the priest or minister hearing the confession in his professional capacity is prohibited from making a disclosure of the confession without consent of the person confessing. The privilege also extends to any advice given by the minister or priests. The confession and the advice must have been made or given pursuant to the course of discipline of the denomination or sect to which the minister or priest belongs. Thus, the minister or priest must be duly ordained or consecrated by his sect. In confession of sins, dapat katong imong g’kumpisalan must be ordained or consecrated by his sect. But now, it has been expanded to “a person reasonably believed to be a minister or priest by the penitent.” Person reasonably believed to be a minister or priest As currently phrased, the privilege is now claimable against a person who may not actually be an ordained minister or priest. It is thus possible that: 1.

Such person is mistakenly believed by the penitent to be a priest or minister duly qualified to take his confession; What is the possible instance there? Example, lay person lang d ay na siya. Nag sulod ka sa confessional box ang janitor d ay sa simbahan imong naka sturya unya nangumpisal na ka.

The person holds himself out to the public as a priest or minister without actually ordained being so. Daghan ug ana, daghan man ug stages sa priesthood. Pag ordained ka, that is the only time you are allowed to perform the sacraments. *Sir talks about his catholic education., then him being

transferred to UM, a non-sectarian institution.

Diri naay Christian Ethics, Ngano ang ethics applicable lang sa Christians? Unfair, similar to this priest-penitent privilege. The privilege therefore applies if there is a reasonable belief on the part of the penitent that the person, he is confessing to is a minister or priest. Privileged communication in the hands of third persons The communication between the priest or confessor and the penitent or confessant shall remain privileged, even in the hands of a third person who may have obtained the information, provided that the priest and the penitent, who are the original parties to the communication, took reasonable precaution to protect its confidentiality. E. PRIVILEGE OF STATE SECRETS PRIOR AMENDMENT

FIRST EXAM

(e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. AFTER AMENDMENT (e) A public officer cannot be examined during or after his or her tenure as to communications made to him or her in official confidence, when the court finds that the public interest would suffer by the disclosure. From “term” to “tenure” The term of an office must be distinguished from the tenure incumbent. The term means the time during which the officer may claim to hold office as of right and fixes the interval after which the several incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds office. The term of office is not affected by the hold-over. The tenure may be shorter that the term for reasons within or beyond the power of the incumbent. (Nueno vs. Angeles, 76 Phil. 12) Q: What’s the change? A: It is just him or her, and from term to tenure. Q: Is it consequential? A: Yes, of course because term is different from tenure. An example of a term is, like in the US. Their president is entitled if he is elected, he has a four-year term and he is eligible for reelection for another 4 years. Let’s say he is impeached or removed from office after 3 years. What is his term? 3 years or 4 years? 4 years. But what is his actual tenure? 3 years. So, it reflects the reality that while you may have a term, it is possible that you may resign or removed from office. But the effect is still the same. Because during or after man term or tenure, it does not really matter. But the difference is as held in the case of Nueno and repeated in the case of Evangilista vs. Alba. REQUISITES: 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: Who will determine whether or not the information is of public interest?

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A: It is the court. The court should know the nature, so that the court can judge whether or not there is a public interest that would suffer if the communication is disclosed. If the courts want to, the court can demand to know whether it is privileged that the public interest would suffer of the disclosure. So, the court can ask without informing the other party. Q: What is this privilege intended for? BANCO FILIPINO vs. MONETARY BOARD G.R. No. 70054, July 8, 1986 This privilege is intended not for the protection of public officers bit for the protection of public interest that where there is no public interest that would be prejudiced, this invoked rule will not be applicable. The rule that a public officer cannot be examined as to communications made to him in official confidence does not apply where there is nothing to show that the public interest would suffer by the disclosure question. The government must establish that public interest would suffer by the disclosure of the papers and documents for the privilege to be invoked. When inapplicable: If what is asked: 1. is useful evidence to vindicate the innocence of an accused; 2. lessens the risk of false testimony; 3. is essential to the proper disposition of the litigation; 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 all pubic officers in general? A: 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.). The court, not the witness, will determine the necessity of regarding the communication as privileged in nature. Take note that executive privilege is different. Concept of Executive Privilege Certain types of information like military, diplomatic and other national security matters may be withheld from the public. But a personal life for example, of the president, that is not privileged. That is being debated in US. Because there are people who are writing books about Donald Trump, that he wants to be silenced because it might damage his re-election efforts. There is that debate. But, if you would ask me, that is not a privilege information because that is his personal life. As long as it does not involve national security, it may be disclosed to the public.

FIRST EXAM

OTHER PRIVILEGED COMMUNICATIONS Under the Rules on Electronic Evidence Privileged communications apply even to electronic evidence. Under Sec. 3, Rule 3 of the Rules on Electronic Evidence, the confidential character of a privileged communication is not lost solely on the ground that it is in the form of an electronic document. Newsman’s Privilege Editors may not be compelled to disclose the source of published news. Section 1. Without prejudice to his liability under the civil and criminal laws, the publisher, editor, columnist 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 information appearing in said publication which was related in confidence to such publisher, editor or reporter XXX

(Republic Act No. 53, as amended by RA No. 1477).

August 27 Part 7 | Campaner But my problem here is gina-take advantage sa mga unscrupulous news organizations. E.g. when news reporters say“According to anonymous sources”, you cannot compel them to reveal their sources. Political vote privilege Voters may not be compelled to disclose for whom they voted, which is a constitutional privilege to a degree inasmuch as the 1987 Constitution itself mandates the secrecy and sanctity of the ballot. Bank Deposits

RA No. 1405. Sec 2. All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau of office, except upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation. But little by little, medyo nawala na ang secrecy of bank deposits The privileged nature of bank deposits have been diluted by: 1. RA No 9372 (Human Security Act of 2007) Sec. 27. Judicial Authorization Required to Examine Bank Deposits, Accounts and Records. – xxx The justices of the Court of Appeals designated as a special court to handle anti-terrorism cases xxx may authorize in writing any police or law enforcement

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officer and the members of his/her duly authorized in writing by the anti-terrorism council to: (a) examine, or cause the examination of, the deposits, placements, trust accounts, assets and records in a bank or financial institution; and RA No 10168 (An act defining the crime of financing of terrorism). The AMLC is hereby authorized to inquire into or examine deposits and investments with any banking institution or non-bank financial institution and their subsidiaries and affiliates without a court order.

FIRST EXAM

Data Privacy Act of 2012 RA 10173, Sec 13 and 15 PARENTAL AND FILIAL PRIVILEGE PRIOR TO AMENDMENT

Section 25. Parental and filial privilege. – No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants.

Now, in the most recent iteration of the anti terrorism act 3.

RA No 11479 or the Anti Terrorism Act of 2020. Sec. 35. Anti Money Laundering Council Authority to Investigate, Inquire into and Examine Bank Deposits. xxx For the purposes of this section and notwithstanding the provisions of RA 1405, otherwise known as the “Law on Secrecy of Bank Deposits,” xxx, the AMLC is hereby authorized to inquire into or examine deposits and investments with any banking institution or nonbank financial institution and their subsidiaries and affiliates without a court order.

Again, wala’y court order, so the AMLC is authorized to inquire into your bank deposits. Article 233 of the Labor Code All information and statements made at conciliation proceedings shall be treated as privileged communications and shall not be used as evidence in the NLRC, and the conciliators and similar officials shall not testify in any court or body regarding the matter taken up at the conciliation proceedings conducted by them. Alternative Dispute Resolution Act (RA 9285), Sec 9(a) Information obtained through mediation shall be privileged and confidential. Sec. 23 also provides for the confidentiality of arbitration proceedings. Arbitration record in the CIAC are also confidential. Guardian ad litem privileged communication rule 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 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]; Informer’s privilege Informers, for the protection of their identity, cannot be compelled to testify by the prosecutor when their testimony would merely be cumulative and corroborative. It is the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law.

AFTER AMENDMENT

Section 25. Parental and filial privilege. – No person shall be compelled to testify against his or her parents, other direct ascendants, children or other direct descendants, except when such testimony is indispensable in a crime against that person or by oner parent against the other. This privilege does not disqualify a person from testifying against his parents or children or other direct ascendants and descendants. A person may testify against his parents or children voluntarily but if he refuses to do so, the rule protects him from any compulsion. He cannot be compelled to testify against any of the relatives mentioned in the rules. Take note that there is a similar rule under the Family Code Art 215. 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 parent against the other. Take note that under the old iteration sa rule and Art 215, mura sya’g gicombine. Such that the current iteration sa Rule, naa nay similar na mga exceptions. Take note of those who are not covered: 1. Relatives by affinitiy 2. Brothers and sisiters 3. Aunts, uncles, nephews, nieces 4. Cousines of whatever degree 5. Other collateral relatives Q: Will this be applicable to adopted children? A: It is believed that adopted and adopter are covered by the parental and filial testimonial privilege rule but only insofar as the parent and child is concerned. It does not extend to the direct ascendants of the adopter because the adoptive relation is between the adopter and the adopted only. The reason for this opinion is the rationale behind the privilege, which is to preserve the harmonious relations between the parent and child which could be ruptured through testifying in court. Furthermore, perjury may result because the parent or the child may give false testimony to protect the other. EXCEPTIONS:

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

FIRST EXAM

A person can be compelled to testify against his or her parents, other direct ascendants, children or other direct descendants if: 1. Such testimony is indispensable in a crime against that person; 2. Such testimony is indispensable in a crime by one parent against the other.

Sec. 26. Privilege relating to trade secrets – A person cannot

Lee v Court of Appeals GR No. 177861, July 13, 2010

TRADE SECRETS Under this new provision, no person can be compelled to testify about any trade secret, as a general rule.

FACTS: Spouses Lee and Keh entered the Philippines in the 1930s as immigrants from China. They had 11 children. In 1948, Lee brought from China a young woman named Tiu, supposedly to serve as housemaid. Tiu left the Lee-Keh household, moved into another property of Lee nearby, and had a relation with him. Shortly after Keh died in 1989, the Lee-Keh children learned that Tiu’s children with Lee claimed that they, too, were children of Lee and Keh. This prompted the Lee-Keh children to request the National Bureau of Investigation (NBI) to investigate the matter. The NBI found, for example, that in the hospital records, the eldest of the Lee’s other children, Marcelo Lee (who was recorded as the 12th child of Lee and Keh), was born of a 17 year old mother, when Keh was already 38 years old at the time. Another of the Lee’s other children, Mariano Lee, was born of a 23 year old mother, when Keh was then already 40 years old, and so forth. In other words, by the hospital records of Lee’s other children, Keh’s declared age did not coincide with her actual age when she supposedly gave birth to such other children, numbering eight. On the basis of this report, the respondent Lee-Keh children filed to separate petitions, one of them before the RTC of Caloocan City in Special Proceeding C-1674 for the deletion from the certificate of live birth of the petitioner Emma Lee, one of Lee’s other children, the name Keh and replace the same with the name Tiu to indicate her true mother’s name. In April 2005 the Lee-Keh children filed with the RTC an ex parte request for the issuance of a subpoena ad testificandum to compel Tiu, Emma Lee’s presumed mother, to testify in the case. The RTC granted the motion but Tiu moved to quash the subpoena, claiming that it violated Section 25, Rule 130 of the Rules of Court, the rule on parental privilege, she being Emma Lee’s stepmother. HELD: Tiu, who invokes the filial privilege, claims that she is the stepmother of petitioner Emma Lee. The privilege cannot apply to them because the rule applies only to “direct” ascendants and descendants, a family tie connected by a common ancestry. A stepdaughter has no common ancestry by her stepmother. Consequently, Tiu can be compelled to testify against petitioner Emma Lee.

be compelled to testify about any trade secret, unless the nondisclosure will conceal fraud or otherwise work injustice. When disclosure is directed, the court shall take such protective measures as the interest of the owner of the trade secret and of the parties and the furtherance of justice may require.

By way of exception, however, testimony on any trade secret may be compelled if the non-disclosure will conceal fraud or otherwise work injustice. Take note of this case, because in my mind, this is the jurisprudential source of this new provision. Airphil vs. Penswell, Inc GR no 172835, December 13, 2007 The chemical composition, formulation, and ingredients of respondent’s special lubricants are trade secrets within the contemplation of the law. The manufacture and production of respondent’s products proceeds from a formulation of a secret list of ingredients. In the creation of its lubricants, respondent expanded efforts, skills, research, and resources. What it had achieved by virtue of its investments may not be wrested from respondent on mere pretext that it is necessary for petitioner’s defense against a collection for a sum of money. To compel its disclosure is to cripple respondent’s business, and to place it at an undue disadvantage. Rule 27 cannot justify production of the information as the same is limited to documents or things that are not privileged in nature. September 2 Part 1 | Acevedo

ADMISSIONS AND CONFESSIONS

THE CONCEPT OF ADMISSIONS Admissions can be: 1. Judicial; or 2. Extrajudicial

JUDICIAL ADMISSION Note: This was already discussed under Rule 129, Sec. 4. A judicial admission (admission in judicio) is a deliberate, clear, unequivocal statement by a party about a concrete fact within that party’s knowledge (Rule 129, Sec. 4).

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EVIDENCE C.

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

Note that, in the present case, the declaration of A to C is relevant to the fact in issue which is the existence of the debt. It is relevant to the matter, that is in the litigation for collection of a loan.

ACT Example: When the accused offers a compromise to the private complainant or to the offended party. That offer of compromise may be received in evidence as an implied admission of guilt.

Section 28. Offer of compromise not admissible. — xxx In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt.

DECLARATION Situation: A was sued by B for collection of a debt. In his answer, A categorically denied having contracted any loan from B. However, prior to the case being filed, A spoke to C and told him that he borrowed money from B to buy a car. There is a case between A and B. Can C testify as to what A told him that it is true that he borrowed money from B because he used it to buy a car? Answer: Yes. (1) Note that the witness to be presented, C, is one who has no personal knowledge about whether there was really a contract of loan between A and B. What he knows is what A told him. A told him that he borrowed money because he bought a car. But, in this case, he opposed and he denied that he borrowed money from him. (2) Under the law, when a witness testifies on something not based on his personal knowledge, meaning it was only relayed to him by other persons, that is considered as hearsay which is normally inadmissible under Sec. 22 and Sec. 37, as a general rule.

OMISSION This means a failure to act or to make a declaration when one ought to. Example: Section 33. Admission by silence. — An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him or her to do so, may be given in evidence against him or her. (23a) This means that you have made a reaction, but you did not do so. That can be taken as an admission by silence.

Note: When we are talking about Section 27 and the accompanying provisions is that everything is made out of court. The rules that we are going to discuss will not apply anymore if they are made in open court when there is an opportunity for the adverse to cross-examine. 2)

(3) However, under Sec. 27, the declaration of a party as to a relevant fact may be given in evidence against him.

EXTRAJUDICIAL ADMISSION Section 27. Admission of a party. — The act, declaration or omission of a party as to a relevant fact may be given in evidence against him or her. (26a) This was Section 26 in the old rules. 1)

FIRST EXAM

Latin Maxim: Qui tacet Consentire Videtur (He who is

silent is deemed to consent). D.

ARE ALL TYPES OF ADMISSIONS ADMISSIBLE AGAINST THE PARTY WHO MADE IT OUT OF COURT? No. Admission that is made out of court can either be: According to whether or not an admission is favorable to the party making it, an admission can either be: (1) Admission per se (under Section 27); and Section 27. Admission of a party. — The act, declaration or omission of a party as to a relevant fact may be given in evidence against him or her. (26a)

(2) Self-serving Admission It is an admission made by a party out of court at one time and which is favorable to the party making it. It is excluded on the same ground as any hearsay evidence—that is: (a) the lack of opportunity for cross-examination by the adverse party, and (b) on the consideration that its admission would open the door to fraud and to fabrication of testimony (National Development Company v. WCC, GR. No. L21724, April 27, 1967).

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

Remember: It is simply an admission favorable to the party making it (Lichauco v. Atlantic Guld and Pacific Co., 84 Phil. 342). This means that what Section 27 seems to imply is that, the admission (the act, declaration or omission) that can be taken against a party is one that prejudices him. It is not favorable to him.

FIRST EXAM

(1) If he really has not paid his loan with B bank, his only evidence during trial would consist in his own testimony. He will deny that he has a debt or he will testify that he already paid. (2) In effect, by telling C, D, and E, that he already paid the loan, he can use their testimony to corroborate his defense of payment, thus he is not the only who will say that he already paid. C, D, and E are also included to whom he communicated that he already paid to the Bank.

Notes: 1. The concept of self-serving admission does not include a party’s testimony as a witness in court. This is because even if a party makes a self-serving admissions in court, there is an opportunity for the adverse party to cross-examine him. A party’s testimony in court is sworn and affords the other party the opportunity for cross-examination.

(3) However, under the Rules, such “planted” evidence is not admissible. Sorry, A this is self-serving admissions which are not admissible in court.

What is covered therefore is when a third-party witness testifies in court about the self-serving admission made by the party.

Take note of the effect if the admission was not self-

Requisites of Self-Serving Evidence Note: Must be remembered because these are doctrinal requisites not under the provisions.

Situation: A was sued by B for collection of a debt. In his answer, A categorically denied having contracted any loan from B. However, prior to the fling of the case, A spoke to C, D, and E and told them that he actually borrowed money from B to pay or to buy a car.

serving

This means that we go to a situation covered by Section 27.

The testimony is favorable to the defendant; This means that instead of saying that he is indebted, he said he has no debt. That favors him, it promotes his interest rather than it being a declaration against his interest.

Instead of saying that he already paid to the bank, he actually admitted that he had a debt to the bank but he did not yet pay. Clearly, that is adverse to his interest, and thus because of that, C, D, and E can all testify.

It is made extrajudicially; and These provisions that we are talking about do not apply if it is made in open court.

In this case, C, D, and E can all testify because the admission by A is one that is against his interest instead of being favorable to his cause.

It is made in anticipation of litigation This is the requisites that we need to understand. This requisite covers evidence that is seemingly “planted” or manufactured, for lack of a better term. Situation: A has been in default of his loan obligations to B Bank. Sensing that B bank is about to sue him to collect the debt, A goes around and tells C, D, and E that he had actually paid B Bank. He has a thought in mind that the Bank might file a case against him and he really has not paid yet, thus he was thinking of a defense if a case might be filed against him for the collection of a deb. What he did was, he talked to C, D, and E and will told them that he already paid his debt to the bank. When he says that he actually paid the bank, it is actually favorable to his interest. Why did A do this? What is A’s Evidence in case he is sued for collection by the bank?

INADMISSIBLITY OF SELF-SERVING ADMISSION Why are self-serving admissions not admitted in court? (1) A man may be safely believed if he declares against his own interest, but not if he advocates his interest (Lichauco v. Atlantic

Gulf

and

Pacific

Co.).

(2) It is excluded on the same ground as any hearsay evidence, that, the lack of opportunity for cross examination by the adverse party (National Development Co. v. WCC). September 2 Part 2 | Amistad WHEN WOULD SELF-SERVING ADMISSIONS BE ADMISSIBLE? 1. If made in open court; 2. Giving full opportunity to the adverse party to exercise his right of cross-examination. When we are talking about self-serving admissions we’re talking about extra-judicial admission.

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

This is not really an exception to the rules but rather something that changes the nature of the admission. Why? Because if it is made in open court and giving full opportunity to the adverse party to cross-examine the declarant then it is no longer an extra-judicial admission but becomes a judicial admission. Hence, it wouldn’t matter anymore whether it is self-serving or an admission per se. Example 1: (Actual JZE Case) – Land Case

FIRST EXAM

party’s testimony favorable to his cause. That, it seems, is the sense in which petitioners are using it now. This is a grave error. “Self-serving evidence” is not to be taken literally to mean any evidence that serves its proponent’s interest. The term, if used with any legal sense, refers only to acts or declarations made by a party in his own interest at some place and time out of court, and it does not include testimony that he gives as a witness in court. XXX In contrast, a party’s testimony in court is sworn and subject to cross-examination by the other party, and therefore, not susceptible to an objection on the ground that it is self-serving.

JZE: You mentioned in your answer, Mr. Witness, that it was not the Plaintiff who planted the crops in the subject land. If it was not the plaintiff, who was it then?

Many lawyers would still make an objection that the testimony of a witness is self-serving in open court. Meaning, they do not really understand what self-serving evidence really means.

Defendant: I was the one who planted it together with my father.

Example 2: My client filed an action for declaration of nullity of marriage on the ground of mutual psychological incapacity of both my client and his wife. His wife opposed the petition. During trial, I presented my client as a witness to testify on what constitutes his own psychological incapacity.

Remember under your Land Registration laws, there are different ways of acquiring ownership or title to lands that have not yet been subjected to the operations of the Torrens System (e.g. acquisitive prescription, OCENPO etc.). In this case, someone came into the land cultivated by my client and demanded that they vacate the same alleging that they have a certificate of title on the subject agricultural land. So, I was thinking why does he have a certificate of title on such land even though he was not in personal cultivation, how did he managed to acquire/register such property? Atty. X: Objection, your honor! Self-serving!

Why was is self-serving? According to Atty. X, it was my client who planted on such land, meaning it was my client who allegedly owned the land thus if such would be admitted it would be favorable to my client. Q: Was it a proper way to object? A: No. Because that is a misconception borne out of ignorance.

MISCONCEPTION BORNE OUT OF IGNORANCE Not every testimony that is favorable to the party is considered selfserving. If the rule were otherwise, all testimonies of party-litigants would be self-serving and therefore inadmissible because it is very rare for a party to advocate against his own cause.

JZE: What sexual disorder are you referring to, Mr. Witness? Husband: I am a sex maniac, sir. JZE: Would you care to elaborate, Mr. Witness? Husband: Sure! I crave sex constantly. My wife cannot satisfy me in this aspect. Sometimes, I call her to go home just so we can do it. If she refuses, I can’t help but look for it from someone else or I just play with myself. Opposing Counsel: Objection, your honor! (after some hesitation) That is self-serving! Court: Atty. Espejo, would you care to comment? JZE: Your honor, please, this is not self-serving, Counsel can crossexamine. Besides, testimony is self-serving only when it is favorable to the witness. Here, your honor, he is actually advocating against his own interest. Testimony is self-deprecating, your honor. Court: Objection is overruled. It is self-deprecating. You may continue.

Clemeña vs. Bien G.R. no. 155508, September 11, 2006

Was the Court or JZE correct? Yes. The court was correct in overruling the objection but the ground was wrong. I was therefore also wrong.

“Self-serving evidence,” perhaps owing to its descriptive formulation, is a concept much misunderstood. Not infrequently, the term is employed as a weapon to devalue and discredit a

The only ground there should have been the ability of the adverse counsel to cross-examine, it was made in open court so it was a judicial testimony. The fact that the testimony was self-deprecating

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

FIRST EXAM

is not a proper ground. It was destructive of his personality but it was favorable to his cause (i.e. proving his own psychological incapacity).

Flight- That is actually an admission, diba? You admit your guilt kung mu-eskapo ka, okay? If you try to evade prosecution, you are deemed to be guilty. That is an admission.

Please do not forget, there is no self-serving admission if it is made in open court since the adverse party can cross-examine.

Q: What about the fact na wala ka ni-eskapo. Nagpa-press conference ka saying nga “ako ning atubangon because the truth will set me free.” Will that be considered as admission of your innocence? A: No. Non-flight cannot be used as evidence to prove his innocence because that will be considered as an act that is favourable to the interest of the accused.

Admissions per se under Section 27 An admission is any statement made by a party to a lawsuit (either before a court action or during it) which tends to support the position of the other side or diminish his own position.

adverse

For example, if a husband sues his wife for divorce (annulment or declaration of nullity of marriage) on the grounds for adultery, and she states out in court that she has had affairs, her statement is an admission. Any admission made by a party is admissible evidence in a court proceeding, even though it is technically considered hearsay (which is normally inadmissible).

when

testifies

zrdpoison Cross-reference The so-called Miranda rights: You have the right to remain silent. Anything you say can and will be used against you in a court of law. -

implied

can JAS be ?? ? Take note: that Admissions can be: 1. Express- those made in a definite and unequivocal language.

EXAMPLES 1)

The moment that you are investigated or arrested you should keep quiet because otherwise when you say something you might be saying something that can be used against you.

REQUISITES OF ADMISSIBILITY OF ADMISSION The admission: 1. must involve matters of fact and not of law

must be knowingly and voluntarily made

must be adverse to the admitter's interest

wala siya gi-trick. Wala siya gi-bitik sa pikas to make an admission

ADMISSIONS

Laches It is defined as the failure or neglect for an unreasonable and unexplained length of time, to do that which, by exercising due diligence, could or should have been done earlier. It is considered in equity to be an implied admission of lack of merit of one’s cause of action.

Flight and Concealment Flight strongly indicates a guilty mind and betrays the existence of a guilty conscience. It is an implied admission of guilt. (People vs. Herrera, G.R. 140557-58, 2001)

Admission by Silence

Offer of Compromise Under Sec 28, an offer of compromise by the accused may be received in evidence as an implied admission of guilt.

Flight is considered as disserving act, since it is prejudicial to the interest of the accused. Flight is considered as circumstantial evidence of his guilt. FATETUR FACINUS IS QUI JUDICUM FUGIT “He who flees from prosecution confesses his guilt.”

EXTRAJUDICIAL

So, remember that Laches does not take place if you are still within the prescriptive period to file, for example a complaint for your cause of action. Depending on the source of obligation, if it’s a written contract, you have a prescriptive period there.

Meaning, there is no question as to what the declarant is admitting to.

Now, what is an example of one that is adverse to the admitter’s interest?

IMPLIED

When you talk about Laches (Civil Procedure before), ang Laches is not a ground for a Motion to Dismiss or atleast not a direct ground before. Rather, it is Prescription that is a ground for a Motion to Dismiss.

Ngano walay apil ang law? Why? Because that is not supposed to be covered by an admission. Its covered by judicial notice.

must be categorical and definite

The fact that you filed a case after a very long time after your cause of action accrues. Unsa mahitabo? Unsa usually ang objection ana sa pikas party? Laches.

September 2 Part 3 | Bahalla

Ex. “oo. Akoa ang nangutang. Ako ang nangawat.”

Implied- those which may be inferred from the act, conduct, declaration, omission, or silence of a party.

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

The repeated offer of one conspirator constitutes a strong indication and an implied admission of guilt of said conspirator and the two accused and appellants in this case. (U.S. vs. Torres, 34 Phil 994)

Can that be considered as an Implied extrajudicial Admission of guilt? According to the Supreme Court, yes. Asking for forgiveness is considered as an offer of compromise and therefore can be treated as an implied admission of guilt. No one would ask for forgiveness unless he had committed some wrong and a plea for forgiveness may be considered as analogous to an attempt to compromise. Ngano man ka mangayog

pasaylo kung wa kay gibuhat na mali. Diba?

For my clients, I am very guarded ana bitawng mangayo ug apology or public apology. I always tell my clients nga dili magbasta-basta anang apology because even if the prospective complainant is saying that he will not file a case provided you give a public apology, what if he changes his mind and we have nothing on paper saying that he will already waive any cause of action against you? We have to be careful. People vs. Español (2009), appellant’s act of pleading for his sister-in-law’s forgiveness may be considered as analogous to an attempt to compromise, which in turn can be received as an implied admission of guilt under Section 27, Rule 130 (old rule).

Offer of Marriage This can also be considered as admission of guilt. People vs. Oliquino (2007), an offer of marriage by the accused during the investigation of the rape case is also an admission of guilt. Ngano man taraw pakaslan nimo kung

wala nimo gi-rape? 7)

Influence An attempt to influence witnesses, whether the influence tended to bring forth false testimony or to suppress evidence, is an implied admission of the weakness of a party’s case.

Plea of Forgiveness People vs. Abadies (2002) This is a case of a father raping his own daughter. He was already convicted and gi-appeal niya. During his appeal, nagpadala syag sulat sa iyahang anak “I made this letter to ask for yoiuu ‘forgiveness’ xxx Alam mo bang sobra-sobra na ang pagsisisi ko sa ginawa kong iyon. Parang awa mo na, Ne. Hirap na hirap na ako at ang lahat ay buong puso ko nang pinagsisihan. Patawarin mo na ako anak…”

Ngano mag-supress man ka ug evidence og ngano influence man kas witnesses if naa kay strong na defense or a strong cause of action?

This is considered as an extrajudicial admission of guilt by direct provision of the Rules of Court. 5)

FIRST EXAM

Withdrawal of Appeal and acceptance of lowered penalty

(People vs. Arsenio, G.R. No. L-57025, 1990)

Sudden Affluence A change for the better in the financial condition of a person accused of a crime involving money, immediately or shortly after the date of the crime, may be shown upon the theory that sudden and unexplained possession of funds has a tendency to connect said person to the said crime.

Murag naa siyay implied extrajudicial admission na ikaw ang nangawat kay ngano kalit lang man ka ni-dato?

Now, let’s go to Section 28. This is one of the provisions relating to compromises that had quite a facelift under the amended rules.

Section 28. Offer of compromise not admissible. – In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. Neither is evidence of conduct nor statements made in compromise negotiations admissible, except evidence otherwise discoverable or offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. A plea of guilty later withdrawn or an unaccepted offer of a plea of guilty to a lesser offense is not admissible in evidence against the accused who made the plea or offer. Neither is any statement made in the course of plea bargaining with the prosecution, which does not result in a plea of guilty or which results in a plea of guilty later withdrawn, admissible. An offer to pay, or the payment of medical, hospital or other expenses occasioned by an injury, is not admissible in evidence as proof of civil or criminal liability for the injury. (27a) “In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror.” Q: Why do you think na in civil cases nga if makigsettle ka or mag-offer kag settlement, it will not be taken against you? And it is not considered as an admission of any liability?

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EVIDENCE A: Because it’s civil case.

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

FIRST EXAM

September 2 Part 4 | Du Like in labor cases, ang gusto lang sa complainant kay magfile siya ug constructive or illegal dismissal for example, pagkahuman ang money claim niya kay let’s say 10,000 lang. Naay mga muduol nako na muingon attorney di nako gusto na makakuha na siya maski piso. Ok so for a labor case minimum kog 50,000. So asa daw mas maayo? For example, kung kintahay civil case ba na siya or administrative labor case, asa man ka mas makatipid? Mubayad kag abogado or makigsettle nalang ka? Malay nimo mudawat lang diay na siya 5,000. I always tell my clients na let’s exhaust every possibility na masettle lang mo sa imong kalaban. Why? Because hassle ang litigation. For a civil case to be finished right now, an ordinary RTC case for example for breach of contract, it takes anywhere up to 7 to 10 years. 7 years paspas na na. Just imagine. So? Sige musettle nalang ko. Muoffer nalang kog settlement. The law recognizes that. Naa nay mga tao na dili na gusto mahassle sa litigation. And that cannot be considered as an admission for any liability. But take note that the rule is different for criminal cases:

Section 28 (2). In criminal cases, except those involving quasioffenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. Baliktad ang presumption sa balaod karon sa criminal cases. General rule in criminal cases is that if you offer a compromise to the complainant, mura kag nag admit na gibuhat gyud nimo because otherwise, why would you offer compromise?

Section 28 (3). A plea of guilty later withdrawn or an unaccepted offer of a plea of guilty to a lesser offense is not admissible in evidence against the accused who made the plea or offer. Neither is any statement made in the course of plea bargaining with the prosecution, which does not result in a plea of guilty or which results in a plea of guilty later withdrawn, admissible. An offer to pay, or the payment of medical, hospital or other expenses occasioned by an injury, is not admissible in evidence as proof of civil or criminal liability for the injury. (27a) Let’s go to these paragraphs one by one.

For civil cases, what I would like you to remember is the definition of compromise under the Civil Code: Article 2028. A compromise is a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced. (1809a) Article 2034. There may be a compromise upon the civil liability arising from an offense; but such compromise shall not extinguish the public action for the imposition of the legal penalty. (1813) Q: What happens diay na pag in a criminal case ang private complainant nakigsettle ang accused sa iyaha so nay compromise agreement. Why is it that the criminal case also and not only the civil aspect is extinguished? Ngano madismiss man apil ang criminal case? When article 2034 clearly states that it will not extinguish the public action for the imposition of the legal penalty? A: Actually, it is not because of the effect of settlement is that it extinguishes criminal liability but rather, by executing a settlement, if you are a self-respecting lawyer, you will always include in your compromise agreement a provisoion where the private complainant will no longer testify in any court of law against your client. So what is the effect kung dili na makatestify and private complainant? How will the prosecution proceed? What will be the evidence for the prosecution? And so the prosecution will be constrained to agree with the motion to dismiss. Wala naman siay evidence. Wala naman siyay witness. That is the reason why they become dismissed, kani na mga kaso. Article 2035. No compromise upon the following questions shall be valid: (1) The civil status of persons; (2) The validity of a marriage or a legal separation; (3) Any ground for legal separation; (4) Future support; (5) The jurisdiction of courts; (6) Future legitime. (1814a)

IN WHAT QUESTIONS SHALL THERE BE NO COMPROMISE? (1) The civil status of persons I cannot execute a compromise agreement with my wife saying we are now both single. You can’t do that. (2) The validity of a marriage or a legal separation Meaning, bawal ang collusion. (3) Any ground for legal separation (4) Future support

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

Remember that ang support is always mutable. Kana bitaw support pendente lite and a main action for support Diba that will always change, walay fixed amount na support. You can always have the adjusted because it will always depend upon the needs of the recipient and the capacity of the giver of support. It can always be changed. (5) The jurisdiction of courts But it can be subject to waiver. Can you recall there the case in civil procedure where there is waiver or estoppel of the jurisdiction of the court? The case of Tijam vs. Sibonghanoy. Filed before the MTC when in fact RTC diay siya. It has been pending for years then for the first time before the SC you say that the court did not have jurisdiction after so many years. SC says you are estopped from questioning the jurisdiction of courts.

100

magkasinabot tungod lang sa 1,000. Naay mga ana. Kanang mga ginaingon nga prinsipyo gyud akong ginapaglaban ana attorney. Wala gud sila nagkadayon ug settle, whether sa barangay or sa mediation or sa JDR. Wala gyud. So the rule now says that any conduct or statements made during those negotiations should not be admissible but there are exceptions to this. GENERAL RULE: Evidence of conduct or statements made in compromise negotiations are not admissible.

And deservedly so. Dili dapat because we are not talking of the merits of the case there. EXCEPTIONS: Such conduct or statements are admissible if they are:

(6) Future legitime Why? Against public policy. Wala pa nakipagcompromise naka sa imong mana.

FIRST EXAM

gani

namatay

Meaning, what if the party who made such a conduct or statement also said it elsewhere to another person? In which case it becomes an extrajudicial admission. Don’t tell me because it was also discussed during compromise negotiations it becomes inadmissible already? That is wrong. So, if it otherwise admissible, it would be admissible.

POINTS TO REMEMBER (SECTION 28 ON CIVIL CASES): In civil cases, an offer of compromise is: 1. Not an admission of any liability; 2. Not admissible in evidence against the offeror. Nothing much there. Codal na siya. But here is where it gets kinda tricky:

Section 28 (3). Neither is evidence of conduct nor statements made in compromise negotiations admissible except evidence otherwise discoverable or offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. So it is quite natural that in a case, the law would always suppose that the parties should first exert earnest efforts at compromise. That is the purpose of the Katarungang Pambaranagay Law, barangay conciliation. Then pagabot karon sa court, if it is subject to court annex mediation, dalhon mo sa Philippine Mediation Center. There is a mediator there who will try to bring the parties together, especially kapag ordinary civil cases lang siya. Sige try nato ug compriomise and then wala gihapon sila nag come up ug compromise. So there are statement made during that mediation. What follows that? Naa pa gyud JDR or Judicial Dispute Resolution. Where the officer will attempt to bring the parties to a settlement. A judge, naay mag JDR. So naay mga maingon ngadto na sige magoffer ko ani 50,000 para lang mahilom ka. Muingon pud siya dili ko mudawat ana kay ang gusto nako kay 51,000. Unya di gyud sila

Otherwise discoverable

Offered for another purpose, such as: a. Proving bias or prejudice of a witness; b. Negativing a contention of undue delay; or c. Proving an effort to obstruct a criminal investigation or prosecution. Timanan lang nato na. Unsa ning mga purposes na ni.

POINTS TO REMEMBER (SECTION 28 ON CRIMINAL CASES): GENERAL RULE: An offer of compromise by the accused may be received in evidence as an implied admission of guilt except: 1.

In cases involving quasi-offenses (criminal negligence) Under Article 365 of the RPC such as reckless imprudence, criminal negligence, etc.

2. 3.

Those allowed by law to be compromised; Godoy doctrine (People vs. Godoy). September 2 Part 5 | Escritor The so-called, Godoy Doctrine. What are examples of cases allowed by law to be compromised? 1.

Tax liability. Pwede gyud na i-compromise.

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

FIRST EXAM

101

Under the Philippine Cooperative Code, all unpaid assessments, pwede pud na sya i-settle.

ni Sir about him being deputized by the court to assist an accused during arraignment)

Now, what is this People v. Godoy? Diba the general rule is, mag-offer kag compromise in a criminal case, that is considered as an admission of liability? But in People v. Godoy, the SC recognized that in a long line of cases of public crimes, the accused is permitted to show that the offer was not made under a consciousness of guilt, but merely to avoid the inconvenience of imprisonment, or for some other reason, would justify a claim by the accused that the offer was not in truth, an admission of his guilt or an attempt to avoid the legal consequences which would ordinarily ensue therefrom.

Let’s go to a PAO-assisted accused. I’m not saying this is still true. But when I was starting out as a lawyer, ang PAO, mura bitaw’g, “Unsa man ni? Mao ning Infromation? Pagplead guilty na lang para wala nay samok.” Ing-ana ba. “Pag plead guilty na lang. Wala tay laban ana.” Ing-ana ba. Ing-ana na mga PAO lawyers ba. And I have encountered a lot. And I have also encountered clients, after being advised by the PAO to plead guilty, now wants to change their mind because the PAO lawyer did not actually explain the consequences of pleading guilty. So ang family members karon, muduol sa akoa, “Attorney, kinahanglan nato i-withdraw ang plea of guilty aning amaong paryente kay nagpataka lang gyud ang PAO ani.” So, will that plea of guilty that was alter withdrawn, should that be taken against the accused? Of course no. kay basig wala sya kasabot ngano sya nag plea ug guilty.

Unsa gani ang rule? GR: When you offer a compromise in a criminal case, that is an implied admission of guilt. XCPN: The doctrine in Godoy which says that you are allowed to rebut that implied admission of guilt by showing na naay laing motivation for you to offer compromise.

Pwede man gud nimo ingon na, “Inosente man ko. Dili lang pud ko mu-risk na basig makulong ko.” You can say that, eh. Anything can happen. You can justify your offer of compromise other than the fact na you recognize that you are guilty of the offense as charged. Mao na sya ang Godoy. So the effect is, admissible ang imohang offer of compromise in the criminal case as an implied admission of guilt, but you are allowed to rebut it. That is People v. Godoy. 1995 case. Karaan na, pero it’s still good law. Section 28 (3). A plea of guilty later withdrawn or an unaccepted offer of a plea of guilty to a lesser offense is not admissible in evidence against the accused who made the plea or offer.

GUILTY PLEAS AND PLEA BARGAINING You’ve learned this in Criminal Procedure na naa tay plea bargaining. For example, plea of guilty.

Or, an unaccepted offer of plea of guilty to a lesser offense. So for example, ang crime na gi-file against you is murder. You can plead guilty to a lesser offense of homicide, diba? You can imagine how it happens, diba? How you can plead guilty to a lesser offense para mas ubos ang imohang penalty. I usually do that kung kintahay probationable. I always advise that. Kung pwede gani magprobation unya wala man pud ginadeny sa akong kliyente na guilty sya sa crime, why won’t we try to plead guilty to a lesser offense, anyway pwede man gihapon ka magprobation? So, i-discuss namo na sya.

Q: But what if wala sya gidawat sa fiscal kay di pud gyud ganahan ang fiscal. Should that be taken as evidence of the accused’s guilt? A: The answer of course is no. Diba unfair? Because you are allowed to explore those possibilities during plea bargaining.

Now, ang innovation sa law is in the second part here.

Nether

Sugod ta sa plea of guilty. When do you do that? During arraignment. Basahan ka sa information and then you answer whether you are guilty or not guilty of the offense.

Section 28 (3). A Any statement made in the course of plea

What you do not know is that in practice, daghan kaayong mga akusado na walay private lawyers. So what will the court do? Kung magqualify sya for assistance by the PAO, then i-refer sya sa PAO lawyer. Or the court may deputize a lawyer who is present in the courtroom to assist the accused; but only for the purposes of arraignment. (Story

Nothing much there, noh? Napalpak lang ang plea of guilty. Or, napalpak lang ang plea of guilty to a lesser offense during plea bargaining. It did not turn out the way your client wanted it.

bargaining with the prosecution, which does not result in a plea of guilty, or which results in a plea of guilty withdrawn, is admissible.

Q: Should that be taken against your client? A: The answer again is no. So, the addition of this provision with respect to criminal cases, stands to reason. Anything you say during

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plea bargaining or negotiations, dili na sya dapat i-take against the accused. The last paragraph is the GOOD SAMARITAN RULE which applies both in civil and criminal cases.

Section 28 (3). An offer to pay, or the payment of medical, hospital,

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Section 29. Admission by third party. – The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. Latin Maxim RES INTER ALIOS ACTA ALTERI NOCERE NON DEBET

or other expenses occasioned by an injury, is not admissible in evidence as proof of civil or criminal liability for the injury.

In English: Things done between strangers ought not to injure another.

Because you’re just being a good Samaritan. Atoang hinumdumon kaning ABS-CBN. Ang ABS-CBN before, if you recall, it had this show called Wowowee. And then during the first Anniversary of Wowowee, they went to Ultra in Pasig where there’s a promise of winning a lot of money just by being there because you can be called anytime. Pwede ka mahimong contestant.

So, we go back to the basic premise of our discussion: extrajudicial admissions. So, anything you say can be used against you. Anything you say out of court, somebody else can testify and tell the court what you told him if that prejudices you. Because again, self-serving admissions should not be admitted in court.

What happened? Tungod sa kadaghan sa tao na nangadto, nagka stampede. Daghang tao na namatay. So what did ABS-CBN do? Ningtuyok na sya sa Manila. Tanang mga punerarya, tanang mga hospital na naay mga biktima ngadto sa stampede, and then offered payment of medical, hospital or other expenses, including funeral expenses. Kay kuwan man, “occasioned” by an injury. Q: Will that be taken against ABS-CBN? A: The answer is, no. It shall not be taken against them. In fact, we will learn later on in Torts and Damages that that will actually serve to mitigate the damages to be awarded – if you made an effort to lessen the injury or damage. So that’s the Good Samaritan Rule. Being a good Samaritan should not be taken against you.

People v. Yparraguire An offer to compromise does not require that the criminal complaint be first filed before the offer can be received as evidence against the offeror. Kana bitawng, tagaan taka’g kwarta pero ayaw na ko file-ig kaso. Murag ing-ana ba. So, dili sya required na naa nay criminal complaint nan a-file. Pwede na kanag bitawng, naga anticipate lang ang possible accused na ma-filean syag kaso. Let’s go to Rule 130. We’re in that part already where we’re going to talk about the Res Inter Alios Acta Rule and its exceptions. September 2 Part 5 | Estrosas

RULES OF ADMISSIBILITY RULE 130

The Res Inter Alios Acta Rule and its Exceptions

What about if you say something out of court that actually prejudices another person? Like muingon ka, si B naa’y utang kay C. You’re saying si B naa’y liability kay C. Can you be taken as a witness against B? There are two parts to the rule. TWO PARTS TO THE RULE FIRST PART. The rights of a party cannot be prejudiced by an act, declaration, or omission of another. This means that statements made or matters accomplished between two parties cannot prejudice a third party. (Blanza v. Arcangel, 21 SCRA 4) SECOND PART. Under Section 34, 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 a similar thing at another time; but it may be received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like. FIRST PART The rights of a party cannot be prejudiced by an act, declaration, or omission of another. REASON FOR THE RULE: Simple. Bawal ang pandamay. A person’s admission is binding upon himself but his admission cannot bind another. Otherwise, it would be unfair and inequitable. Example Remember the case of Malabanan? It’s about the 10-year and 30year acquisitive prescription. In this example, we will take the 30year acquisitive prescription. A filed a case against B and C for ejectment. B and C are 30-year occupants of the land which was previously unregistered under the Torrens system. Suddenly, in 2015, A came to the land and showed B and C his Certificate of Title and demanded that they vacate the property.

RES INTER ALIOS ACTA RULE part of a longer Latin Maxim ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

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So, matingala nalang ka nga ‘uy giunsa nimo pagkakuha ug Certificate of Title nga dili man ka in open, continuous, exclusive, notorious, possession, and occupation kay kami man ang naa’y occupation sa land’. In 2016, during trial, B settled with A and executed a quitclaim stating that B has no right whatsoever over the land. Can A claim that, since B and C are similarly situated and with similar defenses, B’s quitclaim should apply also to C? o NO. The rights of C cannot be prejudiced by the act or declaration of B. Suppose B, in his quitclaim, also stated categorically that C’s defenses are false and that B and C did not really possess the land for 30 years. Can that bind C? o NO, because of the res inter alios acta rule. The rights of C cannot be prejudiced by the act or declaration of B. However, take note that A can call B as a witness and ask him to testify. His testimony is admissible, subject to cross-examination by C.

Diba ingon nako sa inyuha, beginning from Section 27, the rest of the rules will not actually apply if you are talking about testimony made in open court and there is cross-examination. BUENAFLOR CAR SERVICES vs. DAVID G.R. No. 222730, November 07, 2016 David was a Service Manager of “Pronto! Auto Services.” In such capacity, he was in charge of the overall day-to-day operations of the shop, including the authority to sign checks, check vouchers, and purchase orders.

Company Policy on Purchases and Issuance of Checks

The Purchasing Officer prepares the purchase order which is then submitted to David for his review and approval. Once approved, the duplicate copy of the purchase order is given to the supplier who would deliver the goods/supplies. It is only after the delivery of the goods/supplies that the Finance Officer prepares a request for payment. After the approval of the request for payment, the check voucher and corresponding check will be prepared by Maja (accounting assistant) to be signed by corporate officers, which included David. All checks should be issued in the name of the specific supplier and not paid to “cash” and should be picked up at Maja’s office. The problem is, nagka-break ug protocol including that which states nga ang check tanan dapat issued in the name of the specific supplier.

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September 2 Part 6 | Fernandez Chinabank reported to the company that it cleared several checks made payable to several suppliers “OR CASH”. This prompted the company to investigate. What is the effect if the check is paid to cash? Anybody in possession of the check paid to cash can easily encashed it. Human Resource Manager Liela Nee confronted Maja on the questioned checks. Maja readily confessed that upon David’s instruction, she inserted the words “OR CASH” after the name of the payees when the same had been signed by all the authorized signatories. She also implicated the Purchase Officer, who was under David’s direct supervision, for preparing spurious purchase orders that were used as basis in issuing the subject checks, as well as Sarah, who was directed to encash some of the checks, with both persons also gaining from the scheme. Her confession was put into writing in to (2) separate letters. So, who is the whistleblower? It’s Maja that there is modus operandi between David and another employee who would encash the check. David and his alleged cohorts were preventively suspended and eventually dismissed from employment. They filed a complaint for illegal dismissal before the Labor Arbiter who ruled that they were illegally dismissed. The LA observed that the employer failed to establish the existence of conspiracy among the employees in altering the checks and that Maja’s extrajudicial confession was informally made and not supported by evidence. On appeal, the NLRC found Maja’s extrajudicial confession against David insufficient, holding that the records failed to show that the latter had a hand in the preparation and encashment of the checks; hence, his dismissal was without cause and therefore, illegal. The CA affirmed this and ruled that Maja’s extrajudicial confession not only bound her as the confessant but constitutes hearsay with respect to David under the res inter alios acta rule. The CA was saying that Maja can implicate herself, but by virtue of res inter alios acta rule, she cannot implicate anybody else. HELD: The NLRC should not have bound itself by the technical rules of procedure as it is allowed to be liberal in the application of its rules in deciding labor cases. The res inter alios acta rule does not apply in administrative cases. Why res inter alios acta rule does not apply? Because a labor case is not a judicial proceeding.

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Even if it is assumed that the rule on res inter alios acta were to apply, the treatment of the extrajudicial confession as hearsay is bound by the exception on independently relevant statements. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact. We’re talking here of hearsay. Why are we talking about hearsay which is a few provisions away pa? Hearsay rule forbids testimony not based on personal knowledge. That is not admissible if it is not based on your personal knowledge. And there is no opportunity for crossexamination because that is precisely what an extrajudicial admission is. It is something that somebody else said which will now be repeated by the witness in open court as the truth of what the other person said. Verily, Maja’s extrajudicial confession is independently relevant to prove the participation of David in the instant controversy considering his vital role in petitioner’s procurement process. The fact that such statement was made by Maja, who was the actual author of the alterations, should have been given consideration by the NLRC as it is directly, if not circumstantially, relevant to the issue at hand. Take note: Under the res inter alios acta rule, the rights of a party cannot be prejudiced by the act or declaration of another. But there are exceptions, the so-called vicarious admissions. Exceptions: Vicarious Admissions The rights of a party may be prejudiced by the act, declaration or omission of another when between the party making the admission and against whom it is offered there exists a relation of: a) Partnership; b) Agency; c) Joint interest; d) Conspiracy; or e) Privity. Section 30. Admission by co-partner or agent. – The act or declaration of a partner or agent authorized by the party to make a statement concerning the subject, or within the scope of his or her authority, and during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. Example A filed a case against B and C for ejectment. B and C who claim to be co-partners or co-owners and 30-year occupants of the land which was previously unregistered under the Torrens system. They

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claim that they contributed money and industry in the cultivation of the land for 30 years. Suddenly, in 2015, A came to the land and showed B and C his Certificate of Title and demanded that they vacate the property. In 2016, during trial, B settled with A and executed a quitclaim stating that B has no right whatsoever over the land.

