Notes On Special Proceedings_2018_v2

EVIDENCE BAR REVIEW ATTY. RAMON S. ESGUERRA

GENERAL PRINCIPLES

CONCEPT OF EVIDENCE Evidence is the means of ascertaining in a judicial proceeding, the truth respecting a matter of fact (Rule 128, Sec. 1).

CONCEPT OF EVIDENCE •Evidence is adduced to address questions of facts.  Questions of fact v. questions of law • Questions of fact exist when the doubt or difference arises as to the truth or falsehood of alleged facts. • On the other hand, questions of law exist when the doubt or difference arises as to what the law is on a certain set of facts.

CONCEPT OF EVIDENCE •Sources of Rules on Evidence Substantive  Constitution (e.g. Art. III, Sec. 2 – unlawful search and seizure; Sec. 3 – privacy of communication or correspondence; Sec. 12 – rights of persons under custodial investigation; Sec. 17 – rights of accused against self-incrimination).  General laws (e.g. New Civil Code, Art. 1735 – presumption of negligence against common carrier unless they show exercise of extraordinary diligence; Labor Code, Art. 233 – parties’ statement during conciliation proceedings are privileged communications).  Special laws (e.g. R.A. No. 7438 – rights of persons detained or under custodial investigation; R.A. No. 8505, Sec. 6. – Rape shield rule).

CONCEPT OF EVIDENCE Sources of Rules on Evidence Jurisprudence (e.g. doctrine of executive privilege, Neri v. Senate, Akbayan v. Aquino) Procedural (e.g. Rules of Court, Rule on Examination of Child Witness, Rule on DNA Evidence, Rule on Electronic Evidence, etc.)

SCOPE OF THE RULES ON EVIDENCE •Uniform application in judicial proceedings  Rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or the Rules of Court.(Rule 128, Sec. 2). • Evidentiary rules under the Rules of Court are specifically applicable only in judicial proceedings. • In quasi-judicial proceedings, the same apply by analogy, or in a suppletory character, and whenever practicable and convenient (Rule 1, Sec. 4).

SCOPE OF THE RULES ON EVIDENCE •Rules of evidence are procedural in nature. Thus, it must not diminish, increase, or modify substantive rights (Article VIII, Section 5, par. 5, 1987 Constitution). New rules may be held applicable to cases pending at the time of the change in rules as parties have no vested right in the rules of evidence; except in criminal cases when the new rule would permit reception of a lesser quantum of evidence to convict. (See Article III, Section 2 of the 1987 Constitution prohibiting ex post facto laws and bill of attainders).

EVIDENCE IN CIVIL CASES VERSUS EVIDENCE IN CRIMINAL CASES Basis Quantum of Proof

Criminal Proof beyond reasonable doubt (Rule 133, Sec. 2).

Effect if the evidence of the Accused is acquitted. parties are in equipoise.

Compulsion as witness.

Accused cannot be compelled to be a witness.

Effect of evidence.

More than one circumstantial evidence is required to prove the crime.

circumstantial

Cross examination in cases covered by summary Allowed procedure.

Civil Preponderance of evidence (Rule 133, Sec. 1). The decision should be against the party who has the burden of proof. Accused may be compelled to be a witness. The rules only provide for certain limitations. The presence of one circumstantial evidence may be enough to prove a cause of action. Not allowed

PROOF VERSUS EVIDENCE •Proof is the effect of evidence. It is the probative effect of evidence and is the conviction or persuasion of the mind resulting from a consideration of the latter. •Evidence is the cause necessary to establish proof. It is also the mode and manner of proving competent facts.

FACTUM PROBANS VERSUS FACTUM PROBANDUM •Factum probans is the evidentiary fact or the fact by which the factum probandum is to be established.  Example: BBB’s admission that he is AAA’s father, and/or the existence of AAA’s birth certificate wherein BBB is indicated as AAA’s father.

•Factum probandum is the ultimate fact sought to be established.  Example: AAA’s uninterrupted possession of the status of a natural child of BBB.

