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1 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L.

Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

A. 1.

VI. Evidence General Principles Concept of Evidence No need for trial if no disputed facts, no need of evidence if no trial. Mode and manner of proving competent facts in judicial proceedings. What is evidence? Rule 128 sec 1. Evidence is the means sanctioned by these rules of ascertaining in a proceeding the truth respecting a matter of fact. There are instances when it has no role in the action.

Like in pleadings only ultimate facts are necessary Remember Rule 8 CivPro (manner of making allegation) What is required is only ultimate facts excluding evidentiary matters Because this will give the court immediately the issues to be resolved Parties and the court will not know what evidence the parties will present

NOTE: In pre trial, there is already an advance disclosure of evidence. Modes of Discovery: Stipulation of facts and admission of parties are mandatory. In pre trial there is already marking of evidence. Dont forget preclusion rule where you cannot present at trial if you dont present in pre-trial. EVIDENCE only plays a role when there is a factual dispute. The presentation is always at the trial court level. Not in issues of law, courts are presumed to know the law Remember petition for review which raises purely question of law because SC is not a trier of facts. The presentation of evidence is always at the TC level. Appellate court will simply review them, ordinary appeal or petition for review

Note: definition of evidence says: in a judicial proceeding. What are the rules on evidence all about? Purpose is to prove certain facts, not all facts should readily be admissible. Not all facts can be considered by the court because there are technical evidence Other jurisdiction: Relevancy + materiality should be considered Philippines: relevance + material = relevancy but you also need competency

Note: things that need not be proven because judges are presumed to know judicial notice In some cases you can go to summary judgment b/c no more triable issues Also judgment on the pleadings, evidence is no longer necessary by reason of admission (Rule 134 judicial admission) fact no longer in dispute

Republic v. Vda de Neri, 424 SCRA 276 (2004), enumerates: When evidence no longer necessary/may be dispensed with Allegations contained in the complaint or answer immaterial to the issues. Facts which are admitted or which are not denied in the answer, provided they have been sufficiently alleged.

2 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

Those which are the subject of an agreed statement of facts between the parties; as well as those admitted by the party in the course of the proceedings in the same case. Facts which are the subject of judicial notice. Facts which are legally presumed. Facts peculiarly within the knowledge of the opposite party. (Ratio: You have no means of knowing since there is no disclosure.)

What is a factual issue? When it refers to credibility, truth or falsity of a particular fact. What is a question of law? Determination of what law will apply given a set of circumstances. 2. Scope of the Rules of Evidence Covers four aspects. What should be presented, Who should present, Why should it be presented, Where should it be presented, How should it be presented. Rule 128, 1 states in a judicial proceeding. This is because the rules of evidence only apply to court proceedings. HOWEVER, there is a deifinition of substantial evidence in the rules of evidence. Rule on evidence not applicable in quasi-judicial bodies, only in a suppletory character. See Rule 133: substantial evidence for quasi-judicial/administrative bodies. 3. Evidence in Civil Cases Versus Evidence in Criminal Cases Is there a difference in rules of evidence in criminal and civil cases? Generally, no distinction. Unless there are special rules that govern one type of proceeding only. Like what? No counterclaims in criminal cases Proof Versus Evidence Proof. Result or effect of evidence. When the requisite quantum of evidence of a particular fact has been duly admitted and given weight, the result is called proof of such fact. Evidence. The medium or means by which a fact is proved or disproved. Factum Probans Versus Factum Probandum Factum Probandum. The fact to be proved. Ultimate fact sought to be established; refers to the proposition. Hypothetical. Factum Probans. Evidentiary facts to prove the proposition. Intermediate facts. Material evidencing the proposition. Exiatent e.g. A shot B resulting to death of B. is the fact of shooting somebody while seated in a certain position, can you prove there was a criminal offense?

4.

5.

o
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In a given situation you have a set of facts. Will those facts prove a substantive law provision? (e.g. homicide or murder)

X: I saw A shoot B while seated and not in a position to defend himself o o o o Will this statement prove the second statement? Does this fact prove homicide or murder? w/n such statement will result in criminal liability for homicide or murder judge focus on factual issues b/c he knows the law

In a breach of contract:

3 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

o o

Factum probandum: first establish there is a contract and that defendant violated the contract These will be interpreted to determine w/n there was breach, w/c will determine w/n entitled to damages

6.

Admissibility of Evidence a. Requisites for admissibility of evidence Relevant and Competent. - When relevant to the facts in issue and not excluded by the rules (The Twin Axioms of Admissibility) b. 1. Relevance of evidence and collateral matters Relevancy (also called materiality).

a. Rule 128, 4. Test of Relevancy. None but facts having rational probative value are
admissible.

b. Collateral matters. They do not prove the factual issues but the prove the probability or
improbability of the fact in issues. They are allowed to satisfy quantum of proof required by the rules. Connect with the rule on Circumstantial evidence (Rule 133, 4). Though they are collateral but in their nature they are circumstantial evidence, they may be received and allowed. What is collateral? If they do not prove the fact in issue. They do not pass the relevancy test. They are in the nature of circumstantial evidence.

1. Kinds of Collateral Matters. Example. Suarez killed someone. Ligan was found dead in
Justitia. There were no eyewitnesses, no one knew what happened. Nevertheless, after interviewing rem students, someone said, what time did you see him dead? The answer was after 6. I was smoking, I saw suarez left the room. This is one circumstance. Then someone else said earlier I saw ligan talking to suarez. When they retrieved the knife, they saw the initials SZ for the first and last letters of Suarez. Technically these are irrelevant, but there are collateral issues that are circumstantial evidence, when taken together they are sufficient for certain issues. Evidence as to planning (circumstantial matter prior to the fact in issue), alibi, flight after the crime. Thus, collateral issues can be prior, during or after the fact in issue

a. Antecedent. Suarez was overheard discussing the plans of the crime. b. Concomitant. Someone saw him going out of the crime scene at time of
crime. i. Other Examples: Alibi

c. Restrospectant. Initials of Suarez appears on the knife found in the crime


scene

i. Other Examples: Flight which is considered as proof of guilt


2. HOW TO DETERMINE?

a. Go back to the basic pleadings since it determines the issues in the action. b. In Rule 132, testimonial evidence must be offered. When making the offer, the
purpose for the presentation is stated. c. Also, even when the evidence appears immaterial, it may be allowed subject to proving the connection (relevancy) later

4 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

2.

Competency. Not excluded by the rules. EXCLUSIONARY RULES. Differentiate from preclusionary rule: In preclusion it may be shown that there was good cause for not marking the vidence in pre trial. a. Constitution i. ii. Article III, sec 3 of the Constitution. Violation of search and seizure Violation of privacy of communication

iii. Article III, sec 17. b. Statutory i. ii. Anti Wire Tapping Law Bank Secrecy Law Rule on Examination of Child Witness, sec 30. Sexual Abuse Shield rule.

iii.
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DISTINGUISH from preclusion in pre-trial Precluded from presenting simply b/c not present during pre-trial If you show you good cause, court will let you present In exclusionary, always excluded, no good cause shown c. Multiple admissibility When evidence offered for more than one purpose, if inadmissible for one purpose, it does not become admissible for other purposes d. Conditional admissibility Example there was an objection to relevancy of the question. Dito sinasabi yung sa Prac Court question is preliminary subject to connection later (Link Up). Evidence may be admitted subject to proof of relevance later on. The witness testified that the victim owns an expensive car. Someone objects because it is irrelevant since the issue is w/n the accused kills the victim. But the other counsel says preliminary (subject to connection later). If admitted conditionally, proponent should be able to link w/ other evidence to make relevant though at the beginning it was seemingly irrelevant. For example, it can be that the motive of the killing was to take away the car If not linked or connected later, should be stricken off e. Curative admissibility (Fighting fire with fire) When an irrelevant statement is given by a party, it must be objected to. If it was nonetheless allowed by the court, the objecting party must be allowed to offer irrelevant statements as well. f. Direct and circumstantial evidence Direct evidence. Proves fact without any aid of inference or presumption. Indirect evidence. That w/c needs inference or presumption to prove Primary Evidence (Best). Highest form of evidence. Like an eyewitness account. That which the law regards affording the greatest certainty of the fact in question. For purposes of documentary evidence there is the Best evidence rule g. Positive and negative evidence Positive. Witness affirms that facts did or did not occur Negative. Witness did not see or know. h. Competent and credible evidence Credibitity. Subject to appreciation of the court. Example: Testimony of the Husband as against the wife. It may be competent. Demeanor, nature, character of the witness in testifying is a matter of credibility. He will be credible, can be competent in that it is w/in his personal knowledge, may understand responsibility to tell the truth. This is competency! BUT the weight the court will give to his testimony is a matter of credibility Husband may not disqualified to be a witness but may possess certain biases, so credibility is how much weight may be given Cumulative. Same kind of evidence to prove fact, which had already been established. The Court has discretion to limit the admission of cumulative evidence.