Unsa gani tubag nato sa previous example? Pwede ba ma-bound si C sa quitclaim nga gibuhat ni B? We know as a general rule res inter alios acta alteri non nocet na dili pwde ma-prejudice si C sa act or declaration ni B. But there is an additional factual component I added here – there is co-partnership or co-ownership between them. Analysis Can A claim that B’s quitclaim can be admitted against C? This time, YES. They are co-owners or partners in the land. Thus, the rights of C can now be prejudiced by the declaration of B. The quitclaim is admissible against C. Why can the rights of C be now prejudiced? Rationale: The co-partner or agent, is in legal contemplation, a mere extension of the personality of the partner or principal and unless he acts in his own name, the partner or principal must comply with all the obligations which the co-partner or agent may have contracted within the scope of his authority. Hence, whatever is said by a co-partner or agent to a third person, during the course of the partnership or agency and within the scope of his actual or apparent authority, relative to the business contemplated by the partnership or agency, is for legal purposes also the statement of the co-partner or principal and is therefore, admissible against him. REQUISITES: 1. There is an act or declaration of a partner or agent that is prejudicial to the other co-partner or principal; 2. The act or declaration must have been made by a partner or agent authorized by the party to make a statement concerning the subject, or within the scope of his or her authority; 3. The act or declaration must have been made during the existence of the partnership or agency; 4. The existence of the partnership or agency must be shown by evidence other than such act or declaration. ‘Other than such act or declaration’ refers to something that is extrinsic to the act or declaration. In legal parlance, it is called evidence aliunde. Shown by evidence other than such act or declaration

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A secured a loan from C. A claimed that he is obtaining the loan in behalf of his partnership with B. If A defaults, can C use the declaration in order to hold B liable? NO. The rights of B cannot be prejudiced by the act or declaration of C. When and how can you bind the co-partner or agent? What should C do? He must establish by testimonial or documentary evidence the existence of the partnership independent of the act or declaration of A that he and B are partners. For instance, C can present documentary evidence such as an Articles of Co-Partnership or contracts jointly entered by A and B as partners. Testimony of a witness other than the declarant which establishes the partnership may be introduced. If he succeeds, he can now introduce into evidence the declaration of A. Remember: By the contract of partnership two or more persons bind themselves to contribute money, property or industry to a common fund, with the intention of dividing the profits among themselves (Article 1767, NCC). It is a preparatory contract. You do not enter into a contract of partnership for its own sake. You enter partnership for the purpose of entering into further juridical relations because the partnership has a purpose – to divide the profits among the partners. VILLANUEVA vs. BALAGUER G.R. No. 180197, June 23, 2009 FACTS: On March 31, 1992, petitioner Villanueva, then Assistant Manager for Operations of IBC-13 was dismissed from employment on the ground of loss of confidence for purportedly selling forged certificates of performance1, which are official reports certifying the airing of ads for the entities that placed the ads. These reflect the dates and times when the ads were broadcast as required by the COMELEC. Contesting his termination, petitioner filed a complaint for illegal dismissal before the NLRC. 1

Under the election code, there are limits to spending as to the amount of airtime and the amount you pay for airtime. You must not overspend or exceed the allocation. What if you exceeded? That’s an offense, and you might be disqualified because of it. September 2 Part 6 | Campaner Gi-forge daw niya ang certificate of performance. Gi-contest niya ang karon iyang termination before the NLRC. During the pendency of the labor case, news articles about irregularities in IBC-13 were published in several newspapers. In these news articles, respondent Balaguer, then President of IBC13, was quoted to have said that he uncovered various

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anomalies in IBC-13 during his tenure which led to the dismissal of an operations executive for selling forged certificates of performance. If you were Villanueva, diba derogatory na sa imuha? Unya dili pa baya established ang guilt nimo cause you’re still contesting your termination. On September 25, 1992, petitioner filed before the RTC of Quezon City a complaint for damages against Balaguer, which was later amended by impleading IBC-13 as additional defendant. Petitioner claimed that respondents caused the publication of the subject new articles which defamed him by falsely and maliciously referring to him as the IBC-13 operations executive who sold forged certificates of performance. IBC-13 also denied participation in the publication, claiming that the press statements were done solely by Balaguer without its authority or sanction. IBC-13 also filed a counterclaim against petitioner and a cross-claim against Balaguer. In its cross-claim against Balaguer, IBC stated that “The acts complained of by the plaintiff were done solely by co-defendant Balaguer. Balaguer resorted to these things in his attempt to stave off his impending removal from IBC. IBC claimed nga tung mga press statements wala man nila giauthorize, so they filed counterclaim against Villanueva and a cross claim against Balaguer. Diba ang cross claim is a claim which an original defending party might have against a fellow defending party. Giingon ni IBC na si Balaguer lang ang gahimo anang malicious or defamatory imputations nga na. Villanueva therefore points to this as an admission that can be taken against Balaguer inasmuch as this is an admission of IBC that its own agent, Balaguer, committed libelous acts. Ginaclaim karon ni Villanueva na exception na sya sa res inter alios acta rule. ISSUE: Whether or not the exception applies.

RULING: It does not apply, Rule 130, Section 29 (now section 30) does not apply. IBC-13’s cross-claim against Balaguer effectively created an adverse interest between them. Hence, the admission of one defendant is not admissible against his codefendant. Kani ang doctrine nga gusto nako timan-an ninyo. The filing of a cross claim between co-defendants ends a partnership or agency and it will no longer call for the application of the admission of copartner or agent. Taas ang facts, simple ra kayo ang ruling. This is because I wanted you to know unsay effect sa filing sa cross claim.

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Narra Nickel Mining vs. RedMont Mining GR No. 195580, April 21, 2014 FACTS: Narra Mining, Tesoro Mining and Mcarthur Mining filed Mineral Production Sharing Agreement (MPSA) applications before the DENR over an area in Palawan. Redmont also filed an application for the same area and opposed the other applications on the ground that the other applicants are disqualified as they are controlled by MBMI Resources, Inc. (MBMI), a 100% Canadian corporation. The DENR granted Redmont’s application and disqualified the others. On appeal, the CA justified upholding Redmont’s contention using the exception to the Res Inter Alios Acta Rule (Sections 29 and 31) on the ground that corporate documents of MBMI Resources, Inc. furnished its stockholders in their head office in Canada suggest that they are conducting operations through local counterparts. So its an admission by MBMI that actually kami ang tag-iya anang Narra ug Tesoro. So, dili sila Filipino corporations, they are just being made dummies of a Canadian Corporation. Petitioners question the CA’s use of the exception of the res inter alios acta or the “admission by co-partner or agent” rule and “admission by privies” under the Rules of Court in the instant case, by pointing out that statements made by MBMI should not be admitted in this case since it is not a party to the case and that it is not a “partner” of petitioners. Ngano nila ginaingon na dili partner? It’s because they are not natural persons, they are juridical persons. I don’t know about the new corporation code right now, but under the Civil Code, only natural persons can form partnerships, corporations cannot form partnerships. HELD: A partnership is defined as two or more persons who bind themselves to contribute money, property, or industry to a common fund with the intention of dividing profits among themselves. On the other hand, joint ventures have been deemed to be “akin” to partnerships. Accordingly, culled from the incidents and records of this case, it can be assumed that the relationships entered between and among petitioners and MBMI are no simple “joint venture agreements.” As a rule, corporations are prohibited from entering into partnership agreements; consequently, corporations enter into joint venture agreements with other corporations or partnerships for certain transactions in order to form “pseudo partnerships.” Obviously, as the intricate web of “ventures” entered into by and among petitioners and MBMI was executed to circumvent

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the legal prohibition against corporations entering into partnerships, then the relationship created should be deemed as “partnerships,” and the laws on partnership should be applied. Thus, a joint venture agreement between and among corporations may be seen as similar to partnerships since the elements of partnership are present. Since the SC held that the laws on partnership should apply, the exception to the res inter alios acta rule should also apply. Considering that the relationships found between petitioners and MBMI are considered to be partnerships, then the CA is justified in applying Sec 29, Rule 130 (now Sec 30) of the Rules by stating that “by entering into a joint venture, MBMI have a joint interest” with Narra, Tesoro and McArthur. DOCTRINES TO REMEMBER The fact that a cross-claim was filed against the putative copartner or agent makes Section 30 inapplicable (see

Villanueva v Balaguer, GR No. 180197, June 23, 2009)

Section 30 is applicable to joint ventures between corporations, foreign and domestic (see Narra vs. Redmont,

GR No. 195580, April 21, 2014) o

Because they are akin to partnerships and it will be inequitable not to apply the rules on partnerships to these joint ventures.

These are the two prominent cases here. September 3 Part 1 | Jamero ADMISSION BY CONSPPIRATOR Section 31. Admission by conspirator. — The act or declaration of a conspirator in furtherance of conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act of declaration. (30a) How does the concept of a conspiracy fit into the exceptions to the res inter alios acta rule (the rights of a party cannot be prejudice by the act declaration or omission of another)? Example: The Rape of JZE The month after JZE was kidnaped, rendered unconscious, and molested, Bangs was suspected as the culprit of the crime. When she was interviewed on TV, she admitted her participation in the crime and implicated Maja and Sarah as her fellow culprits in planning and executing the crime. Is her statement admissible? As to Bangs herself YES, admissible

As to Maja and Sarah As a general rule, NO [res inter alios acta rule]

ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

EVIDENCE The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. (Section

27)

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The rights of a party cannot be prejudiced by an act, declaration, or omission of another. (Section 29)

How do we now turn this type of hypothetical example into one that fits into the exception under Section 31? Requisites: 1. The act or declaration of a conspirator must be in furtherance of the conspiracy and made during its existence; 2. The declaration or act must relate to the conspiracy; and 3. The conspiracy must be shown by evidence other than the act or declaration (by evidence aliunde). To implicate Maja and Sarah: (apply the requisites) 1. Did the declaration here relate to the conspiracy? Yes. 2. Was the declaration made during the existence of the conspiracy? NO. The declaration of Bangs was made long after the conspiracy was over. Human na ug kidnap, rendered unconscious and molested si JZE. 3. Can the prosecutors prove the conspiracy other than the declaration of Bangs? MAYBE, but how? By evidence aliunde.

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It’s no longer an extrajudicial admission, it becomes a statement made in open court where the parties have the ability to ferret out the truth by the mechanisms of cross-examination. Q: Are extrajudicial admissions made by a conspirator after the conspiracy has terminated and even before the trial admissible against the co-conspirator? A: NO, except in the following cases: 1. If made in the presence of the co-conspirator who expressly or impliedly agreed therein; (He adopted the admission by his failure to rebut it, thus, becomes his own admission). 2. Where the facts in said admission are confirmed in the individual extrajudicial confessions made by the co- conspirator after their apprehension; They are confirmatory of each of the others own confessions. In that situation, the confessions are deemed to interlock with one another (interlocking confessions) 3. As a circumstance, to determine the credibility of the witness; or 4. As circumstantial evidence to show the probability of the coconspirators’ participation in the offense. (Regalado, Vol. II, p. 761, 2008 ed) INTERLOCKING CONFESSIONS

Why evidence aliunde? Conspiracy cannot be proved by direct evidence. Necessarily, it has to be proven by circumstantial evidence in the form of testimonies. Conspirators do not reduce their agreement into writing. So if prosecutors can present testimonies that tend to establish the existence of conspiracy by clear and convincing evidence, the declaration may be admissible.

They are extrajudicial confessions identical in their material respects.

DOCTRINES TO REMEMBER: o Incriminating declarations of a co-conspirator made in the absence or without the knowledge of the others after the conspiracy has come to an end is inadmissible. o The arrest of the declarant results in the termination of the conspiracy. Anything said by the declarant out-of-court after that would not anymore be made “during its existence.” o If the declarant takes the witness stand and repeats the extrajudicial admission about his co-conspirators in court, the same is admissible. Note: Rules beginning from Section 27 and then Section 29 (the res inter alios acta rule) and then at the rest of these provisions would only be applicable if it is made extrajudicially. The moment that you testify in court it already is taken out of the purview of the general rule and its applicable exceptions. o Where the statement of the co-conspirator is made as witness in court, there is no need for the conspiracy to be shown by independent evidence. (People vs. Serrano, April 27, 1959)

vs. Encipido, 146 SCRA 492)

Extrajudicial confessions independently made without collusion and are identical with each other in their material respects and confirmatory of the others are admissible as circumstantial evidence against co-accused implicated therein to show the probability of the latter’s actual participation in the commission of the crime. (People

ADMISSION BY PRIVIES Section 32. Admission by privies. — Where one derives title to property from another, the latter’s act, declaration, or omission, in relation to the property, is evidence against the former if done while the latter was holding the title. (31a) Requisites: 1. There must be privity between the party and the declarant; 2. The declarant as predecessor-in-interest made the declaration while holding the title to the property; and 3. The admission relates to the property. Who are Privies? Those who have mutual or successive relationship to the same rights of property or subject matter such as personal representatives, heirs, devisees, legatees, assigns, voluntary grantees, or judgment creditors or purchasers from them with notice to the facts.

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

AKA “Causahabientes” – successor, assignee, or heir. Take note there can be privity by contract, by representation or even privity by blood. Examples: 1. A lessor and his lessee, a grantor and a grantee, an assignor and an assignee (by contract) 2. An executor or an administrator and the estate of the deceased (by representation) 3. An heir and his ascendant (by blood) September 3 Part 2 | Macacua Example of Dean Riano X, father of Z, while the former was alive, openly told his acquaintances, that the land where his house stood had already been sold to Y. Will that be admissible against Z? Here, the declaration by X is not a admissible against Z, the sole heir of Y, because the statement was made after X held title to the land. DOCTRINES TO REMEMBER When the former owner of the property made the declaration after he ceased to be the owner of the property, the rule on admission by privies does not apply and what applies is the general rule that the rights of a party cannot be prejudiced by the act, declaration or omission of another. (Gevero vs IAC) “Privies” denotes the idea of succession, not only by right of heirship and testamentary legacy, but also that of succession by singular title, derived from acts inter vivos, and for special purposes; hence, an assignee of a credit, and one subrogated to it, etc., will be privies; in short, he, who by succession is placed in the position of one of those who contacted the juridical relation and executed the private document and appears to be substituting him in his personal rights and obligations, is a privy. (Alpuerto vs Pastor) JZE: Nothing much there. Just know the codal provision and the requisites in order for you to know how to apply. Second Part: Res Inter Alios Acta Rule Section 35. Similar acts as evidence. Evidence that one did or did not do a certain thing at one time is not admissible to prove that he or she did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like. (transcriber’s note: General rule, underlined. Exception, in bold)

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The rule prohibits the admission of the so-called “propensity evidence” which is evidence that tends to show that what a person has done at one time is probative of the contention that he has done a similar act another time. Example No. 1 In 2016, Gerald was accused of raping his maid. The case was settled. In 2017, a case for acts of lasciviousness was filed by another kasambahay against Gerald. This case was also settled. In 2018, Gerald was charged with raping his female cook. This case is still pending. In 2019, he is sued once again for rape by his labandera.

Can the prosecution present as proof his prior cases as evidence of his guilt for the 2019 charge? No. Inadmissible as evidence. Why inadmissble? ISSUE OF RELEVANCY. What a person did in the past is irrelevant to the issue of whether he did what he is charged at present. ISSUE OF PROPRIETY. Evidence of similar acts or occurrences compels the defendant to meet allegations that are not mentioned in the complaint, confuses him in his defense, raises a variety of relevant issues, and diverts the attention of the court from the issues immediately before it. (Cruz vs Court of Appeals) Read: Cruz vs CA (27 July 1998, GR No. 126713) People vs Pineda People vs Marcelino People vs Lozano Example No. 2 When Julia was in college, she had an affair with her married biology professor. Two years later, she had an affair with her self-defense instructor. A year later, she had another illicit relationship with her math tutor who was engaged to be married. When Julia was in law school, she also had a relationship with her married criminal law professor. These incidents were brought as evidence in a case for intentional infliction of emotional distress filed against her by Bea, the wife of her current flame, her driver Gerald.

Are these past incidents admissible as evidence against Julia? No. Inadmissible as evidence. Exceptions: Modus Operandi Evidence of similar acts may be received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like.

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

The offering party must allege and prove specific, repetitive conduct that might constitute evidence of habit; The examples offered in evidence to prove habit, or pattern of evidence must be numerous enough to base on inference of systematic conduct. In Example No 1, the prosecution can present the cases not as proof of guilt but as proof of a certain propensity, habit or scheme on the part of Gerald of sexually molesting his househelp. SUMMARY OF EXCEPTIONS Evidence of similar acts may be received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like. When there is a rational similarity or resemblance between the conditions giving rise to the fact offered and the circumstances surrounding the issue or fact to be proved. (Cruz vs CA) o Another example of Modus Operandi. There’s a series of robberies. The victims are in convenience stores. Robbers wear masks, as seen on CCTV. If that happens more than once, that becomes a pattern of behaviour. It becomes modus operandi. In actions based on fraud and deceit, because it sheds light on the state of mind or knowledge of a person; it provides insight into such person’s motive or intent; it uncovers a scheme, design or plan; or it reveals a mistake. ADMISSION BY SILENCE

Section 33. Admission by silence. An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him or her to do so, may be given in evidence against him or her. JZE: Section 33 is virtually unchanged, except before it is section 32. September 3 Part 3 | Maglinte REQUISITES 1. The party must have heard, or observed the act or declaration of the other person; 2. He must have had an opportunity to deny it; 3. He must have understood the statement;

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You have to prove that he understood the statement, unlike in the case of Estrada v. Desierto. We don't know if he really understood the statement (we go to that later on).

REQUISITES OF HABIT The following guidelines must be observed by the court in admitting similar acts as evidence of habit: 1.

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4. 5. 6.

He must have an interest object, such that he would naturally have done so, if the statement was not true; The facts were within his knowledge; and The fact admitted, or the inference to be thrown from his silence is material to the issue (see People v. Paragsa, GR No. L44060, July 20 1978).

DOCTRINES TO REMEMBER The rule does not apply when a person is under an official investigation. A person under official investigation, or even under a custodial investigation for the commission of an offense has the right to remain silent and to be informed that right (Sec. 12, Art. III, 1987 Constitution; Riano, Evidence: A

Restatement for the Bar, p. 126, 2009 ed.) Silence is by reason of this or upon the advice of counsel, then the doctrine, does not apply. The silence of an accused under custody, or his failure to deny statements by another implicating him in a crime, cannot be considered as a tacit confession of his participation in the commission of the crime (People v. Alegre, 1979) Where no good reason exists for the party to comment on the act or declaration, as when the act or declaration was not specifically directed to the party who remained silent, the rule does not apply. Meaning, dili siya pikon. So why the need to deny it, when in fact, it doesn't really mention me. It cannot be taken against me if I remain silent. The rule also does not apply when the party had no opportunity to comment on the act of declaration (People v. Ranario, 49 Phil. 220). Meaning I did not commit yet because it's not the proper time or forum to comment. During the congressional hearings or senate investigation of Philhealth, those who testified are those who have no direct knowledge. Also, Duterte did not comment on Maria Ressa’s comments on SPMC because it was not the proper time and forum. When the act or declaration was made in the course of an official investigation (People v. Tia Fong, 98 Phil. 609) or when his silence is upon the advice of counsel, the rule does not apply. Just remember this miscellany of doctrines in relation to admission by silence.

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EVIDENCE

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DOCTRINE OF ADOPTIVE ADMISSION It's states that a party may, by his words or conduct, voluntarily adopt or ratify another’s statement, where it appears that a party clearly and unambiguously assented to or adopted the statements of another, evidence of those statements is admissible against him. Adoptive admission is a party’s reaction to statement or action by another person when it is reasonable to treat the party's reaction as an admission of something stated or implied by the other person. EFFECT: A third person’s statement becomes the admission of the party embracing or espousing it.

objected. It's not the original that is being presented but SC said, but he does not bona fide need to present it, despite Erap’s objection.

It becomes the the adoptive admission of the other party's declarations. It may not be clear right now, but take note that:

The Supreme Court had to rule this way because otherwise there would be a constitutional crisis. We would have two presidents, you will have to rescind the oath taking as president of then Vice President Gloria Arroyo but the Supreme Court had to react, setting aside procedural rules and technical objections, with respect to the evidence. The Supreme Court had to adapt to the exigency of the moment.

ADOPTIVE ADMISSION MAY OCCUR WHEN A PARTY: a. Expressly agrees to or concurs in an oral statement made by another; b. Hears the statement and later on, essentially repeats it; c. Utters an acceptance or builds upon the assertion of another; d. Replies by way of a rebuttal to some specific points raised by another but ignores further points which he or she has heard the other make; or e. Reads and signs a written statement made by another (Republic v. Kendrick Development Corp., G.R. No. 149575, Aug. 8, 2006). But if there's a case that we need to remember, in relation to an adoptive admission, it is: Estrada vs. Desierto Our good example of adoptive admission is the alleged admission made by President Estrada. His options had dwindled when, according to the Angara Diary, the Armed Forces withdrew support from him as President and Commander-in-Chief. Thus, Angara had allegedly ask Senate President Pimentel to advise Estrada to consider the option of “dignified exit or resignation.” Estrada did not object to the suggested option but simply said he could never leave the country. SC: His silence on this and other related such as suggestion can be taken as adoptive admissions by him. An adoptive admission is a party's reaction to a statement or action by another person when it is reasonable to treat the party’s reaction as an admission of something stated or implied by the other person. We discussed this for the first time when we were talking about the original document rule or the best evidence rule. The evidence was the Angara diary which was in the newspaper account, which Estrada

So when you talk about admission by silence or maybe even the doctrine of adoptive admission that the party, who is the seem to have adopted the ambition, or have made an admission by silence, should be one who understood it. I wonder if Estrada really understood the option of dignified exit or resignation. He only replied, “I will not leave the country”, not responsive to the question. How could that be an adoptive admission when he is talking about an entirely different thing. Read the case.

September 3 Part 4 | Ugdang CONFESSIONS

Sec. 34. Confession – the declaration of an accused acknowledging his or her guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence him or her.

wpatj.FM

Again, recognition of the SC that a woman can be an accused, that it why it is him or her. One thing you have to remember under confession is that it is actually unique in a sense that you cannot apply the term confession in a civil or administrative case. You can only apply it in a criminal case. WHAT IS A CONFESSION? It is a categorical acknowledgement of guilt made by an accused of the offense charged or of any offense necessarily included therein, without any exculpatory statement or explanation. Thus, even if he admits the offense but alleges a justification therefor, the same is merely an admission. When we say “necessarily included therein” it means that when you confess to murder, it includes a confession to homicide, to a lesser offense of similar nature.

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EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

So, even if a party admits an offense but alleges a justification therefor. The same is merely an admission. Ug sa civil procedure pa, that, is an affirmative defense. A defense of confession and avoidance. Oo, tinuod nga naa koy utang pero dili ko dapat pabayron, ngano? Prescribed naman ang utang. It is the same here. But, when we talk about criminal cases, when the accused made a confession, it should be WITHOUT any qualification. When you confess “I killed him” you confess, period. I confess, but I did it in self defense, that is NOT a confession, it is merely an admission. CLASSIFICATIONS OF CONFESSION 1. Judicial confession 2. Extrajudicial confession JUDICIAL CONFESSION It is made by the accused before a court in which the case is pending and in the course of legal proceedings therein and, by itself, can sustain a conviction. That is enough, no need for further evidence, that confession by itself is already enough to convict. EXTRAJUDICIAL CONFESSION Is one made in any other place (not in the same case ha, it may be made in court, but not in the same case for which you were prosecuted) or occasion and take note, cannot sustain a conviction, unless corroborated by evidence of corpus delicti. REQUISITES FOR CONFESSION TO BE ADMISSIBLE 1. It must involve an express and categorical acknowledgement of guilt; 2. Facts admitted must be constitutive of a criminal offense; (not merely a tort or a civil wrong, it must be a criminal offense) 3. It must have been voluntary; 4. It must have been intelligently made, the accused realizing the importance or legal significance of his act; and 5. There must have been no violation of Sec. 12 (miranda rights), Article III of the 1987 Constitution. So, if all of those requisites are present, confession may be admissible of evidence against the accused. Now, take note that confession is evidence of a high order. CONFESSION IS EVIDENCE OF A HIGH ORDER Because there is no evidence of a higher quality than confession. It represents the outwards manifestations of a man. Unless, therefore,

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the confession is nullified by evidence of duress, the same is admissible as an evidence of guilt of a high quality. (People v. Garcia) Mo-tuo man gyud ta dapat anang conscience. It is part and parcel of who you are. Ana pud na sya sa criminal case. It is evidence of the highest order, why? it is the outward manifestation of a man. He is compelled by his conscience to the commission of an offense. If a confession be true and voluntary, the deliberate act of the accused with a full comprehension of its significance, there is not impediment to its admission as evidence and it then becomes evidence of a high order, since it is supported by the presumption (a strong one), a very strong one, that no person of normal mind will deliberately and knowingly confess himself to be the perpetrator of a crime, especially if it be a serious crime, unless prompted by truth and conscience (People v. Zea) So, that is the explanation why confession should be admissible and why it is sufficient to convict. Q. May the extra-judicial confession of an accused be admitted in evidence against his co-accused? As a general rule, NO. because it is a violation of the res inter alios acta rule. An extrajudicial confession is not admissible against the confessor’s co-accused. Said confession is hearsay evidence and violative of the res inter alios acta rule. But, there are exceptions which we have to be familiar with. No need to memorize, all we have to do is to be familiar with them. EXCEPTIONS 1. In case of implied acquiescence of the co-accused to the extrajudicial confession; 2. In case of including confessions; 3. Where the accused admitted the facts stated by the confessant after being apprised of such confession; 4. If they are charged as co-conspirators of the crime which was confessed by one of the accused and said confession is used only as corroborating evidence; 5. Where the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator; 6. Where the confessant testified for his co-defendant and; 7. Where the co-conspirator’s extrajudicial confession is corroborated by other evidence of record. So, just be familiar, no need to memorize. Di man ko tipo nga teacher nga magpa enumerate. I am the type of teacher that would ask something that would require analysis. Kanang wala nako gi lista sa imoha.

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For example, in what specific rules where the law or the rule itself requires evidence aliunde? Mao na tong under other such act or declaration. There are instances where you can present evidence aliunde other than the document itself. DISTINGUISH ADMISSION AND CONFESSION

Definition

Form

ADMISSION

CONFESSION

Statement of fact which does not involve an acknowledgement of guilt or liability

Declaration acknowledging one’s guilt of the offense charged

Express or implied

Must be express

Made by

Party or 3 person

Type of case

Any case

The party himself (accused) Criminal case

BAR QUESTION 2014 Rene, bothered by his conscience, surrendered to the authorities with his counsel. As his surrender was broadcasted all over the media, Rene opted to release his statement to the press which goes: “I believe that I am entitled to the presumption of innocence until my guilt is proven beyond reasonable doubt. Although, I admit that I performed acts that may take one’s own life away. I hope and pray that justice will be served the right way. God bless us all” Love, Rene September 3 Part 5 | Rojo

Is this a confession? You can go by the requisites Q: Is it unexpressed acknowledgement or admission of guilt? Or does it offer a justification or a qualification? Is this admission constitutive of a criminal offense? Unsa man ng “I performed acts that may take one’s life away?” Is that murder? Homicide? Parricide? Infanticide? Is that homicide with reckless imprudence?

We do not know. So, is it a confession? A: Of course, NO, it is not a confession. Rene’s statement is not a confession but an admission. A confession is one wherein a person acknowledges his guilt of a crime, which Rene did not do. He did not acknowledge the guilt of his crime, not to mention the fact that he offered an explanation or a qualification – “I hope and I

pray that justice will be served the right way…”

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Rule re: Extrajudicial Confessions Rule 133, Section 3. An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. Corpus Delicti Unsa man ng corpus? Diba naan a siyay partner? Corpus Anima.

Anima: soul. Corpus/Corpura: body If literally translated, corpus delicti means body of the crime, body of the wrong.

Corpus delicti (body of the crime) means the actual commission of the crime charged (People v. Madrid, 88 Phil 1), or the specific fact of loss or injury (People v. Garcia, 99 Phil. 381). If you would take corpus delicti literally, it would mean the actual body of the deceased person in a crime of homicide or murder. Dili man na mao ang gna mean sa balaod. Examples of Corpus Delicti In murder or homicide, the corpus delicti is the fact of death (People v. Garcia, 99 Phil. 38), which may be proved even circumstantially. Q: How can the fact of death be proved? A: Pwede na ang death certificate. You do not need to bring the cadaver inside the court room, it can even be proved circumstantially. In robbery or theft, the fact of loss (People v. Nicm, 75 Phil. 668). In arson, the fact of burning (People v. Marquez, 77 Phil 83). So, it is the actual commission of an offense, that’s corpus delicti. Question: Rule 133, Section 3 in effect requires that, for a conviction to be made based on an extrajudicial confession, there must be evidence of corpus delicti. Thus, the law absolutely requires more that one type of evidence to convict (EJ confession + corpus delicti). Unlike when you talk about a judicial confession, it is sufficient in itself to convict. So singularity of evidence would be acceptable. Katong confession lang, that would be enough. But, when you talk about extrajudicial confession the law requires plurality of evidence. Meaning, naa kay I’dungag dapat – so, EJ confession + corpus delict = conviction. What are other instances where the law absolutely mandates the presentation of more than one type or piece of evidence in order to prove a matter of fact? Q: When does the law require plurality of evidence?

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A: Not required in the following: Conviction for rape can be made even from the sole testimony of the victim. Not required na daghan ang witness. Because usually, it is just the rapist and the victim. Conviction for murder can be made even from just the testimony of one eyewitness. Plurality Required: A conviction based on circumstantial evidence requires that there be more than one circumstance (Rule 133, Section 4). EJ confession + corpus delict = conviction (Rule 133, Section 3). In the crime of treason under Article 114 of the Revised Penal Code, no person shall be convicted unless on the testimony of two witnesses at least to the same overt act or on confession of the accused in open court. There is a plurality required here, there must be at least 2 witnesses. A person executing a notarial will should sign on every page and must be witnesses by at least three (3) persons who should also sign the will (Article 805, Civil Code of the Philippines). And there are many more under the law. Mao ni akong gusto na enumeration.

Section 36. Unaccepted Offer. An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money, instrument, or property. It looks quite disembodied if you would ask me, when we are talking about admissions man. Naa man pud gud tay provisions in relation to offer of compromise. Kani, offer in writing to pay a particular sum of money, that’s the reason why nganong naa siya dira. Nothing much there, it is more applicable when we talk about obligations and contracts. Just read my commentaries as to Section 36 in my book.

*Note: Below are no longer part of the discussion, but sir talked about how the amended rules affected the previous rules. With that we are already done with admissions, beginning from section 27 to 36. However, medyo diri naputol ang continuity sa akong book. Because from Section 36, we need to go back to Section 22 of the Amended Rules. Take note that there is Section 22 under qualification of witnesses. A witness must testify based on his personal knowledge or those derived from his own perception, Section 22. Then, mu diretso ta sa Section 37. Then, after Section 37, you have there the exceptions to the hearsay rule. There are too many exceptions, in fact in addition to Section 22, which is the main provision on hearsay which is previously Section 36 – ang Section 37 there is another provision in relation to hearsay.

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Then, later on you have to go back to one of the Rules that we skipped. if you have my book, nothing is skipped. Go to page 339, Survivorship disqualification Rule or the Deadman’s Statute which follows immediately after marital disqualification rule. I want you to read the comments that I made under that rule because that rule has been transposed. It is no longer in rule on disqualification of the witness, now it has been transposed into an exception to the hearsay rule, kaning survivorship disqualification rule so dungag ni siya. That’s from page 339 to 351 in my book. Then, diretso na balik sa page 431 which is hearsay, which is mao na ang daan na Section 36. You need to know what the rule used to be in order for you to know what the rule is now.

September 9 Part 1 | Acevedo

HEARSAY AND EXCEPTIONS

SECTION 22. Testimony Confined to Personal Knowledge. — A witness can testify only to those facts which he or she knows of his or her personal knowledge; that is, which are derived from his or her own perception. (36a) This was formerly Sec. 36. What does this tell us? When you are a witness in court, in any litigation and you are sworn to an oath in a case whether for the prosecution or the defense, plaintiff or defendant, you can only testify on the matters that you know not only matters that were just relayed to you, because in that case, you will not be testifying based on your own perception. Anything that you repeat in court that is not really a product of your own perception—you did not hear, saw, or personally experience or perceived, that cannot be considered as an evidence based on personal knowledge. Therefore, that would be hearsay. Hearsay is

chismis—giingon no ingon.ani sa akoa, akoa ra pud giingon sa inyoha. That is how chismis arises. SECTION 37. Hearsay. — Hearsay is a statement other than one made by the declarant while testifying at a trial or hearing, offered to prove the truth of the facts asserted therein. A statement is: (1) an oral or written assertion or (2) a non-verbal conduct of a person, if it is intended by him or her as an assertion. Hearsay evidence is inadmissible except as otherwise provided in these Rule. A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is: (a) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial hearing, or other proceeding, or in a deposition;

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one of identification of a person made after perceiving him or her. (n)

Hearsay is a statement other than one made by the declarant while testifying at a trial or hearing, offered to prove the truth of the facts asserted therein

There is a declarant, but he is not actually the one testifying in court. Somebody says something out of court and that declaration of that particular declarant is repeated in court by somebody else.

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If I am the witness, I will say in open court that X told me something and I am telling the court to believe and believe what he told me because that is true. If X told me that Y killed Z and I repeat that in court and I want the court to accept that is really Y who killed Z, then that is being offered as a proof of the fact asserted.

(b) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; or (c)

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3. c.

Where does this amendment come from? This is a new provision. This is just copied from the Federal Rules of Evidence.

It is inadmissible, as a general rule.

Types of Statements in the context of the Hearsay Rule as provided in Sec. 37 A statement is simply an assertion of facts. You want the court to believe that what you are saying are true. Under Sec. 37, a statement can be: 1. An oral or written assertion or

BASICS

Oral assertion i.e. out-of-court declaration by a person other than the witness.

What is hearsay evidence? Hearsay evidence is evidence given by a witness based on information passed to the person by others rather than evidence experienced at first hand by the witness.

Written assertion i.e. affidavits. 2.

Under Section 22: A witness can testify only to those facts which he or she knows of his or her personal knowledge; that is, which are derived from his or her own perception. This is mere secondhand information. It was merely relayed by other person to me. Now, I am repeating it in open court. Marissa Unchuan v. Antonio Lozada, et. Al. G.R. NO. 172671: April 16, 2009 Ruling: Evidence is hearsay when its probative force depends, in whole or in part, on the competency and credibility of some persons other than the witness by whom it is sought to be produced. Comment: This means that whoever made that declaration, he is not present in court. Therefore, that declarant cannot be subjected to cross-examination to ferret out the truth. b.

Characteristics of Hearsay Evidence (Based on Sec. 37) 1.

It is a statement other than one made by the declarant while testifying at a trial or hearing. Thus, it is an outof-court declaration repeated by a witness who himself did not make the declaration.

It is offered to prove the truth of the matter asserted.

A non-verbal conduct of a person, if it is intended by him or her as an assertion (i.e., gestures). What if you are going to tell the court, what was the gesture of X when you spoke to him and you repeated X’s gesture of making a cut-throat gesture. Thus, it is a non-verbal conduct of a person if it is intended by him or her as an assertion.

When a statement is not Hearsay under Sec. 37 A statement is not hearsay if the declarant: (1) testifies at the trial or hearing and (2) is subject to cross-examination concerning the statement. Note: In this case, it is no longer an out-of-court declaration. You uttered something in court and you are the declarant, you are placed at the witness stand, this time, that declaration, that is not hearsay. If it is confirmatory with what he said previously then it is not hearsay if the declarant takes the witness and is cross-examined by the adverse party. But it may not be that in all instances that the declarations are the same.

e. Statement and Use in Court STATEMENT USE IN COURT (1) Impeachment.

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EVIDENCE This is the out of court declaration which is later used in the courtroom for the purpose outlined in the 2nd paragraph of Section 37:

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

The statement is inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. Situation: X is a witness in both RTC 1 and RTC 2. Different cases. In RTC 1, he says that X killed Y. What is the status of that statement that he made in RTC 1 and in a case prosecuted in RTC 2? Is that considered an opencourt-declaration? No, it is not. It is extrajudicially made because it is not made in the same case. Situation: In RTC 2, the declarant made a testimony but now he declared that Y was not killed by X. It is already A who killed Y. His statements are not the same. What would be the nonhearsay statement there? General Rule: It is that statement where he said that A killed Y. What happens to testimony that he made in RTC 1? That is technically considered as hearsay because he did not make that declaration in RTC 2. Maybe, somebody heard or made a record of what he said in RTC 1 and now wants to impeach his testimony in RTC 2 because he said something different in RTC 1, that is the reason why it cannot be considered as hearsay because while technically speaking it is an

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out of court declaration and it is not hearsay as it is defined under Sec. 37 because it is used for impeachment. You must to the court that his statements in RTC 1 and RTC 2 are not consistent. Either way, he was lying either in RTC 1 or RTC 2. (2) Rebuttal. The statement is consistent with the declarant’s testimony and is offered to rebut an express or implied charged against the declarant of recent fabrication or improper influence or motive. Comment: In the current case that he is testifying, he is saying something consistent with what he said previously outside of the court room. He is saying something that is the same with what he said in another place other than the court and in the present case in which he is being examined, the other side that he is lying. In order to rebut the charge that he has lied in his testimony before the court at the present time, you can present what he stated at another place to

bolster or rehabilitate his testimony that he did not lie.

That is why it is not considered as hearsay and therefore admissible. (3) Identification. The statement is one of identification of a person made after perceiving him or her. Comment: If it is a statement that he made out of court and it is only for purposes of identification. Identification that may or

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may not be consistent in the present case, then that will still not be hearsay. It is admissible. Two concepts of hearsay evidence

(2) Testimony by a witness derived from his personal knowledge but the adverse party is not given

When the declarant told the witness, did he seem to be truthful?

opportunity to cross-examine.

Situation: Plaintiff presents witness A. A testifies in court on matters personally known to him. After direct examination, court tells that the defendant can cross examine on next scheduled hearing [because the court would still administer a wedding]. On the next scheduled hearing, witness A no longer appears and could no longer be located [he might be abducted by aliens already or whatever reason that he cannot be presented in court anymore].

(3) Absence of oath or affirmation The out-of-court declarant cannot be subjected to perjury because he is not under oath. The witness is under oath. What if it later on appears that what the declarant told the witness that it is not true, can you subject the witness to perjury? No, because he was merely repeating a statement that was relayed to him by another person. i.

Note: Admissibility is not the same as evidentiary weight or probative value.

Note: When we talk about the requisites of a hearsay, we are just actually repeating what we already discussed in Sec. 37.

Philippine Realty Holdings Corporation v. Firematic Philippines G.R. NO. 156251; April 27, 2007 The lack of objection may make an incompetent evidence admissible, but admissibility of evidence should not be equated with weight of evidence. Indeed, hearsay evidence whether objected to or not has no probative value.

A statement will be considered hearsay if it is: (1) An assertive statement It expresses, confirms, or negates an allegation.

(3) Offered to prove the truth of the matter asserted therein. The witness will try to convince the court that what was told to him by the declarant was the truth and the court should take it as the truth.

As a rule of exclusion The hearsay character of evidence may be waived by failure to object. It was admitted to the court because you did not object. Example: Objection your Honor, the statement is merely hearsay. It is not derived from the personal knowledge of the witness. But you failed to object.

Requisites in order that a statement be considered hearsay.

(2) Made by an out-of-court declarant He is not the witness being presented but rather, it is somebody else repeating what he told the witness.

Reasons for admissibility of Hearsay

(2) Absence of Demeanor Evidence The court cannot determine the credibility of an outof-court declarant by judging his demeanor because that demeanor is absent..

The witness is not testifying based on his or her personal knowledge, not derived from his or her perception.

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(1) Absence of Cross-Examination While you can examine the witness [the out of court declarant who is not in courtroom right now], you cannot cross-examine the source of his information.

(1) Secondhand information; and Not derived from personal knowledge of witness.

That is technically hearsay because the counsel was deprived of his opportunity to cross-examine. Without cross examination, it is now proper to be stricken out of the records. It becomes hearsay. There is hearsay for second information and there is also hearsay for lack of cross-examination. What it the remedy? Ask that the testimony of witness A be stricken out since it now becomes hearsay.

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Hearsay evidence may be: (1) Oral (2) Written or (3) Non-verbal conduct. The rule excluding hearsay is not limited to oral statements. It also applies equally well to written evidence (such as affidavits,

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letters, sworn statements) as well as to non-verbal conduct (such as gestures and actions).

notice, supposedly that would be hearsay. However, such would not be applicable before the Labor Arbiters.

Affidavits The Constitutional right to confrontation precludes reliance on affidavits. Such a constitutional safeguard cannot be satisfied unless the opportunity is given to the accused to test the credibility of any person, who, by affidavit or deposition would impute the commission of an offense to him. It would be to disregard one of the most valuable guarantees of a person accused if solely on the affidavits presented, his guilt could be predicated.

Contrarily, when you talk about the Department of Labor and Employment, let’s say for example the BLR, if you have an affidavit you want to submit before it such would not be admitted unless the witness appears before the hearing officer and reaffirms the contents of his affidavit.

Situation: The evidence of the prosecution is that, they did not present any witness. They only submitted affidavits. Can that be offered into evidence? No, because it cannot be sponsored by any witness. In order for affidavits to be admissible in court, they have to be either: (1) Repeated; or (2) Reaffirmed by the affiant [the person who made the affidavit] The same thing applies to the judicial affidavit rule. The judicial affidavit rule is the substitute for direct examination of witnesses.

But the general rule is that affidavit is hearsay to overcome this, the affiant must take the witness stand. In summary procedure, the affidavits take the form of testimony or it is the substitute of a testimony. But what if the witness/affiant did not appear before the court to reaffirm the contents of his affidavit and ask the court that his affidavit be the substitute of his testimony? It would be hearsay. The witness must reaffirm the contents of his affidavit under summary rules. NEWSPAPER ARTICLES Double Deck Hearsay It is hearsay within a hearsay. It is when a witness testifies as to an assertion by an out-of-court declarant which in turn is merely second-hand information. Double hearsay is actually mere third hand information.

That is his direct testimony. But what happens if he does not appear to reaffirm the statements he made under oath in his judicial affidavits? -That would also be stricken from the record.

Actually, this is a different kind of level of hearsay since such is a hearsay twice removed from the source. It is a hearsay within a hearsay, why? Because when a witness testifies about a newspaper article, what would be the source? It would be such newspaper article, then what would be the source of such newspaper article? We do not know or it could be an anonymous source. Remember the newsmans’ privilege, that newsmen can actually refuse to divulge the source. So, as you can see, it’s not merely second-hand information but a third-hand information.

Unchuan vs. Lozada G.R. No. 172671, April 16, 2009

However, in American Jurisprudence, newspapers are considered self-authenticating.

It is hornbook doctrine that an affidavit is merely hearsay evidence where its maker did not take the witness stand. Verily, the sworn statement of Anita was of this kind because she did not appear in court to affirm her averments therein.

I think that is also applicable in the Philippines since you can assume that every copy of the newspaper in the newsstand are the same. (e.g. newspaper published by Inquirer on a particular date, you can safely assume that such newspaper all have identical contents, that makes them self-authenticating in American Jurisprudence.)

September 9 Part 2 | Amistad

Please take note of the cases that I mentioned in my book, when would affidavits be given weight? Usually when you are before a quasi-judicial/administrative body. Why? Since there are no requirements in relation to oath, personal appearance of a witnesses. Example: In a labor case, you would submit a position paper and you would include an affidavit of the employer saying that they sent a notice and such was attached but in truth they did not actually send such

BAR QUESTION 2003 Homer Honesto Henson was charged with robbery. On the strength of a warrant of arrest issued by the court, Homer Honesto Henson was arrested by police operatives. They seized from his person a handgun. A charge for illegal possession of firearms was also filed against him. In a press conference called by the police, Homer Honesto Henson admitted that he had robbed the victim of jewelry valued at P500,000.

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The robbery and illegal possession of firearm cases were tried jointly. The prosecution presented in evidence a newspaper clipping of the report of the reporter who was present during the press conference stating that Homer Honesto Henson admitted the robbery. It likewise presented a certification of the PNP Firearms and Explosive Office attesting that the accused had no license to carry any firearm. The certifying officer, however, was not presented as a witness. Both pieces of evidence were objected to by the defense. Note: Let’s not focus on the certification of the PNP Firearms and Explosive Office but on the newspaper clipping of the report of the reporter who was present during the press conference stating that Homer admitted the robbery. Q: Is the newspaper clipping admissible in evidence against Homer Honesto Henson? A: Yes, the newspaper clipping is admissible in evidence against Homer Honesto Henson, regardless of the truth or falsity of a statement, the hearsay rule does not apply and the statement may be shown where the fact that it is made is relevant. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such fact. (Gotesco Investment

Corporation vs. Chatto, 210 SCRA 18)

How can you relate this on our discussion on newspaper articles? Report of the reporter who was present during the press conference? Isn’t that hearsay? When you answer the Bar examinations, what would you do? Find out what the general rule is and see if it is applicable. When will you apply the exceptions? You try to look at the applicability of the exception only if you are not sure that the general is not applicable. When I answered this question during the Bar, I was sure that the general rule is applicable, that newspaper clippings are supposed to be hearsay. But what the examiner had in mind was this doctrine. One of the non-codal exceptions to the hearsay rule, the doctrine of independently relevant statements. Doctrine of Independently Relevant Statement While the testimony of a witness regarding a statement made by another person given for the purpose of establishing the truth of the fact asserted in the statement is clearly hearsay evidence, it is otherwise if the purpose of placing the statement on the record is merely to establish the fact that the statement, or the tenor of such statement, was made. So, what’s this doctrine of independently relevant statement? Example: *Situation: In court, Counsel Z asks a witness

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Counsel Z: What did A tell you? Opposing Counsel: Objection, Your honor! That calls for a hearsay answer. How would Counsel Z defend against it? Counsel Z: Your Honor, we are not presenting the answer of the witness as proof of the truth but only as to the fact that the statement was uttered by the witness, only as to the tenor, your honor. Only as to tenor, what are we trying to prove? Suppose that an outof-court declarant said to the witness that pangit si B. Are you offering that to prove that pangit jud si B? Kung dili, that’s the tenor. Mao na sya ang exception, the doctrine of independently relevant statements. But what we need to remember is the fact that it has to be relevant independently of the statement. Espinelli vs. People G.R. No. 179535, June 9, 2014 Regardless of the truth or falsity of a statement, when what is relevant is the fact that such statement has been made, the hearsay rule does not apply and the statement may be shown. As a matter of fact, evidence as to the making of the statement is not secondary but primary, for the statement itself may constitute a fact in issue or is circumstantially relevant as to the existence of such a fact. This is known as the doctrine of independently relevant statements. Again, the emphasis here is that it does not matter if what the witness said is true or not, but only to prove as to the fact that such statement was made. People vs. Malibiran G.R. No. 178301, April 24, 2009 The law provides for specific exceptions to the hearsay rule. One is the doctrine of independently relevant statements, where only the fact that such statement were made is relevant, and the truth or falsity thereof is immaterial. xxx The witness who testifies thereto is competent because he heard the same, as this is a matter of fact derived from his own perception, and the purpose is to prove either that the statement was made or the tenor thereof. Why would that be admissible, if you are presenting it only as to the tenor of the statement? The tenor of the testimony of a witness is made to prove the mere fact that something was said to him by someone and not the truth of what was said. Why is independently relevant statement admissible despite being hearsay? Simple, because it is relevant. They are relevant because the statement itself is:

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Either the very fact in issue; or Circumstantial evidence of a fact in issue. The very fact in issue Consider an action for oral defamation where the following exchange took place between the prosecutor and his witness:

Again, this is an action for oral defamation. Does it matter that the victim is really a thief? That he actually stole the money of the accused? That the victim is a liar? Does it matter if such statements were true? In a case for oral defamation, it does not matter. As long as there was a malicious imputation and there is an element of publicity, the statements allegedly made are relevant in a prosecution for oral defamation. That is why such would be the very fact in issue of the case, unsa ba jud ang gi ingun sa akusado against the victim.

OTHER NON-CODAL EXCEPTIONS Section 28 of the Rule on Examination of a Child Witness

Sec. 28. Hearsay exception in child abuse cases. – A statement

made by a child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or noncriminal proceeding subject to the following rules: a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent. b)

In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors: 1) Whether there is a motive to lie; 2) The general character of the declarant child; 3) Whether more than one person heard the statement; 4) Whether the statement was spontaneous; 5) The timing of the statement and the relationship between the declarant child and witness; 6) Cross-examination could not show the lack of knowledge of the declarant child; 7) The possibility of faulty recollection of the declarant child is remote; and 8) The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused.

The child witness shall be considered unavailable under the following situations: 1) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or 2) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.

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

Circumstantial evidence of the fact in issue Let us assume we have a special proceeding in court. Let us say it is the probate of a testator’s will. Some heirs who felt aggrieved by the dispositions in the will have raised the issue of the testator’s sanity. Remember that one of the requirements for the making of a will is that the testator was in compos mentis (sound mind). If the will was made during the time when the testator was not of sound mind and it led to the disinheritance of certain heirs. Such will could be invalidated. The will was purportedly executed on January 3 of the previous year. A witness for the oppositor is on the stand to testify on the testator’s alleged incapacity: Q: How long have you known the testator? A: For twenty (20) years by the time he died, Sir. Q: How did you come to know him? A: I was her nurse for twenty (20) years, Sir. Q: On January 3, 2004, what did you hear the testator say? Opposing Counsel: Objection, Your Honor! Hearsay! Court: Not so fast, Witness may answer. A: In the morning of January 3, he said, “I am DARNA!” The testator said that siya daw si Darna and he seemed very serious about it. Now the question is, does it matter if it is true that he is Darna? Does it matter? It doesn’t matter. Why? Because if he really was of the belief that he was Darna, it means that the testator was not of sound mind. Therefore, we can invalidate the will. Hence, if the fact in issue is the testamentary capacity or incapacity of the

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testator to make a will, this is at very least circumstantially relevant. What would be directly relevant here? The result of an examination as to the sanity of the testator.

1. Prosecutor: What did you hear the accused say? Defense: Objection, Your Honor. Question calls for hearsay testimony! Court: Not so fast! Witness may answer. Witness: The accused said while pointing to the victim: “You are a thief. You stole my money! You are a liar!”

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G.R. No. 182498, December 3, 2009 I want you to read this on your own and I would no longer discuss this. When would this be applicable? Suppose that a victim is a child who is unable to testify or already dead. The only witness of the alleged child abuse is a playmate of the child. So, normally you would object if such child is presented as a witness on the ground that we cannot anymore cross-examine the source of information BUT take note that it is allowed under Section 28. Provided that you fulfill the requirements laid down in Section 28. 2.

Section 27 of Rules of Evidence

Sec. 27. Admission of a party – The act, declaration, or omission of a party as to a relevant fact may be given in evidence against him or her. (26a) It is something he said out-of-court, somebody is going to repeat what he said in open court. Then such would no longer be considered as hearsay. It has long been settled that these admissions are admissible even if they are hearsay. (Unchuan vs. Lozada, Ibid) 3.

Relaxation of the Hearsay exclusion in Writ of Amparo cases (Razon, Jr. vs. Tagitis, G.R. No. 182498, December 3, 2009)

But in this case, the Supreme Court relaxed the rule on Hearsay when in it comes to Writ of Amparo cases. According to the Supreme Court, you should consider the totality of evidence and consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason- i.e. to the relevance of the evidence to the issue at hand and its consistency with all the other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test. Because, diba, kung tanawon jud nimo, its really inadmissible because its hearsay. But the Supreme Court can relax it in writ of amparo cases based on totality of evidence presented and the basic test of relevancy. 4. Present Sense Impression For example, you’re riding a car and its going very fast. And you said, “kapaspas na! mabangga nata!” That’s present sense impression. Q: So, later on, naay nakadungog nimo nga paspas kayo ang dagan. Can that be used as proof nga paspas ang dagan sa sakyanan? A: Pwede. That is present sense impression. Unsa imong impression presently. Unsay na-feel nimo karun. Read Lozano vs. People GR. No. 165582, 2010 The RATIONALE for present sense impression is that: 1. there is no substantial danger that defects int the declarant’s memory will affect the value of the statement 2. the declarant would not have had much time to fabricate before making the statement 3. in many cases, the person to whom the statement was addressed would have been in a position to check its accuracy

In this case, there is this Engineer Tagitis, who was reportedly abducted by elements of the State (Law enforcement officials of the state). The wife, with strong suspicions that his husband was actually abducted by the police, filed a case for writ of amparo. Take note that the purpose of the writ of amparo is to produce the person whose disappearance was allegedly enforced by the agents of the government. What was the basis of the wife that his husband was kept by the police?

Hence, the declarant could speak with care.