FREQUENTLY-ASKED QUESTIONS (FAQS) •ADMISSIBILITY – 11 times •HEARSAY – 11 times •WITNESS – 6 times •PRIVILEGED COMMUNICATION – 5 times •JUDICIAL NOTICE – 3 times •ADMISSIONS & CONFESSIONS – 3 times •DNA EVIDENCE – 3 times •ELECTRONIC EVIDENCE – 3 times •OFFER OF EVIDENCE – 2 times

ADMISSIBILITY OF EVIDENCE

(ASKED IN 1997, 1998, 2002, 2003, 2004, 2005, 2006, 2009, 2010, 2012, AND 2013)

1. ADMISSIBILITY OF EVIDENCE (asked in 1997, 1998, 2002, 2003, 2004, 2005, 2006, 2009, 2010, 2012, and 2013) • Requisites for admissibility of evidence 1. Relevance; and 2. Competence

ADMISSIBILITY OF EVIDENCE •Requisites for admissibility of evidence 1. Relevance  Evidence is admissible when it is relevant to the issue (Rule 128, Sec. 3).  Evidence must have such a relation to the fact in issue as to induce belief in its existence or nonexistence (Rule 128, Sec. 4).  Relevance depends on the factum probandum, or the ultimate fact sought to be proved.  Relevance is determined by rules of logic and human experience.

ADMISSIBILITY OF EVIDENCE •Requisites for admissibility of evidence 2. Competence

• The evidence must not be excluded by law or by the Rules of Court (Rule 128, Sec. 3). • All facts having rational probative value are admissible unless some specific rule forbids their admission. • Competence is an affair of logic and law.

ADMISSIBILITY OF EVIDENCE •Requisites for admissibility of evidence 2. Competence  Examples of exclusionary rules under the 1987 Constitution:  The right against unreasonable searches and seizures (Art. III, Sec. 2).  The right to privacy of communication and correspondence Art. III, Sec. 3).  The rights of a person under custodial investigation (Art. III, Sec. 12).  The right against self-incrimination (Art. III, Sec. 17).

ADMISSIBILITY OF EVIDENCE •Requisites for admissibility of evidence 2. Competence  Examples of statutory exclusionary rules: Section 201, NIRC - An instrument, document or paper which is required by law to be stamped and which has been signed, issued, accepted or transferred without being duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in evidence in any court until the requisite stamp or stamps shall have been affixed thereto and cancelled.

ADMISSIBILITY OF EVIDENCE •Requisites for admissibility of evidence 2. Competence  Examples of statutory exclusionary rules: R.A. No. 4200 (Anti-Wiretapping Act) - It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken work by using a device commonly known as a Dictaphone or dictograph or detectaphone or walkie-talkie or tape recorder, or however otherwise described. x x x (Section 1).

ADMISSIBILITY OF EVIDENCE •Requisites for admissibility of evidence 2. Competence  Examples of statutory exclusionary rules: R.A. No. 4200 (Anti-Wiretapping Act) – Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained, obtained or secured by any person in violation of R.A. No. 42 ‒ shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation (R.A. No. 4200, Sec. 4).

ADMISSIBILITY OF EVIDENCE •Requisites for admissibility of evidence 2. Competence  Examples of exclusionary rules under the Rules of Court:

 Best Evidence Rule  Parole Evidence Rule  Hearsay Rule

ADMISSIBILITY OF EVIDENCE •Relevance of evidence and collateral matters • Evidence must have such a relation to the fact in issue as to induce belief in its existence or nonexistence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue (Rule 128, Sec. 4).

ADMISSIBILITY OF EVIDENCE •Multiple admissibility • When evidence is relevant and competent for two or more purposes, such evidence should be admitted for any and all the purposes for which it is offered provided it satisfies all the requirements of law for its admissibility. (Regalado, Remedial Law Compendium [Vol. II], pp. 694-695). • Example: An extrajudicial confession may be inadmissible as against a party who did not subscribe to it, yet such party may use said document as evidence of lack of guilt.

ADMISSIBILITY OF EVIDENCE Conditional admissibility

Where the evidence at the time it is offered appears to be immaterial or irrelevant unless it is connected with the other facts to be subsequently proved, such evidence may be received on the condition that the other facts will be proved thereafter, otherwise the evidence will be stricken out.

ADMISSIBILITY OF EVIDENCE Conditional admissibility Example: AAA files an action for recovery of ownership of a parcel of land against ZZZ. The complaint alleges that AAA is the owner of the property. During the trial, AAA testifies and adduces evidence that a certain XXX bought the property from ZZZ. The testimony of XXX may be allowed if it would be shown the chain of events that led to the ownership of AAA of the land.

ADMISSIBILITY OF EVIDENCE •Curative admissibility  There is curative admissibility when a party offers an inadmissible fact which is received because there is no objection by the other party. The other party does not acquire the right to introduce in reply to the same kind of evidence, except whenever it is needed for removing an unfair prejudice which might otherwise have ensued from the original evidence.

