Compiled 2014 Bar Questions & Suggested Answers in Remedial Law: Rules on Evidence
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2014; QUESTION # 3, (4%):
While passing by a dark uninhabited part of
their barangay, PO2 Asintado observed shadows and heard
screams from a distance. PO2 Asintado hid himself behind the
bushes and saw a man beating a woman whom he recognized
as his neighbor, Kulasa. When Kulasa was already in agony, the
man stabbed her and she fell on the ground. The man hurriedly
left thereafter.
PO2 Asintado immediately went to Kulasas rescue. Kulasa, who
was then in a state of hysteria, kept mentioning to PO2
Asintado Si Rene, gusto akong patayin! Sinaksak niya ako!
When PO2 Asintado was about to carry her, Kulasa refused and
said Kaya ko. Mababaw lang to. Habulin mo si Rene.
The following day, Rene learned of Kulasas death and, bothered
by his conscience, surrendered to the authorities with his
counsel. As his surrender was broadcasted all over
media, Rene opted to release his statement to the press which
goes:
I believe that I am entitled to the presumption of
innocence until my guilt is proven beyond reasonable
doubt. Although I admit that I performed acts that may
take ones life away, I hope and pray that justice will be
served the right way. God bless us all.
(Sgd.)
Rene
The trial court convicted Rene of homicide on the basis of PO2
Asintados testimony, Kulasas statements, and Renes statement
to the press. On appeal, Rene raises the following errors:
1. The trial court erred in giving weight to PO2
Asintados testimony, as the latter did not have any
personal knowledge of the facts in issue, and
violated Renes right to due process when it
considered Kulasas statements despite lack of opportunity
for her cross-examination.
2. The trial court erred in holding that Renes statement to
the press was a confession which, standing alone, would be
sufficient to warrant conviction.
Resolve.
ANSWER:
Renes appeal is denied for lack of merit.
1. The contention that the trial court erred in giving weight
to PO2 Asintados testimony since he did not have personal
knowledge of the facts in issue is without merit. The
contention in effect challenges Kulasas statement for being
hearsay.
Under the Rules of Evidence, a statement made
immediately subsequent to a startling occurrence is
excepted from the hearsay rule as part of the res gestae.
Here Kulasas statement was made immediately subsequent
to a starling occurrence, that is, her stabbing by Rene, and
was made in a state of hysteria, showing that she was
under the influence of the startling occurrence. Hence
testimony regarding the statement is excepted from the
hearsay rule.
Since Kulasas statement is an exception to the hearsay
rule, Rene cannot complain that his right to due process
was violated when the trial court considered Kulasas
statement despite lack of opportunity to cross-examine
her.
There should be no serious question about the
admissibility against an accused of hearsay where this
hearsay falls under an exception to the hearsay rule,
especially here where the declarant is dead and thus
unavailable to testify. (ANTONIO R. BAUTISTA, BASIC
EVIDENCE 214-215 [2004 ed.]). In U.S. v. Gil, 13 Phil. 530
(1909), the Supreme Court upheld dying declarations as an
exception to the confrontation clause since such
declarations have always been regarded as an exception to
the general rule regarding hearsay evidence.
2. The argument that the trial court erred in holding
that Renes statement to the press was a confession which,
standing alone, would be sufficient to warrant conviction is
meritorious.
Firstly, Renes statement is not a confession but an
admission. A confession is one wherein a person
acknowledges his guilt of a crime, which Rene did not do.
Secondly, even assuming it is a confession, standing alone
it would not be sufficient to warrant conviction since it is
an extrajudicial confession which is not sufficient ground
for conviction unless corroborated by evidence of corpus
delicti. (S3 R133).
Nonetheless this was a harmless error since the admission
of Rene was corroborated by the testimony of PO2 Asintado
on Kulasas statement.
2014; QUESTION # 6, (4%):
A search warrant was issued for the purpose of looking for
unlicensed firearms in the house of Ass-asin, a notorious gun
for hire. When the police served the warrant, they also sought
the assistance of barangay tanods who were assigned to look at
other portions of the premises around the house. In a nipa hut
thirty (30) meters away from the house of Ass-asin, a barangay
tanod came upon a kilo of marijuana that was wrapped in
newsprint. He took it and this was later used by the authorities
to charge Ass-asin with illegal possession of marijuana. Ass-
asin objected to the introduction of such evidence claiming that
it was illegally seized. Is the objection of Assasin valid?