September 9 Part 3 | Bahalla There is this confidential informant alias Col. Kasim who said “your husband is being kept at camp Catitipan in Davao City.” So, mao na siya ang basis sa filing ni Mrs. Tagitis against the Philippine National Police. Mrs. Tagitis said “produce my husband. You’re keeping him according to the informant.” Do you think that informant will come to court and testify “Oo. Tinood na ang bana naa didto sa Camp Catitipan?” No. Razon said that it is hearsay. You cannot issue a Writ of Amparo solely on hearsay evidence Razon, Jr. vs. Tagitis

CODAL EXCEPTIONS TO THE HEARSAY RULE: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

Dying declaration Statement of decedent or person of unsound mind Declaration against interest. Act or declaration about pedigree Family reputation or tradition regarding pedigree Common reputation Part of res gestae Records of regularly conducted business activity Entries in official records Commercial lists and the like Learned treatises

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12. Testimony or deposition at a former proceeding 13. Residual exception- katong nabilin. the residue of

everything else nga dili covered by the provisions, it might be covered by this exception. **memorize the codal exceptions to the hearsay rule

GENERAL OBSERVATIONS Take note that from original 11 codal exceptions, we now have 13. Among the original 11 codal exceptions, only 4 remain virtually unchanged. The Deadman Statute or the Survivorship Disqualification Rule (formerly Section 23) is now an exception to the hearsay rule. DYING DECLARATION

Section 38. Dying declaration. – The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his or her death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. (37a) A dying declaration is one of the oldest exceptions to the hearsay rule. In fact, as early as 1928, the Supreme Court of the Philippines ruled anent the object of dying declarations that: A dying declaration is admitted of necessity in order, as the Supreme Court of Mississippi states, “to reach those man slayers who perpetrate their crimes when there are no other eyewitnesses.” (People vs. Toledo, G.R. No. L-28655, 1928) Q: Imagine somebody who is being stabbed or shot and it is only the victim and the shooter or stabber who saw it. And nay niabot, anak or asawa, ingon dayon siya “ang nidunggab nako kay si cardo” and then namatay. So, what’s the only evidence for the prosecution to prosecute the accused, Cardo? A: The only thing that proves that it was Cardo who attacked the victim was the fact that the victim told the spouse or the anak ba to nga ang nidunggab niya kay si Cardo. Hearsay diba? It was only told by someone to another person which will now be the witness for the prosecution of Murder against Cardo. But it is now exempted from the general rule ang ginatawag nato as Dying Declaration otherwise known as: Ante Mortem Statement Statements in Articulo Mortis One popular example of a dying declaration was in the movie “The Fugitive.” Dr. Richard Kimble, a successful vascular surgeon in Chicago, comes home one night to find his wofe Helen fatally wounded by a man with a prosthetic arm, and though he attempts to subdue the killer, the man escapes. The lack of evidence of a break-in, fingerprints being found on the gun and the bullets, and Helen’s misunderstood 911 call led to Chicago Police Department to

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charge Kimble with murder, and he is sentenced to death by lethal injection. Mao ni ang nahitabo: the wife was attacked and then while buhi pa tong wife, nitawag siyag 911. And while at the phone with 911, niabot iya husband, Richard. So, instead of talking to the phone operator, the wife kept uttering the word “Richard! Richard!” kay nakita niya nga niabot na iyang husband. Okay? So, that 911 call was misunderstood by the police and by the prosecution to mean that she was identifying her killer. It was misinterpreted as a dying declaration. Why is a dying declaration admissible? In the case of People v. Bautista, there are two obvious reasons why we need to admit dying declarations: 1. NECESSITY because the declarant's death renders impossible his taking the witness stand. 2. TRUSTWORTHY since the declaration is "made in extremity, when the party is at the point of death and every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful consideration to speak the truth. A situation so solemn and awful is considered by the law as creating an obligation equal to that which is imposed by an oath administered in court." Mind you, tanang codal exceptions to the hearsay rule, ang iyang reasons kay pareha lang: necessity and trustworthiness. Trustworthiness Marturillas vs. People G.R. No. 163217 Statements identifying the assailant, if uttered by a victim on the verge of death, are entitled to the highest degree of credence and respect. Persons aware of an impending death have been known to be genuinely truthful in their words and extremely scrupulous in their accusations. The dying declaration is given credence, on the premise that no one who knows of one’s impending death will make a careless and false accusation.

Q: Kung mamatay nalang man ka and you face the prospect of facing your Creator, mamakak pa ba ka? Would that be the last thing that you’ll be going to do when you are about to meet your maker? A: Supreme Court ruled no. Persons aware of their impending death have been known to be genuinely truthful in their words. So, mao na ang reason ngano trustworthy siya. People vs. Palanas G.R. No. 214453 This declaration is considered evidence of the highest order and is entitled to utmost credence since no person aware of his impending death would make a careless and false accusation.

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Verily, because the declaration was made in extremity, when the party is at the point of death and when every motive of falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth, the law deems this as a situation so solemn and awful as creating an obligation equal to that which is imposed by an oath administered in court.

REQUISITES For a dying declaration to constitute an exception to the hearsay evidence rule, 4 conditions must concur: 1. The declaration must concern the cause and surrounding circumstances of the declarant’s death; 2. That at the time the declaration was made, the declarant is conscious of his impending death; 3. The declarant was competent as a witness (had he or she survived); and 4. The declaration is offered in a criminal case for Homicide, Murder, or Parricide where the declarant is the victim. People vs. Palanas, G.R. No. 214453; People vs. Umapas, G.R. No. 215742; People vs. Santillan, G.R. No. 227878 But if you look at the codal provisions, naa bay nakabutang “Homicide, Murder, or Parricide?” Ang nakabutang sa codal provision “offered in any case wherein his or her death is the subject of inquiry.” Walay nakabutang nga it has to be a criminal case of homicide, Murder, or Parricide. That’s why when the case of Palanas came out, nay bag-ong requisites. September 9 Part 4 | Du People vs. Badillos G.R. No. 215732, June 6, 2018 A dying declaration is admissible in evidence if the following circumstances are present: 1. It concerns the cause and the surrounding circumstances of the declarant’s death’ 2. It is made when death appears to be imminent and the declarant is under a consciousness of impending death; 3. The declarant would have been competent to testify had he or she survived; and 4. The dying declaration is offered in a case in which the subject of the inquiry involves the declarant’s death. The first three requisites are the same but in the fourth requisite, walay giingon na criminal case siya, so ning revert napud. Let’s discuss the REQUISITES: 1.

Declaration concerns the cause and the surrounding circumstances of the declarant’s death Example:

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X, the husband, was shot while Y, the wife, was stabbed. At the emergency room of the hospital, X said that it was Z who stabbed his wife. Then, he died. Q: Can this qualify as a dying declaration? So when he said to somebody that it was Z who stabbed his wife, is that a dying declaration? A: No. The statement is not a dying declaration because it pertains to the cause and surrounding circumstances of the wife’s death and not of the declarant’s OWN death. Dapat iyahang kaugalingon.

BAR QUESTION 2017 Immediately before he died of gunshot wounds to his chest, Venancio told the attending physician, in a very feeble voice, that it was Arnulfo, his co-worker, who had shot him. Venancio added that it was also Arnulfo who had shot Vicente, the man whose cadaver was lying on the bed beside him. In the prosecution of Arnulfo for the criminal killing of Venancio and Vicente, are all the statements of Venancio admissible as dying declaration? Explain your answer. With respect to his own death, diba giingon niya na it was Arnulfo who shot him? That’s a dying declaration. But with respect to Vicente, that is not a dying declaration because the declaration does not concern the cause and surrounding circumstances of the declarant’s death. It was somebody else’s death. A dying declaration may be inculpatory or exculpatory. Meaning, it may inculpate or exculpate you. It may find you guilty or find you innocent. More often than not, the requisite relates to the inquiry of who killed the declarant but it does not preclude information as to the motive and other conditions that attended the killing of the declarant. This also means that a dying declaration may be used not only against the accused but also in his favor. Q: So what if the victim said X shot me and then Y was the main suspect. Can you use the dying declaration of the victim as evidence that Y is innocent? A: Of course you can. Example: John Adams, 2nd President of the United States. He used to be a lawyer before he became President. In 1770, a street confrontation known as the Boston Massacre resulted in British soldiers killing five civilians. The accused soldiers,

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Patrick Carr, told his doctor before he died that the soldiers had been provoked. The doctor’s testimony helped John Adams to secure acquittals for some of the accused and reduced charges for the rest. It may thus be used as proof of a justifying circumstance or as proof that another person committed the killing other than the accused. 2.

When the declaration was made, the declarant is conscious of his impending death Meaning, para sa iyaha, mamatay na gyud ko. But he doesn’t have to state it but klaro kayo no. What factors should be considered in determining whether the declarant is conscious of his impending death? 1. The very utterances made by the declarant; 2. The actual character and seriousness of his wounds; and People vs. Villariez G.R. No. 211160, September 2, 2015

At the brink of death and with a voice she could hardly hear, her father uttered the name “Toti.” Held: Dying declaration. Although he made no express statement showing that he was conscious of his impending death, it was clear however, considering the fatal quality of his injury and that he was barely heard by ana when he uttered accused’s name, that his death was imminent. That can be considered as a dying declaration even if he did not say that mamatay na ko. No need to say. You don’t have to be very technical. 3.

By the declarant’s conduct and the circumstances at the time he made the declaration, whether he expected to survive his injury.

Example: Gerald was shot but he can still walk and talk. He went home to his house, cleaned up his own wounds and went out to go to the hospital. Along the way, he rode a taxi. The driver was a childhood friend, Matteo who asked him what happened to him. He answered that Luis shot him but that he was okay. It was only a flesh wound. At the hospital, Gerald died after a couple of hours. Q: Is the statement of Gerald to Matteo a dying declaration? A: No, because he made the statement without having thought that he is already dying. He made the statement thinking that it was a flesh wound and that he would survive it. In order to be admissible, the declarant must have thought that he was about to die because it is the fact that the declaration is “made in extremity, when the

party is at the point of death and every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced

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by the most powerful consideration to speak the truth” that makes the declaration trustworthy.

BAR EXAMINATION QUESTION (MAYBE 2018) During the time that he was shot, he was at the emergency room at the hospital, nagcellphone pa siya, naglike sa mga post s aiyang friends, nagselfie pa siya. 8pm emergency room. Then he said to the attendant that it was X who shot me and then he died thereafter. Q: Dying declaration? A: Of course not. Ang conduct ba niya same as a person who feels that he is at the point of death? Obviously not. Marturillas vs. People G.R. No. 163217, April 18, 2006 Consciousness of impending death need not be explicitly stated but may be established by circumstantial evidence. The law does not require the declarant to state explicitly a perception of the inevitability of death. The perception may be established from surrounding circumstances, such as the nature of the declarant’s injury and conduct that would justify a conclusion that there was a consciousness of impending death. Even if the declarant did not make an explicit statement of that realization, the degree and seriousness of the words and the fact that death occurred shortly afterwards may be considered as sufficient evidence that the declaration was made by the victim with full consciousness of being in a dying condition. DOCTRINES TO REMEMBER: The victim need not state that he has lost all hope of recovery. It is sufficient that circumstances are such as to inevitably lead to the conclusion that at the time the declaration was made, the declarant would not expect to survive the injury from which he actually died. The degree and seriousness of the wounds and the fact that death supervened thereafter constitute substantial evidence of the victim’s consciousness of his impending death. (People vs. Tanaman et al., G.R. No. 71768, July 28, 1987) What about if wala siya namatay dayun? Ok lang ba? People vs. Bautista G.R. No. 111149, September 5, 1997 Dying declaration has weight even if declarant did not die immediately after his declaration: The fact that the declarant died four (4) hours after his statement does not diminish the probative value of the dying declaration since it is not indispensable that a declarant expires immediately thereafter.

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It is the belief of impending death and not the rapid succession of death that renders the dying declaration admissible. Dili kinahanglan na kanang mamatay dayun. Pwede kanang mabuhi pa kadali because of timely medical intervention pero not knowing that it was a fatal wound.

People vs. Badillos G.R. No. 215732, June 6, 2018 In order to make a dying declaration admissible, a fixed belief in inevitable and imminent death must be entered into by the declarant. It is the declarant’s belief of his impending death and not the rapid succession of his death in point of fact that renders his declaration admissible as a dying declaration. The test is whether the declarant has abandoned all hopes of survival and looks on death as certainly impending. People vs. Rarugal G.R. No. 188603, January 16, 2013 On the night of October 19, 1998 at around 9:45pm, while victim Arnel Florendo (Florendo) was cycling along Sampaguita Street, Barangay Capari, Novaliches, Quezon City, Rarugal with the use of a long double-bladed weapon, stabbed Florendo; thus, forcibly depriving him of his bicycle. Immediately thereafter, appellant hurriedly fled the scene. This incident was witnessed by Roberto SitJar, who positively identified appellant in court. Florendo arrived home bleeding. He was quickly attended to by his siblings, including his brother Renato. When Renato recounted the events of that night to the court, he testified that Florendo told him and his other relatives that it was Rarugal who had stabbed him. They then took Florendo to Tordesillas Hospital but had to transfer him to Quezon City General Hospital, due to the unavailability of blood. It was there that Florendo died on October 26, 1998. Note: The victim was still alive after the stabbing incident. He had time to reach his house and confide in his brother, witness Renato, that it was appellant who had stabbed him. The victim also did not die immediately. Held: Yes. It is of no moment that the victim died seven days from the stabbing incident and after receiving adequate care and treatment, because the apparent proximate cause of his death, the punctures in his lungs, was a consequence of appellant’s stabbing him in the chest. He died one full week from the making of the declaration. Is this considered a dying declaration? Diba, dugay namatay, did not die immediately. Pwede gihapon. Dili magmatter one week, pwede gihapon siya magqualify as dying declaration.

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The declarant was competent as a witness This means that, had the declarant survived, he would not have been disqualified or otherwise prohibited to testify. Thus, the utterance of the deceased must have been one borne of personal knowledge. So when he says si X ang nagpusil nako, dapat nakita gyud niya. He was in a position to see X shoot him.

Here’s a weird case: Geraldo vs. People G.R. No. 173608, November 20, 2008 Competence means opportunity to see assailant.

It has not been established, however, that the victim would have been competent to testify had he survived the attack. There is no showing that he had the opportunity to see his assailant. Among other things, there is no indication whether he was shot in front. At all events, even if the victim’s dying declaration were admissible in evidence, it must identify the assailant with certainty; otherwise it loses its significance. Ang dying declaration niya was that a certain person killed him. But by means of examining evidence, by looking at ballistics, and nakita is that the entry wound was from the back, exit wound front. How could he have seen his attacker? Murag ingana ang contention sa accused. Compare that case with this case of: People vs. Villariez G.R. No. 211160, September 2, 2015 The victim made a dying declaration about the person who shot him. The accused was convicted based on this and the SC affirmed and appreciated the qualifying circumstance of treachery. It found that the victim was shot at the back. Rather than discrediting the dying declaration, the SC appreciated it as a qualifying circumstance of treachery. It qualified simple homicide to murder. So nay difference sa facts between the two cases. For example niingon ka: I think ang nipusil nako kay si A. I think si A to kay naa siyay kasuko nako. I think kay wala nimo nakitan. Dying declaration? No. You are not competent, you are stating a matter of opinion. You must state a matter of fact. Dapat naobserve sa declarant in order for it to constitute a dying declaration.

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EVIDENCE 4.

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Offered in a criminal case for homicide, murder, or parricide where the declarant is the victim

dead.” There is no dying declaration in cases of homicide or murder in their attempted or frustrated stage.

Ayaw na pangutana ngano walay infanticide. Diba? Cannot make a declaration of course.

Technically speaking, kung comatose, buhi pa na. There can be no homicide or murder. Attempted or frustrated lang siguro imong pwede ifile. Muhulat ka na mamatay before it becomes a dying declaration.

Compare this requisite with what is stated in the codal provision:

“in any case wherein his or her death is the subject of inquiry”

Walay giingon na criminal case. It does not specify na homicide, murder or parricide where the declarant is the victim.

September 9 Part 5 | Escritor

Since the SC in that 2018 case (People vs. Badillos) reverted back to any case, pursuant to the codal provision, naa ba possibility na ang dying declaration can be appreciated in a civil case where the subject of inquiry is the declarant’s death? Naa ba? Pwede kaha na siya in Article 2176 of the Civil Code?

Unsa ni karon? Admissible or dili? Admissible sya, but no longer as a dying declaration; but rather pwede sya na under a different exception which is, part of the res gestae, which we will be talking about later.

Note that the provision opens the possibility of admitting a dying declaration in any case for as long as the subject of inquiry is the declarant’s death.

Does the requirement of death, include presumptive death? Diba naay presumptive death? Under Persons and Family Relations. Naa pud tay discussion ana. Presumption of Death. Does the requirement of death for dying declaration, include presumptive death?

Example: In a civil case under Article 2176 of the Civil Code, the victim was able to see the driver of the vehicle that hit him. He stated the name of the driver to the rescuer.

The first question that you need to ask is: Can a prosecution for unlawful killing be made without the victim being found? Gi-presume lang na dead.

Q: Can that be considered as a dying declaration? The question is whether under Article 2176 which defines a quasidelict, ang subject of inquiry ba is the declarant’s death?

So, wa gyud nimo nakita. Let’s say napusilan sya. Naay nakakita napusilang sya. Nya wan a gyud sya nakita ever since. Can you infer the fact of death there?

A: Technically it is not. Under said article, it is not necessary that the victim dies. Pwede man na nainjure or damage lang. My opinion only is that the subject of inquiry in Article 2176 is the negligence of the defendant. Not the injury or the death.

The answer is yes.

And seemingly the SC supports that opinion because the SC will not specify homicide, murder and parricide, if they are not of the same opnion. So clearly, it cannot be in a civil case. Although in that 2018 case, ning revert napud ang SC karon. In any case napud siya. But wait for recent cases. The declarant must not have survived. Mao gani dying declaration. If nagsurvive, then present him as a witness. The requirement of the Rules is that the statement is offered in a case where the declarant’s death is the subject of inquiry. This means actual death and does not apply to cases of mere unavailability such as when the patient is in a comatose condition or merely “brain

People v. Roluna The court affirmed the conviction of the accused for murder although the body of the victim was not found or recovered. In said case, we rule that in murder or homicide, it is not necessary to recover the body of the victim, or show where it can be found. It is enough that the death or the criminal agency causing death is proven. The court recognize that there are cases where the death and intervention of the criminal agency that caused it may be presumed or established by circumstantial evidence. So, pwede. Without really seeing somebody, the cadaver of a person, pwede ka magprosecute based on presumptive lang na death. Second question: Can there be a situation where a dying declaration can be made in circumstances where there’s merely presumptive death? Hypothetical case of survivor.

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Illustration: Naa diri si Gerald, si Tamolmol ug Matukol. Crash landed on a deserted island. Before they were actually rescued, Matukol saw Gerald clutching his stomach, and saw that he appeared to be stabbed several times. He then asked Gerald what happened and Gerald said that Tamolmol stabbed him repeatedly with a jungle knife. As he was saying this, a boat appeared at the horizon. Hoping for rescue, Gerald swam towards the direction of the boat. A few moments later, Gerald disappeared at the deeper part of the sea and was never found again. After four years, Tamolol was prosecuted for murder. Can the statement made by Gerald to Matukol prior to his disappearance be considered as a dying declaration? To my mind, based on how this example was framed, pwede. Tanang requisites naa eh. Diba the declaration was to the cause and surrounding circumstances of his death? Because diba, multiple stab wounds. Syaro sad dili ka mamatay. Possible pud na namatay sya by drowning. But, dili pud impossible na namatay sya because of the stabbing. So, pwede. Pwede sya. To my mind. Based on the example that I just laid out to you. Again, what if the victim survives? Then, part of the res gestae sya. No need to die if it is part of the res gestae. People v. Gatarin November 3, Umali was riding a bicycle on his way home when he saw Januario being mauled by two persons. Upon seeing the incident, he stayed in front of the church until such time that the accused ran away and were chased by policemen that alighted from the police patrol vehicle. On the same night, SPO3 Mendoza and PO1 Jeffrey Jefferson Coronel were on board their patrol vehicle performing their routine patrol duty when they met two men, then later identified to be the accused, who were running at a fast speed. When asked why they were running, the accused did not answer, prompting the policeman to chase them. The policemen however, were unsuccessful in catching them. And when it became evident that they could no longer find them, they continued patrolling the area. There they saw Januario lying on the street in front of Tom’s studio. As he was severely injured, the policemen immediately boarded Januario to the patrol vehicle and brought him to the Zigzag Hospital. While inside the vehicle, SPO3 Mendoza asked Januario who hurt him. And he said, “Si Jay rug ang iyahang uyu-an.” The uncle turned out to be the appellant, while Jayr, who is his co-accused, remains at large.

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Unya, he was attended to by Dr. Raza who found him in critical condition. Three fatal wounds caused by a bladed weapon were found in Januario’s body which eventually caused his death. Maria Castillo, for her part, testified on how she learned of what happened to her husband, the victim herein, the amount allegedly stolen from her husband, as well as on the expense and loss occurred by reason of Januario’s death. She further quantified the quantified the sorrow and anxiety the family suffered by reason of such of death. As to the identity of the perpetrators, what was the evidence for the prosecution? Katong response sa victim kang SPO3 Mendoza as to who committed the crime against him. Meaning, katong si Jayr ug iyahang uncle. On appeal, the CA affirmed the RTC decision. However, wala niya gi-treat sya as part of the res gestae katong statement; but rather, as a dying declaration. So, gibaliktad. Sa RTC, giingon nil res gestae. Pag-abot sa CA, “Ay, dili. Dili lang na sya part of the res gestae but also a dying declaration.” My question is: Does it matter? Whether it is not a dying declaration? While in this case, wala man gud naprove that the declarant was under the consciousness of an impending death when he made the statements, it cannot be considered as a dying declaration. But, the SC said, pwede gihapon sya na ma-appreciate as part of the res gestae. Kanang gintawag nato na excited utterances. Take note, dying declaration can be in any form: oral or written. If oral, the witness who heard it may testify thereto without the necessity of reproducing the word of the decedent if he is able to give the substance thereof. Dili kinahanglan word for word. An unsigned dying declaration may be used as a memorandum by the witness who took it down. That’s People v. Boller. No need to be verbatim. Pero karon, diba, grabe ang possibilities. Let’s say you’re the rescuer. You see somebody lying on the street in a pool of his own blood, apparently being a victim of an attack. And then you have your cellphone. Pwede nimo na i-record, pwede nimo ivideo, right? So, naglevel up atong mga exceptions because of the availability of technology. Pwede sya mahimong documentary evidence, pwede mahimong object evidence, pwede pud sya na mahimong dying declaration as an exception to the hearsay rule. A dying declaration pwede pud na the police investigators wrote down a statement and gipa-thumbmark later by the deceased when he was still alive. People v. Comiling pud na sya. SC said, dying declaration, that qualifies. My problem there is, how do we know ang pag thumbmark sa victim was done at a time na buhi pa gyud sya? Because if you base it on Peopla v. Comiling, diba pwede kaayo na angbuhat-buhat lang ang police ug statement? Pagkahuman, gipa thumbmark using the cadaver or the thumb? Pwede gud kaayo

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na niya buhaton na ingon-ana. So it’s kinda weird. Pwede nato icriticize ang ruling diha sa People v. Comiling. Pwede pud in the form of an affidavit, for as long as the requisites are present. Diba kapaspas magbuhat ug affidavit karon. “Ay sa’g kamatay ha? Magbuhat sa kog affidavit nimo.” Pwede kaayo. You can actually do that very quickly. But about this one.. People v. Padrones Three pages ang statement, ang alleged na dying declaration. Executed on August 13 while the deceased died August 21, 1986. SC said, let’s examine the signatures. The signatures were in bold and clear strokes, with grand flourishes. That cannot be considered as a dying declaration, diba? Kung kintahay at the point of death na gyud nang tawhana na, as the police here allege, dili siguro ka makasign ug ing-ana. Kanang bold flourishes. Can non-verbal acts be used as dying declarations? Example: While Gerald was lying in a pool of his own blood and dying, he pointed with a very angry face at one of the bystanders, Matteo. Is that a dying declaration? Can you take that to mean that Matteo was the killer of Gerald? Answer: No, because it violates the Doctrine of Completeness. Unsa may meaning lang daw anang suko iyang nawong, and he was pointing at one of the by-standers? “Mao na ang ni-ilog sa akong uyab!” Mao siguro na. Not necessarily na sya ang ningpatay, diba? People v. Comiling A dying declaration is complete when it is a full expression of all that the declarant wanted to say with regard to the circumstances of his death. Take note also this case of People v. De Joya, November 8, 1991. Again, with respect to the Doctrine of Completeness. Take note however that admissibility is different from weight. What the law merely assures is admissibility. There’s no assurance that the dying declaration is to be automatically believed if it’s controverted by other competent evidence, the dying declaration may be set aside. Deathbed confessions Now, what about a death bed confession? Can that be considered as a dying declaration? Naa bat ay ingon-ana? In the same vein,

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pwede ba na kana bitawng last wishes of a deceased person? Is that enforceable if it is not in the form of a will? Can you settle an estate using the last wishes of a dying man? You can’t, diba? So let’s try that here. Luis, at his death bed, confessed to Rayver that he is the father of Jesse’s child. He died two seconds later. During the settlement of the estate, Jesse appeared in court to assert the rights of her child with Luis, and wanted to present Rayver to testify as to the admission of Luis that he is the father of Jesse’s child. Can the legitimate children of Luis object to the admissibility of Rayver’s testimony? I’ll let that simmer sa inyoha. Deathbed confession. Meaning, things that you will never say while you are still alive. Unya kay mamatay na man ka, “Sige. I’ll be honest.” Mao na ang deathbed confession. So what’s the ground for the objection? Hearsay, diba? Luis is not available to testify. But the question there is, should the court overrule the objection, or should it sustain the objection? Kato bang admission niya kay Rayver na sya ang Papa sa anak ni Jesse, admissible ba sya or is it hearsay? Is it exempt ba from the operatio of the hearsay rule? Let’s just put it there for now. Let’s just do it another way. Let’s change the facts a little bit. Luis, at his deathbed, confessed to Twerky Jugs’ daughter, Lucy, that he is her father and wanted to give her P3 Million so that she can finish law school and take the bar as many times as she wants. He died 2 seconds later. During the settlement of his estate, Lucy appeared in court and wanted to testify as to Luis’ admission of paternity and the gift of P3 Million Pesos. Can the legitimate children of Luis object to the admissibility of Lucy’s testimony? Naay will na naghatag kang Lucy ug P3 Million? Wala. Any other evidence for that matter na nagahatag kang Lucy ug P3 Million? Wala. So, can the legitimate children of Luis object to Lucy’s testimony? Is there any evidence other than Lucy and the alleged deathbed confession of Luis to Lucy? What are the grounds for objection? That the testimony is hearsay. Patay na ang declarant. Deadman’s statute (old provision) 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, 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

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deceased person or before such person became of unsound mind. (This is the old Section 23) You cannot testify to what a dead man told you that tends to diminish his estate. In this case, the admission of paternity and alleged gift of P3Million pesos. Also called: Dead Man’s Statute Survivorship Disqualification Rule Surviving Parties Rule

Review: Parol Evidence Rule

Section 10. Evidence of written agreements – When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. xxx The term “agreement” includes wills. So, you cannot testify to something na wala sa agreement sa will. Situation In Gerald’s will, there is a bequest of P200,000 to Matteo. During the probate of the will, Matteo claimed that Gerald told him is, in the event of Gerald’s death, Matteo will get P2,000,000.

Effect:

Matteo cannot prove by extrinsic evidence that the bequest was P2,000,000 and not P200,000. This is not allowed under the Parole Evidence Rule. Otherwise, there will be a lot of spurious claims against the estate of a deceased person. Why is the Rule applied to wills? The dangers sought to be avoided by the requirement of the Rule is present in the making of wills and are deemed to be more prevalent inasmuch as the maker of a will, the decedent, can no longer object to attempts to vary his testamentary intent as his voice is already silenced by death. THE SITUATION UNDER THE FORMER SECTION 23 Matteo approaches Gerald to borrow One Million Pesos to be paid in two months’ time. Without hesitation, Gerald gives Matteo the amount requested without any contract, receipt or any other written proof of the loan. Exactly a day before the agreed date for payment, Matteo was electrocuted then fell off the balcony of his condo, got hit by a train and then splattered to pieces. In short, he died. What will Gerald do?

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He goes to the executor of the estate of Matteo, Rayver, and tells him of the debt of Matteo. Rayver, having no knowledge of the debt, refuses to pay Gerald. Gerald is forced to sue the estate of Matteo. During the trial, can Gerald testify and establish his claim which existed before Matteo died? NO. It is forbidden under the Dead Man’s Statute. September 9 Part 6 | Estrosas

According to Riano:

Gerald is rendered incompetent to testify as to the transaction he had with Matteo. He is incompetent because of the possibility that his claim is fraudulent. There would be a high risk of paying a fraudulent or a fictitious claim. It is Gerald who has the motive to lie. He is the survivor. Matteo cannot lie. He is dead and cannot answer back. He cannot disprove the claim of Gerald. Because verily, diba? You can go instead of ambulance chasing to funeral parlor chasing, makiramay ka. E.g. By the way kanang gihaya, naa gud na’y utang sa ako. Bayri

ko ah.

Kay sa mutuo lang bitao, mao na siya ang dili gusto sa Dead Man’s Statute. You cannot anymore disprove it because the person is already dead. You cannot anymore refute your claim whatever your claim is against the estate kay patay na siya. That’s the reason why we have the Dead Man’s Statute. So, bawal ang ing-ana nga testimony. To level the playing field between the lucky survivor and the poor deceased, the rule would seal the lips of the survivor by declaring him incompetent to testify on the transaction between him and the deceased. The rule is 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. OBJECT OF THE RULE The Supreme Court had repeatedly held in not a few cases that the object of the rule is: 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. Its purpose is to close the lips of the plaintiff when death has closed the lips of the defendant, in order to remove from the defendant the temptation to do falsehood and the possibility of fictitious claims against the deceased (TAN vs. COURT OF APPEALS, G.R. No. 125861, September 9, 1998). NEW DEADMAN’S STATUTE Section 39. Statement of decedent or person of unsound mind. – In an action against an executor or administrator or other

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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, where a party or assignor of a party or a person in whose behalf a case is prosecuted testifies on a matter of fact occurring before the death of the deceased person or before the person became of unsound mind, any statement of the deceased or the person of unsound mind, may be received in evidence if the statement was made upon the personal knowledge of the deceased or the person of unsound mind at a time when the matter had been recently perceived by him or her and while his or her recollection was clear. Such statement, however, is inadmissible if made under circumstances indicating its lack of trustworthiness. (23a) This is the new Section 39 which is even longer than the old Section 23. Being the new Section 39, the old Section 23 has become an exception to the hearsay rule. If the general rule before is that the survivorship disqualification rule or deadman’s statute under Section 23 was a rule of exclusion, you cannot testify to establish a claim against the estate of the deceased person. Now you can because it is an exception to the hearsay rule.

“any statement of the deceased or the person of unsound mind, may be received in evidence if the statement was made upon the personal knowledge of the deceased or the person of unsound mind at a time when the matter had been recently perceived by him or her and while his or her recollection was clear.” This means that while the declarant is already deceased or insane (NECESSITY – it means necessary that we admit this as an exception to the hearsay rule), he uttered the statement based on his own perception while his recollection was still clear (TRUSTWORTHINESS). Furthermore, the law is presently worded, changed the nature of the Deadman’s Statute from a rule of exclusion into a rule of inclusion, as it is already an exception to the hearsay rule. Once again, take note that the guarantee of the law is merely admissibility, not probative value or “believability.”

“Such statement, however, is inadmissible if made under circumstances indicating its lack of trustworthiness.” Thus, if the defendant (executor or administrator) wishes to successfully object to the out-of-court declaration or “statement of decedent or person of unsound mind,” he

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must prove that it is not trustworthy. In other words, the objection is grounded on general grounds of hearsay and not survivorship disqualification which, technically speaking, no longer exists. Wala na ning survivorship disqualification rule. Rather than inadmissible, it becomes admissible as an exception to the hearsay rule. COMPARISON Survivorship Disqualification Rule of exclusion. It excluded testimony that tends to establish a claim against the estate of a deceased person or person of unsound mind.

Statement of decedent or person of unsound mind Rule of inclusion. It now admits testimony on a claim against the estate, a deceased person or person of unsound mind based on the out-of-court declarations of such persons provided the testimony on the claim is trustworthy. If you heard the deceased stating something, even if it tends to establish a claim against his estate, but then he’s dead, that is actually admissible as an exception to the hearsay rule.

TRACKING AND EXPLAINING THE CHANGES “In an action” This phrase appears to modify the requisite that the Deadman’s Statute is applicable only to civil cases or special proceedings under the old law. However, take note that an action under the Rules of Civil Procedure may refer to an ordinary or special civil action or a criminal action.

FIRST EXAM

It was ground to disqualify a witness if he is the survivor.

The burden was upon the claimant to plead any one of the exceptions to the Rule.

An exception to the hearsay rule which no longer disqualifies a witness from testifying on the ground of merely being a survivor. The burden now falls on the executor, administrator or other representative of a deceased or insane person to prove that the out-of-court declaration or statement was made under circumstances indicating its lack of trustworthiness.

Note: Remember this Table. You will not see this anywhere else. This is a product of JZE’s research. ANOTHER EXAMPLE Luis, at his death bed, confessed to his daughter, Lucy, that he killed Matteo, not Gerald who currently stands trial for Matteo’s murder. Luis died 2 seconds later. During the trial of Matteo, he wanted to present Lucy to testify as to the deathbed confession of Luis. Can the prosecution object? What’s the ground for objection?

ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

EVIDENCE

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THAT THE TESTIMONY IS HEARSAY. Lucy will be testifying as to what Luis told her when he was still alive. Should the court overrule or sustain the objection? o

Section 40. Declaration against interest. – The declaration made by a person deceased or unable to testify against the interest of the declarant1, if the fact asserted in the declaration was at the time it was made so far contrary to the declarant’s own interest2 that a reasonable person in his or her position would not have made the declaration unless he or she believed it to be true, may be received in evidence against himself or herself or his or her successors in interest and against third persons. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

In England, in R. v. Gray (1841) Ir. Circ. Rep. 76, a deathbed confession by a third person that he, not the accused, had committed the murder charged was held inadmissible.

Example: James Brewer Case James Brewer was suffering from a stroke and thought he was going to die when he decided to come clean about his life. In 1977, James Brewer, in a jealous rage, killed his neighbor, skipped bail, and then ran away with his wife and they took on new identities as the Andersons. They were model citizens and even lead a Bible study group. He confessed this in 2009 to the police on his deathbed. Luckily (or unluckily) for him, he recovered. When he was already fit to stand trial, he was prosecuted. He was later found guilty of murder and sentenced to the death penalty. LET’S GO BACK TO THE EXAMPLE Luis, at his death bed, confessed to his daughter, Lucy, that he killed Matteo, not Gerald who currently stands trial for Matteo’s murder. Luis died 2 seconds later. During the trial of Matteo, he wanted to present Lucy to testify as to the deathbed confession of Luis. Can the prosecution object? YES!!! Remember, this is not a dying declaration although the common element is “somebody dies”. What’s the ground for objection? o THAT THE TESTIMONY IS HEARSAY. The declarant is already deceased. He cannot be cross-examined. Lucy will only be testifying as to what Luis told her. Diba? Hearsay siya, but the question now is…(refer to next) Should the court overrule or sustain the objection? o OVERRULE. There is a rule that can be used to justify departing from the hearsay rule without calling it a deathbed confession rule, and that is: Declaration against interest (old Section 38).

130

DECLARATION AGAINST INTEREST (NEW)

Is there a specific rule in Philippine law about deathbed confessions?

In the US, however, under Rule 804 of the Federal Rules, a deathbed confession can be admissible in court under the right circumstances. If someone confesses knowledge of a crime and then dies or his condition worsens, the law does not consider the statement to be hearsay and can be used in a criminal trial.

FIRST EXAM

His own interest, remember right? Like gipatay nako tung tawhana tuh, and then he died. 2 Meaning, it is really something that is prejudicial to his own interest that he would not normally do that. 1

While this is not called the deathbed confession rule, this is our own version of a deathbed confession rule as an exception to the hearsay rule. FUENTES, JR. vs. CA G.R. No. 111692, February 9, 1996 The admissibility in evidence of such declaration is grounded on necessity and trustworthiness. There are three (3) essential requisites for the admissibility of a declaration against interest: a) The declarant must not be available to testify; b) The declaration must concern a fact cognizable by the declarant; and c) The circumstances must render it improbable that a motive to falsify existed. EXAMPLE Twerky Juggs was charged with the crime of kidnapping of Rrramon, her husband. One of the testimonies presented by the prosecution was that of Maja who testified that Rrramon confided to her that he and Adela were having an affair. Undoubtedly, Rrramon’s infidelity was ample reason for Twerky Juggs to contemplate revenge. Consequently, the trial court convicted Twerky Juggs based on the testimonies of the witnesses. Was the testimony of Maja admissible as evidence? You need to remember here that Rrramon was not available to testify, right? Because he was kidnapped, he could no longer be found, and the witness of the prosecution was Maja who was trying to say that Rrramon said that he and

ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

EVIDENCE

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Adela were having an affair. Of course, behind the back of Twerky Juggs, the wife. YES. Rrramon’s revelation to Maja regarding his illicit relationship with Adela is admissible in evidence, pursuant to Section 38 (now Section 40), Rule 130 of the Revised Rules on Evidence. Declaration against interest includes all kinds of interest, that is, pecuniary, proprietary, moral or even penal. Rrramon, having been missing since his abduction, cannot be called upon to testify. His confession to Maja, definitely a declaration against his own interest, since his affair with Adela was a crime, is admissible in evidence because no sane person will be presumed to tell a falsehood to his own detriment. (People vs Bernal, G.R. No. 113685, June 19, 1997)

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the deathbed confession of a deceased person owing to the crime of murder. So, you can invent a story of an alleged deathbed confession. Examples: The wife of the accused allegedly heard the confession of the deceased that he, not her husband, committed the crime. The brother of the accused, as a parting gift, decided to lie on his deathbed and own up to a crime committed by the accused in order to save the latter from prison (whether with or without consideration).

ADDITION TO THE RULE

SECOND, the declarant cannot be cross-examined anymore on his declaration against interest.

“A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”

These are the reasons why such out-of-court declaration by a person deceased is inadmissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. The law therefore requires corroboration by evidence other than the declaration itself.

This will not be admissible as a general rule. Kanang the declarant, he is about to die, then he says ako ang nipatay ning tawhana ni dili tung tawo who stands trial for murder right now. Ngano dili siya automatic admissible? o

Recall that under English jurisprudence, in R. v. Gray (1841) Ir. Circ. Rep. 76, a death bed confession by a third person that he, not the accused, had committed the murder charged was held inadmissible. Take note: in English jurisprudence, it is not admissible. It is only in American law that it became an exception to the hearsay rule. The general rule, as presently worded, is similar to the doctrine enunciated in that case.

Let’s analyze…

What could probably be the motives for the person to say ‘ako ang nipatay’ before he died? The situation envisioned under the rule as amended is that of a person who made a deathbed confession that he, and not another person accused in a case for unlawful killing, is the true culprit. (That’s an example in the last portion of the provision.) The rule makes it inadmissible as a general rule conceivably because of the following reasons: FIRST, a deathbed declaration confessing to the commission of a felony can be used as a convenient excuse for an accused who, otherwise, has no credible defense. For such reason, a supposed deathbed confession can easily be concocted either by the accused or by someone who has an interest in the acquittal of the accused. E.g. an accused is now standing trial for murder, and then suddenly he wants to present his wife who allegedly heard

SUMMARY DECLARATION AGAINST INTEREST A witness may testify only to those facts which General Rule he knows of his personal knowledge. The declaration made by a person deceased or Exception unable to testify against his interest is admissible. A statement tending to expose the declarant (katong namatay na) to criminal liability and Exception to the Exception offered to exculpate the accused is not admissible. Exception to The statement tending to expose the declarant the Exception to criminal liability and offered to exculpate the to the accused is admissible if corroborated by Exception circumstances clearly indicating the (if there’s such a trustworthiness of the statement. thing; for lack of a term so let’s call it like this )

Distinguish Admission against Interest from Declaration against interest LAZARO, ET AL. vs. AGUSTIN G.R. No. 152364, April 15, 2010 It has long been settled that these admissions are admissible even if they are hearsay. Indeed, there is a vital distinction between admissions against interest and declaration against interest. Admissions against interest are those made by a party to a litigation or by one in privity with or identified in legal interest with such party, and are admissible whether or not the declarant is available as a witness.

ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

EVIDENCE

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Declaration against interest is those made by a person who is neither a party nor in privity with a party to the suit, are secondary evidence and constitute an exception to the hearsay rule. They are admissible only when the declarant is unavailable as a witness. Thus, a man’s acts, conduct, and declaration, wherever made, if voluntary, are admissible against him, for the reason that it is fair to presume that they correspond with the truth, and it is his fault if they do not. Now, let’s go back to the question: Is there a specific rule in Philippine law about deathbed confessions? o YES. It is Section 40 of Rule 130 of the amended Rules (Declaration against Interest) which now mirrors Rule 804 of the Federal Rules. September 10 Part 1 | Fernandez OLD RULES Section 39. Act or declaration about pedigree — The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these fast occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. (33a) NEW RULES Section 41. Act or declaration about pedigree — The act or declaration of a person deceased or unable to testify, in respect to the pedigree of another person related to him or her by birth, adoption, or marriage or in the absence thereof, with whose family he or she was so intimately associated as to be likely to have accurate information concerning his information concerning his or her pedigree, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word “pedigree” includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. (39a) Discussion In this Section 41, again there is an out-of-court declaration that was relayed or heard by another person. It refers to the relationship of a certain person to another person who made the declaration in the first place. Situation: Prior to his death or prior to his inability to testify, that person says that this certain person is my relative or related to me. (This is relevant when we speak of hereditary rights.)

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REQUISITES: 1. The actor or declarant is dead and unable to testify; 2. The act or declaration is made by the person related to the subject by birth, adoption or marriage or with whose family he or she was so intimately associated as to be likely to have accurate information concerning his information concerning his or her pedigree; 3. The relationship between the declarant or the actor and the subject is shown by evidence other than such act or declaration (there must be corroborative evidence or evidence aliunde as to the putative relative); and 4. The act or declaration was made ANTE LITEM MOTAM (prior to the controversy) TWO MAJOR CHANGES FIRST, the rule now includes relationship by adoption. The factual situation covered by this intercalation to the Rules is an inquiry as to whether the person who claims a relationship with the family has actually been adopted. The declarant, before his death or unavailability, made a statement tending to prove or disprove the subject’s relationship to the family. Q: Who is this subject? A: That who the declarant refers to as his relative. He is the putative relative by reason of the declaration. The rule is not anymore limited to just relationship by birth or marriage. Included already is relationship by adoption. We need to remember, there are many instances of simulated birth and those of informal adoptions. As time passes, we do not know anymore if these persons or these putative relatives are actually officially adopted or that his birth was not simulated. SECOND, with whose family he or she was so intimately associated as to be likely to have accurate information concerning his information concerning his or her pedigree, This appears to be a recognition of the fact that, in Philippine culture, there are very close family acquaintances who are likely to know intimate family information including matters of pedigree. We are not talking with respect to the relatives only. The Rule has expanded the applicability of the exception to the hearsay rule to people who, Philippine culture have close family ties and acquaintances. And because of this knit-close relationship or those of close family acquaintances can actually make declarations in relation the pedigree or the relationship of the subject to the family in question. GENEALOGY a. A line of descent traced continuously from an ancestor. Simply, lineage. b. In the olden times, people really keep track of family lineage and write them down in family heirlooms. However, nowadays, what we know of our lineage comes specifically from mere oral traditions.

ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

EVIDENCE c.

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

An example of tracing common ancestry is the Bible, specifically the Gospel according to St. Matthew there is that portion where the lineage of Jesus Christ was traced beginning from Abraham.

BIRTH a. You do not really have personal knowledge of your birthday. Whatever you know about this was merely told to you, making it hearsay. b. Precisely, it falls under one of the exceptions of Hearsay Rule because no one would refute that as it is your relatives who most likely have accurate information relating to your date of birth. EXAMPLE Luis , at his death bed, confessed to Rayver that he is the father of Jessy’s child. He died 2 seconds later. During the settlement of his estate, Jessy appeared in court to assert the rights of her child with Luis and wanted to present Rayver to testify as to Luis’ admission of paternity. Q: Can the legitimate children of Luis object to the admissibility of Rayver’s testimony? A: Yes, on the ground that the testimony is hearsay. The witness is not Luis, because he is already dead but it is Rayver who merely heard Luis’ confession of being the father of Jessy’s child. Q: Should the court sustain the objection? A: Yes, if Jessy cannot present evidence other than the act or declaration of Luis that he is the father of her child. What is involved is merely a hearsay, hence there is the need to corroborate said declaration of Luis by evidence aliunde. Q: What should Jessy’s counsel do? A: Counsel can ask to have the testimony of Rayver regarding Luis’ statement conditionally admitted. Recall the concept of Conditional Admissibility: Evidence is admissible only in dependence upon other facts. It is received on the express assurance of counsel, when objection is manifested, that other facts will be duly presented at a suitable opportunity before the case is closed. Hence, “Your honor, may we have the testimony of Rayver regarding the statement or declaration of Luis conditionally admitted. We assure you your honor, that we will corroborate that later on with evidence other than declaration of Luis.” Q: Suppose the court conditionally admits the testimony of Rayver but Jessy is unable to present corroborative evidence, what is the remedy of her opponents? A: The opponents can move to strike the testimony on the ground that the condition for admitting the hearsay evidence was not fulfilled. BUT, if Jessy is able to present corroborative evidence, then it falls under the exceptions to the hearsay rule which is under Section 41 the act or declaration about pedigree.

NEPOMUCENO v. LOPEZ

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GR 181258, March 18, 2010 FACTS: Born on June 8, 1999, Arhbencel claimed to have begotten out of an extramarital affair of petitioner with Araceli; that petitioner refused to affix his signature on her Certificate of Birth; and that, by a handwritten note dated August 7, 1999, petitioner nevertheless obligated himself to give her financial support in the amount of P1, 500 on the 15th and 30th days of each month beginning August 15, 1999. ISSUE: Was the pedigree of Arhbencel sufficiently established? RULING: First, the Supreme Court summarized the rules as follows: 1. In Pe Lim v. CA, a case petitioner cites, we stated that the issue of paternity still has to be resolved by such conventional evidence as the relevant incriminating verbal and written acts by the putative father. 2. Under Article 278 of the New Civil Code, voluntary recognition by a parent shall be made in the record, or in any authentic writing. To be effective the claim of filiation must be made by the putative father himself and the writing must be the writing of the putative father. A notarial agreement to support a child whose filiation is admitted by the putative father was considered acceptable evidence. 3. Letters to the mother vowing to be a good father to the child and pictures of the putative father cuddling the child on various occasions, together with the certificate of live birth, proved filiation. However, in this case the putative father refuses to sign the certificate of live birth. 4.

A student permanent record, a written consent to the father’s operation, or a marriage contract where the putative father gave consent, cannot be taken as authentic writing. Standing alone, neither a certificate of baptism nor family pictures are sufficient to establish filiation.

The handwritten note in the case at bar reads: I, Ben-Hur C. Nepomuceno, hereby undertake to give and provide financial support in the amount of P1, 500.00 every fifteen and thirtieth day of each month for a total of P3, 000.00 a month starting Aug. 15, 1999, to Ahrbencel Ann Lopez, presently in the custody of her mother Araceli Lopez without the necessity of demand, subject to adjustment later depending on the needs of the child and my income. Q: Does it in any way contain a statement or a declaration that recognizes the child to be the child of Nepomuceno? HELD: No. The above quoted note does not contain any statement whatsoever about Arhbencel’s filiation to petitioner. It is, therefore not within the ambit of Article 172 (2) vis-à-vis Article 175 of the Family Code which admits as competent evidence of illegitimate filiation an admission of filiation in a private handwritten instrument signed by the parent concerned.

ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

EVIDENCE

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The note cannot also be accorded the same weight as the notarial agreement to support the child referred to in Herrera v. Alba for it is not even notarized. And Herrera instructs that the notarial agreement must be accompanied by the putative father’s admission of filiation to be an acceptable evidence of filiation. Here, however, not only has petitioner not admitted filiation through contemporaneous actions. He has consistently denied it. The only other documentary evidence submitted by Arhbencel, a copy of her Certificate of Birth, has no probative value to establish filiation to petitioner, the latter not having signed the same. Section 42. Family reputation or tradition regarding pedigree — The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity, or adoption. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree. (40a) Both Sections 41 and 42 relate to family relationships/genealogy or pedigree. Except that in Section 42 there is a slight important difference between the said 2 provisions. REQUISITES: 1. There is controversy in respect to the pedigree of any member of the family; 2. The reputation or tradition of the pedigree of the person concerned existed (ANTE LITEM MORTAM) previous to the controversy; and 3. The witness testifying to the reputation or tradition regarding pedigree of the person concerned must be a member of the family of said person either by consanguinity, affinity or adoption.

September 10 Part 2 | Jamero TWO PARTS 1. Testimonial Evidence of Pedigree (testimony of a family member) 2. Documentary or Object Evidence of Pedigree (entries in family bibles or other family books or charts, engravings on rings, family portraits and the like) TESTIMONY Recall the case of People vs. Pruna and read the case of People vs. Sariego, GR No. 203322, February 24, 2026, on the matter of proving the age of the offended party in cases of rape where his or her age is a qualifying or aggravating circumstance. People vs. Sariego, G.R. No. 203322, February 24, 2026 If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if

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clear and credible, of the victim’s mother or any member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130, shall be sufficient under the following circumstances: a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. In the absence of a certificate of live birth, authentic document, or the testimony of the victim's mother or relatives concerning the victim's age, the complainant's testimony will suffice provided that it is expressly and clearly admitted by the accused. (Why must it be admitted by the accused? Take note that the complainant’s testimony relating to her age is hearsay—no personal knowledge as to when she got out of her mother’s womb.) FAMILY BIBLES Not every Bible belonging to a family, even if handed down from generation to generation, can be considered as proof of pedigree under Section 42. It will be admissible only if it is a Bible that has spaces or notations reserved for recording of important family events. ENGRAVINGS ON RINGS Usually, name (spouse) and date of the wedding is engraved on the wedding rings. It is an heirloom passed from one generation to another. What if you want to prove 50 years from now that a certain Ms. Igbalic was married to a certain Mr. Cerro on a particular date— Dec. 2019, but you have no other proof? Engravings on rings can be used even if nobody has personal knowledge of that anymore (as it is 50-60 years from now when all of us have probably gotten back to dust.) FAMILY PORTRAITS (JZE shows a B&W family portrait of a man, a woman, and their daughter. Daughter was already dead when they took the family portrait, posing as if she is still alive.) If you wanted to prove that this girl is the daughter of Mr. X and Mrs. Y, the family portrait can be used. DOCUMENTARY/OBJECT EVIDENCE Q: Can the following private documents be considered under the 2nd part of Section 42: Letters of introduction to possible relatives; recommendation letter for employment from a putative relative; photograph taken at a birthday party; letter of introduction from Former Vice President Fernando Lopez (relative of the putative father) addressed to then United States Consul Vernon McAnnich.

ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

A: NO (Jison vs. CA) It must be in the nature of a family heirloom, or a family possession, or a family’s joint statement of its belief as to the pedigree of a person. JISON vs. COURT OF APPEALS, G.R. No. 124853, February 24, 1998 The second portion of this provision [Documentary/Object Evidence], in light of the rule of ejusdem generis, is limited to objects which are commonly known as family possessions, or those articles which represent, in effect, a family’s joint statement of its belief as to the pedigree of a person. These have been described as objects openly exhibited and well known to the family, or those which, if preserved in a family, may be regarded as giving a family tradition. Other examples of these objects which are regarded as reflective of a family’s reputation or tradition regarding pedigree are inscriptions on tombstones, monuments or coffin plates. Plainly then, the Exhibits, as private documents not constituting "family possessions" as discussed above, may not be admitted on the basis of Rule 130, Section 40 (now Section 42). Example: In a case, ingon nila ninong niya ang isa niya nga uncle. Is that enough to prove pedigree na nipirma sa iyahang baptismal certificate ang iyahang putative na uncle? If you use Jison vs. CA, of course not because it cannot be considered a family’s joint statement of its belief as to the pedigree of a person. It has to be a family’s joint statement, common ang belief na atoa ning parente si A, or B, or C. TOMBSTONES You wanted to prove a certain Gerald Anderson existed, but you don't have his birth certificate anymore. Your only evidence would be a photograph of his tombstone: born March 21, 1885; died April 16, 1918. Kinsa man nagpabuhat anang tombstone, syempre ang family. When they stated the date of birth and date of death, it is a family’s joint statement of its belief as to the pedigree of a person. Remember, pedigree includes date of birth and date of death., place and time which it takes place. MONUMENTS and COFFIN PLATES (shows a Coffin Plate: Seth Harding; Died Sept. 29, 1868; Age: 88.) That used to be very prevalent before in the US, Great Britain, and later on Philipines. Now, instead of a coffin plate, (shows casket ribbon banners: alaala ng mga magulang xxx) Can that be considered as document/object evidence of pedigree? It is definitely a joint statement of the family’s belief as to the pedigree of the person. Kanang gihaya diha amoa nang relative.