ADMISSIBILITY OF EVIDENCE •Curative admissibility  Example: In an action for damages arising from a car accident, the plaintiff introduced evidence to show that on several occasions the defendant in the past had injured pedestrians because of his negligence. (This is inadmissible under Rule 130, Section 34-Prior acts as evidence). Under the concept of curative admissibility the court must give the party against whom the evidence was admitted the chance to contradict or explain the alleged past acts he committed to counteract the prejudice which the improperly admitted evidence may have caused.

ADMISSIBILITY OF EVIDENCE •Direct and Circumstantial Evidence •Direct evidence – refers to evidence that directly proves a fact without need to make inference from another fact.  Example: The testimony of the prosecution witness claiming that he saw that it was actually the deceased who attacked the accused without the latter’s provocation is a direct evidence.

ADMISSIBILITY OF EVIDENCE •Direct and Circumstantial Evidence •Circumstantial evidence – refers to proof of the fact or facts from which, taken either singly or collectively, the existence of a particular fact in dispute may be inferred as a necessary or probable consequence.  Example: The testimony of the victim that he dreads the mere presence of the accused is direct evidence that the statement was made. It is likewise circumstantial evidence to show that this fear prevented the victim from attacking the accused without provocation.

ADMISSIBILITY OF EVIDENCE Positive and negative evidence  Positive evidence - when a witness affirms that a fact did or did not occur. This is entitled to greater weight since witness relates matters within his personal knowledge.  Negative evidence - a witness states that an event did not occur or that the facts alleged to exist did not actually exist.

ADMISSIBILITY OF EVIDENCE Competent and credible evidence  Competent evidence – refers to evidence which is not excluded by law in a particular case.  Credibility – refers to worthiness of belief, that quality which renders a witness worthy of belief (Black’s Law Dictionary, 5th ed., 330). Whether or not a witness or evidence is credible is an issue addressed to the judgment of the trial court (People v. Castro, G.R. No. 172874, 17 December 2008).

OBJECT (REAL) EVIDENCE

OBJECT (REAL) EVIDENCE

Objects as evidence are those addressed to the senses of the court (Rule 130, Sec. 1).

NATURE OF OBJECT EVIDENCE

Object evidence includes any article or object which may be known or perceived by the use of any of the senses – sight (visual), hearing (auditory), touch (tactile), taste (gustatory), or smell (olfactory).

NATURE OF OBJECT EVIDENCE Object Evidence includes:

 Examination of the anatomy of a person or of any substance taken therefrom;  Conduct of tests, demonstrations, or experiments;  Examination of representative portrayals of the object in question;  Documents – only if the same are presented for the following purposes: • To prove their existence or condition or the nature of the handwritings thereon; • To determine the age of the paper used or the blemishes or alterations thereon.

REQUISITES FOR ADMISSIBILITY •

When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court (Rule 130, Sec. 1).

•

Court may refuse introduction of object evidence and rely on testimonial evidence alone if: - Exhibition of such object is contrary to public policy, morals or decency. • But if viewing is necessary in the interest of justice, the evidence may still be exhibited but the court may exclude the public from such view • Viewing may not be refused if the indecent or immoral object constitutes the very basis for the criminal or civil action.

REQUISITES FOR ADMISSIBILITY •

To require that it be viewed in court or in an ocular inspection would result in delays, inconvenience and expenses out of proportion to the evidentiary value of such object;

• Such

object

evidence

would

be

confusing

or

misleading; • Testimonial or documentary evidence already presented clearly portrays the object in question as to render viewing unnecessary.

CATEGORIES OF OBJECT EVIDENCE •The following are categories of object evidence: – Unique Objects or objects that have readily identifiable marks • Example: caliber revolver with serial number

– Objects made unique or objects that are made readily identifiable • Example: knife with the name of the owner

– Non-unique objects or objects with no identifying marks and cannot be marked. • Example: drugs in powder form

DEMONSTRATIVE EVIDENCE Demonstrative evidence is evidence in the form of a representation of an object. This is, as opposed to, real evidence, testimony, or other forms of evidence used at trial. Examples: photos, x-rays, videotapes, movies, sound recordings, diagrams, forensic animation, maps, drawings, graphs, animation, simulations, and models. Demonstrative evidence is useful in assisting a finder of fact (fact-finder) in establishing context among the facts presented in a case.

