Vous êtes sur la page 1sur 25

The Kelly Notes, Evidence 2006

EVIDENCE Avena June 15, 2006 Evidence is the means, sanctioned by these rules, tending to prove in a judicial proceeding the truth respecting to a matter of fact. The rules of evidence shall be the same in all courts, and in all trials & hearings except otherwise provided by law or these rules. Evidence is admissible when it is relevant to the issue and is not excluded by law or these rules. If your alibi has been accepted, will you still submit an evidence to that fact? Our legal system is such that we want to establish things, and for that wee use evidence. In evidence, use COMMON SENSE. Human Nature, Logic. Experience, US allows Subic Rape Trial. Senate Hearing on Garci Tapes Inquirer 12 Angry Men It starts in the jury duty. 1st degree murder charge. 12 to nothing either way. One didn't want to vote. jury 1 - just feels that he is guilty 2 - had a notebook, with facts. Circumstancial evidence. 3 - still circumstancial 4 - looking for a motive. Issue: At 10 o clock, he said he was watching a movie, and that he never saw it again. No one in the theatre could remember seeing him. similar knife - coincidence? They're not judging "guilty" on the basis of the evidence, but for personal reasons. The 2nd vote of NG was made on the basis of giving the main dissenter some moral support. They tried out the testimonies of the two witnesses. About the woman across the street, and the old man living on the same building. June 27, 2006 The rules of evidence shall be the same in all courts, and in all trials and hearings except as otherwise provided by law or these rules. So does the Rules of Evidence apply on Senate Inquiries? It is a hearing in aid of legislation. No, it does not apply, because Rule 1 is only meant to apply in courts of judicial character. Generally it does not apply, unless they provide it to be suppletory in character. The rules of court is mandatory in our judicial system, not on executive and administrative bodies. Quasiadministrative bodies, quasi-judicial bodies. They are not courts of law, not included in Article VIII of the constitution. They hear cases, decide, settle controversies. The Barangay, its not a court, not judicary, it doesn't settle controversies (but issuing a decision). It merely mediates the parties into reaching a solution.

What does the barangays issue? Is it a part of our legislative system? What about the no-smoking? It is the municipal board (legislative body in the local level), provincial board, sangguniang panlalawigan, sangguniang pambayan, panglungsod. Are affidavits admissble proceedings? Yes in the barangay

Evidence admissible according to form: A. Object B. Documentary C. Testimonial It is not admissible evidence in courts yung affidavits, because it is a mere hearsay evidence. Lugi ka if it was not cross examined by the other party. Civil Procedure. Summary proceedings - where affidavits are allowed. Promulgated by the Supreme Court. The constitution is empowered by the constitution to make rules of procedure. Pursuant to BP 129 (judiciary reorganization act), where the Congress said that Summary procedure is allowed. Read: Summary procedure Other classifications: There is a right or obligation and there is a breach/violation thereof. It is the elements of the crime that shall constitute the fact in issue. In the subic case, the issue is: Is there or is there no rape? (question of fact) How do you define relavance. Factum proobandum - ultimate fact to be proven factum probans - is the evidence that will be presented to prove factum probandum What is the difference between evidence and proof? proof is the result of evidence

Procedure is important for order, prevents anarchy. When did we become a Free Country? During the Commonwealth. However, we were still under the Amerricans, so we weren't free We were only free in 1946 when we were free of all influences. So why are we celebrating june 12? See the Tabayoyong Incident in the News. Under the constitution's Bill of Rights -> based from the Magna Carta of 1215. These became the amendments in the US constitution. Remember in democracy, sovereignty resides in the people. Exclusionary Rules -> any violation of our laws. Rules of Court Exclusionary Rules: 1. Rule 4200, Wire Tapping Act defines Wire Tapping as a wire to be tapped. Listen in, Record, Possession

The Kelly Notes, Evidence 2006


Evidence - is the means sanctioned by these rules, of asceraining in a judicial proceeding, the truth respecting a matter of fact. Hierarchy of Evidence Proof beyond Preponderance Substantial - such evidence that a reasonable man shall find to be substantial to prove... Factum probans - it should be relevant to the Factum probandum because it is the means to establish Factum Probandum Direct - proves the fact in dispute without the aid of any inference. Substantial - proof of fact which taken singly or collectively, the existence of the particular fact in dispute maybe inferred as a probable consequence. 4 ways to win case without presenting evidence 1. Judicial notice of a fact, and the fact makes you win, you don't need evidence. 2. Admission 3. If there is a presumption granted by the law on evidence. 4. Res ipsa loquitur - the law provides the conclusion for you. That there is a negligence on the part of the accused. Objection on evidence - relevancy - competence A document is not presented in court alone. You have to identify it and authenticate it. Unless tehre is a presumption under the law. So usually if you have to present ourcontract, there is a witness, to identify, and affirm its truth. Fake document: spurious, not genuine. The receipt will only show you that you bought the item, but what you need is a manufacturer's attestation that they really did make it. Evidence - due execution by the parties. Then it becomes authentic. Usually the notary public attests this. It can be anybody that saw the hand who affixed Object as Evidence - addressed to the senses of the court, It is exhibited, examined and viewed. Henry fonda' showing the 2nd knife rebutted the presumption that the knife is unique,a nd could have been bought by anyone. (so the 2nd knife is henry fonda's) - eyeglass marks on the woman witness. their signature there. The contract of loan - not direct evidence of the contract. Dapat the testimony of a person who saw the signing ofthe contract of loans. Circumstancial evidence You heard gunshot, saw a person running, then when you peeked, you saw a dead man outside. You smell the gunpowder and saw a gunshot wound. The conclusion in your mind is that he was shot, but the man who ran away. Judicial notice on Thursday (onthe subic rape) June 28, 2005 Wire-tapping If they start prosecuting that they are wire-tapped, it would just point out that they are the parties in the taped conversation! Which is incriminating. Court Order - is the only way to allow wire tapping, mostly about national security. Circumstantial - collateral evidence that is relevant. Primary Evidence - affording the best certainty of the fact in question. General rule is, what is your should present to the court is primary evidence, that will best support the factual proposition that you are preenting. It is only when that primary evidence is not available, and that the circumsntance are not justified that you can possess secondary. Primary evidence - Rule of Exclusion, if the grouds for admission of the secondary evidence . --> lalabas incompetent evidence. 12 Angry Men - testimonial and object evidence.

Documentary Evidence - The floorplan was a mere sketch by witness - it was showing the contents of the apartment. What is being displayed is the contents. Testimonial - of the old man, and the woman across the street. When he re-enacted the whole Demonstration, it is an object evidence. scene.

"I'm going to kill you" - the fact of dramatizing it, it becomes object. (its the nature of the sound) Pinakita sa jury yung pag-grab on the shirt --> becomes object evidence Depression on the bridge of the nose: material, or collateral? Collateral. Relevant,

What if far-sighted? Immaterial, because what is being sought to be proved is reasonable doubt? NO! Its irrelevant! Objection your honor, yit does not tend to prove or disprove the probability of the matter in issue. The backgroudn of a person - it doens't sknow whether or not he killed a person. Scientific evidence showing inclination for violence - it is a relevant evidence. It is admissible. (bakit? On the basis ba of collateral evidence?) The angle of the knife, how they would stab a taller man -> object evidence. Subic rape case: "the girl rubbing her crotch on the buttocks" -> relevant, Collateral matter?. What its trying to prove is that if she behaved hat way before the rape, then she surely must've said yes to the sex act too. It tends to a reasonable degere to establish the probability or improbability of a fact in issue. STRICTLY SPEAKING -> doesn't follow. Its cultural biias at work.

The Kelly Notes, Evidence 2006


"I am done" that she did something, andn she was not drunk enough to know that she's finished doing that. Aballe v. People 183 SCRA 196 - the general rule is, if you have a n extradijudicial confessinno that doesn['t comply with the requirements, it is inadmissible bec. Incompetent. BUt if the accused made a confession spontaneously and he was not in custodial investigation, then it is admissible because there is no constitutional provision made. The moment a person becomes a suspect, custodial investigation begins. Ask that. People v. Pasudag. Unlawful search and seizure. There's this policeman dispatched by Chief of Police. To stop jueteng, but whta he foudn was a marijuana plantation. SO he asked the next store to ident who was the owner of the plants. Mr. Pasudag was asked to signed a receipt that proves that he was the owner (without the atty). It was not admissible because he was a suspect at the time the policeman asked the sari-sari store. AT that time, he should've had an attorney. Exercises: 3 stages 1. Verbal admission at the start (spontaneous) admissible 2. Extrajudicial confession in custodial investigatioon - not admissible 3. The knife - admissible; physical act. But ma'am said inadmissible. Because it came ater the fact of confession in court. Find: case of the gun (security guard), and the wallet, where he pointed it out. T-shirt: admissible because it was goten before the unlawful confession. The reckoning point is the verbal confession. July 4, 2006 Can the MTC take judicial notice of ordinances. Yes, only within the territorial jurisdictions of the courts. RTCs? Generally No, but there are cases where it will be upheld: 1. When required to do so by statute 2. In a case on appeal before them, and wherein the inferior court tok judicial noice of an ordinance involved in said case. 3. What they ought to have known as judges because of their judicial functions. Foreign laws: generally not be taken judicial notice of and have to be proved like any other fact. EXCEPT: (1) where said laws are within the actual knowledge of the courts as they are well and generally known (2) they have been actually ruled upon in other cases before it. (3) processual presumption - it is presumed that the foreign laws are the same as in the Philippines, if the contrary is not proved. It is beyond our territorial laws, jurisdiction and we aree not bound to know. In Pleadings: if amended, the new one supersedes the old one, and the contents of the latter are considered extrajudicial admissions and must be proved by the party who relies thereon. In supplemental pleading - it is not superseded and co-exists with the new one. admissions therein considered as judicial admissions. General rule: Judicial Admissions cannot contradicted. Admissions are binding on you. (a) you never made them at all - stenographer error (b) palpable mistake Pre-Trial Brief - singlemost important pleading that will pave the way for a successful trial. (R 19 Sec 6) (a) a statement of their wilingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof. (b) summary of admitted facts nd proposed stipulation of facts (c) the issues to be tried or resolved (d) the documents or exhibits to be presented, stating the purpose thereof (e) a manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners (f) number and names of witnesses and the substance of their respective testimonies. When does custodial investigation begins - once a be

person is considered as a suspect, ,and the rights of the accused and in custodial investigation. A. Police lineup - right to counsel attaches. B. Right against self-incrimination only applies to testimonial evidence, but not object evidence. There is a right not to be coerced, forced to testify aginst himself. Because it is a cruel and unusual torture. Article III Sec 12 -> only applies to custodial criminal invesetigations (people v. Ayson) Essence of inadmissibility - not according to classification, but you are compelled to use your brains to incriminate yourself. Re-enactment: there should be counsel because there is use of intellectual faculties. T/F: Article III Sec 12 applies only to cusodial, not prelimminary investigation. TRUE. T/F: evidence that is relevant is always admissible (F, bec. It could be incompeteent) 2. Friends a and b quarerelled nd engaged in a fistfight, as a result of which B broke his neck and died. The charge in the info was homicide. Athe the trial, prosec seeks to introduce evid that A is a champion bantamweight boxer. Admissible? 3. Is the admission of B that his care could have scratched the car of neightbor A during their conference before the barangay lupon constitute evidence and is thererfore admissible, considering that Rule 128.2 says that rules on evidence apply onlyh to courts and trials and hearings? (yes, admissible because it should be either relevant or competent, but these only applies to the rules of court) Yes, it is admissible because of an extrajudicial admission. 4. "presidential cousin" A makes admissions incriminating the president during a senate hearing, which hearing was conduced using the inquisitorial method. Admissible? Yes. There is no constitutional violation which says admissions made in such proceedings will be

The Kelly Notes, Evidence 2006


inadmissible. No violation of due process. Because you have the right to shut up. 5. Who can change evidentiary rules? Supreme Court and Congress. 6. In the MTC, affidavits are allowed as testimonial evience (in lieu of real testimony in open court), but not in the RTC. Is this not violative of R 128.2? No, its clear in 128.2 that the rules of evdience shall be the same, but it may be EXCEPT as OTHERWISE provided by law or these rules. 7. A sued B for the principal of BB's verbal loan of P1M, but his only evidence is his copy of the receipt that he had been issuing for the monthly i nterest payments of B. B's lawyer objected to these receitps when A tried to present them at trial, arguing that under A 1956, CC, stipulation as to intererst is void if not in writing. a. Rule b. What is the role of A1956, if any If the interest does not exist, how can you use it to prove the principal? Objection! Irrelevant! That there is a receipt is an admission that there is a principal. Hindi ka sira ulo na may principal. 8. Relative positions of cars that collided is inconclusive as to fault. Driver A has no license. Is this signifiadnt evidentiary material? There is a violation of the traffic rules and regulation, and there is a presumption of negligence. Objection: relevance or competence. This is the way to block the presumption of negligence. Irrelevant. No proof that without license is inconclusive as to fault (relying on presumption which is unfair!) 9. Mr. B was a bystander at a corner, hit by a bullet fires drom the gun of your client Mr. A, owner of the sore at the same corner. Would you file a dumurrer if the prosecution merely presented evidence showing that: a. Mr A's gun was fired while in his Why? possession, b. As a result, B was injured? No, because of res ipsa loquitur. The facts are enough to show that A did it. Remember, preponderance langn sa Civil Case. 10. One nice summer afternoon, you found a teenyweeny bit of rubber sole flaoting in your botle of Coke. Would you have any case against the company? Yes, strict product liability of the manufacturer. If sa sari-sari store, breach of warranty. Presumption of negligence via Res Ipsa Loquitur. The fact na madumi, there is negligence kaagad. 11. As you gorged on your birtday cake with friends, your tongue felt like the pinpoint of a needle embedded in the icing. Would you like to use? Whom? What case? Cause of action? subject to cross-exam, its worthless.