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Kami tanan nakabutang diri, mga igsuon mi, mga apo ni sila tanan or mga anak ni sila tanan. But the question is, is it in the nature of a family heirloom or family possession that is kept? No. It may be an admission/a statement of the family’s belief BUT it’s not in the nature of a family heirloom or family possession. But if wala jud ko lain evidence, I will take a photograph of that and present it in court. Section 41 Act or declaration about pedigree Witness need not be a member of the family Relation of the declarant and the person subject of the inquiry must be established by independent evidence

Testimony is about what the declarant, who is dead or unable to testify, has said concerning the pedigree of the family

Section 42 Family reputation or tradition regarding pedigree Witness is a member of the family The witness is the one to whom the fact [of pedigree] relates, it is not necessary for him to establish by independent evidence his relationship to the family Testimony is about family reputation or tradition covering matters of pedigree

FINAL NOTE It is the common reputation in the family, and not the common reputation in community, that is a material element of evidence which establishes pedigree. Thus, matters of pedigree may be proved by reputation in the family, and not by reputation in the neighborhood or vicinity, except where the pedigree in question is marriage which may be proved by common reputation in the community. IMPORTANT CASES

TECSON EL AL vs. COMELEC, FPJ GR Nos. 161434, 161634 & 161824, March 3, 2004 What proof of pedigree allowed FPJ to run for president despite questions regarding his citizenship? The proof of filiation or paternity for purposes of determining his citizenship status should thus be deemed independent from and not inextricably tied up with that prescribed for civil law purposes. The Civil Code or Family Code provisions on proof of filiation or paternity, although good law, do not have preclusive effects on matters alien to personal and family relations. The ordinary rules on evidence could well and should govern. For instance, the matter about pedigree is not necessarily precluded from being applicable by the Civil Code or Family Code provisions.

ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

EVIDENCE

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For the Sec. 39 (now Sec. 41), Rule 130 of the Rules of Court to apply, it would be necessary that (a) the declarant is already dead or unable to testify, (b) the pedigree of a person must be at issue, (c) the declarant must be a relative of the person whose pedigree is in question, (d) declaration must be made before the controversy has occurred, and (e) the relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such act or declaration. Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of Bessie Kelley Poe submitted as Exhibit 20 before the COMELEC, might be accepted to prove the acts of Allan F. Poe, recognizing his own paternal relationship with FPJ, i.e, living together with Bessie Kelley and his children (including respondent FPJ) in one house, and as one family. TISON vs. COURT OF APPEALS G.R. No. 121027, July 31, 1997

Read this for Sections 41 and 42

This is a case of an action for reconveyance of a parcel of land and an apartment. Teodora Guerrero died and left a parcel of land and an apartment. Her husband Martin Guerrero adjudicates the said land to him and consequently sold to Teodora Domingo. The nephews and nieces Tison et al seek to inherit by right of representation from the property disputed property presenting documentary evidence to prove filial relation. The respondent contended that the documents/evidence presented is inadmissible for being hearsay since the affiants were never presented for crossexamination. ISSUE: WON the evidence presented is hearsay evidence and is inadmissible. HELD: The general rule, therefore, is that where the party claiming seeks recovery against a relative common to both claimant and declarant, but not from the declarant himself or the declarant's estate, the relationship of the declarant to the common relative may not be proved by the declaration itself. There must be some independent proof of this fact. As an exception, the requirement that there be other proof than the declarations of the declarant as to the relationship, does not apply where it is sought to reach the estate of the declarant himself and not merely to establish a right through his declarations to the property of some other member of the family. We are sufficiently convinced, and so hold, that the present case is one instance where the general requirement on evidence aliunde may be relaxed. Petitioners are claiming a right to part of the estate of the declarant herself. Conformably, the declaration made by Teodora Dezoller Guerrero that petitioner Corazon is her niece, is admissible and constitutes sufficient proof of such relationship, notwithstanding the fact that there was no other preliminary evidence thereof, the reason being such declaration is rendered

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competent by virtue of the necessity of receiving such evidence to avoid a failure of justice. More importantly, there is in the present case an absolute failure by all and sundry to refute that declaration made by the decedent. From the foregoing disquisitions, it may thus be safely concluded, on the sole basis of the decedent's declaration and without need for further proof thereof, that petitioners are the niece and nephew of Teodora Dezoller Guerrero. As held in one case, where the subject of the declaration is the declarant's own relationship to another person, it seems absurb to require, as a foundation for the admission of the declaration, proof of the very fact which the declaration is offered to establish. The preliminary proof would render the main evidence unnecessary. Applying the general rule in the present case would nonetheless produce the same result. For while the documentary evidence submitted by petitioners do not strictly conform to the rules on their admissibility, we are however of the considered opinion that the same may be admitted by reason of private respondent's failure to interpose any timely objection thereto at the time they were being offered in evidence. It is elementary that an objection shall be made at the time when an alleged inadmissible document is offered in evidence, otherwise, the objection shall be treated as waived, since the right to object is merely a privilege which the party may waive. As explained in Abrenica vs. Gonda, et al., it has been repeatedly laid down as a rule of evidence that a protest or objection against the admission of any evidence must be made at the proper time, otherwise it will be deemed to have been waived. The proper time is when from the question addressed to the witness, or from the answer thereto, or from the presentation of the proof, the inadmissibility of the evidence is, or may be inferred. Thus, a failure to except to the evidence because it does not conform with the statute is a waiver if the provisions of the law. That objection to a question put to a witness must be made at the time the question is asked. An objection to the admission of evidence on the ground of incompetency, taken after the testimony has been given, is too late. Thus, for instance, failure to object to parol evidence given on the stand, where the party is in a position to object, is a waiver of any objections thereto. The situation is aggravated by the fact that counsel for private respondent unreservedly cross-examined petitioners, as the lone witness, on the documentary evidence that were offered. At no time was the issue of the supposed inadmissibility thereof, or the possible basis for objection thereto, ever raised. Instead, private respondent's counsel elicited answers from the witness on the circumstances and regularity of her obtention of said documents: The observations later made by private respondent in her comment to petitioners' offer of exhibits, although the grounds therefor were already apparent at the time these documents were being adduced in evidence during the testimony of Corazon Dezoller Tison but which objections were not timely raised therein, may no longer serve to

ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

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rectify the legal consequences which resulted therefrom. Hence, even assuming ex gratia argumenti that these documents are inadmissible for being hearsay, but on account of herein private respondent's failure to object thereto, the same may be admitted and considered as sufficient to prove the facts therein asserted. Accordingly, the Certificate of Marriage (Exhibit S) wherein it is indicated that the parents of Teodora Dezoller are Isabelo Dezoller and Cecilia Calpo, as well as the Certificates of Baptism of Teodora Dezoller (Exhibit H) and Hermogenes Dezoller (Exhibit J) which both reflect the names of their parents as Isabelo Dezoller and Cecilia Calpo, to show that Hermogenes Dezoller is the brother of Teodora Dezoller Guerrero; and the Death Certificate of Hermogenes Dezoller (Exhibit K) the entries wherein were made by petitioner Corazon Dezoller Tison as his daughter, together with the Joint Affidavits of Pablo Verzosa and Meliton Sitjar (Exhibits N and P), to prove that herein petitioners are the children of Hermogenes Dezoller — these can be deemed to have sufficiently established the relationship between the declarant and herein petitioners. This is in consonance with the rule that a prima facie showing is sufficient and that only slight proof of the relationship is required. Finally, it may not be amiss to consider as in the nature of circumstantial evidence the fact that both the declarant and the claimants, who are the subject of the declaration, bear the surname Dezoller. COMMON REPUTATION [as an exception to the hearsay rule] OLD RULE

Section 41. Common reputation. — Common reputation existing

previous to the controversy, respecting facts of public or general interest more than thirty years old, 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. (35) September 10 Part 3 | Macacua NEW RULE

Section 43. Common reputation. – Common reputation existing previous to the controversy, as to boundaries of customs affecting lands in the community and reputation as events of general history important to the community, respecting marriage or moral character, may be given evidence.

or to or in

Example: Uyanguren, Sandawa, Magallanes JZE: Do you know where Uyanguren Street is? Where is Sandawa? Do you know where Magallanes is? Officially, there is no Uyanguren St, Sandawa St, Magallanes St in Davao City. At least, not anymore. Actually, Uyanguren is Ramon

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Magsaysay Avenue. Sandawa is actually Guillermo E. Torres St, named after founder of UM, and Magallanes St is actually Pichon St. Ngano kabalo man ta? Why? Because of Section 43. You want to prove where Magallanes is. You just know, why? Because it’s common reputation existing in the community. Everybody knows that when you are talking about Uyanguren St, you are actually talking about Ramon Magsaysay Avenue. Everybody knows that. Karon, giklaro. Apil na siya sa section 43, boundaries of or customs affecting lands in the community, reputation as to events of general history important to the community. Example: Tree of Rizal When I went to Laguna. I had a case there. I was looking for the Register of Deeds in Calamba, Laguna. We all know that diha man natawo si Rizal. Nangutana kog pedicaber, ang gitubag puno ni Rizal. Meaning, ang puno na ginakatkat ni Rizal tong bata pa siya. Everybody knew where that in puno ni Rizal is in Calamba, Laguna. Explanation Why is this hearsay? Kabalo ba ta kinsa ang source sa information? Kabalo ba ta kinsa ang naghingalan anang Magallanes, Uyanguren kaniadto? Wala ta kabalo. That’s a long time ago. And yet, everbody accepts it as truth. It is necessary to accept this as an exception to the hearsay rule, because we do not know the original source of information. Original source of information is gone, dugay na nang patay. It is trustworthy because everybody seems to believe it and accept it as true. WHAT IS COMMON REPUTATION? It is the definite opinion of the community in which the fact to be proved is known or exists. It means the general or substantially undivided reputation, as distinguished from a partial or qualified one, although it need not be unanimous. (Regalado, Vol. II, p. 787, 2008 ed. General Rule: The reputation of a person should be that existing in the place of his residence; it may also be that existing in the place where he is best known. In Davao City, kinsa ang pinakasikat? Rodrigo Roa Duterte. He is famous. He is notorious in a good way. What is his reputation in his place of residence? That he is a good man. REQUISITES 1. The facts must be of public or general interest as to boundaries of or customs affecting lands in the community and reputation as to events of general history important to the community, or respecting marriage or moral character; 2. The reputation must have been one formed among a class of persons who were in a position to have some sources of

ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

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information and to contribute intelligently to the formation of the opinion; and The common reputation must have been existing previous to the controversy. We do not know who but we know as to the class of persons. For example, mga taga Davao or taga Laguna. Again, must have been existing previous to the controversy or ante litem motam.

EXAM TIP What if mag ask ko sa inyong exam, in what instances is ante litem motam mentioned in the Rules of Court? Previous to the controversy, mao na ang ante litem motam. Pag muingon kog evidence aliunde, mao pod na ang other act or declaration. Rationale Evidence of common reputation is admissible on grounds of NECESSITY and TRUSTWORTHINESS. It is necessary to admit into evidence because of the inherent difficulty in obtaining evidence than that can be taken from common reputation. It is trustworthy because of: 1) The presumption that the public is conversant with the fact to be proved because of their general interest in them; and 2) The fact that any error in such evidence can easily be corrected by other testimony due to the public’s interest in such fact. All exceptions to the hearsay rule, and iyang rationale will always be necessity and trustworthiness. TRACKING THE CHANGES 1. Deletion of the period of thirty (30) years. There is no longer any need to prove that the matter of common reputation is “ancient”. This change in the rule reflects the fact that the common reputation can be formed within a community for a lesser period of time than thirty (30) years. JZE: Wala na tay ancient period, but naa tay ancient document. CROSS REFERENCE

Rule 132, Sec. 21. When evidence of authenticity of private document not necessary. Where a private document is more than thirty (30) years old, is produced from a custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given. When the rules, prior to amendment, spoke about the term “ancient”, there was a time period fixed as more than “thirty years old”.

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The rules now, as amended, only has one “ancient provision” which is Rule 132, Section 21. 2.

Insertion of “as to boundaries of or customs affecting lands in the community and reputation as to events of general history important to the community”. In relation to boundaries of or customs affecting lands in the community, there is an important correlation to be made. Recall that we have the Indigenous People’s Right Act of 1997 (RA 8371) which defined Ancestral Domains.

JZE: Unsa bay proof sa mga Indigenous Cultural Communities or Indigenous People na ilaha jud nang ancient hunting grounds or that belong to their community as time immemorial? Naa ba tay mapa diha? Cadastral survey? Wala. It’s usually just word of mouth. In other words, common reputation ra. Take note that, with respect to what constitutes ancestral domain, ICCs or IPs do not have direct evidence as to their claims thereto. Their evidence would normally consist in oral traditions passed down from generation to generation. This illustrates perfectly common reputation. The actual source of the information is no longer available (NECESSITY) but, while the information is technically hearsay, it is reliable (TRUSTWORTHINESS) being information that is of general history important to the community. COMMON REPUTATION REGARDING MARRIAGE Attendance in weddings and baptisms where a man and a woman purport themselves to be husband and wife is evidence of common reputation regarding marriage. (Trinidad vs Court of Appeals) COMMON REPUTATION REGARDING MORAL CHARACTER Settled is the principle that evidence of one’s character or reputation must be confined to a time not too much remote from the time in question. In other words, what is to be determined is the character or reputation of the person at the time of the trial and prior thereto, but not at a period remote from the commencement of the suit. Hence, to say that a person’s credibility is diminished by proofs of tarnished reputation existig almost a decade ago is unreasonable. It is unfair to presume that a person who has wandered from the path of moral righteousness can never retrace his steps again. Certainly, every person is capable to change or reform. (Civil Service Comission vs

Belagan, October 19, 2004)

RES GESTAE Res Gestae means “things done” OLD RULE

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TWO (2) EXCEPTIONS: a. First sentence (startling occurrences) b. Second Sentence Startling occurrences You see something, out of the ordinary, spontaneous reaction is considered as part of res gestae, even if the declarant is not available to testify in court. That’s an exception to the hearsay rule. September 10 Part 4 | Maglinte NEW RULE

REQUISITES: 1. The principal act, the res gestae, is a startling occurrence; Something ordinary or you do not see every day. (e.g., earthquake) 2. The statements were made before the declarant had time to contrive or devise; and 3. The statements concern the occurrence in question and its immediately attending circumstances. (People v. Guting, GR

No. 205412, September 9, 2015)

Startling Occurrence Take note that there is no standard form of human behavior in response to a shocking incident, a startling occurence or a frightful experience. The workings of the human mind under emotional stress are unpredictable, such that people react differently to similar situations: some may be shocked into insensibility; others may welcome the intrusion.

Sec. 44. Part of the res gestae. – Statements made by a person

while a startling occurrence taking place or immediately prior or subsequent thereto, under the stress of excitement caused by the occurrence with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance may be received as part of the res gestate.

Mas giklaro siya tung sa “under the stress of excitement” caused by the occurrence. You need to know that phraseology. What gives you stress of excitement? Probably recitations during Persons.

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Excited Utterances

Section 42. Part of res gestae. Statements made by a person while starting occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae.

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MANULAT v. PEOPLE GR NO. 190892, August 17, 2015 Two tests in applying the res gestae rule: (a) The act, declaration or exclamation is so intimately interwoven or connected with the principal face or event that it characterizes as to be regarded as part of the transaction itself; (b) The said evidence clearly negatives any premeditation or purpose to manufacture testimony (ELEMENT OF SPONTANEITY).

Necessity and Trustworthiness There is necessity because, due to the unavailability of the declarant, there is otherwise no way to know the existence and condition of the declarant. There is trustworthiness because the exception presupposes a declaration made out of instinct and spontaneity and the lack of opportunity to contrive or concoct a story.

Spontaneity There is no hard and fast rule by which spontaneity may be determined although a number of factors have been considered, including but not always confined to:

Example:

2. 3. 4.

The thing is, when you react spontaneously startling occurrence, act out of instinct spontaneously. That is a startling occurrence.

Naay nihapak sa imoha tas sakit, maghuna-huna pa ba ka kung unsa imong reaction to it? Agay? Aguroy? Ouch?

What are admissible as part of the res gestae? Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto under the stress of excitement caused by the occurrence with respect to the circumstances thereof; and Statements accompanying an equivocal act material to the issue and giving it legal significance.

The time that lapsed between the occurrence of the act or transaction and the making of the statement; The place where the statement is made; The condition of the declarant when the utterance is given; The presence or absence of intervening events between the audience and the statement relative thereto; The nature and circumstances of the statement itself.

Distinguish the 2 main exceptions to the hearsay rule DYING DECLARATION RES GESTAE a sense of impending death It is the event itself which takes the place of an oath and speaks the law regards the declarant through the person’s as testifying reaction of the event can be made by the victim only may be made by the victim, or the killer or during the killing or by a third person.

FIRST PART ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

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said: “my god, gipusil nako si A”. A 3rd Killer

person can testify that it was said by the killer. Confined to matters, occurring after the homicidal act. It concerns the cause and the circumstances surrounding the declarant’s death

Justified by trustworthiness being given by the person who was aware of his impending death. Equivalent to an oath in court Declarant must die

May precede, or accompany or follow a principal act. Precede – hapit na ta

mabangga

Accompany

Principal

na ta

–mabangga act

–

nabangga na gyud ta

Justification is the spontaneity of the statement. Not time to devise or contrive

Declarant did not die. A statement is inadmissible as DD may be admissible as part of the RG. Multiple admissibility of evidence

SECOND PART verbal acts (statements accompanying the equivocal acts) Equivocal means ambiguous; capable of different interpretations.

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Requisites 1. The fact or occurrence characterized must be equivocal; 2. The verbal acts must characterize or explain the equivocal act; 3. The equivocal act must be relevant to the issue; and 4. The verbal acts must be contemporaneous with the equivocal act. Distinguish the two different parts of the res gestae Excited Utterances Verbal Acts Principal fact is a startling Principal act is an equivocal act occurrence Statement may precede, Statement must accompany accompany or succeed the the equivocal act. startling occurrence. The statement need not Statement must explain the necessarily explain the principal fact and give it legal principal fact. significance CASES: Golden (Iloilo) v. Pre-Stress GR No. 176768, January 12, 2009 Res Gestae in a civil case for replevin People v. Sace GR No. 178063, April 5, 2010 The res gestate statement may come from the accused himself Marturillas v. People GR No. 163217, April 18, 2006 The shooting itself is a startling occurrence

Example: I give P1, 000 pesos to a student and she received it. What could be the possible reason? It can be a donation, payment for services rendered, to borrow money, payment of loan. The act is capable of different interpretations.

What prevails between res gestate and positive identification?

EQUIVOCAL/VERBAL ACTS: A witness testifies on the stand for the plaintiff in a collection case where the defendant denies having borrowed P10, 000 from the plaintiff. The debt is not evidenced by a promissory note because the plaintiff claims that the defendant had orally borrowed money from him in the past and had always paid. This time he refuses to pay. The witness testifies that one year ago, he saw the plaintiff give money to the defendant. And he heard the plaintiff said that: ”here’s the money you are borrowing from me.” Further, he said that he heard the defendant say: “Thank you, I will pay you one year after.” [Here, the equivocal act of handing money was given significance by the statement of the plaintiff.]

According to Leandro Lachica, Grand Archon of Sigma Rho Fraternity, he looked around when Venturina Shouted, and he saw about 10 men charging toward them. The men were armed with basketball hats and lead pipes, and their heads were covered with either handkerchiefs or shirts. Within a few seconds, five of the men started attacking him with their lead pipes. During the attack, he recognized one the attackers as Robert Beltran Alvir because his mask fell off. Other members of Sigma Rho were able to identify some of the attackers, members of the Scintilla Juris Fraternity, allegedly because some of the attackers either took off their masks, or some of them did not wear masks at all.

So somebody who heard it can testify under section 44 as an exception to the hearsay rule to prove that there was a debt.

According to the testimony of U.P. Police Officer Salvador, when he arrived at the scene, he interviewed the bystanders who all told him that they could not recognize the attackers since they were all

People v. Feliciano GR No. 196735, May 5, 2014

(Comment: This will come out in the bar exam soon).

ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

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masked. This, it is argued, could be evidence that could be given as part of the res gestae. September 10 Part 5 | Ugdang He interviewed and said that the bystanders were eating and so, what happened? And everyone told him that they could not recognize the attackers since they were all masked. And remember that the attack can be considered as a startling occurrence and their statements saying that they could not recognized the attackers because they were all masked can be considered as a spontaneous statement. An excited utterance which is part of the res gestae But, remember again, according to the members of the Sigma, they had identified that they were members of sestira juris kai which their masks were removed which is of course in opposition to what the bystanders were saying, and therefore we could not identify them. WHY IS IT IMPORTANT? If the res gestae statements were to be admitted and believed, it may cast reasonable doubt on the supposed positive identification of the accused by the victims. Remember these are both law fraternities, so the elders would help the fellow members, it was actually a legal battle coming from a useless frat war. HELD: The SC said that there is no doubt that the sudden attack on a group peacefully eating lunch on a school campus is a startling occurrence. Considering that the statements of the bystanders were made immediately after the startling occurrence, they are, in fact, admissible as evidence given in res gestae. PEOPLE v. ALBARIDO This court has stated that “in accord to the ordinary human experience” x x x persons who witness an event perceive the same from their respective points of reference. Therefore, almost always they have different accounts of how it happened. Certainly, we cannot expect the testimony of the witnesses to a crime to be consistent in all aspects because different persons have different impressions and recollections of the same incident. The statements made by the bystanders, although admissible, have little persuasive value since the bystanders could have seen the events transpiring at different vantage points and at different points in time. Even Frisco Capilo, one of the bystanders at the time of the

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attack, testified that the attackers had their masks on at first, but later on, some remained masked and some were unmasked. When the bystanders’ testimonies are weighed against those of the victims who witnessed the entirety of the incident from the beginning to end at close range, the former become merely corroborative of the fact that an attack occurred. Their account of the incident, therefore, must be given considerably less weight than that of the victims. It’s a case of positive identification overriding an exception of the hearsay rule which is the res gestae exception. PEOPLE v. PASCUAL GR no. 172326 The statement of the accused-appellant’s wife, Divina, immediately after the fateful incident all the more convince the court as to accused-appellant’s guilt. Part of the res gestae and admissible in evidence as an exception to the hearsay rule were Divina’s utterances to Gorospe after seeing the dead and raped body of the victim. i.e “may nagyari sa itaas at galing doon si Boyet” and her subsequent narration of seeing the accused-appellant going out of the victim’s room and running away therefrom. BUSINESS RECORDS EXCEPTION (OLD RULE) REPLACED BY RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY

Section 45. Records of regularly conducted business activity – A memorandum, report, record or date compilation of acts, events, conditions, opinions, or diagnoses, made by writing typing, electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is expected from the rule on hearsay evidence (43a) Makahangak. How many words are there? We can have it into several sentences. How can we understand it? we must simplify. First, why are business records admitted? Based on necessity and trustworthiness. Remember that all exceptions to the hearsay rule are based on NECESSITY and TRUSTWORTHINESS. How does this apply to this current iteration of the business records exception?

ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

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NECESSITY Take note that the witness who testifies here is either the custodian of the records or another qualified witness. It presupposes either of

the two situations:

There are so many entrants that it would be impractical to make them all testify as to each individual stage that resulted in the creation of the business record or compilation; (i.e they have a certain process in the issuance of checks, they go to another department to make a purchase order and another to issue the check, voucher and etc. they have so much entrants, they all have to testify?) or The actual entrant or entrants are unavailable to testify due to death or personnel changes. (say for example, 5 years ago ang business entry, is it probable to suppose that those who made the entry has been dead, resigned, or terminated, it is possible that the current person is the custodian but not in the preparation for the record – it is necessary because of these sitations)

TRUSTWORTHINESS The business records are deemed reliable because they are made by ROTE AND REPETITION (pabalik-balik) in the regular course or conduct of a business activity, and which was the regular practice of the business. Trustworthiness is also a result of the operation of the presumption of regularity of private transactions. Like everyday you are an accounting clerk, everyday you prepare vouchers. Day in and day out that is all you do. Is it reasonable to suppose that you do these things over and over again? That is ROTE and REPETITION and that’s what makes it trustworthy and trustworthiness is what a result of the operation of the REGULARITY OF PRIVATE TRANSACTIONS. DUTCH BOY v. SENIEL GR no. 170008 Whoever alleges fraud or mistake affecting a transaction must substantiate it, since it is presumed that a person takes ordinary care of his concerns, and that private transactions have been fair and regular.

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The entries were made at or near the time of or from transmission or supply of information by a person with knowledge thereof; The entrant or entrants were in a position to know the facts stated in the entries; The entries were made in their professional or in the performance of a duty, whether legal, contractual, moral or religious; and The entries were made and kept in the regular course of regular course or conduct of a business activity.

These are the new requisites that we need to remember. The entrant had personal knowledge when he made the entry or at that time when somebody told him to make the entry. For example, somebody told him to make an entry because they had made 10k purchases and he did it. but the problem is that entrant is no longer available to testify. So, who will testify? You make the records testify. You ask somebody else to sponsor that document and testify about it in court. That’s what you do. REPUBLIC v. MANGOTARA The admissibility of baptismal certificate absent the testimony of the officiating priest or the official recorder, was settled thus – Xxx the entries made in the registry book may be considered as entries made in the course of the business under Sec. 43 of rule 130. Which is an exception to the hearsay rule. The baptisms administered by the church are one of its transactions in the exercise of ecclesiastical duties and recorded in the book of the church during the course of its business. Who made the entry? The priest. Is the priest still available? Its quite possible, that the priest is already dead. So, there is no need to present that actual celebrant of the sacrament of baptism.

Good faith is always presumed, and it is the burden of the party claiming otherwise to adduce clear and convincing evidence to the contrary.

IS THERE AN INSTANCE WHERE BUSINESS ENTRIES MAY BE ADMITTED IN EVIDENCE EVEN WHEN THE DECLARANT IS ALIVE? Yes, pwede. But not as an exception... the entries will not be admitted as an exception to the hearsay rule, but they may nevertheless be availed of by said entrant as a memorandum to refresh his memory while testifying on the transaction reflected therein.

NEW REQUISITES 1. The person who made the entry must be dead or unable to testify;

We will discuss that when we reach Rule 132. As to those which are recorded…? As past recollection recorded, present memory revived. Weird but may come out in the bar. HOW REBUT BUSINESS RECORD EXCEPTION?

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Take note, that the rules merely assure admissibility and not probative value of the business records exception. Hence, any rebuttal evidence ought to address the trustworthiness of the business record. It is possible to diminish the probative value of the business record by proving that there was a deviation from the regular practice, course or conduct of a business activity. ENTRIES IN OFFICIAL RECORDS

Sec. 46. Entries in official records. – entries in official records made in the performance of his or her duty by the public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. It is an exception of the hearsay rule. REQUISITES 1. The entry was made by the public officer or by another person specially enjoined by law to do so; (it is part of his duty) 2. The entry was made by the public officer in the performance of his duties, or by such other person in the performance of a duty specially enjoined by law; and 3. The public officer or other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information. EXAMPLE People v Mayingque GR no. 179709 Anatomical sketches, medico-legal report. It could be possible that the officer who made the medico legal report has been transported to another region. It is possible that in court, it is not the one who prepared the medico-legal report could be presented. Will that be inadmissible? NO. it is still admissible as an exception to the hearsay rule. People v. Presas GR no. 182525 Report of an official forensic chemist regarding a recovered prohibited drug. What if the forensic chemist has been transferred or reassigned or assassinated? Can you not present the evidence? NO. It is still allowed. Under the exception to the hearsay rule. People v. San Gabriel GR no.107735 Advance information sheet, police blotter and other police reports.

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What if the one who entered the blotter of the person reporting is not the one… or let us say he was reassigned to another office? What will happen? You cannot present the blotter? It is allowed as an exception to the hearsay rule. Just read this case. DST Movers v. People’s General Insurance GR no. 198627 The MTC, the RTC, and the Court of Appeals upheld a police report as an exception to the hearsay rule. They maintain that it is admissible as prima facie evidence of the facts it states. However, during trial, it was admitted that neither the witness nor the person who supposedly reported the events gave a testimony in support of the report. HELD: The following requisites must be present: 1. That the entry was made by a public officer or by another person specially enjoined by law to do so; 2. That it was made by the public officer in the performance of his duties, or by such other person in the performance of a duty specially enjoined by law; and 3. that the public officer or other person had sufficient knowledge of the facts by him stated which must have been acquired by him personally or through official information Take note of the last requisite here. So, the person who made the record in the public entry should have known or should have had acquired some personal knowledge of it or personal information. If without the same it is not allowed. The exception will not be applicable. COMMERCIAL LISTS (Unchanged)

Sec. 47. Commercial lists and the like – Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein (45) So, what is this? It is an exception to the hearsay rule which has the following requisites. REQUISITES 1. it is the statement of matters of interest to persons engaged in an occupation (it has to be specialized); 2. such statements is contained in a list, register, periodical or other published compilation;

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said compilation is published for the use of persons engaged in that occupation; and 4. it is generally used and relied upon by persons in the same occupation So you are using these commercial lists as habitual reference. A particular business or occupation. CASES The problem with these cases are it will tell you what are NOT but it will not tell you what are commercial lists. PNOC v. CA GR no. 107518 Excludes mere price quotations or replies to queries as to costs. This is collision case, the ship was broken and a case was filed for damages for the repairs. How will he prove a cost for repairs? They asked for prices from contractors for quotations. So, the persons they called compiled the price quotations. And based on those, that was the amount that they wanted defendant to pay. September 10 Part 6 | Rojo Nadaot ang barko, so mag file siya karun ug kaso, for damages for the repair of the barko. How does he intend to prove the cost for repairs na gusto niya ipa bayaran sa defendant? Ang g’buhat nila is nanawag sa mga possible contractors and asked for price quotations. So, katong gpang tawagan nila, they compiled the said price quotations and based on that price quotations that was the amount of damages that they want for the defendant to pay. The defendant objected, that is not the probative of the cost of repairs or the damages that they have suffered considering that, it is technically speaking, hearsay. Wala man nag appear sa court ang mga nag submit ug price quotations. Now, according to the plaintiff here that ang tawag ana is commercial list. According to the Supreme Court, it is not commercial list, price quotations lang na siya that you just compiled. Meralco vs. Secretary of Labor G.R. No. 127598, February 22, 2000

“Excludes mere newspaper accounts” Newspaper clippings on minimum wage rate, regional cost of living allowances. Gusto nila gamiton ang newspaper accounts or newspaper clippings.to prove kung pila dapat ang ibayad na na cost of living allowance.

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Then, nag ingon sila na, wala g’present ang nag publish sa newspaper. Ana pud ang pikas, commercial list siya which is an exception to the hearsay rule. The Supreme Court said, NO, that is not a commercial list. Because there should be the element of habituality. It should be habitually used by persons engaged in a particular occupation. According to Francisco these are the examples: What are the examples of commercial lists and the like? 1. Trade journals reporting current prices and other market data; Like, stock exchange indexes. 2. Mortality tables compiled for life insurance; Under insurance law, and maybe in torts and damages. 3. Abstracts of title compiled by reputable title examining institutions or individuals; or I have seen this from the belongings of my deceased grandfather who used to be a surveyor, he had abstracts of title 4. Business directories, animal pedigree registers, and the like. (Francisco, o. 339, 1992 ed.)

Section 48. Learned treatises. – A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a 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 or her profession or calling as expert in the subject. (46a) Perfect example there would be medical textbooks or medical treatises. What’s the most famous medical treatise that we know? Gray’s Anatomy. It is actually a book. everybody would know, you quote from Gray’s anatomy about, the anatomy of a human person in a case for a medical malpractice or medical negligence. Do you need to present the author? Dugay na siya patay. But, can it still be admissible even if the author is not there, when he is clearly an expert in the subject? Yes, Section 48 learned treatises. When are learned treatises admissible? 1. When the court can take judicial notice of them; or 2. When an expert witness testifies that the author of such recognized as expert in that profession. (Sec. 48)

Examples: 1. 2. 3.

Historical works; Scientific treatises; or Law (Francisco, pp. 340-341, 1992 ed.)

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I do not agree with number 3 law, because it is always subject to interpretations and peculiar backdrop of the case. You cannot present law as an evidence because it is something that the court already take judicial notice of. Testimony or deposition at a former proceeding

Section 49. Testimony or deposition at a former proceeding.

– The testimony or deposition of a witness deceased or out of the Philippines or who cannot, with due diligence, be found therein, or is unavailable or otherwise 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 him or her. (47a) Take note that this is already covered by what we discussed in Section 37. You want to impeach the testimony of the witness because he made a declaration contrary to what he made previously, it is related to the topic of Section 49 REQUISITES: 1. Witness whose testimony is offered in evidence is dead or out of the Philippines or who cannot, with due diligence, be found therein, or is unavailable or otherwise unable to testify; 2. The testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; 3. The former case involved the same subject as that in the present case, although on different causes of ation; 4. The issue testified to by the witness in the former trial is the same issue involved in the present case; and 5. The adverse party had an opportunity to cross-examine the witness in the former case. The number 3 requisite is the most important requisite. WHAT ARE THE GROUNDS, ASIDE FROM DEATH, WHICH MAKE A WITNESS UNABLE TO TESTIFY IN A SUBSEQUENT CASE? 1. Insanity or mental incapacity or the former witness loss of memory through age or disease; 2. Physical disability by reason of sickness or advanced age; 3. The fact that the witness has been kept away by contrivance of the opposite party; or 4. The fact that after diligent search the former witness cannot be found. (Francisco, p. 342, 1992 ed.) Take note of these, because the situation here presupposes na nag testify ang witness sa previous case, deposition or proceeding, then karun dili na siya available. That is why somebody else is gong to enter that deposition or testimony on the record.

Section 50. Residual exception. – A statement not specifically covered by any of the foregoing exceptions, having equivalent circumstantial guarantees of trustworthiness, is admissible if the court determines that (a) the statement is offered as evidence of

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a material fact; (b) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (c) the general purposes of these rules and the interest of justice will be best served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent makes known to the adverse party, sufficiently in advance of the hearing, or by the pre-trial stage in the case of a trial of the main case, to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant. (n.) This is actually a new exception, a residual exception. Kung wala siyay apil didto sa mga previous codal exceptions, so pwede pa nimo I’appy ang Section 50 subject to certain conditions. NOTE: Our new residual exception is once again taken from the Federal Rules of Evidence. It provides in Rule 807 thereof that: (a) In General. Under the following condition, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804: 803 and 804 are their codal exception. Now, look at their conditions, (1) The statement is supported by sufficient guarantees of trustworthiness – after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and (2) It is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts. The conditions are also the same as ours, so we just actually copied. Like, guarantee of trustworthiness, sa atoa,

circumstantial guarantee of trustworthiness.

(b) Notice. The statement is admissible only if the proponent gives an adverse party reasonable notice of the intent to offer the statement –including its substance and the declarant’s name – so that the party has a fair opportunity to meet it. The notice must be provided in writing before the trial or hearing – or in any form during the trial or hearing of the court, for good cause, excuses a lack of earlier notice. Then this notice, it is the second paragraph in Section 50. Kaning reasonable notice of the intent to offer the statement xxx so that the party has a fair opportunity to meet it , sounds familiar, right? Same kaayo with our Section 50. FIRST SENTENCE

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A hearsay statement, even if it is not covered by the exceptions encompassed under Rule 130, Sections 38 to 49 if the court finds that: (a) The statement is offered as evidence of a material fact; (b) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (c) The general purposes of these rules and the interests of justice will be best served by admission of the statement into evidence. OBSERVATIONS: 1. First, while of foreign origin, our own Supreme Court has been leaning towards a more relaxed application of the hearsay rule in recent years. For instance, we have the case of Razon vs. Tagitis, unsa may naa ato diba dapat relevant lang. It where the SC relaxed the rule on hearsay applied the totality of evidence test and the basic relevancy test, in the interest of justice. Q: Can the relaxation of the rule on hearsay in Razon vs Tagitis, can it be subsumed in Section 50? A: Of course, yes. So, I would like to say na ang exception sa Razon vs. Tagitis covered na siya sa Section 50. 2.

Second, in child abuse cases, we have Section 28 of the Rule on Examination of a Child Witness which allows the admission of the hearsay testimony of a child describing any act of sexual abse in any criminal or non-criminal proceeding, subject to certain prerequisites and the right of cross-examination by the adverse party. The admission of the statement is determined by the court n light of specified subjective and objective considerations that provide sufficient indicia of reliability of the child witness.

Take note that there are guidelines here (section 28):

(a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent.

“its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object,” or in the language of Section 50, “sufficient time to meet it.” That’s the same more or less. So, our trend was to have residual exceptions even then or even before the amendment of the Rules.

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Let’s go back to Section 37: Section 37. Hearsay. – Hearsay is a statement other than once made by the declarant whie testifying at a trial or hearing, offered to prove the truth of the facts asserted therein. A statement is (1) an oral or written assertion, if it is intended by him or her as an assertion. Hearsay evidence is inadmissible except as otherwise provided in these Rules. A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement (a) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition; (b) consistent with the declarant’s testimony and is offered to rebut an express o implied charge against the declarant of recent fabrication or improper influence or motive; or (c) one of identification of a person made after perceiving him or her. (n) This new foundational provision on hearsay (together with Section 22) is one that is copied almost entirely from Rule 801 of the Federal Rules of Evidence, which provides that: Rule 801. Definitions that apply to this article; Exclusions from hearsay. The following definitions apply under this article: (a) Statement, “Statement” means a person’s oral assertion, or nonverbal conduct, if the person intended it as an assertion. Sounds familiar? Of course. That is the phraseology in our Section 37. (b) Is consistent with the declarant’s testimony and is offered: (i) to rebut an express or implied change that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground; or (c)

Identifies a person as someone the declarant perceived earlier.

Sounds familiar? Yes, because that is also our Section 37. The version under Federation Rules of Evidence does not end there. Why? Because part of their hearsay rule is this one:

(2) An Opposing Party’s Statement. The statement is offered

against an opposing party and: (a) was made by the party in an individual or representative capacity; (b) is one the party manifested that it adopted or believed to be true; Isn’t this adoptive admission? (c)

was made by a person whom the party authorized to make a statement on the subject;

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(d) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or (e) was made by the party’s co-conspirator during and in furtherance of the conspiracy. Letter c in relation to d and e, familiar? Diba mao na siya ang res inter alios acta rule and the exception to the res inter alios acta rule. What I want to drive at is that under FRE, rule on extrajudicial admissions is actually part of the hearsay rule, exception na siya sa hearsay rule. Then katong mga exceptions nato sa res inter alios acta rule, exception lang na nila to the exception. We just copied it, but we still try to maintain the continuity of the res inter alios acta rule and the exceptions – admission by silence, doctrine of adoptive admission, then the requirements under evidence aliunde under Rule 801. What do you notice? Under our rules, the remainder of Rule 801 constitute some of the rules on admissions like the res inter alios acta rule and its exceptions, admission by silence and doctrine of adoptive admissions. Note as well the requirement in the latter part of Rule 801 of evidence aliunde. September 16 | Campaner

Rule 130 Continued OPINION and CHARACTER

OPINION RULE What is an opinion? It is an inference or conclusion based or drawn from the facts established. When a witness states an opinion, he does not testify based on personal knowledge. Instead of saying what he saw, heard, smelled, tasted or touched, he is testifying as to what he thinks about a particular matter.

Opinion is not perception under the law. GENERAL RULE Sec. 51. General rule. — The opinion of a witness is not admissible, except as indicated in the following sections. (48) BERNARDINO vs. PEOPLE G.R. No. 170453, October 30, 2006 Witnesses can testify only to those facts which they know of their personal knowledge, that is, which is derived from their own perception. They are not generally allowed to testify on their opinions or conclusions but must state facts within their

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knowledge as it is the province of the court to make deductions from pertinent facts placed in evidence and to decide matters directly in issue. Their testimony must be confined to statements of concrete facts within their own observation, knowledge, and recollection – that is, facts perceived by the use of their own senses – as distinguished from their opinions, inferences, impressions and conclusions drawn from such facts, which are incompetent and inadmissible. EXCEPTIONS 1. Opinion of Expert Witness (Section 52) 2. Opinion of an Ordinary Witness as to: a. The identity of a person about whom he or she has adequate knowledge; b. A handwriting with which he or she has sufficient familiarity; c. The mental sanity of a person with whom he or she is sufficiently acquainted; and d. The witness’ impressions of the emotion, behavior, condition or appearance of a person (Sec. 53). EXPERT OPINION

Sec. 52. Opinion of expert witness. — The opinion of a witness

on a matter requiring special knowledge, skill, experience, training or education, which he or she is shown to possess, may be received in evidence. (49a) Who is an expert witness? PEOPLE vs. ABRIOL G.R. No. 123137, October 17, 2001 An expert witness is "one who belongs to the profession or calling to which the subject matter of the inquiry relates and who possesses special knowledge on questions on which he proposes to express an opinion." Q: Is there a definite standard of determining the degree of skill or knowledge that a witness must possess in order to testify as an expert? A: None. It is sufficient that the following factors are present: (1) Training and education; (2) Particularity, first-hand familiarity with the facts of the case; and (3) Presentation of authorities or standards upon which his opinion is based. (People v. Abriol, G.R. No. 123137, Oct. 17, 2001) How is expertise acquired? There is no precise requirement as to the mode in which skill or experience shall have been acquired. Scientific study and training are not always essential to the competency of a witness as an expert. Knowledge acquired by doing is no less valuable than that acquired by study. (Dilag Co. vs. Merced, 1949) What is expert evidence?

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It is the testimony of a person (expert witness) possessing knowledge not usually acquired by other persons on a particular subject matter. When is expert evidence admissible? It is admissible when: (1) the matter to be established requires expertise; and (2) the witness has been qualified as an expert. What is the test in determining whether there is need to resort to expert evidence? The test is whether the opinion called for will aid the court in resolving an issue. HOW DOES AN EXPERT WITNESS TESTIFY? An expert witness is always offered as such. EXPERTISE MAY BE ESTABLISHED BY ADMISSION OR STIPULATION. If the opponent admits that he is an expert, he can immediately proceed with his testimony. But what if the opponent does not admit the expertise of the witness? QUALIFYING A WITNESS If the opponent does not admit that he is an expert witness, then before a witness proposed as an expert may testify, he must first be qualified.

“QUALIFYING A WITNESS” means the act of proving that the witness is an expert. This is done by making him testify, through preliminary questions, as to his training, education and expertise. BASIS OF OPINION An expert witness may base his opinion either on the first-hand knowledge of the facts or on the basis of hypothetical questions where the facts are presented to him and on the assumption that they are true, formulates his opinion on the hypothesis. PROCEDURE 1. Introduce and qualify the witness, if his qualifications are not otherwise stipulated upon by the opponent; 2. Present his factual testimony, if he has knowledge of the facts; 3. Begin the hypothetical question by asking him to assume certain facts as true; 4. Conclude the question, by first asking the expert if he has an opinion on a certain point assuming that these facts are true and secondly, asking him, after he has answered affirmatively, to give his opinion on the point. 5. After he has stated his opinion, ask him to give his reasons or the bases for his opinion. NATURE OF EXPERT OPINIONS

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Expert opinions are not ordinarily conclusive in the sense that they must be accepted as true on the subject of their testimony, but are generally regarded as purely advisory; the courts may place whatever weight they choose upon such testimony and may reject it, if they find that it is inconsistent with the facts in the case or otherwise unreasonable. TABAO vs PEOPLE G.R. No. 187246, July 20, 2011 The use of the word “may” signifies that the use of opinion of an expert witness is permissive and not mandatory on the part of the courts. Allowing the testimony does not mean, too, that courts are bound by the testimony of the expert witness. The testimony of an expert witness must be construed to have been presented not to sway the court in favor of any of the parties, but to assist the court in the determination of the issue before it, and is for the court to adopt or not to adopt depending on its appreciation of the attendant facts and the applicable law. Q: Are there instances where expert evidence is actually required? A: YES. For example: Testimony on DNA Evidence Medical Malpractice Cases (CASUMPANG vs. CORTEJO, G.R. No. 171127, March 11, 2015) Section 46, on learned treatises Article 36 Cases (REPUBLIC vs. MOLINA, 268 SCRA 198)? BIER vs. BIER G.R. No. 173294, February 27, 2008 The personal examination of the party alleged to be psychologically incapacitated by a psychiatrist or psychologist is no longer mandatory for the declaration of nullity of the marriage under Article 36 of the Family Code but the totality of evidence must still prove the gravity, juridical antecedence and incurability of the alleged psychological incapacity. CASUMPANG vs. CORTEJO G.R. No. 171127, March 11, 2015 EXPERT OPINION IN MEDICAL MALPRACTICE CASES Expert testimony is essential to establish not only the professional standards observed in the medical community, but also that the physician's conduct in the treatment of care falls below such standard. DE LA LLANA vs BIONG G.R. No. 182356, December 4, 2013 On March 30, 2000, at around 11:00 p.m., Juan dela Llana was driving a 1997 Toyota Corolla car along North Avenue, Quezon

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City. His sister, Dra. dela Llana, was seated at the front passenger seat while a certain Calimlim was at the backseat. Juan stopped the car across the Veterans Memorial Hospital when the signal light turned red. A few seconds after the car halted, a dump truck containing gravel and sand suddenly rammed the car’s rear end, violently pushing the car forward. Due to the impact, the car’s rear end collapsed and its rear windshield was shattered. Glass splinters flew, puncturing Dra. dela Llana. Apart from these minor wounds, Dra. dela Llana did not appear to have suffered from any other visible physical injuries.

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As to her testimony Dra. dela Llana, as the plaintiff in this quasi-delict case, was the lone physician-witness during trial. Significantly, she merely testified as an ordinary witness before the trial court. Dra. dela Llana essentially claimed in her testimony that Joel’s reckless driving caused her whiplash injury. Despite the fact that Dra. dela Llana is a physician and even assuming that she is an expert in neurology, we cannot give weight to her opinion that Joel’s reckless driving caused her whiplash injury without violating the rules on evidence.

The truck driver revealed that his employer was Rebecca Biong. A month and a half after the accident, Dra. De la Llana began to feel moderate pain on the left side of her neck and shoulder. Her health deteriorated to the extent that she could no longer move her left arm. She consulted with Dr. Rosalinda Milla to examine her condition. Dr. Milla told her that she suffered from a whiplash injury, an injury caused by the compression of the nerve running to her left arm and hand. She sued the defendants for damages for her whiplash injury. During trial, as a medical doctor, De la Llana herself testified about her condition. EVIDENCE OF DE LA LLANA (1) The pictures of her damaged car To show that the collision was strong and it can be reasonably inferred from these pictures that the massive impact resulted in her whiplash injury. (2) The medical certificate dated November 20, 2000 Dr. Milla categorically stated in the medical certificate that Dra. dela Llana suffered from whiplash injury. (3) Her testimony that collisions can cause whiplash injury. Credible because Dra. dela Llana herself was a surgeon. EVIDENCE OF DE LA LLANA (a) The pictures of her damaged car According to the SC, it only proves impact. It cannot be used to infer whiplash injury. (b) The medical certificate dated November 20, 2000 HEARSAY. The doctor who issued it did not testify. (c) Her testimony that collisions can cause whiplash injury. EXCLUDED FOR BEING A MERE OPINION. As to the Medical Certificate The medical certificate has no probative value for being hearsay. It is a basic rule that evidence, whether oral or documentary, is hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge of another person who is not on the witness stand.

In the present case, Dra. dela Llana’s medical opinion cannot be given probative value for the reason that she was not presented as an expert witness. As an ordinary witness, she was not competent to testify on the nature, and the cause and effects of whiplash injury. Furthermore, we emphasize that Dra. dela Llana, during trial, nonetheless did not provide a medical explanation on the nature as well as the cause and effects of whiplash injury in her testimony. PAJE vs. CASIÑO G.R. No. 207257, February 3, 2015 Expert opinion in environmental cases. SAN DIEGO vs. PEOPLE G.R. No. 176114, April 8, 2015 Dueling expert witnesses in criminal cases involving mishandling or theft of money, TOLENTINO vs. LATAGAN G.R. No. 179874, June 22, 2015 Is it required for a handwriting expert to examine the original documents allegedly forged? Would a showing of possible bias on the part of the expert adversely affect the proponent? PUNZALAN vs. COMELEC G.R. No. 126669, April 27, 1998 Are handwriting experts required in examining or comparing handwriting in a ballot? OPINION OF ORDINARY WITNESS

Sec. 53. Opinion of ordinary witnesses. — The opinion of a witness, for which proper basis is given, may be received in evidence regarding —

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(a) The identity of a person about whom he or she has adequate knowledge; (b) A handwriting with which he or she has sufficient familiarity; and (c) The mental sanity of a person with whom he or she is sufficiently acquainted.

A: They are admissible because they are: (1) logical and (2) based on ordinary human experience. Besides, impressions on human emotion, behavior, condition and appearance are (3) derived from personal observation.

The witness may also testify on his or her impressions of the emotion, behavior, condition or appearance of a person. (50a)

BAR QUESTION

IDENTITY PEOPLE vs. PRIETO G.R. No. 141259, July 18, 2003 This Court has ruled that identification by the sound of the voice of a person identified, is a sufficient and acceptable means of identification where it is established that the witness and the accused had known each other personally and closely for a number of years. HANDWRITING MARIANO vs. ROXAS A.M. No. CA-02-14-P, July 31, 2002 That the receipts are not genuine was confirmed by Lorna Caraga. She testified that she is familiar with the signature of complainant who was her officemate for a period of 5 years in the RTC of Caloocan City. In many occasions, complainant signed documents in her presence. Her opinion as to complainant’s genuine signature is admissible in evidence pursuant to Section 50, Rule 130. MENTAL SANITY When a person not an expert testifies as to the mental sanity of a person, he is actually stating a matter of opinion derived from his own perception. However, in order to be admissible, the witness must have been sufficiently acquainted with the person and his mental sanity. To be considered sufficiently acquainted, the proponent must establish the degree of familiarity between the witness and the person whose sanity he is testifying about. This is particularly useful in Succession cases considering that one of the requirements for testamentary capacity is that the testator must be of sound mind. EMOTION, BEHAVIOR, CONDITION AND APPEARANCE Take note that, when a person testifies on EMOTION, BEHAVIOR, CONDITION and APPEARANCE, he may seem like he is stating facts based on his own perception but they are merely impressions or opinions because he is not really sure about it. For example, when one says that another was drunk (which can be a statement on another’s behavior, condition or appearance), he cannot really state this as a factual certainty. Q: If they’re just opinions, then why are they admissible?

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, Marcela's maid, to a bedroom where he raped her. Marcela could hear Candida crying and pleading: "Huwag! Maawa ka sa akin!" After raping Candida, Dencio fled from the house with the loot. Candida then untied Marcela and rushed to the police station about a kilometer away and told Police Officer Roberto Maawa that Dencio had barged into the house of Marcela, tied the latter to a chair and robbed her of her jewelry and money. Candida also related to the police officer that despite her pleas, Dencio had raped her. The policeman 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? Explain. ANSWER No, it cannot be considered as opinion, because he was testifying on what he actually observed. The last paragraph of Sec. 50 (now Section 53), Rule 130, Revised Rules of Evidence, expressly provides that a witness may testify on his impressions of the emotion, behavior, condition or appearance of a person.

