Atty. Lu.

Remedial Law Review 2 - 4/26/19

Criminal Procedure

1. Section 5, Rule 120; offense necessarily included

2. When is the presence of the accused required: a. arraignment; b. promulgation of judgment

3. Sec. 6, Rule 121; effect of failure to appear w/o just cause

4. Motion for new trial or reconsideration in criminal case: 15 days

5. Difference of new trial to reconsideration in criminal cases

6. Probation; person who did not apply for probation in the trial court loses it if upon appeal his appeal
was denied; he can no more apply for probation;

7. in CA decision must be unanimous (3 justices vote is required); then special division of 5 which is
majority (3 votes) is required

8. Decision CA cannot be appealed, must be 65

9. Time of making search. GR and XPN

10. Application of a search warrant

11. Search can be made also in the immediate vicinity

12. life span of search warrant; 10 days; alias search warrant another 10 days

Evidence

1. Meaning of relevant

2. Meaning of competent

3. Pactum probandum

4. Pactum probans

5. Stonehill v. Diokno

6. Remedy from the fruit of the poisonous tree – Motion to suppress, motion to strike out; motion to
remove evidence that was acquired illegally

7. What need not to be proved; rule 129 section 1 to 4, memorize

8. What is a judicial admission; how made; where found or source or drawn

9. Counsel can make judicial admission in behalf of the counsel; No. Because he has no personal
knowledge of such.

10. Judicial admission, how contradicted. Only by showing that it was made through palpable mistake or
that no such admission was made

11. Object evidence or real evidence are those addressed to the senses of the court. Relevant to the fact
in issue, it may be exhibited to, examined or viewed by the court

12. Chain of custody authentication in evidence – from the point of seizure until the point of presentation,
the trail evidence must form an unbroken chain; if it was broken, it presents a reasonable doubt; thus
accused may be acquitted

13. As to tape recordings or electronic recordings; how was the recording preserved? Or how was it
obtained? Kailangan I prove na it remained in its original state; how it was transferred from one storage
to another

14. Best evidence rule, under documentary evidence. GR: Original must be produced; Exceptions

15. When not applicable – when only asking about the existence of such document, but when the contents
of such document is asked, best evidence shall apply

16. What is secondary evidence? Photocopy; etc. ; can be resorted to only if the original has already been
proved and such original is lost and cannot be found despite due diligence

17. What is Parole evidence? The introduction of testimony other than what is included in the document
itself; also called as evidence allude (evidences which are not part of the documents in question)

18. When can parole evidence be admitted? Intrinsic validity. To modify, explain or add to the terms

19. Functional equivalency rule – as long as you can trace such source, every reproduction can be used as
functional equivalent of the original

4/30/19

Midterms – Crim pro and Spec Pro – May 14

Finals – Evidence – May 21

1. Testimonial; qualifications and disqualifications; who they are; absolutely disqualified and those that
are qualified

Absolute Disqualification

a. Minority rules; child witness rule

b. Insanity rules; lucid interval
c. Reason of marriage; a case filed by one spouse against the other; neither spouses may testify for or
against the other as the relation are already severed

By reason of privilege or Privilege communication

2. Disqualification by reason of marriage (can be invoked only if still married; Absolute disqualification) v.
Marital Privilege (can be invoked even beyond marriage; but is disqualified to testify those that happened
within the marriage)

3. Attorney client privilege; extends to the employees of the lawyer; not necessary that there is a contract
of legal service, can be invoked even if the information was attended into kahit interview lang kahit di nag
tuloy sa legal services; there must be consent from the client and the lawyer to be valid as evidence

4. Physician; physician cannot testify if it TENDS to blackened the reputation; kahit tends pa lang
disqualified na agad to be used as evidence

5. Physical and mental examination; An examination of the doctor ordered by the court to a person; doctor
client relationship cannot still be violated; as it is still considered confidential; the doctor cannot be forced
to testify

6. As to lawyer client privilege; if the person states anything beyond what has been the reason of
engagement such information can be divulged or testified into as it is beyond or outside the reason of
such engagement. i.e. an annulment but told that he will kill someone.

7. As to priest and penitent; must be of the same faith to cover under the disqualification by reason of
privilege communication; not applicable if parang nag kkwentuhan lang and is outside the coverage of
such priests duty in the sect

8. As to public officer; it is vested with the office not with the public officer; thus, he cannot be examined
during his term or afterwards; as it would undermine public interest with such disclosure

TESTIMONIAL PRIVILEGE

9. Filial privilege; ascendants and descendants; not collateral

10. Res inter alios acta – it is when a person cannot be bound by the testimony of others; except a) when
the third person is a partner, agent, has a joint interest with such person testifying b) a co-conspirator c)
a privy (i.e. witness of a contract, meaning these persons has knowledge)

11. Hearsay rule – you cannot give information that is not of your own personal knowledge

12. What is an independently relevant statement – Estrada v. Disierto; that the fact of saying or the
utterance _________ but not necessarily as to the truth of the statement itself; you can testifying as to
the fact that such person said that but not as to the truth of what such person said.