July 10, 2006 In the answer, there was consideration. But during the testimony in court, there was no consideration. The court said, "An answer is a mere statment of fact which t he party filing it expects to prove, but it is not evidence". The court made an error on this one. Rule 129 Sec. 4 on Judicial admissions states that an admission does not erquire proof, thus binding against him. The rule on judicial admission is invoked against the adversary. But in this case, the disparity in admission was committed by the party and was not objected to by the plaintiff. Lapida - the best evidence rule does not apply. The real issue is "sino yung nakalibing", not "ano ba yung nasa lapida". It tries to prove something else. The factum probandum is the corpse, not the contents of the lapida. When the subject of inquiry is something other than the contents, 3 choices: 1. Object 2. Documentary 3. Testimonial. In the Airplane passenger case, probandum is the breach of contract. the factum

July 6, 2006 Homework GORDNER v. CA 8/31/84 The best evidence rule is a rule of exclusion. Then you cannot introduce testimnial, but you could introduce object evidence and original document. Original Of a Document a. The original of a document is one the contents of which are the subject of inquiry. b. When a document is in two or more copies executed at or about the same time, with identical contents, ,all such copies are equally regarded as original. c. When an entry is repeated in the regular course of business, one beng copied from another at or near the time of the transactiion, all the entries are likewise equally regarded as originals. The general rule is: the copies are excluded. Documents (R 130 Sec 2) 132, if public document is in question, the original remains in the government office, what you'll have is a certified true copy. Affidavit does not talk, its a document but if its not

The terms are in the contract which is in writing, so you should present the written material itself (original). Parol Evidence. Present the ticket, but does the best evidence rule apply? Can you object if the ticket presented is not the original but a photocopy? In the ticket, it becomes the subject of inquiry whether according to the terms, there was indeed a nonfulfillment or breach of those terms. Intermediate Factum Probandum - naging subjecct of inquiry yung contents that's why the BER applies. What about the boarding pass? Original or

The Kelly Notes, Evidence 2006


photocopy? Original. (there is a discrepancy in the ticket and the time of departure) There is no heirarchy among the three forms of evidences. There is no exclusionary rule amongst them. 1. There is no best evidence rule respecting to the three forms of evidence that will lead to the exclusion of others. 2. However, the best evidence rule only pertains to documentary evidence. Is the receipt a documentary evidence? To prove the contents na talagang merong binayaran, sino, date at how much. But is it evidence of the terms of the contract? No. (irrelevant to) It is only relevant to prove the factum probandum of the existence of the contract. But overrall, you can prove the insurance contract by testimonial evidence. July 18, 2006 PAROLE EVIDENCE RULE Sec. 9 When you invoke the PER, you are objecting to is the presentation of evidence not embodied in a written document. Because these will tend to 1. Vary, or 2. Contradict a completet and enforceable written agreement. Evidence Aliunde: these are evidence outside of the written agreement. But there are 4 exceptions to Parole Evidence Rule. At the start, if the plaintiff proves the contents of the written agreements in court, and the defense did not put the documents in issue in his reply, deemed waived na yung Parol evidence rule and the defense cannot submit evidence contrary to the contents of the written agreement. Sec. 9 (3), the validity, it is not really an exception, since its not hoping to modify, explain or add to the Art. 1373. If some stipulation of any contract should admit of several meanings, it shall be understood as bearing that import which is most adequate to render it effectual. (1284) Art. 1374. The various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly. (1285) contents of the document, but in fact attacking the validity of a document. Two parts of teh parole evidence rule: 1. Tehre is an agreement 2. And its in writing Even (d) is not a genuine exception. Since you are proving another contract than the original one which was put in issue. Another exception is, you can present evidence if what you're trying to prove is another contract?? huh?? Tehre is nothing in the parole evidence rule which tells you that the original is in court. INTERPRETATION OF CONTRACTS Art. 1370. If the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control. If the words appear to be contrary to the evident intention of the parties, the latter shall prevail over the former. (1281) Art. 1371. In order to judge the intention of the contracting parties, their contemporaneous and subsequent acts shall be principally considered. (1282) Art. 1372. However general the terms of a contract may be, they shall not be understood to comprehend things that are distinct and cases that are different from those upon which the parties intended to agree. (1283)

Art. 1375. Words which may have different significations shall be understood in that which is most in keeping with the nature and object of the contract. (1286) Art. 1376. The usage or custom of the place shall be borne in mind in the interpretation of the ambiguities of a contract, and shall fill the omission of stipulations which are ordinarily established. (1287) Art. 1377. The interpretation of obscure words or stipulations in a contract shall not favor the party who caused the obscurity. (1288) Art. 1378. When it is absolutely impossible to settle doubts by the rules established in the preceding articles, and the doubts refer to incidental circumstances of a gratuitous contract, the least transmission of rights and interests shall prevail. If the contract is onerous, the doubt shall be settled in favor of the greatest reciprocity of interests. If the doubts are cast upon the principal object of the contract in such a way that it cannot be known what may have been the intention or will of the parties, the contract shall be null and void. (1289) Art. 1379. The principles of interpretation stated in Rule 123 of the Rules of Court shall likewise be observed in the construction of contracts. (n) July 20, 2006 The particular provision or intention prevails over the general, but this is the oppostive of the primary and general acceptation of terms. This general meaning, the rationale is people usually have a meeting of the minds for the general terms. The presumption: yung naintindihan nyong dalawa. Natural Law - in laws of nature, concept of right and wrong. Two kinds of people in Sec 21: (a) whose mental condition (b) children whose mental maturity Torres v. Flores - all people are presumed to be sane, but this is reversed, ,when there is a history of mental illness,

The Kelly Notes, Evidence 2006


then he has to prove that he is in a lucid interval. Statet whether true or false The court can take mandatory judicial notice 1. That a death certificate proves the fact of death of the perso nthat it certifies as dead FALSE. 2. Of the contents of a municipal ordinnance 3. Of the contents of the bill of sen. Osmena calling for the abolition of the PCGG FaLSE, this is meerely a proposal 4. That former pres. Marcos fled to hawaii in 1986 TRUE, because of political history of the philippines 5. That the Philippines has an extradition treaty with the USA TRUE 6. That a polygraph test is not conclusive TRUE, its from a case, this is an official act of the legislature 7. The contents of UN Geneeral Assembly TRUE, law of nations 8. The massacre of some membersof the Royal Family of Nepal TRUE, political history 9. The releif of Reynaldo berroya as inteligence chief ot eh PNP TRUE, official acts of the executive 10. The supreme court resolution constitutingthe mandatory continuing legal education committee for the prpose of implementing Bar Bmatter 850 TRUE, official acto the judiciary 11. That the parties in a suit for declaration of nullity were married by and before him in a civil wedding ceremony. FALSE. The judge is already using his personal knowledge, and the judge may not use this. the judge can only look at the evidence before him. Note: there are 3 things to take notice here. He is taking judicial notice, not only of the wedding, but also trying to recognize who they are, rememberin ghte past and comparing them. The conclusion is that he realized he is the same couple he married. 12. Of the contents of the complaint before it was amended by the plaintiff FALSE B. Udner sec 2, Rule 129, the rppesiding judge may take judicial notice unilaterally, without the need of a hearing 1. Of the allegations in no. 1, a, 4,6,8,10,11,12 1a. 6, yes 8, yes 10, yes 11, irrelevant 12, yes, judicial functions 2. The fact that his neighbor owns a doberman no, because this is personal knowledge. 3. Of the fact that the Philippines is one of the most corrupt countries in the world. No, there is public debate. 4. Of the records in another case in his sale involving he same parties about anotherr lot No, becuse even if this is oughtto be known by him in his judicial functions, there is personal knowledge. This is two separate cases.he cannot connect two separate cases. He is only obliged to know the facts before him, onlyh as limiteed to its case. 5. Of he records of preliminary investigation in a criminal case pending before him. Not, this is an executiecv function of the Prelim investigator 6. Of the deposition in perpetuam rei memoriam (to preserve the evidence you already know) that preceded the filing of a civil case pending before him. Technically this is not discoery inn he real sense. This is archived in the court. No, because this is an entirely different proceeding independent to the civil case to be i nstitutied. 7. That the 1987 constitutional right to protection

against warrantless arrest and unreasonable search and seire applies to inhabitants of t he Philippines, wehther a ctizien or not, whethe a resident or not. No, actually mandatory nga. July 27, 2006 Difference between Privilege. Marital Disqualification or

Marital Disqualification 1. Of the spouses is party to the action 2. The marriage is existing at the time the testimony is offered. Marital Privilege 1. It can be claimed whether or not the spouse is party to the action 2. Can be claimed even if the marriage is dissolved. Why is there a distinction? In disqualification, the witness itself ang bawal maggsalita. If privileged, you are not disqualified as a witness, but once you start talking about someething privileged. What the reason of the Sec. 23 rule: to protect the beneficiary of this rule, the parties or the assinors are barred against talking about any matter of fact occurrin before the death, or insanity. Babao v. Perez The rule applies regardless whether the deceased died beore or aafter the suit against him is filed, provided that he is dead at the time of the testimony. Doesn't apply in the following cases: 1. When the person to testify is not party in interest 2. The testimony is offerend to prove a claim less than what is established 3. Fraudulent transaction. Rational respect to Sec. 22 Against: conjugal harmony For: the temptation to perjure is strong. So what do you mean by "affected spouse"? 1. A | x H v. W

The Kelly Notes, Evidence 2006


of other persons. 2. 3. W | x H P v. v. A H | W EO 464 (Sec 24, e) As for public officers, if they are dealing in anything illegal, they are not clothed with this privilege. But even for a past crim committed, the lawyer is not allowed to divulge. Future crimes are not protected because its preventable. The admissins of a person under custodial innvestigation may not be contradicted unless shown to have been made through palapable mistake, or never made at all. (FALSE, because a custodial investi is an extrajudicial thinig) A party must prove allegaations contained in a pleading that he later supplemented witth another. (FALSE, because allegations contained in a pleading e. A party need only present in evidence, but need not prove the truth of, a judicial admission (False, no need to present it in evidence, because an admission verbal or written made in the dcourse of the proceeding does not require proof) Because the court takes judicial notice of what tkaes part in the judicial proceedinngs. Andun na. But do you have to prove the truth? f. A judicial admissiion willl be admissible in evidence only if it comes from the adverse party because otherrwise it will be self-serving. In the prosecution of accused A fo the rape of his daugher D, there were only two witnesses - the latter and A's sister S, both of whom testififed on the facts showing carnal knowledge. Having sat that trial, the judge (a neighbor of a who has personally known A's family for a long time ) took judicial notice of the fact that D was inflicted with Down's Syndrome (ie. Was a mongoloid) and convicted A for rape. ANy comment on the any evidentiary rule? Admissible, because the judge was not thinking in his personal capacity, but he was using his observation. In the case of Peoek v. H, for the negligent shooting death of S (son of accused H and W), the prosecution presented W as its first witness to testify against H. Admissible? Yes, because the crime was committed against direct descendants. In the case of People v. H for the ngeligent shooing of S, H testitfied in his own favor and pointed to his wife W as perpetrator A. The preesecutor did not anticipate that this was H's defense, so he was not able to imagine objecting (much les brining W to court). THe prosecutor now ants to present W on rebuttal, to testify that it was rerally H, not her, w ho negligently caused the death of their son. a. May H now validly object to W's testimony? See People v. Fra b. Granted H's objects, may W validly argue against H's objection on the ground that the exception in Rule 130.22 applies in her favor and not H? B. Granting W happens to be in the courtroom, may she validly object (through the prosecutor or otherwise)? See: People v. Francisco. August 1, 2006 Ong v. Carr This is a Sesc 23 situation, all the elements are present. But the court did not apply the prohibition unde Sec 23, and he can testify because tehre was fraud on the part of the deceaesd, and it will be unequitable to prohibit such person from testifying as to the fraud. The plaintiff did not take the witness stand until after the existence of fraud on the part of Carr had been establisehd beyond a doubt and not by mere preponderance of evidence. The fraud, too was evidenced by evidence aliunde, by other testimonies The judge cannot take judicial knowledge of the fact that the child was mongoloid because its in his personal knowledge.