BAR QUESTION At Nolan’s trial for possession and use of the prohibited drug, known as “shabu”, his girlfriend Kim, testified that on a particular day, he would see Nolan very prim and proper, alert and sharp, but that three days after, he would appear haggard, tired and overly nervous at the slightest sound he would hear. Nolan objects to the admissibility of Kim’s testimony on the ground that Kim merely stated her opinion without having been first qualified as expert witness. Should you, as judge, exclude the testimony of Kim? ANSWER No. The testimony of Kim should not be excluded. Even though Kim is not an expert witness, Kim may testify on her impressions of the emotion, behavior, condition or appearance of a person. (Sec. 50, now Sec. 53 of Rule 130).

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CHARACTER EVIDENCE PRIOR TO AMENDMENT

Section 51. Character evidence not generally admissible;

exceptions: (a) In Criminal Cases: (1) The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. (2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged. (3) The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. (b) In Civil Cases: Evidence of the moral character of a party in civil case is admissible only when pertinent to the issue of character involved in the case. (c) In the case provided for in Rule 132, Section 14, (46a, 47a)

Rule 132, Section 14. Evidence of good character of witness. – Evidence of the good character of a witness is not admissible until such character has been impeached. AFTER AMENDMENT

Section 54. Character evidence not generally admissble, exceptions. — Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (a) In Criminal Cases: (1) The character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. (2) The accused may prove his or her good moral character, pertinent to the moral trait involved in the offense charged. However, the prosecution may not prove his or her bad moral character unless on rebuttal. (b) In Civil Cases: Evidence of the moral character of a party in civil case is admissible only when pertinent to the issue of character involved in the case. (c)

In Criminal and Civil Cases: Evidence of the good character of a witness is not admissible until such character has been impeached. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an

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opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person’s conduct. (51; 14, Rule 132)

DEFINITION (Black’s Law, Second Edition) Character is the aggregate of the moral qualities which belong to and distinguish an individual person; the general result of the one’s distinguishing attributes. That moral predisposition or habit, or aggregate of ethical qualities, which is believed to attach to a person, on the strength of the common opinion and report concerning him; the opinion generally entertained of a person, derived from the common report of the people who are acquainted with him. derived from the common report of the people who are acquainted with him. A “trait of character” on the other hand is a mere aspect of a person’s behavior as opposed to his general character or reputation. PURPOSE What is the purpose of presenting evidence as to a person’s character? Character evidence is offered to prove that the person acted in conformity with that character. If the Accused is charged with a crime involving dishonesty, he will present character evidence that tends to prove that he is honest to bolster the belief that he would act usually act in conformity with such character of honesty. Honesty is offered to disprove dishonesty. However, as a general rule, such evidence of character is not admissible. CHARACTER VS. REPUTATION Character and reputation are not synonymous terms. Character is what a man or woman is morally, while reputation is what he or she is reputed to be. Note, however, that general character has always been proved by proving general reputation. (Leverich v. Frank, 6 Or. 213). RATIONALE FOR INADMISSIBILITY Generally, the character of a party is regarded as LEGALLY IRRELEVANT in determining a controversy. IT IS ALSO PURELY CIRCUMSTANTIAL as evidence to prove the fact in issue in the case. These are the reasons why it is inadmissible, as a general rule. PEOPLE vs. LEE G.R. No. 139070, May 29, 2002 The rule is that the character or reputation of a party is regarded as legally irrelevant in determining a controversy, so that

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evidence relating thereto is not admissible. Ordinarily, if the issues in the case were allowed to be influenced by evidence of the character or reputation of the parties, the trial would be apt to have the aspects of a popularity contest rather than a factual inquiry into the merits of the case. After all, the business of the court is to try the case, and not the man; and a very bad man may have a righteous cause.

CHARACTER OF THE OFFENDED PARTY The character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. EXAMPLES In a prosecution for murder where the Accused pleads the justifying circumstance of self-defense, he may present evidence of the bad character of the victim (i.e., that the victim is a violent person, proving unlawful aggression). In a prosecution for rape where the defense of the Accused is consent, he may present evidence of the bad character of the woman (i.e., that a woman is of loose morals, that the woman does not have a virtuous character, etc.) HOMICIDE, ETC. In homicide cases, a pertinent character trait of the victim is admissible in two situations: (a) as evidence of the deceased’s aggression; and (b) as evidence of the state of mind of the accused. The pugnacious, quarrelsome or trouble-seeking character of the deceased or his calmness, gentleness and peaceful nature, as the case may be, is relevant in determining whether the deceased or the accused was the aggressor. When the evidence tends to prove self-defense, the known violent character of the deceased is also admissible to show that it produced a reasonable belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was necessary. BUT… Proof of the victim’s bad moral character is not necessary in cases of murder committed with treachery and premeditation. (PEOPLE vs.

LEE, G.R. No. 139070, May 29, 2002)

PEOPLE vs. SAZON G.R. No. 89684, September 18, 1990 The bad moral character of the offended party may be proven in evidence to establish in any reasonable degree the probability of the offense charged, e.g., the quarrelsome nature of the victim may tend to establish that he started the unlawful aggression. Nonetheless, such evidence, seeking to establish as it does only

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a probability, cannot prevail over facts sufficiently proven by the prosecution during the trial belying such aggression. PEOPLE vs. ADONIS G.R. No. 98196, January 31, 1995 Even if it had been proved by competent evidence that the deceased was of a quarrelsome disposition, such evidence would only have established a probability that he had indeed started an unlawful assault on Eleuterio. This probability cannot overcome the positive statement of the prosecution witnesses during trial that the accused-appellant had assaulted Basas without any provocation. RAPE AND SIMILAR OFFENSES GENERAL RULE: In rape and acts of lasciviousness or in any prosecution involving an unchaste act perpetrated by a man against a woman where the willingness of a woman is material, the woman’s character as to her chastity is admissible to show whether or not she consented to the man’s act. EXCEPTIONS: When the woman’s consent is immaterial such as in statutory rape or rape with violence or intimidation. In the crimes of qualified seduction or consented abduction where the offended party must be a "virgin," which is "presumed if she is unmarried and of good reputation," or a "virtuous woman of good reputation." CHILD SEXUAL ABUSE CASES

Sec. 30. Sexual abuse shield rule.—

(a) Inadmissible evidence.— The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse: (1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and (2) Evidence offered to prove the sexual predisposition of the alleged victim. (b) Exception.— Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible. ADULT RAPE The evidence of complainant’s past sexual conduct, or reputation or opinion thereof shall not be admitted unless and only to the extent that the court finds that such evidence is material and relevant to the case (Rape shield, Sec. 6, R.A. 8505 or Rape Victim Assistance

and Protection Act of 1998).

GOOD CHARACTER OF THE ACCUSED The accused may prove his good moral character, pertinent to the moral trait involved in the offense charged.

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When the accused presents proof of his good moral character, this strengthens the presumption of innocence, and where good character and reputation are established, an inference arises that the accused did not commit the crime charged. This view proceeds from the theory that a person of good character and high reputation is not likely to have committed the act charged against him. Thus, a person accused of a crime involving dishonesty may present evidence tending to prove that he is honest. BY THE PROSECUTION The prosecution may not prove his bad moral character, unless in rebuttal. For example, if Gerald is accused of stealing from the purse of Maja, the prosecution cannot present witnesses tending to show that Gerald has the propensity to steal. However, if Gerald presented character evidence tending to show that he is honest or that he is not a thief, the prosecution now present adverse character evidence but only in rebuttal. IN BOTH (1) AND (2) FOR CRIMINAL CASES The character evidence must be relevant and germane to the kind of the act charged, e.g., on a charge of rape, character for chastity; on a charge of assault, character for peacefulness or violence; on a charge for embezzlement, character for honesty and integrity. IN CIVIL CASES Evidence of the moral character of a party in civil case is admissible only when pertinent to the issue of character involved in the case.

EXAMPLES 1.

DECLARATION OF NULLITY OF MARRIAGE DUE TO PSYCHOLOGICAL INCAPACITY. Where a party is alleged to be psychologically incapacitated to comply with the essential marital obligations of marriage, there are times when evidence of his character must be adduced (example: the respondent is a compulsive gambler, a womanizer, a sex addict, etc.) CUSTODY CASES. In custody cases, more often than not, one parent would be attacking the moral character of the other if only to prove that he or she is the better parent to take sole custody of the child. If the child is a minor below 7 years old, the mother is preferred. It seems that the only way for the father to take custody is to prove that the mother is manifestly unfit.

BAR QUESTION 2017 In an attempt to discredit and impeach a Prosecution witness in a homicide case, the defense counsel called to the stand a person

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who had been the boyhood friend and next-door neighbor of the Prosecution witness for 30 years. One question that the defense counsel asked of the impeaching witness was: "Can you tell this Honorable Court about the general reputation of the prosecution witness in your community for aggressiveness and violent tendencies?" Would you, as prosecutor, interpose your objection to the question of the defense counsel? Explain your answer. (4%) SUGGESTED ANSWER: Yes, I as the trial prosecutor, would interpose my objection to defense counsel’s question on the ground of improper impeachment. Under the Law on Evidence, an adverse party’s witness may be properly impeached by reputation evidence provided that it is to the effect that the witness’s general reputation for honesty, truth, or integrity was bad. [S11 R132] The reputation must only be on character for truthfulness or untruthfulness.

BAR QUESTION 2018 Dave is on trial for sexual assault of Delly, a law student who sidelines as a call center agent. Dave offers the testimony of Danny, who says that Dave is known in the community as a decent and discerning person. The prosecution presents a rebuttal witness, Dovie, who testifies that, if Dave was reputed to be a good person, that reputation was a misperception because Dave had been previously convicted of homicide. Is Dovie's testimony admissible as to the character of Dave? (2.5%) SUGGESTED ANSWER No. Dovie’s testimony as to the character of Dave is not admissible because it is impertinent. Under the Rules on Evidence, the accused may prove his good moral character, pertinent to the moral trait involved in the offense charged. Such act of the Accused would then allow the prosecution to prove his bad moral character on rebuttal. In the case presented, Dovie’s testimony that, if Dave was reputed to be a good person, such reputation was a misperception because Dave had been previously convicted of homicide, is not relevant or germane to the offense charged. A prior conviction of homicide is not pertinent to the moral trait involved in a case for sexual assault. (c) In Criminal and Civil Cases: Evidence of the good character of a witness is not admissible until such character has been impeached. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-

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examination, inquiry is allowable into relevant specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person’s conduct. (51; 14, Rule 132)

Section 14. Evidence of good character of witness. - Evidence of the good character of a witness is not admissible until such character has been impeached. This new paragraph is a simple transposition from the previous Rule 132, Section 14. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On crossexamination, inquiry is allowable into relevant specific instances of conduct. This is identical to Rule 405 of the Federal Rules of Evidence, which provides: In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

SECTION 1. Burden of Proof and Burden of Evidence. — Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his or her claim or defense by the amount of evidence required by law. Burden of proof never shifts. Burden of evidence is the duty of a party to present evidence sufficient to establish or rebut a fact in issue to establish a prima facie case. Burden of evidence may shift from one party to the other in the course of the proceedings, depending on the exigencies of the case. (1a) Under the amended provision, it is now longer because it includes burden of evidence which is often confused with the term ‘burden of proof’. Under the amended rules, we can now have an academic distinctions between burden of proof and burden of evidence in one provision. A.

Simply put, burden of proof, or “onus probandi,” refers to the obligation or duty of a party to the litigation to persuade the court that he is entitled to relief. In other words, this is to say that if we have the burden of proof, we have to present evidence regardless of whether it is evidence presented for purposes of establishing a claim or defending against a claim, you have to present evidence because that is what burden of proof is all about.

Take note however that the object of this provision is already covered elsewhere. B.

did or did not do a certain thing at one time is not admissible to prove that he or she did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like. (34a) FOR SECTION 54 Memorize the codal provision and you will never go wrong. September 30 Part 1 | Acevedo

BURDEN OF PROOF IS WHY WE PRESENT EVIDENCE If you have the burden of proof, you have to present evidence. It is said to discharge the burden of proof is the end sought to be achieved by the presentation of evidence.

In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

Sec. 35. Similar acts as evidence. — Evidence that one

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RULE 131 BURDEN OF PROOF, BURDEN OF EVIDENCE AND PRESUMPTIONS

In cases in which character or a trait of character of a person is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person’s conduct. This is again identical to Rule 405 of the Federal Rules of Evidence which provides that:

Can you recall what it is?

FIRST EXAM

AMOUNT OF EVIDENCE REQUIRED BY LAW Amount of evidence is synonymous to the term “Quantum of Proof” which is discussed under Rule 133. There are different types of quanta of proof, depending on the type of case or issue that is brought before a tribunal.

QUANTUM OF PROOF IN: Criminal Cases Civil Cases Proof beyond reasonable doubt.

Preponderance Evidence.

Administrative Cases Substantial Evidence.

Who bears the burden or proof or onus probandi?

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There is a burden of proof that is supposed the reason why a party presents evidence. But the question is who has the burden of proof or the so called onus probandi? General Rule: He who bears the affirmative of the proposition or he who affirms a fact has the burden to prove it not one who merely negates or denies it. [Ei Uncimbit probation qui dicit, non qui negat] If you want to prove something, you have the burden of proof. If you want to affirm that a fact exists, you have the burden of proof. a.

Criminal cases In criminal cases, the burden of proof is on the prosecution, because under Rule 133 the accused is entitled to acquittal unless his guilt is demonstrated by proof beyond reasonable doubt. In the case of criminal prosecutions, burden of proof is said to be pinned [to the prosecution] institutionally due to the constitutional mandate that the accused is presumed innocent until the contrary is proven. You cannot change that burden. The burden usually in a criminal case would therefore be upon the prosecution which is to prove that the accused’s guilt beyond reasonable doubt. Presumption of Innocence Take note that the right of the accused to be presumed innocent until proven guilty is guaranteed under Sec. 14 (2), Art. III (Bill of Rights) of the Constitution. This fundamental right of the accused is also embodied under Sec. 2, Rule 133 of the Rules of Court, which specifically states that “in criminal case,

the accused is entitled to acquittal, unless his guilty is proved beyond reasonable doubt.” Take note that that is the burden of proof that is placed upon the prosecution. The one who will prove the guilt of the accused beyond reasonable doubt is the prosecution.

Does the defendant in a criminal case have burden of proof as well, does he have an onus probandi? Yes, because we will learn later that after the prosecution for example presents evidence on the fact in issue, they want to for example establish the guilty of the accused, the accused also has a burden of proof to prove his innocence, otherwise he will lose in a case and eventually convicted of the crime that is charged. Thesis:

Whenever a presumption applies in favor of a party, the burden of proof rests on the other [Take note]. If there is a presumption in favor of a party to a case, the burden rests upon the opposing party. Examples:

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Article 527. Good faith is always presumed, and upon him who alleges bad faith on the part of a possessor rests the burden of proof. (434) It is actually one provision that supports the proposition that we have that whenever a presumption applies in favor of a party, the burden of proof rests on the other. Art. 527 illustrates that. In Obligations and Contracts: Article 1272. Whenever the private document in which the debt appears is found in the possession of the debtor, it shall be presumed that the creditor delivered it voluntarily, unless the contrary is proved. (1189) There is that presumption of voluntary delivery of the evidence of the indebtedness. But there is this phrase: unless the contrary

is proved.

Who has the burden now of proving the contrary? It will now be the creditor. He has the burden to prove that he did not deliver voluntarily if that is part of his allegations in a particular and applicable case. Conclusion: (1) There is an intimate connection that exists between presumptions and burden of proof. That is why it is lump under the same provision or under Rule 131 because if there is a presumption, it affects burden of proof. (2) When there is an applicable presumption, the burden of evidence shifts to the party who denies to dispute and rebut the presumption. Verily, an unrebutted presumption is equivalent to proof already. Still in Criminal Cases The obligation to convince the trier of facts to show the guilt of the accused beyond reasonable doubt is upon the prosecution, as a rule, throughout the trial. However, when the accused invokes self-defense, the burden of proof rests upon the defense to prove that the killing was justified (People v. Tan, 315 SCRA 75). Take note of what an invocation of a justifying circumstance such as self-defense. What is its implication in case? What type of defense is that? In the language of the Civil Procedure, justifying circumstance of self-defense is one of confession and evidence.

Example: ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

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I am saying that it is true that I am the one who killed but I have a justification which is—I killed him because if I did not do so during that time, I will be the one who he will kill. Remember that the accused already admits to the basic proposition that is offered by the prosecution, that there is a killing that took place and that it is the accused who is responsible for the killing. But, his defense is self-defense which is a justifying circumstance, a confession that at the same time seeks to avoid penalty for criminal liability. The burden now according to the case of People v. Tan, rests on the defense to prove that the killing was justified. What is the effect if the accused invokes self-defense in the beginning of the trial “Not guilty your Honor by reason of self-defense” and he fails to prove the elements of proof during trial, what will happen? When he invoked the justifying circumstance of self-evidence is admitting that he killed but he was not able to prove the element of self-defense, that is already equivalent to a conviction because he admitted but he failed to prove his justification of self-defense. Effect: If you fail on your basic and general burden of proof, you lose the case regardless of whether you are the plaintiff or the defendant or if the prosecution or the defense. If you fail the burden of proof as it is pinned at the beginning of trial, you will lose regardless of what happens. b.

Civil Cases In civil cases, whoever makes an affirmative allegation has the burden of proof. A party who alleges a fact has the burden of proving it (Gamboa, Rodriguez, Rivera and Co. v CA, GR No. 117456, May 6,2005; Dela Cruz v. Sison, 451 SCRA 754, Feb. 17, 2005). In civil cases, the one who usually makes an affirmative allegation is the plaintiff. It is the party who alleges a fact who has the burden of proving it. It is the party who affirms and not the party who denies who has the burden of proving [Ei Uncimbit probation qui dicit, non qui negat]. PNB v. Pasimio G.R. No. 205590, September 02, 2015

It is settled that the burden of proof lies with the party who asserts a right and the quantum of evidence required by law in civil cases is preponderance of evidence. Just as settled is the rule that the plaintiff in civil cases must rely on strength of his or her own evidence and not upon the weakness of that of the defendant.

De Leon v. BPI

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G.R. No. 184565 November 20, 2013 Section 1, Rule 131 of the Rules of Court defines "burden of proof" as "the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law." In civil cases, the burden of proof rests upon the plaintiff, who is required to establish his case by a preponderance of evidence. Note: Once the plaintiff has established his case [he is already done in presenting his case and he is assumed to have already discharged the burden of proof given to him at the beginning of trial], the burden of evidence shifts to the defendant, who, in turn, has the burden to establish his defense. Comment: The Supreme Court here did not use burden of proof, but rather it uses the phrase “burden of evidence’—the one which shifts to the defendant. Now, it is already inserted under the new rules. It is not the burden of proof that shifts. It is the burden of evidence that shifts according to the exigencies of trial, it depends. But does it mean that when the plaintiff has already established his case [he has the initial burden] he establishes his case meaning he already has discharged his onus probandi already the duty to present evidence? Does it mean that the defendant does not have burden of proof because he only has burden of evidence? There is still a general burden of proof. Jesus is Lord Christian Foundation v. City of Pasig, GR No. 152230, August 9, 2005 In an eminent domain case, the local government that seeks to expropriate private property has the burden of proving to show the existence of compliance with the elements for the valid exercise of the right of eminent domain. Mayon Hotel and Restaurant v. Adana, 458 SCRA 609 [2005]) Case for collection of a loan. Thus, if the plaintiff alleges that the defendant owes him a sum of money, the plaintiff has the burden to prove the debt. Conversely, if the defendant admits the debt but defends by alleging that it has already been paid, waived, or otherwise extinguished, he has the burden to prove the extinguishment of the alleged obligation. Comment: These paid, waived or otherwise extinguished are our affirmative defenses. This is one of the supposedly grounds for a motion to dismiss under Rule 16 but right

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now, motion to dismiss is no longer allowed exception on the four grounds [ (1) lack of jurisdiction over the subject matter, (2) res judicata, (3) litis pendentia and (4) prescription. September 30 Part 2 | Amistad Upat na lang ang nabilin na pwede nimo gamitun na ground for a motion to dismiss. But again, the focus here is on the affirmative defense of payment. So, what is the effect? An affirmative defense is one that confesses and yet seeks to avoid, confession and avoidance. So, what happens there? He admits the debt but he fails his burden to prove the fact of payment. What is the effect? He will lose his case. Why? Because he already admitted the existence of the debt pero wala niya na prove iyang affirmative defense, the burden of proof was not discharged. Constitutionality of Laws The one assailing the constitutionality of the regulation carries the heavy burden of proving that the measure is unreasonable, oppressive or confiscatory. The time-honored rule is that the burden of proving the unconstitutionality of a law rests upon the one assailing it. (Manila Memorial Park vs. DSWD, G.R. No. 175356,

December 3, 2013)

Let’s go back to the previous example I have given to you, the case of Cruz vs. DENR, which upheld the constitutionality of the IPRA. The plaintiffs argued that such law was unconstitutional for it established terms such as Ancestral Land and Ancestral Domains which are inconsistent with the concept of Jura Regalia (That all lands of private ownership are deemed to have come from the State). So, what happened? Upon voting of the Supreme Court, they were equally divided. Hence, the IPRA was deemed constitutional by default. Why? Because the plaintiffs failed to carry the burden of proving that the law is unconstitutional. So that’s the effect. Test to determine where the burden of proof lies The test for determining where the burden of proof lies is to ask which party to an action or suit will fail if he offers no evidence competent to show the facts averred as the basis for the relief he seeks to obtain. If the defendant has affirmative defenses, he bears the burden of proof as to those defenses which he sets up in answer to the plaintiff’s cause of action. Hence, if the defendant sets up the affirmative defense of prescription, he must prove the date when prescription began to run (Aznar Brothers Realty Co. vs. Aying,

G.R. No. 144773, May 16, 2005).

Let’s talk about an ordinary plaintiff in a civil case. So, nag file siya’g kaso, then the defendant files his answer against the plaintiff. But the plaintiff, right after pre-trial fails to present any evidence.

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Who will win in that case? Definitely, the defendant since the plaintiff was unable to prove his cause of action by failing to discharge the burden. Is the defendant, in this situation, still required to present evidence of his defense? No need na, pildi naman daan ang plaintiff. Now what happens if the plaintiff was able to present evidence but the defendant has not. Further, the plaintiff, by the estimation of the court, has already presented sufficient evidence to establish a prima facie case against the defendant? The defendant will therefore lose his case. So let’s go back to the basic test, kinsa ba na partido ang mapildi kuntahay wala’y mag presentar og evidence? Let’s apply that on a different way. Plaintiff files a case for collection against the defendant, the latter says that: Oo tinuod na naa ko’y utang pero nabayran na nako na (confession and avoidance or affirmative defense). What are the options here based on the old rules of civil procedure? Pwede pa na mag preliminary hearing on the affirmative defenses as if a motion to dismiss was filed. Kinsa’y mauna karon na mag present og evidence? The plaintiff or defendant? It’s the defendant who presents evidence first and if he fails to present evidence, for example, on his affirmative defense of payment or prescription, then the defendant will lose his case. That’s an illustration of burden of proof. Tanang partido in a civil or criminal case naa’y burden of proof na kailangan i-discharge. WHERE BURDEN OF PROOF IS FIXED The burden of proof is fixed by the pleadings. The claim of the plaintiff which he must prove, is spelled out in his complaint. The defendant’s defenses which he must likewise prove, are to be found in his answer to the complaint. The burden of proof of both parties do not shift during the court of the trial. For example, the burden of proof to establish that the defendant owes the plaintiff remains with the plaintiff. In such case, mao jud na ang burden sa plaintiff. From the very beginning until the end. Every evidence that he is going to present during trial seeks to establish that fact, that naa’y utang sa iyaha ang defendant or maybe later on, rebut any evidence that will be presented by the defendant to the contrary. The burden of proof to establish that the loan has been paid remains with the defendant throughout the litigation. Mao lang jud na sya ang paninguha sa defendant, tanang ebidensya na iyahang i-

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present during trial will always be in line with the proposition na na bayaran na niya.

Negligence must be proved in a suit on a quasi-delict, so that the plaintiff may recover. The plaintiff therefore has the burden of proof to establish that the defendant is liable, pursuant to the general rule that he who alleges must prove. The defendant has the benefit of assumption. In a case where the doctrine applies, the presence of facts and circumstances surrounding the injury clearly indicate negligence on the part of the defendant (Example: collision between a tugboat and a stationary object in the case of Republic vs. Luzon Stevedoring, September 29, 1967).

Mura bitaw’g wala’y laing explanation. Let’s apply this in a medical malpractice case, you go there to get an appendectomy but you went home with a vasectomy. That’s clearly medical malpractice, there is medical negligence. And who has the exclusive control of the instrumentality that caused damages? It’s the hospital, it’s impossible that it was due to the plaintiff’s fault or negligence.

So, if you talk burden of going forward or producing evidence, mao ni siya ang atoang burden of evidence. Meaning, when you say burden of evidence, it is simply a component of the general burden of proof. It is only a portion of the Onus Probandi kining burden of evidence.

So, what’s the effect of res ipsa loquitor in litigation? Remember, as a rule, when you are going to file an action for damages under Art. 2176 of the Civil Code, the burden of proof is upon the plaintiff to prove that the defendant was negligent and therefore liable in the case.

In that flow of litigation, it illustrates the alternating frequency of the shifting of burden of evidence. In the beginning, the plaintiff has the burden of proof and the burden of going forward with the evidence to establish a prima facie case against the defendant. After that, it’s now the defendant’s turn to present evidence against the plaintiff, and so on and so forth. So, naa’y alternating na pag shift sa burden of going forward or the burden of evidence.

EL INCUMBIT PROBATIO QUI DICIT, NON QUI NEGAT, whoever

The maxim applies whenever it is so improbable that such accident would have happened without the fault of the defendant, that a reasonable man could find without further evidence that it was so caused. The maxim throws on to the defendant the burden of disproving negligence. This time the defendant carries the burden of proof while the plaintiff has the benefit of assumption. COMPONENT ONERA IN ONUS PROBANDI

BURDEN OF GOING FORWARD – or the burden of producing evidence;

So, the plaintiff establishes a fact. What is the burden placed upon the defendant after the plaintiff was able to establish a fact? The defendant will now have the burden of going forward with the evidence to deny/controvert the facts established by the plaintiff. If the defendant does that sufficiently, then the plaintiff now has the opportunity to rebut, then after that pwede pud na mag surrebuttal na pud ang defendant.

Res Ipsa Loquitor – The thing speaks for itself

What happens now? The burden would now be placed upon the defendant to prove that he was not negligent. So kung dili siya negligence, unsa siya? Possible na Act of God, na wala niya gi-tuyo og banga, na nag bagyo man gud atong panahona to mao nang na pwersa ko na makabanga anang pier or bridge.

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Illustration of going forward with the evidence For example, after the existence of a debt has been proven by the creditor the burden of proving payment devolves upon the debtor. Where the debtor introduces evidence of payment, the burden of going forward with the evidence of payment – as a distinct from the general burden of proof – shifts to the creditor who is then under the duty of producing evidence to show non-payment (Jimenez, et. al. vs. NLRC, G.R. No. 116960, April 2, 1996).

Example:

Res Ipsa Loquitor

affirms a fact has the burden of proving it. But, if the doctrine of res ipsa loquitor applies, like in the case of Republic vs. Luzon Stevedoring, dili na kailangan i-prove na negligent ang defendant, because clearly the latter was negligent based on the facts, kinsa man diay ang mu banga? Diba ang tuboat raman ang pwede mu banga – res ipsa loquitor, the thing speaks for itself.

FIRST EXAM

BURDEN OF PERSUASION – burden of persuading the trier of facts that the burdened party is entitled to prevail. Is burden of proof the same as “burden of evidence’? No, they are not the same. Before the recent amendments, burden of evidence was not mentioned in Rule 131. It is only in the amended rules that the burden of evidence was expressly stated. Burden of evidence is the duty resting upon a party, by means of evidence, to create or meet a prima facie case, or, in the words of the Rule, as amended, it is the duty of a party to present evidence sufficient to establish or rebut a fact in issue to establish a prima facie case. So, mao ni siya ang naga-shift, the burden of proof does not. The burden of going forward with the evidence may shift from one side to the other as the exigencies of the trial require and shifts with alternating frequency.

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BURDEN OF PROOF

BURDEN OF EVIDENCE Definition It is the duty of a party to It is the duty of a party to present evidence on the facts in provide evidence at any stage issue necessary to establish his of the trial until he has claim or defense by the amount established a prima facie case, of evidence required by law or the duty of the adverse (Sec. 1, Rule 131). party to meet and overthrow that prima facie case thus established. Shifting of burden Does not shift as it remains Shifts to the other party when throughout the entire case one party has produced exactly where the pleadings sufficient evidence to be originally placed it. entitled to a ruling in his favor. How determined Generally determined by the Generally determined by the pleadings filed by the party; developments at the trial, or and whoever asserts the by the provisions of the affirmative of the issue has the substantive law or procedural burden of proof. rules which may relieve the party from presenting evidence on the fact alleged. Effect of presumption It does not shift the burden of It creates a prima facie case proof. However, the one who and thereby sustains the said has the burden of proof is burden of evidence on the relieved, for the time being, point which it covers, shifting from introducing evidence in it to the other party. It relieves support of his averment those favored thereby of the because the presumption burden of proving the fact stands in the place of evidence. presumed.

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The moment that the plaintiff is already able to present facts sufficient to establish the applicability of the presumption, it’s now the defendant who should present evidence, diba? Mao na sya ang effect of the presumption. In the meantime, ayaw sa ug present ug evidence, plaintiff, because the defendant is, by the facts that you have presented or established, is already presumed negligent. No need to present any evidence of negligence on the part of the defendant. That’s for burden of proof. But what about for Burden of Evidence? What is the effect of the presumption? It creates a prima facie case thereby sustains the burden of evidence on the point which it covers shifting it to the other party. It relieves those favored thereby of the burden of proving the fact of the suit. FOR THE REMAINDER OF THE DISCUSSION, KINDLY READ PAGES 540-543 OF EVIDENCE EXPLAINED. PRESUMPTIONS A Presumption is an inference as to the existence or non-existence of a fact which courts are permitted to draw from the proof of other facts. A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action.

“courts are permitted to draw from the proof of other facts.”

Mere allegation of presumption is not enough for a presumption to apply. Mere allegation that presumption exists favorable to the party invoking it is not enough to set the presumption into applicability. Dili automatic na mag-apply ang isa ka-presumption. Presumption can only be applied once there are already facts established by a party who seeks to invoke the presumption. EXAMPLE: Presumption that a Child that is 9 years of age acted without Discernment.

Recall, in res ipsa loquitor, the presumption is that the defendant is negligent, the moment that the plaintiff has already presented facts sufficient to establish the applicability of the presumption, it is now the defendant who should present evidence, So in the mean time, ayaw sa’g present og evidence plaintiff because the defendant is presumed negligent.

(Note: We need to remember na naa natay Pangilinan Law. It changed the age of criminal responsibility accordingly.)

Distinctions between burden of proof and burden of evidence is a favorite bar question. September 30 Part 3 | Bahalla

When you invoke the exempting circumstance na the child who committed the crime, atleast under the Revised Penal Code, is exempt from criminal liability because he is below 9 years of age, automatic ba na nga the court will presume that a child is below 9 years of age and correlatively presume that he is exempt from criminal liability because of the conclusive presumption nga he acted without discernment? Automatic ba na or do you still have to prove that your client is a child nga below 9 jud siya? The presumption does not work just because you invoke it. You have to present proof of facts that would pave the way for the applicability of the presumption. Dili na siya automatic. You will learn that in practice, the hard way.

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Presumption are applied only in reference to facts that have to to be established.

“A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action.”

I-establish sa nimo katong facts nato that would lead to the application of the presumption before a presumption is actually applied. Is Presumption evidence? No. You cannot treat presumption as evidence. A presumption is not evidence but it affects the burden of offering evidence. It is not evidence in itself but it is an assumption resulting from the evidence.

Presumption is not applicable just because it is invoked. Later on in practice you will see how this works. You have to prove certain facts first before ka mag-apply ug presumption. TYPES OF PRESUMPTIONS UNDER THE RULES 1.

Balik ta sa res ipsa liquitor.

Tugboat versus the pier- the bridge. Kinsang sala? Syempre tugboat. Kinsa man diay ang mubangga diba ang tugboat man. Impossible man na ang stationary object ang mubangga. But you have to prove first nga nay ingana nga nahitabo. Nga gibanggaan sa tugboat ang stationary object. And you stop there. The law allows you to stop there because the law will ow step in and presume that whoever had control of the instrumentality that caused damage is presumed negligent. It’s the law now that steps in. Undang nakag present.

So, kung kintahay naa kay resibo about the installment in December, katong sa October ug November can already be presumed to have been paid already. Katong mga prior installments.

CONCLUSIVE PRESUMPTIONS or PRESUMPTIONS JURIS ET DE JURE – These are presumptions that are not permitted to be overcome by any proof to the contrary. A presumption is conclusive when the presumption becomes irrebuttable upon the presentation of the evidence tending to rebut the presumption is not admissible. The presumption, in reality, a rule of substantive law. Again, under the RPC, children below 9 years of age presumed of incapable of discernment. The moment that you’re able to present age of the child na criminal na below 9 years of age at the time of commission of the offense, the law will now step in and presume na wala gyud nay discernment na nahitabo sa pagbuhat sa krimen anang bata. Mao na siya ang Conclusive presumption.

Republic vs. Stevedoring

Another Example: X is the debtor of Z, creditor for P1 million payable in twelve equal monthly installments. If evidence is introduced that the installment payment for December has been received by the creditor, a presumption arises that previous installments have been paid. This is because under the law, the receipt of a later installment of a debt without reservation as to prior installments, shall give rise to the presumption that such installments have been paid. (Art. 1176, NCC)

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But remember, you still have to prove something. If you want to invoke that presumption, in trying to establish your case in court, kinahanglan pa ka magpresent ug evidence. Katong latest na installment payment in order for the law step in and apply the presumption that the prior installments had already been paid.

It’s merely something that you’re allowed to presume because certain facts have already been established. So, muundang naka after nimo establish anang fact na na.

Unya naka magpresent ug evidence of negligence if the defendant is able to prove pud nga wala siyay negligence in the first place.

FIRST EXAM

So, if you want to prove nga nag-act with discernment, what’s the effect there? That evidence will not be admitted. Why? Because it is contrary to the conclusive presumption which is not allowed to be overcome by any proof to the contrary. Di gyud pwede nimo balihon. 2.

DISPUTABLE PRESUMPTIONS or PRESUMPTION JURIS TANTUM – which the law permits to be overcome or contradicted. A presumption is disputable or rebuttable if it may be contradicted or overcome by other evidence. (Rule 131, Sec 2b) When evidence that rebuts the presumption is introduced, the force of the presumption disappears. Meaning, going back to the example, gina-presume karun sa court that you have paid the prior installments when you produced a receipt of a later installment but the creditor was able to present evidence nga wala nabayran ang katong mga previous nga installments. So, gina-rebut karun sa creditor ang presumption. Pwede ba ka mag-object? “Dili pwede. Dili na na siya admissible, you Honor.” Wrong ka because it’s a mere disputable presumption. Pwede isya i-overcome by countervailing proof. While evidence of receipt of payment of a later installment gives rise to the presumption that previous installments have been paid, yet when evidence is shown that prior installments

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remain unpaid, the presumption fails. Now, burden of evidence would shift. CONCLUSIVE PRESUMPTION

Section 2. Conclusive presumptions. – The following are instances of conclusive presumptions: (a) Whenever a party has, by his or her own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he or she cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it; and (b) The tenant is not permitted to deny the title of his or her landlord at the time of the commencement of the relation of landlord and tenant between them. (2a) This is virtually unchanged if you look at the new rules. Conclusive Presumption A Conclusive Presumption is an inference which the law makes so peremptory that it will not allow contrary proof however so strong. It is an artificially compelling force which requires the Trier of Facts to find such facts as conclusively presumed and which renders evidence to the contrary inadmissible. It is sometimes referred to as an irrebuttable presumption. The conclusive presumptions under the Rules of Court are based on the doctrine of estoppel. Phil. Price Assurance Corp. vs. CA, 230 SCRA 164 Doctine of Estoppel Under this doctrine, the person making the representation cannot claim the benefit from the wrong he himself committed. Example: Person who assume to be a corporation without legal authority to act as such shall be considered a corporation by estoppel and shall be liable as general partners. (Sec. 20, New Corporation Code of the Philippines). [Remember nga nay recent na amendments sa atoang

Corporation Code. Kini before, this was Section 21 of the Old Corporation Code. Karun, its already Section 20].

The ostensible corporation shall not be allowed to use its lack of corporate personality as a defense. They are estopped from doing so. Dili pwede that they say nga “Ay. Dili mi pwede liable kay di man gud mi corporation gud.” You cannot use that lack of corporate personality as a defense. That’s by way of estoppel. FOR CONCLUSIVE PRESUMPTIONS NOT BASED ON ESTOPPEL, KINDLY READ PAGES 551 TO 554 OF EVIDENCE EXPLAINED FIRST CONCLUSIVE PRESUMPTION

FIRST EXAM

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(a) Whenever a party has, by his or her own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he or she cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it. Naa kay gihatag nga assurance, naa kay gihatag na representation to another person, and that person acts on your representation. Ningsalig siya sa imoha kay nagpasalig pud ka that a particular thing is true. And because of that, that person suffered damages. You are not permitted to falsify or you are not permitted to deny you made such a representation. Related to this first kind of conclusive presumption is Article 1431 governing estoppel in general. Thus: Art. 1431. Through estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. So that is basically what you need to learn there for this provision. You’re estopped already. You cannot deny it. You cannot disprove it because you, by your representation, made another person act or rely upon it. DOCTRINE OF PROMISSORY ESTOPPEL Estoppel may arise from the making of a promise, even though without consideration, if it was intended that the promise should be relied upon and in fact it was relied upon, and if a refusal to enforce it would be virtually to sanction the perpetration of fraud or would result in other injustice. In this respect, the reliance by the promisee is generally evidenced by action or forbearance on his part, and the idea has been expressed that such action or forbearance would reasonably have been expected by the promissor. Mendoza vs CA G.R. No. 116710, 2001 The doctrine of promissory estoppel is an exception to the general rule that a promise of future conduct does not constitute an estoppel. In some jurisdictions, in order to make out a claim of promissory estoppel, a party bears the burden of establishing the following elements: (1) a promise reasonably expected to induce action or forebearance; (2) such promise did in fact induce such action or forebearance, and (3) the party suffered detriment as a result.

September 30 Part 4 | Du In later cases that tries to construe this first paragraph of this provision Section 2, wala na giingon sa Supreme Court ning “in other

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jurisdictions”. In all subsequent cases that cites Mendoza vs. CA gidiretso nalang na sa SC that these are the elements. SECOND CONCLUSIVE PRESUMPTION (b) The tenant is not permitted to deny the title of his landlord at the time of commencement of the relation of landlord and tenant between them. Why? Because again of estoppel, and common sense. Muadto ka sa isa ka property owner for example and rentahan nimo ang yuta. Muadto ba ka ana niya para muoffer ig renta sa iyahang yuta kung kintahany dili siya ang tag-iya sa imuhang pagtuo? If you did not believe him to be the owner of the property, will you even approach him for a contract of lease or a contract of tenancy? That is why the tenant is not permitted to deny the title of his landlord.

Although conclusive ang presumption, there are exceptions to the applicability of such conclusive presumption. EXCEPTIONS: 1. The conclusive presumption set forth in Rule 131, Section 2(b) does not apply in a case where the landlord-tenant relationship has not been sufficiently established or where the very existence of the relationship is the very issue of the case (Consumido vs. Ros, et al., G.R. No. 166875, July 31, 2007). Meaning, you are the supposed or putative tenant, and he is the putative landlord and yet his title is in question. It applies for example in a tenancy relationship in agrarian reform or in agricultural lands.

Related to the second kind of conclusive presumption is Article 1436 on commodatum and lease:

Where, ang mga kalaban sa kaso nimo always gyud gina-cite ning Rule 131 Section 2(b) that you are not allowed to deny the title of your landlord. But no, precisely gina-deny gani namo na dili qualified and landlord to hold the title. Besides, dili namo na siya landlord. Ako mismo in my own right as a farmer has the right to have title over the property in my name. Murag ingana ang mga kaso na maencounter.

Article 1436. A lessee or bailee is estopped from asserting title to the thing leased or received, as against the lessor or bailor. Kabalo man ta aning lease diba. Kabalo man ta aning contract of commodatum, where there is a bailor and a bailee. Ang bailor katong imong gihulman, ang bailee kay ikaw.

Kung ikaw ang nanghulam, di ka pwede mag-assert ug title sa ana na butang na imong gihulam. Kay kinsa nimo dili pwede i-assert? Against the lessor or the bailor, katong nagpahulam sa imo. Example: Lending to classmate collection of cassette tapes Going back, if you are a tenant you are not allowed to deny the title of your landlord because clearly it doesn’t stand to reason, not to mention the fact that you are estopped from doing so by the fact that you entered into a tenancy or lease with that person. It stands to reason man. Dili ka muduol anang tawhana na na kung wala ka nagtuo na siya gyud tag-iya anang yuta na gusto nimo abangan. DATALIFT vs. BELGRAVIA G.R. No. 144268, August 30, 2006

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Conclusive presumptions have been defined as “inferences which the law makes so peremptory that it will not allow them to be overturned by any contrary proof however strong.” As long as the lessor-lessee relationship between the petitioners and Belgravia exists as in this case, the former, as lessees, cannot by any proof, however strong, overturn the conclusive presumption that Belgravia has valid title to or better right of possession to the subject leased premises than they have.

When? At the time of commencement of the relation of landlord and tenant between them.

Remember that a contract of commodatum is essentially gratuitous. Why? Because the moment that you ask for compensation, it is no longer a commodatum but it is already a contract of lease of things. Ingana ang effect diba kung naa na compensation?

FIRST EXAM

So dili magapply ang presumption under Rule 131 Section 2(b). Why? Because its existence is the very issue of the case. 2.

If there was a change in the nature of the title of the landlord during the subsistence of the lease, the presumption does not apply. Meaning, gibaligya diay niya. What if nasubject na siya to expropriation ang iyahang property? There could be change in the nature of the tile of the landlord during the subsistence of the lease. SANTOS vs. NSO G.R. No. 171129, APRIL 6, 2011

The rule on estoppel against tenants is subject to a qualification. It does not apply if the landlord’s title has expired, or has been conveyed to another, or has been defeated by a title paramount, subsequent to the commencement of lessor-lessee relationship. In other words, if there was a change in the nature of the title of the landlord during the subsistence of the lease, then the presumption does not apply. Otherwise, if the nature of the landlord’s title remains as it was during the commencement of

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the relation of landlord and tenant, then estoppel lies against the tenant. Ang NSO diri karon ang nagrenta or nangabang. DISPUTABLE PRESUMPTIONS These are presumptions which are satisfactory if uncontradicted, but which may be contradicted and overcome by other evidence. As the name implies, disputable presumptions are therefore those that are susceptible to contradiction or rebuttal. But take note of the effect if the disputable presumption is not contradicted or rebutted successfully by the person against whom the disputable presumption applies: It would be equivalent to proof. Kung dili bitaw nimo macontradict and presumption, pildi ka because the disputable presumption becomes an undisputed presumption. Take note that the 50 or so disputable presumptions that appear in Section 3 are virtually unchanged under the amended Rules on Evidence. Take note as well that Section 3 is not the sole repository of presumptions under the whole of the law. Many can be found in the Civil Code and other codes and statutes.

[These were no longer discussed. Just read pages 555 to 587] NEW PROVISIONS IN RULE 131

Section 5. Presumptions in civil actions and proceedings. – In all civil actions and proceedings not otherwise provided for by the law or these Rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption. If presumptions are inconsistent, the presumption that is founded upon weightier considerations of policy shall apply. If considerations of policy are of equal weight, neither presumption applies. Again, there is this burden of going forward. We are talking here about the burden of evidence. Comment: This new provision replicates portions of Rule 301 of the Uniform Rules of Evidence adopted in the US and for some portions, Rule 301 of the Federal Rules of Evidence (see also Wyoming Rules, Practice & Procedure Rule 301; North Dakota Rules, Rule 301 (which was deemed obsolete by amendment effective March 1, 2014); 2012 Arkansas Code, Rule 301 (which is at present, is already worded differently), to wit: [Note: Whatever state you go to it is still Rule 301, because individual states while they have their own Rules of Procedure, they pattern it from the Federal Rules. There are just localized variations.]

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Rule 301 – Presumptions in general in civil actions and proceedings (a) Effect. – In all civil actions and proceedings not otherwise provided for by stature or by these rules, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence. (b) Inconsistent presumptions. – If presumptions are inconsistent, the presumption applies that is founded upon weightier considerations of policy. If considerations of policy are of equal weight neither presumption applies. First paragraph: “a presumption imposes on the party against

whom it is directed the burden of going forward with evidence to rebut or meet the presumption” This is covered under the basics on onus probandi and presumptions (see pages 544-545). With regard to the first paragraph, diba pareha lang mana siya when we talk of onus probandi and presumptions. Mao naman na atong gidiscuss ganiha. The shifting of the burden. Second paragraph: “If presumptions are inconsistent, the

presumption that is founded upon weightier considerations of policy shall apply. If considerations of policy are of equal weight, neither presumption applies.” Under the second paragraph, take note that there are at least two presumptions that might be applicable in one case and either one of them, standing alone, affects the fact in issue in the case. September 30 Part 5 |Escritor Take note as well, the presumptions are invoked in civil cases and proceedings; not in criminal cases. Diba? We’re talking here, particular emphasis here on the term “civil cases and proceedings”. Wala ni gina-invoke sa mga criminal cases. So, these rules, na naa sa second paragraph, dili ni nato i-apply sa criminal cases. Only in civil cases. Again, two situations covered by the second paragraph: 1. There are two presumptions that cannot be applied together in one case because they are inconsistent; Naa diay ing-ana na presumptions? That are inconsistent with one another? Can you think of inconsistent presumptions that can be applied in one civil case? Let’s think about it. For example, one presumption favors the plaintiff because it presumes that the defendant is liable, while the other presumption is favorable to the defendant, because it tends to establish that he is not liable. Naa diay mga ingon-ana na mga

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presumptions? Can you think of a situation in a civil case where ang is aka presumption, in favor of the plaintiff; ang isa ka presumption, in favor of the defendant? There are inconsistent, dueling presumptions here. Let’s look at one. The presumption that can be found in: Rule 131, Section 3 (f) That money paid by one to another was due to the latter; Meaning, kung mubayad ka, dili ka mubayad by mistake because the law presumes that people are usually very careful when it comes to matters of money. Dili ka magbasta-basta ug pataka ug bayad kung dili ka sigurado na hangay gyud ka mubayad. But that excludes taxes. Diba? Angay gyud ka mubayad ug tax. There’s no escaping it. There is no payment of mistake when it comes to taxes because you absolutely have to pay. But in all other cases, ang presumption is dili ka basta basta mubayad kung di ka sigurado na angay gyud na syang pagkabayran. Mao na sya ang Section 3(f). But take note of Article 2163. Article 2163. It is presumed that there was a mistake in the payment if something which had never been due or had already been paid was delivered; but he from whom the return is claimed may prove that the delivery was made out of liberality or for any other just cause. (1901) But take note ha? Some of which have never been due or had already been paid, was delivered. So karon, naay presumption that payment was by mistake. Unsa gani na? Solution indebiti. Payment by mistake man nang ingo-ana diba? So, the situation is, the plaintiff seeks to recover an amount he paid to the defendant on the ground that it was a payment of an obligation which was never due. Unsa ning tawag nimo ani? Mura syag reinvindicatory action but we’re talking here of an amount of money. Payment not owing. Payment by mistake. He invokes article 2163. For his defense, however, the defendant invokes Rule 131, Section 3(f), saying that wala may payment by mistake. The law presumes that there is no mistake in payment. And all of these presumptions are individually but variably invoked by the plaintiff and the defendant, respectively. So, plaintiff invokes payment by mistake under article 2163, defendant invokes section 3(f), the presumption that you will not pay anything if it’s not due. Which one will prevail here? Presumptions are inconsistent. Both of them are disputable presumptions. So, which of the two presumptions would be entitled to prevail here? What does the codal provision state?

