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DEAN RIANO EVIDENCE FINALS REVIEWER and LAST MINUTE TIPS by Bimby and Klowee 1.

Memorize Falsus in uno falsus in omnibus Falsus in uno vs. Falsus in Omnibus means false in one thing, false in everything *interpretation is not strict *While the witnesses may differ in their recollections of an incident, it does not necessarily follow from their disagreements that all of them should be disbelieved as liars and their testimonies completely discarded. It is not a positive rule of law. The witness must have a conscious and deliberate intention to falsify a material point. Distinguish Factum Probans vs. Factum Probandum Factum Probandum Factum Probans Ultimate Facts Material evidencing the proposition Hypothetical Existent. a. Factum probandum is the fact or proposition to be established b. Factum Probans the facts or material evidencing the fact or proposition to be established *Example: If P claims to have been injured by the negligence of D who denies having been negligent, the negligence of D and the causal connection between such negligence, and the injuries of P taken as a whole = Factum Probandum The evidence offered by P, whether it be object, documentary or testimonial, constitute the materials to prove the liability of D. The totality of the evidence to prove the liability refers to the Factum Probans *If the defendant admits his negligence in his answer to the complaint, there is no more need to prove negligence. Hence, negligence ceases to be a factum probandum in this case. *if the factum probandum signifies the fact or proposition to be established, then matters of 1) judicial notice, 2)conclusive presumptions, 3)judicial admissions cannot qualify as parts of the factum probandum of a particular case, because such matters need not be established or proven. *Factum probandum in civil case refers to the elements of a cause of action from the point of view of the plaintiff and the elements of the defense from the point of view of the defendant. *In criminal cases factum probandum includes all matters that the prosecution must prove beyond reasonable doubt in order to justify a conviction. 3. Can Rules of Evidence be used in non-judicial proceedings? The rules of evidence, being parts of the Rules of Court, apply only to judicial proceedings (Sec. 1 Rule 128) *Sec.4. In what cases not applicable. These Rules shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceeding, and other

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cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient. Ex. Not applicable in Administrative bodies, CSC, Petition for naturalization, labor cases 4. a. Best Evidence Rule (Original document rule) (primary evidence rule) Concept i. Original of the document must be produced; When the subject matter of the inquiry is the contents of a document , no evidence shall be admissible other than the original document itself, b. Exceptions to the rule i. When the original has been lost, or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; ii. 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; iii. 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 iv. When the original is a public record in the custody of a public officer or is recorded in a public office. *Involves only the contents of a writing. The rule cannot be invoked unless the contents of a writing is the subject of judicial inquiry, in such case; the best evidence is the original writing itself. *Where the issue is the execution or existence of the document or the circumstances surrounding its execution, the best evidence rule does not apply and the testimonial evidence is admissible. *Where the issue is only as to whether such document was actually executed, or exists, or on the circumstance relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible. *The best evidence rule applies only when the purpose is to establish the terms of a writing. When the evidence introduced concerns some external facet about a writing like its existence, execution or delivery without reference to its terms, the rule cannot be invoked. The subject of inquiry under the best evidence rule it the CONTENTS of a writing, NOT THE TRUTH thereof. Where the truth is in issue, the hearsay rule will now be involved. c. Illustrative applications i. 1994 Bar At the trial of ace for the violation of the Dangerous Drugs Act, the prosecution offers in evidence a photocopy of the marked bills used in the buy-bust operation. Ace objects to the introduction of the photocopy on the ground that the Best Evidence Rule prohibits the introduction of secondary evidence in lieu of the original is the photocopy admissible in evidence? 1. Yes, the photocopy of the bills being object evidence is admissible in evidence without violation of the best evidence rule. The rule applies only to documentary evidence and not to object evidence. *The reason for the best evidence rule is the prevention and detection of fraud. *The best evidence rule may be waived if not raised in the trial *If the original be presented in evidence

1. 2. 3. 4.

a. b. c. d.