(p. 981) Fraud is the pre-condition fo the live guy to talk. But if the fraud is on the part of the deceased, then he is allowed to talk, provided that the fraud is proven by evidence other than the testimony of this live guy himself. Authentication of documents: 1. Either you saw it being executed. 2. To have others saw it 3. Experts Sec 36: personal knowledge. you can be a witness if you perceived it, etc. Mendezona v. De Goitia The only question re: the receipt was due to certain facts that led the court to conclude that there were dividends for those years. That the court concluded that since it was not received, then such were not paid. The evidence showed that there were other share holders which testified about the share they received. It was proven too that the corporation reaped profits and declared there were dividends. The only missing link to prove is, they did not receive it. It is a 23 situation, A. Life guy suing estate of dead guy B. He's suing it for a claim 3. He wants to prove his claim by himself testifying D. he is testifying as to a matter of fact occuring before death or insanity. In this case, D is not present. In this case, there was no matter of fact (remittance of payment). There was no occurence of any fact testified. On the contrary, it was a NEGATIVE testimony. Non payment is not an occurence. Mendezona v. Ong Chua In Ong, it was a 23 situation, but he was allowed to testify to rectify the fraud of the deceased, for afterall, the fraud has been established aside from his say-so. Estate of a Person has legal personality to Sue (according to Civil Code and Jurisprudence)

The Kelly Notes, Evidence 2006


The pre-condition in Ong Chua does not exist in Mendezona. P. 763 first paragraph regarding parole evidence. Goni v. CA There was already a waiver And Goni was alive and he can rebut There was a counterclaim against Vicente, so his testimony is not barred Although they are heirs, and they receive the proceeds, they merely step into the shoes of the deceased. In cases: Whether heirs, if being sued in their capacity, or as representative of the deceased. Lichauco v. AG&P Does the dead man statute apply? No, because the real party here is the corproation, and the persons testifying are the officers or stockhodlerrs of the corporation. There is no violation of Sec. 23 because the person testifying is different from the corporation. Digests: Disqualification by communication 1. Husband and wife reason of privileged where the testimony of the spouse is offered for or against the other in a proceeding to which the other is a party. And the meaning of "during the marriage or afterwards", afterwards should be taken to mean those cases in which a marriage has been dissolved other than death. More importantly, the declaration of a dying man are admissible in the prosecution of the peerson charged with killing the declarant, as held in this jurisdiction. As to the nature of the declaration, it cannot be said that it was in confidential in nature, because its purpose is for the furtherance of justice in the prosecution of the defendant. People v. Francisco Facts: Francisco was arrested on charges of robbery and was confined. He asked permission to go home to his wife to procure his bail. He was allowed to go with Policeman Pimentel. Pimentel waited at the foot of the house, he heard a scream. Wife was wounded, and he found Francisco lying on the floor with the dead baby, both wounded. Three docs relied on: (1) confessin of Francisco, (2) record made by justice of peace of plea of guilty, (3) rebuttal testimony of Emilia Taladtad. It was found that the confession was admissible, because it was executed voluntarily and spontaneously, as attested by the JOP and Police. It was Francisco who was untrustworthy because of the inconsistencies in his testimony. (1) that he was alone going to his house but later admitting he had Pimentel with him, (2) he imputed the killing of their son to his wife, but he did not disclose it to the justice of the peace because he was afraid of Pimentel. And because they are now trying to controvert the admissibility of the 3 (1) on the ground that his confession was extracted thru torture and violence, (2) his wife's testimony is incompetent in view of the prohibion of the wife and husband testifying against each other. Issue: Whether or not the testimony of the wife is admissible and competent. Holding: Yes. Holding: She is. GO 58, S 58 applies only to cases

Here is a case of a crime proven beyond reasonable doubt. The wife did not testify in the direct evidence for the prosecution. She only testified against her husband after he imputed on her the killing of their son as his defense. It would be an injustice to prevent her from rebutting his testimony and she might subsequently suffer a criminal prosecution, as well as a damaged reputation. By his testimony, the husband exercised the very right which he tries to deny his wife on the ground of marital relations (testifying against spouse). This should be construed as a waiver of objection against her testimony. Reasons for the prohibition: 1. The identify of interest between husband and wife 2. danger of perjury 3. To guard the security and confidences of private life even at the risk of failure of justice 4. Preserve domestic tranquility Exceptions to the prohibition 1. Where the marital relations aree so strained that there is no more harmony to be preserved 2. Where identity of interests disappears DISSENT, Feria: R 123 S 26 only relates to cases in which the testimony of a spouse is offered for or against the other in a proceeding where the latter is a party. So in this case, The husband may testify against his wife since SHE IS NOT A PARTY to the case, ergo not covered by the rule. However, SHE MAY NOT testify against him, because he is a part to the case. August 3, 2006 People v. Francisco: This is not a Sec. 22 situation. But they are saying that People v. Antipolo: The dying declaration: was intended by the husband really for the benefit of the accused. So this is not a communication received in confidence. Alvarez. V. Ramirez Sec. 22 Disqualification by reason of marriage: Reasons:

US v. Antipolo Facts: TC judge refused the widow of the alleged victim of the accused to testify as to his dying declaration. This is on the ground of the fiscal's objection that she is not a competent witness acc. to the rules of civ pro. Defendant argued she's competent, and the exclusion applies to cases where the one of the spouses is a party to the proceeding and the other is called to testify. In this case, (1) the party is not the dead husband but the Republic. And that (2) because he died, she is no longer his wife and may testify. Issue: Whether or not Susana Ezpeleta is a competent witness

The Kelly Notes, Evidence 2006


22 does not apply. You can talk, basis: 1. Magkagalit na naman kayo, sinusunog ka na 2. Estranged na sila Alvarez v. Ramirez For Sec. 22 not to APPLY: 1. Disharmony -> due to the act of arson This falls into the exception in Sec. 22. They just disposed of the case that there was disharmony kaagad. They should have specifically laid down the law first. 2. "estranged" -> irrelevant. marriage or afterwards. because during the C. PCGG now filed a Comment D. Resolution from the Sandigan, denying E. SC, Kapunan They took judicial notice of: that the lawyers were just dragged into the case to squeal. : -> p. 136. In a closely related case, Primavera Farms v. PCGG. This case is completely different case from the present case. It just happened that mario ongkiko was the same lawyer of the State for both cases. Failure to state a cause of action, you have a complaint literally stating right and the violation of that right. Lack of COA, US v. Tin Tong Guim The wife was the accused and testified against the wife. Uy Chico v. Union Life Assurance It is not confidential, because the documents were intended to be used to settle a compromise agreement. In a sitaution where the client objects, tapos confidential, and the atty. Says, " your honor, its not confidential". Who will the court believe? The court said, "tehre were enough evidence on recorod to say that it was not confidential in nature" Very important element: if its not there, prove it! Regala v. Sandigan A (PCGG) Procedure: 1. 3rd amendment complaint by PCGG against Accra 2. Motion to Admit the 3rd Am Compaint ( Rocco's excluded ) B (Accra's side) 1. They filed their Comment / Opposition 2. with Counter-motion, to be excluded from the complaint. Here, the SC confused rule of evidence with procedure. What happened here was pure magic! There is one distinction: The Verdict: August 22, 2006 Difference between Admissions and Confessions: Admissions 1. Statement of fact that does not involve acknowledgemment of guilt 2. Express or tacit 3. May be made by third person and in some cases be admissible against the party. Confession 1. Acknowledgment of guilt 2. Must be express 3. Can onlyl be made by the party himself in some caes bind his co-accused. Sec. 26 merely refers to an act or declarationo as TO a relevant fact. But it DOESN'T say that its GOT TO BE A FACT. I. As to Form An admission: act, omission, declaration. Teh general rule in 26: What if its for him? | Tantamount to MD in favor of ACCRA In their counter-motion, they pleaded atty-client privilege, and equal protection clause

Confession: only declaratioon but acc. To law, its only be in writing, and signed by counsel. II. As to Substance

Even before A sued B for loan, at the time of his making singil, A is going to say, B, you have money na? B says that meron lang ako konti, down muna. Next week nalang. A classmate heard that. Later on, when A sued B, a wanted that classmate to testify. Under Sec. 26, this is admissible andn competent evidence, because therer was a witness. The act, declaration of a party may be given in evidence, ass long as its a relevant fact and against him. (so the witness may tesetify as to the admission of B). That testimony is against his interest is because there is an admission that the debt is not yett extinguished, that there is still something to pay. Imagine the subic rape case: somebody heard her say, "i think i feel tipsy already, but even if, i'll take some more. I still want some more drinks" This evidence is relevant. But is it competent? Yes, based on Sec. 26. The declaration of a party can be given in evidence because it is against her. Admissions have a value on their own. They are very strong in terms of probative importance. This is because there is no motive to say something against your interest. Its not rational. Confessions are merely a specific species of Admissions. You will not admit something adverse to your interest unless it is true. 26-33: How do you know if its judicial or extrajudicial? If its in the court records. Tape recording a conversation: admissible and relevant! Pwede palang gawin!! Wire tapping N/A here becaues it only applies where tehre is a WIRE.

Disqualification: ...in a criminal case for a crime committed by one againnst the other, or the latter's ascendants or descendants.

The Kelly Notes, Evidence 2006


If its extrajudicial admission, it has to be against the party. But if judicial admission....? Does it have to be against the party? No, but these are not admissions anymore, but mere testimonies (if they are in favor of a party) Self -serving declarations are not allowed? There are times, when a person makes declarations in the past that happens to be in his interest. IN that case, would that be admissible in court? YES. Three reasons why a favorable act is not classified as self-serving: 1. At the time the statement was made, it was not made in anticipation of a future litigation (not ante litem mota) 2. A declaration against interest must have beenb made by a person who is either deceased or unable to testify. 3. The declaration must be made against tehe proprietary or pecuniary interest of the parties. You do not compromise Criminal cases is becaues its against public policy, and what you can do is plea bargain. How can you compromise with the people at large? If you keep on compromising, crime shall prevail. Nobody will get punished. Except for quasi-offenses, and those allowed to be. Tax cases: Sec. 28. The rights of a party cannot be prejudiced by an act, declaration, omission of another, except as ;hereinafteer provided GEneral rule does not apply to a testiony of a witness. It applies to an admission of another not prejudicing you. If the admission is done in court, hindi bawal? Situation: Witness makes damning admissions about himself. But the thing is, may madamay na ibang accused. No, section 28 doesnn't apply here. And he's in court. So it is admissible, and 28 does not apply. Admissible against A and W. If naging judicial, pwede na. Anything can happen in court, only extrajudicial admissions cannot bind third parties. Cross-Examine!! Di ka lugi! You can grill him!! Pag extrajudicial, he's outside of court. The rule is, you only dawit youreslf, don't admit for anyone else, but in three situations, sorry, dadwit kayo: 1. Made by a partner, agent - the act or declaration occurred during the partnership - the act or declaration is within the scope of the partnership - the partnership is established by evidence other than the act or declaration 2. Co-conspirator 3. Privy to the party. In these sections, the admissions take the form of acts, declaration, omissions. But section 31 applies to all three, but 29 & 30 only applies to acts for declaratiion. August 24, 2006 Lichauco THe court said that this was not an admission, but rather its a declaration against interest, because the omissioon of the debts in the inventory is against his interest (lugi siya kasi) A declaration against interest is an exceptiion to the hearsay rule. People v. Reyes Reyes - accused turned state witness Austria - re-enactment. Kahit na walang written confession, malas ebidensya. To re-enact the crime, its object evidence. Under the present constitution, that written confession would not have been admissible because: 1. He was not apprised of his rights 2. He's not assisted by counsel. Even if its not admissible, there is still conviction.