13. Dying declarations – a) consciousness of impending death; b) person dead; c) made utterances about
circumstances surrounding his death; may only be used if the subject inquiry is the death itself; If such
person lived will be converted to res gestae.
14. Deadman statute; a person cannot testify as to matters who was told by a person who was already
dead; razon v. intermediate appellate court; cannot be invoked if the estate is the one collecting; for the
deadman statute to apply, a person (living) must be the one collecting against the estate

15. Declaration against interest v. admissions; admissions must be corroborated, can be used even if such
person is alive; declaration against interest can stand on its own, can only be used if such person died or
cannot testify because of insanity;

16. Res gestae – these are utterances made by a person during extreme emotions or starling occurrences;
such utterance made therein can be part of the evidence and is admissible as evidence; person need to
not die; must be spontaneous utterance; used as an exception to the hearsay rule as such person cannot
be said to weed out lies during such instance

17. entries in the course of business – made in his professional capacity; made in the ordinary course of
business; must be in a position to know such entries; even if such person who entered such information
dies, such entries can be still admissible as evidence because such person has made such entries in the
ordinary course of business and presumed valid

18. entries on the official records – made in the performance of his official duty; public officer of the
Philippines; a person in the performance of his duty; such entries are admissible as prima facie evidence

19. testimony or deposition at a former proceeding – judicial or admin; involving same parties and subject
matter; given in a former case or proceeding

20. opinion rule – generally, cannot be admit as evidence because such person has no personal
knowledge; exceptions: 1. Expert testimony (must have special knowledge, skill, or training, can be based
on experience alone not necessarily formal education degree) 2. A person who has adequate knowledge
of such testimony to be given (kilala nya yung tao) 3. _________

21. DNA evidence; Agustin v. CA; it is not contrary or violate of right to be compelled a witness against
himself; provided that such acquisition is voluntary or be compelled by the court because it does not
require intelligent act (it’s like just getting a finger print to a person); provided further that there must be
a scientific methodology explaining the same

22. What is the difference between direct (example, eye witness) and circumstantial evidence (does not
proved the existence of the fact, but merely makes an inference, can be used to convict a person if such
circumstantial evidences present forms an unbroken chain leading to the conviction of a person)

23. Judicial affidavit rule; what does it contain; name age and personal circumstances of the witness; as
well as the lawyer who is taking down the Q&A; each Q&A must be numbered; pages numbered;
statement that the lawyer personally made the Q&A and there is an undertaking by the person testifying
is under the pain of perjury or false testimony; can leading questions be allowed? No, only direct; There
must be a sworn attestation by the lawyer that he did not coached the witness.
24. When is the jud aff be submitted? At least 5 days before pre-trial

25. What is the effect of violation of the jud aff rule? You may be allowed to make correction once but is
subject to a fine of 1k to 5k.
26. Offer and objection – when are testimonial evidences offered? Before witness begins his testimony;
because that is the time you may invoke relevance, prohibitions or other objections as to such testimony.

27. When it comes to documents or other evidences, it is done after the last testimony is made or last
witness is presented; this is different for marking of evidence done in pre-trial as it only marks such
evidence for the convenience of the court and the parties.

28. Refreshing recollection – evidences may be presented to the witness testifying, but the witness cannot
read the whole document, this is only to give the witness an opportunity to refresh his memory with his
testimony

29. Cross examination – what was given is the opportunity to cross exam; only a mere privilege

30. news man’s privilege – is a reporter or a news man cannot be compelled to disclose his source if such
source is not bound to be disclosed.

31. Leading – as to direct

Already answered
No basis – if you do not lay the predicate
Vague – unintelligible question
Kilometric – haba ng Qestions
Compound – asks so many question in one question and such questions are not related
Privileged
Incompetent
Badgering the witness
Irrelevant or immaterial
Asked to form a conclusion
Being asked of an opinion except not under the exception in the opinion rule
Not covered by the direct examination – it cannot be covered by the direct exam
Misleading
Hypothetical – example: if you think this or if you think that
Argumentative – simply want to engage in an argument with the witness, does not examine the witness
Move to strike – example: unresponsive answers to questions, thus must be stricken out of the records
Speculative
Best evidence rule