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Because both are disputable presumptions, the party that is able to successfully rebut the presumption invoked by his opponent is entitled to prevail in the suit. Mao na na sya. Sa simple na pagkasulti, depende kung kinsa ang makarebut sa presumption. Because if a presumption which is disputable is properly rebutted, that will not be applicable anymore. But yours, ang imohang presumption, which still applies because it is unrebutted, you are entitled to win. Otherwise, if the party simply relied on their respective presumptions, and inexplicably presented no further evidence to rebut the other’s invoked presumption, the principle to remember is that the weaker presumption yields to the stronger one. Meaning, katong presumption founded upon weightier considerations of policy. So the question is, let’s say between the presumption in section 3(f) of Rule 131, and [Article] 2163 of the Civil Code, asa diha ang weightier? In case that none of them was able to rebut the other’s presumption. Walay nakarebut sa ilahang duha sa claims sa other party. Which one is founded on weightier considerations of policy? It would be the one in Article 2163. Why? All quasi-contracts, including solution indebiti, are founded on the consideration that no one should be unjustly enriched or benefited at the expense of another. A presumption under Article 2163 is a statutory presumption, or one under substantive law; while the presumption under Rule 131, Section 3(f), is a presumption provided by procedural law. So, naay weightier consideration of public policy for [article 2163]. And that is unjust enrichment, or the policy of the law against unjust enrichment. Tagaan pa nato’g example pa. Rule 131, section 3(j). The things which a person possesses, or exercises acts of ownership over, are owned by him or her. Kung magpahulam ka sa butang na imoha ra pung gihulam, that’s already an act of ownership, diba? But sadly under Section 3(j), that which a person possesses or exercises acts of ownership over, are owned by him or her. So, there’s that presumption of ownership by the exercise of acts of ownership. That’s section 3(j). But you have RA No. 4136. The so-called, Register Owner Rule when it comes to motor vehicles. The registered owner of the vehicle is presumed to be the employer of the driver who caused damage for purposes of imputing vicarious liability under Article 2180 of the Civil Code. When you talk about quasi-delicts as a source of obligation under Article 1157 of the Civil Code, Article 1157. Obligations arise from: (1) Law; (2) Contracts;

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(3) Quasi-contracts; (4) Acts or omissions punished by law; and (5) Quasi-delicts. (1089a) Ang main provision anang quasi-delicts would be Article 2176. Nagdanghag ka, nakabangga ka, naka-injure kag another person, you’re liable for a quasi-delict under Article 2176. And liability for quasi-delict can be direct, meaning ikaw mismo ang liable; or vicarious or kana bitawng you’re liable for the damages cause by somebody that you have supervision of, like an employee. Like, a student if you are a teacher. Or kana bitawng – maybe the State when it comes to its special agents. We learned that in Torts and Damages. So, pwede ka to be held to answer for damages caused by somebody over whom you are responsible. That’s Article 2180. Dili ikaw ang nakabangga, pero nakabangga ang tawo na dapat gisupervise nimo ug tarong. Pwede ka mahimong liable. And the liability there is direct and primary. Murag ikaw mismo ang ningbangga or nakasala sa lain na tao. That’s 2180. But, Article 4136, we talk about the Registered Owner Rule. So, the situation is like this. Naay sakyanan. Let’s say MedRep ka. Naa kay sakyanan. Ang sakyanan, nakarehistro sa imong pangalan. Pero gibaligya nimo karon kay eligible na man ka mukuha ug laing vehicle from your pharmaceutical company. Karon, naa ra gihapon sa iyahang pangalan ang sakyanan, gigamit sa nakapalit, katong nakapalit, nakabangga ug lain nga tao. Causing injury to that person. Who’s the registered owner? Kato na bang nakapalit? No, katong nagbaligya pa. Kay wala pa man nabalhin sa pangalan sa nakapalit ang registration sa vehicle. Now, situation. I-expand lang nato gamay. Hwarang was bumped by a car driven by Sandra who’s an employee of Gamy. Sandra fled the scene of accident, but Hwarang was able to take a photo of the plate number of the car. Sometime later, Hwarang went to the LTO and found out that the car was registered under the name of Aly. Hwarang sued Aly for damages under Article 2176 in relation to Article 2180 of the Civil Code. In her answer, Aly denied that she is the employer of Sandra, and averred that two months prior to the accident, she already sold and delivered the car to Gamy. Thus, Aly posits that she could not be held liable for damages. “Di na man ako ang tag-iya. Nabaligya ko naman na. di man pud nako na empleyada na si Sandra. Unfair kung ako pay pabayron ani. Gibaligya ko na nang sakyanan. Wa gyud ko kaila anang Sandra nga na. “ Under the Registered Owner Rule, however, the registration of motor vehicles was necessary not to make said registration the operative act by which ownership of vehicles is transferred, but to permit the use and operation of the vehicle upon any public highway. It’s main aim is to identify the owner so that if any accident happens, or that any damage or injury is caused by the vehicle on the public highways, responsibility therefore can be fixed on a definite individual – the registered owner. So it doesn’t really matter

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kung ang registered owner pa baa ng tag-iya gyud ana or gibaligya na ba niya. What matters under RA 4136 is that, you’re still the registered owner. When does the law need a provision like this, the Registered Owner Rule? Para ma-avoid na kintathay you’re a victim for example of a hit and run, na wala kay recourse. All you have to get would be plate number of the vehicle, find out who the registered owner is, naa na kay pwede karon file-an ug kaso. You can get recourse. You have the right to go against the registered owner of that motor vehicle. But in the example that I gave you, diba nabaligya na man ni Aly ang iyahang vehicle kang Gamy? Wouldn’t it be unfair to still apply the Registered Owner Rule under Article 4136? The Registered Owner Rule established another form of vicarious liability in addition to those enumerated under Article 2180. The source of a registered owner’s liability is not a distinct statutory provision, but remains to be Articles 2176 and 2180 of the Civil Code. Take note, under Article 2180, employers are likewise liable for damages caused by their employees and household helpers acting within the scope of their assigned task, even though the former are not engaged in any business or industry. If you are the employer, your employee causes damage, you are liable under Article 2180, unless you are able to prove that you exercised the due diligence in selection and supervision of your employee. Take note that the registered owner of a motor vehicle is not necessarily the employer of the driver, diba? Especially in our example. Di man kinahanglan na sya gyud and employer sa driver. More often than not, basig dili. Because jurisprudence of the Registered Owner Rule sites the fifth paragraph of Article 2180 as the basis for liability, is there a limited employer-employee relationship created and supplied by law? Kintahay nagpahulam lang ug sakyanan. Definitely diba, dili na nimo empleyado imong gipahulaman ug sakyanan, pero ikaw man ang registered owner. So the question is, naa bay ER-EE relationship that is created by law here? With that you have the case of MMTC v. Cuevas June 15, 2015 MMTC and Mina’s Transit Corp., entered into an agreement to sell, whereby the latter bought several bus units from the former on the stipulated price. They agreed that MMTC would retain the ownership of the buses, until certain conditions were met. But in the meantime, Mina’s Transit could operate the buses within Metro Manila. Kinsa ang registered owner? It’s MMTC. Kinsa ang actual na owner? Mina’s Transit. Wala pa nabalhin ang registration sa

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motor vehicle. But here, one of the buses hit and damaged a Honda motorcycle owned by Reynaldo and driven by Junnel. Reynaldo and Junnel sued MMTC and Mina’s Transit for damages in the RTC. September 30 Part 6 | Estrosas CONTENTION OF MMTC Although MMTC retained the ownership of the bus, the actual operator and employer of the bus driver was Mina’s Transit; and that, in support of its cross-claim against Mina’s Transit, a provision in the agreement to sell mandated Mina’s Transport to hold it free from liability arising from the use and operation of the bus units. So far, makuha man nato ang situation, diba that is applicable under the registered owner rule. Naa’y presumption na ikaw ang employer sa kung kinsa man ang nagdrive sa motor vehicle na nakabangga, right? HELD In view of MMTC’s admission in its pleadings that it had remained the registered owner of the bus at the time of the incident, it could not escape liability for the personal injuries and property damage suffered by the Cuevases. This is because of the registered-owner rule, whereby the registered owner of the motor vehicle involved in a vehicular accident could be held liable for the consequences. The main aim of motor vehicle registration is to identify the owner so that if any accident happens, or that any damage or injury is caused by the vehicle on the public highways, responsibility therefor can be fixed on a definite individual, the registered owner. It is well settled that in case of motor vehicle mishaps, the

registered owner of the motor vehicle is considered as the employer of the tortfeasor-driver, and is made primarily liable for the tort committed by the latter under Article 2176, in relation with Article 2180, of the Civil Code.

Thus, it is clear that for the purpose of holding the registered owner of the motor vehicle primarily and directly liable for damages under Article 2176, in relation with Article 2180, of the Civil Code, the existence of an employer-employee relationship, as it is understood in labor relations law, is not required. It is sufficient to establish that the defendant is the registered owner of the motor vehicle causing damage in order that it may be held vicariously liable under Article 2180 of the Civil Code. REMEDY OF MMTC MMTC could recover from Mina’s Transit, the actual employer of the negligent driver, under the principle of unjust enrichment, by

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means of a cross-claim seeking reimbursement of all the amounts that it could be required to pay as damages arising from the driver’s negligence. A cross-claim is a claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein, and may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part

of a claim asserted in the action against the cross-claimant.

NOTES For the purpose of holding the registered owner of the motor vehicle primarily and directly liable for damages under Article 2176, in relation with Article 2180, of the Civil Code, the existence of an employer-employee relationship, as it is understood in labor law, is not required. The law steps in and presumes that you are the employer of that driver or you are the owner of the vehicle, the instrumentality that caused the damage.

APPLICATION OF THE REGISTERED-OWNER RULE Possible situations: 1. The registered owner is a stranger or is not the employer of the driver who caused damage. 2. The registered owner is the employer of the driver who caused damage. In this situation, the fifth paragraph of Article 2180 applies as well. This means that the defenses therein are applicable to the registered owner.

The registered owner is not the employer of the driver

The registered owner of the motor vehicle is considered as the employer of the tortfeasor-driver. We follow the doctrine in MMTC.

The registered owner is the employer of the driver

Take note that, if the owner is also the employer of the driver, he is supposed to be allowed to claim the defenses under Article 2180. o Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. However, take note that: FILCAR vs. ESPINAS G.R. No. 174156, June 20, 2012

Neither can Filcar use the defenses available under Article 2180 of the Civil Code – that the employee acts beyond the scope of his assigned task or that it exercised the due diligence of a good father of a family to prevent damage – because the motor vehicle registration law, to a certain extent, modified Article 2180 of the Civil Code by making these defenses unavailable to the

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registered owner of the motor vehicle. Thus, for as long as Filcar is the registered owner of the car involved in the vehicular accident, it could not escape primary liability for the damages caused to Espinas. DIFFERENCE BETWEEN ARTICLE 2180 AND REPUBLIC ACT NO. 4136 Article 2180 requires proof of two things (in order to have vicarious liability): 1. An employment relationship between the driver and the owner; and 2. That the driver acted within the scope of his or her assigned tasks. On the other hand, the registered-owner rule only requires the plaintiff to prove that the defendant-employer is the registered owner of the vehicle. CARAVAN TRAVEL vs. ABEJAR G.R. No. 170631, February 10, 2016 Thus, it is imperative to apply the registered-owner rule in a manner that harmonizes it with Articles 2176 and 2180 of the Civil Code. Rules must be construed in a manner that will harmonize them with other rules so as to form a uniform and consistent system of jurisprudence. XXX Therefore, the appropriate approach is that in cases where both the registered-owner rule and Article 2180 apply, the plaintiff must first establish that the employer is the registered owner of the vehicle in question. Once the plaintiff successfully proves ownership, there arises a disputable presumption that the requirements of Article 2180 have been proven. As a consequence, the burden of proof shifts to the defendant to show that no liability under Article 2180 has arisen. Comments: There is already a mention directly in the jurisprudence of the disputable presumption (that there is employer-employee relationship, and the employee was acting within his assigned tasks); that’s it if both the registered owner rule and Article 2180 apply. What in the blue hell does that mean? Simple. If you are the plaintiff, you don’t need to prove employeremployee relationship in order to establish a prima facie case against the defendant-employer-owner. All you have to do is to secure proof of ownership of the motor vehicle. CARAVAN TRAVEL vs. ABEJAR G.R. No. 170631, February 10, 2016 This disputable presumption recognizes that between the owner and the victim, it is the former that should carry the costs of moving forward with the evidence. The victim is, in many cases,

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a hapless pedestrian or motorist with hardly any means to uncover (1) the employment relationship of the owner and the driver, or (2) any act that the owner may have done in relation to that employment. The registration of the vehicle, on the other hand, is accessible to the public.

What about the defendant (registered owner)? Dili man nako na siya employee, ngano ako man inyong pabayron? He can still make use of the defenses available under Article 2180 for the purpose of refuting the presumptions. In other words, if the twin disputable presumptions under Caravan apply, he can present proof that he is not the employer of the driver who caused damage or, if he is, that he exercised due diligence in selection and supervision. If he is successful, no liability attaches whether as owner or employer. LET’S GO BACK TO THIS… RULE 131 Section 3(j) That things which a person possesses, or exercises acts of ownership over, are owned by him or her.

REPUBLIC ACT NO. 4136 The registered owner of the vehicle is presumed to be the employer of the driver who caused damage for purposes of imputing vicarious liability under Article 2180 of the Civil Code.

Comments: In Rule 131, Section 3(j), ikaw nagdrive sa vehicle, so ikaw presumably ang tag-iya. But in RA 4136, there is no such presumption nga siya mao ang tag-iya because we go to the registered-owner rule. It does not really matter. Whoever is the registered owner, he will be presumed to be the employer of the driver. APPLICATION Aly, the former owner of the vehicle, can invoke the presumption under Rule 131, Section 3(j) that things which a person possesses, or exercises acts of ownership over, are owned by him or her. This means that, because Gamy is the one who possessed and exercised acts of ownership over the car, and in that particular accident, through her driver Sandra, she cannot be held liable for damages vicariously under Article 2180. Verily, Sandra is not her employee. She is Gamy’s employee and it should be Gamy who can be held liable under Article 2180 of the Civil Code. Hwarang, on the other hand, can invoke the Registered Owner Rule to hold Aly, the registered owner of the car driven by Sandra vicariously liable under Article 2180. She can contend that, by

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proving that Aly is the registered owner of the vehicle, a presumption arises that Sandra is Aly’s employee for the purpose of imputing vicarious liability.

Otherwise, the stronger presumption prevails over the weaker one. Which of the two presumptions is “founded upon weightier considerations of policy”? – The registered owner rule. The presumption under the registered owner rule prevails. This presumption is founded on the policy aimed at identifying the owner so that if any accident happens, or that any damage or injury is caused by the vehicle on the public highways, responsibility can easily be fixed on a definite individual, the registered owner. It’s an entirely new provision which we do not have any jurisprudence to draw from in order to provide an explanation. Thankfully, it is easy to understand. It is not stretched to provide an explanation to the new addition to this Rule 131. By default, if naa tung duha ka conflicting nga mga presumptions, depende na. What would prevail would be the presumption invoked by the one whose opponent was not able to successfully rebut the presumption. Whoever rebuts the presumption, lamang ka because your presumption will prevail as opposed to the presumption invoked by your opponent. In case both parties failed to rebut the presumptions and therefore both of them are applicable, that’s the time that you will look at weightier considerations of policy.

REMEMBER the basic proposition: A weaker presumption yields to the stronger one. Examples: 1. Between a statutory presumption and a constitutional presumption, CONSTITUTIONAL PRESUMPTION PREVAILS. o Presumption of innocence vs. Presumption of regularity in the performance of official acts constitutional presumption of innocence PREVAILS.

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We discussed that in the chain of custody requirements. The police officers, for example, as a general rule cannot invoke the presumption of regularity because the other presumption will be the constitutional presumption of innocence.

Which of the two presumptions would prevail? It depends on who can successfully rebut the disputable presumption invoked by his opponent. Again, because both are disputable presumptions, the party that is able to successfully rebut the presumption invoked by his opponent is entitled to prevail in the suit. Thus, if Aly fails to rebut the presumption or file a claim against Gamy (a cross-claim if Gamy is already impleaded or a third party claim if Gamy is still a stranger to the action), Aly will be vicariously liable for the tort committed by Sandra.

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Procedural presumption vs statutory presumption, STATUTORY PRESUMPTION PREVAILS – e.g. Rules of Court vs RA 4136, the latter prevails.

TWO SITUATIONS COVERED BY THE SECOND PARAGRAPH SECOND, if considerations of policy are of equal weight, neither presumption applies. The Rule therefore seems to have a cancelling effect as it declares that none of the conflicting presumptions will apply. FOREIGN CASES: Look for the presumptions In Re Estate of Langeland 177 Wn App 315 October 26, 2013 BH vs KD 506 N.W.2d 368 (1993)

NEW PROVISION Section 6. Presumption against an accused in criminal cases. – If a presumed fact that establishes guilt, is an element of the offense charged, or negates a defense, the existence of the basic fact must be proved beyond reasonable doubt and the presumed fact follows from the basic fact beyond reasonable doubt. (n) COMMENT This new provision, which has separate counterparts in rules of procedure adopted in several states in the United States, is one of cause and effect. If the presumed fact is either an element of the offense charged or a fact which negates a defense and is proved beyond reasonable doubt, it has the effect of establishing the presumed fact beyond a reasonable doubt as well. EXAMPLE Under Article 353 of Revised Penal Code, a libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. Article 354 of the same Code provides that every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown. Applying the new Section 6 to libel, it seems that all that the prosecution needs to do is to prove that the imputation of a vice or defect was uttered or published beyond a reasonable doubt. That there was a defamatory imputation is the basic fact which must be

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proven beyond a reasonable doubt. By way of effect, it would follow that, malice, as an element of libel, is already proved beyond reasonable doubt as well. October 1 Part 1 | Fernandez

RULE 132 PRESENTATION OF EVIDENCE

EXAMINATION OF WITNESSES

Section 1. Examination to be Done in Open Court — The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. (1) DISCUSSION It requires examination of a witness whether for the plaintiff or the defendant; prosecution or the accused to be in open court under oath or affirmation. RATIONALE The rationale for (with respect to criminal case) this is respect for the accused’s constitutional right of confrontation, or to meet the witnesses against him face-to-face. To safeguard this right, Section 1 of Rule 132, of the Rules of Court thus provides that the examination of witnesses presented in a trial or hearing must be done in open court, and under oath or affirmation. (People v.

EXAMPLE: a. The testimony of the witness is contrived; b. Or that he is not sincere; c. Or the testimony of the witness was made when he was too emotional (sometimes emotion can be a whole mark

of honesty. It could be an indication that the witness was telling the truth.)

IN THE MATTER OF DEPOSITIONS

(Remember that a deposition is a Mode of Discovery)

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Rule 23, Section 4. Use of depositions.—At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions: (a)

Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness;

(b)

The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose;

(c)

The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) (2)

(3)

(4)

Manhuyod, JR., GR No. 124676, May 20, 1998).

TAKE NOTE: As a further reason why it should be in open court, is for the Court to be allowed to observe the demeanor of the witness so that it may accord credibility or evidentiary weight upon the witness’ testimony. The demeanor of the witness may be taken into consideration by the court, when it decides to give whatever credence or credibility to the testimony of the witness.

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that the witness is dead; or that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his or her absence was procured by the party offering the deposition; or that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and

Under the concept adopted by the new Rules, the deposition serves the double function of a method of discovery- with use on trial not necessarily contemplated- and a method of presenting testimony. The taking of depositions has been allowed as a departure from open court testimony. (Santamaria v. Cleary. GR No. 197122, June

15, 2016)

GENERAL RULE: (as based on the Santamaria Case) Absent any compelling or valid reason, the witness (deponent) must personally testify in open court and later on cross-examined by the adverse party. Otherwise, similar to an affidavit, its status is that of a hearsay. That if you do not take the witness stand and testify once again as to the

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content of your affidavit or deposition, that can be considered hearsay because there is no opportunity for cross-examination. The court should always see to it that the safeguards for the protection of the parties and deponents are firmly maintained. EXCEPTIONS (compelling or valid reasons): DISCUSSION We are referring here to: 1. When the witness is already dead and cannot testify anymore. But the above provision, allows the use of depositions; provided, there is opportunity for the opponent against the party who calls for a deposition taking, the opportunity to object or to raise its objection with respect to the testimony of that party in deposition. 2. When the witness resides a distance of more than more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his or her absence was procured by the party offering the deposition 3. When the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; 4. That the party offering the deposition has been unable to procure the attendance of the witness by subpoena Again, deponent is deceased or unavailable- his testimony can then be used even if the witness does not testify in open court anymore.

Rule 23, Section 6. Objections to admissibility. — Subject to the provisions of Section 29 of this Rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. TAKE NOTE: ADMISSIBILITY DOES NOT MEAN NONOBJECTIONABILITY Even if deposition is admissible, in the absence of an open court testimony by the deponent: Section 29. Effect of errors and irregularities in depositions. Xxx (c)As to competency and relevancy of evidence. Objections to the competency of a witness or the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time. ADMISSIBILITY DOES NOT MEAN BELIEVABILITY As regards weight of evidence, “the admissibility of the deposition does not preclude the determination of its probative value at the appropriate time.” Santamaria v. Cleary, GR No. 197122, June 15,

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In other words, the court would still have to determine if the deposition is believable and should it be given probative value.

Proceedings to be recorded.- The entire proceedings of a trial or hearing, including the questions propounded to a witness and his or her answers thereto, and the statements made by the judge or any of the parties, counsel, or witnesses with reference to the case, shall be recorded by means of shorthand or stenotype or by other means of recording found suitable by the court. Section 2.

A transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder and certified as correct by him or her, shall be deemed prima facie a correct statement of such proceedings. (2a) So-called TSN Provision of Rule 132 1st PARAGRAPH It is required that everything that was said during trial or hearing be recorded. So that later on, we may use it for and make basis upon it; and try to convince the court when one files a: a. Demurrer to evidence (when in effect, you are asking the

court to dismiss the case because the plaintiff has not established a prima facie case);

Upon reaching the Memorandum Stage in a civil case where the court will allow the parties to submit their memoranda in support of their respective cases.

DISCUSSION Before, this Transcript of Stenographic Notes, have been abused (sir is likewise guilty of it).

To illustrate: The direct examination of a witness is already finish, then the lawyer of the other party would postpone the cross examination, so he can see the testimony of that witness contained in the TSN so that he can craft his cross examination specifically targeting the weak points of the direct testimony of the witness. However, said tactic will only be resorted to “if banga na jud ka na

lawyer” (hehe).

Q: What is the significance of this? TAKE NOTE: 1. With the advent of the Judicial Affidavit Rule, you will already know in advance what the witness will testify about. 2. The Judicial Affidavit (JA) is the substitute for the actual direct testimony of the witness. Hence, why the need to get the TSN if the testimonies of the witnesses are already in the JAs, then one can already craft his cross examination and look at the perceived testimony of the witnesses.

2016

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SHALL BE RECORDED BY MEANS OF SHORTHAND OR STENOTYPE OR BY OTHER MEANS OF RECORDING FOUND SUITABLE BY THE COURT Despite the amendment, the committee which drafted the rules still did not provide for examples of that other means of recording found suitable by the court; which could have perhaps lessen objections made in the future. 2nd PARAGRAPH THE PRESUMPTION OF CORRECTNESS/REGULARITY OF THE TRANSCRIPT OF STENOGRAPHIC NOTES REMEDY IF TRANSCRIPT OF STENOGRAPHIC NOTES ARE ERRONEOUSLY TRANSCRIBED Example: The answer of the witness is a YES but what the stenographer provided for in the TSN is a NO. Instead of it being recorded as an admission, it now becomes a denial. Hence, remedies are: a. If the transcript of stenographic notes appear to be erroneous, the remedy is for the interested party to file a motion to correct. But the party filing the motion must be transparent and serve copy of the motion to the adverse party because the party filing may be attempting to change the content of the examination, so that the answer of the witness would favor said party. Hence, it gives the adverse party the opportunity to meet whatever matter the stenographer would change. b.

A Transcript of Stenographic Notes, being an official entry in the court’s records, is admissible in evidence and there is no necessity to produce the concerned stenographer as a witness (Fullero v. People, GR No. 170583, September 12, 2007) Because otherwise, it becomes hearsay. It falls therefore, as entry in the official records (the TSN) which is the applicable exception to the Hearsay Rule for Section 2.

Section 3. Rights and Obligations of a Witness — A witness must answer questions, although his or her answer may tend to establish a claim against him or her. 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 or her to a penalty for an offense unless otherwise provided by law; (right against self-incrimination) or (5) Not to give an answer which will tend to degrade his or her reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a

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witness must answer to the fact of his or her previous final conviction for an offense. (3a) OBLIGATIONS OF A WITNESS One must really answer even if the answer may tend to establish a

claim against you.

MAY TEND TO ESTABLISH A CLAIM AGAINST YOU If you are the witness, this refers to a CIVIL CLAIM. RIGHTS OF A WITNESS (1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; Example: You are presenting a witness in court and you want to object to the other party’s counsel to his treatment to the witness: a. b.

If the counsel’s questions are irrelevant- object on the ground that it is IRRELEVANT; If the counsel’s questions are improper, insulting, harsh, or insulting demeanor- object on the ground of BADGERING A WITNESS

(2) Not to be detained longer than the interests of justice require; If the direct testimony, cross examination, re-direct and recross, ordinarily the witness cannot be detained any longer. He cannot be brought back if he has already been discharged by the court, however subject to the Recalling of a Witness Provision.

Sir shares that he handled a case, and a witness has been on the witness stand under the same oath for 5 years. The testimony of that witness was dragged for so long; suffered a lot of postponements and delay. This is the fault of the court for allowing the same to be postponed for reasons such as weddings to be officiated by the judge, the lawyer asks for postponement and among others. (3) Not to be examined except only as to matters pertinent to the issue; This refers to relevancy of the questions posed to the witness. (4) Not to give an answer which will tend to subject him or her to a penalty for an offense unless otherwise provided by law;

October 1 Part 2 | Jamero Comment: The witness must answer questions even if it tends to establish a claim against him or her except in Criminal claims. If it’s a mere civil claim, dili pwede mu refuse to answer questions. But if it is a

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III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

criminal claim, you have every right not to answer the question because you will be subjected to incrimination. (5) Not to give an answer which will tend to degrade his reputation, unless it be to 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. Right against self-degradation Comment: You are not supposed to degrade the reputation of the witness by your questioning. In answering a particular question that degrades your reputation, you have the right not to answer that question. In a Senate hearing, Trillanes asked Paolo “Pulong” Duterte to show a tattoo on his back, which the senator claimed to be a colored dragon, the mark of the triad, a syndicate involved in a number of criminal activities. Pulong objected invoking his right against selfincrimination. The fact of having a dragon tattoo dili mana makaincriminate, its circumstantial at best. Atty Carpio advised him, “ayaw’g self-incrimination, iinvoke na lang ang right to privacy.” JZE: The fact that he will be asked to disrobe and show his naked back on national tv, that actually degrades him. Right against Self-Incrimination “unless otherwise provided by law” This refers to immunity statutes wherein the witness is granted immunity from criminal prosecution for offences. Examples: Under Section 8 RA1379, the law providing for the forfeiture of unlawful acquired property; and Under PD749, in prosecutions for bribery and graft. Comment: Like buhaton ka’g state witness. Even if you have the right against self-incrimination, you still have to answer questions if you are given immunity from prosecution. DISCHARGE AS STATE WITNESS (1) USE IMMUNITY – Prohibits the use of the witness’ compelled testimony and its fruits in any manner in connection with the criminal prosecution of witness. The witness will still be indicted for the commission of an offense, but the statements given by the witness cannot be used against him. He is not immune from prosecution; (2) TRANSACTIONAL IMMUNITY – Grants immunity to the witness from prosecution for an offense to which his compelled testimony relates. [blanket immunity] There is absolute immunity, both to prosecution and use of the statements given by the witness. Note: The right against self-incrimination pertains only to natural persons and with respect to testimonial compulsion only.

FIRST EXAM

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Comment: In autoptic proference, if it’s purely mechanical or physical act, it is not an incrimination. Right against self-incrimination is against the process of extracting from the lips of the witness the very evidence used to incriminate him. This right may be involved in all kinds of proceedings where testimony is to be taken, including investigation by legislative bodies. o

Right against Self-Degradation The right not to give an answer which will tend to degrade his reputation. SUMMARY GENERAL RULE: A witness cannot refuse to answer questions. The witness has the obligation to answer questions, although his answer may tend to establish a claim against him (Sec. 3). EXCEPTIONS: Right against self-incrimination Right against self-degradation. EXCEPTIONS TO THE EXCEPTIONS: A witness may not invoke the right against self-incrimination or the right against self-degradation if: 1. Such question is directed to the very fact at issue or to a fact from which the fact at issue would be presumed; or 2. If it refers to his previous final conviction for an offense (Regalado, Vol. II, pp. 841-842, 2008 ed.)

Accused vs. Ordinary Witness

[in terms of the right against self-incrimination] The accused cannot be compelled to testify or produce evidence in the criminal case in which he is the accused or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the court. He cannot be so required either for the prosecution, for co-accused or even for himself. An ordinary witness, on the other hand, may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminating question at the time it is put to him. However, take note that: ROSETE vs. LIM G.R. No. 136051 | June 8, 2006 Any witness may refuse to take the witness stand in civil and administrative cases that partake the nature of or analogous to a criminal proceeding. As long as the suit is criminal in nature, the party thereto can decline to take the witness stand. It is not the character of the suit involved but the nature of the proceedings that controls.

ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

Example: Impeachment proceedings-limited grounds. If found guilty in an impeachment proceeding, it will cause for the removal from office and may lead to criminal prosecution. If the President is removed by impeachment, his or her immunity from prosecution is removed as well. Impeachment proceeding is akin or analogous to a criminal proceeding. ORDER IN THE EXAMINATION OF AN INDIVIDUAL WITNESS SECTION 4. Order in the examination of an individual witness. — The order in which an 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.

Notes: Under the rules, as promulgated, direct examination is supposed to be done in open court to guarantee the right to meet witnesses face to face and for the court to observe demeanor evidence. In civil cases, Section 1, Rule 133 of the Rules of Court, requires that in determining the preponderance of superior weight of evidence on the issues involved, the court may, among other things, consider the “witnesses’ manner of testifying” which can only be done if the witness says give their testimony orally and in open court. However, this rule has now been modified by the judicial affidavit rule.

DIRECT EXAMINATION

CROSS- EXAMINATION

RE-DIRECT EXAMINATION Re-examination by the party calling him to explain or supplement his answers given during the crossexamination. Questions on matters not dealt with during the cross-examination may be allowed by the court in its discretion. (Sec. 7)

JUDICIAL AFFIDAVIT RULE A.M. No. 12-8-8-SC, September 4, 2012

Requires that direct examination, which is the examination-in- chief of a witness by the party presenting him on the facts relevant to the issue, shall be in the form of judicial affidavits, subject the usual mode of cross examination. Comment: Instead of the counsel asking questions to be answered by the witness at the first instance and the latter answering the questions orally in open court, the direct examination will now be in the form of judicial affidavit in question and answer format. Language Requirement A judicial affidavit shall be prepared in the language known to the witness and, if not in English or Filipino, accompanied by a translation in English or Filipino. (Sec. 3)

Comment:

2 POINTS TO REMEMBER Prepared in the language known to the witness. For example, unlike judicial affidavit, in an ordinary affidavit (i.e. affidavit of loss) the language that is being used is not the language of the witness but the language of the counsel. Therefore, it can be said that it is the counsel himself that is testifying.

RE-CROSS EXAMINATION Re-examination by the adverse on matters stated in his re-direct examination and also on such other matters as may be allowed by the court in its discetion. (Sec. 8)

SECTION 5. Direct Examination. – Direct examination is the examination-in-chief of a witness by the party presenting him or her on the facts relevant to the issue.

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Examination-in-chief: you are going to present your witnesses, your testimonial evidence and have your objects sponsored by a witness. How? By the medium of direct examination.

Examination-in-chief of a witness by a party presenting him on the facts relevant to the issue. (Sec. 5)

Examination by the adverse party as to any 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)

FIRST EXAM

If not in English or Filipino, accompanied by a translation in English or Filipino. Filipino is also an official language of the Philippine Bar (language allowed in the courts of justice), not just English.

ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

JZE: I have this case, na tanan akong witnesses kay Ilonggo, so kinahanglan nako ug tao na makasabot Ilonggo para matranslate tarong ang testimony in English or in Filipino Contents of Judicial Affidavit (a) The name, age, residence or business address, and occupation of the witness; Ordinarily, before the JAR took effect, the witness will still be asked by the court interpreter or the bailiff his/her name, age, and other personal circumstances for the record.

(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. “Jurat” tells us that the witness went personally to the notary public. Nagpakita siya sa iyahang competent proof of identity. That is a notarial jurat. What are the characteristics of a Judicial Affidavit? 1.

Leading questions not allowed Dili pwede yes or no because it becomes a leading question. In a leading question, it is the lawyer testifying, not the witness. Merely confirms or denies by answering yes or no.

For example, I’m the lawyer and I have a witness. Atty. JZE, address is EYE Law Offices. And the address where the examination is being conducted. In all probability, is in the same office. Didto nako paadtuon akong witness para buhatan nako siya og judicial affidavit.

One fact question only But in a judicial affidavit and in direct examination prior to the judicial affidavit rule, it has to be a question answerable by one fact question. You are not allowed to lead a witness by requiring him to answer yes or no only. 2.

In actual practice, you do not ask the witness to take an oath in front of you. Although it is required under Section 3 that there should be a statement where the witness acknowledges that he is as if taking an oath in court and testifying accordingly. (d) 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; When we were talking about object evidence, we discussed how to authenticate. How do we establish the authenticity of object evidence. Apil nimo na diha sa judicial affidavit sa imong witness, ang pag-identify and

It is a statement of facts presented in question and answer form. The questions are asked by the counsel and answered by the witness. What is the customary mode of a direct examination? How do you ask questions of a witness? It is supposed to be, you ask questions answered by a fact. One question, one fact. Question of who, what, when, where, why and how.

(b) 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;

(c) 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;

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authenticate sa iyahang attached documentary and object evidence. No documentary and object evidence, there is nothing to identify and authenticate.

October 1 Part 3 | Macacua Before the Judicial Affidavit Rule took effect, when you testify, you will be asked by the court interpreter or the bailiff, your name, age, and other personal circumstances for the record. Transpose na lang nato na siya, ang counsel na lang sa nag-prepare sa judicial affidavit, siya na pod ang magbutang kanang name, personal circumstances of the witness.

FIRST EXAM

It is made under oath or affirmation. Although physically, you do not make a witness recite an oath. Do you swear to tell the truth and nothing but the truth? Dili na kinahanglan, but naa na siya. Judicial purpose only It serves a judicial purpose only. It is used as a substitute of a witness’ testimony on direct examination. It may contain and identify witness’ non-testimonial evidence, meaning documentary and object, which identifies and authenticates them.

It is prepared ex-parte as cross examination takes place, only after the judicial affidavit has been made. Although the taking of the testimony is not completely exparte. Ang ex-parte is only the portion of the direct testimony, the examination-in-chief of the witness, kay naa pa man mufollow anang direct examination. Naa pa tay cross-

ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

examination, redirect examination, recross examination. Cross examination takes place only after the judicial affidavit has been made.

FORM

EX-PARTE

LANGUAGE

USES

ADMISSIBILITY

HOW TESTIMONY MADE

WAIVER OF CROSS EXAM

DISTINCTIONS Ordinary Affidavit Judicial Affidavit Statement of ordinary Narration of facts facts under oath, but in Q&A form Always Ex-parte, subject to later cross examination in court Not prepared by Employs affiant’s own affiant, but by language, it requires another (lawyer) who that statement uses his own contains affiant’s language and makes words statements that may either be omitted or *Note: Lawyer is not misunderstood by the supposed to coach writer Practically anything One use only, to take under the sun the place of the testimony of the witness in direct examination Affidavit is mere The court will not hearsay when its consider the change, affiant or maker did only when the witness not make the witness fails to appear in the stand (Dantis vs hearing or does not Maghinay) conform to the content requirements under the attestation requirements The affiant must The affiant does not testify and be cross have to re-testify, examined in order inasmuch as his JA that the contents of constitutes his direct his affidavit be testimony. The rule admitted into court requires that he (re-testify) reaffirms his judicial affidavit, meaning, **Note: in contrast mag-attest siya in with summary rules open court na tama na iyang mga gipangbutang. Cross examination is Cross examination is waived by any means waived, if counsel allowed by law, does not appear and provided there is without valid cause, direct examination on despite due notice the contents of the affidavit

RATIONALE TO ALLOW COURT TO EXAMINE DEMEANOR EVIDENCE

He has to testify in open court, and the court can observe the witness’ manner of testifying from direct to recross

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Demeanor evidence can only be observed starting from the cross examination of the witness Dili nimo makita iyang demeanor when JA is being made ***NOTE: to compensate, sec. 7 provides that the court shall have active participation

*Note: Naa bay nakabutang sa Judicial Affidavit na dili ka pwede magpadala og copy sa questions nimo sa witness? Padala kag questions sa witness and and tell the witness to write the answers. Is there anything in the Judicial Affidavit that disallows you from doing that? That answer is no. It is a good circumvention, that would make sure that mashortcut nato and process of making the judicial affidavit. What is the most common affidavit in Civil Procedure? Verification. **Note: In summary rules of procedure, it will already be the substitute of the testimony. Ordinarily, you have to re-testify on the contents of your affidavit. ***NOTE: Section of Judicial Affidavit Rule Section 7. Examination of the witness on his judicial affidavit. The adverse party shall have the right to cross-examine the witness on his judicial affidavit and on the exhibits attached to the same. The party who presents the witness may also examine him as on re-direct. In every case, the court shall take active part in examining the witness to determine his credibility as well as the truth of his testimony and to elicit the answers that it needs for resolving the issues. What is the purpose of the Judicial Affidavit Rule? Very simple, to save time. The court saves time because the testimony of the witness is translated in advance. In the old procedure, your witness cannot understand English, you ask in the usual manner. Where were you at 3PM on October 1, 2020? If your witness does not understand English, the interpreter needs to translate your question into Cebuano, which the witness understands.

ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

Counsel: Diin ka alas tres sa hapon Oktubre 1, 2020? Witness: Naa ko sa amoang balay.

Then that's the time that the lawyer can ask his next question. Imagine how long it takes elicit one piece of information from a witness who does not understand English. PURPOSE: TO SAVE TIME The court saves time under the JAR because: 1. The testimony of the witness is translated in advance; 2.

The attached documentary and object evidence are pre identified and pre authenticated in accordance with the rules of court; Example: There are 10 documents that are to be identified and authenticated. To authenticate, there is a signature above the name of the document. C: In the letter you referred to earlier, can you take a look at the letter and examine the signature? W: (Ang witness mag-atik2x siya ug examine sa iyang signature). C: whose signature is that? W: It is my signature C: What's the relation of that signature to the letter that you were referring to earlier? No leading questions allowed like asking questions answerable by yes or not. o Leading question: Is that your signature? o Not a leading question: whose signature is that? If there are 10 documents, you also do it 10 times. If there are pages that have a signature, you have to ask the witness again if it is their signature. A lot of time is saved by doing away this menial task of identifying and authenticating documents.

There is no longer need for a lengthy direct examination; How long do you think that examination lasts? If it is your main witness, by one hour and 30 minutes at least. Now, if the entire hour actually takes place outside of the courtroom, mudiretso na ta sa the cross examination pagkita nato sa korte. Imagine spending 1 hour for direct examination, another 30 mins for cross examination, re-direct and re-cross which would take 30mins each at most. The court opens from 8:30-12. Imagine how much time do you need to present one witness alone. To

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be liberal, you can present 2 witness in one morning but if you remove 1 hour of direct examination and you go directly to the cross-examination, you can present 4 witnesses at least in one morning. You save a lot of time by taking out the period of time required for direct examination.

October 1 Part 4 | Maglinte

Comment: The lawyer afterwards cannot ask another question kay itranslate na pud sa interpreter na “I was at home”.

FIRST EXAM

Objections as to admissibility of testimonial and other evidence are threshed out before hand as the adverse party is furnished a copy of the judicial affidavit. So when you get a copy of the JA of your opponent, if there are objectionable questions about relevancy competency, misleading mission question, and other usual ground for objection. You can already comment on the affidavit before you go to the trial. In contrast before, maglalis pa mo sa counsel if mag-object ka.

Section 6. Offer of and objections to testimony in judicial affidavit. The party presenting the judicial affidavit of his witness in place of direct testimony shall state the purpose of such testimony at the start of the presentation of the witness. The adverse party may move to disqualify the witness or to strike out his affidavit or any of the answers found in it on ground of inadmissibility. The court shall promptly rule on the motion and, if granted, shall cause the marking of any excluded answer by placing it in brackets under the initials of an authorized court personnel, without prejudice to a tender of excluded evidence under Section 40 of Rule 132 of the Rules of Court Just take note when you raise your objections under sec. 6. Scope of application of the rule The applicability of this rule may refer to: a. the courts where the rule is applicable; b. the types of cases covered; and c. the stage of the proceedings, where the judicial affidavit is required. Under section 1, the Rule applies to the following courts: All MTCs All Shari’a Circuit Courts, District and Appellate Courts; RTCs; Sandiganbayan; Court of Tax Appeals; Investigating officers and bodies authorized by the Supreme Court to receive evidence, including the IBP; and Special courts and quasi-judicial bodies, whose rules of procedure are subject to the disapproval of the Supreme Court. Types of cases The rule shall apply to all actions, proceedings, and incidents requiring the reception of evidence. However the rule shall not apply to small claims cases under A. M. 08-8-7-SC. In small claims you do not file a complaint, you just fill up the form there

ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

The rule may apply to criminal cases in three situations as provided under Section 9, to wit: 1. where the maximum of impossible penalty does not exceed six years, 2. regardless of the penalty involved, with respect to the civil aspect of the actions, or 3. in any case where the accused agrees to the use of the Rule. o Remember the accused has the constitutional right to confront witnesses, meet the witnesses face to face including during direct examination. o So if you are the accused and you want to make use of your right to confront witnesses, then do not agree to the use of JAR but mandatory if the maximum imposable penalty does not exceed 6 years Take note that the JAR was made specifically applicable to cases already pending at the time of its promulgation (Sec. 12). This means that even if the pretrial had already been conducted, the presentation of evidence will be governed by the rule. According to Justice Abad, the presentation of witnesses will be considered incidents and the judicial affidavits should be submitted five days before the dates of the scheduled hearings. The stage of proceedings Under the opening sentence of Section 2, before the promulgation of the Amended Rules, the Rule applies to the presentation of the evidence-in-chief of the parties as well as to incidents and motions. Evidence-in-chief – you are the plaintiff and you present witnesses, that is your Evidence-in-chief Incidents and motions – only incidents and motions which requires the presentation of evidence. Example of motions In a case for recovery of possession, the defendant filed a motion to dismiss on the ground that the court has no jurisdiction over the subject matter of the claim. For a motion to dismiss under Rule 15 of the amended rules that is allowed (that is lack of jurisdiction over the subject matter). He avers that the assessed value of the real estate exceeds the jurisdictional parameter of cases cognizable in the MTC (does not exceed 20K – outside MM or does not exceed 50K – Metro Manila). The assessed value is 21, 000. Based on what we know from civil procedure, there will be a summary hearing on the motion to dismiss, and the movant may be required testify. He will prove and introduce evidence as to the actual assessed value of the real estate if it really exceeded the jurisdictional parameters of the MTC. So in that situation, he needs to file and serve his JA.

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Example of Incidents A complaint was filed with a prayer for the issuance of a writ of preliminary attachment of injunction Under the rules, there will be a hearing on this prayer and testimony by the applicant The rule requires the submission of judicial affidavits for these incidents as well. It is very clear under the JAR that it applies to all actions, proceedings and incidents requiring the reception of evidence. Service and Filing Now again, I want you to take note we're discussing the matter of service and filing under the context of JAR. We will of course make sense of the changes introduced by the amended rules later on. The Rule distinguishes the JA submitted for incidents and motions and JA submitted as part of the evidence-in-chief of a party. For JAs submitted in support of incidents and motions, the same must be filed and served 5 days prior to the scheduled hearing of incidents and motions. For JAs submitted as part of the party’s evidence-in-chief, the party shall serve on the adverse party and file with the court not later than 5 days before the pre-trial under the JAR. But again alter on, let me preempt you that this is already changed under the Amended Rules. Take note under Rule 18, sec. 6. SEC. 6. Pre-trial brief.— The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least three (3) calendar days before the date of the pre-trial xxx. Thus the prior promulgation of the Amended Rules, the deadline for submission of judicial affidavits is 2 days earlier than submission of pre-trial briefs. Effect is JA is not submitted on time Section 10. Effect of non-compliance with the judicial Affidavit Rule. - (a) A party who fails to submit the required judicial affidavits and exhibits on time shall be deemed to have waived their submission. In sec. 10 it is deemed that you have waived your submission of the JA. Even if you miss one day, it will be strict. But in the case of: Lara's Gifts and Decors v. PNB General Insurers G.R. No. 230429, January 24 2018 Issue: Can a party submit supplemental judicial affidavits contrary to Sections 2 (5 days prior to pretrial) and 10 (sanctions) of the JAR?

ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

Held: YES. The JA Rule and Guidelines on Pre-Trial do not totally proscribe the submission of additional evidence even after trial had already commenced. It bears to note that sec. 10 does not contain a blanket prohibition on the submission of additional evidence. However, the submission of evidence beyond the mandated period in the JA Rule is strictly subject to the conditions that: a. The court may allow the late submission of evidence only once; b. The party presenting the evidence proffers a valid reason for the delay; and c. The opposing party will not be prejudiced thereby. October 1 Part 5 | Ugdang In this case as well, the SC, had the guidelines on pre-trial, the issuance of the SC to confer upon the clerks of court. Confers upon the trial court the discretion to allow the introduction of evidence other than those that have been previously marked and identified during the pre-trial provided there are valid grounds. RESERVATION OF RIGHT TO PRESENT ADDITIONAL EVIDENCE In this case, both parties reserve the right to present additional evidence. According to the SC that reservation of the right to present additional evidence constitutes a WAIVER on the applications of sections 2 and 10 of the judicial affidavit rule. So, its actually a very novel case because again the judicial affidavit rule is a very novel … there are very few cases decided Now, misfiling in criminal cases. The general rule for JAR is the simultaneous filing and later on the pre-trial briefs. So, simultaneous, it must be submitted together. Later, I have a case that I will give you about simultaneous filing. But, an exception can be found on section 9. EXCEPTION TO SIMULTANEOUS FILING To the effect that, when it comes to criminal cases, the prosecution is subject to the rule. He has to submit the JD of his witnesses not later than 5 days to the pre-trial. But remember, the accused is not required to make the scheduled submission 5 days before the date of the scheduled pre-trial. They are not subject to it because they have different periods. If the accused wishes to be heard for a period for his defense after his submission of the JA of the prosecution, he shall have the option to submit his JA as well as of his witnesses within 10 days from the receipt of such affidavits (of the prosecution) and serve a copy to the public or private prosecutor. So, they have a different period given to the accused. Compared to the usual period given to the prosecution. So, take note that it is the exception to the general rule for the filing of JA. Now, how is service and filing made?

FIRST EXAM

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SERVICE AND FILING Sec. 2 notes two modes of service or filing of JA: 1. Personal service – which is preferred 2. Licensed courier service – we do remember that prior to the amended rules, the usual filing and service of registered mail (I want to ask somebody) What is the rule when you file by registered mail? What is the principle you need to remember if you are filing by registered mail? What was that? The date of? The date of mailing is the date of filing. What if you submitted a motion or a pleading by ordinary mail, are you allowed to do that? Yes. Can you file a pleading by ordinary mail? Yes. Actually, you can file anytime by ordinary mail. Except when you talk about it, you cannot apply the rule that the date of mailing is the date of filing. Because when you utilize ordinary mail, which can be made at anytime, the rule is that the date of RECEIPT is the date of filing. That is the difference between registered mail and ordinary mail. What happens when you file your JA by registered mail? Can it be done? because it is mentioned in sec. 2 that its either personal service or licensed courier service and let me tell you, the filing by registered mail, it is not the same as of the licensed carrier because it is a separate mode of filing by registered mail and filing by licensed carrier, they are not the same. Does this mean that the mode of filing, which is by registered mail not allowed under the JAR? It is still allowed. However, the rule, under the old dispensation, meaning under the unamended rules, that the date of mailing is the date of filing is NOT applicable. So, what happens here is it is the look out of the party that his JA is 5 days from the schedule of the pre-trial or schedule of hearing or motion under the JAR. It is your RISK. Otherwise, if you file by registered mail or service, you cannot apply the date of mailing is the date of filing. The date of receipt is the date of filing under the JAR then, if you use registered mail. It is your lookout, otherwise, it will run counter to sec. 10. You have run afoul. Maybe it will not be considered, the JA.

Sec. 4. The sworn attestation of the lawyer – it shall contain a sworn attestation of the lawyer at the end executed by the lawyer who conducted or supervised the examination of the witness to the effect that he faithfully recorded or caused to be recorded, the questions and the corresponding answers that the witness gave and neither he nor any other person then present, or assisting him, coached the witness with regards to the latter.

ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

EVIDENCE

III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

A false attestation shall subject the lawyer to disciplinary action including disbarment. So, again, here in section 4, the sworn attestation of the lawyer, the method where I submit questions to the witness, does it violate the provisions of section 4? Does it violate the attestation requirement? Do I still faithfully record or caused to be recorded the questions that I asked and the answers given by the witness? I do. But he already knows the questions im about to ask. Then, did I coach the witness regarding his answers? No. I just coached him about the questions that I was asking. Did I violate section 4 when I submit my questions in advance so that the JA would be made faster? No. I did not violate anything. Pero ayaw mog saba, kay secret lang na siya. Masuya baya dayon ang uban. Then, you will be filed for false attestation because he submitted the questions ahead of time to the witness. Of course not, I looked at section 4. TAKE NOTE: There is no requirement for the lawyer who prepared the JA who must be the one to present the witness in court. There is no such requirement. So, in effect, based on the language of the rules, there are at least 2 lawyers involved in the drafting of a judicial affidavit. First, the lawyer who conducts the examination and who also makes the attestation Second, the lawyer who notarizes the attestation of the one conducting the examination. So, you need two lawyers. But before the JA, when witnesses were asked questions before they testify in an open court, there was only one lawyer. So, that was the complaint with regards to the JA because it would require two lawyers. Two de parte lawyers minimum. Take note, [third] there can be another lawyer who will present the witness in court on the attestation. There is no requirement that the lawyer who prepared the JA would be the one to present the witness. EFFECT OF NON-COMPLIANCE We can divide that into 3: 1. Failure to file 2. Failure to comply 3. Absence during the scheduled trial date FAILURE TO FILE This is mainly codal. If you fail to file you JA [….], all the time would be waived submission. But the rule allows for an exception:

FIRST EXAM

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a. b. c. d.

There must be leave of court The delay must be for a valid reason It would not unduly prejudice the opposing party The defaulting party pays a fine of not less than 1k nor more than 5k e. Availed of only once No, you cannot violate this rule twice or request the belated submission twice, only once. FAILURE TO COMPLY Like for example, under sec 3 and attestation requirement under sec 4. The court may allow again, only once, the subsequent submission of the compliant replacement affidavits provided: a. Such was for a valid reason b. Would not unduly prejudice the opposing party c. Must pay also, 1k-5k maximum at the discretion of court d. Availed of only once ABSENCE DURING THE SCHEDULED TRIAL DATE We’ve discussed this, the witness was absent on that date, then his JA would not be considered, in fact even absence of one’s counsel is deemed to have waived his right to confront the witness through cross examination the witnesses there present. It is much worse in civ pro, the effect of failure to file a pre-trial brief – deemed to be a non-suited plaintiff and your case would be dismissed. If you are the defendant, and you did not file a pre-trial brief, what would be the effect? You are deemed to be as in default. This authorizes the plaintiff to present his evidence ex-parte. Here, deemed to waive the right to cross-examine the witness. It is much worse when compared to rule 18 (civil cases without pre-trial briefs) JURISPRUDENCE We’ve already discussed the meat of the JA, not every provision, but only the important ones. The beauty about this is that, since this is a new rule, then we only have little jurisprudence to consider. You can memorize the jurisprudence for purposes of the bar exam. Whatever questions under JA you can answer because there is only little jurisprudence. Dolo v. Paj August 27, 2013 This is actually a petition for continuing mandamus. Like the MMDA v. Concerned Residents of Manila Bay case. Where the SC actually took notice of the jurisprudence in India, of all places, because the concept of continuing mandamus started in India because the government was ordered by continuing mandamus to clean up the Ganges river.

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Until it is done, you have to do it, Rule 65, can be compelled to MMDA case, it is the same, until the Manila Bay would be cleaned, you have to do your work. (talking about politics and applying the MMDA case) Under sec. 1, if you file a petition for continuing mandamus, you have to attach your supporting evidence, the JA is testimonial evidence, am I right? That is the substitute of the direct testimony of the witness. So, here the RTC dismissed the case, on the ground that the parties failed to attach their JAs among other infirmities. “ahh you did not submit the JA, I will dismiss the petition for continuing mandamus” is this correct? NO. According to the SC, rule 8 requires that there must be supporting affidavits, but there’s nothing in rule 8 that compels the inclusion of JAs, but if you like to, you can attach the JA, but you are not mandated. October 1 Part 6 | Rojo It is only if the evidence of the petitioner would with conflict of testimony of witnesses, that would be the tie that judicial affidavit must be attached to the petition or complaint. However, we need to remember that under the amended rules in Rule 7 Section 60 na judicial affidavit of witnesses is now required to be attached to the pleading in form an integral part thereof. Only witnesses whose judicial affidavits are attached to the pleading shall be presented by parties during trial So, it is now very hard to file pleadings because you need to attach already the judicial affidavit. Sa pag file pa lang nimo ug complaint for example, all judicial affidavit of your prospective witnesses dapat naa na sila sa imong pleading, otherwise if that particular witness has no judicial affidavit, dili siya pwede i’present during trial under Rule 7 Section 60. We have this case of Ng Meng Tam, the question here is, if imong gusto kwaon na witness is your adverse party or a witness of the adverse party, meaning making him a hostile witness na gna tawag nato need ba ug subpoena? Looking at Section 5, subpoena requirement is not applicable. It is because dili nimo kailangan magbuhat ug judicial affidavit kung ang imong witness is a hostile witness or the adverse party. Kinsa na adverse party ang mu sugit na kwaon ka as a hostile witness sa imong kalaban?

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Section 5. Subpoena. – If the government employee or official, or the requested witness, who is neither the witness of the adverse party nor a hostile witness, unjustifiably declines to execute a judicial affidavit or refuses without just cause to make the relevant books, documents, or other things under his control available for copying, authentication, and eventual production in court, the requesting party may avail himself of the issuance of a subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. The rules governing the issuance of a subpoena to the witness in this case shall be the same as when taking his deposition except that the taking of a judicial affidavit shall be understood to be ex parte. HELD: Section 5 has no application to a hostile witness but there is no need for a finding that a witness unjustifiably refused to execute a judicial affidavit. Section 5 of the JAR contemplates a situation where there is a (a) government employee or official or (b) requested witness who is not the (1) adverse party’s witness nor (2) a hostile witness. If this person either (a) unjustifiably declines to execute a judicial affidavit or (b) refuses without just cause to make the relevant documents available to the other party and its presentation to court, Section 5 allows the requesting party to avail of issuance of subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. Thus, adverse party witnesses and hostile witnesses being excluded they are not covered by Section 5. Expression unius est exclusion alterius. The express mention of one person, thing, or consequence implies the exclusion of all others. The situation created before us begs the question: if the requested witness is the adverse party’s witness or a hostile witness, what procedure should be followed? The JAR being silent on this point, we turn to the provisions governing the rules on evidence covering hostile witnesses specially Section 12, Rule 132 of the Rules of Court which provides: SEC. 12. Party may not impeach his own witness. – Except with respect to witnesses referred to in paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his credibility.