10

Yatco The one who objected was the alwyer of Panganiban, not Consunji. Consunji was the one who executed the extrajudicial confession. What is it about hearsay that is connected with this case? The prosecution was trying to present evidence that will be against both Consunji and Panganiban. This is because the confession relates to conspiracy Why did the judge think of conspiracy? Why did conspiracy enter the picture? Because there was only the confession by Consunji as evidence, they want to use it too against Panganiban. SO they have to prove conspiracy so it will be admissible against Panganiban. Alteration of facts: What if MM was talking about VG talking aboutg BP and GMA. MM is saying that he heard VG say that, but he's not saying that he knows BP actually did that. Rhudz: As agaainst BP and GMA, its hearsay. BUt if against VG, then its not hearsay. The personal knowledge of MMM covers the personal knoweldge of hearing VG say something about BP & GMA. SEATWORK: 1. Capt. Mendoza (chief sec officer) of former COMELEC comissioner Garci during the 2004 preelection period, teestified today before the senate regarding VG at the time he MM was acting as such SCO as folllowsduring a drinking spree in the resthoues of gov. Villafuerte in Camarines at which VG and COMELECT officials for the area were present, he heard VG say in substance "Aprub na yung budget na P300 M na binigay ni bong pineda para siguraduin ang panalo ni GMA", and saw VG and the other officials, happy an dlaughing, taost to what he just said.

The Kelly Notes, Evidence 2006


If MM were to be presented by the prosecution in corresponding criminal cases agaianst VG et al fo rthe crimes of bribery, graft , election fraud, would you object to its admissibility. It is admissible because it is relevant to establish the prosecution's allegation of the crime. This testimony by MM establishes that VG is in the plan of the election fraud, bribery and graft. If this comelec commissioner, tasked with enforcing election laws, is in CONSPIRACY to effect the fraud. Thirdly, what indicates conspiracy: Toasting - there is a celebration! These are under oath before the senate, that's why he's not being charged with anything. His statements are entitled to presumption of truth. MM statement shall be hearsay on two levels: 1. Witih respect to BP and GMA, beacuse it is Garcillano who knows of the fact. 2. But garcellano's statement shall make him liable. And VG's statements is an ADMISSION, against his interest. THe admission of a conspirator will be admissible against co-conspirators, if the conspiracy between them could be shown by evidence other than MM's statements. It may be hearsay if you view it in the pot of view of hearsay, but if you view it in ADMISSIONS, it will be admissible, because there is another rule practicable (as to conspiracy, Sec. 30) Umamin si Garcillano eh, yung pag-amin mo, it can be admissible as to the others. Admissiblity is still differernt from Credibility. Even if pumasok, di naniwala ang jduge, panalo ka parin. 2. Beforer this senate sessioons, Michaelangerlo Zuce had likewise testified before the senate to the effect that, among other things, he had distributed enveolopes of money to and coordinated with local COMELE officials in notherrn Mindanao, such as Lanao del Norte, to ensure the victory of Pres GMA in the 2004 Elections Assume that Zuce hereafter has gone abroad and disappearerd. A. In that situation, if this testimony of Zuce were to be presented in the abovementioned criminal cases, would you as defense counsel have any valid grounds for any objection to its admissibility A confession is documentary evidence, as such it is not only presentetd in court, but after all the testimony are presented in court, meron pang offer ng documntary evidence. Testimony is at the time they arer prsented. Documentary is offered after everything has been presented. Offered, then state the purpose. Afterr the offer, there is 5 days to object. Here in yatco, nag-oobject na, hindi pa tapos ang presentatiion of evidence. Was panganiban correct in saying that it is hearsay. It is correct, because the other co-conspirator was not present. Premature, admit muna lahat. People v. Aling He testified in court that the victim was his wife, ergo an admission without the need of proving the existence of the marriage. There waas a confessioon made in open court. Articke III Sec. 12: CONFESSION Applies to EXTRAJUDICIAL People v. Maqueda 1. Confessions to Police 2. Private

11

The confession to Zarate, when he watned to become statewitness, is admissible because Zarate was not police, but a prosecutor. Its no longer a custodial investigation. The prosecutor is not a law enforcer. People v. Domantay Sec. 12 does not apply because the confession was made to the Private persons (in this case, news reporters) Valero was anoumalous, there was once sentence which does not belong -> beautiful case on hearsay. *Res inter alios acta Ladiana - the SC said that the counter-affidavit submitted by the accused during the Prelimnary Invesetigation (not custodial ivesti), shall be admissible against thea ccused. He admitted to firing the fatal shots. But after arraignment, there are different rights that will attach, those for trial. The prosecutior is not police, but a lawyer whose duty is to be in the middle, not to pin you down, but to seek objectively if there is enough evidence to bring you to court. Note: Those who will testify as to eprsonal knowledge, must be also be presented in court for cross exam. Exercise 2. Before this senate session, michaelangerlo Zzuce had likewise testified before the sentate to he effect that among other things, he haad distributed envelopes of money to an dcoordinated with local COMELECT officials in northern Mindanao such as Lanao del norte to ensrue the victory of Pres. GMA in the elections Assume that Zuce hereafter haas gone abroad adnd disapperared.

Police testimonies, under 1987 Consti. They are admissible because the policement thmselves testified, and are therefore are subject to cross exam. Peopkle v. Molas This is really wrong, because its 1993, and should have complied with the bill of rights, and RA 7438, which specifies that confessions from now own: 1. Written 2. Counsel 3. Waived, 4. Signed Thumbmarks are not readily accepta August 29, 2006 Aballe v. People * very important as to the spontaneity of the execution of the extrajudicial confession, prior pa to custodial innvestigation.

The Kelly Notes, Evidence 2006


A. Is t his testimony of Zuce were to be presented in the abovementioned criminal cases, would you as defennse counsel have any valid grounds for any objection to its admissiblity? > Object on the grounds of hearsay, on the groundn that Zuce has disappeared and his testimony is no longer capable of cross examination. > he may have personal knowledge, but inadmissible because he's not there for cross. its Father. (explain nga) The crime was agaginst S, (a collateral of C), not C. You cannot testify as to your collateral. August 31, 2006 11 Exceptions to the Hearsay Rule 1. Dying Declaration 2. Declaration against interest 3. Act or declaration about pedigree 4. Family Reputation or tradition regarding pedigree 5. Common Reputation 6. Part of the res gestae 7. Entries in the course of business 8. Entries in official records 9. Commercial lists and like 10. Learned Treatises 11. Testimony or deposition at a former proceeding. Independently Relevant Statements - independent of whether the facts stated are true or not, they are relevant since they are the facts in issue or are circumstnatial evidence of the facts in issue. - a statememt relevant independently of the truth. If youo are objected on the ground of hearsay answer on the ground that its not hearsay because we're not proving that C really cheated, its not the fact in issue. (its an IRS) Ex: Libel or Slander F cannot invoke this because its upto the child itself to invoke it so as the child would not testify. A. What if M testifies? Parental privilege is not available because it is irrelevant, M not being an ascendantn or descendant Sec. 22> applies also, crime against descendant. B. If the crime was attemtped parricide against C. C. If the crime of attempted parricide against S was witnessed by both C and M, and C reported it, but M refused to testify during trial, can MM be compelled? Yes, she falls under the exceptions in Sec. 22. D. In 2c above, if the crime was reported by a neighbor, can C be compelled? NO, he may not be compelled because, he's the The testimony of A regarding the slanderous remarks of B against C is considered an IRS. The testimony of the slanderous remarks establishes the factum probandum (ultimate fact). The testimony of A is relevant to establish the factum probandum. It is also competent because he heard it. He is not trying to prove the truth of the statement, because it is irrelevant to prove so. ESTRADA v. SANDIGANBAYAN he sued desierto so he would stop the preliminary investigation on the cases filed again him (plunder, // Additonal Cases Seatwork Recap: 1. In the probate proceedings against T, A & B tried to annul the will on the grounds that T was

12

incapacitated at the time it was executed. C opposed and presented 3 letters received by T from his business friends prior to his death. Is this admissible? Yes, on the ground of IRS. This shows the BELIEF of other people as to the state of mind in T. There is a presumption that T was sane & capacitated at the time he received the letters. This evidence tends to point out his state of mind and health at the time he received the letters prior to his death. There is a presumption that he is sane prior to death, and that he must be sane way before he died, including the time he made the will. 2. A was arrested while driving a car on the charges of carnapping. It is A's defense that the car was lent to him by B, who in turn said that the car was given to him by B's father. Is this evidence admissible? YES, on the ground of IRS. A's testimony shows that he was innocent of the unlawful intent to gain in carnapping. An inference may be made as to the state of mind of A, showing good faith in driving the car. The truth of whether or not B really owns the car is irrelevant, because it is A's good faith in driving the car that should be taken into consideration. This is an exception to the hearsay rule. Example (from the reviewer): 1. A was with B when C handed money to B saying "o, thisis for january's rent of land". In B's ejectment suit vs. C, B will prove that C is a tenant so he will have A testify that C handed the money to B. A will also relate what C said. Intermediate factum probandum that C is a tenant. Testimony of A that C handed money to B, and A will quote what C Said. Testimony of A that C handed the money to B is admissible as ordinary testimony. However, tetstimony of A regarding what C said was Hearsay, as A is not testifying as to sometthing within his personal knowledge -> he does not know if its true that the money was indeed forJanuary's rent. Although it is hearsay, it falls under the exception of RES GESTAE, as the acts of handing money is an

B. Granting the above objections is are valid, is there any solution for you as presecution? For purpose of the hearsay rule, the declarant is the person who made the extrajudicial statement, the persno who has the knowledge of the testimony. 1. Use sec. 30, admission by conspirator. 2. You cannot ask a senator to come forward and testify, or else it will be on the ground of hearsay. 2. 15 yr old C witnessed his drunken father F batter h8is 10 year old sisterr S to death, and related it to his mother M. When C was about to testify in the RA instigated by F, F's laywyer invoked parental privilege under R 130.25 Rule.

The Kelly Notes, Evidence 2006


equivocal act, and it does not establish tenancy relatuiuionship. ESTRADA v. DESIERTO Ultimate Factum Probandum: Is whether or not Erap reesigned. Sub FP: won the Angara diary is admissible in evidence to prove the state of mind of ERAP. The Angara diaries were used to ascertain the state of mind of ERAP. The diary entries related to events which were within the personal knoweldge of Angara. The court admitted the contents of the diary in taking judicial notice of such contents. Discretionary judicial notice of matters taht are of opubilc notice. Nobody disputed contents at the time they were happening and were open to public scrutiny which no one disputed, not even by Erap himself. Based on the principle that the court cannot be moree ignorant than the rest of the public they are serving. Admission by silence can be taken against ERAP. Avena: discussion of diary in relation to the hearsay rule does not seem to be proper. Diary should have been taken into consideration with respect to the concept of State of Mind (SOM). Should be non-hearsay based on SOM. Based on hearsay rule: diary would still be inadmissible because the declaratant (Angara) was not available for cross examination. Contents were admitted via judicial notice -> only as to the fact that those statements were made; not the truth of the contents themselves. Avena: it should be hearsay because the truth of the diary's contents are being offered and declaratn himself was not on th e witness stand. Exercises on Sec. 34: 1. F, king of Philipine movies, got into an arguent w ith W, a club waiter, during a night out with friends. IN his physical injuries case against F, W will show that F has been engaged in several previous fisticuffs and brawls through: a. Testimony of previous eyewitness Admissible? No, its not admissible. Gernally, this will be incompetent as violative of Sec. 34. However, it can be admissible under a certain exception under habit. However, the pambubugbog is a habit. B. Court records of previous criminal informations. Admissible? Inadmissible, on the basis of Sec. 34. C. Court Admissible? records of previous convictions.