VIEW OF AN OBJECT OR SCENE • Autoptic proference, in legal parlance, simply means a tribunal's self-perception, or autopsy, of the thing itself. (Balingit v. COMELEC, G.R. No. 170300, 9 February 2007). • It is referred to as the evidential datum which decisionmakers will perceive using their five senses (Anderson, Schum, and Twining, Analysis of Evidence, 2nd Ed.).

CHAIN OF CUSTODY, IN RELATION TO SECTION 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002

The Chain of Custody Rule

•As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be.

CHAIN OF CUSTODY, IN RELATION TO SECTION 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002

The Chain of Custody Rule • It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witnesses' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain.

CHAIN OF CUSTODY, IN RELATION TO SECTION 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002

The Chain of Custody Rule • These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. (People v. Kamad, G.R. No. 174198, 19 January 2010).

CHAIN OF CUSTODY, IN RELATION TO SECTION 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002

Essential links in the chain of custody of seized illegal drugs • The following are the links that must be established in the chain of custody of seized illegal drugs: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court. (People v. Fermin and Madayag, Jr., G.R. No. 179344, 3 August 2011).

CHAIN OF CUSTODY, IN RELATION TO SECTION 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002

Essential links in the chain of custody of seized illegal drugs • As provided by the implementing rules and jurisprudence, strict compliance of the requisites under Section 21 of Republic Act No. 9165 can be disregarded as long as the evidentiary value and integrity of the illegal drug are properly preserved; and its preservation can be well established if the chain of custody of illegal drug was unbroken. (People v. Fermin and Madayag, Jr., G.R. No. 179344, 3 August 2011).

CHAIN OF CUSTODY, IN RELATION TO SECTION 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002

Testimony on perfect chain not required • The Supreme Court held that, “undeniably, a testimony about a perfect chain is not always the standard as it is almost always impossible to obtain an unbroken chain...what is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items.”

CHAIN OF CUSTODY, IN RELATION TO SECTION 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002

Testimony on perfect chain not required • An astute perusal of Section 21 of the IRR of RA 9165 readily reveals that the custodial chain rule is not to be rigorously applied, provided "the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/team." Thus, the supposed procedural infirmities alleged by Quiamanlon with regard to the custody, photographing, inventory, and marking of the seized items do not, in any manner, affect the prosecution of the instant case and do not render her arrest illegal or the items seized from her inadmissible (People v. Quiamanlon, G.R. No. 191198, 26 January 2011).

CHAIN OF CUSTODY, IN RELATION TO SECTION 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002

Presentation of confidential informant not indispensable • The non-presentation of the confidential informant is not fatal to the prosecution’s case. The presentation of an informant is not a requisite in the prosecution of drug cases. The failure to present the informant does not vitiate the prosecution’s cause as his testimony is not indispensable to a successful prosecution for drug-pushing since it would be merely corroborative of, and cumulative with, that of the poseur-buyer who was presented in court and testified on the facts and circumstances of the sale and delivery of the prohibited drug. (People v. Andres, G.R. No. 193184, 7 February 2011).

CHAIN OF CUSTODY, IN RELATION TO SECTION 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002

When non-presentation of informant / poseurbuyer is fatal to prosecution’s cause None of the members of the buy-bust team had directly witnessed the transaction, if any, between accused and the poseur buyer due to their being positioned at a distance from the poseur buyer and accused at the moment of the supposed transaction. The members of the buy-bust team arrested accused on the basis of the pre-arranged signal from the poseur-buyer. The hearsay character of the signal rendered it entirely bereft of trustworthiness. The reliance on the signal would deprive accused the right to confront and test the credibility of the poseur buyer who supposedly gave it. (People v. Amin, G.R. No. 215942, 18 January 2017)

CHAIN OF CUSTODY, IN RELATION TO SECTION 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002

Failure to immediately mark seized drugs The failure to immediately mark seized drugs will not automatically impair the integrity of chain of custody as long as the integrity and the evidentiary value of the seized items have been preserved, as these would be utilized in the determination of the guilt or innocence of the accused. What is essential is that the police officers account for the crucial links in the chain of custody of seized illegal drugs. (People v. Morales, G.R. No. 188608, 9 February 2011).