Now, is there a way for you to utilize the adverse party as your own witness? That is what being discussed in this case.

A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the witnessstand.

NG MENG TAM vs. CHINA BANK G.R. No. 214054, August 5, 2015

The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by

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the party presenting him in all respects as if he had been called by the adverse party, except by evidence of his bad character. He may also be impeached and cross-examined by the adverse party, but such crossexamination must only be on the subject matter of his examination-in-chief. Before a party may be qualified under Section 12, Rule 132 of the Rules of Court, the party presenting the adverse party witness must comply with Section 6, Rule 25 of the Rules of Court which provides: 6. Effect of failure to serve written interrogatories. – Unless thereafter allowed by the SEC.

court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. Take note of this rule if you have an intention to call the adverse party as your witness in support of your cause of action or defense, dapat naay prior service of written interrogatories, otherwise you cannot compel him to give testimony in open court. In Afulugencia v. Metropolitan Bank & Trust Co., this Court stated that “in civil cases, the procedure of calling the adverse party to the witness stand is not allowed, unless written interrogatories are first served upon the latter.” One of the purposes of the above rule is to prevent fishing expeditions and needless delays; it is there to maintain order and facilitate the conduct of trial. It will be presumed that a party who does not serve written interrogatories on the adverse party beforehand will most likely be unable to elicit facts useful to its case if it later opts to call the adverse party to the witness stand as its witness. Instead, the process could be treated as a fishing expedition or an attempt at delaying the proceedings; it produces no significant result that a prior written interrogatories might bring. Remember this provision, not everyone knows this even other lawyers. Di na siya pwede basta-basta tawagon ang adverse party as a witness. Dili ka pwede mag fishing expedition, mao ng reason for the requirement dapat mag written interrogatories sa ka, Because, you can only examine the adverse party with respect to the matters included in the written interrogatories. In sum, Section 5 of the JAR expressly excludes from its application adverse party and hostile witnesses. For the presentation of these types of witnesses, the provisions on the Rules of Court under the Revised Rules of Evidence and all other

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correlative rules including the modes of deposition and discovery rules shall apply. FAIRLAND KNITCRAFT vs. PO G.R. No. 217694, January 27, 2016

Failure to attach annexes is not fatal if the complaint alleges a sufficient cause of action; evidence need not be attached to the complaint. This is the main ruling of the court. The court also had the occasion to look at the relevance of the JAR where documentary or object evidence are to be attached. The rules do not compel the plaintiff to attach his evidence to the complaint because, at this inception stage, he only has to file his complaint to establish his cause of action. The Court deems it proper to discuss the relevance of the Judicial Affidavit Rule or A.M. No. 12-8-8-SC, where documentary or object evidence are required to be attached. To begin with, the rule is not applicable because such evidence are required to be attached to a judicial affidavit, not to a complaint. Moreover, as the rule took effect only on January 1, 2013, it cannot be required in this case because this was earlier filed on December 12, 2012. Granting that it can be applied retroactively, the rule being essentially remedial, still it has no bearing on the ruling of this Court. In the Judicial Affidavit Rule, the attachments of documentary or object evidence to the affidavits is required when there would be a pre-trial or preliminary conference or the scheduled hearing. Where a defendant fails to file an answer, the court shall render judgment, either motu proprio or upon plaintiffs motion, based solely on the facts alleged in the complaint and limited to what is prayed for. Thus, where there is no answer, there is no need for a pre-trial, preliminary conference or hearing. Since there is no answer, therefore there is no chance to schedule for a pre-trial or preliminary conference. So, it is not required to submit JA with your attachments of document or object evidence. In the case of LAGON, according to the defendant: I am not required

to present evidence – plaintiff should be the one who should present first his evidence. But because of JAR, I am now required to submit simultaneously which rendered my right to file demurrer to evidence nugatory.

Q: When do you file demurrer to evidence? A: Under Rule 33, you file it after the plaintiff presents his evidence in chief. So, the defendant said here that, diba as a defendant in presenting

of evidence I have the right to file demurrer. It is only when my demurrer to evidence is denied that I am now supposed to present the evidence.

ACEVEDO . AMISTAD . BAHALLA . CAMPANER . DU . ESCRITOR . ESTROSAS . FERNANDEZ . JAMERO . MACACUA . MAGLINTE . UGDANG

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AFFECTING THE JUDICIAL AFFIDAVIT RULE Q; is his right to file a demurrer to evidence rendered nugatory A: According to the Supreme Court, NO. LAGON vs. VELASCO G.R. No. 208424, February 14, 2018 ISSUE: Whether or not Section 2 of the Judicial Affidavit Rule, which requires a defendant to adduce his testimony and that of his witnesses by judicial affidavits, and submit his documentary evidence before the pre-trial or preliminary conference, offends his right to due process of law (i.e., it forces him to present evidence simultaneously with the plaintiff, rendering the right to file a demurrer nugatory). There is nothing in the provisions of the Judicial Affidavit Rule, which prohibits a defendant from filing a demurrer to evidence, if he truly believes that the evidence adduced by the plaintiff is insufficient. Besides, in the resolution of the demurrer to evidence, only the evidence presented by the plaintiff shall be considered and weighed by the Court. Furthermore, the fact that the defendant is mandated to submit his judicial affidavit prior to the trial and before the plaintiff has rested his case is not a cumbersome requirement or a circumvention of due process. On the contrary, this Is necessary for the orderly administration of the proceeding before the courts. It must be remembered that in as early as the pre-trial conference, the defendant is already required to submit a pre-trial brief, where he is then tasked to state the number and names of his witnesses, as well as the substance of their testimonies; the issues to be tried and resolved; and the documents or exhibits to be presented and the purpose thereof. Thus, the defendant is already required in this early stage of the proceedings to formulate his defense and plan his strategy to counter the plaintiffs complaint. There is nothing too tedious or burdensome in requiring the submission of the judicial affidavit. In fact, this would even help the defendant in preparing his opposing arguments against the plaintiff. So, dili siya repugnant. Ang JAR which it meant to speed up proceedings is not repugnant to a demurrer to evidence which also seek to an expedited of trial. In fact, pwede sila mag exist harmoniously. Read also: Lim vs. Lim (G.R. No. 214163, July 1, 2019) Ang g’buhat diri sa prosecution para dili siya mapugsan mag submit ug judicial affidavit, sige siya ug pa postpone sa pre-trial, thrice. On the third postponement, it was also belated. So, what is the basis here? Read the case.

RECENT RULES AND AMENDMENTS

Modifications for Criminal Cases A.M. No. 15-06-10-SC, or the Revised Guidelines for Continuous Trial of Criminal Cases, which took effect on September 1, 2017 Here, diba dapat ang JAR applicable to all cases and courts? However, the said revised rule seem to depart from the preferential use of judicial affidavits as substitutes for testimony. Q: Why? A: Because in criminal cases in first level courts (i.e., Municipal and Metropolitan Trial Courts, etc.), witness testimony shall consist of: 1. duly subscribed written statements given to law enforcement officers; or 2. affidavits or counter-affidavits submitted during preliminary investigation; or 3. if (1) and (2) are not available, judicial affidavits. So, judicial affidavits are no longer preferred. Pwede na ang duly (1) subscribed written statements or (2) affidavits or counter-affidavits. What about RTC, Sandiganbayan and CTA? In criminal cases before the RTC, SB and CTA, the form of testimony depends on the type of case being prosecuted in such courts. Where (1) the demeanor of the witness is not essential in determining the credibility of the said witness, such as expert witnesses who will testify on the authenticity, due execution, and contents of public documents or reports; and (2) in criminal cases that are transactional in character such as falsification, malversation, or estafa, or other crimes where the culpability or innocence of the accused can be established through documents, the testimonies of the witnesses shall be: a. The duly subscribed written statements given to law enforcement officers; or b. The Affidavits or counter-affidavits submitted during preliminary investigation; or c. If (a) and (b) are not available, judicial affidavits. In all other cases where the culpability or innocence of the accused is based on the testimonies of eyewitnesses, the testimonies of these witnesses shall be in oral form. Preferred ba ang judicial affidavits? Not really. Mas preferred ang (a) and (b). Q; As to the last paragraph of the provision, what is the testimony here? A: It is oral testimony. Meaning, mubalik na pud ta sa dati na it shall be done in oral testimony in open court and not by means of judicial

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affidavit. That’s a change in JAR when it comes to criminal cases, dili na siya preferred.

Mura bitaw’g wala na juy unfair surprises diri, cause you have to lay all your cards on the table sa sugod pa lang sa litigation.

Modification for Civil Cases Under the new Rules on Civil Procedure, specifically Rule 7 (Parts and Contents of Pleadings), it is now provided that: Section 6. Contents. – Every pleading stating a party’s claims or defenses shall, in addition to those mandated by Section 2, Rule, 7, state the following:

How do the changes play out procedurally? The holding in Fairland Knitcraft vs. PO (GR No. 217694, January 27, 2016) that failure to attach annexes is not fatal if the complaint alleges a sufficient cause of action and that evidence need not be attached to the complaint is deemed abrogated. Judicial affidavits, documentary and object evidence in support of the allegations contained in the pleading (whether the complaint or the answer) are now required to be attached thereto. The dates for filing of judicial affidavits have been changed. o Before, when do you file judicial affidavits? Five days before the date of the scheduled pre-trial. o Now, for JAs that form part of a party’s evidence-inchief, they have to be attached to the relevant pleading.

(a) Names of witnesses who will be presented to prove a party’s claim or defense; (b) Summary of the witnesses’ intended testimonies, provided that the judicial affidavits of said witnesses shall be attached to the pleading and form an integral part thereof. Only witnesses whose judicial affidavits are attached to the pleading shall be presented by the parties during trial. Except if a party presents meritorious reasons as basis for the admission of additional witnesses, no other witness or affidavit shall be heard or admitted by the court; and

Di na ka maghulat ug pre-trial. So within the prescriptive period of filing the answer, if you are the defendant, dapat naka-attach na imong judicial affidavits.

As what I have said, when you file your complaint or answer, dapat naa na dira ang judicial affidavits sa imong witnesses. Lisod na kaayo mag file ug answer karun. That is why the period for filing an answer has been correlatively increased, from 15 days of receipt of summons together with the copy of the complaint it is now 30 days -- because you have to file also judicial affidavits. You do not have the benefit of time if you are the defendant.

Compared to a plaintiff when he files his complaint, provided that he still within the prescriptive period for filing, he can still take his time to complete his judicial affidavits. Also, documentary and object evidence in support of the allegations contained in the pleading dapat naa na pud na sa imong pleading. Unlike before under JAR, dapat na identify na and authenticated by judicial affidavit. Pero kung unsa ng mga documentary or object evidence in support of the allegation, dapat ibutang pud sa pleading. Q: How does this affect the Civil Procedure? A: It greatly affects the Civil Procedure. Before, the rule is that every pleading shall contain only the statement of ultimate facts and omit mere statement of evidentiary facts. That is the rule before. October 1 Part 7 | Campaner Karon, unsa na ang rule? Both ultimate facts and evidentiary facts are required to be stated in the pleading.

Thus, if you are the Plaintiff, the Jas should now be attached to your complaint. As a general rule, only witnesses whose judicial affidavits are attached to the complaint can be presented by the plaintiff during trial. If you are the Defendant, the JAs should be attached to your answer. Similarly, only witnesses whose judicial affidavits are attached to the answer shall be presented by the plaintiff during trial. The rule that requires submission of JAs not later than five days before pre-trial or preliminary conference is deemed abrogated already.

So, murag hinay hinay nahimo bang nonsense ang judicial affidavit rule? Actually, NO, because take note that JAs can also be submitted for the purposes of incidents and motions requiring the submission of evidence. What about JAs for incidents and motions (i.e., not later than five days before the scheduled hearing with respect to motions and incidents)? IT DEPENDS upon the motion or incident.

INCIDENTS EXAMPLE: Prayer for issuance of a writ of preliminary injunction. When do you pray for this? When is it granted? o Under Rule 58, Section 1, a preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgement or final order.

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Thus, if you already praying for a writ of preliminary injunction when you file your complaint, the JAs supporting your prayer should be attached to your complaint already.

So di ka magbase kung kanus-a i-hearing ang imong prayer for the writ of preliminary injunction. Sa pagfile pa lang nimo, dapat naa na didto imong JA in support of your prayer. Why? Because that is also a claim and it is available at the time you file the complaint. o

However, if the grounds for injunctive relief become apparent only during trial that you could not have prayed for it when you filed your pleading, your remedy is to pray for the issuance of injunctive relief during trial. Thus, you should submit JAs not later than five days before the scheduled hearing of such incident.

Posible man gud na ang mga actions na gusto nimo ipaenjoin sa court took place when the trial is already taking place. Could you have prayed for that at the time you filed the complaint? No. So, the grounds for injunctive relief became apparent only after the filing na. So, when will you file your JA? Balik na pud ka sa deadline sa JAR, not later than five days before the scheduled hearing of such incident. EXAMPLE: Prayer for issuance of a writ of preliminary attachment. When do you pray for this? When is it granted? o Under Rule 57, Section 1, at the commencement of the action or at any time before entry of judgement, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgement that may be recovered. o Thus, if you are already praying for a writ of preliminary attachment at the commencement of the action, the JAs supporting your prayer should be attached to your complaint already. o However, if the grounds for attachment becomes apparent only during trial (at any time before entry of judgement), you could not have set it up in your complaint. Again, you have to pray for the issuance of the relief during trial. So when do you submit your JAs? Thus, you should submit JAs not later than five days before the scheduled hearing of the prayer for issuance of the writ of preliminary attachment. MOTIONS EXAMPLE: Motion to dismiss, when allowed, like one based on prescription o In this motion to dismiss, you have to prove the date when prescription began to run (Aznar Brothers Realty Co. vs Aying, GR No. 144773, May 16,

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2005). This ground is also available to the Defendant as an affirmative defense when he files his answer. Take note that failure to raise an available affirmative defense at the earliest opportunity shall constitute a waiver thereof. [Rule 8, Section 12(b) But eitherway o In this setting and using this ground of prescription, the Amended Rules imply that JAs in support thereof should be attached to the answer or the motion to dismiss. o You don’t file your JAs according to the period set in the Judicial Affidavit Rule (i.e., not later than five days before the scheduled hearing with respect to motions and incidents). o Again, only witnesses whose judicial affidavits are attached to the pleading shall be presented by the plaintiff during trial. SUMMARY If the testimony is already required and available at the time of filing the pleading, the judicial affidavit should be attached to the pleading. o We’re talking about incidents and motions, not testimonies of witnesses as evidence in chief. If the need for such testimony arises only after the filing of the pleadings (i.e., during trial), the judicial affidavit should be filed not later than five days prior to the hearing of the incident or motion where such testimony will be presented.

So take note of this, kay siguro sa exam I can ask you “When do you need to file your JA?” I’ll give you a situation and ask you that question. So, mao ni sya ang guiding principles nato diri. October 7 Part 1 | Acevedo Prior to amendment:

Section 6. 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. (8a) This is the provision prior to amendment. After the amendment:

Section 6. Cross-examination; its purpose and extent. — Upon the termination of the direct examination, the witness may be cross-examined by the adverse party on any relevant matter, with sufficient fullness and freedom to test his or her accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. (6a)

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Cross examination is not only a procedural device but also a procedural right on the part of the opponent or the party who was not presenting the witness. A. CROSS EXAMINATION AS A PROCEDURAL DEVICE (1) It is a procedural matter inasmuch as it follows direct examination. It is a device in the sense that by the use of skillful examination, the opponent may be able to cast doubt on the veracity and the truthfulness of the testimony of the witness. It is also a right. If the party is denied the opportunity for cross-examination, then it is a violation of his right to due process. In criminal cases, the right of the accused to meet the witnesses face to face, our right of confrontation. B.

PURPOSES OF CROSS-EXAMINATION 1. To impeach the credibility of the testimony; When a party cross-examines, he wants to as much as possible impress upon the judge that there is a hole or wrong on the testimony of the witness. 2.

To impeach the credibility of the witness; But it is also a device to impeach the credibility of a witness himself.

To elicit admissions; and

To clarify certain matters. If there is a need to clarify for the opposing party the testimony of the witness of the other party during the direct examination. We can do all of that during the crossexamination.

WHAT IS THE SCOPE OF THE CROSS-EXAMINATION? 1.

English Rule Where a witness is called to testify to a particular fact, he becomes a witness for all purposes and may be fully crossexamined upon all matters material to the issue, the examination not being confined to the matters inquired about in the direct examination. Note: Under the English Rule, it allows you to ask practically any matter. The only limitation thereof is that it should be material to the issue. You can ask as many questions as you want the moment you are able to establish the materiality of your questions.

American Rule Cross-examination is restricted to facts and circumstances which are connected with the matters that have been stated in the direct examination of the witness.

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Note: This actually seeks to limit the time for crossexamination and the scope of the cross-examination only to matters that were said by the witness during the direct examination. Example: Imagine the course of the examination of a witness like an inverted pyramid where the biggest portion is the top. The top portion is devoted to the direct examination. (a) A witness may be directly examined, prior to the JAR, for 1 hour, the number of questions should be asked ideally to a witness ideally during the crossexamination. There will be a narrower scope just like an inverted pyramid. The cross-examination should not exceed the number of questions asked during direct examination. If you cannot ask relevant questions that would be helpful to your cause of action or to your defense with that limit in mind, then you are not in cross-examining. You do not know how to cross-examination if you need for more questions than counsel asked during the direct examination for your cross examination. (b) It should also be that in the re-direct examination in the next provision, it should be less than the questions asked during the cross examination. (c)

Finally, when we come to the re-cross examination, there will be a lesser questions or maybe the parties can waive the right to re-cross or re-direct sometimes, so it is waived (No redirect, your Honor, No re-cross, Your Honor). The witness should not be detained longer than the interest of justice require.

What is the rule observed in our jurisdiction? General Rule: The English Rule is observed in our jurisdiction. You can ask practically anything. Prior to the amendment, the witness may be cross-examined by the adverse party as to any matters stated in the direct examination or connected therewith with sufficient fullness and freedom, etc. You can exceed actually, you can ask as many questions as you would like in the English Rule. We have that as our general rule because of our prior codal provision. Exception: The American rule [you just limit in the matter stated in the direct examination] is observed with respect to cross-examination of an accused or a hostile witness. Note: (a) The English is made as the general rule as to any other witness

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(b) But the American Rule is observed with respect to the accused or a hostile witness or an adverse party witness. D.

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(1) Because of lack of material time—the court has other hearing to attend to or other hearing; or (2) The witness is physically indisposed because the witness is crying.

TAKE NOTE OF THE PHRASEOLOGY IN THE AMENDMENT The court postponed it.

Comment: But [in relation to the above discussion on what rule is applied], it leads me to doubt if that is still the current state under our rules which is the general rule is English Rule and the Exception will be the American rule with respect to the accused or hostile witnesses. Old Rule “as to any matters stated in the direct examination, or connected therewith.

But the problem: The next hearing, when the cross examination was supposed to be set thru no fault of the cross-examining party, we cannot continue anymore because the witness died. What would be the effect? General Rule: The entire direct examination should be stricken off the record.

New Rule It is reduced by simply stating that you can cross examine “on any relevant matter”.

Exception: People v. Gorospe Where the prosecution witness was extensively crossexamined on the material points and thereafter failed to appear and cannot be produced despite a warrant of arrest.

Current Rule: Instead of materiality that is being the standard in determining what questions can be asked during cross-examination it seems that there is no longer any reason to belabor the need to define the scope of cross-examination as one following the English Rule or one following the American Rule.

The testimony on record can remain because there was an extensive cross-examination on material points. It should not be susceptible thru a motion to strike a testimony because the other party was only given the opportunity to extensively cross-examine.

The Rule on cross-examination, as it is now stands, is reduced to most basic of evidentiary considerations, that of relevancy or whether the questions asked tend to have such a relation to the fact in issue as to induce belief in its existence or non-existence. Note: If your questions are relevant, then you can ask it during cross-examination. E.

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EFFECT OF LACK OF CROSS-EXAMINATION The testimony of a witness who has not cross-examined is technically hearsay. Being hearsay, it is not to be admissible.

DOCTRINE OF INCOMPLETE TESTIMONY Note: As stated earlier, cross-examination is not only a procedural device but it is also a procedural right—meaning you have to give the right to the adverse party to cross examine.

Two concept of hearsay evidence: (1) Testifying not based on personal knowledge; (2) Where the other party was not given the opportunity to cross-examine, technically it is hearsay.

As to the doctrine of incomplete testimony, it states that: When cross-examination cannot be done or completed due to causes attributable to the party who offered the witness, the incomplete testimony is rendered incompetent and should be stricken from the record.

What is the remedy? In such a case, the remedy of the opponent is a motion to strike.

The cross-examination cannot be done or it will not be finished, and the cause of that is the party who offered the witness. The one who conducted the direct examination whether by judicial affidavit or otherwise, the one who conducted direct examination. Situation: After the direct examination, the proponent or the party who offered the witness said: Your Honor, can we defer the cross

examination:

Motion to strike It is a legal motion given by one party in a trial requesting the presiding judge to order the removal of all or part of the opposing party’s pleading or of all or part of a trial witness’s testimony. G.

WAIVER a. Cross-examination can be waived. Waiver of the right to cross examine may be: (1) Express; or (2) Implied. b.

On the matter of Implied waiver

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Dela Paz v. IAC Right of cross examination not an absolute right The right of cross examination is not an absolute right which a party can demand at all times. The right is a personal one which may be waived expressly or impliedly by conduct amounting to a renunciation of the right of cross-examination. Thus, where a party has had the opportunity to crossexamine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness will be received or allowed to remain in the record. Comment: This means that, you already waived your right to cross-examine whether expressly or impliedly by conduct amounting to renunciation of cross-examination. That testimony should remain in the record. The conduct of a party which may be construed as an implied waiver of the right to cross-examine may take various forms. But the common basic principle underlying the application of the rule on implied waiver is that the party was given the opportunity to confront and cross-examine an opposing witness but failed to take advantage of it for reasons attributable to himself alone. Example: I am the one who is supposed to cross examine after the completion of the direct examination of the witness. I told the court: Your Honor, can I ask for the

postponement of the trial because I am not ready to crossexamine” You can do that in trial for as long as the opposing counsel does not object. But actually, what I just want to do is to let it be postponed today so that I can have time to get the TSN so that I can prepare my cross-examination ultimately. This happens a lot.

If the cross-examination was deferred at the instance of the proponent or the witness himself, meaning katong nag present sa witness, the testimony on direct examination must be stricken out because the failure to cross-examine was due to a cause not attributable to the opponent. What about if it is the court who had it deferred, e.g. for lack of time? What will happen to the testimony on direct examination? If the cross-examination was deferred at the instance of the court, the testimony on direct examination must be stricken out because the failure to cross-examine was again due to a cause not attributable to the opponent. Why? kay kinsa man diay ng sala? Dili man sala sa opponent, or the person ready to cross-examine, it was the fault of the court, so it has to be stricken off the record, otherwise there would be a denial of the right of due process. However, if the deferment was due to a cause attributable to the opponent (i.e., the cross-examiner), then the testimony on direct examination would stand, may be used by the court in its consideration of the controversy and is not susceptible to a motion to strike. In this case, the conduct of the opponent himself amounts to a waiver. Like the example I mentioned earlier, when I asked for the postponement of the cross-examination at a later date since it was the instruction of my superiors. So if ever, the witness cannot return (death, incapacity etc.), then the testimony should remain on the record kay sala sa cross-examiner. COMPLETE PICTURE IN RELATION TO CROSS-EXAMINATION 1.

ADMISSIONS The several rules in relation to extrajudicial admissions (i.e. selfserving admissions, res inter alios acta rule) do not apply if the party who made the admission out of court is cross-examined. Recall, when there is already a cross-examination you can no longer apply the res inter alios acta rule, and there is no such thing as a self-serving admission that is made in open court and is subject to crossexamination.

October 7 Part 2 | Amistad 2.

HEARSAY A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement.

PRIVILEGE COMMUNICATIONS Objections grounded on the privileged nature of the communication or information are waived by the act of cross-

What rule should be followed in case the failure to cross-examine is due to fortuitous causes such as the death or incapacity of the witness? It depends on the reason why cross-examination was not conducted after the completion of testimony on direct examination.

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Again, ang kinahanglan lang nato timan'an is kay kinsa bang sala na wala na conduct ang cross-examination in the first place.

It is a procedural advantage.

SUMMARY

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examining the witness on privileged matters. (e.g. marital privilege communication rule) You know for a fact that the wife was testifying against the husband on privileged matters, but instead of objecting you cross-examined kay pagtuo nimo'g bakak ang gi ingun atong wife against your client. Here, due to the fact that you cross-examined the wife then your objection based on the MPCR is waived. You should not cross-examine, just maintain your continuing objection on the privilege nature of that testimony. 4.

STATUTE OF FRAUDS The act of cross-examination on prohibited matters amount to a waiver of objections grounded on the Statute. When do you object when you use the Statute of Frauds as the ground of your objection? Suppose the opposing party wants to prove a contract that was orally made and that contract is within the purview of Art. 1403(2) of the Civil Code, if wala'y note or memorandum on that agreement between the parties then it cannot be proved in court, it is unenforceable. You just object on the ground of Statute of Frauds. What if the Judge has forgotten about the Statute of Frauds? or that the court allowed the testimony? What would you do? Don't cross-examine, just have your objection placed on the record, Why? because the moment that you cross-examine, wala na, you cannot avail anymore of the objection grounded on the Statute of Frauds, you deemed to have waived it.

TESTIMONY OR DEPOSITION AT THE FORMER PROCEEDING This is one of the exceptions to the hearsay rule. The testimony or deposition of a witness deceased or otherwise unable to testify, given in a former case or proceeding involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him or her. CHARACTER EVIDENCE In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. LEADING QUESTIONS A leading question is one which suggests to the witness the answer which the examining party desires. It is generally not

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allowed. However, it is allowed on cross-examination by way of exception. 8.

HOSTILE WITNESSES A hostile witness or a witness who is an adverse party may be impeached and cross-examined by the adverse party, but such cross-examination must only be on the subject matter of his or her examination-in-chief.

RE-DIRECT EXAMINATION

Sec. 7. Re-direct examination, its purpose and extent. – After

the cross-examination of the witness has been concluded, he or she may be re-examined by the party calling him or her to explain or supplement his or her answers given during the crossexamination. On re-direct examination, questions on matters not dealt with during the cross-examination may be allowed by the court in its discretion. (7a) So supposedly this is the American Rule, kung unsa lang ang covered during cross-examination mao lang na ang pwede nimo ipangutana sa witness.

But this provision itself is confused

Why? Because the first sentence tells you na limited lang na siya ang scope sa questions or answers given during the cross-examination. But the second sentence tells you otherwise, that on re-direct examination, questions on matters not dealt with during the crossexamination may be allowed by the court in its discretion. Meaning, the court can do anything, the court can exercise it's discretion however it pleases. With that dangerous discretion of the court, pwede mangutana og mga butang na wala gi pangutana during the cross-examination. You can even introduce new matters if the court allows it, which should not be the case. You're done with your examination-in-chief that's it. You should not be allowed to introduce new matters, unless mag rebuttal ka. To my mind, dili ni dapat siya pwede, dapat gi tanggal ni na sentence sa Supreme Court, because it leads to unnecessary delay. But the Supreme Court did not bother to change Sec. 7. RE-CROSS EXAMINATION

Sec. 8. Re-cross examination. – Upon the conclusion of the redirect examination, the adverse party may re-cross-examine the witness on matters stated in his or her re-direct examination, and also on such other matters as may be allowed by the court in its discretion. (8a) Take note again of the second phrase, "and also on such other matters as may be allowed by the court in its discretion." My point being that, when you talk about re-direct examination and recross examination, you are actually allowing too much leeway or premium on the word judicial discretion, which should not be because Judges are humans and they have their own biases. So, why

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can't we limit the scope on the matters stated in the re-direct examination. That is only my opinion in order to prevent any delay. October 7 Part 3 | Bahalla Let’s go back. Kabalo naman ta unsa ning Leading Questions diba. It is a question which suggests already the answer which the party desires. Meaning, all that the witness has to do will be to confirm or to deny by saying “yes” or “no.” That is not allowed as a general rule. Why? Because when the witness simply confirms or denies by saying “yes” or “no,” as the case may be, the language that would be placed in the records of the case will not be the language of the witness. It will be the language of counsel. “Were you at home at the time of the incident? Yes or no.” And you do that during direct examination, and we know that that is not allowed during direct examination. So, language na na sa counsel asking the question. Dili na na siya language sa witness. Igo lang siya nag-confirm or deny. So, leading questions, take note, not allowed during direct examination. Questions should be answered by a particular fact: Who, What, Where, When, Why, How. Then, cross examination, allowed siya. Why? Diba naa kay sufficient fullness and freedom to test the accuracy or truthfulness. So, pwede ikaw ang mag-control sa proceedings diha because that is your cross-examination as the adverse counsel or the opposing counsel. But take note, in re-direct examination, not allowed na na siya gihapon because you follow the rules on direct examination when you conduct your re-direct examination. You cannot lead the witness. But, once again, pag-abot sa re-cross examination, allowed napud ang cross examination type questioning. Meaning, you can ask leading questions because it is simply considered a continuation of your cross examination. LEADING QUESTIONS WHETHER ALLOWED OR NOT Direct Examination NOT Allowed Cross Examination Allowed Re-Direct Examination NOT Allowed Re-cross Examination Allowed STAGE

Section 9. Recalling witness. – After the examination of a

witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require. (9)

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“After the examination of a witness by both sides has been concluded”

Meaning, the witness was already excused. Gipa-uli na with the thanks of the court.

“the witness cannot be recalled without leave of the court.” Meaning, pag nahuman na na, gi-excuse na na sa korte, di na nimo na siya pwede i-examine ug balik. But, again, the court will grant or withhold leave in its discretion, as the interests of justice may require. General Rule: Dili pwede tawagon ug balik ang witness na na-excuse na from the proceedings. Exception: Judicial discretion. Why is Leave of Court required? Leave of court is required because recalling a witness is repugnant to his fundamental right “not to be detained longer than the interests of justice require.” The court must be given the opportunity to determine first whether or not the recall of the witness is unnecessary or merely vexatious. Meaning, wala lang. You’re going to try to conduct a belated fishing expedition. Alright? Pabalikon nimo ang witness for whatever reason. So, dapat the court should know and should be able to decide. And the other party must be allowed to object or to comment or to oppose the Motion for Leave to Recall a Witness. What is this criteria for grant of leave? Thankfully, dili bitaw absolute ang discretion na ginahatag sa court. There has to be a criteria that the court should look at in determining whether or not to grant leave to recall a witness. People vs. Rivera G.R. No. 98376, August 16, 1991 There must be a satisfactory showing of some concrete, substantial ground for the recall. There must be a satisfactory showing on the movant’s part, for instance, that particularly identified material points were not covered in the crossexamination, or that particularly described vital documents were not presented to the witness whose recall is prayed for, or that the cross-examination was conducted in so inept a manner as to result in a virtual absence thereof. So, you’re the lawyer asking for leave and then you’re supposed to say that banga kaayo kag cross examination na vital documents, you failed to present them to the witness, and your cross examination was so inept that it results in a virtual absence of cross-examination. Is that what the law is actually talking about in recalling a witness? No. Why? Because this situation actually refers to one where you are simply taking over the work of a former counsel. Meaning, the original client and lawyer, they already parted ways. Kay ngano? The

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lawyer withdrew from the case or was fired by the client. It happens a lot. There was this one time where I had to take over the case from another lawyer who is my friend. And so, the only lusot na makita nako to try to win an acquittal for my client wasto recall ang main witness for the prosecution- katong private complainant. It was a case for theft where the client maintains his innocence sa akoa. Giadto nako ang lawyer ug nananghid nga irecall nako ang witness. Nakasabot man pud siya so I was able to recall the witness.

Section 11. Impeachment of adverse party’s witness. – A witness may be impeached by the party against whom he or she was called, by contradictory evidence, by evidence that his or her general reputation for truth, honesty, or integrity is bad, or by evidence that he or she has made at other times statements inconsistent with his or her present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or record of the judgment, that he or she has been convicted of an offense. (11a) A very important provision. So, under Section 11, a witness may be impeached by the opponent. What do you mean impeached? Dauton nimo ang witness. How do you do that? MODES OF IMPEACHMENT A witness may be impeached by the opponent: 1.

By contradictory evidence By presenting contradictory evidence as to what the witness is saying, in effect, you are telling the court na “Uy, namakak na siya. Dili tinood na iyahang gina-ingon.”

By evidence that his general reputation for truth, honestly, or integrity is bad So, in this particular situation, in essence, you are presenting Character Evidence. Ingnon nimo ang korte “Ay dili. Bakakon jud na siya. Tong elementary pa na, kusug kaayo na mangopya. Pareha pud atong highschool.” You’re telling the court that the witness is not honest.

By evidence that he has made at other times statements inconsistent with his present testimony Evidence by prior inconsistent statements

By evidence of conviction of an offense

OTHER MODES OF IMPEACHMENT (from the book of Francisco, 1992 ed) (a) By showing improbability or unreasonableness of testimony I have this witness who is the victim in a vehicular accident. Improbable kaayo nga nabanggan kag motor unya nilupad kag 50 meters. This is what the opposing counsel

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did to the witness during cross-examinaton: “ngano buhi pa ka until now kung nilupad kag 50 meters? Patay na unta ka.” (the curious case of a flying man in my book) (b) By showing bias, prejudice, and hostility; (c) By prior inconsistent acts or conduct similar to prior inconsistent statements; (d) By showing social connections, occupation and manner of living; (e) By showing interest in the outcome of the case

Section 12. Impeachment by evidence of conviction of crime. – For the purpose of impeaching a witness, evidence that he or

she has been convicted by final judgment of a crime shall be admitted if (a) the crime was punishable by a penalty in excess of one (1) year; or (b) the crime involved moral turpitude, regardless of the penalty. However, evidence of a conviction is not admissible if the conviction has been the subject of an amnesty or annulment of the conviction. (n) Take note, pwede nimo i-impeach by conviction. Why? Because, anyway, it is already a public record that’s by final judgement. Its no longer on appeal. Final na na siya. You’ve already been convicted. Remember diba, when we were discussing the rights of a witness, the witness must answer the questions even if it tends to establish a claim against him except when right against self-incrimination applies or the Right against Self-degradation applies. Exception to the exception would be final conviction for an offense. You have to answer to your previous final conviction. Continuation lang sya ani kaning Section 12 to Section 11 na ang conviction of a crime is a manner of impeachment. Again, Section 11 says that it may be shown by the examination of a witness or the record of judgment that he or she has been convicted of an offense. Section 12 sets the parameters of impeachment. How do you do it kuntahay prior conviction of judgement ang manner nimo of impeachment? Remember na allowed siya if the crime was punishable by a penalty in excess of 1 year or the crime involved moral turpitude, regardless of the penalty. October 7 Part 4 | Du However, the new rule provides that evidence of a conviction is not admissible if the conviction has been the subject of an amnesty or annulment of the conviction. Where a witness’ conviction had been annulled, take note that the judgment is set aside or vacated. Furthermore, it is settled that amnesty looks backward and abolishes and puts into oblivion the offense itself. It so overlooks and obliterates the offense with which he is

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charged that the person released by amnesty stands before the law precisely as though he had committed no offense (People vs. Casido, G.R. No. 116512, March 7,

1997).

Ngano man? Diba, what happens when a conviction is annulled? The judgment is actually vacated, it is actually set aside. It is as if the witness was never convicted. What about amnesty? Recall the case of People vs. Casido which was cited in the recent case of Magdalo sa Pagbabago vs. COMELEC. So, there is another difference between pardon and amnesty, dili lang kay private and public act. Ang pardon, it does not erase the fact that you committed a crime. Ang amnesty, it is as if there is no crime to speak of. That is the effect of an amnesty that is why dili pwede kung kintahay the conviction has been subject of an amnesty or annulment of the conviction.

Section 13. Party may not impeach his or her own witness. – Except with respect to witnesses referred to in paragraphs (d) and (e) of Section 10 of this Rule, the party presenting the witness is not allowed to impeach his or her credibility. A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his or her adverse interest, unjustified reluctance to testify, or his or her having misled the party into calling him or her to the witness stand. The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by the party presenting him or her in all respects as if he or she had been called by the adverse party, except by evidence of his or her bad character. He or she may also be impeached and cross-examined by the adverse party, but such cross-examination must only be on the subject matter of his or her examination-in-chief.

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Impeach meaning to destroy the credibility of the witness or his testimony. Now, what happens when wala pa nadautan sa pikas ang testimony sa imong witness, ang credibility sa imong witness, ginapahumot na nimo pag-ayo karon ang imong witness? Mura bitawg ginaingnan nimo ang court na kani siya di gyud ni siya mamakak, grabe jud ni siya kabuotan, santo jud kaayo ni akong witness. Take note that is not allowed. When you raise the profile and try to impress upon the court that the witness is extra credible and extra honest, that is not allowed because that is the process known as: Bolstering The proponent of a witness may not attempt to build up the witness’s credibility prior to his being impeached. The rationale is that the witness is presumed trustworthy. It also speeds up the proceedings by not spending time bolstering when the other side may not even impeach the witness. Hulata na iimpeach before ka mag-build up sa credibility sa witness. As a general rule, we presume that the witness is trustworthy. Tanawa pagud, ipahumot nimo imong witness unya di man diay na iimpeach sa pikas. So no need, it is a waste of time. But rehabilitation, on the other hand, pwede nimo buhaton. It is like bolstering pero your witness has already been impeached. So, pwede nimo i-rehabilitate karon. Rehabilitation When the character of a witness has been impeached, the proponent can now present evidence of his good character. This is known as the process of rehabilitation.

[For this provision, you are implored to read pages 607 to 609 of Evidence Explained.]

How is rehabilitation done in cases where another mode of impeachment was made?

Character Evidence to Impeach a Witness Prior to the amendment:

What I’m trying to say here is that kung ang character of a witness is impeached by the adverse party, you can rehabilitate by presenting evidence of his good character. How do you do that? Because there are several rules on impeachment.

Section 14. Evidence of good character of a witness. – Evidence of the good character of a witness is not admissible until such character has been impeached. Take note that this provision has already been deleted and is now incorporated in Section 54, Rule 130:

“Evidence of the good character of a witness is not admissible until such character has been impeached.” Why is this still important? Because there are terms you need to remember in relation to impeachment.

Remember: The manner of rehabilitation should be germane to the manner of impeachment. The Rules are silent on this point. However, it is opined, for the sake of fairness and judicial economy, that the proponent is confined to using the same techniques used by the opponent to impeach the witness. That is, if the opponent impeached via bias, then rehabilitation is limited to negating the claim of bias. If the opponent brought in a rebuttal witness who testified to the character of the principal witness as that of a liar, rehabilitation is limited to a

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character witness who testifies that the principal witness is a truthful person. The manner of rehabilitation should be the same as the manner impeachment. So, kung kintahay ang impeachment is made by prior inconsistent statements, how do you now rehabilitate? By presenting evidence of prior consistent statements.

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And if he did make those statements, he has to be made to explain because it could be that the witness made that statement previously and that it is just taken in a different context or out of context. 3.

If the statement be in writing it must be shown to the witness before any question is put to him or her concerning them.

PRIOR INCONSISTENT STATEMENTS Section 14. How witness impeached by evidence of inconsistent statements. – Before a witness can be impeached by evidence that he or she has made at other times statements inconsistent with his or her present testimony, the statements must be related to him or her, with the circumstances of the times and places and the persons present, and he or she must be asked whether he or she 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 or her concerning them. Take note that in the present case, the witness is testifying for a party but in a previous occasion he said something different from what he is stating right now. Either way, because there is that inconsistency, you can make the case that the witness has lied at one time or another. Posible that the witness lied while testifying before the court. Mao na siya ang impeachment by prior inconsistent statements. The procedure laid down in Section 14 is also known as the process of LAYING THE PREDICATE. It is done in the following manner: 1.

Take note: When inapplicable: Where the previous statements of a witness are offered as evidence of an admission, and not merely to impeach him, the rule on laying the predicate does not apply. Unsa ba ni na admission atong ginahisgutan diri? Remember: Confesio facta in judicio omni probatione

major est.

Admission during trial is stronger than all proof. So when you are talking about judicial admissions, diba you are not supposed to contradict it. So the witness is now contradicting the judicial admission in a subsequent statement in the same case before the same court. The rule on laying the predicate does not apply. No need to lay the predicate in that situation.

The witness must be confronted with such statements with the circumstances of the times, places and the persons present in which they were made;

Thus, if the prior inconsistent statement appears in a deposition of the adverse party, and not a mere witness, that adverse party who testifies may be impeached without laying the predicate as such prior statements are in the nature of admissions of said adverse party.

Example: In a cross-examination: “Is it not a fact Mr. Witness that on June 1, 2020, when you were speaking before your fellow barangay members, you mentioned this and that?”

Even if it is not a judicial admission, pwede siya ma-take as an extrajudicial admission. Admission against interest can be taken against you.

And the point you are trying to make here is that lahi iyang ginaingon niya karon na nagatestify siya sa katong ginaingon niya katong nagstorya siya before mga kauban niya sa barangay. So you confront him with that. “Yes, it is true naa ko ngadto.” 2.

That’s all you need to remember, kana bitaw process of laying the predicate. Why am I emphasizing this?

The witness must be asked whether he or she made such statements, and if so, allowed to explain them; and Example (continued): And then pangutanon na nimo karon whether giingon ba gyud niya ang statements. Is it true that you stated in that situation that blah blah blah?

Purpose of laying the predicate: The purpose of which 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.” Over a timely objection, extrinsic evidence of a prior inconsistent statement without the required foundation (or without laying the predicate) is not admissible. Pwede ka objectionan ana. Gidirecta lang nimo, gi-introduce lang nimo into evidence katong prior inconsistent statements without laying the predicate, then, that can be objected to on the ground of improper impeachment. Again, the manner of rehabilitation should be germane to the manner of impeachment.

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REVIEW OF CONCEPTS

Voir dire

In the Philippine setting, voir dire is competency examination of a witness to determine whether competent siya as a witness or there is a ground for incompetency that would lead the judge to believe that the presumption on the competency of a witness is not applicable. Naay facts stating otherwise.

Qualifying the witness This is a process where if the adverse party does not admit to the qualifications of an expert witness, you have to present or to introduce into evidence his credentials by asking preliminary questions, to the effect that he is really an expert witness with respect to the subject of his testimony.

Laying the basis or foundation Ong Ching Po vs. CA: Execution, existence, loss, contents can be changed according to the exigencies of the case, when we were talking about the Original Document Rule in Rule 130, Rules of Admissibility of Documents.

Laying the predicate

Process of laying the predicate which should be followed when you are going to impeach a witness for prior inconsistent statements. Laying the Predicate Refers only to impeachment of a witness through prior inconsistent statements

Laying the Basis Refers to a situation where evidence which is otherwise incompetent will be introduced into evidence because it falls under the rules of exclusion.

Prior to amendment: Section 15. Exclusion and separation of witnesses. – On any trial or hearing, the judge may excluded from the court any witness not at the time under examination, so that he may not hear the testimony of other witnesses, The judge may also cause witnesses to be kept separate and to be prevented from conversing with one another until all shall have been examined. Amended provision: Section 15. Exclusion and separation of witnesses. – The court, motu proprio or upon motion shall order witnesses excluded so that they cannot hear the testimony of other witnesses. This rule does not authorize exclusion of (a) a party who is a natural person, (b) a duly designated representative of a juridical entity which is a party to the case, (c) a person whose presence is essential to the presentation of the party’s cause, or (d) a person authorized by a statute to be present. The court may also cause witnesses to be kept separate and to be prevented from conversing with one another, directly or through intermediaries, until all shall have been examined.

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October 7 Part 5 | Escritor Section 15. Exclusion and separation of witnesses. – The court, motu proprio or upon motion shall order witnesses excluded so that they cannot hear the testimony of other witnesses. This rule does not authorize exclusion of (a) a party who is a natural person, (b) a duly designated representative of a juridical entity which is a party to the case, (c) a person whose presence is essential to the presentation of the party’s cause, or (d) a person authorized by a statute to be present. or through intermediaries, until all shall have been examined. Pwede nimong i-exclude ang succeeding witness from the courtroom, so that ang witnesses will not hear the testimony of the other witnesses. Para ma-ensure, supposedly, by the exclusion and separation of witnesses that dili bitaw magtake ug cue sa mga tubag sa other witness. Preventing concert of testimony, when no concert exists, noh? Section 15. Exclusion and separation of witnesses. xx The court may also cause witnesses to be kept separate and to be prevented from conversing with one another, directly or through intermediaries, until all shall have been examined. In other words, i-quarantine sa ng mga witnesses nga na. Social distancing sa mo. Ayaw pag-uban. Dili pwede na mag-uban mo kay basig magsabot mo kung unsa ang inyong i-testify sa korte. Now, what’s the main purpose of this rule? That the witness should not be able to hear the testimony of other witnesses. Thereby preventing untruthful, or again, unnatural concert of testimony among them. This rule is intended to disallow a witness to shape his or her testimony as to directly refute or corroborate another witness’ testimony. So, the law would assume na two separate people, different na ang ilahang testimony. Imposible man pud na parya gyud kaayo in every material respect. Now, at the beginning of class, I told you that I will try as much as possible to tell you how the Rules of Evidence work. And I will also tell you – I told you earlier, diba, how the rules do not work. And this is one of those situations. Kung i-exclude nimo, dili na sya makadungog. Now, what’s to stop the lawyer from briefing the witnesses together? Naa bay law or kana bitawng ethical rule that would prevent a lawyer from having what I call, a witness conference? I conduct a witness conference from time to time to ensure na I get the full story. And in doing so, I interview the witnesses together. And so, ingon ang witness A, ingon-ani. Syempre, madunggan na ni witness B. Madunggan na ni witness C, etc.

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Is there a rue preventing me from doing that? Kanang coaching my witnesses?

lang gyud gihapon. There’s no law that would disallow witnesses from reading the JA of the other witnesses in civil cases.

No. Wala may naga-ingon na bawal nako ipadungog ang contents sa ilahang testimony sa sugod during discovery, or preparation as part of my work product. So, if the goal would be to ensure witnesses will not hear the testimony of others to prevent unnatural concert of testimony, well, kining untruthful part, okay pwede nato ni i-prevent. Pero kaning unnatural, murag dali ra gud kaayo to ensure that they’re testimonies are harmonious. And the Rules do not provide anything to that effect.

But, take note however that, while information the other witness’ direct testimonies cannot be effectively withheld from the witness, the rule on exclusion and separation might still ensure that he or she cannot hear the testimony of other witnesses during crossexamination and onwards. That’s what you can prevent. By not allowing them to stay in the same place.

Now, it must be noted however that exclusion and separation of witnesses can be more effective in criminal cases than in civil cases. Remember that in criminal cases, there are cases where pwede na ang ilahang testimony would be orally made. Oral lang. If the main evidence can be proved – or the evidence of guilt be proved by evidence that depends on the credibiltiy of the witnesses, mao na sya ang rule na nakabutang sa Rule on Continuous trial. So, oral form. Wala’y judicial affidavits. And then remember, under the Rule on Continuous Trial, as much as possible, you exhaust your witnesses in one sitting. If you have three witnesses, “Tara. Humanon na nato na dayon.” So, the witnesses can be excluded and separated from one another in that situation. Pwede mag motion ang pikas party. “Your Honor, we move for the exclusion of other witnesses who will testify after the first intended witness.” Pwede na buhaton, okay? Para di sila kadungog – dili pud sila kadungog sa cross-examination. Alright. That’s for criminal cases. But remember, ang sa civil cases, lahi. For, in criminal cases where ang demeanor of the witness is not essential, or offenses that are transactional in character, like estafa, unsa man ang atoang testimony nila? Statements given to law enforcement officers, affidavits or counter-affidavits during preliminary investigation, and in their absence, judicial affidavits.

Exclusion and separation would ensure that the witnesses cannot take hints from the questions asked and answers given during the remaining stages in the examination of another witness, skillful cross-examination succeeds and casting doubt as to his or her accuracy and truthfulness and freedom from conflict of interest. You gotta take hints. Pwede na sya masatisfy na sya by exclusion. WITNESSES WHO CANNOT BE EXCLUDED 1. A party who is a natural person, which means, the plaintiff and the defendant in a civil case or the complainant and the accused in criminal cases, even if they happen to be witnesses as well; Dili nimo na pwede i-exclude. The have the right to be there. With respect to the accused, remember, the witness has the right to meet the witnesses against him, face to face. Di gyud nimo sya pwede i-exclude. 2.

For example, diba you can only represent a corporation if there is a Board Resolution, to the effect that “this particular person is authorized to represent XYZ Corporation in the prosecution of this case before the proper courts of justice.” Mao na usually ang nakabutang sa Board Resolutions sa mga corporation. So, that person designated to be its lawful representative, cannot be excluded. 3.

Is there any law that prevents a prospective witness from reading, for example, the JA of his fellow witnesses? Let us suppose that the lawyer can be constrained. The lawyer can be prevented from giving a copy, for example, of the JA. Naa bay law na magcontrol sa conduct sa witness mismo na mangutana sya or mangayo syag kopya sa JA sa iyahang fellow witnesses? There’s no law that will prevent them from doing that. So, if the goal is absolutely to prevent them from knowing what the other witnesses will be testifying on, mali na ka. The rule does not work that way because it can easily be circumvented. The rule, the way I see it, does not work. Civil cases, again, I told you already. Pwede

A duly designated representative of a juridical entity which is a party to the case, as juridical persons prosecute and defend through authorized representatives;

A person’s presence is essential to the presentation of a party’s cause; and Kinsa man daw na? Naa ba ning mga persons whose presence is essential to the facilitation of the party’s cause? We got to that later.