13

It is an admission, given that he's dead, its a declaration against interest. No difference between the mother and nurse. Class, when you are proving the truth of a statement, when it is subject to hearsay objections, precisely beacuse it subjects the tenor. If its not an admission if its purely hearsaay. To say its admission takes it out of the hearsay and makes it admissible. IRS Slander SOM Applicable dito yun gnot proving the truth of the statement. E. A photograph of LM with C and W at the beach. In solinap, it was rendered inadmissible that it was irrelevant. But if it will show an open and continuous possessiono, then it becomes admissible. F. C's birth certificate showing LM's name in the entry pertaining to the father and signed by W but not signed by LM. Not admissible, the father should be the one to sign. Without the consent of the father. FC: 172, 275. 3. To counter C's claim, the legitimate heirs of LM will present Y who: A. Will testify that actually, she knows that the real father of C is X because she wass their long-time neighbor in Leyte. This does not fall under common reputation, because its not about marriage but paternity. The persons who know of birth: mother, doctors, assisted. The neighbor lacks personal knowledge of the birth. Assert dapat that he waas present during birth. What about cousins? B. Will testify that before he died, X even told us to look for C whom he had not seen ever since W ran

Yes, if it is relevant, because there was already previous court judgment. D. Tabloiod and magazine reprots No, because of hearsay. 2. 40 year old C had brought an action before Lord M's death to prove that she is one of the latter's illegitimate children. State if the following evidences that C will present will be admissible: A. Her motherr's W's testimony that right at his bedside, before he died in the hospital, he had whispered to her: Forgive me, for all these years. Please tell the court I now acknowelge that C is also my CHild. People v. Bernal. There is an admission against interest, being against moral interest. So here, that's the point. LM made the addmission against interest. If he admits having an illegitimate child, it is against his moral interest. B. The above statement of LM in writing signed by LM. Admissible. Declaration against interst. C. The above statement of LM in writing but not signed. Inadmissible, for lack of signature and testimony identifying. D. The testimony of the nurse that she overheard the above statement of LM;

The Kelly Notes, Evidence 2006


away with her to Manila. Admissible? Inadmissible becaues it is irrelevant. In Jison, under the FC 172: 1. Record of birth appearing in the civil registrar or final judgment. 2. Admission of legitimate filiation in a public doxcument or a privaet handwritten instrument. In the absence of the foregoing: 1. Open and continuous possession 2. any other means allowed by the Rules of Court or other special laws. C. Will present photos of her family together with W, X and C ion the beaches of Leyte. Admissible? (samme as the photos of the beach) D. WIll present local school gazetets showing X beside 10 year old C receiving medal as valedictorian. Generally, it will be rejected as irrelevant. But its admissible because it is proof that she's in open an dcontinuous possession. Unlikely that a male relative would come to a graduation unless father. In Jison: The affidavit claiming that she's not a hcild of Francisco: This is an admissino by Francisco by his acts thru the lawyer (admission by Agent) to sign the affidavit. Habit - is an act unconsciously made, it becomes a mechanical act already. eg: failure to pull up handbreak Identity - to leaving of certain mark, indicia of who you are Eg: serial killer, who leaves a tell tale mark. Specific Intent - intent to marry and kill for insurance money. Eg: husband kills wives for the insurance money. the past acts were deemed admissible to show that the acts were not accidental but were deliberate. Knowlege - you know of a fact crucial to the previous act for the commission of the present act. General rule: anything about your past is Mendoza v. CA She was declared a recognized illegitimate child on the basis of the testimonies of Gaudencio and Isaac aside from various circumstantial evidence. Isaac (nephew of Casimiro) Q: is testimony to establish the relationship of the witness and the declarant? Yes, as in the case of Gravador. Gravador presented the declaration of a person already dead, to show his pedigree. In the verified answer Romulo said that they were the co-owners. (R 130 S39) The pedigree that was talked abot need not be that of a 3rd person, but may be the witness hmself. Also invoked family tradition. Although he has no perrsonal knowledge of his actual age, his age waas established by famimly tradition. The indicia of admissiblity is 1. Reliability 2. Made in the regular course of things, life, nature . So here natural lang na reliable, trustworthy yung kinekwento sa yo ng parents. If the statement was made at the time it was contrary to his interest, and there wasn o motive on his part to lie, and beacuse he wass already dead, it will be admissible under the exception of the hearsay rule, as a declaration against his interst. Fuentes v. CA -> death is indispensable for admission of a declaration against interst. They're testifying thaht there was a 3rd person who committed the crime. People v. Bautista -> dying decalration must be single hearsay, not double. In this Case A stabbed B, and C a friend happened to be tehre avaiable and B made sumbong to C that A was the one who stabbed B, and B died. C the one who heard the sumbong made sumbong to the desk officer of the polic officer and put it in the blotter. It was the policeman testified in inadmissible to the present. Eg; bill clinton using weed. court.

14

It would seem that the decalration was 2x removed from the declarant. So it was held, hindi pwede yun. Yung magsusumbong sa korte ay the one whom the story was told to. People v. MaraMara. Thje mag-amas attended the dance. They were attacked by a group. The father ied, ,ahtt child survived, and he lived to tell the tale: F "ang sumaksak sa akin anak ay si X". The child testified in the court, admissible. ONce removed. It was a decalration by a person who knows that he is about to die. You are under the consciousness of an impending death for it declared admissible. At the ponit of impending death, there is no motive to lie. Its basis in human history. Pag malapit ka nang mamatay, nagsasabi ka na ng totoo. It will be trustworthy, credible and reliable. Truth sits on the lips of a dying man. Situation: if nabuhay: if nabuhay, bring him to court, pwede namang i-cross examine! The declarant need not die, but his declaration cannot be admitted. In order to be admitted as an exception to the hearsay, he must be dead! In any case, if its not addmisible, i t may be admitted as part of the res gestae. What about adopted consanguinity?) children? (affiinity or

In the Jalosjos case, the defense was trying to prove age, the child wa no longerr below 12. So it would be outside of statutory rape. Sec. 40: Gravador, hearsay because he had nopersonal kjnowledge by birth, but because of his family, family reputatioon and tradition. Situation: Lolo wrote card to apo, admissible to prove

The Kelly Notes, Evidence 2006


relationship? No, because its not an artifact recognized by the entire family. So not admissible under Sec. 40. This is admissible only if there is community of opinion that its a family possession, not just an individual opinion. Tehre should be public consensus. Public reputation! Yun ang intindi ng karamihan. But if its controverted and there is a debate about it, then its not puublic reputation. Judicial notice leans to public consensus. US v. Choa Chiok - there is a drug den, although it is hearsay, Pwede yung moral cahracter of a place, as held in US v. Cchoa Chiok. Exercise: 1. A sued B for damages arising from serious physical injries sustained in a frat rumble. It turns out however that after pre-trial A has to fly to Switzerland for delicate surgical operations. As A's lawyer, would it be proper for you to advice A not to worry, in that you can present A's testimony anyway through an affidavit that he'll execute before departure? Would your answer be different if A's suit was a criminal case? It will be hearsay in both cases, because there is no opportunity to cross examine. 2. In the case of People v Webb, lolital Berrer that she witnessed her common law husband former policeman Biong to clean out the scene after the commisson of the crime, the prosecution will also allow her to testify that she saw thereat a brown jacket with a tag bearing HUB, to corroborate th testiomony of Jessica Alfaro to the effect that accused hubert Webb let his brown jacket at the scene of the cime. As counsel for Webb, will you object to the latter testimony of Berer on te ground that the jacket and tag themselves should be presented? Will you object to a photograph tehreof? How about testimony thereon? The jacket was being presented as docuentary evidence as the letters HUB. The objection to the admissibility is grounded on the Best Evidence Rule. Without the tag, the jacket may still be relevant as it will connect to jessica alfaro. However, walan gidentifying mark, its a document, not an object, and the letters signifies something! So its not just an object evidence. Will you object to th e photograph of the tag: Its just a secondary evidence, the original would have to be produced. Can you waive the best evidence rule? Sure, if you don't object, you waive it. 3. Mr A and pregnant woman B had been cohabiting as a man wife for more than 5 years already, when in a fit of jealousy one afternoon, Mr. A happened to club B for Death. Mr. A waas charged with parridice. As prosecutor, you are due to termiante presentation of evidence in one moth. There is no record of any marriage certificate between A and B on the National Census and Statistics office, but the optimistic in you suspect that the civil registeres in fifty provinces and 20 cities might just possibly contain such a record to support the information's allegation of huband and wife relationship between A and B. What to do if the defense object to all evidence other than an officially attested copy of the original marriage certificate? Would your answer be the same if the crime were bigamy? Who have cohabited for 5 years, and has shown themselves as man and woman, there is a presumption of mariage arising. If youu are prosecuting for the crime of bigamy, you need an officially attested marriage contract. You have to prove guilt beyond reasonable doubt in bigamy. However, in one case, the admission of the husband taht he is related to the wife was sufficient to convict him of parricide. In ecleo, marriage contract is not needed because of his admission that they are married. September 2, 2006 Dying Declaration v. Res Gestae Dying Declaration - the statement must be made at or near the time of death - the interval of time between the statement and the death is immaterial, as long as the declarant made it under the consciouness of death.

15

Res Gestae - the statement must be made at the time of the startling occurrence - or immediately after the startling occurence Factors to determine whether he is dying: 1. Words or statements 2. Conduct of the declarant 3. Serious nature of the wound. Doctor's testimony: not so much weight, because as long as the man believes that he's already dying. But more so if the doctor says that he's dying People v. Reyes 2 principles mentioned: 1. Res Gestae This is wrong, because the fact that they were coconspirators of the occurrence, and they plannned it, pano sila nagulat. They mentioned the statements immediately after the occurrence " The statements must be made by the person startled by the events. People v. Tampus The two prisoners who killed and confessed immediately after the killing was held part of the res gestae. When the encountered the first policeman, they said, "ser, surrender na kami, gumaganti lang". It should not have been held as res gestae. You say things dahil nagulat kayo, that's res gestae. Nagulat ka lumalabas sa bibig. The question now in Tampus is, where they surprised that there was a guard....when they're in prison? Of course not! This should have been held admissible under Admissions and Confession, as long as its not undeer custodial investigation. (Aballe Doctrine) People v. Bernal, Fuentes, Bautista. People v. Bautista

The Kelly Notes, Evidence 2006


He was shot with a long firearm, and in his dying declaration, he identified the killer as Bautista. Ferriamil had two statements: 1. Gagaza told to the police officers what Ferriamil told him 2. The second statement was conflicting with the reeport. The police blotter entry The dying declaration contained inn the police blotter was not admitted in evidence Gagaza was he person to whom the dying declaration was made. He should be the one presented in court to testify. Now, it was the police officer who made the entry was presented inn court to identify the declaration. People v. Bernal Is Bernal here actually declaring against his penal interest? Against his moral interest lang talaga. If the woman here made the admission, then its an admission against her penal interest. Fuentes Maxim: Death or unavailability Or else napakadalign mag-manufacture. If that requirement is not complied with, it becomes inadmissible. Rule 139 2 scenarios *relationship is required between the actor or declaration in respect of the subject of his act or declarationo. 1. Mendoza The act or declaration speaks about the declaration of the third peson. 2. Gravador The relationship of the dead person and the witness himself was sought to be established. As long as that document is proeprly authenticated or identified and it is relevant tot he issue,, then it is admissible. (R 132) Rule 130 Sec. 40 Presents 2 situations: 1. If you look at the wording, the witness is relying on the family reputation or tradition. Narinig na niya from others who are part of the family. Otherwise, its not family rep or tradition. The people he heard them from, dead or alive, must be related to him. Why is this hearsay? Eh narinig lg niya, no peersonal knowledge. Family reputation or tradition cannot exist unless it handed down to you verbally or in writing. If this guy gets it from others, and talks about it, its hearsay. The reputation may refer to a third person, it does not have to be him (witness). Basta lahat sila belongs to the same family. 2. In Gravador, where the witness is invoking family reputation or tradition, dead or alive, about himself. As long as they (the sources of the info) are memers of the same family. The only relationship required to be proved aliunde in 130.3 is by the source and the subject (Mendoza) But in .40, the witness must be a family member. IN repsect of scenarios 2 & 2. The analogy is, the only difference is, 1. The source must be related to the witness 2. In .39, the evidence is a specific act or declaration. In .40, its a family reputation or tradition, its a lot other possessions and stuff, so it became a family tradition. Read the 3 cases carefully. Exhibits S,T,U,V -> lettters of the relatives saying that she's the daughter of Fransico. Mike Alano, who was related to Francisco. But the court held that these were not admissible bbecuase these were privatet documents, declaration out of court. If there is no reason why the writer cannot be presented in court, inadmissible!. If you were able to

16

prove that alano was dead, would it be admissible? Alano's relationship is established because it was not denied by any other act not contained in the letter. Point: IN mendoza,, the relationship that was sought to be shown was the relationship between the declaration and the putative parent. Hipolito and Brigida was talking about hte relationship with the putative father. In jison, the relationoship that waas being talked abot by the letters was not thier relationship with the father Francisco, but the relationship of Monina and Francisco. If fernando lopez kunwari is dead, and lin his letter he said that francisco is the father of monina, then it becomes admissible. Unless he is talking about the relationship of monina. Are S,T,U,V, are they admissible under 130.40. Its not admissible because If we look at the letters under SEc 40 --B. LMs legitimte heirs will also present a mdwife fr LEYTE who will testify that: a> she had atended to the birh of the child ' C. Rape victim a will testify in ppl v. B that accused is the paternal 1/2bro 2prove aggravating circumstance of rel. Defense objects on ground that it shld b birth cert of a and b 2 show same dad that shld b presented. Ryt aftr assailants left 3 maids told employr abt experiens. Prosec wants ER 2 testify 2 corrobor8 maids' testimony. Taxi drivr D was robbd n stabbd by X a drug pushr. D identified X in d hospitl. Wen wife W discovred 2 yrs aftr faild honeymoon dat soldier husband H seemd incapabl of consuum8nmarriage. Consultd lawyer-advise undr FC 45 dat marriage cn b annulld if H condition continues n incurabl.

