2008 BAR QUESTIONS on EVIDENCE

QUESTION: Bembol was charged with rape. Bembol's father, Ramil, approached Artemon, the victim's father, during the preliminary investigation and offered P1 Million to Artemon to settle the case. Artemon refused the offer. a) During trial, the prosecution presented Artemon to testify on Ramil's offer and thereby establish an implied admission of guilt. Is Ramil's offer to settle admissible in evidence? (3%) b) During the pre-trial, Bembol personally offered to settle the case for P1 Million to the private prosecutor, who immediately put the offer on record in the presence of the trial judge. Is Bembol's offer a judicial admission of his guilt? (3%)

ANSWER: a) No. In criminal cases, as a rule, an offer of compromise by the accused may be received in evidence as an implied admission of guilt (Rule 130, Sec. 27, second paragraph, Rules of Court). In this case, however, the offer was made not by the accused but by his father. b) No. A judicial admission is an admission, verbal or written, made by a party in the course of the proceedings in the same case (Rule 129, Sec. 4, Rules of Court). In criminal cases, 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 (Rule 118, Sec. 2, Rules of Court). QUESTION: On August 15, 2008, Edgardo committed estafa against Petronilo in the amount of P3 Million. Petronilo brought his complaint to the National Bureau of Investigation, which found that Edgardo had visited his lawyer twice, the first time on August 14, 2008 and the second on August 16, 2008; and that both visits concerned the swindling of Petronilo. During the trial of Edgardo, the RTC issued a subpoena ad testificandum to Edgardo's lawyer for him to testify on the conversation during their first and second meetings. My the subpoena be quashed on the ground of privileged communication? Explain fully. (4%)

ANSWER: The subpoena may be quashed as to communication made on August 16, 2008 but not as to communication made on August 14, 2008. An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him in the course of professional employment (Rule 130, Sec. 24[b], Rules of Court). However, the privilege does not extend to communications made in furtherance of crime or perpetuation of fraud. Thus, while communications regarding the commission of a crime already committed, made by a party who committed it, to an attorney, consulted as such, are privileged communications, communications between an attorney and client having to do with the clients contemplated criminal acts, or in aid or in furtherance thereof, are not covered by the privilege (People v. Sandiganbayan, G.R. No. 116429, July 16, 1997). QUESTION: The mutilated cadaver of a woman was discovered near a creek. Due to witnesses attesting

that he was the last person seen with the woman when she was still alive, Carlito was arrested within five hours after the discovery of the cadaver and brought to the police station. The crime laboratory determined that the woman had been raped. While in police custody, Carlito broke down in the presence of an assisting counsel and orally confessed to the investigator that he had raped and killed the woman, detailing the acts he had performed up to his dumping of the body near the creek. He was genuinely remorseful. During the trial, the State presented the investigator to testify on the oral confession of Carlito. Is the oral confession admissible as evidence of guilt? (4%)

ANSWER: No. 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 latters 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. (Section 2[d], Republic Act No. 7438).

QUESTION: A tugboat owned by Speedy Port Service, Inc. (SPS) sand in Manila bay while helping tow another vessel, drowning five (5) of the crew in the resulting shipwreck. At the maritime board inquiry, the four (4) survivors testified. SPS engaged Atty. Ely to defend it against potential claims and to sue the company owning the other vessel for damages to the tug. Ely obtained signed statements from the survivors. He also interviewed other persons, in some instance making memoranda. The heirs of the five (5) victims filed an action for damages against SPS. Plaintiff's counsel sent written interrogatories to Ely, asking whether statements of witnesses were obtained; if written, copies were to be furnished; if oral, the exact provisions were to be set forth in detail. Ely refused to comply, arguing that the documents and information asked are privileged communication. Is the contention tenable? Explain. (4%)

ANSWER: No. For the privilege to apply, the communication or advice must have been given by the client in the course of, or with a view to, professional employment (Rule 130, Sec. 24, Rules of Court). The documents and information asked, in the present case, are not privileged communication, there being no attorney-client relationship between Atty. Ely and the witnesses who made the statements subject of written interrogatories.