DAY NINE (20 subsections JEORGIA)

1. OPINON RULE
General Rule: The opinion of witness is not
admissible
Exceptions
(1) Expert witness [Rule 130, sec. 49]
(2) Ordinary witness [Rue 130, sec. 50]
a. Opinion of expert witness
SEC. 49, RULE 130]The opinion of a witness on a
matter requiring special knowledge, skill, experience
or training which he shown to possess, may be
received in evidence.

b. Opinion or ordinary witness

[SEC. 50, RULE 130]
(1) If proper basis is given, and
(2) Regarding:
(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; and
(d) Impressionsofthe (i) emotion, (ii) behavior,
(iii) condition, or
(iv) appearance of a person
2. CHARACTER EVIDENCE
General Rule [Sec. 51, Rule 130]: Character
evidence is not admissible.
Exceptions
(1) Criminal cases [Sec. 51(a), Rule 130]
(2) Civil case [Sec. 51 (b), Rule 130]
(3) In the case provided for in Rule 132, Sec. 14.
Character evidence (definition)
The aggregate of the moral qualities which belong
to and distinguish an individual person; the general
result of ones distinguishing attributes. [Herrera
citing Blacks Law Dictionary, pg. 834]
a. Criminal cases
(1) Accused May prove his good moral character,
which is pertinent to the moral trait involved in the
offense charged.
(2) Prosecution May not prove the bad moral
character of the accused, except in rebuttal.
(3) OffendedPartyHis/hergoodorbadmoral character
may be proved if it tends to establish in any
reasonable degree the probability or improbability of
the offense charged.

Good moral character of accused

The purpose of presenting evidence of good moral
character is to prove the improbability of his doing
the act charged. The accused may prove his good
moral character only if it is pertinent to the moral
trait involved in the offense charged. [Herrera, pg.
835]
Bad moral character of accused in rebuttal
Unless and until the accused gives evidence of his
good moral character the prosecution may not
introduce evidence of his bad character. [Herrera
citing People v. Rabanes (G.R. No. 93709 May 8,
1992)]
Good or bad moral character of offended party This
is usually offered in rape cases and where the
accused invokes the defense of self
In rape cases, the character of a woman may be
relevant and admissible on the question of the
presence or absence of her consent. While in
homicide and assault cases, it may be used as
evidence of the victims character for turbulence
and violence warranting the response of the
accused. [Herrera pg. 837 and 839]
b.

Civil cases

Moral character is admissible only when pertinent to

the issue of character involved in the case. [Sec.
51(b), Rule 130]
Evidence of the witness good character is not
admissible until such character has been
impeached. [Sec. 14, Rule 130]
3.

RULE ON EXAMINATION OR A CHILD

WITNESS (AM 004-07-SC)
a.

Applicability of rule

Shall apply in all criminal proceedings and noncriminal proceedings involving child witnesses. [Sec.
1]
The ROC provisions on deposition, conditional
examination of witnesses and evidence shall be
applied suppletorily. [Sec. 32]
b.

Meaning of Child witness

(1) Any person who at the time of giving

testimony is less than 18 years;
(2) In child abuse cases a child includes one
over 18 years,
(a) But is found by the court as:
(i) Unable to fully take care of himself, or

(ii) Protect himself from abuse, neglect, cruelty,

exploitation, or discrimination
(b) Because of a physical or mental disability or
condition.
c. Competency of child witness
Presumption of competence
Every child is presumed qualified to be a witness. To
rebut the presumption of competence enjoyed by a
child, the burden of proof lies on the party
challenging his competence. [Sec. 6(b)]
Requisites of competency of a child as witness
[People v.
Mendoza (G.R. No. 113791. February 22, 1996)]
(1) Capacity of observation;
(2) Capacity of recollection; and
(3) Capacity of communication.
d.

Examination of a child witness

(1) In open court [Sec. 11]

(2) Alternative Modes
(a) Live-Link TV Testimony, in Criminal Cases where
Child is a Victim or a Witness [Sec. 25]
(i) If there is a substantial likelihood that the child
would suffer trauma from testifying in the presence
of the accused, his counsel or the prosecutor.
(ii) Trauma must be of a kind which would impair the
completeness or truthfulness of the childs
testimony.
(b) Videotaped Deposition of a Child Witness [Sec.
27]
(i) If the court finds that the child will not be able to
testify in open court at trial, it shall issue an order
that the deposition of the child be taken and
preserved by videotape.
(ii) The rights of the accused during trial, especially
the right to counsel and to confront and crossexamine the child, shall not be violated during the
deposition.
e.

Live-link TV testimony of a child

witness

Live-link television testimony, in criminal cases

where the child is a victim or a witness
The court may order that the testimony of the child
be taken by live-link television if there is a
substantial likelihood that the child would suffer
trauma from testifying in the presence of the
accused, his counsel or the prosecutor.
The trauma must be of a kind which would impair
the completeness/truthfulness of the childs
testimony.

If it is necessary for the child to identify the accused

at trial, the court may allow the child to enter the
courtroom for the limited purpose of identifying the
accused, or the court may allow the child to identify
the accused by observing the image of the latter on
a television monitor.

f.