The Kelly Notes, Evidence 2006


H's condition continued, W filed suit. B4 pretrial, W's lawyr movd 4 physicl exam undr rule 28. H's lawyr invokd 130.24 C. rule on dis. H and W hve 4 kids, A,b,c,d. On vacation with W, b4 hebecame senile, h executed a hlogrphic codicilwhere he disinheritd B for brngig guardianshp pro against H to dclare H incompetnt. H secrtly told W that the codicil is inside a vault in hteir swissbank H bcame senile. W opposed the apptment f b arguing tha b had been disinhrted. Rrevealig what H secrtly told her abt ccodicil. B argud that a.) codicil has not been probated, b.) W is disquaalified from testfyng bccozz privilegd comm fr. Father. 2. H AND W are ssparated de facto. In specpro for cusssstody of female chid C . W will testify taht H is not a good husand because he as Caltex v. Africa and the Salmon case Discussiion of Rule 130.44 Entries in Official Records the "survey" was the most impt detail in the salmon case because it tries to determine the personal knowledge of the farmers about their annual yield and other details of their farming. Take a look also at the roster of officials in the case (municipal president, etc.) The ruling of the court in Salmon is that the municipal council and the pres had a duty. Dir's certificate was based on duty. What was the basis of the certificates? Why can the council rely on the farmers? at the bottom of the certificates, is personal knowledge. The farmer's had no duty tp reprt in the survey. this seems to have been modified by the Africa case Manalo case - sheriff's return is an official recoord and are prima facie evidence of the facts stated therein and are admissible. These are entires under the Salmon doctrine. Sheriff has no personal knowledge buut based it on a person who has. 130.43 4. Bus A collided with B. Three hours after the collision passengerr C of bus A said "ang bilis bilis kasi ng takbo namin, eh. Yung driver nakita na nya yung red light di pa pumreno." A. Trial between bus A and Bus B, B and C testified tha bus A was not speeding right before thte collision. Policeman D will try to iimpeach the testimony. Admissible? 6. Drinking Spree, A boasted to friends C,D and E that he was a con exoert giving examples. Brawl. At the trial of C v D , C will present A as wwitness. D will tesify regarding A's coon escapades to attack A's credibility. Any objection? 7. Kalentong bridge gave way, repaired under the supervision of Engr. A. Tort suit between B and the CIty, B will present Engr. A to testify on the cracks and bad state of the bridge prior to the incident. Objection? 8. While being investigation by the Prosecutor for rape, accused A accepted the amorous intimations of B such that they eventually got married. Is A's acceptance of B's offer admissible as evidence of guilt? September 7, 2005 Sec. 45: The people themselves published that compilation, used and relied on by them. It is admissible because its: 1. Necessary 2. Reliable These magazines on specific fields published by experts. If not admissible under 45, it might be admissible under 46. Horse racing magazine, will it qualify under SEc. 45 on the commercial lists and the like? Yes, because horseracinng is an industry, a business. These are publications of the association.

17

The shhipping agencies have a publication of the ships, schedules, tonnage of the ships. Sec. 46 Two experts: 1. The expert on the subject who will testify 2. taht the writer of the statement in the treatise is reecognized as an expert. All the exceptions on the hearsay rule are HEARSAY, but ADMISSIBLE. Medical journals, statements there regarding anesthesiology, surgery. Although the person testifying What if the expert who wrote it is sitting down as witness, is what he say admissible? If she is giving out an opinion, she can fall under Sec. 49 under Expert witness. Either she has perrsonal knowledge, or an expert givinng her opinion. Ex: Mopther lily publishes a magagzine, where she lists down her thoughts, In Re Mallari: The court took judicial notice. The neighbors testified that they knew of the birth by common reputation. The court declared that the testimony is admissible. Because they did not witness the birth, they had no perrsonal knowledge, their testimony is allowed even if it was hearsay, it was allowed on the basis of the common rep. Its admissible if the elements of being undisputed, etc. Was established thereon. Tis is basi that the court can take judicial notice, that common reputation can be attested to by an individual. But it was not strictly accurate since. Actally, this is a case of common reputation on the marriage, as to its existence or rather the nonexistence of the marriage. Estrada v. Noble Doctrine: Ballantyne Scale of Schedules. Dr. B did not testify, but it was admitted on the ground that the Court took judicial notice of it.

The Kelly Notes, Evidence 2006


Nobodycame to court to ID the ballantyne scale, to authenticate it. It took judicial notice of its existence and its contents. In fact, the court can't took JN on the contents of that because its hearsay. But they admitted it on the ground that its a LEARNED TREATISE. In this case, the court can dispense of the 2 expert witnesses on the ground that its a learned treatise. Sec. 47: its not a real exception. Because it refers to a transcript, docu containing statements that was madde before. But in the sense, nag-karon ng cross exam, then its not strictly hearsay. In mananzan v. CA If the former case is criminal, and the subsequent case is otherwise, ts not admissible anymore because it involves different subject matter, and involving civil liability, the other was penalty. Iba na rin yung parties (people, then private parties) Judicial, or administrative. Imagine that there was a prervious ejectment case in a proceeding. Situation: A v. B for ejectment. MTC ruled that no right to eject. B filed a case to declare him owner. B died. The transcripts in the previous proceeding may be presented by the heirs. MTC - no powerer to declare a person as owner. There is another civil cae to declare B as ownerr. He uses his testimony in the previous case, goes to court and shows his transcript. Fuentes: NOt necessarily dead, but just unable to testify after due diligence is excerted. Binding effect of the Opinion: General rule: not admissible except 1. Expert witnesses 2. Ordinnary witnesses This is because an opinion is something internal, its truth cannot be verified. This is because the basis of the conclusioin is only what the judge can see, and since the testimony is only in the brain of the witness, the conclusion is not-necessarily sequitur (chismis), both criminal and civil cases. Opinions, are they of personal knowlege -> it doent follow. There are certain instances when they are comprised of facts which are of one's personal's knowledge. Handwriting: Do you have to have had personal knoweldge of the past handwriting? ( Yes, because the rule requires sufficient familiarity. ) No, no personal knoweldge, but the investigators may do it. If there are conflicting expert opinions before the court. If there are conflicting expert witnesses, the court will not shirk from its duty to evaluatee and come to its own conclusion. IT cannot abdicate its duty by merely claim its conflicting. Look at the facts, detaisl of each expert witnesses and other evidences. NOT NEUTRALIZE. Its only in the criminal case that the court can say "innocence is presumed". Next meeting: 132 Sec. 10 September 12, 2006 Expert based on experience Experrts when they are on the stands can be asked as to their opinions, and they don't ahve to rely on actual facts, but may rely on hypothetical facts. Only experts can give their opnions in those situations. Remeber: When it comes to handwriting, not only an ordinary witness can testify, even experts can, on the basis of graphology. With respect of fingerprints: dactylosophy? In caases of declarationof nully, its a psychiatry, it has to be a clinical medical... Case: wife was an incorrigible liar, she invented everything. The court granted the nulllity. If we go to character evidence, character is relevant iun the esnse of its moral aspect. Kasi ang rule: i t refers to moral character. And the rule pertains to

18

General rule: cahracter evidence is not admissible In rape: the moral character is irrelevant. The charge must first involve a moral trait. We mustfirst understand what moral means: does it mean good or bad? Truth, Honesty and Integrity - to be proven by Moral Character. In what sense is that not related to rape: The question here is: did the rape occur or not. Its not about Truth, Honesty or Integrity. Our system of law is not that wee can halo halo our values. THe moment we do, we'll be violating due process. Example where moral character is relevant: Perjury. The accused can show his good moral character in his defense. That's not incompetent...is it admissible? Yes, this is what the rule said. This is admissible because: it will show the pobability or improbability of the offense charge. It is relevant: tends to show the existence or non-existence of the fact in issue. In other words, if you were the accused, what wil you present? If honesty: 1. Medal or citation given by the Mayor for your honesty 2. Testimonies of friends 3. It was the experience of their peoeple that jurists were so susceptibe to prejudice and bias because of human elements, and if these evidences are allwoed, the person shall be convicted because of character, not on the merits. Its not in every instance that the moral character shall be in issue. Libel slander, obvious. You are impeaching his credibility, if you impeach his moral character.

The Kelly Notes, Evidence 2006


September 14, 2006 Land Bank officer sues SM City Guards If you are the lawyer of Filomeno, you t ink he has a cause of actioon for damages. There is a cause of action under abuse of rights found unde ARt. 19, 20,21. Presumption in favor of SM: that an unlawful act was done with an unlawful intent. Situation: you lost your bag at SM, found another peson carrying another similar bag. You demanded that he open it up so you would know if he saw yours. Presumptiion to apply: that a person foudn in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act.... But not in this case: Ciziten's arrest is not possible tehre because there was no personal knowledge of the taking!! Besides, there is a PRESUMPTINO that the OTHER PERSON OWNS THE THING!! (2nd part) Situation; Person A sent mail, but B said it is empty. The presumption has already been overcome by evidence of the testimony of the secretary. Counsel should do: look at the thickness of the MR, then see if it would fit the envelope sent. You will see who's lying! It is not normal of the secretary of the sender to send something with nothing inside. Another Sabio: PCGG comissioner who was evading arrest. He's saying that the senate cannot question that PCGG people. SC did not issue any TRO on the warrant issued by the Senate against him. If sabio's defense is he's not committing contempt by evading arrest, and even if he gets dragged, he saaid he's not going to answer question. If the SC is not acting on the case, ,it can be considered that it is not issuing at TRO, and then it deemed the issuance is improper, and he shouud submit himself to the jurisdiction of the Senate. Deaf Mutes: archaic rules. Now pwede na yung People v. Valero - couple accused of putting poison on the bread. Leadinng questions are allowed on cross exam -> the law allows you to mislead and mentally trap the witness to test his accuracy, and truthfulness and freedom from interest or bias. Exercises in the Reviewer 1. What was your conditioon when you got home? 2. Leading What if the other party said, "whetter or not you developed any physical problem": there is already a condition being suggested to the witness as to what problem was experienced (physical) Proper q: what was your condition after the accident. 3. Do you knwo anyone by the name of B? Not a leading question. Doesn't the name of B suggests anything? No, its content neutral. It is not suggesting anything about B. In respect of leading questions, one aspect is if it will be leading on the basis of the facts on record. Because its preliminary, ALLOWED, even if leading (where were you at this time, etc). 4. Do you remember where you were last Christmas day? It is leading (christmas kaagad), but depending on the flow of the question, it can be leadinng or not. But allowed to. Preliminary. Mas disguised pa yung pagka-leading. 5. Depends. On its face it looks leading, unless there is previous information (if this was asked after a serires of question that this was asked that the incident transpired at a certain place at or about christmas time. if he said it was during the holidays) 6. Leadings talaga, since you alraedy identified B as an accused (not merely discriptive, medjo loaded)