5 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

Corroborative. Different kind/nature of evidence. Example: Existence of contract through documentary and testimonial evidence 7. Burden of Proof and Burden of Evidence Burden of Proof. Duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. With the plaintiff who initiated the action. But the party upon whom the ultimate burden lies is to be determined by the pleadings, not by who is the plaintiff or the defendant. The test for determining where the burden of proof lies is to ask which party to an action or suit will fail if he offers no evidence competent to show the facts averred as the basis for the relief he seeks to obtain, and based on the result of an inquiry, which party would be successful if he offers no evidence. In ordinary civil cases, the plaintiff has the burden of proving the material allegations of the complaint which are denied by the defendant, and the defendant has the burden of proving the material allegations in his case where he sets up a new matter. Burden of evidence. Burden of going forward with the evidence or that logical necessity which rests on a party at any particular time during the trial to create a prima facie case in his favor, or to overthrow one when created against him. Main distinction. Burden of proof never shifts. Remains throughout the entire case exactly where the pleadings originally placed it. The party whether plaintiff or defendant, who substantially asserts the affirmative of the issue has this burden of proof. Burden of evidence shifts to one party when the other has produced sufficient evidence to be entitled as a matter of law to a ruling in his favor. It has no necessary connection with the pleadings, but is determined by the progress of the trial.

a.

Burden of Persuasion. Remains in the party where it rests at the beginning of the trial. In criminal cases, the prosecution would always have the burden to prove the crime beyond reasonable doubt. b. Burden of Production. Shifts from time to time as the trial progresses. After presentation of evidence by the plaintiff, the defendant must present its evidence. 8. Presumptions a. Conclusive presumptions There can be no evidence to rebut it. a. Estoppel in pais. Leading someone to believe a certain set of facts. He may not be allowed later on to change those facts b. Landlord and Tenant relationship at the beginning of the relationship b. 9. Disputable presumptions Rebuttable They may be overcome by superior evidence

Liberal Construction of the Rules of Evidence - It is not a waiver of all technicalities, it pertains to issues of admissibility. General Rule is Admissibility. Admit the evidence if the objection is trivial, and will not affect the substantial rights of the other party. Admit now, and if it turns out to be inadmissible it may still be disregarded. But if denied now, it will not appear in the records. - The rule is that you should admit the evidence if the objection is trivial, because it might be too late later to consider your ruling b/c the parties have rested their case. If you admit them erroneously, disregard it! But if you do not admit it, it does not appear on the record b/c you sustained the objection. - Pallative cure: Tender of excluded evidence Rule 132, 40. Relate with tender of excluded evidence. This is only relevant in appellate courts not trial courts.

10. Quantum of Evidence (Weight And Sufficiency of Evidence) Rule 133. This will depend on the type of action Court is required to state distinctly facts + law on which it is based, so you determine if this is sufficient based on the weight and sufficiency of the evidence - Plaintiff should prove in relation to Rule 133, 1 preponderance of evidence The party having the burden of proof (remember the burden of persuasion stays w/ this party!) must establish his case by a preponderance of evidence

Court may consider all facts and circumstances of the case (essential facts that will justify the ruling) Thats why the witness must testify in open court so the court can observe the demeanor Manner of knowing facts to w/c they testify Nature of facts on w/c they testify Probability/improbability of testimony Interest or want of interest Etc. see codal

a.

Proof beyond reasonable doubt

6 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

The standard that must be met by the prosecution's evidence in a criminal prosecution: that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty. Evidence establishes a particular point to a moral certainty and that it is beyond dispute that any reasonable alternative is possible. It does not mean that no doubt exists as to the accused's guilt, but only that no Reasonable Doubt is possible from the evidence presented. The highest standard of proof that must be met in any trial. b. Preponderance of evidence One side has more evidence in its favor than the other, even by the smallest degree. Consider the i. Location ii. Nature of the facts on which they testify. iii. Probability and improbability of testimony. Ex: Tumalon yung accused sa 35th floor pero buhay at nagtetestify. iv. Interest or want of interest. Ex: Husband in favor of the wife. v. Personal credibility as may legitimately appear on trial. Ex: Character of the witness NOTE: Dovetail testimonies. Identical lahat ng testimonies. Entitled to less weight since they appear to be rehearsed witnesses. c. Substantial evidence Required in administrative proceedings. Amount of relevant evidence that a reasonable mind would accept to support a conclusion. d. Clear and convincing evidence In between proof beyond reasonable doubt and preponderance; establishes a high probability that the fact sought to be proved is true. When used: Applications for bail by an extraditee pending extradition B. 1. Judicial Notice and Judicial Admissions What Need Not be Proved Immaterial allegations; Facts admitted or not denied provided they have been sufficiently alleged; Agreed and admitted facts; Facts subject to Judicial Notice; Facts legally presumed. Matters of Judicial Notice. Not equivalent to judicial knowledge. Three kinds A matter of convenience and expedience Ridiculous is require parties to prove everything a. Mandatory It would require an absurd type of evidence to prove certain things like the laws of nature (gravity). If there is a law penalizing an act, the court should take JN. The Court must take the matters enumerated in 1 as they are. Cannot take notice of pardon because it is a private act. Amnesty is an official act of a co-equal branch, so take notice of Law of Nations: Piracy! Punishable wherever you go. Foreign law, not so, since it is a factual issue, so proven as a fact. Doctrine of Processual Presumption: Absence of proof of foreign law, presume that same law as us.

2.

Admiralty and Maritime Courts (and their Seals): Where are they located? None in the Philippines. London and Holland to settle international maritime disputes (over international waters). Our loca; courts only have admiralty jurisdiction. Existence and Territorial Can we take JN of the currents in Egypt, Mumbarak being ousted? YES. Matters of International Interest, the Court may take notice of it. It may even fall under discretionary b. Discretionary Traditional concept of what is forming of Mandatory JN, in the old Rule. Underlying concept: Notoriety, when certain facts are notorious because of the Judges judicial functions, the court must take JN. Supposed to be known to judges by reason of their judicial function e.g. Existence of laws (judges are presumed to know the law) o Rationale: convenience and expedience

Capable of unquestionable demonstration: (Demonstrative evidence); H20 combining two gases to produce water; when you boil something it will evaporate and the vapor will scald you.

7 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

One case: that rape can be committed along Roxas Blvd; of the fact that illicit transactions have been made in the public/in the presence of other people like the selling of shabu; like that rape can be committed in the presence of other people especially if they live in 5 sqm shanties c. When Hearing Necessary Two instances: During the Trial (pending still with the Trial Court)

witness. 3.

After trial [Before judgment (before Trial Court); On appeal (before Appellate Court)] Thats why proper court, not trial court (contemplates a different situation) Matter is important or decisive to the issue; new rule so cant think of an example. Courts own initiative or upon request of parties Cannot render judgment without informing the other party, the parties MUST be heard Example: Whether or not there exists a ravine that would allow circumstances to arise to test the credibility of a MUST observe due process, be heard so may interpose objections.