Videotaped deposition of a child

witness

If the court finds that the child will not be able to

testify in open court at trial, it shall issue an order
that the deposition of the child be taken and
preserved by videotape.
The rights of the accused during trial, especially the
right to counsel and to confront and cross- examine
the child, shall not be violated during the deposition.

g.

Hearsay exception in child abuse

cases

[SEC. 28]
Proponent of hearsay statement shall make known
to the adverse party the intention to offer such
statement and its particulars.
If the child is available, court shall require the child
to be present at the presentation of the hearsay
statement for cross-examination by the adverse
party.
If unavailable, the fact of unavailability must be
proved by the proponent and his hearsay testimony
must be corroborated by other admissible evidence.
h. Sexual abuse shield rule
General Rule [Sec. 30(a)]: The following are
inadmissible in any criminal proceeding involving
alleged child sexual abuse:
(1) Evidence offered to prove that the alleged victim
engaged in other sexual behavior;
(2) Evidence offered to prove the sexual
predisposition of the alleged victim.
Exception [Sec. 30(b)]: 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.
i.
Protective orders
Video/audio tapes that are part of the court record
may be viewed only by parties, their counsel, their

expert witness and the guardian ad litem. [Sec.

31(b)]

Publication (or causing it) in any format any

identifying information of a child who is or is alleged
to be a victim/accused of a crime or a witness
thereof, or an immediate family of the
4. OFFER AND OBJECTION
a. Offer of evidence

that would cause harm to clients cause (rules of

evidence are not self- operating)
(2) To protect the record (for future appeal)
(3) To protect witness from being
embarrassed or harassed
(4) To expose adversarys unfair tactics
(5) To give 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 courts appellate
jurisdiction; and
(6) To avoid a waiver of inadmissibility

Rule: Court shall consider no evidence which has not

been formally offered. (Rule 132, Sec. 34)
Purpose: The purpose for which the evidence is
offered must be specified.

Objections must be specific enough to adequately

inform the court the rule of evidence or of
substantive law that authorizes the exclusion of
evidence [Riano]

The court may issue additional orders to protect the

childs privacy. [Sec. 31(c)]

b.

When to make an offer

Testimonial- At the time the witness is called to

testify
Documentary and Object- After the presentation of a
partys testimonial evidence
c. Objection

What to
object to

When to
object

Testimonial evidence

Immediately after offer

is made
As soon as the grounds
become reasonably
apparent
Within 3 days after
notice of the offer,
unless a different period
is allowed by the court

Question propounded in
the course of oral
examination
Offer done in writing

The grounds for

objection must be
specified in any case.
Excluding inadmissible evidence
(1) One has to object to the evidence;
(2) The objection must be timely made; and
(3) The grounds for the objection must be
specified. [Herrera, pg. 321]
Purposes of objection [Riano]
(1) Made to keep out inadmissible evidence

General Objections do not clearly indicate to the

judge the ground upon which the objections are
predicated. In cases where the incompetency of the
evidence is so palpable that a mere general
objection is deemed sufficient and where the portion
of the evidence objected to is clearly pointed out,
and its illegality is apparent on its face, then the
objection must be allowed. [Riano]
Formal v. Substantive Objections [Riano]
Formal one directed against the alleged defect in
the formulation of the question
Substantive objections made and directed against
the very nature of the evidence
d. Repetition of an objection
A court may, motu proprio, treat the objection as a
continuing one. [Keller v. Ellerman & Bucknall
Steamship (G.R. No. L-12308 August 28, 1918)]
An objection must be seasonably made at the time
it is formally offered. Objection prior to the formal
offer is premature and could not be considered by
the Court as basis for a continuing one. [Interpacific
Transit v. Aviles (supra)]
e.

Ruling

The ruling should be given immediately after the

objection is made, unless the court desires to take a
reasonable time to inform itself on the question
presented.
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/s relied upon.

Reservation of a ruling by the court on an objection

to the admissibility of evidence, without
subsequently excluding the same, amounts to a
denial of an objection. [People v. Tavera (G.R. No. L23172 March 17, 1925)]
f.

Striking out of an answer

[SEC. 39, RULE 132]

Motion to strike
(1) Court may sustain an objection and order
the answer given to be stricken off the record if:
(a) witness answers the question before the adverse
party had the opportunity to object, and
(b) such objection is found to be meritorious.
(2) The court may also, upon motion, order the
striking out of answers, which are
(a) incompetent,
(b) irrelevantor
(c) otherwise improper.

Other cases when motion to strike is proper

(1) When the answer of the witness is
unresponsive;
(2) When the witness becomes unavailable
for cross-examination through no fault
of the cross-examining party;
(3) When the testimony is allowed
conditionally and the condition for its
admissibility was not fulfilled; [Riano]
(4) Where evidence has been properly received, and
its effect has been
destroyed by other evidence, or its admissibility has
afterward become apparent; [Herrera, pg. 340]
A motion to strike out goes to admissibility and not
to weight; evidence should not be stricken out
because of its little probative value. [Herrera, pg.
340]

g.

Tender of excluded evidence

HOW TO TENDER EVIDENCE

Documentary- Offeror may have the same attached
or made part of the record
Testimonial- Offeror may state for the record the
name and other personal circumstances of the
witness and the substance of the proposed
testimony
Two Methods of making the Tender: [Riano]
(1) Where the counsel tells the court what
the proposed testimony would be;
(2) By using the question and answer form