CHAIN OF CUSTODY, IN RELATION TO SECTION 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002

Failure to take photographs and inventory the same is not fatal as long as the integrity and evidentiary value of seized illegal drugs were preserved •In People v. Presas (G.R. No. 182525, 2 March 2011), the Supreme Court noted that the failure of the prosecution to show that the police officers conducted the required physical inventory and photograph of the evidence confiscated pursuant to said guidelines, does not automatically render accused’s arrest illegal or the items seized from him inadmissible.

CHAIN OF CUSTODY, IN RELATION TO SECTION 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002

Failure to take photographs and inventory the same is not fatal as long as the integrity and evidentiary value of seized illegal drugs were preserved • Notably, the implementing rules of the IRR provide that "noncompliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items." The same provision also states that it must still be shown that there exists justifiable grounds and proof that the integrity and evidentiary value of the evidence have been preserved.

CHAIN OF CUSTODY, IN RELATION TO SECTION 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002

Presumption of regularity, standing alone, cannot defeat the presumption of innocence • The presumption that the police officers regularly performed their duty cannot, standing alone, defeat the presumption of innocence of the accused. Generally, law enforcers are presumed to have regularly performed their duty, but this is a mere procedural presumption which cannot overturn the constitutionally recognized presumption of innocence of the accused where lapses in the buy bust operation are shown. An effect of this lapse, as held in Lopez v. People, is to negate the presumption that official duties have been regularly performed by the police officers. Any taint of irregularity affects the whole performance and should make the presumption unavailable (People v. Martin, G.R. No. 193234, 19 October 2011).

CHAIN OF CUSTODY, IN RELATION TO SECTION 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 Presumption of regularity, standing alone, cannot defeat the presumption of innocence • Indeed, anything short of observance and compliance by the arresting lawmen with what the law required meant that the former did not regularly perform their duties. The presumption of regularity in the performance of their duties then became inapplicable. As such, the evidence of the State did not overturn the presumption of innocence in favor of the accused. (People v. Barte, G.R. No. 179749, 1 March 2017)

2012 BAR EXAMS

R.A. No. 9165 or the Dangerous Drugs Act of 2002

Comprehensive

Question: Discuss the "chain of custody" principle with respect to evidence seized under R.A. 9165 or the Comprehensive Dangerous Drugs Act of 2002. (5%)

BURDEN OF PROOF AND BURDEN OF EVIDENCE • Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. (Rule 131, Sec. 1). • Examples: (a) conviction in a criminal case – proof beyond reasonable doubt; (b) probable cause in the issuance of warrant after preliminary investigation – reasonable ground that an offense has been committed; (c) probable cause in filing of criminal information – prima facie evidence; (d) civil cases – preponderance of evidence; (e) administrative cases – substantial evidence.

BURDEN OF PROOF AND BURDEN OF EVIDENCE • Burden of evidence is the duty resting upon a party, by means of evidence, to create or meet a prima facie case. • Burden of proof never shifts, while burden of evidence is transferred from one litigant to another depending on the progress of trial.

BURDEN OF PROOF AND BURDEN OF EVIDENCE Burden of Proof Civil cases – The burden is on the party who would be defeated if no evidence were given on either side. Criminal cases – The burden is always on the prosecution. The burden of proof does not shift as it remains throughout the trial with the party upon whom it is imposed. The burden of proof is generally determined by the pleading filed by the party.

Burden of Evidence Both civil and criminal cases – The burden lies with the party who asserts an affirmative allegation.

The burden of evidence shifts from party to party depending on the exigencies of the case in the course of the trial. The burden of evidence is generally determined by the developments of the trial or by provisions of law.

BURDEN OF PROOF AND BURDEN OF EVIDENCE

Negative allegations • Note that a negative allegation does not have to be proven unless the same is an essential part of the cause of action or defense. • However, in civil cases, even if a negative allegation is an essential part of the defense, such does not have to be proven if it is only for the purpose of denying the existence of a document which would properly be in the custody of the adverse party.

BURDEN OF PROOF AND BURDEN OF EVIDENCE Negative allegations

• If the criminal charge is predicated on a negative allegation or that a negative averment is an essential element of the crime - the prosecution has the burden of proving the charge. • Where the negative of an issue does not permit of direct proof, or where the facts are more immediately within the knowledge of the accused, the onus probandi rests on him.