Judicial Admissions Different from admissions and confessions (26, Rule 130) Requires NO PROOF - Requisite: Made by a party in the course of proceedings (pending case, otherwise, not a judicial admission) May take Judicial Notice of the records of the particular court he is trying but even if there is another case pending before him with the same parties, cannot take notice of that o Example: case #1 w/ judge, civ case #2, judge cannot take judicial notice of #2 in deciding case #1 Can do it only if there is no objection by either of the parties. Unless it is repeatedly mentioned in the other case, then technically in estoppel. Limited to that particular proceedings Verbal or written It begins from pleadings, form the very inception of the case, parties may already make certain admissions, thats why they have judgment on the pleadings. Because there are judicial admissions in the pleadings. Not just in the course of the trial. a. Effect of judicial admissions - Rule 10 (Amended and Supplemental Pleadings) 8: Admissions in superseded pleadings may be admitted; Though technically amended pleadings disappear but they are still part of the records. Conflicting views: some see it as a judicial admission Feria Noche) but Regalado said needs to be marked and offered since it becomes of the nature of an extrajudicial admission Courts can take Judicial Notice of records of the case before it! Technically, the amended pleading should be taken out of the records but this is not the case. JG agrees with Regalado in that it must be formally offered. - Suppose it is an amended answer? What is the effect of that? SC to be utilized but they must be formally offered. But according to JG, he thought that the rule was for convenience of expedience. But maraming ganyan na sitwasyon like reservation of civil actions depends on who is writing the decision - Rule 25 & 26, effect of failure to avail of the remedy, since admissions also, if fail to answer written interrogatories, then deemed admitted; allowed to withdraw based on terms that may be just, made through palpable mistake (Rule 26 4) - Rule 116, 2: Pleading of guilty to a lesser offense after withdrawing plea of not guilty cannot be used except when you offer, offer must be made by accused or is relatives and he is aware of the offer for it to be an implied admission of guilt. Rule 130, 27: Offer of compromise not admissible How judicial admissions may be contradicted Cannot controvert a judicial admission, save for two grounds Not made palpable mistake: patent or obvious mistake a matter of evidence or simply looking at pleadings or records Old jurisprudence: no way that you could withdraw, now these to exceptions

b.

4.

Judicial Notice of Foreign Laws, Law of Nations and Municipal Ordinance May Courts take Judicial Notice of Treaties Affecting the Philippines? YES. Foreign Laws? No. Municipal Ordinances: Regular Courts can, especially government units within their jurisdiction (how about not in jurisdiction) Common Law? Some of our laws are based on common law, commercial laws Attorneys claiming to be a lawyer? Should we as a court take judicial notice of a person claiming to be a lawyer? How about those who practice but are not o the Roll of Attorneys? The US jurisprudence says YES.

8 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

Religious matters? That members of INC go every Sunday? Some can be, some cant. Like, Roman Catholic Church there is a sole corporation headed by a bishop can be taken notice of. Legislative Journals? YES. For deliberations of the law C. Object (Real) Evidence - Demonstrative Evidence (alias) charts, graphs

Question is how to treat the evidence DEPENDS on what the purpose is. When the subject of the inquiry is the content then documentary but if just want to show its existence then real or object o Real evidence: purpose to prove their existence or condition or nature of handwriting o Documentary evidence: proof of contents, need to use best evidence rule

1.

Nature of Object Evidence Addressed the sense of the court, can see it, touch it, five sense of man Within the rule you can see the basic form of evidence, these rules tell us the specific requirements for admissibility, what would make them admissible - In order to avoid leading questions, only ask the witness what he saw, what did you hear, why, basic questions same thing five basic sense but addressed to the court. Thats why it may be viewed/exhibited/examined by the Court since the Court is the trier of facts. That why there is a motion for ocular inspection. Since evidence may not be brought to court sometimes. No problem with movables One case: the judge was asked to taste what was in a bottle. - Do not prove themselves, they need testimonial sponsorship, always required that a witness will testify on the real/object evidence. Eg. Claim gun used in the killing, must prove that it is in fact the gun used in the killing. Authentication is done through testimonial evidence. - They require authentication/ identified, when it is presented in court, it must be testified that it is what it purports to be. Done through testimonial evidence (another form) - Most common way of authenticating: the chain of custody theory from the moment a particular r/o ev is recovered, it must be authenticated by chain of custody, from scene of crime to court must be shown that it is indeed the same thing. 21 of Dangerous Drugs Act - Authenticate: establish the fact that it is what it purports to be. What are the non-inherent limitations of object evidence? o [inherent limitations are the ones when they do not comply w/ req to admit] o [these exist b/c the admissibility is addressed to the discretion of the court. The reason the court has discretion is to avoid prejudice] o indecent or scandalous o avoid prejudice o this list is not complete. Requisites for Admissibility Must not be: (a) contrary to public policy; (b) results in delays, inconvenience, unnecessary expenses put of proportion to evidentiary value; (c) would be confusing or misleading; (d) other evidence already presented clearly portrays object in question so unnecessary relevant not hearsay not privileged authenticated any additional requirement set by law (not result of illegal search + seizure) remember that competency means that it is not covered by the exclusionary rule (see notes above under twin axioms) Categories of Object Evidence Auditory, tactile, gustatory, olfactory Documentary Anything that appeals to the basic senses of man - Is a photograph real or object evidence? o Photograph is to be seen by the court, so it is an object evidence o In order to offer it into evidence, it should be AUTHENTICATED It may be authenticated by: o Photographer o Anyone who can testify as to the accuracy and exactness of the photograph

2.

3.

What is the limitation of a photograph as evidence? The court can only consider what appears in the photograph What does auditory evidence refer to? Evidence which heard, like recordings

9 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

4.

Demonstrative Evidence - Demonstrative evidence must also be authenticated by the party proposing: must show that it is a representative of the real object, like cannot produce actual object evidence (thrown/destroyed/kept) use a representative of that article or object. Must be able to show that it fairly represents if not actually represents the object actually being represented; like a gun in CSI! .45 used in a murder, have the expert describe it, then ask witness tell the court if this is similar to what you saw the accused holding. o Must be authenticated that is representative of the object o And so need testimonial sponsorship. On its own, it proves nothing.

5.

Anything that is representative, such as chart. These are also subject to sense of sight

View of an Object or Scene What is meant by view of an object? real or object evidence is presented in court; but now you can have view of object or scene conduct an ocular inspection can deny if will result in unnecessary expense, or special circumstances (e.g. go to Maguindanao) NOTE: ocular inspection is part of the trial proper. This means that counsels and parties should be present. During the ocular inspection, there should be a recording, for example, measurements of a place. In order to have an ocular inspection, there should be a motion.

Chain of Custody in Relation to Section 21 of the Comprehensive Dangerous Drugs Act of 2002 Chain of custody. Duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and used in court as evidence, and the final disposition. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. PDEA takes charge and have custody Apprehending Officer/Team Seizes/Confiscates Inventory and Photography in presence of Accused or Person from Whom Confiscated or Representative or Media or DOJ or Elected Official (Inventory must be signed and copy given) [MUST be done where warrant served OR nearest police station/office; noncompliance allowed on justifiable grounds] Within 24 hours, submitted to PDEA Forensic Laboratory for a qualitative and quantitative examination Within 24 hours, certification of the forensic laboratory examination results (under oath by the forensic laboratory examiner issued; Partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory if tests take longer BUT final certification MUST be issued the next 24 hours Filing of the criminal case, Court within 72 hours, conducts an ocular inspection and through the PDEA shall, within 24 hours DESTROY or BURN it in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or a representative or counsel the media and the DOJ, civil society groups and any elected public official. (Item/s of lawful commerce, as determined by the Board, shall be donated, used or recycled for legitimate purposes; Provided, further, that a representative sample, duly weighed and recorded is retained) [If no representative, PAO appointed] Board issues sworn certification of destruction with sample, submits to court with jurisdiction. Promulgation and judgment in criminal case, Trial prosecutor informs the Board, requests for turnover of sample to PDEA, dispose/destroys w/in 24 hours from receipt. The basic requirement in order that these real or object evidence is that they must be authenticated. The way to authenticate is the chain of custody. Sec 21 provides that specific standards for the apprehending officer to follow. If the officer does not adhere, the officer must admit to the court that it was not followed, and also why it must be admitted. If they do not do this, the drugs cannot be admitted Prosecution must show Confiscated contraband is the same as what is presented in court. Why is the law so strict w/ the chain of evidence? Nature of drug is that it cannot be readily distinguishable from other objects o E.g. if you put sugar, alum and talcum powder on the table cannot distinguish w/ eyes from shabu o Preserve the integrity of the evidence

6.

Under the rule on substantial compliance, Justice Abad does not agree.

