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EVIDENCE
by Atty: Brondial
TESTIMONIAL EVIDENCE
The weakest of all kinds of evidences precisely because it emanates from man who can always try to
controvert matters.
What are the qualifications?
You better memorize the qualifications. It's very simple because almost all problems of the qualification of
a witness can be answered through these basic characteristics of a witness.
A witness is one who can perceive and perceiving and can make known his perception. So
anybody.
Can a deaf-mute testify? Can a blind testify?
If he can perceive and perceiving and can make known his perception, he can testify. Even if you don't
get a perfect score, you will not get a zero for that because that is a correct answer.
Can a child of tender age testify?
If he can perceive and perceiving can make known his perception, he can testify.
In one and recent case wherein a child was asked to testify, the SC allowed the child to testify because
they find out that what is the criteria for ability to perceive is not just perceiving but making known your
perception to others. This is the case of People v. Bulimlit (not sure), they spoke of the ability to perceive,
then ability of communication. And they added the other one, the ability to know the difference between
what is right from wrong. In other words, some cases use it as the ability to understand the nature of an
oath.
In another case, the SC said that the child was not qualified to testify because he cannot perceive and
cannot make known his perception. The child was 2 1/2 years old.
Can a retardate testify?
She was the only witness in a rape case where she was a victim, the defendant's counsel was able to
destroy the testimony to the point of even getting an answer that she likes the act of rape. But the SC
convicted the accused nonetheless on the sole testimony of the retardate. Rationale: the retardate is
qualified because she can perceive and perceiving can make known his perception.
Disqualification?
Basic exception to the general rule (one can perceive and perceiving can make known his perception) is if
the law disqualifies him. So if there is a law disqualifying a person, even if he can perceive and perceiving
can make known his perception, he is disqualified. You get that from other laws, substantive laws. We
have studied in Rule 119 regarding a state witness. One of the qualifications of a state witness is that he
must not have been convicted of a crime involving moral turpitude. If you are convicted of a crime of
moral turpitude, you cannot testify as a state witness because the law disqualifies you to testify.
If you have been convicted of perjury, defamation or misrepresentation, or forgery, you cannot be a
witness to a will under your wills and successions law. And remember, before you authenticate a will, you
must present the three instrumental witnesses. If one witness is convicted of perjury etc. then he cannot
testify as a witness.
Other disqualifications:
1. Mental incapacity or Immaturity.
When you speak of maturity, it does not go with age. You may be of age but still immature. You may not
be of age but already mature. One who cannot decipher what is good and right. One who does not
appreciate the sanctity of an oath. These are signs of immaturity. In other words, you are irresponsible.
Who is irresponsible? One who cannot live up to situations. Who is responsible? If he has the ability to
respond. So you are irresponsible if the incident calls for a correct response and you did not.
But if you are pronounced to be insane or psychotic, you are disqualified.
Children, under the Rule on Section 21, because of their maturity but remember that the children may
even be more mature than the adults. So this is a case-to-case basis. And because of the Child Witness
Pedigree
Pedigree is a kind of relationship. If one testifies about the relationship of another because it is known by
him, then that is not hearsay. If I testify, I know Mr. X to be the illegitimate child of Mr. Y. That is not
hearsay. But when I say that it is well known in the community that Mr. X is not legally married to Y. It can
be about pedigree of marriage. Common reputation about pedigree.
Res Gestae
Two kinds. It can either be statements during an occurrence or spontaneous articulation in the course of
an event. If you are on top of a building, and you are looking over on the road and you see both men
coming at each other armed with a bolo. These are all part of the res gestae yung reactions. Multiple
admissibility, a witness or a testimony can be admitted because of a res gestae or a dying declaration.
Treatises
It refers to publications and the witness who testifies is not the author. Because if the author testifies
on his own writing, then it is not hearsay. It is someone else who testified on a treaty or a publication
by a well-known author or write in specialized fields, this is considered hearsay but admissible. But
another qualification, the one who testifies on that must be knowledgeable on the subject matter.
Suppose there is a book by Gerardo Sicat. He is well-known Economist, then the one who is testifying
about his book is Bernardo Villegas, another well-known economist. Definitely, even if that is hearsay as
far as the witness is concerned but this is considered as an exception because it is learned treatises.
Another example is a doctoral thesis. So you tie this up with expert witnesses.
Entries or commercial lists
Just go over the requirements of each.
Testimony at a former proceeding or deposition
We have extensively studied deposition.
OPINION RULE
Going back to the general formulation, one who can perceive and perceiving can make known his
perception. So what are you suppose to testify on? What you perceive and not what you think about what
you perceive because that is already a matter of opinion. Opinions are not allowed in testimonies.