ANSWER:
Yes, the objection of Ass-asin is valid. Under the Constitution,
the right of the people against unlawful search is inviolable
except in cases where a valid search warrant was issued or in
exceptional cases where the law provides for a warrantless
search. (Sec. 2, Art. III, Constitution). Under the fruit of the
poisonous tree doctrine, items seized by virtue of an unlawful
search are inadmissible in evidence. (Sec. 3[2], Art. III,
Constitution). Here the seizure of the marijuana was illegal
since it was not pursuant to a search warrant. The search
warrant was for the search and seizure of unlicensed firearms
not marijuana. Nor would the exception regarding items seized
under plain view apply. The marijuana was wrapped in
newsprint and clearly not in plain sight. Hence the marijuana
may not be introduced in evidence over Ass-asins objection.
2014; QUESTION # 13, (4%):
A foreign dog trained to sniff dangerous drugs from packages,
was hired by FDP Corporation, a door to door forwarder
company, to sniff packages in their depot at the international
airport. In one of the routinary inspections of packages waiting
to be sent to the United States of America (USA), the dog sat
beside one of the packages, a signal that the package contained
dangerous drugs. Thereafter, the guards opened the package
and found two (2) kilograms of cocaine. The owner of the
package was arrested and charges were filed against him.
During the trial, the prosecution, through the trainer who was
present during the incident and an expert in this kind of field,
testified that the dog was highly trained to sniff packages to
determine if the contents were dangerous drugs and the sniffing
technique of these highly trained dogs was accepted worldwide
and had been successful in dangerous drugs operations. The
prosecution moved to admit this evidence to justify the opening
of the package. The accused objected on the grounds that: (i)
the guards had no personal knowledge of the contents of the
package before it was opened; (ii) the testimony of the trainer of
the dog is hearsay; and (iii) the accused could not cross-
examine the dog. Decide.
ANSWER:
The accuseds objections are overruled.
The objection that the guards had no personal knowledge of the
contents of the package before it was opened is misplaced. The
one testifying is the trainer not the guards and he had personal
knowledge of the circumstances since he was present during
the incident. Besides there is no rule of evidence that one
cannot testify about the contents of a package if he did not have
prior personal knowledge of its contents before opening it.
 Compiled 2014 Bar Questions & Suggested Answers in Remedial Law: Rules on Evidence
The objection that the testimony of the trainer of the dog is
hearsay is not valid. Hearsay is an out-of-court declaration
made by a person which is offered for the truth of the matter
asserted.
Here what is involved is a dog who is not a person who can
make an out-of-court declaration. (Lempert & Saltzburg, A
MODERN APPROACH TO EVIDENCE 370-371 [1982]). A dog is
not treated as a declarant or witness who can be cross-
examined. (People v. Centolella, 305 N.Y.S.2d 279). Hence
testimony that the dog sat beside the package is not testimony
about an out-of-court declaration and thus not hearsay.
The objection that the accused could not cross-examine the dog
is without merit. Under the Constitution, the accuseds right of
confrontation refers to witnesses. As previously discussed, a
dog is not a witness who can be cross-examined.
NOTE: It is urged that utmost liberality be exercised in grading
this number. The answer is not found in Philippine law and
jurisprudence and even in commentaries by writers on
evidence.
2014; QUESTION # 19, (1%):
A vicarious admission is considered an exception to the hearsay
rule. It, however, does not cover:
A. admission by a conspirator
B. admission by a privy
C. judicial admission
D. adoptive admission
ANSWER:
C.
NOTE: a vicarious admission is an extrajudicial admission.
Hence C is not covered by the rule regarding vicarious
admissions.
2014; QUESTION # 26, (1%):
Parole evidence is an: (1%)
A. Agreement not included in the document.
B. Oral agreement not included in the document.
C. Agreement included in the document.
D. Oral agreement included in the document.
ANSWER:
A.
NOTE: It is suggested that either A or B be considered as
correct. Strictly speaking parol evidence does not have to be an
agreement; it is simply any evidence, whether written or oral,
which is not contained in a written agreement subject of a case
and which seeks to modify, alter, or explain the terms of the
written agreement.
XIV. Pedro was charged with theft for stealing Juan's cellphone
worth P10,000.00. Prosecutor Marilag at the pre-trial submitted
the judicial affidavit of Juan attaching the receipt for the
purchase of the cellphone to prove civil liability. She also
submitted the judicial affidavit of Mario, an eyewitness who
narrated therein how Pedro stole Juan's cellphone.