10 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

The prosecution or the apprehending officers may not be able to comply with the chain of custody requirement. But first you must admit in the testimony w/ of the prosecution witness that you failed to comply with it. Next you must give a justifiable reason why you are not able to comply. Finally you must show w/ evidence that the integrity is preserved. Strict application Requires that there be testimony about every link in the chain, from the moment the object seized was picked up to the time it is offered in evidence, in such a way that every person who touched it would describe how and from whom it was received, where it was and what happened to it while in the witness possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. Chain of custody requirement effectively negates presumption Regularity in the Performance of Official Duties. (People v. Tamayo, G.R. No. 179029, 2010) Strict compliance with the prescribed procedure is necessary because of the illegal drugs unique characteristic rendering it indistinct, not readily identifiable, and easily open to tampering, alteration or substitution either by accident or otherwise. (People v. Nandi, G.R. No. 188905, July 13, 2010) Substantial Compliance: Although Section 21(1) of R.A. No. 9165 mandates that the apprehending team must immediately conduct a physical inventory of the seized items and photograph them, non-compliance with said section is not fatal as long as there is a justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items are properly preserved by the apprehending team. Thus, the prosecution must demonstrate that the integrity and evidentiary value of the evidence seized have been preserved. (People v. Campomanes, G.R. No. 187741, 2010) On appeal, cannot raise non-compliance w/ sec 21, court says too late! You shouldve raised in the TC

7.

strict non-compliance, acquittal other justices substantial compliance is sufficient

Rule on DNA Evidence (A.M. No. 06-11-5-SC) a. Meaning of DNA DNA. Deoxyribonucleic acid, which is the chain of molecules found in every nucleated cell of the body. The totality of an individual's DNA is unique for the individual, except identical twins DNA evidence. The totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples. b.

Applicable for DNA testing order Teehankee v. madayag lamentation on the part of the SC wishing we had DNA testing in the Phil

People v. Yatar GR 150224 May 19 2004 We can now admit DNA test results in our court, because we have now the facilities to conduct the tests People v. Vallejo o Since we have established DNA is admissible, court should provide standards for appreciation the probative value of DNA testing results o In the past, the test for object evidence was view of the object o When there was an issue of paternity, the court would ask the child to compare and compare appearance and voice w/ putative father Cabatana v. CA, 441 SCRA 96 (2004) physical similiarity will not suffice to prove filiation

Andal v. People, 307 SCRA 650 as between the result of the DNA, and the positive identification of the witness, the latter should prevail. This is because DNA is still a test The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. After due hearing and notice to the parties upon a showing: (a) A biological sample exists that is relevant to the case;(b) The biological sample [(i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons]; (c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing. Does not preclude a DNA testing, without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced. Similar to motion for physical examination c. Post-conviction DNA testing; remedy May be available, without need of prior court order, to the prosecution or any person convicted by final and executory judgment provided that (a) a biological sample exists, (b) such sample is relevant to the case, and (c) the testing would probably result in the reversal or modification of the judgment of conviction. The convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin if the results of the post-conviction DNA testing are favorable to the convict. In case the court, after due hearing, finds the petition to be meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict, unless continued detention is justified for a lawful cause. A similar petition may be filed either in the Court of Appeals or the Supreme Court, or with any member of said courts,

11 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

which may conduct a hearing thereon or remand the petition to the court of origin and issue the appropriate orders. (In re: writ of habeas corpus for revilla, G.R. No. 158802, Nov. 17, 2004, 442 SCRA 706) If a person is already dead, can you still use DNA evidence? Yes, for so long as a biological sample exists d. Assessment of probative value of DNA evidence and admissibility In assessing the probative value of the DNA evidence presented, the court shall consider the following: (a) The chain of custody, including how the biological samples were collected, how they were handled, and the possibility of contamination of the samples; (b) The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests; (c) The forensic DNA laboratory, including accreditation by any reputable standards-setting institution and the qualification of the analyst who conducted the tests. If the laboratory is not accredited, the relevant experience of the laboratory in forensic casework and credibility shall be properly established; and (d) The reliability of the testing result, as hereinafter provided. The provisions of the Rules of Court concerning the appreciation of evidence shall apply suppletorily. e. Rules on evaluation of reliability of the DNA testing Methodology (a) The evaluation of the weight of matching DNA evidence or the relevance of mismatching DNA evidence; (b) The results of the DNA testing in the light of the totality of the other evidence presented in the case; and that chan robles virtual law library (c) DNA results that exclude the putative parent from paternity shall be conclusive proof of non-paternity. If the value of the Probability of Paternity is less than 99.9%, the results of the DNA testing shall be considered as corroborative evidence. If the value of the Probability of Paternity is 99.9% or higher, there shall be a disputable presumption of paternity. In other words, there is a DNA result, but the judge should not totally rely on that CORROBORATIVE evidence (there should be other evidence) DISPUTABLE PRESUMPTION

D. 1.

Documentary Evidence Meaning of Documentary Evidence Materials w/c have modes of expression, have writings w/c are presented to the court as proof of contents (sec 2) E.g. Gesmundo wrote on the seashore to X I leave everything I own is this documentary evidence? Yes! b/c what is being presented is the contents of the E.g. If written on a rind of watermelon, documentary evidence? Yes! Because presented to show contents of the writing

2.

What are the governing rules for documentary evidence? Best evidence rule, also called original or primary evidence rule in object and real evidence Requisites for Admissibility Marked at pre-trial (?) Competent and relevant, complies with Best Evidence Rule. Best Evidence Rule a. Meaning of the rule When the subject of the inquiry is the contents of a document, no evidence shall be admissible other than the original document itself NOTE: best evidence applies when subject of inquiry is the CONTENTS of the documents, nothing to do with the existence (e.g. w/n document executed) b. When applicable Applies to DOCUMENTARY Evidence only (when CONTENT is subject of inquiry) Is a Xerox copy considered an original? No! something v. arenza How do you prove the contents of a document lost or destroyed? o E.g. if there is a carbon copy, made at the same time, which is the original? Both are originals! This a case of duplicate originals What is a mimeograph sheet? Which is the original? RCPI case For telegrams: It depends on the issue to be proved o Issue: contents of the telegram as received, the original is the one received o Issue: w/n telegram was sent by sender, original is the one you sent Bills of lading: Both because in the regular course of business produced at same time Written libel: It depends on what you want to prove as the subject of libel o If you say statement libelous, produce the initial copy o If you say published, present published copy

3.

12 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

Adverse party has possession of the original Period of notice required: No fixed time! reasonable notice What kind of notice should be given? How should notice be given? It must be in writing

What if adverse party given notice to produce, does not, other party secondary evidence, then later the adverse party produces the original, what happens? The adverse party can no longer controvert because he was given the opportunity and he refused c. Meaning of original The contents of which are subject of inquiry The document was executed in two or more copies at or about the same time with identical contents (ALL are origs) When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction. d. Requisites for introduction of secondary evidence Proof of due execution of the original Proof of loss, destruction, or unavailability Reasonable diligence and good faith in the search for or attempt to produce the original Requisites for intro of secondary evidence (ground is loss and destruction): o Due execution of original document o Loss, destruction, or unavailability of all such originals + No bad faith on the part of the offerer of secondary evidence o Reasonable diligence and good faith in the search for or attempt to produce the original o If prove all this, he can prove the content. The order is: Copy If none, recital of its contents in an authentic document Recollection of witnesses o This means you cannot resort to a recollection of witnesses when a copy exists and when there exists an authentic document reciting contents NOTE THAT RULE 3 IS SIMILAR TO RULE 27 MOTION FOR PRODUCTION OR INSPECTION What is the rule on secondary evidence? o There is a more reliable primary evidence, but for certain reasons, the court should permit the introduction of secondary evidence (like if primary evidence not evidence) When may secondary evidence be introduced in lieu of the original under the best evidence rule? o When the original is lost, destroyed, cannot be produced in court w/o bad faith on part of the offereror o The original is in the custody or under control of party against whom offered, and that party fails to produce it after due notice o Numerous accounts which cannot be presented to court w/o great loss of time and the fact sought to be established is only the general result of the whole o Original is a public record in the custody in the public officer

4.