A person authorized by statute to be present. We need to take note na kani sya, dili ni sya gikan na Philippines. Gi-kopya ra ni nato sa Federal Rules. The this exception contemplates such persons as an agent who handled the transaction, being litigated, or an expert needed to advise counsel in the management of litigation. In order to invoke the exception, the proponent needs to show the trial counsel needs the attendance to effectively function during trial or during deposition. Further, the court should examine whether

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permitting the witnesses to attend the trial or deposition would be contrary to the purpose of the rule like when it would allow the witness to shape his testimony or directly refute or corroborate witness’ testimony. The determination of whether a witness is essential under the rule lies, again, in the discretion of the court. Take note, gikopya lang nato ni sa America. In other words, wala pa tay kaugalingon nato na jurisprudence on this matter. So, if we say for example, the chairman of your Bar examinations would ask a question about this sub-paragraph or this third paragraph here. You cannot be faulted for citing foreign jurisprudence where our own rules seem to debase from foreign rules which are counterparts of our own incumbent rules. So, diha ra gyud ta kutob. Di gyud ko kahatag ug Philippine jurisprudence on this matter. What about a person authorized by statute to be present? Again, considering that the new provision is taken from the Rules of Procedure in the US, it might be difficult to pinpoint certain statutes that specifically authorizes a person who is also an intended witness to be present during trial or hearing. But I will try. I will still try to give you examples. Karon, ipakita nako sa inyoha possible examples lang gud. (a) A rehabilitation receiver under RA 10142. Financial Rehabilitation and Insolvency Act. So, naa tay rehabilitation receiver who is deemed an officer of the court, and conceivably might also testify before the court on matters such as recommending a rehabilitation plan to the court. Because rehabilitation proceedings, insolvency proceedings that require a rehabilitation receiver – diba remember, no action can be brought without the participation of this rehabilitation receiver? So, he is an essential personnel, in other words. So, he has to be in court. Sa akoang paglantaw. (b) A guardian ad litem Although not strictly under a statute, but under an issuance pursuant to the rule-making power of the SC. Take note that a guardian ad litem is allowed to attend all interviews, depositions, hearings, and trial proceedings, in which a child would participate. But it must be noted that a person who is a witness in any proceeding involving the child, cannot be appointed as a guardian ad litem as general rule. But the devil is in the exception; because a guardian ad litem may testify in the proceeding if the court finds it necessary to promote the best interests of the child. So, pwedeng ipa-testify ang guardian ad litem. How do you now reconcile that if you apply that exception to the general rule that a witness cannot be appointed as a

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guardian ad litem? How do you now reconcile that to the guardian ad litem’s right to attend all hearings and proceedings where naa tong bata? So, you cannot take the guardian ad litem away from trial. he has to be there. (c) Interpreter under the Rule on Examination of Child Witness. It is possible that the interpreter is also a witness. Diba dili man magmatter diri kung kintahay qualified ba gyud ka na interpreter. It’s enough that you understand the language of the child, if you’re an interpreter under the rule. Take note lang na if you’re an interpreter, you have to be there kay ang bata mu-testify man. Kay mag-interpret man ka dapat sa iyahang testimony. Mu-testify ka ahead if you are also an intended witness. The moment the interpreter testifies ahead of the child, pwede na sya mu-attend karon sa testimony sa child mismo. (d) A support person under Section 11, who is required to be present when the child testifies. If the support person be also an intended witness, and if the court allows his testimony, his testimony shall be presented ahead of the testimony of the child. But, when the child testifies, the support person should be there. So, these are examples that I can think about. Now, second paragraph ta. Section 15. Exclusion and separation of witnesses. xx The court may also cause witnesses to be kept separate and to be prevented from conversing with one another, directly or through intermediaries, until all shall have been examined. And tawag ani, witness sequestration. Like, the process of jury sequestration in the United States. Pero kadto, jury to sya. Kani, witnesses. How do we do that? Section 15. Exclusion and separation of witnesses. xx The court may also cause witnesses to be kept separate and to be prevented from conversing with one another, directly or through intermediaries, until all shall have been examined. Kaya kaha ni sya na sila tanan will be examined in like, one day? So, you just have to keep them in a holding room; that they cannot talk to one another. Pwede kaya? Or kintahay it would last for months ang trial. Naa ba tay kwarta na ibutang sila sa hotel? I-sequester sila, i-quarantine. Murag i-quarantine. Murag i-social distancing, or mas grabe pa? I don’t think we have the resources. In the US, when they sequester a jury, they have the budget for that. So, I don’t know if we can do that. October 7 Part 6 | Estrosas

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Interestingly, the amended rule is not the first time this provision appeared in Philippine judicial history. It appeared in Section 39 of General Orders No. 58 of the Office of the US Military Governor in the Philippine Islands dated April 23, 1900. The said Section 39 provides: Section 39. While the witnesses shall be under

examination, the magistrate may exclude all witnesses who have not testified. He may also cause witnesses to be kept separate, and to be prevented from conversing with one another until all shall have been examined.

COMMENTS: It is not the first time that ‘witness sequestration’ appears in Philippine Law. It was already in Section 39, General Orders No. 58 of the US Military Governor in the Philippine Islands kadtong panahon after sa giyera or after Spanish liberation. Philippines moved from one colonizer to another, from the Spaniards to the Americans. At that time, it was the United States that gave us our laws. The US Constitution was made applicable to the Philippines. They promulgated Rules of Procedure that would be made applicable to Philippine Courts. We were under the US Supreme Court, so cases of the Philippines were brought all the way to the US Supreme Court. That’s the reason why we have ‘witness sequestration’ before or separation of witnesses. Hence, it is not first time in our history that we have this provision. The efficacy of excluding or sequestering witnesses has long been recognized as a means of discouraging and exposing fabrication, inaccuracy, and collusion (6 Wigmore SS1837-1838).

Section 16. When witness may refer to memorandum. – A witness may be allowed to refresh his or her memory respecting a fact by anything written or recorded by himself or herself, or under his or her direction, at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his or her memory and he or she knew that the same was correctly written or recorded; but in such case, the writing or record must be produced and may be inspected by the adverse party, who may, if he or she chooses, cross-examine the witness upon it and may read it in evidence. A witness may also testify from such a writing or record, though he or she is able to swear that the writing or record correctly stated the transaction when made; but such evidence must be received with caution. Sir JZE’s advice: It’s a very long provision, just read it. Nothing much there, except I need to tell you that there’s a possible bar examination question that can be taken from this provision, and that would be: Distinction between recorded recollection and refreshing recollection, (or in the transcript of Dean Inigo Distinction between past recollection recorded and present memory refreshed (sometimes present memory revived).

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It’s a situation where a witness at the witness stand may refer to something in writing to help him in his testimony. Prior Recollection Recorded Witnesses can testify to the accuracy of a recording or documentation of their own out-of-court statement based on their recollection of the circumstances under which the statement was recorded or documented – even though the witness does not remember the events attested to in the statement. It is sufficient that the witness is able to testify to having made the recording, and to having written an accurate statement at that time. It’s like something happened to you a long time ago, and you happened to remember writing something about it, or maybe going to a police officer to have a blotter written about it. Pero

nakalimot naka exactly unsay nahitabo atong panahona tuh.

So, what can you do? Because you remember at that time when you made that recording, your statement is accurate (e.g. kay karon lang jud ka nakawatan, bag-o ra nahitabo ang subject matter sa recording na tuh, etc.) What can you do? Bring that recording in court to aid your recollection of facts. You simply testify to the court that kadtong mga nakabutang dadto are seemed accurate, and you can even present that recording or that note into evidence. Present Memory Refreshed (Present Memory Revived) A witness must testify from the basis of his current recollection, he cannot ordinarily read from a document. However, if a witness forgets something he at one time knew and had personal knowledge of, he may be shown a writing to refresh his memory. Lawyer: Do you remember having executed a document on

blahblahblah?

Witness: I don’t remember. Lawyer: But if I show you a copy of that document which bears your signature, would you be able to remember and identify it? Witness: Yes, I might. (So, ipakita nimo dayun sa iyaha. Now, you refresh his memory.) The writing or document used by the witness to refresh his memory cannot be admitted as evidence, it can only be used to refresh the witness’s memory of something he once knew. Sir JZE’s advice: Section 16 talks about “kalimtanon witnesses”. In succession, that’s dementia. Mas trendy na term is Alzheimer’s disease. Section 17. When part of transaction, writing or record given in evidence, the remainder, the remainder admissible. – When part of an act, declaration, conversation, writing or record is given

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in evidence by one party, the whole of the same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its understanding may also be given in evidence. Section 18. Right to inspect writing shown to witness. – Whenever a writing is shown to a witness, it may be inspected by the adverse party. Sir JZE’s advice: Just read those provisions; nothing monumental about it. AUTHENTICATION AND PROOF OF DOCUMENTS Section 19. Classes of documents. – For the purpose of their presentation in evidence, documents are either public or private. Public documents are: a) The written official acts, or records of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; b) Documents acknowledged before a notary public except last wills and testaments; c) Documents that are considered public documents under treaties and conventions which are in force between the Philippines and the country of source; and d) Public records, kept in the Philippines, of private documents required by law to be entered therein. All other writings are private. This classification into either public or private document only applies for purposes of authentication and proof, and not for any other purpose. Public Documents Entries in Records Section 23. Public documents as evidence. – Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated. All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter. Two Classes of Public Documents 1. Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated. Note that entries in public records are prima facie evidence of all the facts therein stated. This makes this class of documents self-authenticating.

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All other public documents that are not entries in public records made in the performance of a duty by a public officer. All other public documents which are not entries in public records made in the performance of a duty by a public officer, are not prima facie evidence of the facts stated. However, these other public documents are evidence, even against a third person, of two facts, namely: 1. The fact which gave rise to their execution; and 2. The date of the document.

AUTHENTICATION With respect to object evidence, authentication is simply proving that the object is what it purports to be. As applied to documents, authentication is a process of identifying the document, that there’s a genuine and due execution of the document. Cross-reference This is in consonance with a previous rule, Section 46, Rule 130. Section 46. Entries in official records. – Entries in official records made in the performance of his or her duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. Examples. Civil Registrar in the books of registries, Register of Deeds in the entry books; A ship captain in the ship’s logbook. (Republic v. Medida, 692 Phil. 454 (2012)) What about certifications of the Regional Technical Director, DENR regarding the area and technical description of land in a case for correction of the certificate of title? REPUBLIC vs. GALENO G.R. No. 215009, January 23, 2017 The CENRO and the Regional Technical Director, FMS-DENR, certifications do not fall within the class of public documents contemplated in the first sentence of Section 23 of Rule 132. The certifications do not reflect “entries in public records made in the performance of a duty by a public officer,” such as entries made by the Civil Registrar in the books of registries, or by a ship captain in the ship’s logbook. The certifications are not certified copies or authenticated reproductions of original official records in the legal custody of a government office. The certifications are not even records of public documents. Note: But the Supreme Court is not saying that they are not public documents.

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As such, sans the testimonies of the public officers who issued such documentary evidence (non-authenticated public documents) to confirm the veracity of its contents, the same are bereft of probative value and cannot, by their mere issuance, prove the facts stated therein. At best, they may be considered only as prima facie evidence of their due execution and date of issuance but do not constitute prima facie evidence of the facts stated therein. Comment: Now, we see. We go back to the provision. The provision is to the effect that “all other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter”. In effect, the case is simply telling you what the codal provision is all about. They may not be public documents that are public records that fall within the purview of the first sentence, but they fall within the purview of the second sentence. What are they prima facie evidence of? Not of the facts stated therein but of their due execution and date of issuance. SUMMARY Entries in public records Prima facie evidence of the facts therein stated.

If uncontroverted, equivalent to proof of the facts therein stated already.

All other public documents Evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter. At best, they may be considered as prima facie evidence of their due execution and date of issuance only, not all the facts therein stated. If uncontroverted, equivalent to of due execution and date of issuance.

How are public documents under Section 19 proved? Section 24. Proof of official record. – The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his or her deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. Example: You want to present a Certificate of Title, but you are not the owner. You cannot present the owner’s duplicate certificate of title. Let’s say, you simply want to introduce into evidence the fact that an annotation is made at the back of the Torrens title. Who keeps the title? The Register of Deeds. Remember, there is irremovability of public record that we discussed under the Original Document Rule. Dili nimo pwde hiramon ang title sa ROD.

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Because you cannot bring the record itself, what you present is an official publication or a copy attested by the officer having legal custody. So, that’s a certified true copy of the Register of Deeds or by his deputy. That will be enough to prove that official record. If the office in which the record is kept is in a foreign country, which is a contracting party to a treaty or convention to which the Philippines is also a party, or considered a public document under such treaty or convention pursuant to paragraph (c) of Section 19 hereof, the certificate or its equivalent shall be in the form prescribed by such treaty or convention subject to reciprocity granted to public documents originating from the Philippines. Example: Let’s say, you want to get a public record in another country that you want to present in the Philippines. Mu-agi jud ka sa mga consuls so on and so forth. Kinahanglan ipa blue ribbon. Take note that these are products of treaties or conventions where the Philippines is signatory too. For documents originating from a foreign country which is not a contracting party to a treaty or convention referred to in the next preceding sentence, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice-consul, or consular agent or by any office in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his or her office. Sir JZE’s advice: Just read that. Nothing much there if you ask me. October 7 Part 8 | Fernandez A document that is accompanied by a certificate or its equivalent may be presented in evidence without further proof, the certificate or its equivalent being prima facie evidence of the due execution and genuineness of the document involved. The certificate shall not be required when a treaty or convention between a foreign country and the Philippines has abolished the requirement, or has exempted the document itself from this formality. (24a) SUMMARY The official record may be evidenced by: 1. An official publication thereof; 2. A copy of attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the record is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul-general,

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consul, vice-consul, or consular agent by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office (blue ribbon documents). For documents that are considered public documents under treaties and conventions which are in force between the Philippines and the country of source, if a treaty or convention between the Philippines and a foreign country treats a document as a public document, Philippine courts should be bound by such treatment or characterization and treat it accordingly as a public document. (Even if strictly

speaking and procedurally, it does not bear the whole marks of a public document. If the treaty or convention says it be a public document then it should be treated as one.) Section 30. Proof of Notarial Documents. — Every instrument duly acknowledged or proved and certified as provided by law, may be presented in evidence without further proof, the certificate of acknowledgement being prima facie evidence of the execution of the instrument or document involved. (30) FUNCTION OF NOTARIZATION The notarization of a document carries considerable legal effect. Notarization of a private document converts such document into a public one, and renders it admissible in court without further proof of its authenticity. Thus, notarization is not an empty routine; to the contrary, it engages public interest in a substantial degree and the protection of that interest requires preventing those who are not qualified or authorized to act as notaries public from imposing upon the public and the courts and administrative offices generally. (Villlafria v. Plazo, GR No 187524,

August 5. 2015)

PRESUMPTION OF REGULARITY (which makes it exempt from the Rule on Authentication as a general rule) Lazaro v. Agustin GR No. 152364, April 15, 2010 A notarized document carries the evidentiary weight conferred upon it with respect to its due execution, and documents acknowledged before a notary public have in their favor the presumption is not absolute and may be rebutted by clear and convincing evidence to the contrary. Moreover, not all notarized documents are exempted from the rule on authentication. Thus, an affidavit does not automatically become a public document just because it contains a notarial jurat. The presumptions that attach to notarized documents can be affirmed only so long as it is beyond dispute that the notarization was regular.

Public record of a private document — An authorized public record of a private document may be proved Section 27.

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by the original record, or by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. Examples: Forms accomplished by a private citizen and required by law to be submitted to a government office (i.e. tax returns). Illustration: 1. You go to the BIR and fill out the forms and submit it back. In your hands, it is a private document considering that our taxation system is voluntary in a sense. 2. The moment you submit it to the BIR it becomes a private document/record kept in a public office, making it a public record. PRIVATE DOCUMENTS

Section 20. Proof of Private Documents. — Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved by any of the following means: (a) By anyone who saw the document executed or written; (b) By evidence of the genuineness of the signature or handwriting of the maker; or (c) By other evidence showing its due execution and authenticity. Any other private document need only be identified as that which it is claimed to be. (20) TAKE NOTE: That if it is a private document follow Section 20. Section 20 highlights the distinction between a public document and a private document PUBLIC DOCUMENT Normally self-authenticating

(anybody can testify about it and not just the notary public nor the custodian of the document)

PRIVATE DOCUMENT Requires authentication in the manner provided for by Section 20 Cannot be admitted in evidence if it has not been duly authenticated strictly following Section 20

QUICK PRINCIPLE 1. If the document being presented in evidence is a private document, that is the only time you apply Section 20. 2. Section 20 does not apply at all to public documents. 3. A public document can be identified and authenticated without following any of the means provided in Section 20 (a) to (c).

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ILLUSTRATION USING EXCEPTIONS TO THE HEARSAY RULE RECORDS OF REGUARLY ENTRIES IN OFFICIAL CONDUCTED BUSINESS RECORDS (Section 46, Rule ACITIVITY (Section 45, Rule 130) 130) In either of these exceptions to the hearsay rule, even if the entrants are unavailable, the records or entries are admissible. HOWEVER, take note that: The records are private The records are public documents (journals, ledger, documents and prima facie purchase receipts, invoices, or evidence of the facts therein any other internal documents stated.

in a business)

Assume that the original entrants are unavailable to testify. How will you prove these documents? Who will testify? RECORDS OF REGUARLY CONDUCTED BUSINESS ACITIVITY (Section 45, Rule 130) Apply Section 20. Due execution and authenticity must be proved by any of the following means: (a)By anyone who saw the document executed or written; (b)By evidence of the genuineness of the signature or handwriting of the maker; or (c)By other evidence showing its due execution and authenticity.

ENTRIES IN OFFICIAL RECORDS (Section 46, Rule 130) Apply Section 23. Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated.

(anybody can present it in court; it doesn’t have to be the person who saw the document being executed as opposed to Section 20) All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter October 7 Part 9 | Jamero

WHEN AUTHENTICATION IS DISPENSED WITH: 1. When the private document is an actionable document not denied under oath by a party; 2. When the authenticity and due execution of the documents are otherwise admitted (i.e. during pre-trial or in a request for admission); 3. The writing is a notarial document acknowledged, proved or certified (Sec. 30); 4. The writing is a public document on record (Sec. 19); 5. When such genuineness and due execution are immaterial to the issue; 6. When the private document is an ancient document (Sec. 21).

ANCIENT DOCUMENT Section 21. When evidence of authenticity of private document not necessary. – Where a private document is more than thirty years old, is produced from the custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given. Comment: JZE talks about the private documents (dating back to 1970s) in the house of his great grandfather who used to be a surveyor. If presented in the courts, private documents do not need to be authenticated. With respect to authentication, an “ancient document” is one that may be deemed authentic without a witness to attest to the circumstances of its creation because its age suggests that it is unlikely to have been falsified in anticipation of litigation in which it is introduced. JZE’s Advise for BAR: if asked “What are the requisites for private document to be considered as an ancient document?” just memorize Section 21.

Section 22. How genuineness of handwriting proved. — The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he or she has seen the person write, or has seen writing purporting to be his or hers upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. (22a)

Comment: This is not the first time that we encountered the provision that tends to establish how to prove handwriting. Under the Opinion Rule, the opinion of an ordinary witness may be received in evidence regarding a handwriting with which he or she has sufficient familiarity. Meaning you do not really have to know or have personal knowledge that the person who made that handwriting made that at that particular time for that particular document. Kung familiar ka sa handwriting sa usa ka person, you can state your opinion: “I think that is the handwriting of the person in question.” Cross-refence: Rule 130, Section 53. Opinion of ordinary witness. – The opinion of a witness for which proper basis is given, may be received in evidence regarding: xxx (b) A handwriting with which he or she has sufficient familiarity; xxx

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From 2019 TSN: Summary of how to prove the genuineness of a handwriting: 1. By any witness who actually saw the person writing the instrument; 2. By any person who is familiar and who has acquired knowledge of the handwriting of such person; 3. His opinion as to the handwriting being an exception to the opinion rule by a comparison to the questioned handwriting from the admitted specimen's thereof through autoptic proference or by an expert witness.

Section 25. What attestation of copy must state. — Whenever a

copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he or she be the clerk of a court having a seal, under the seal of such court. (25a)

Section 26. Irremovability of public record. — Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of a pending case. From 2019 TSN: Sec. 26 – Exception to the best evidence rule when the original of the document is in the custody of a public office.

Section 28. Proof of lack of record. — A written statement signed

by an officer having the custody of an official record or by his or her deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his or her office, accompanied by a certificate as above provided, is admissible as evidence that the records of his or her office contain no such record or entry. (28a) Comment: one of the favorite provisions of JZE If you go to a government office to secure a copy of the birth certificate of your grandmother/father, and because they were born at war or prior to war, all public records at that time were razed by fire, only to get a certificate that the office (civil registry) has no record of the birth of a certain person. Question: The fact na walay record and civil registrar sa birth sa akoang lolo does it mean that my lolo does not exist? NO. Such certification (na wala sila’y record) simply means that no record is found in the office, that’s it. Another example: a CNOMAR (Certificate of no marriage record). The issuance of CNOMAR means that as far as this office is concerned, there is no copy of marriage contract. A fraternity brod, married in 1980s, na dugay na bulag sa iyang asawa wanted to annul his marriage under Art. 36. JZE advised him to go to NSO (now PSA) and secure a copy of his marriage contract and license. “Bro good news, we don’t have to file a case (shows a CNOMAR).” Remember, the fact na walay marriage record does not mean that he is not married.

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Case to read: VITANGCOL vs. PEOPLE GR. No. 207406 | January 13, 2016

Section 29. How judicial record impeached. — Any judicial record may be impeached by evidence of: (a) want of jurisdiction in the court or judicial officer, (b) collusion between the parties, or (c) fraud in the party offering the record, in respect to the proceedings. (29)

Section 31. Alteration in document, how to explain. — The party

producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration. He or she may show that the alteration was made by another, without his or her concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he or she fails to do that, the document shall not be admissible in evidence. (31a)

Section 32. Seal. — There shall be no difference between sealed and unsealed private documents insofar as their admissibility as evidence is concerned.

Section 33. Documentary evidence in an unofficial language. —

Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial. Comment: Another proof that the official language of the Philippine Bar Exams is not just English but also Filipino. October 8 Part 1 | Macacua OFFER AND OBJECTION

Section 34. Offer of evidence. — The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. Republic vs Gimenez Formal offer is necessary because judges are mandated to rest their findings of facts and their judgment only and strictly upon the evidence offered by the parties at the trial. Its function is to enable the trial judge to know the purpose or purposes for which the proponent is presenting the evidence. On the other hand, this allows opposing parties to examine the evidence and object to

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its admissibility. Moreover, it facilitates review as the appellate court will not be required to review documents not previously scrutinized by the trial court. Formal offer is the proponent of evidence (testimonial, documentary, object) to inform interested parties, which includes opposing party and the court. Apart from showing evidence, it allows parties to examine the evidence and object to its admissibility. Before, prior to JAR, when you present a witness, you should inform the court what is the purpose of the testimony. Counsel would normally say, “Your honor, what the testimony would prove are the following matters”. These are listed down. Witness would identify.

General Rule Lack of formal offer, evidence is excluded. Exceptions 1.

The absence of the words, “we are formally offering the testimony for the purpose of…” should be considered merely as an excusable oversight. The purpose of the subject testimony was succinctly stated, the reason behind the requirement for its formal offer has been substantially complied with.

Gumabon vs PNB

Supreme Court relaxed the foregoing rule and allowed evidence not formally offered to be admitted and considered by the trial court provided the following requirements are present: a. the same must have been duly identified by testimony duly recorded; and b. the same must have been incorporated in the records of the case.

Even if this exhibits are pre-marked, during trial or even preliminary conference, and later on identified and authenticated by the witness. That is not enough. There should be formal offer of evidence. Formal offer simplifies everything.

EVIDENCE EXCLUDED, NO FORMAL OFFER The proponent of a piece of evidence fails to make formal offer, the evidence is excluded. It is not considered. The rule on formal offer is not a trivial matter. Failure to make a formal offer within a considerable period of time, shall be deemed a waiver to submit it. Consequently, evidence that are not offered shall be excluded and rejected.

Relaxation of rules People vs Mate Mato vs Court of Appeals

Formal offer means that the offeror shall inform the court of the purpose of introducing its exhibits into evidence. Without a formal offer of evidence, courts cannot take notice of this evidence even if this has been previously marked and identified.

You are not obliged to prove everything, only those which is advantageous to your cause. If the other party wishes to to use your evidence, he must adopt it as his own.

Substantial compliance Tiomico vs Court of Appeals

After the presentation of testimonial evidence of a witness for a party, that’s the time that party will make formal offer of documentary and object evidence.

You’re offering this evidence to prove that X was born in 1977, you want to prove his age or date of birth. Remember, a document contains lot of entries. Birth certificate contains who the parents are, place of birth, and so on. By making an offering, you are filtering information to be appreciated by the judge. You’re telling the judge that the purpose of the document is to prove date of birth.

202

MOTION TO STRIKE, REMEDY The remedy of the opponent would be to move from the striking off of the evidence from the records, the court may also exclude the same motu proprio. Ordinarily, it is done through the means of motion to strike.

Technically speaking, we are not proving anything yet. What sets it into motion, the act of proving anything, is the act of formal offer.

For example, document already presented is formally marked as Exhibit A, counsel must state its purpose so judge is informed. It is not an empty ceremony. It is very important.

FIRST EXAM

Formal offer of evidence is superfluous. Republic vs Gimenez Where a separate formal offer of evidence is superfluous. In cases jointly tried and a party makes a formal offer of evidence in one of the cases, while omitting to make such offer in the other case previously declared that he is adopting the same evidence for both cases that are jointly heard. October 8 Part 2 | Maglinte

When to make offer under the Rules Prior to amendment

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Sec. 35. When to make offer. – As regards the testimony of a witness, the offer must be made at the time the witness is called to testify. Documentary and object evidence shall be offered after the presentation of the party’s testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in writing. The offer of testimony must be made when the witness is called to testify and not when you're already asking questions.

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naa ang judge: “your honor the testimony of this witness is offered to put the following: 1… 2.. 3… 4...” And then later on, there are some judges will expect you even in with the use of a judicial affidavit where the purpose and testimonies of your witness is already indicated. There are still judges that expect you to make a formal offer in open court so you just need to repeat what you said in your JA. Just ask around the preference of the judge if they prefer formal offer orally in open court. Because if you don’t make a formal offer before the presentation of the witness in court, then you violate the rule on formal offer based on the JAR.

Under documentary and object evidence, tanang witness human na and the party rests its case. So turno na pud sa pikas karon, whether they are to present a countervailing evidence or rebuttal evidence. Since nag-rest na ka, kinahanglan naka mag-make ug formal offer of documentary or object evidence (after the presentation of the party’s testimonial evidence) and according to the language of the old rules such offer shall be done orally, unless allowed by the court to be done in writing. The problem with this provision was that it led to a lot of delays with respect to documentary and object evidence. The exception, became the general rule.

Under the JAR

The general rule has always been, it should be done orally. But the lawyer will always ask the court “your honor may we ask for a period of 10 days to submit our formal offer of documentary exhibits in writing” and the court will invariably allow that. When in fact after you are done with your last witness, you already prepared the exhibits that have already presented and then formally offer them into evidence and state the purpose why you need to present the evidence.

It shows the Supreme Court wants to go back to what was in the previous dispensation, or what was its intention from the very na dapat ang formal offer of documentary or object evidence should be done orally, dili gyud siya dapat in writing.

The problem is, the court will grant a number of days to the formal offer of evidence in writing, and also grant the same number of days to opposing counsel to submit their comments and opposition to your formal offer of documentary exhibits. That will lead to a lot of delay. Just because it was initiated by the proponent asking for. time to submit a written formal offer documentary exhibits.

Sec. 35. When to make an offer. – All evidence must be offered

And it was changed a little bit when you talk about the Judicial Affidavit Rule. Under the JAR

Section 6. Offer of and objections to testimony in judicial affidavit. – The party presenting the judicial affidavit of his witness in place of direct testimony shall state the purpose of such testimony at the start of the presentation of the witness. xxx Now, this seems to be the superfluous, a little bit because in practice, in the judicial affidavit, we already state the a purpose. In fact, in my own practice, I already include a paragraph in the judicial affidavit where I was supposedly making a formal offer in my document exhibits. Remember the JA is made ex parte, the judge is not present when it is prepared but gibutang gihapon nako ngadto, nag-pretend ko ug

Section 8. Oral offer of and objections to exhibits. – a)

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. xxx

So what was the effect, the promulgation of the judicial affidavit rule with this section 8?

But in practice gina-allow man gihapon (na written), which leads to some delay. Now let's look up as amended. Rule as amended orally.

The offer of the testimony of a witness in evidence must be made at the time the witness is called to testify. The offer of documentary and object evidence, shall be made after the presentation of a party's testimonial evidence. Effect It seems that, under the current iteration of the Rules on Evidence, there is no more exception (i.e. unless allowed by the court to be done in writing) to the rule that formal offer of evidence must be done orally. The change in the rule addresses the delay that results whenever the court allows the parties to make their formal offer of evidence in writing. OBJECTIONS Remember you cannot object to evidence that has not yet formally offered. You objection must not be premature. Purpose of objections 1. To keep out inadmissible evidence that would cause harm to a client’s cause;

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EVIDENCE 2.

3. 4. 5.

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To protect the record i.e. to present the issue of inadmissibility of the offered evidence in a way that if the trial court rules erroneously, the error can be relied upon as a ground for a future appeal; To protect a witness from being embarrassed by the adverse counsel; To expose the adversary’s unfair tactics like his consistently asking of obvious leading questions; and To give the trial court an opportunity to correct its own errors and at the same time warn the court that a ruling adverse to the objector may supply a reason to invoke a higher court’s appellate jurisdiction. (Riano, Evidence: A

Restatement for the Bar, p. 462, 2009 ed.)

October 8 Part 3 | Campaner When to make objections Prior to amendment

Section 36. Objection. – Objection to evidence offered orally must be made immediately after the offer is made. Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent. An offer of evidence in writing shall be objected to within three (3) days after notice of the offer unless a different period is allowed by the court. In any case, the grounds for the objections must be specified. If the evidence is offered orally, you object immediately after the formal offer is made. How about if it is an offer of evidence in writing? As a general rule, in writing within three days after notice of the offer unless a different period is allowed by court. So, the rule before particularly provides for what happens if it is an offer of evidence in writing. Three days is the default period. What about a question propounded in the course of the oral examination? It shall be made as soon as the grounds shall become reasonably apparent. For example, the question violates the parole evidence rule. “What else did you agree upon that cannot be found in the agreement?” Diba, this is prohibited by the parole evidence rule? So when the grounds for objectionability became apparent, meaning sa question pa lang daan, its already apparent that the answer will reveal information that violates the parole evidence rule, object na dayon ka. “Objection your honor, the question asked necessitates an answer that violates the parole evidence rule.” Take note that the grounds for objection must be specified.

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UNDER THE JAR When shall the objection be made?

Section 6. Offer of and objections to testimony in judicial affidavit. – xxx the adverse party may move to disqualify the

witness or to strike out his affidavit or any of the answers found in it on ground of inadmissibility. The court shall promptly rule on the motion and, if granted, shall cause the marking of any excluded answer by placing it in bracket under the initials of an authorized court personnel, without prejudice to a tender of excluded evidence under Section 40 of Rule 132 of the Rules of Court. So, the rules under the old rules and the judicial affidavit rule are not the same. Under the JAR, makita na nimo dira kung asa sa mga answers ang inadmissible. Kung ang entire testimony ba sa witness would be inadmissible, di ba sya competent to testify? You can do that ahead of time. Wait for the actual testimony of that witness. You can file a motion to strike already, the moment you see his judicial affidavit. But what about documentary and object evidence?

Section 8. Oral offer of and objections to exhibits. – xxx (b) 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. For example, the evidence offered is objectionable on the ground that it violates the original document rule, kay photocopy ra sya. That’s the time that you object to it under the present dispensation, in civil cases at least. So mao na sya imong atimanan ha, the moment it is offered. Pa-isa isa man na siya i-offer, so if you have 10 exhibits, pagka-offer sa Exhibit A, object na dayun ka, and so and so forth hantod sa mahurot.

Section 8. Oral offer of and objections to exhibits. – xxx (c) 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. Now let’s go to the new rule because it simplifies everything. After amendment

Section 36. Objection – Objection to offer of evidence must be made orally immediately after the offer is made. Objection to the testimony of a witness for lack of a formal offer must be made as soon as the witness begins to testify. Objection to a question propounded in the course of the oral examination

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of a witness must be made as soon as the grounds therefore become reasonably apparent. The grounds for the objections must be specified. Walang nang in writing na objection, the moment that it is offered into evidence, you object orally. It presupposes that this evidence, tanan klase nga evidence, should also be offered orally as well, because all objections can only be made orally. Take note because this is new, objection to the testimony of a witness for lack of formal offer must be made as soon as the witness begins to testify. Now, I’ll walk you through the evolution of this rule. ILLUSTRATION Situation prior to JA Rule and Amended Rules Atty SPK, fresh from taking his oath, is handling a case against Atty. STI (older lawyer who loves to grandstand). Atty. SPK calls witness Lily Cruz to the witness stand. Lily Cruz takes her oath and states her name and personal circumstances for the record. Atty. SPK immediately proceeds to ask his questions. Atty. STI then realizes something. Atty SPK did not make a formal offer of the witness’ testimony! Atty. STI remembers that he read something about this in the transcripts of Dean Inigo’s lectures (Note: he was never Dean Inigo’s student. He just used the TSN to review for the bar). So, contrary to his nature which is to grandstand, he kept his mouth shut and allowed Lily Cruz to testify without interruption.

Why? Kay katong illustration sa transcripts ni Dean Inigo was very simple. There was this young lawyer na nagpresent ug witness and he forgot his formal offer. Dean Inigo did not do anything because the court shall not consider evidence which has not been formally offered. Maski unsa pa ang iingon sa witness diha, di man na iconsider sa court, and therefore susceptible to a motion to strike. So ang gibuhat ni Dean Inigo, “move to strike the entire testimony, Your Honor for lack of formal offer” and it was not admitted by the court. Ingon ana ka-fatal sauna. What is your remedy? To move for the reconsideration of the court’s order or you have to ask the court to allow you to recall your witness. After remembering Dean Inigo’s Lectures, this happened after the testimony: Atty SPK: That would be all for the direct examination, Your Honor.

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Court: Atty. STI, your witness. Atty. STI: Your Honor, I move to strike the testimony of the witness. There was no formal offer, Your Honor. Court: Motion to strike granted. Under the Rules, the court shall consider no evidence which has not been formally offered. For the next few years, Atty STI succeeded in tormenting young and inexperienced lawyers who forgot to make a formal offer of the testimony of their witnesses when they are first presented. Fast forward to Year 2012 Era of the JA Rule Atty. SG, fresh from taking his oath, is handling a civil case also against Atty. STI. Atty. SPK calls witness Margaux Marasigan to the witness stand. Atty. SG immediately proceeds to ask the witness to testify and reaffirm the contents of the judicial affidavit. Atty. SG then prays to have the JA admitted in place of Margaux’s testimony on direct examination which the court grants. Then the following exchange took place: Atty SG: For now, that would be all for this witness, Your Honor. Court: Atty. STI, your witness. Atty STI: Your Honor, I move to strike the testimony of the witness. There was no formal offer. Court: Motion to strike granted. Under the JAR, the party presenting the JA of his witness in place of direct testimony shall state the purpose of such testimony at the start of the presentation of the witness. For the next few years, Atty STI continued to employ this tactic to torment young and inexperience lawyers who clearly were not the students of JZE because they always forget to make a formal offer of the testimony of their witnesses when they are first presented. October 8 Part 4 | Rojo Fast forward to Year 2020 Era of the Amended Rules Atty. SPMT, fresh from taking his oath, is handling a criminal case as private prosecutor for a homicide case also against Atty. STI. Atty. SPMT calls witness Camila Dela Torre to the witness stand. Atty. SPMT takes her oath and states her name and personal circumstances for the record. Atty. SPK immediately proceeds to ask his questions. Based sa criminal case for homicide under the Rule for continuous trial is a case where the culpability or the innocence of the accused will be based on the testimonies of eyewitnesses. Meaning, wala ta nag gamit diri ug judicial affidavit. Diba? Dili man ni siya preferred in the rule on continuous trial? So, oral presentation of witnesses ni siya. Meaning testimony in open court ang direct testimony ani niya, direct examination.

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III - MANRESA SY 2020 – 2021 FROM THE LECTURES OF ATTY. JESS ZACHAEL ESPEJO

Like the case against Atty. SPI and countless other neophyte lawyers, contrary to his nature which is to grandstand, he kept his mouth shut and allowed Camila Dela Torre to testify without interruption. Then this happened after the testimony:

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Atty. SPMT not knowing that he forgot to make his formal offer said,

According to my opponents, a judicial affidavit is a document and, being a document, it should be formally offered after the presentation of a party’s testimonial evidence. Thus, because I omitted the Jas in my formal offer of exhibits, they posit that the Jas should not be considered by the court in determining the outcome of the case.

Atty. SPMT: That would be all for the direct examination, Your Honor. Court: Atty. STI, your witness. What do you expect with Atty. STI now? Atty STI: Your Honor, I object and move to strike the testimony of the witness. There was no formal offer, Your Honor.

Q: Were my opponents correct? A: Of course not! Why: A judicial affidavit is not documentary evidence. It is testimonial evidence in written, question and answer form. Thus, for JAs, follow the rules on offers and objections that pertain to testimonial evidence, not those that pertain to documents.

Q: The question is should the court sustain atty STI? Tam aba g’hapon siya? A: The answer is, OVERRULED.

So, kung naka formal offer naka sa imong JA sa beginning sa testimony sa witness, you don’t have to make a formal offer of documentary exhibits ana imong JA for a simple reason na dili na documentary exhibit ang JA.

Why: Motion is overruled. Under Section 36, Rule 132 of the Amended Rules, objection to the testimony of a witness for lack of a formal offer must be made as soon as the witness begins to testify. Because you waited until the end of the objection, therefore, is not timely and is deemed waived. Look at now what the new rules is now making. Kung before pwede kaayo nimo buhaton mag move to strike, granted for lack of formal offer. Pero karun, the new rule requires na kung mag object ka on the ground of lack of formal offer, you do it in the beginning, do not wait until the end. Atty. STI cannot victimized young lawyers anymore. Again, take note of the difference of the previous and new dispensation. You wait until the end of the testimony to object on the ground of lack of formal offer of the witness. Then waived na because it is not a timely objection. That is the effect of phraseology of the amended rules. We are still on Judicial Affidavits, I will give you another example. Around 2015, I handled a civil case in Manila where, after presenting my witness via JA and rested my case, I was allowed to file my formal offer of exhibits in writing. Thereafter, instead of filing a comment or opposition thereto, counsel for the defendant (a big Manila law firm) filed a Demurrer to the Evidence. According to the opposing counsel, all my JAs should be stricken off the record lack of formal offer. Ipa strike off the record nila. What is the effect of that? Meaning, I was not able to present any evidence because my documentary evidence by object evidence, na wala man koy object evidence ato. And then my testimonial evidence, wala man g’formal offer. Diba, so if stricken off the record, what will happen? I cannot prove my case. Hence, a demurrer to evidence.

CONTINUING OBJECTIONS

Section 37. When repetition of objection unnecessary. – When it becomes reasonably apparent in the course of the examination of a witness that the question being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled, it shall not be necessary to repeat the objection, it being sufficient for the adverse party to record his continuing objection to such class of questions. What is its purpose? Take note that once you are overruled on a particular objection based on a particular ground, it would be quite unlikely for the court to change course when you raise the same objection again. Naa ba kay reasonable belief na ma utro ang ruling sa court? I will give you an example. In the direct examination of a witness, the witness wants to prove by testimony something that changes, adds to or modifies a written agreement. Gusto niya mag testify na naa pay terms agreed to by the parties which are not found in the written agreement. What will that be violative of? Of course, the parole evidence rule, under section 10. First question of adverse counsel,

You mentioned Mr. Witness that there are several terms that you agreed to with the defendant that is not found in the written agreement, can you give us one such provision? What provision or what terms or condition are not found in that written agreement? So, ikaw mu ana ka,

Objection your honor, the question calls for an answer that tends to violate parole evidence rule. / Objection your honor, it violates the parole evidence rule.

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EVIDENCE

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For some reason that is unknown to you, the court overruled your objection. So, the court is interested to know what those terms and conditions are even if they are not in the written agreement. So, the court in effect for that question at least, it is disregarding the parole evidence rule. Gusto niya ma dunggan. Tubag karun ang witness, the first term na wala sa agreement. Next question, the adverse counsel wants to push his luck and says,

Other than that, which you mentioned Mr. Witness, what else? What other conditions that are not found in that written agreement? What do you do? Again, you object!

Objection your honor, it violates the parole evidence rule.

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about kay dili kaayo siya familiar sa jurisprudence let’s say for that matter. So, the court can take the time to research. But, remember the ruling must be made during the trial to give the other party the opportunity to meet the situation presented by the court’s ruling. Meaning, if the court sustains or if the court overrules, what will the other party do? The other party should be given the chance to meet the situation. And take note that the reason for sustaining or overruling an objection need not be stated. October 8 Part 5 | Campaner

Then the court says,

Objection overruled, let the witness answer. How many terms and conditions which are not found in the written agreement? You have an idea of it when you studied the pleadings, right? You have an idea of it when you look at the judicial affidavits. But what if there are 10 na gna allege niya na matters which cannot be found in the written agreement? Will you object 10 times as well based on the evidence rule? When in fact for the first 2 questions, the court already made it clear the court is not going to sustain your objection, when apparently the court does not know about the parole evidence rule for whatever reason. So, in question number 3, what else pa ba ang wala dira na inyong g’sabutan na wala sa document? What do you expect? The court will now sustain you? NO. So, in that situation what do you need to do? You need to register your continuing objection for the record.

Your honor, we continue to object to the same questioning on the ground that the answers would violate the parole evidence rule. You do not need to object every time; it will just cause a delay. You just manifest for the record your continuing objection. WHEN TO RULE Section 38. The ruling of the court must be given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling. The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon. (38) Take note that the court must immediately rule about the objection. Unless the court is not familiar with the issue presented, like it’s an issue of law. The procedure that the court would want to inform itself

For example. Counsel: Objection your honor, leading question. Judge JZE: Overruled. Do I have to explain nganong dili leading ang question? NO.

Section 38. Ruling – xx The reason for sustaining or overruling an objection need not be stated. xx Why? Understandable na sya, yes means yes and no means no. But take note that the situation is different when we go to compound objections. What is a compound objection? An objection that is based on two or more grounds.

Section 38. Ruling – xx However, if the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon. xx Why? Because the party needs to know what precisely is the reason why gi-sustain or gi-overrule for the purposes of appellate recourse. For example. We object to the presentation of that object your honor, number one it is inadmissible under the 1987 Constitution being a product of an illegal search and seizure, and second the witness is not competent to testify as to that object. Let’s say the court sustains the objection, but he is only sustaining the objection on one ground, that the witness is not competent to testify on the object. It means that the court finds nothing wrong with the object on a constitutional standpoint, and therefore, for purposes of an appeal, all that a party needs to worry about is meeting the objectionability of that object on the point of view of competency of the witness and not upon constitutional grounds. That’s why if i-sustain sya on one or more grounds, pero dili tanan, the court has to state ngano niya gina-sustain or overrule ang objection.

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UNDER THE JAR The court is required to rule immediately or promptly as soon as the objection is made. Striking out answer Prior to amendment

Section 39. Striking out answer. – Should a witness answer the question before the adverse party had the opportunity to voice fully its objection to the same, and such objection is found to be meritorious, the court shall sustain the objection and order the answer given to be stricken off the record. On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper. After amendment

Section 39. Striking out answer. – Should a witness answer the question before the adverse party had the opportunity to voice fully its objection to the same, or where a question is not objectionable, but the answer is not responsive, or where a witness testifies without a question being posed or testifies beyond limits set by the court, or when the witness does a narration instead of answering the question, and such objection is found to be meritorious, the court shall sustain the objection and order such answer, testimony or narration to be stricken off the record. On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper. Grounds for striking out answer 1. If a witness answers a question before the adverse party had the opportunity to voice fully its objection on the question’ 2. Where a question is not objectionable, but the answer is not responsive; 3. Where a witness testifies without a question being posed; 4. Where a witness testifies beyond limits set by the court; Sometimes the court can limit the scope of the testimony. For example, the court deems that the witness is going to testify on possible trade secrets. Pero, gi-allow gihapon sa court na mu-testify ang witness, pero naa’y limitation, dili ka pwede magdivulge ug matter that might lead to a line of question relating to a protected trade secret. 5. Where the witness answers in a narrative form; Di ka pwede mag-story telling, it should just be question and answer. Inquiry then answered by a specific fact. 6. If the answers of the witness are incompetent, irrelevant or otherwise improper. Incompetent. Dili sya admissible or wala’y personal knowledge ang witness to testify on that.

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Irrelevant. No relation to the fact in issue so as to induce belief or nonbelief in its existence or non existence Improper. Kanang, improper ra gyud sya, maybe couched in an offensive language.

Section 40. Tender of excluded evidence. – If documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony. The situation here is that, you’re the lawyer presenting a client’s evidence, but the problem is the evidence is either objected to or not, the court decided not to admit the evidence. Meaning, if it is not admitted by the court, it should not be considered. But, for the sake of discussion, let’s say importante kaayo to sya. That the evidence is to the effect that if it is included, if it was included in the first place by the court, it would have changed the outcome of the controversy. Let’s say for example, you were charged with murder. But you have this CCTV footage that shows that X shot the victim and not you. But the court, for some reason, did not admit that evidence. What would happen? You might be convicted. So what are you going to do? You tender the excluded evidence or also known as: PROFFER OF EVIDENCE OR OFFER OF PROOF Where a party is denied the right to introduce evidence because that evidence would be inflammatory, hearsay, or would lack sufficient authentication, that party must make a proffer of what the evidence would have shown had the court allowed it. PURPOSE 1. To allow the court to know the nature of the testimony or the documentary evidence and convince the trial judge to permit the evidence or testimony; and 2. To create and preserve a record for appeal. (Riano, Evidence: A

restatement for the Bar, p. 477, 2009 ed.)

How do you do that? If it is testimonial evidence. “Your honor, we tender this excluded evidence as follows: We want to make it of record that the name of the witness is XYZ, he is a banker by profession and had the court allowed the witness to testify, he would have testified as follows: *substance of the testimony*” If it is documentary or object evidence. You just manifest for the record that you are tendering excluded evidence and have it attached to or made a part of the record.

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Take note, kung unsa imong gi-tender na excluded evidence, the court will not consider your excluded evidence. It is only for the purposes of preserving a record for appeal.

Distinguish: PROFFER Only resorted to if admission is refused by the court for purposes of review on appeal

OFFER Refers to testimonial, documentary or object evidence that are presented or offered in court by a party so that the court can consider his evidence when it comes to preparation of the decision.

POSSIBLE BAR QUESTION Distinguish the English Exchequer rule from the harmless error rule English Exchequer Rule – mentioned in: People vs Teehankee GR no 111206-08, October 6, 1995 English Exchequer Rule It provides that a trial court’s error as to the admission of evidence was presumed to have cause prejudice and therefore, almost automatically required new trial.

Harmless Error Rule The appellate court will disregard an error in the admission of evidence unless, in its opinion, some substantial wrong or miscarriage of justice has been occasioned.

What is followed in the Philippines? We follow the harmless error rule, for in dealing with evidence improperly admitted in the trial, courts examine its damaging quality and its impact to the substantive rights of the litigant. If the impact is slight and insignificant, appellate courts disregard the error as it will not overcome the weight of the properly admitted evidence against the prejudiced part (People vs. Garcia, GR No

105805, Aug 16, 1994)

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comments and cases that appear in pages 678 to 683 of Evidence Explained discuss the provisions but be mindful of the new numbering. WEIGHT OF EVIDENCE This refers to the balance of evidence and in whose favor it tilts. This refers to the indication of the greater between the parties. This depends on judicial evaluation within the guidelines provided by the rules and by jurisprudence. SUFFICIENCY OF EVIDENCE Sufficiency refers to the adequacy of evidence, or such evidence in character, weight or amount as will legally justify the judicial action demanded or prayed for by the parties. In going back to weight, we need to remember there’s this procedural principle that evidence is weighed not counted. So if it is the plaintiff that presents the weightier evidence to support his case, he should win. Sufficiency of evidence therefore refers to the question of whether the evidence meets the required quantum needed: o To arrive at a decision in a civil, criminal or administrative case; or o To prove matters of defense or mitigation; or o To overcome a prima facie case or a presumption REQUIRED QUANTUM OF PROOF According to the SC, there’s a hierarchy of evidentiary values. Sps. Manalo vs Roldan-Confesor GR No. 102358, November 19, 1992 Consequently, in the hierarchy of evidentiary values, we find: 1. Proof beyond reasonable doubt at the highest level 2. Followed by clear and convincing evidence 3. Preponderance of evidence and 4. Substantial evidence, in that order. Clear and convincing evidence does not have a statutory definition, unlike that of the other evidentiary values enumerated above. So, we have to rely on jurisprudence. PREPONDERANCE

RULE 133 WEIGHT AND SUFFICIENCY OF EVIDENCE

Section 1. Preponderance of evidence, how determined. – In

Lecture Guide For Sections 1 to 4, the comments and cases appear in pages 659 to 678 of Evidence Explained. Take note that the Supreme Court inserted a new Section 5, which means that the old Section 6 became the new Section 7 and the old Section 7 became the new Section 8. The

In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider:

civil cases, the party having burden of proof must establish his or her case by a preponderance of evidence.

Nine factors to consider in determining preponderance 1. All the facts and circumstances of the case 2. The witnesses’ manner of testifying

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EVIDENCE 3. 4. 5. 6. 7. 8. 9.

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Their intelligence Their means and opportunity of knowing the facts to which they are testifying The nature of the facts to which they testify The probability or improbability of their testimony Their interest or want of interest Also, their personal credibility so far as the same may legitimately appear upon the trial The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number

NOTE: the last paragraph is an expression of the procedural truism that EVIDENCE IS NOT COUNTED BUT WEIGHED. Preponderance of evidence only applies to civil cases. Preponderance The term literally means “greater in number, quantity or importance” o But again, preponderance is not necessarily on the greater number but on the importance or the relevancy of the evidence you are going to present. From the Latin praeponderare, which means “outweigh.” o So when you talk about preponderance in civil cases, the question you need to answer would be “does the evidence presented by the plaintiff outweigh the evidence presented by the defendant?” So, whoever outweighs the other would win the litigation. Doctrinal definition BJDC Construction vs Lanuzo GR No 161151, March 24, 2014 By preponderance of evidence is meant that the evidence as a whole adduced by one side is superior to that of the other. It refers to the weight, credit and value of the aggregate evidence on either side and is usually considered to be synonymous with the term “greater weight of evidence” or “greater weight of the credible evidence.” It is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto. Again, we’re talking here of “asa ba nga ebidensya ang mas katuohan.” Tabuada vs Tabuada GR no. 1965210, September 12, 2018 Although documentary evidence may be preferable as proof of a legal relationship, other evidence of the relationship that are competent and relevant may not be excluded. The preponderance of evidence, the rule that is applicable in civil cases, is also known as the greater weight of evidence. There is a preponderance of evidence when the trier of facts is led to find that the existence of the contested fact is more probable

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than its nonexistence. In short, the rule requires the consideration of all the facts and circumstances of the cases, regardless of whether they are object, documentary, or testimonial. “More probable that its nonexistence ” Do you see the connection now? “Induce belief of its existence or non-existence” Diba, we’re talking here of relevancy. So in preponderance of evidence, the same basic principles is also applicable. In short, the rule requires the consideration of all the facts and circumstances of the case, regardless of whether they are object, documentary or testimonial. This is actually an interesting case, please read this. In connection to preponderance, you need to remember this doctrine: Falsus in uno, falusus in omnibus (False in one thing, false in everything) You don’t only present a witness to prove one thing, a witness proves a lot of things. So, what would be the rule if the witness falsifies a part of his testimony? If the testimony of the witness on a material issue is willfully false and given with an intention to deceive, court may disregard all the witness’ testimony. This principle, however, is not a mandatory rule of evidence. o The rule in the Philippines is you have to let the testimony stand, whether false sya in certain respects or true sya in certain respects. Just kick out the false and let the true remain. It deals only with the weight of evidence and not a positive rule of law The witnesses’ false or exaggerated statements on other matters shall not preclude the acceptance of such evidence as relieved from any such sign of falsehood o It doesn’t mean na namali sya’g sturya on a particular matter in his testimony, na dili na nimo tuohan ang remainder sa iyang testimony. The court may accept and reject portions of the witness’ testimony depending on the inherent credibility thereof PROOF BEYOND REASONABLE DOUBT

Section 2. Proof beyond reasonable doubt. – In a criminal case, the accused is entitled to an acquittal, unless his or her guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. So, the general rule therefore, if you base it on the first sentence would be for acquittal. By way of exception, kung na-prove iyang guilt beyond reasonable doubt, that’s the time that you convict. Definition

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PROOF BEYOND REASONABLE DOUBT is that degree of proof which produces conviction in an unprejudiced mind, not of the absolute certainty but only the moral certainty that a crime has been committed and that the accused is guilty thereof. It does not require absolute certainty, only moral certainty. Does the court feel that it is morally upright to convict? If yes, then a verdict can be entered.<