BURDEN OF PROOF AND BURDEN OF EVIDENCE

Equipoise or Equiponderance Doctrine. • Where the evidence on an issue of fact is in equipoise or there is doubt on which side the evidence preponderates, the party having the burden of proof fails upon that issue (Rivera v. Court of Appeals, et al., G.R. No. 115625, January 23, 1998). • Therefore, as neither party was able to make out a case, neither side could establish its cause of action and prevail with the evidence it had. They are thus no better off than before they proceeded to litigate, and, as a consequence thereof, the courts can only leave them as they are (Rivera, supra citing Municipality of Candijay, Bohol v. Court of Appeals, 251 SCRA 530).

BURDEN OF PROOF AND BURDEN OF EVIDENCE

Equipoise or Equiponderance Doctrine. • The equipoise rule finds application if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, for then the evidence does not fulfil the test of moral certainty, and does not suffice to produce a conviction. (Bernardino v. People, G.R. Nos. 170453 and 170518, 30 October 2006, 506 SCRA 237, 25).

2004 BAR EXAMS BURDEN OF PROOF v. BURDEN OF EVIDENCE Distinction

Question: Distinguish clearly but briefly between: 1. Burden of proof and burden of evidence. x x x

2004 BAR EXAMS BURDEN OF PROOF v. BURDEN OF EVIDENCE

Distinction Suggested Answer:

Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. (Sec. 1 of Rule 131), while burden of evidence is the duty of a party to go forward with the evidence to overthrow prima facie evidence established against him. (Bautista v. Sarmiento, 138 SCRA 587 [1985]).

DOCUMENTARY EVIDENCE

MEANING OF DOCUMENTARY EVIDENCE • Documents as evidence consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents (Rule 130, Sec.2). • A document is a deed, instrument or other duly authorized paper by which something is proved, evidenced or set forth (U.S. v. Orera, 11 Phil 596). • Documentary evidence is that which is furnished by written instruments, inscriptions and documents of all kinds (32 CJS 475).

REQUISITES FOR ADMISSIBILITY •

The following are the requisites for admissibility of documentary evidence: 1. The document must be relevant; 2. The evidence must be authenticated; 3. The document must be authenticated by a competent witness; and 4. The document must be formally offered in evidence.

BEST EVIDENCE RULE a) Meaning of the rule

• When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself (Rule 130, Sec. 3).

BEST EVIDENCE RULE b) When applicable • The rule is applicable when the subject of inquiry is the contents of a document (Rule 130, Sec. 3). • The Best Evidence Rule does NOT apply: (a) to proof of facts collateral to the issues, such as the nature, appearance or condition of physical objects or to evidence relating to a matter which does not come from the foundation of the cause of action or defense; or (b) when a party uses a document to prove the existence of an independent fact, as to which the writing is merely collateral or incidental (Lee v. People G.R. No. 159288, 19 October 1 2004).

BEST EVIDENCE RULE b) When applicable • Simply put, the Best Evidence Rule applies only when the terms of a writing are in issue. When the evidence sought to be introduced concerns external facts, such as the existence, execution or delivery of the writing, without reference to its terms, the Best Evidence Rule cannot be invoked (Heirs of Prodon v. Heirs of Alvarez and Clave, G.R. No. 170604, 2 September 2013).

BEST EVIDENCE RULE To set this rule in motion, a proper and timely objection is necessary. Evidence not objected to is deemed admitted and may be validly considered by the court in arriving at its judgment. Courts are not precluded to accept in evidence a mere photocopy of a document when no objection was raised when it was formally offered. In order to exclude evidence, the objection to admissibility of evidence must be made at the proper time, and the grounds specified. Objection to evidence must be made at the time it is formally offered. And when a party failed to interpose a timely objection to evidence at the time they were offered in evidence, such objection shall be considered as waived. (Spouses Tapayan v. Martinez, G.R. No. 207786, 30 January 2017)

BEST EVIDENCE RULE c) Meaning of original •The following are considered originals of a document: 1. The original of the document is one the contents of which are the subject of inquiry (Rule 130, Sec. 4). 2. 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 originals (Rule 130, Sec. 4). 3. When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals (Rule 130, Sec. 4).

BEST EVIDENCE RULE c) Meaning of original •The following are considered originals of a document: 4. An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. (Rules on Electronic Evidence, Sec. 1)

BEST EVIDENCE RULE c) Meaning of original •The following are considered originals of a document: 4.

..