1) Find a legal excuse for failure 2) present secondary evidence If secondary evidence is to be offered in evidence, like a copy, the proponent has to lay the basis for the admission of the copy of the document. Excuses for not presenting the original When the original has been 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 reasonablenotice When the original consists of numerous accounts or other documents cannot be examined in court without great loss of time and the fact sought to be establish is only the general result of the whole; and When the original is a public record in the custody of a public officer or is recorded in a public office. *How to lay the basis for presenting secondary evidence: a) The offeror must prove the execution and existence of the original document; b) The offeror must show the cause of its unavailability Loss, destruction, or unavailability c) The offeror must show that the unavailability was not due to his bad faith Correct order of proof is as follows Existence, execution, loss, and contents. Due execution and authenticity of the document must be proved either: a) by anyone who saw the document executed or written, or by evidence of the genuiness of the signature or handwriting of the maker. When original is in the custody or control of the adverse party: Laying the basis requires: The original exists. That the said document is under the custody or control of the adverse party; That the proponent of secondary evidence has given the adverse party reasonable notice to produce the original document That the adverse party failed to produce the original document despite the reasonable notice. *Waiver: Failure to object to the parole evidence presented by the adverse party operates as a waiver of the protection of the rule. * The loan may be proved by the photocopy as long as A lays the basis for the introduction of secondary evidence, to wit: a) the existence and due execution of the original, and b) the loss of the original without bad faith on his part. (Sec. 5, Rule 130)

Distinction between Best Evidence and parol Evidence Best Evidence Rule Parol Evidence Rule 1. Establishes a preference for the original Presupposes the original is available document over secondary evidence thereof. 2. Precludes the admission of secondary Precludes the admission of other evidence evidence if the original document is to prove the terms of a document other available. than the contents of the document itself for the purpose of varying the terms of the writing. 3. Can be invoked by any litigant to an Can be invoked only by the parties to the

action whether or not said litigant is a document and their successors in interest. party to the document involved. 4. Applies to all forms of writing Applies only to written contracts and wills. 5. Define Parol Evidence *Applies to agreements and will. Parol evidence means offering extrinsic evidence that would modify, explain or add to the terms of the written agreement. BUT it is allowed if any of the following are shown: An intrinsic ambiguity, mistake, or imperfection in the written agreement; The failure of the written agreement to express the true intent and agreement of the parties; The validity of the written agreement; The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. And only if it is put in issue in the pleadings. *The rule applies ONLY to contracts which the parties have decided to set forth in writing. When n the terms of an agreement is merely oral, the parol evidence rule should not be applied. *Parol evidence does not apply in oral agreements, public writing, private writing, express trust (although parol evidence applies to wills. 6. Testimonial Evidence Adverse party Read Sec. 6. Loss, Destroyed, Unavailable Originals (Sec 5) *Showing that the original document is in the custody or under the control of the adverse party does not ipso facto authorize the introduction of secondary evidence to prove its contents. The party who seeks to present secondary evidence must lay a basis for its introduction. Laying the basis:

a. b. c. d.

1) 2) 3)

That the original exists; That the document is under the custody or control of the adverse party; That the proponent of secondary evidence has given the adverse party reasonable notice to produce the original document; 4) That the adverse party failed to produce the original document despite the reasonable notice. How to notify: motion for the production of the original or by subpoena duces tecum, provided that the party in custody has sufficient time to produce it. After the foundational requirement for the introduction of secondary evidence have been complied with, secondarily evidence may now be presented as in the case of loss. This mean that the contents of the document may now be proven by a copy of the document a recital of its contents in some authentic document By testimony of a witness in the order stated (Sec. 5 Rule 130) 7. Testimonial evidence topics not found in Rule 130

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132 (Sec. 3) Right of witnesses (Sec .6) Cross Exam and Sec. 11 Impeachment of witnesses i. Are the rights of the accused violated in case of compulsory HIV testing? No. There is no testimonial compulsion involved by extracting blood from the accused for testing purposes. Thus, there is no violation of the right to privacy and the right to be presumed innocent. ii. Should DNA evidence be admitted? Yes. The right against self incrimination applies only to testimonial evidence. Extracting blood samples and cutting strands of hair do not involve testimonial compulsion but purely mechanical acts which neither requires discretion or reasoning. (Tijing v. Court of Appeals. iii. The right against self incrimination does not apply to physical and mechanical act. It applies only to testimonial compulsion which is not the case under the facts. iv. Degrading questions although degrading a witness must answer the question if the degrading answer a) is the very fact in issue; or b) refers to a fact from which the fact in issue would be presumed. (Rule 132)