Exceptions:
1. Expert Witness
2. Ordinary Witness
a. identity of a person about whom he has adequate knowledge
b. handwriting with which he has sufficient familiarity
c. mental sanity of a person with whom he is sufficiently acquainted
An expert witness must testify on his experties. Example is in a case of annulment of marriage,
mandatorily, the law says that an expert witness must testify when the ground is Psychological incapacity.
An ordinary witness may testify on his opinion but limited only to 3 instances.
Doctrine of independently relevant statement
You are not trying to establish the content whether it is true or not but you are only trying to establish the
fact that someone (C) told you that X went with A. As to the existence of the fact and not as to the truth or
veracity of the issue.
RULE 131
Who has the burden of proof?
Burden of proof must first be distinguished from burden of evidence. While burden of proof does not shift,
burden of evidence shifts. Burden of proof means, the you need to establish a claim. Now that claim may
be propounded by the plaintiff or the defendant in the case of counterclaim in civil cases or in the case of
defense on the part of the accused in criminal cases. So burden of proof lies thereof on the claimant. He
who claims something must establish his claim by proof.
There is a peculiarity of burden of proof as distinguished from burden of evidence in criminal cases.
Letter M. That official duty has been regularly performed. Maraming kaso ito. Accused was charged of
selling 980 grams of shabu in a buy-bust operation. During his trial, the prosecution relied mainly on the
testimony of a policeman who acted as a buyer. Can the court rely on the presumption that official duty
has been regularly performed in convicting the accused? No. Why? To determine whether there was a
valid entrapment or where entrapment procedures were undertaken in effecting the buy-bust operation, it
is incumbent upon the court to make sure that the details of the operation are clearly and adequately laid
out, relevant, material and competent evidence. The court cannot rely but must study these things.
People v. Ong 432 SCRA (2004). If you want to apply this presumption, you have to outline the rules and
regulations governing performance of such obligation. If you don't outline, there is no presumption that it
was regularly performed. So it was more of a defense. If there is a sweeping statement that there is a
presumption, then establish that the following are the functions, for example a clerk of court in the
issuance of a writ of execution. Outline first the functions of a clerk of court, kumbaga ba e is it the duty of
the clerk of court or is it the judge.
Letter W. You have studied this already. The presumption of death. Amendment, if there is presumption of
death. Example: where a mother files damages against an airline, where she contends that her son died
in the crash. The defense of the airline was that no body was recovered. So the mother also filed for
presumption of death. The SC, there is a provision for the presumption of death. Since the death only
happened last year then she must wait for 4 years before she can apply for the presumption of death.
I'm talking of presumption ha. But if you have the body already, then this presumption would not apply.
Letter Double A (aa). That a man and woman deporting themselves as husband and wife had entered
into a lawful contract of marriage.
Letter Double B (bb). That property acquired by a man and a woman who are capacitated to marry each
other and who live exclusively each other as husband and wife without the benefit of marriage or under a
void marriage has been obtained by their joint efforts, work or industry.
Letter Double J (jj). Succession. When two persons perish in the same calamity.
1. Both are under the age of 15 years - older
2. Both are over the age of 60 years - younger
3. One is under 15 and the other is above 60 - former
4. One is over 15 and the other is under 60, different sex - male
5. One is over 15 and the other is under 60, same sex - older
6. One is under 15 or over 60 and the other between those ages - latter
RULE 132 - PRESENTATION OF EVIDENCE
To have a bird's eye view, you divide it into three parts:
1. Examination of witness - Section 1-18
2. Authentication and proof of documents - Sections 19 - 33
3. Offer and objection - Sections 34 - 40
Examination of a witness presented in a trial or hearing shall be done in open court and under oath or
affirmation.
The opposition of open court is in chamber.
But all these examinations of witness is in the presence of a judge whether in open court or in chambers.
The entire proceedings must be recorded. The official record is what you call the transcript of
stenographic notes. And the contents of the stenographic notes is prima facie correct.
For practical purposes, when you are now trying a case, in the next hearing, be sure that you have
already the copy of the transcript of the last hearing. Why? The only time to correct errors in the transcript
of the stenographic notes is before the trial of the case. If you don't correct the transcript of the
stenographic notes, the basis of the judgment would always be the transcript of the stenographic notes. In
fact, a judge who did not hear the case at all can still render judgment solely based on the transcript of the
stenogrpahic notes. Before the 1997 Rules of Court, some courts are not courts of record, like the inferior
courts. Under the present rules, all courts are already courts of record. How about quasi-judicial agencies,
are they courts of record? Yes they are at present even though the rules do not so provide but as a matter
of practice.
Section 4. Order in the examination of an individual witness
We distinguished that from order in the presentation of evidence which we under Rule 30 Section 5 and
Rule 119, Section 11. So in Civil Procedure, the order of trial is found in Section 5 of Rule 30. In criminal
cases, Section 11 of Rule 119. That is order of trial. In the order of trial, in criminal cases, we start with the