Rules on Electronic Evidence (A.M. No. 01-7-01-SC) a. Meaning of electronic evidence; electronic data massage What is electronic evidence? o It is not defined under the law, only electronic document What is an electronic document? o 4h what is the essence of the rule on electronic documents? o That it does not refer only to the content, but also the fact that there is a document being stored etc What about a fax? o NOT included b/c UNICITRAL law not cover facsimile o But w/ respect to probative value, they are the same, it is covered by documentary evidence w/c is electronically produced What is the rule on admissibility? o Admissible as documentary o Should be printout readable by sight or other means Txt messages are covered: o Lewis v. apaw 45 SCRA 288??????? o V. salud 469 SCRA 288 Note that even electronic documents should be authenticated b. o Probative value of electronic documents or evidentiary weight; method of proof Evidentiary weight of electronic documents Factors assessing the evidentiary weight Reliability generation stored etc Rule 7 sec 1 etc AZNAR v. CITIBANK 519 SCRA 287

13 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

c. o d. o e. o 5.

Authentication of electronic documents and electronic signatures How do you authenticate electronic documents? Rule 5 sec 2 Electronic documents and the hearsay rule Exception to the hearsay rule: Rule 8 Sec 1 Audio, photographic, video and ephemeral evidence Ephemeral electronic evidence: Rule 2 Sec 1k Accuracy + exactness authenticity MCCI NBC v codilla

Parol Evidence Rule a. Application of the parol evidence rule When does it apply? o It generally applies to contractual written agreement, but in the last sentence of the rule it applies to wills o If you have a receipt showing payment, the rule on parole evidence will not apply! It is not an agreement, it just shows that something was paid. There must be an underlying agreement. What is another requirement for the rule to apply? What is condition precedent for it to apply? o That the contractual written agreement must be valid Basic premise is that the application of parole evidence applies to contracts including wills and at the agreement is valid Who are covered by this rule? o Generally the parties to the agreement and their successors-in-interest o This is similar to actionable document rule, which requires that it be denied under oath, but this rule does not apply to those not a party. Similarly, in parole evidence rule, third parties are not bound by the parole evidence rule. third parties may come forward and testify varying the terms of the agreement. [[[[Since it covers not only oral evidence??, written instruments are also not allowed to vary the terms. ]]]]] Parties are precluded from presenting any evidence (testimonial or written) that alters, modifies, adds, subtracts to the original evidence. What is covered by this limitation that there can be no evidence to alter? o See Rule 130 Sec 9 When the contract is putting into writing, what is it presumed to cover under the parole evidence rule? o Prior or contemporaneous acts by the parties o PEC will not apply with respect to (Rule 130 Sec 9 d) the existence of terms agreed upon after the execution of the written agreement o This means you can present evidence (even oral evidence) to show terms agreed upon AFTER the agreement was executed, but you cannot present evidence w/ respect negotiations prior to or contemporaneous w/ the execution of the agreement What about collateral agreements? Are they covered by the parole evidence rule? o You can present evidence of them but this must be put in issue in the pleadings What about conditions precedent to the agreement, can you present parole evidence? o Precisely because if there is no compliance w/ the condition precedent, there is no written agreement to speak of o E.g. contract provides that for contract to apply, X should sign. You can present evidence showing that X signed, because if X did not sign, the written agreement will not apply. b. When parole evidence can be introduced Exceptions: This is basically reformation of contract in Civil Code where the contract fails to reflect the true intent of parties. This is what is meant in if he puts his issues in pleading. If it is not made an issue in the pleading- no parol evidence is allowed Example: A sells books to B for 2000 pesos. But the contract is really a pledge What do you mean by intrinsic ambiguity? o May refer to person, things or subject of the contract (because these do not appear in the contract) o E.g. by this instrument I hereby transfer convey sell to the buyer this parcel of land for the amount of 5M. is this intrinsic ambiguity? NO! Patent ambiguity! It does not even describe the land. o Note: if the contract is void, it cannot be cured under this rule because the contract does not exist. (sirs example about a contract of sale w/ no subject of the sale) o Intrinsic ambiguity: if you read the contract there is nothing wrong with it, but if you go beyond the contract you will find that there is ambiguity E.g. I leave to my cousin Jose all my property. But all the cousins are named Jose! Intrinsic ambiguity as to who is to receive. You can present parole evidence to show which Jose the testator intended to institute as an heir

14 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

Illustrate intrinsic validity. In reading the contract, there is no problem with the contract. Example: In a will, property was left to Jose, it turned out that everyone in the family is named Jose Mistake: It must be a mistake of fact. It has three requisites. This is different from FAME requirement Imperfection: Incompleteness in the writing. What is an Intermediate Ambiguity? Can it be cured by Parol Evidence? It is an ambiguity in the use of the words. Example: Enjoin This may mean allow or prohibit. Go to Sec 13, Rule 130. Interpretation due to circumstances. Another example is proscribe. In SC case, contract says capacity. The contract is not clear if it is storage or distilling capacity. SC allowed parole evidence What is falsa demonstratio non nocet: False descritption does not vitiate contract. Question: RP expropriated land. Owner allowed sale on condition that in case of non use it would be reconveyed to the Owner. Compromise agreement. Can there be parole evidence even if the compromise agreement does not contain a provision on reconveyance? You cannot introduce parole evidence. Since judgment is not an agreement, it is an adjudication. Otherwise, everyone would be allowed to introduce parole evidence to alter the judgment. Mactan Cebu v. CA When parole evidence is introduced and there was no objection, it is deemed waived. c. Distinctions between the best evidence rule and parol evidence rule Distinguish Parole from Best Evidence. In Parole, there is NO issue in the contents of the writing, additional evidence is given to vary the contents. In BER, there is an issue in the contents. Distinguish Parole, BER, Statute of Frauds (Art 1403, CC). Statute is not a rule of evidence, it is only for purposes of enforceability. Statute involves agreements as well, BUT it prohibits the introduction of any evidence (Even secondary). o Statute of frauds is not a rule in evidence, it is substantial law It is for enforceability of the contract o Statute of frauds same reason as best evidence rule to prevent fraud! o The more important reason for statute of frauds is that we cannot rely on our memories o Distinguish between statute of frauds and best evidence: Statute of frauds prohibits the introduction of secondary evidence o See 1403 NCC for statute of frauds (under unenforceable contract) 6. Authentication and Proof of Documents a. Meaning of authentication b. Public and private documents Classification of Documents 1. Public Official acts of sovereign states Notarized documents except wills Public record of a private document. Ex: Articles of Incorporation 2. Private Difference bet Public and Private. Public documents need not be authenticated. Private documents must be authenticated except Ancient Document rule How to prove private writing is authentic? 1. Anyone who saw execution. Ex: Notary, witness 2. Genuineness of signature of the party Exceptions to Opinion Rule. Handwriting of which he has familiarity may authenticate the private writing. Probative value of Public documents? Prima facie evidence of the contents stated therein. Conflict bet entries of birth cert in Local Civil Registrat and NSO, which would prevail? Depends on which is more credible. Sec. 24. Referring to Official Acts of Foreign States If Verification and Cert against forum shopping was notarized before Notary Public in New York, must this be accompanied by secretary of embassy that notary public is authorized? NO, notarization applies only to those in sec. 19 (a). Heirs of Arcilla v. Xxx. Does notarization validate a document? No In public documents, must the public officer who issued certification be produced in Court? No, since public documents are prima facie evidence of the facts stated therein. Irremovability of Public Records. Who may remove? Upon Court order. Rule 136 sec 14. c. d. e. o When a private writing requires authentication; proof of a private writing When evidence of authenticity of a private writing is not required (ancient documents) How to prove genuineness of a handwriting What is the exception to the opinion rule? Rule 130, 50. Limited to sufficient familiarity with the handwriting.