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What are the elements of a dying declaration? #3 exam *Must comply with the following foundational elements 1. That the declaration is one made by a dying person; 2. That the declaration was made by said dying person under the consciousness Of impending death 3. That the declaration refers to the cause and circumstances surrounding the death of the declarant and not of anyone else; 4. That the declaration is offered in a case where the declarants death is the subject of inquiry; 5. The declarant is competent as a witness had he survived; 6. The declarant should have died. Note: must refer to the death of the declarant, not merely injuries. *If the declarant survives HIS DECLARATION MAY BE ADMISSIBLE AS PART OF THE RES GESTAE. *The former rule embodied in Supreme Court decisions, which declared that a dying declaration is offered in a criminal case for homicide, murder, or parricide wherein the declarant is the victim, no longer holds true. As amended Parts of the Res Gestae Literally means things done. Res Gestae is the startling event of which the spontaneous statement is only a part of.

1) a. b.

The use of res Gestae in the Philippines is limited to two matters: Spontaneous statements That there is a startling occurrence taking place; That statements were made while the event is taking place or immediately prior to or subsequent thereto;

c. d. 2)

a. b. c. d. 9.

The statements were made before the declarant had the time to contrive or devise a falsehood That the statement relates to the circumstances of the startling even or occurrence, or that the statements must concern the occurrence in question and its immediate attending circumstance. Verbal acts Statement accompanying an equivocal act material to the issue, and giving it a legal significance a conduct that is equivocal or ambiguous, one which in itself does not signify anything when taken separately (legal significance) To be admissible, the following requisites must be present: The principal act to be characterized must be equivocal (clear need not be explained); The equivocal act must be material to the issue; The statement must accompany the equivocal act; The statement gives a legal significance to the equivocal act Exceptions to the hearsay rule, are all hearsay, but ex. Which of the following is hearsay? Hearsay vs. Hearsay evidence is one that is not based on ones personal knowledge of others to prove the truth of the matter asserted in an out-orcourt are admissible Sec. 36 of Rule 130 Opinion An opinion evidence is based on the personal knowledge or personal conclusion of the witness based on his skill, training, or experience.

a.

b.

c. d.

Examples of Non-hearsay evidence A statement having probative worth simply by virtue of the fact that it was uttered, if relevant to a material fact inissue is not hearsay and is generally admissible. Where a statement is not offered for the truth of the contents of the conversation, but only to show that it was made, then the statement is not hearsay. For example, a statement that is offered to show its patent falsity, so as to suggest the defendants consciousness of guilt, is NOT hearsay. A statement relating to the state of mind of the declarant and statement relating to the state of mind of the listener, these are not hearsay, but merely constitute circumstantial evidence of an assertion. Ex. To prove by inference the testators state of mind, I am Stalin, Roosevelt, Saddam Hussein, rolled into one A threat against a witness may be offered in evidence to show its impact on the witness and where the reasonableness of a persons conduct is an issue, and out of court declaration may be offered to explain the person's reactions to the declaration. Words offered to prove hearers reaction are admissible when they are offered to show their effect on one whose conduct is at issue. Independent relevant statement: The newspaper clipping is admissible as non-hearsay if offered for the purpose of showing that the statement of X was made to a reporter regardless of the truth or falsityof the statement. If it is relevant, it is admissible as an independent relevant statement (non hearsay) It would be hearsay if offered to prove the truth that x was the robber.

Exception to the Hearsay Rule: 1. Dying Declarations 2. Declaration against interest 3. Act or declaration about pedigree 4. Family reputation or tradition regarding pedigree 5. Common reputation 6. Parts of the res Gestae 7. Entries in the course of business 8. Entries in official records 9. Commercial lists 10. Learned treatises 11. Testimony or deposition at a former trial Dying Declarations *must be impending, near, and certain. Declaration about pedigree *The declaration about pedigree may be received in evidence if the relationship is shown by evidence other than the 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 also embraces facts of family history intimately connected with pedigree. Entries in the course of business. Elements: Entries were made at, or near the time of the transactions Such entries were made in the regular course of business The person making the entries was in a position to know the facts stated in the entries. The person making the entries did so in a position to know the facts stated in the entries The person making the entries did so in his professional capacity, or in the performance of duty and in the regular course of business The person making the entry is now dead or unable to testify. Declarations against Interest Ex. A statement by the debtor before he died that he owes the creditor a sum of money, or an oral acknowledgment by the principal that he received the money previously entrusted to his agent, are clear declarations against the interest of the person making it. Note that declaration against interest made by the deceased, or by one unable to testify, is admissible even against the declarants successors in interest or even against third person. Common reputation While common reputation in the community may establish a matter of public or general interest, marriage or moral character, it CANNOT establish pedigree. This is established by reputation in the family and not in the community.