At the trial, Pedro's lawyer objected to the prosecution's use of
judicial affidavits of her witnesses considering the imposable
penalty on the offense with which his client was charged.
a.) Is Pedro's lawyer correct in objecting to the judicial affidavit
of Mario? (2%)
b.) Is Pedro's lawyer correct in objecting to the judicial affidavit
of Juan? (2%)
At the conclusion of the prosecution's presentation of evidence,
Prosecutor Marilag orally offered the receipt attached to Juan's
judicial affidavit, which the court admitted over the objection of
Pedro's lawyer. After Pedro's presentation of his evidence, the
court rendered judgment finding him guilty as charged and
holding him civilly liable for P20,000.00.
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Pedro's lawyer seasonably filed a motion for reconsideration of
the decision asserting that the court erred in awarding the civil
liability on the basis of Juan's judicial affidavit, a documentary
evidence which Prosecutor Marilag failed to orally offer.
c.) Is the motion for reconsideration meritorious? (2%)
ANSWERS:
a.) No, Pedros lawyer is not correct in objecting to the judicial
affidavit of Mario. The Judicial Affidavit Rule applies to
criminal actions where the maximum of the imposable
penalty does not exceed six years. the penalty for theft of
property not exceeding P12,000 does not exceed 6 years.
Hence the Judicial Affidavit Rule applies.
b.) No, Pedro's lawyer is not correct in objecting to the judicial
affidavit of Juan. The Judicial Affidavit Rule applies with
respect to the civil aspect of the criminal actions, whatever
the penalties involved are. Here the purpose of introducing
the judicial affidavit of Juan was to prove his civil liability.
c.) No, the motion for reconsideration is not meritorious.
judicial affidavit is not a documentary evidence but is
testimonial evidence. It is simply a witnesss testimony
reduced to writing in affidavit form. This is shown by
Section 6 of the Judicial Affidavit Rule which states that
the offer of testimony in judicial affidavit shall be made at
the start of the presentation of the witness.
Hence the motion for reconsideration on the ground that
Juans judicial affidavit was a documentary evidence which
was not orally offered is without merit.
2015; QUESTION # 16:
AA, a twelve-year-old girl, while walking alone met BB, a teenage
boy who befriended her. Later, BB brought AA to a nearby
shanty where he raped her. The Information for rape filed
against BB states:
"On or about October 30, 2015, in the City of S.P. and
within the jurisdiction of this Honorable Court, the
accused, a minor, fifteen (15) years old with lewd design
and by means of force, violence and intimidation, did then
and there, willfully, unlawfully and feloniously had sexual
intercourse with AA, a minor, twelve (12) years old against
the latter's will and consent."
At the trial, the prosecutor called to the witness stand AA as his
first witness and manifested that he be allowed to ask leading
questions in conducting his direct examination pursuant to the
Rule on the Examination of a Child Witness. BB's counsel
objected on the ground that the prosecutor has not conducted a
competency examination on the witness, a requirement before
the rule cited can be applied in the case.
a) Is BB's counsel correct? (3%)
In order to obviate the counsel's argument on the competency of
AA as prosecution witness, the judge motu proprio conducted
his voir dire examination on AA.
b) Was the action taken by the judge proper? (2%)
After the prosecution had rested its case, BB' s counsel filed
with leave a demurrer to evidence, seeking the dismissal of the
case on the ground that the prosecutor failed to present any
evidence on BB' s minority as alleged in the Information.
c) Should the court grant the demurrer? (3%)
ANSWERS:
a) No, BBs counsel is not correct. Under the Rules on
Examination of a Child Witness, there is no requirement
that a competency examination of the child witness be
conducted before leading questions may be asked of her. A
competency examination may be conducted by the court
(not the prosecutor) only if substantial doubt exists as to
the childs competency to testify. (Section 6, RECW). Here
there is no showing of any substantial doubt as to the
competency of AA to testify. Hence BBs counsel is not
correct.
 Compiled 2014 Bar Questions & Suggested Answers in Remedial Law: Rules on Evidence
b) No, the action taken by the judge was improper. The Rules
on Examination of a Child Witness, a competency
examination may be conducted by the court only if
substantial doubt exists as to the childs competency to
testify. (Section 6, RECW). Here the judges voir dire is in
effect a competency examination. However there is no
showing of any substantial doubt as to the competency of
AA to testify. Hence the judges action was improper.
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c) No the court may not grant the demurrer. Under the Rules
of Criminal Procedure, a demurrer to evidence may be
granted on the ground of insufficiency of evidence. Even
assuming that minority was not proved, BB may still be
convicted of rape since minority is not an element of rape.
2015; QUESTION # 16: