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FACTUM PROBANDUM

CIVIL CASES
Ascertained upon the filing of an
Answer by the defendant,
when the answer does not tender an
issue; or when the answer is a general
denial, therefore amounting to an
admission
COMPETENT COURT
Court that has jurisdiction over the
subject matter, over the person of the
litigants.

DIRECT EXAMINATION
Examination-in-chief of a
witness by the party
presenting him on the
FACTS RELEVENT to the
ISSUE

CRIMINAL
Ascertained when the accused enters
a plea of NOT guilty, even if it is
merely a general denial (allowed in
criminal cases)

SPECIAL PROCEEDINGS
There is always probandum even if
there is no contest or dispute. Bec the
petitioner is still required by law to
prove his petition/claim

COMPETENT EVIDENCE
Evidence that is not excluded by the
Rules

COMPETENT WITNESS
A qualified witness.
* A competent witness may give
incompetent evidence; in the same
way, an incompetent witness who is
allowed to testify may give competent
evidence.

CROSS EXAMINATION
Done by the adverse party
as to
1. Any matters stated
in the direct
2. Connected therewith

LEADING QUESTION
Suggests to the witness the answer which the examining
party desires.
GR: Not allowed.
:
1. on Cross
2. on Preliminary matters
3. when there is Difficulty in getting direct & intelligible
answers from a witness who is
a. ignorant
b. a child of tender years
c. feeble-minded
d. a deaf-mute
4. of an Unwilling or Hostile witness
5. of a witnss who is an Adverse party, or an officer
director or managing agent of a public/private
corp/partnership/assoc, which is an adverse party.
RULES OF EXCLUSION
OBJECT EVIDENCE
None
But the court is given discretion to
determine when an object evidence
would result to a scandal or would not
benefit a party but give undue
prejudice to the other, so that it may
not allow its presentation eventhough
relevant (ex. Amputated arm)
Court may resort to Autoptic
Proference (ocular inspection) of

RE-DIRECT
By the party calling him, to
explain or supplement his
answers during cross.
Questions on matters NOT
dealt w/ during cross may
be allowed by the court in
its discretion.

RE-CROSS
By the adverse party, on
1. Matters stated in his redirect
2. Such other matters as
may be allowed by the
court in its discretion

MISLEADING QUESTION
Assumes as true
a. a fact not yet testified to by the witness, or
b. contrary to that which he has previously stated
Not allowed

DOCUMENTARY EVIDENCE
1. Best Evidence Rule (excludes
substitutionary/secondary
evidence)
2. Parol Evidence Rule (excludes
evidence alliunde, whether
testimonial or documentary)

1) Intrinsic ambiguity
2) Imperfection/mistake
3) Does not express true
intention
4) Subsequent agreement

TESTIMONIAL EVIDENCE
1. Hearsay Rule
2. Opinion Rule
3. Character Evidence

object evidence which could not be


brought to court.
EXAMINATION OF AN ORDINARY WITNESS
Presumed qualified to be a witness
When qualification is being assailed in a preliminary
examination, parties may ask the witness propounding
questions directly
GR: Leading questions are not allowed on direct and redirect
Testimony in a narrative form is NOT allowed

EXAMINATION OF A CHILD WITNESS


Same
It is only the judge who may ask questions during the
preliminary examination. Parties who wish to ask the child
witness questions in determining his qualification, they
must write their questions on a piece of paper and give it to
the judge.
Leading questions may be asked.
May be assisted by a facilitator, giving him comfort and
advice during the trial/proceeding
Testimony in narrative form is allowed

NON-ELECTRONIC EVIDENCE
The authentication is expressed in Rule 132: testimonial
evidence to show that the non-electronic evidence has
been signed by the parties, and the authenticity of the
signature could be proven by the testimony of an eye
witness or by a person who is familiar w/ the signature by
comparison or by expert testimony.

ELECTRONIC EVIDENCE
Governed by the E-Commerce Law. Authentication is done
also by testimonial evidence, but in the form of an
AFFIDAVIT by a person who can testify as to the integrity
of the electronic signature contained in the electronic
document during a summary hearing.