15 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

f. Public documents as evidence; proof of official record Probative value of public documents o Prima facie presumption as valid and accepted. Conflict between a birth certificate with civil registry and the NSO, which should prevail? o You should show which of the two should be given more weight Rule 132 Sec 24 E.g. there should verification + certification against forum shopping are executed before notary public in NY, must that attestation or subscription be accompanied by a certification showing that the notary is duly authorized in new york? o NO! what is required to be certified are only those in 19a 19a: defines public documents, meaning official acts/documents heirs of arcilla v. teodoro 561 scra 54 Does notarization validate a document? o No! If the contract is valid or void, the mere fact that it is notarized will NOT validate the document With respect to public documents as evidence, do you have to produce the public officer before the court? o No! the probative value of the official documents is prima facie evidence of the facts stated therein o There is no way the public officer will say you were born on that exact date because he was not there haha What do you mean by irremovability of public record? o Cannot remove public record w/o court order o See Rule 136 sec 14 taking of record from the clerks office Cannot remove w/o court order HOWEVER SolGen, assistant, provincial fiscal or deputy and attorneys de oficio may be permitted upon proper receipt to withdraw from the clerks office the record of any cases in which they are interested o Reason for prohibition: records may be tampered with/destroyed. If you allow removal of a book of birt certs, 150 birth certs will be lost! Imagine if you could remove book of judgment Example of public record of private document o AOI private agreement wherein people agree to start a company, but because submit to SEC become public record o REM o By-laws g. Attestation of a copy h. Public record of a public document i. Proof of lack of record j. How a judicial record is impeached Similar to Rule 39, impeachment of judgment. o Want of jurisdiction on part of judicial officer o Collusion between parties o Fraud in the party offering the record k. l. m. o o Proof of notarial documents How to explain alterations in a document Documentary evidence in an unofficial language Rule 132 Sec 33 When a document written in an unofficial language UNLESS accompanied w/ a translation in English or Filipino

E. Testimonial Evidence Testimony. Oral evidence given by the witness in the course of the trial. 1. Qualifications of a Witness 1. Can perceive and in peceiving make known his perception to others. Ability to Communicate a. Witness may be allowed to demonstrate b. He may also be allowed to draw a diagram (like to determine relative position) 2. Understanding of the duty to tell the truth a. Rule 132, sec 1. Under oath requirement 3. Witness may only testify as to facts within his personal knowledge a. Hearsay Rule. Even if not objected to should be excluded What if they cannot speak? o As long as they can demonstrate in some other way, they can be witnesses o Sometimes they are asked to make diagrams Now instead of testimony in court, may allow judicial affidavits, subject to the fact that the witness has all the qualifications required for witnesses. These affidavits are also subject to objection. The other party may move to strike out portions this is NOT ALLOWED IN CRIMINAL ACTIONS. In criminal actions the witness must testify in court. Summary procedure: o Parties are required to submit judicial affidavits o Required that all pleadings and affidavits are verfied, this is to dispense w/ the testimony of the party in court What about expert witnesses? What are the requisites?

16 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

o Not testifying based on their personal knowledge, testifying on a specific set of facts o This is why courts are not bound by expert testimony In CRIMINAL CASES: when the conviction solely rests on an expert opinion, and the defense also rests on an expert opinion, the accused is entitled to an acquittal since the conflicting opinions do not overcome presumption of innocence o Similar to equipoise rule NOTE: Judicial Affidavits are now allowed. Subject to the requirement that the affiant possesses qualifications of ordinary witness. HOWEVER, this is not applicable to criminal cases. EXCEPT in Summary Procedure but such witness may still be subject to cross examination EXPERT WITNESSES If there is conflicting expert witness opinion and the only basis for conviction is the expert opinion, the accused must be acquitted. 2. Competency Versus Credibility of a Witness Credibility refers to probative value Competency refers to Admissibility o Competency: qualifications set up by law for witness to be allowed (admissibility of witness). In this case you just follow the rules to determine w/n qualified. o Credibility: (weight and sufficiency of evidence) how much weight the testimony of a party is given. This depends on the courts assessment; the court gives weight to the particular evidence. Probative value is a matter of the courts discretion Disqualifications of Witnesses a. Disqualification by reason of mental capacity or immaturity o Sec 21 Rule 130 o Those whose mental condition at the time of their testimony are incapable of intelligently making known their perception o Those whose metnal maturity at the time makes them incapable of perceiving the facts respecting w/c they are examined and relating them truthfully Read w/ rule on child witnesses! Can you compel the President by subpoena to appear in court? What about judges? Can you subpoena a judge to be a witness? What about ambassadors and consuls, can they be subpoenaed? When must this mental incapacity appear? o At the time the witness is produced to testify o Mental capacity at happening of event subject of testimony will only affect credibility b. 2. a. i. ii. iii. 1. b. i. c. i. ii. iii. 1. a. b. c. c. d. Disqualification by reason of marriage Disqualified by reason of interest or relationship Spouses (Marital Disqualification Rule) Valid Marriage Not in a civil case by one against the other or in a criminal case against the other, or the others asecndants ans descendant Spouse is a party to the action Who may invoke this? Spouse who is the party to the action Filial Privilege Can he be allowed to testify in favor of parents? YES. What is proscribed is to compel them to testify against their relatives Dead Mans Statute (Survivors Disqualification) Party or Assignor is a witness Action against executor/ administrator/ insane person Based on an action against the estate Waiver of this Statute Cross examination of the witness on the prohibited matters Non objection to the testimony Calling the other party as a witness (Estoppel) Disqualification by reason of death or insanity of adverse party Disqualification by reason of privileged communications (1) Husband and wife a. Marital Privileged Communication i. Valid Marriage ii. Communication received in confidence. Verbal or written iii. Communication during the marriage 1. Ratio: 2. Presumption that communications are confidential

3.

17 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

3. What is the effect of the presence of third persons? This will depend on the reason of the third party. If he is an agent, it is privileged. If he only overheard? The third party may be called to testify. BUT the privilege exist between spouses 4. 3rd party acquiring communication (letter) of the spouses? Same as number 3 5. One spouse communicated to a 3rd person to relay the same to the other spouse? Not covered 6. Waiver allowed. By the spouse 7. Differentiate from Marital Disqualification Distinguish marital disqualifcation v. privileged communication o When applicable: MD: during the subsistence of the marriage PC: even after the marriage, as long as the matter was disclosed during the marriage o Who must be a party MD: one of the spouses must be a party PC: not necessary that one of the spouses is a party o Limitation PC: absolute disqualification No limitation! Thats why its absolute MD: partial disqualification Applies in all cases except in cases filed by one against the other (2) Attorney and client o Requisites: Atty-client relation Invoked w/ respect to confidential communication Course of professional relationship Client not give consent o View of retaining legal or professional services Work-product: o (SEE BEDA) o With respect to draft, you cannot use in evidence by way of admission for as long as it is filed in court, more so if it is not signed by lawyer Can a lawyer be compelled to produce documents against his client? o If given to lawyer confidentially no Can you ask lawyer to testify as to due execution of instrument by client? o Generally, yes, because not covered by privilege What is the duration of the privilege? o Forever and ever EXCEPT: if communication made in view of commission of a crime Regala v. SB Roco v. SB Rule 138 Sec 20e To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his clients business except from him or with knowledge and approval Also client not pay attys fees (3) o o o o o o (4) o o (5) o Physician and patient Requisites: Must be in a civil case Must be connected w/ illness or sickness of a patient [[[curative, pallative, preventive]]] Who are covered: a person authorized to practice medicine, surgery or obstetrics While attending patient in professional capacity Testimony would blacken the reputation of the patient This privilege is different from Rule 28: mental and physical examination of witness Reason for this privilege: Scope of privilege: not limited only to testimony, includes affidavit and medical records Duration: forever Waivable: yes, if the patient gives his consent or impliedly when fails to object Priest and penitent Requisites: There must be a confession made Confession made in the course of the discipline enjoined by the church to which the penitent belongs Reason for privilege: protect the sanctity of the religion Public officers Requisites:

18 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

o o o e.

