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1

MEMORANDUM

TO: Atty. John Doe, Senior Associate, ABAKADA Law Firm

FROM: Ruby Rose Faith G. Moreno, Legal Aid

RE: Application of Philippine Laws and Jurisprudence

concerning Civil Procedure

Kaye vs. Towler

DATE: November 25, 2017

ISSUES

1. Whether the testimony of the surprise witness presented by the

prosecution be admissible in court.

2. Whether the photocopy of an admitting form presented by the

prosecution be admissible as evidence in court provided that there

is a conflict with the substantial information in an original copy of the

same admitting form in possession of the defense.

BRIEF ANSWER
1.
No, the testimony of the surprise witness is inadmissible as

evidence in court. Under the Rules of Court, a mandatory pre-trial

requires the presentation of the limitations of the number of

witnesses.1 Moreover, where the pre-trial brief does not consist of

the names of witnesses and the summaries of their testimonies as

required by the Rules of Court, the trial court, through its pre-trial

order, may bar the witnesses from testifying.2



1
Rule 18, Section 2(e).
2
Tiu v. Middleton, G.R. No. 134998. July 19, 1999.
2

2. No, the photocopy of the admitting form is inadmissible as evidence.

Under the Rules of Court, when the subject of inquiry is the contents

of a documents, no evidence shall be admissible other than the

original document itself.3

FACTS

Dr. Towler is being prosecuted for medical malpractice leading

to the permanent brain damage of Deborah Ann Kaye. The defense

avers that there was no negligence on the part of Dr. Towler. Dr. Towler

contend that he proceeded with injection of anesthesia for Kaye’s

admission form provided that her last meal was nine hours prior to the

surgery. Such form was presented as evidence in the court.

Prosecution lawyer Frank Galvin on the other hand, found the

admitting nurse of Kaye, Kaitlin Costello. Costello was made to testify

as a surprise witness.

During trial, Costello testified that Kaye’s last meal was an hour

before the surgery and this was in fact written in the admitting form.

She avers that Dr. Towler ignored the form and hence, proceeded with

the surgery. Subsequently, when Dr. Towler realized his mistake, he

approached Costello and threatened her that she’ll lose her job if she

does not change the information regarding the hour of Kaye’s last meal

prior to the surgery. However, Costello said that before the admission

form was tampered, she made a photocopy of the original form.


3
Rule 130, Section 3.
3

DISCUSSION

Testimony of the surprise witness

The Rules of Court mandates pre-trial, considering, among

others, the limitation of the number of the witnesses.4 Where the pre-

trial brief does not consist of the names of witnesses and the

summaries of their testimonies, the witnesses may be barred from

testifying.5 Furthermore, presenting witnesses other than those a party

has specified in the pre-trial brief is barred as allowing such would

defeat the very purpose of the pre-trial brief which is the simplification,

abbreviation and expedition of trial.

Hence, in the instant case, the testimony of Costello as a surprise

witness for the prosecution is inadmissible as evidence.

Photocopy of an evidence substantially in conflict with the

original copy thereof

To assure accuracy in litigation and to prevent hearsay

information, the Philippines court has adopted the “Best Evidence

Rule”. It is a rule of preference that excludes secondary evidence once

the original is available. It applies only when the subject of inquiry is

the contents of the document. This imply that the cause of action or

defense is based on what are contained in the document. In the instant

case, Dr. Towler is seeking non-liability by virtue of the contents of the

admitting form. The prosecution on the other hand summoned the

photocopy of the same document to hold Dr. Towler liable. Since the

subject of inquiry is the substance of the document, the Best Evidence



4
Id., p. 1.
5
Id., p. 1.
4

Rule shall apply. With the incongruity of the contents of the

photocopied admitting form and the original copy, the original copy of

the admitting form shall prevail. Hence, the photocopy of the admitting

form presented by the prosecution is inadmissible as evidence.

Furthermore, the Best Evidence Rule is not without exceptions.

However, the only exceptions to the Best Evidence Rule are: (a) when

the original has been lost or destroyed, or cannot be produced in court,

without bad faith on the part of the offeror; (b) 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; (c) 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; and (d) when the original is a public record in the

custody of a public officer or is recorded in a public office.6 Since the

instant case does not present any of the abovementioned exceptions,

the Best Evidence Rule still applies.

CONCLUSION

From the instant case, the following are deduced. First, that a

testimony from a surprise witness is inadmissible as evidence as the

Rules of Court requires a pre-trial wherein the list of the witnesses is

presented. Lastly, only an original copy of a document is admissible as

evidence where substantial information is the subject of inquiry.


6
Id., p. 2.

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