5. Copies as equivalent of the originals – When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original. (Rules on Electronic Evidence, Sec. 2)

BEST EVIDENCE RULE c) Meaning of original • N.B.: Under the Rules on Electronic Evidence, copies or duplicates shall not be admissible to the same extent as the original if: – a genuine question is raised as to the authenticity of the original; or – in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original. (Rules on Electronic Evidence, Sec. 2)

BEST EVIDENCE RULE d) Requisites for introduction of secondary evidence • Secondary evidence is allowed in the following instances:

1. When original is unavailable (Rule 130, Sec. 5) – There must be proof by satisfactory evidence of: • Due execution of the original • Loss, destruction or unavailability of all such originals; and • Reasonable diligence and good faith in the search for or attempt to produce the original.

BEST EVIDENCE RULE d) Requisites for introduction of secondary evidence • Secondary evidence is allowed in the following instances:

1. When original is unavailable (Rule 130, Sec. 5) – How to Prove Due Execution: 1. Testimony of person/s who executed document;

2. Testimony of the person before whom its execution was acknowledged; or 3. Any person who was present and saw it executed and delivered or who thereafter saw it and recognized the signatures, or one to whom the parties thereto had previously confessed the execution thereof

BEST EVIDENCE RULE d) Requisites for introduction of secondary evidence • Secondary evidence is allowed in the following instances:

1. When original is unavailable (Rule 130, Sec. 5) – Secondary evidence which could be introduced after proving unavailability of the original (in the order stated): 1. Copy of said document;

2. Recital of its contents in an authentic document; or 3. Recollection of witnesses.

BEST EVIDENCE RULE d) Requisites for introduction of secondary evidence • Secondary evidence is allowed in the following instances:

1. When original is unavailable (Rule 130, Sec. 5) • Nevertheless, where the law specifically provides for the class and quantum of secondary evidence to establish the contents of a document, or bars secondary evidence of a lost document, such requirement is controlling. – Example: lost notarial will requires the testimony of at least 2 credible witnesses.

BEST EVIDENCE RULE d) Requisites for introduction of secondary evidence • Secondary evidence is allowed in the following instances:

2. When original is in adverse party's custody or control (Rule 130, Sec. 6) – Requisites 1. Document is in the custody or under the control of adverse party; 2. He must have reasonable notice to produce it; 3. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss.

BEST EVIDENCE RULE d) Requisites for introduction of secondary evidence • Secondary evidence is allowed in the following instances:

2. When original is in adverse party's custody or control (Rule 130, Sec. 6) Where the nature of the action is in itself a notice, as where it is for the recovery or annulment of documents wrongfully obtained or withheld by the other party, no notice to produce said documents is required. (Warner, Barnes & Co., Ltd. v. Buenaflor, 36 OG 3290)

BEST EVIDENCE RULE d) Requisites for introduction of secondary evidence • Secondary evidence is allowed in the following instances:

2. When original is in adverse party's custody or control (Rule 130, Sec. 6) • A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence (Rule 130, Sec. 8).

BEST EVIDENCE RULE d) Requisites for introduction of secondary evidence • Secondary evidence is allowed in the following instances: 3. When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole. (Rule 130, Sec. 3[c]).

BEST EVIDENCE RULE d) Requisites for introduction of secondary evidence • Secondary evidence is allowed in the following instances: 3. When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole. (Rule 130, Sec. 3[c]). – Requisites 1. The voluminous character of the records must be established; and

2. Such records must be made accessible to the adverse party so that their correctness may be tested on cross-examination

BEST EVIDENCE RULE d) Requisites for introduction of secondary evidence • Secondary evidence is allowed in the following instances:

4. When the original is a public record (Rule 130, Sec. 7) When the original of document is in the custody of public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof.

PAROL EVIDENCE RULE • Parol Evidence refers to any evidence aliunde, whether oral or written, which is intended or tends to vary or contradict a complete and enforceable agreement embodied in a document.

PAROL EVIDENCE RULE a) Application of the parol evidence rule • The following are the requisites for the application of parol evidence rule: • There is a valid contract; • The terms of agreement reduced to writing; • There is an issue as to the terms of agreement; • The dispute is between parties and their successors in interest (Rule 130, Sec. 9). • The written agreement is already considered to contain all the things agreed upon. Being a final agreement any extraneous evidence or parol evidence is inadmissible for any of the following purposes: (a) to modify, (b) to explain; or (c) to add to the terms of the written agreement.