SELF-SERVING STATEMENTS
Admission in declarants interest
Not admissible when made extrajudicially or out of court.
may be allowed when made in the trial/pleadings, as the
adverse party has opportunity to rebut/contradict or crossexamine declarant

DISSERVING STATEMENTS
Admission against declarants interest
admissible

RES INTER ALIOS ACTA ALTERE NOCERE NON DEBET:


GR: The act/omission of one cannot prejudice the rights of another.
1. The rights, interests of a person cannot be prejudiced by 2.
the acts of another
vicarious admissions
1) Admissions of a partner, agent, joint-owner or
solidary co-debtor
2) Admissions of a co-conspirator
3) Admissions of a privy
Common requisite: the partnership/agency/jointownership/privity of interests (by testimonial
evidence), conspiracy (by circumstantial evidence)
must be priven by independent evidence

The evidence that a person has committed an act at


one time or failed to perfom an act at one time is not
admissible to show that he has committed or not
commited a particular act at another time.
to prove identity, scheme, custom or pattern

EXCEPTIONS to RES INTER ALIOS ACTA RULE:


1. Vicarious Admissions
2. Interlocking Confessions
3. Adopted Confessions
DECLARATION AGAINST INTEREST as an ADMISSION
It is a disserving statement. It is not hearsay.
The testimony could be given, iven if the declarant is
dead/alive/unable to testify. The law is not concerned
whether he is dead or alive.

DECLARATION AGAINST INTERTEST as an EXCEPTION


to the HEARSAY RULE
The testimony is hearsay.
The declarant must either be dead or unable to testify.

DYING DECLARATION
Hearsay evidence; admissible as an exception to the
hearsay rule
The declaration made by a person under consciousness of
an impending death, concerning the cause & surrounding
circumstances of his own death.
Must be made after the injury has been inflicted upon the
declarant.
Declarant must die
Declaration must have been made by the declarant himself
before he died.
ENTRIES IN THE COURSE OF BUSINESS
Refers to private transactions
The one who prepared the entries is either dead or unable
to testify
The document constitutes prima facie evidence as the the
facts stated therein
JUS IMMUNITY
Witness will still be indicted for the commission of the
offense, but the statements given by him cannot be used
against him. So, it is a limited form of immunity. He is not
immunized from prosecution, but the statements given by
him will not be admissible in that criminal proceeding.
CROSS-EXAMINATION
ENGLISH RULE (General Rule)
The cross-examination could cover matters which are not
taken up in the direct examination as long as these matters
are related/connected to the subject of the direct
examination, or relevant to the issue.
CALLING OF A WITNESS
CRIMINAL CASE
The prosecution cannot compel the accused to be a
witness. And even if the accused does not testify in his
favor, there could be no inference taken by the court on his
refusal to testify.

RES GESTAE
Same
Res Gestae pertaining to
Res Gestae pertaining to
a STARTLING
an EQUIVOCAL ACT
OCCURRENCE
(Principle of Verbal Act)
The declaration could be
(the act is capable of more
made before to or during
than 1 interpretation)
or after the startling
occurence
No such requirement.
Declaration could be made by anybody; a participant, the
doer of the act, the victim, or a 3rd person who witnessed the
startling occurrence.
ENTRIES IN OFFICIAL RECORDS
Pertain to government transactions
Official need not be dead or unable to testify
Same
TRANSACTIONAL IMMUNITY
It is the immunity embodied in the Witness Protection
Program Law. There is absolute immunity given to the
witness, in exchange for his admissions/confessions or
statement.

AMERICAN RULE (Exception)


a. When in a criminal case, the accused testifies in his
own behalf, he can be cross-examined only on matters
covered by his direct-examination. (not on those which
are only related to the subject of his testimony)
b. Hostile witness or Adverse party witness
CIVIL CASE
There is not such prohibition. The plaintiff can compel the
defendant to testify in court, in the same way that the
defendant can compel the plaintiff to be a witness in court.
The only limitation is that before the plaintiff could compel
the defendant to be a witness, the plaintiff must prove that
he has submitted written interrogatories to the defedant
(Rule 25)

LAYING THE PREDICATE


A mode of impeaching a witness through prior inconsistent
statements

WHEN WITNESS MAY REFER TO MEMORANDUM

LAYING THE BASIS/FOUNDATION


An evidence which is otherwise incompetent will be
introduced in evidence because it falls under the exceptions
to that rule on exclusion

REVIVAL OF PRESENT MEMORY


Memory loss is partial
Memorandum is not considered as evidence
Still testimonial evidence

REVIVAL OF PAST RECOLLECTION


Memory loss is total
Memorandum is considered documentary evidence
Testimonial + documentary evidence

OFFER OF PROOF
Pertains to a situation where the court has refused to admit
evidence offered by a party

OFFER OF EVIDENCE
A process by which the proponent tells the court the
evidence that he is going to submit in support of his stand,
as well as the particular purpose for which the evidence is
being offered.
When the evidence is testimonial, the offer si made before
the examination of the witness concerned.
When the evidence is documentary or object evidence, it is
made after the completion of the givving of testimonial
evidence.