Public officer in official confidence Public interest would suffer by disclosure of communication Difference btwn public interest and general interest Public interest: national, pertains to all the Filipino people, as in state secrets General interest: localized interest, pertains to a specific area Duration: forever?? Example: informants for violations of tax law given to BIR, informants for dangerous drugs

Parental and filial privilege rule

Can you compel the President to be a witness? NO. Judges? Ambassadors or Consuls? When should disqualification be present? At time witness is produced to testify What if witness is insane at the time of transaction to which he testify? Affects credibility 4. Examination of a Witness a. Rights and obligations of a witness o Sec 3 rule 132 Sec. 3.Rights and obligations of a witness. A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness: (1)To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; (2)Not to be detained longer than the interests of justice require; (3)Not to be examined except only as to matters pertinent to the issue; (4)Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or (5)Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. (3a, 19a) o (3) subject to the rule on relevancy including collateral matters o NOTE: previous final conviction: If the question is have you been charged you can refuse to answer since this not a final conviction since the case is still pending b. Order in the examination of an individual witness (1) Direct examination. Examination in Chief of a witness of the party presenting him. This is the time for the party to elicit all that is needed to be established. After this he may no longer be recalled subject to strict exception. o Remember rule 17 sec 3, dismissal due to fault of plaintiff when he fails to appear at the time of his presentation of his evidence is chief Sec. 3. Dismissal due to fault of plaintiff. If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. o Each witness is supposed to testify on a particular issue or fact, thats why under rule of offer of evidence, at time supposed to testify, must make an offer. You make an offer by stating for the record what witness will testify mr. arcilla will be presented to prove the following facts this is examination in chief because as a general rule you cannot recall him (2) Cross examination o Note: Witness (english rule) any matter connected therewith with sufficient fullness to matters in direct examination Accused is testifying, limitation of subject matter (American rule) only matters covered in direct examination because of Rule 115 Sec 1(e) o GR we follow English rule EXCEPT adverse party witness o Reason: to illicit all important facts, scope is broad as long as you can show it is relevant Connect with Rule 115. 1. Accused may be examined only with respect to matters covered in direct. Do not apply the rule that he may be crossed in any matter 2. Two Rules English. American . Only those covered in direct. ADVERSE and HOSTILE witness (3) (4) Re-direct examination Re-cross examination

19 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

(5) o o o o

Recalling the witness As a general rule, NO Remember in criminal cases, last section Sec 24 Rule 119 At any time before finality of the judgment of conviction, the judge may etc This is different from recalling of witnesses!!! The recalling of witnesses is at the discretion of the court

c. Leading and misleading questions Leading Questions GR: Not allowed Exceptions 1. Cross Examination 2. Preliminary Matter. Subject to Connect up/ Link up 3. Witness is of tender years Voir Dire Examination Judge determine competency of witness 4. Unwilling or hostile witnesses d. o Methods of impeachment of adverse partys witness By presenting contradictory evidence How the witness is impeached by evidence of inconsistent statements (laying the predicate) Evidence of the good character of a witness

e.
f.

Rule 23 Sec 4A o Deposition must ask preliminary questions! Do you call that on such time and place the deposition was taken? That certain questions were taken. Direct examination is the examination in chief of the proponents witness In proving good character of witness, how done: o Ask the witness on re-direct, because he was impeached in the cross or call another witness to disprove the impeaching testimony. o Rehabilitation of a witness to restore the credibility of the witness who was first impeached. The separation of witness purpose is to prevent dove-tailing testimony Past recollection recorded/revived vs. present recollection revived Present recollection revived Past recollection recorded/revived Memory is obscure but there is still memory.Recollection is zero. The main evidence is the testimony of the witness. The main evidence is the memorandum. The witness simply testifies that he knows that the memorandum is correctly written by him or under his direction: no need to swear. Witness must swear that the writing correctly states the transaction. When the objections are premised on leading, misleading, argumentative, compound etc, these are formal grounds of objections. The basis is in the formulation of the question. If the objection is based on violation of the specific rules of admissibility, such as the best evidence rule, parole evidence, res inter alios acto, these are substantive objections. These objections are specifically provided for in the rules of admissibility. 5. Admissions and Confessions What is an admission? When is it receivable as evidence? o When it is against the declarant, if in favor of declarant, self-serving admission Classification of admission: o Judicial Formal made in pleadings, during trial Informal made orally in the court in testimony, or in depositions or affidavits o Extrajudicial not just those made out of court, can be in judicial proceeding not under consideration Express Implied offer of compromise Offer of compromise o By the accused o One of the things pre-trial plea of guilt lesser offense but need consent offended party and

a.
o b. c. d. o

Res inter alios acta rule Reason: you should not allow another to prejudice the rights of a party Admission by a party Admission by a third party Admission by a co-partner or agent Show partnership w/ other evidence

20 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

o o e. o o o f. o o o o o

w/in scope of partnership during partnership Admission by a conspirator conspiracy shown evidence aliunde made during existence of conspiracy admission relates to conspiracy Admission by privies relation of privity admission made by declarant while holding title admission in relation to property NOTE: applies to ALL property Includes privity by acts inter vivos and mortis causa

g. Admission by silence h. Confessions acknowledge guilt of offense charged or any other included therein Vs. admission act or admission, declaration as to a relevant fact Can there be implied confession? o NO, the rule says it is a declaration! You have to declare Requisites of confession: o Admission of guilt to offense charged o Voluntarily o Intelligently o Assistance of counsel o Not violate consti (free from coercion etc) o Writing, assisted by counsel What about reenactment? o It depends o If forced, cannot be admissible o If voluntarily, can be admissible What about confession on tv? o Yes can be admissible as extrajudicial admission, voluntarily made What about confession to barangay captain? o Yes not a peace officer i. Similar acts as evidence Thing that one did or did not do a certain thing at one time not admissible to prove that he did or did not do the same or similar thing at another time

6.

Hearsay Rule a. Meaning of hearsay o You heard, then you said o Not derived from personal knowledge o Admitted not to prove the truth of the fact stated, but to prove that it was said (independently relevant statement) o Can be in the form of oral statement, writing, assertive conduct e.g. did the accused threaten to kill the victim? o Witness not reply but nodded his head o This is assertive conduct b. c. Reason for exclusion of hearsay evidence Exceptions to the hearsay rule (1) Dying declaration Death imminent o declarant aware of imminent death o declaration refers to cause of death o declaration relates to facts to which witness competent to testify o declarants death subject of the inquiry different from res inter alios acta!! Note situations when presence of accused is required Dying declaration admissible w/n it is favorable to the accused! It is just an exception to hearsay Note two basic reasons for exceptions hearsay rule: o Necessity o Trustworthiness

21 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

o o (2) o o o o o o o o o o o (3) o o o o (4) o o

May a dying declaration be impeached? Yes. Same as during cross-examination (trustworthiness, reputation for honesty and integrity etc) What is the probative value of dying declaration? Must be received w/ utmost care Declaration against interest Declarant dead or unable to testify Relates to fact AGAINST interest of declarant At time of declaration, was aware the same was contrary to interest Declarant had no motive to falsify Note: declaration against interest, declarant unable to testify Distinguish: declaration against interest v. admission DI: before controversy against interest A: any time DI: admissible against declaration, successors in interest A: against declarant DI: aware that it is against his interest A: not need to be aware What does against his interest mean? Any interest! Pecuniary, moral etc Act or declaration about pedigree Actor or declarant is dead or unable to testify Declaration by person related to subject by birth or marriage Between declarant or actor and subject shown by evidence other than such act or declaration Act or declaration was made ante litem motam, or prior to the controversy Family reputation or tradition regarding pedigree Witness must be a member of family by consanguinity or affinity Reputation or tradition existed ante litem motam E.g. wedding ring, says name of spouse and date of marriage Comm

(5) Common reputation reputation existing PRIOR to the controversy (6) Part of the res gestae o Human assertion on the occurrence. o If someone says fire its not the existence of the fire, its on the statement that someone said fire o Immaterial w/n the declarant is around to testify o The rule says statements made by a person Equivocal act: o Material to the issue and giving it a legal significance Multiple admissibility o It might not be admissible as dying declaration because he survives, may be admissible as res gestae if made after startling occurrence (7) o o o o o (8) (9) Entries in the course of business Made the entry must be dead/unable to testify Made at or near the time of the transaction Position to know facts in the entries Entries made in his professional capacity or in the performance of a duty Entries made in the ordinary or regular course of business or duty Entries in official records Commercial lists and the like Learned treatises Instance of discretionary judicial notice E.g. wigmore on evidence Testimony or deposition at a former trial

(10)
o o (11)

22 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

7.

Opinion Rule o GR: opinion not admissible in evidence o EXCEPT: Expert witnesses Identity of handwriting of a person (Sec 22 rule 132) Mental sanity of a person, if the witness is sufficiently acquainted with the former or if the latter is an expert witness Emotion, behavior, condition or appearance of a person he has observed Ordinary matters known to all men of common perceptio a. b. Opinion of expert witness Opinion of ordinary witness

8.

Character Evidence Note in Sec 50 on ordinary persons: there must be PROPER BASIS GIVEN What is character? o Note when you can contest etc. o Note how you can prove etc a. b. Criminal cases Civil cases

9.