19

7. Did you shoot the deceased on purpose? Leading but still accepted because its on cross exam, it accepted. But if direct, di pwede. Because you are giving him the opportunity to say "not on purpose". 8. Leading. It should be "how did the accused look like when you saw him?" 9. Leading. What did you do after the accident, ,if any -> non leading. 10. Leading sooobra. Wounds na accident pa 11. Leading daw, because its saying that there wass something about the texture of the floor. If the entering of the hall has not been established, it is leading. But if the establishment of the entering is already done, still leading because 12. Coffee: leading. 13. This is not an alllowed question, because a leading question is not allowed on re-direct exam. but allowed in re-cross. Very leading because (i didnt[' catch it) 14. If there is prior data, leading, but if no prior data, not leading. Proper questions: Wherewere you on this date. What happened taht day? 15. Leading. Rephrase: Will you still be able to recognize that eprson if you saw him? If yes, point him out. 16. Very leading, prerequisite for EJECTMENT cases. September 19, 2006 Situation: where the judge says bad words off the record, and he goes on the sanctimoniously blah blah... What's yhour recourse? Section 2 of rule 132, the entiree proceedings in a trial or hearing, including..., the statemnets made by the judge or any of the parties... (but what if off the record na nga?) I want it

The Kelly Notes, Evidence 2006


off the record, is it against the rules?? the rule: the entire proceedings SHALL. There is not an express prohibition, but there is an IMPLIED mandatory prohibition against the off the record statements. What about Chamber conference? Examination of witness presented in a trial or hearing shall be done in open court, and under oath or affirmation. General rule: open court. Exception: Rule on the examination of a child witness If hindi trial or hearing, pwede bang in camera? Yes, absolutely. What if you feel the judge is biased and allows improper behavior. You can see that he's allowinng the witness to be coached? Options: 1. You can ask the question allowing you to record the proceedings, and ask it to be put in the records, thats's an option. 2. HIDDEN CAMERA!!! There is no jurisprudence on it. Your basis: DUE PROCESS in the case. Estrada - when the media is going to interrupt the court in its disposition of the case, tey can be banned. The recording shall be that of the stenographer. Motion to correct transcript of stenographic notes -> if ther are inaccuracies. Rights and obligations of a witness. What if the previous conviction is irrelevant to the very fact in issue in the entire case, this is an objectionable ground because of IRRELEVANCY. (Sec. 3 (1)) even if (5) says that he must answer, Irrelevancy should protect him. What if its the very fact in issue, or at leaast a fact wherein a fact in issue will be presumed? He must answer to that! Rule 115 Sec. 1(e), the right to be silent, even on the stand. his silence cannnot be used against him. Sec. 11. APW (adverse party's witness) 1. CE 2. THI 3. SIP Witness: saying that he's in school at the time of the crime, but there was a traffic citation against him in Cebu. Present the ticket, and the officer who ticketed him. Yes, its contradictory evidence. Both Document and testimonial evidence. As long as its contrary to the present testimony of that guy. It is a pre-requisite for the admission of Seatwork: 1. After much arguing due to the bumping of their cars in the middle of the night, wkithout police contact and no police car in sight, the Bgy Tanod was able to have Mssrs X and Y just sign the compromise agreement which he drafted in Taglish. A month later, when his demand was refused, X filed a collection suit, including for damages caused to the compressor of the A/C. Y alleged in his answer that what he had agered to only was the repair of the bumper, that he did not understand the meaning of the agreement because he did not understand ENglish. X argued that having signed the agreement, it should be understood that Y knew what he was signing and that he, X, having dutifully complied with the agreement, Y should now be considereed extopped from disputing it otherwise it would be unfair. Rule on their arguments. Suggested answer: Q: does the signing of a document suggest a presumption that the person have read nd understood the document first before signing it? A: Presumptions: Rule 131 Sec 3(c,d) First consideration: that undeer the law, the COMELEC undergoes a verification process that the signatures are authentic, not faked. The moment you establish authenticity, that's the only time when the presumption of regularity shall come in. What's the difference between presumption and estopped? (conclusive presumption) Conclusive: that he has signed in the first place. Disputable presumption: knowledge.

20

that you signed with

If Y is careless, and he's not able to present evidence to show that he doesn't really understand English, then the signature on the document stands, and the presumption that he understood it is conclusive. Estoppel: You signed, i relied on your signature, then now you're going to renege on your signature. Is this correct? No, because there is no deliberate intention to deceive another. It is not conclusive that he really understood, but its based on the signature. This is a disputable presumption. If you admitted before a notary, that's already a conclusive presumption. 2. X was sketching the courtroom scenario while W was on the direct exam by his defense counsel, Atty. D in P v. W. WHen Prosecutor P saw the sketch later on, he saw that it depicted Atty. D handing W a small piece of paper. It turns out that X was able to record, without realizing it, what P haad all along suspected when he P discovered, on teh floor, after the hearing a piece of paper containing a name --in Atty. D's andwriting-which name W had then testified to -- i.e., that Atty. D had surreptitiously coached W (by secretly slipping him the piece of paper) when W's memory was already failing. P then moved that the testimony of W at the hearing stricken off the record for being false and sham, and to present X and his sketch in evidence in support of his motion. If you were Atty. D, would you object to the evidence? IF so, why? If no, why not? Suggested Answer: There are two types of evidence here: 1. Sketch 2. Tetstimony to the effect that he saw Atty. D

The Kelly Notes, Evidence 2006


handing the paper Sec. 16. When witness may refer to memorandum. It is the testimony of the witness that is being presented. The memorandum is documentary evidence. But it must be received with caution. In the 2nd part of Sec. 16, ,the document is being presented on its own merits. The tetstimony of the artist was being presented not on the merits of the criminal case, but rather (on the what?), to prove the factum mprobandum on the motion that there was coaching, that there is a valid ground for striking out of testimony. So is the evidence is relevant? Yes, it is relevant to the issue that there is coaching. Q: is there analogy between this case and Borromeo? Borromeo 1. The SC held that the memordandum was not part of the res gestae, because she was merely assisting her father, but she was not authorized by heer father. If both parties were authorized her, then it would lend credibility to her notations. Her notations should supposedly explain them. If both authoirzed her, that's when res gestae would come in as part of equivocal act. But what if her father is the only one who authorized her? The court is of the mind that if these notations would interpret the equivocal acts of the parties, then it would be admissible. Its unfair if she would be allowed to interpret the acts when in fact only 1 party allowed her. The other party may not even know that she was doing them. Sec. 16 on memorandum shall only be allowed when there is a need to refresh the memory of the witness. The court at this point was not treating her as part of the transaction whose notes can be interpreted as part of the res gestae, but just a mere witness. If cecilia were to testify in court, and say "this is what i heard the parties say...", is this admissible? Yes, because this is what she perceived. But if she's talking about what the other party said, that is admission. But if she's going to testify what her father said, that will be hearsay because he's not adverse party. But memorandum is different. Its not her testimony, but it is the memorandum which she noted down. In her capacity as a witness treating of or relating to the memorandum which she wrote, does sec. 16 apply at all? What is the difference between the 1st and 2nd par of SEc. 16 1 - with recollection 2 - no recollection The witness in the 2nd paragrph does not testify as to the contents! So the conents must be received with caution. How can you be cross examined as to the contents? Kung ano yung sinabi niya, yun na yun! The witness should be the one to ask for the memorandum. The couirt confused the 1st and 2nd parts of Sec. 16. In so far as the first paragraph was invoked to show that she was trying to refresh her memory, the court is correct. At most, the notations of christina is circumstantial evidence. If she can testify as to any kind of behavior, she could, only not the memoranda. Q: are the notations self-serving? Fernandez - certificate of live birth - private handwritten paternity

21

Canque This is entry in the ordinary course of business. It wasn't considered competent because admitted by the person who wrote the entry had no personal knowledge ofthe facts. The Rules require that the person who made the entries was in the position to know the facts therein stated. In this situation, ,the foreman had knowledge, but he was not presented. personal

Lagnas Equipoise doctrine - if the inclpatory facts and circumsntaces are capable of two or more explanations, one of which is consistent with the innocnece of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and will result in the acquittal for failure to prove guilt beyond reasonable doubt. Migrant Workers: 1. Regular 2. Irregular Families without distinction, even gays if the goal of the convention is the protect. Not supposed to inquire weehther or not they are legally married, or homosexual unions. Notice that independent of this, the basic protection provided (554). The practice of he employee's pasports. employers keeping their

Art 39 grants them their right of liberty of movement. SituationL Pinay getting pregnant in malaysia gets deported to the Phils. How are they priotected? They have contracts signed that if they get pregnant, they lose their jobs. And the visa says that if they don't have jobs, they get deported. You can invoke Human rights, under customary Itn'l Law, or by Treaty. Scenariio,the signatories are those who are sending the migrant workers, not the countries wherer they are employed. SolutionL bilateral state to state treaties.

document

acknowledging

Manalo Is it hearsay? Yes, if the sheriff didn't show up top be cross examined, its hearsay. But since its an official entry in the records, then pwede na! Then it may be judicial notice if its already admitted in evidence before.

The Kelly Notes, Evidence 2006


Part 1 40% Definition of Terms Open Book 60% The long ones, the provisions identified. Current events, from newspaper clippings. October 5, 2006 When is evidence considered admitted? Is it upon presentation? The name of the witness The contents of the testimony And the purpose -> things to state when the evidence is being offered. This is when the objection should be made. When is object evidence presented: -> When it is presented to the court for viewing, or immediately before a party rests his case. NOTE: There is a difference between presenting and offering. Identification - when a witness is testifying, and a document is presented for identification. Distinguish: presenting documentary evidence v. Offering documentary evidence. Presenting - at the time of the testimonial evidence. Offering - after The presentation is done durinng the testimony of the witness, when he is asked to identify it. The officer of docmentary evidence is done aafter the presetnatin of the party's testimonial evidnece, and this will come before the party rests his case. Before every witness tetstifies, you make the offer. The moment he testifies, you are already presenting him. Ex: 3 witnesses Steps: 1. Offer the testimony before witness speaks. 2. The moment he's talking, presentation na 3. If he talks aboutu a document, he is presenting still. 4. Documentary evidence will be offered after the 3rd witness is excused. Either veerbally or in writing, stating the specifics Prosectuion: exhibits are a, b,c Defense: numeral numbers. After you submit your offer, collatilla in the offer, "with the admissin of the foregoing documents, plaintiff respectfully rests his case". Pano if may cross exam pa? Kasi hindi na to examination in chief. (direct, 1st dibs) 1. T/F" Sections 19 to 33 of Rule 132 are classified under the label "B Authentication and proof of documents". The word Proof here refers to the truth of the contents of the document. False. Its proof of the due execution and the authenticity. It is not merits of the eivdnece. The rules of Evidence tackles not on the truth of evidence, but on weight, admissibility, etc. But as to the truth, bahala na judge dun, merits na ng kaso. 2. Employee X sued co-employee Y, accusing the latter of having circulated a printed poison letter aagainst their boss, which was falsely attributed to x (by its readers) as its author. X alleged in the complaint that Y forged or caused the forgery of his X's signature. Y alleged in his answer that maybe someone else forged it but he did not. A. In the course of the X's presentation of hte poison letter, Y objects on the ground that it must be authenticated. RUle. X is not prersenting it as his letter. If he is, then he has to authenticate it. Authentic means that you are presenting the document what it really purports to be (eg: like if its really X's letter) But in this case, he is NOT presenting it as authentic. He is saying that his signature is forged. Legal Basis: Last sentence of Sec. 20. "Any other private document need onkly be idenified aas that which it is claimed to be"

22

The document is not being offered as authentic, that he is not the author of the document. "offered as authorship. authentic" means establishment of

B. It is now Y's turn to present evidence. As first witness, Y wants to testify to the fact that it was not he who had forged X's signature. X objects on the ground of immateriality. Rule. It is immaterial, cause whether he did or did not do the forgery, he did not deny that he cauesd someone else to do it. The evidence is relevant. But its immaterial. C. If the poison letter was not signed but its circulation was accompanied by rumors that it came from X, and X alleges that in fact Y is responsible for everything (X is waiting for the results of the NBI test on fingerprinting) but Y alleges that X is really the author, will your answer in letter A change? No need to authenticate. The document is not signed, so why is X presenting it? The ultimate fact is that he wants to show 1. The contents are poisonous, and 2. When it was circulated, it waas accompanied by rumors, and 3. The person who circulated is Y. Because the docu didn't show who the authored it, the factum probans is simply to show that there is a poisoned letter that existed. What you're proving now is the existence and the contents, but not the authorship!