a) b) c) d) e) f)

Commercial Lists and the Like Must be made by persons engaged in that occupation and are generally used and relied upon by them and those lists and reports are published. Learned Treaties. History books, published finding of scientists fall within this exception IF the subject testifies to the expertise of the writer of if the court takes judicial notice of such fact. Testimony or Deposition at a Former Proceeding. The testimony is one given in a former case or proceeding or administrative, involving the same parties and the same subject matter. The testimony was given by one who is now dead or unable to testify. Said testimony may be given in evidence against the adverse party provided the latter had the opportunity to cross-examine the witness who gave the previous testimony.

Waiver The rules of evidence may be waived. The rules are established for the protection of the parties. Except if the rule waived by the parties has been established by law on grounds of public policy. Matters need NOT be proved (ISA-JP) Immaterial allegations Facts admitted or not denied provided they have been sufficiently alleged (Rule 8) Agreed and Admitted facts Facts subject to Judicial Notice Facts legally Presumed Section 4. JUDICIAL ADMISSION is and admission, verbal or written, made by a party in the course of the proceedings. Elements The same must be made by a party to the case The admission must be made in the course of the proceedings in the same case, and There is no particular form for an admission, it may either be written or verbal. Judicial Admissions may be made in Pleadings filed by the parties, In the course of trial either verbal or written manifestations or stipulations In other stages of judicial proceedings as in the pre trial of the case Admissions obtained through depositions, written interrogatories or requests for admissions. Judicial admissions can be made by either a party or counsel.

1) 2) 3) 4) 5)

1) 2) 3) 1) 2) 3) 4)

Judicial admission may be contradicted only when it is shown that 1. It was made through palpable mistake or 2. That no such admission was

made.

Remedy of a party who gave a judicial admission: In case of written judicial admission motion to withdraw the pleadings, motion, or other written instrument containing such admission. Judicial admissions are always conclusive upon the admitter and do not require formal offer as evidence, unlike in the case of extra-judicial admissions. Rule on dismissed pleadings Admissions made in pleadings that have been dismissed are merely extrajudicial admission. Admissions in civil cases Admissions in criminal cases Admissions in a pleading which had been Admissions during arraignment may be withdrawn or superseded by and withdrawn at any time before the amended pleading are considered extra judgment of conviction becomes final, judicial admission but such plea of guilty later withdrawn is not admissible in evidence againt the accused who made the plea. It is not even considered an extra judicial admission

Disqualification by reason of Marriage Disqualification by reason of Marital (sec. 22) privilege (sec. 24 (a) Can be invoke only if one of the Can be claimed whether or not the spouses is a party to the action other spouse is a party to the action Applies only if the marriage is existing at the time the testimony is offered Constitutes a total prohibition for or against the spouse of the witness The objection would be raisedon the ground of marriage. The married witness would not be allowed to take the stand at all because of the disqualification. Even if the testimony is for or against the objecting spouse, the spouse-witness cannot testify. Can be claimed even after the marriage is dissolved Applies only to confidential communications between the spouses The married person is on the stand but the objection of privilege is raised when confidential marital communication is inquired into.

Disqualification by reason of marriage (spousal immunity) Take note of the ff. Judicial admissions vs. Extra-judicial admissions Competence vs Relevance Best Evidence Rule

Real Evidence definition (replica offered as evidence) Parol evidence would not be objected if the ambiguity was put in issue in the pleadings Laying the basis for the offer of a photocopy of a contract. Originals Expert testimony of a promissory note Credibility defined refers to worthiness of belief. Chain of custody When may an ordinary witness testify as to his opinion? When may parol evidence be allowed? How do you lay the basis for introduction of secondary evidence when a) original is lost b) ht original is in the custdy of the adverse party. How to impeach testimony of a witness, definition