Rule on Examination of a Child Witness (A.M. No. 004-07-SC) a. Applicability of the rule it now applies to non criminal cases Under Sec. 1, it states, applies to a accused/ victim of , or witness to a crime b. Meaning of child witness Person below 18 at the time of giving testimony

c. Competency of a child witness Judge may conduct preliminary examination on his competency (Voir Dire Examination) Pp. V. Bisda. The determination of competence rests primarily with the trial judge d. Examination of a child witness

e. Live-link TV testimony of a child witness Sec. 8. Examination of a child witness GR: Open court Exception (Sec 25). 1. Live link television in giving testimony. Applied for by the Guardian ad litem/ child himself (5 days before the trial date) 2. Para (d) the accused may be excluded from the trial it his conduct/ presence causes fear to the child. NOTE: Exception to rule of the right of the accused to be present. 3. Videotaped Deposition. 4. Para (b) Trauma must be of such kind that imparis the giving of testimony. Accused may likewise be excluded from the taking of depositions 5. Para(g) (4). Court may provide other conditions in taking of video taped depositions based on BEST INTEREST OF THE CHILD and consti rights of the accused 6. Use of Depositions. Sec 24 c? 7. Newly discovered Evidence (In normal cases, it is a post judgment remedy). In this rule, even while the case is pending, additional videotaping for newly discovered evidence may be made. 8. Hearsay Rule Sec 28 Note: When child is unavailable, statement must be corroborated. This is like res gestae. Somebody heard that the child is killed f. Videotaped deposition of a child witness Sec. 29. Admissibility of video taped testimony. This section provides for the authentication of video taped testimony. This is because the testimonies are given outside of the court g. Hearsay exception in child abuse cases h. Sexual abuse shield rule Sec. 30. SEXUAL ABUSE SHIELD RULE. This is an exclusionary rule. Also relate to character evidence (a) Inadmissible evidence. The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse:

23 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

(1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and . (2) Evidence offered to prove the sexual predisposition of the alleged victim. . (b) Exception. 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 shall be admissible. . A party intending to offer such evidence must: (1) File a written motion at least fifteen (15) days before trial, specifically describing the evidence and stating the purpose for which it is offered, unless the court, for good cause, requires a different time for filing or permits filing during trial; and (2) Serve the motion on all parties and the guardian ad litem at least three (3) days before the hearing of the motion. Before admitting such evidence, the court must conduct a hearing in chambers and afford the child, his guardian ad litem, the parties, and their counsel a right to attend and be heard. The motion and the record of the hearing must be sealed and remain under seal and protected by a protective order set forth in Section 31(b). The child shall not be required to testify at the hearing in chambers except with his consent. Sec. 31 para b. Important daw para (g) (g) Records of youthful offender. Where a youthful offender has been charged before any city or provincial prosecutor or before any municipal judge and the charges have been ordered dropped, all the records of the case shall be considered as privileged and may not be disclosed directly or indirectly to anyone for any purpose whatsoever. Where a youthful offender has been charged and the court acquits him, or dismisses the case or commits him to an institution and subsequently releases him pursuant to Chapter 3 of P. D. No. 603, all the records of his case shall also be considered as privileged and may not be disclosed directly or indirectly to anyone except to determine if a defendant may have his sentence suspended under Article 192 of P. D. No. 603 or if he may be granted probation under the provisions of P. D. No. 968 or to enforce his civil liability, if said liability has been imposed in the criminal action. The youthful offender concerned shall not be held under any provision of law to be guilty of perjury or of concealment or misrepresentation by reason of his failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him for any purpose. Records within the meaning of this Sub-section shall include those which may be in the files of the National Bureau of Investigation and with any police department or government agency which may have been involved in the case. (Art. 200, P. D. No. 603) Relate to Rule 132. sec 3 para (5) Rights of Witnesses. Youthful offender may not be compelled to answer previous final conviction since he is covered by the protective order TAKE NOTE. Things he forgot to mention Adoptive Admissions had been covered as an exception of hearsay rule. Estrada did not dispute the actions of excorting him out of office? A charged criminally in MTC, motion to quash, certiorari to RTC, denies motion to quash. What is the remedy? Appeal na since the denial in the RTC is already a final disposition Republic v. Nogrino. Summary Cases under the Family Code are final and executory. No appeal may be taken especially the Declaration of Presumptive Death. Thus the remedy would be certiorari since the law provides that certiorari is present t=when there is no adequate remedy at law. i. F. 1. 2. Protective orders

Offer and Objection Offer of Evidence When to Make an Offer How is evidence offered? Testimonial offered twice: must offer testimony and state matters for which he is being called (at this point there can be an objection, it can go into the competency of the witness. As to his ability to testify. Ground for incompetency would be mentally incapacitated. Different from competency (exclusionary rules + privileged comm.). second instance is when oral testimony is offered if every time a question is propounded, every question is a new offer. This is because under the rules, every time a question is raised, an objection can be raised. Heirs of something.. 522 SCRA 410 As far as documentary, offer made after completion of testimonial evidence o Within what period? On the very day that call last witness o UNLESS the court in its discretion allows you to make formal written offer o Parocha case: if a party desires to make a written formal offer of evidence, proponent must file a motion for extension of time to file written offer of evidence. Motion must be set for hearing. The motion is a litigated motion. You must also pay the necessary fee. The written formal offer of evidence is allowed only if 100 pieces or more. In other words, if less than 100 pieces of evidence, must be made orally. evidence not formally offered should not be considered in judgment

24 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

o o 3.

why specify reason for offer: so you can interpose objection already but also multiple admissibility, if one complies w/ rule on admissibility, evidence still admissible

Objection you can object to evidence in terms of ADMISSIBLITY, but NOT for the purpose it is offered o e.g. you can object to a contract if it is not admissible for violation of best evidence but as to the purpose it is offered, you cannot object because this is up to the court o for admissibility object o for weight cannot object, up to court to decide difference btwn admissibility and weight and sufficiency, it is the judge who decides the weight to be given when can dispense w/ offer o summary procedure o judicial notice o lost objects??? o ? o Sec 4 rule 1 o Consistently offered by the witness (see riano) Objections, when to make o Oral offer: immediately upon offer particularly as to competency of witness o Questions propounded to witness when propounded and ground reasonably apparent Requisites for valid objection: o Must make objection o Specify the ground o Timely made If witness answers before objection b/c too fast, move to strike! But still specify ground Note that judge should not ask counsel to explain immateriality. If the counsel objects based on something like violation parole evidence rule, the judge can ask counsel to explain remedy for objection is motion for reconsideration! After a party has offered his evidence, adverse party must be given an opportunity to object to the formal offer. The court must make a ruling on the formal offer. So when objecting the party must also state a ground so the court can rule. court must make a definite ruling When there is incomplete testimony o Generally disregard o BUT if not complete b/c fault of the cross-examining party, admitted If cross of a witness is only partial, with no fault to the party doing the cross. o Matters which were taken up in the cross, are admitted, the others are striken out Repetition of an Objection Ruling o Should be made immediately! o (something about striking things out.. Lala did you get this? haha) EXCEPT: multiple grounds of objection o Reason; you do not know until you write the decision w/c are relevant/irrelevant b/c if you sustain the objection the witness will not answer so you are in effect suppressing the evidence If you disagree with the ruling on objection, raise as an error on appeal. On appeal the court can affirm/overturn the decision. One exception to ruling immediately is when the judge needs time to study the questions raised, but no matter what, the ruling must be made during trial Striking Out of an Answer When motion to strike o Witness answer prematurely o Unresponsive answer o Incompetent, irrelevant, or improper answer o Incomplete testimony (no opportunity to cross) o Conditionally admitted evidence not substantiated later Formal objections: framing of questions Substantial objections: pertain to admissibility Tender of Excluded Evidence Tender of excluded evidence o Definition o Purpose

4. 5.

6.

7.

25 | Remedial Law Review (Evidence) Combined Notes of K. Relopez, J. Britanico, C. Tan, and L. Rosales Justice Alex Gesmundo

Ateneo de Manila University School of Law

o Tender of testimonial evidence name and circumstance of witness, present witness in court, state substance of testimony (if not do this would be able to fabricate) o Documentary evidence offer, identify, attach in the record G. Supreme Court Rulings as of December 2010