[It it still not being presented as an authentic document, and the answer will not change. This is because X is denying the authorship, that he's saying that it is not what it purports to be.] -> baka wrong answer 3. All private documents must be authenticated before they are presented in evidence, otehrwise they stand the risk of being objected to by adverse counsel.

The Kelly Notes, Evidence 2006


No, only private documents which are offered as authentic need to authenticated. 4. Uner Rule 132, do "official document" and "public document" mean the same? No, A & C tell you what are official documents. a & c, in the custody of the government. See 24 (a), 30 (b), 27 (c) 5. How many kinds of public documents are there in Rule 132. 4 kinds, 2 in a! Written official acts, and records of official acts. 6. T/F there is a specific legal document that has the charactersitic of a public document but retains its private nature. True: last wills and testament But even if it falls under a, b or c, yet it is stated it is. This has the characteristic of a public document, but it is considered private (last wills and testament) 7. A. For whjat purpose do the rules differentiate between poublic and private documents? For purpose of their presentation in evidence. B. In practical terms, this means that they are goverened by different rules in at least two ways, namely. 1. Presentation How are public documents presented. 24, 27, 30. You can prove that a private writing is genuine, if there is an eyewitness 2. Evidentiary value There are 4 ways to prove the genuiness of the handwriting: 1. He has seen the peerson write 2. Has seen writing purporting to be his 3. By a comparison made by the witness (expert), or the court 4. By the Judge himself. Or proved to be genuine to the satisfaction of the judge 11. To rebut plaintiff's P's evidence in the collection case against him, defendant D wants to present the affidavit of plaintiff's business partner B (who has desisted from the case and gone abroad) to show compelte payment. If D calls on the notary public to do so, will you have any objection? Yes, on Hearsay, whatever the notary public would testify on, it would still be hearsay. 12. Waht is the practical use or effect of the rule on 8. State whether the following public documents fall under a, or c, or Rule 132.19: A. Sheriff's return - a B. Senate bill - a C. Police blotter - a, written official act D. Proclamation 1017 - a, records of the official bodies. (acts of the sovereign authority - treaties) E. House journal - a, record of official act? Huh? F. Court order - a written official act G. Transcript of stenographic notes in court suit - a, record official act, actions of the people. H. Comelec resolution declared null and void by the SC in the mega pacific casse. - a, official act. I. Ombudsman's resolution absolving all comelec commissioners of criminal liability in Mega Pacific Case. J. Civil registry - c. 9. Why the distinction in manner of presenting public documents under Rule 132 19A, and C. Ie: Rule 132 24 and 27 May be proved by: 19 - proved by the official publication or record of the official act or copy In c - the public record in the original may be brought to the court. WHy is it like this? 10. In practical terms, would it be favorabe to your case if your adversary forgets the distinction between public and private, in so far as it affects manner of presenting and probative value and the rules that govern them. If so, why, if not, why not. Yes

23

alteration in documents? Practical effect: of value to you if only if you object, and if you shut your moth the moment they forget. 13. Could Paul Newwman have utilized this Rule 132.31 as ground for objecting to the altered medical sheet presented by counsel for the Archdiocese. Canot object, because the document does not appear to have been altered on its face. 14. If in a probate proceeding, what is sought to be proved is a will in the Cebuano language, would you any ground of objection? Sec. 33, it must be accompanied by a translation! 15. Is there anything in R 132 that you can use for purposes of proving illegal possession of firearm: Proof of lack of record under sec. 28 16. When is authentication of a private document not needed? 1. Not offered as authentic (20) 2. Ancient document 3. Authenticity is admitted, not denied 4. 17. Apart from R 132.20 and 22 are tehre any other means for purposes of autehntication? (in reegalado) Doctrine of self-authentication - when in facts in writing could only have been written by the writer.

Ssec. 23 See: Sec 44 (R 130) First part of SEc. 23 -> applies to BOTH a & c of R. 132.19. Acknowledgement Jurat - subscribed and sworn to before me on this date If it is private, you authenticate, if public, you don't. Deed of sale: Fact of execution, and the date of the sale.

The Kelly Notes, Evidence 2006


IN some cases, ,the validity of the document is made to hinge on the notarization. October 6, 2006 Rule on the Examination of a Child witness Difference from the ROC: 1. Unable to testify - the witness is unable to be located. In the RECW, the child is sick, dead, lack of memory, mental illness, psychological injury. 2. The child does not have to come to court, its hearsay ngaayon, because ma-trau-trauma. Its a crucial exception, and its very special for children. Is theer anything in the ordinary rules that justifies this exception for children. Ang Analogy lang: Leading questions!!! Its indicative of the judiciary for understanding of the child's behavior. The right of confrontation has evolved now. Unlike before that it has to be physicially presnt. Now, the emphasis is on the RIGHT TO CROSS EXAMINE, to twist him, to elicit the truth, and thus, this conforms to the DUE PROCESS CLAUSE (dati, due process is having the witness and accused phsyically looking at each other). The special concern for the child overrides the right of the accused to STARE OVER the witness. Videotaped interviews is another exceptiion to the hearsay rule. In-depth investigative (Sec. 29) Sino-sino lang ang pwede? 1. Trained Multi-disciplinary team 2. Law enforcement team 3. Child protective services team. Exceptions to the hearsay rule: 1. Direct exceptioon: Sec. 28 2. Live link TV 3. INdepth investigative Interview 4. One-way mirror 5. Videotaped deposition Protection to the other party: 1. It must be corroborated. 2. There must be a hearing a. Starts with a motion, prove why it should be admitted, 15 days, to allow the other party the chance to object. Rule which is peculiar to children -> Sexual Abuse Shield Rule!!!! Breakthrough. 1. Evidence offereed to prove that the alleged victim engaged in other sexual behavior. 2. Evidence offered to prove the sexual predisposition of the alleged victim. Exception: (if it will prove that the semen, etc came from another person) Res inter alios acta alteri nocere debet? (in the shield rule) Videotaped deposition Electronic documenta nd electronic data message are defined, the word electronic is not. Now the definition begs itsself. Memorize the definitions of Electronic and electronic data message. It establishes a right, extinguishes an obligationo or asserts a fact. Stored, received, analyzed recorded, electronically. 1. In X v Y, X filed a motion for correction of TSN on the ground that a crucial portionof the testimony of X's witness was misstated a) alleging that the words filled in by the stephograper's S from her memory (because the tape recorded protion was garbled and unintelligible) wee wrong; and b) quoting the "corect" words on the basis of the video recording that unbeknown to the court, his counsel's assistant was able to effect: A. X now wants to present the video-reocdring at the hearing of his motion. Does he have basis for this procedure. Rule 133 Sec. 7. B. Y objects to the presentation on the ground that under R 132.2 S's certificatiion on the transcript means that the contents tehreof are prima facie correct record of the proceedings. Is there anything in Rule that says that therer is a bsis to attack a record like this?

24

Impeachment of a judicial proceeding. ANY JUDICIAL RECORD may be impeached. The TSN is a judicial record. Kaya siningit yugn 29, may prima facie presumption! Its not an ephemeral electronic communication. 2. IN the Subic Rape Case, Asst Prosecutor Valdez told media that she and private prosecutor Att. Ursua were taken aback because the lead prosecutor Emily Fe Delos Santos suddenly shifted strategy by not preesenting rebuttal evidence. Granting that Justice Secretary Raul Gonzales allwos Atty. Ursua to temporarily control proceedings at this point, is the remedy of "tender of excluded evidence" available to her. Sec.40 wuold only apply if the evidence was first offered formally. In this case, it does not apply because In order for sec. 40 to apply, if nagkaroon ng rebuttal evidence. But in this case, the prosecution has alrady rested its case! So wala na. Tender of excluded evidence: 1. Offer, describing the contents of the testimony etc. 2. ALlowed or denial 3. If denied, then move to attach. 3. In X v. Y, X's counsel C began presenting W, a volunteer witness, but was surprised when he realized that W was not exactly testifying favorably for X. Hence C moved to strike out the unfavorable remarks off W. Rule. No, C annot strike out W's testimony. First, it is onlythe adverse party who can mainly voice over objection. Secondly, on the 2nd par of Sec. 39, Grounds: move to declare W as a hostile witness (sec. 12). If this is granted, C may then be allowed to Strike it out on the ground that it is improper. W mislead C to believe him as a cooperating witness --> improper

The Kelly Notes, Evidence 2006


4. IMagine thaht in the talented Mr. Ripley Matt Damon suddent was consciense striken that he murdered hi buddy by whacking him with a paddle and impersonating him. May Matt Damono be convicted even if the body ofo Jude Law has been eaten by the sharks. No. R 133.3 (extra-judicial confession not sufficient for conviction unless corrobrated by evidence of Corpus Delicti) 5. If your answer in No. 4 is no, what are the grounds for conviction? Confession is not enough, Apart from confession, corroborating evidences (plural, bec. R 133.4 requires more than one) could be A. Testimony and documents (like dormant bank accounts, unpaid bills showing mysterriously prolonged absense B. Testimony showing that Damon is the person last seen with Law alive C. INsurance policy, together with the testimony that Damon accidentally learned from law had secretly made him a life insurance beneficiary D. Teestimony of boatkeeper that Law sailed together with Damon E. Law's fingerprints on the sailboat. 6. While testifying, plaintiff's witness W told examining counsel taht she wanted to refer to her memorandum //\\nspired during her off-the-record meeting with defendant. It turns out that what she watns to consult is her PDA. Defense counsel objected on the ground that the contents of the PDA are hearsaay, and that the PDA is self-serving, unreliable, easily fabricated medium. Rule. Pwede, admissible because in Sec. 16, although its hearsay, witness has a personal knowledge, and pwede siyang i-cross examine. 7. In her action for legal separation and support, W alleges that H is in the process of abandoning her to be with his mistreess abroad, as in fact he has just applied for an immigrant visa at the Australian Embassy. W knows this because she discovered from his laptop that he had downloaded the electronic visa application form and fillted it up, and his sympathetic secrettary S admitted to having printed out the same and submitted to the Embassy. W had wanted S to make another print-out, but S said H seems to have already sold the laptop, with the contents hidden somwhere. A. So W downloaded a form herself and now wants to present this in evidence, to be supplemented by her and S's testimony. Would the counsel of H have any grounds for objection? Note: MEMORANDUM is an out of court document, but allowed in court as evidence (exception to the hearsay rule) B. Any solution? Present the testimony of the secretary as the one who prepared the documents and filled it in. 8. In 2011, criminal cases for graft and corruption are filed against Pres. Arroyo. If proliferating DVD's and VCD's are presented of the GMA-Garci converrsations, would defense counsel have any ground to object? Irrelevant! Tpaes dapat Ma'am is reconciling the REE rules. We want to convert the GMA Garci tapes into DVD's...possible? Covered by the REE? Are audio tapes electronic documents? Apply REE Rule 21.d - tapes are churned out through electro magnetic impulse. NO. We can't convert the tapes. The Best Evidence Rule in the REE does not apply. Tapes are OBJECT evidence and NOT documents. 9. In P v. X, the accused through NBI personnel, will present a DVD of the autopsy report prepared on his computer by the NBI medico-legal expert who had conducted it, as well as all other detailed notation during the autopsy conducted on the victim. Does the prosecution have ground to object? Privelege communication does not apply because the "client" is already DEAD. Secondly, this rule only applies to civil cases and NOT criminal cases. apply the exception in RULE 8 of the REE.

25

"business activity" refers to an activity that has regularity. We are to look at the term in a broader sense. 10. Does REE amend 132 It does. It creates a new exception to the hearsay rule. Look again at the business exception rule. Look also at the manner of presentment of evidence. Rule 132 is definitely affected. REE rules 9 and 10. Mr. Macapagal recited Rule 10... Electronic testimony will not stand alone unless TSN back it up. The SC has not yet promulgated rules on the application of the REE yet. 11. Does the REE amend the Wiretapping Law? Ma'am says there's something in Rule 11 that might make us uncomfortable. Look at Sec. 1 of the rule. It talks about getting the consent to record. THere's NOTHING that says that the wire-tapping law is abrogated. Repeals are strictly construed. It must be express. Last Questions: If you happen to record ephemeral evidence, the recording may or may not be electronic. Agree? Txt messages that are photocopied to preserve it, are these digital or electronic? Can you manipulate the messages that you received?