PAROL EVIDENCE RULE b) When parol evidence can be introduced • A party may present evidence to – a. Modify; b. Explain; or c. Add to the terms of written agreement if he puts in issue in his pleading: – An intrinsic ambiguity, mistake or imperfection in the written agreement; – The failure of the written agreement to express the true intent and agreement of the parties thereto; – The validity of the written agreement; or – The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. (Rule 130, Sec. 9)

PAROL EVIDENCE RULE b) When parol evidence can be introduced • Example: The vendee of a parcel of land can validly tell the court that the deed of sale subject of litigation is not really one of sale but one of mortgage as long as he puts in issue in the pleadings, any of the matters enumerated above.

PAROL EVIDENCE RULE b) When parol evidence can be introduced • The Parol Evidence Rule does not apply, and may not properly be invoked by either party to the litigation against the other, where at least one party to the suit is not a party or privy of a party to the written instrument in question and does not base a claim or assert a right originating in the instrument of the relation established thereby. Thus, if one of the parties is a complete stranger to the contract, he is not bound by the rule. (See Rule 130, Sec. 9, par. 1)

PAROL EVIDENCE RULE b) When parol evidence can be introduced • Basis of Parol Evidence Rule • Parol evidence is based upon the consideration that when the parties have reduced their agreement on a particular matter into writing, all their previous and contemporaneous agreements on the matter are merged therein. (De Guzman v. Calma, 100 Phil 1008).

PAROL EVIDENCE RULE PAROL EVIDENCE RULE

BEST EVIDENCE RULE

Original document is available in court. Original writing is not available and/or there is a dispute as to whether said writing is the original. The rule prohibits the varying of the The rule prohibits the introduction of terms of a written agreement. substitutionary evidence in lieu of the original document. With the exception of wills, this rule The rule applies to all kinds of writings. applies only to documents which are contractual in nature (“written agreements”). This rule can be invoked only when the This rule can be invoked by any party controversy is between the parties to to an action regardless of whether or the written agreement, their privies, or not such party has participated in the any party directly affected thereby, e.g. writing involved. cestui que trust.

AUTHENTICATION AND PROOF OF DOCUMENTS a) Meaning of authentication • Authentication is the act or mode of giving authenticity to a statute, authority or other written instrument, or a certified copy thereof, so as to render it legally admissible in evidence (Herrera, Remedial Law Vol. VI, 1999 ed., p. 262).

AUTHENTICATION AND PROOF OF DOCUMENTS b) Public and private documents • For the purpose of their presentation evidence, documents are either (a) public or (b) private. (Rule 132, Sec. 19). • The classification of documents under the Rules of Court is different from the classification of documents into official, public, commercial and private under the RPC (Regalado, p. 803).

AUTHENTICATION AND PROOF OF DOCUMENTS b) Public and private documents • Public documents are: (a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; (b) Documents acknowledged before a notary public except last wills and testaments; and (c) Public records, kept in the Philippines, of private documents required by law to the entered therein (Rule 132, Sec. 19, par. 2).

AUTHENTICATION AND PROOF OF DOCUMENTS b) Public and private documents •

All other writings are private (Rule 132, Sec. 19, par. 3).

•

As a general rule, public documents need not be authenticated; private documents have to be authenticated to be admissible in evidence. (J. Benipayo, Evidence: Basic Principles and Selected Problems)

AUTHENTICATION AND PROOF OF DOCUMENTS c) When a private writing requires authentication; proof of a private writing •

Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (a) By anyone who saw the document executed or written; or (b) By evidence of the genuineness of the signature or handwriting of the maker (Rule 132, Sec. 20, par. 1).

• Any other private document need only be identified as that which it is claimed to be. (Rule 132, Sec. 20, par. 2).

AUTHENTICATION AND PROOF OF DOCUMENTS d) When evidence of authenticity of a private writing is not required (ancient documents) • Evidence of authenticity is not required when: • Private document is more than thirty years old; • Produced from the custody in which it would naturally be found if genuine; and • Is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given (Rule 132, Sec. 21).

AUTHENTICATION AND PROOF OF DOCUMENTS e) How to prove genuineness of a handwriting • The handwriting of a person may be proved by: 1. Testimony of: • Witness who actually saw the person writing the instrument (Rule 132, Sec. 20a). • Witness familiar with such handwriting (Rule 132, Sec. 22) and who can give his opinion thereon, such opinion being exception to opinion rule (Rule 130, Sec 50b). • Expert witness (Rule 130, Sec. 49).

2. Comparison by the court of the questioned handwriting and admitted genuine specimens thereof (Rule 132, Sec. 22).

AUTHENTICATION AND PROOF OF DOCUMENTS e) How to prove genuineness of a handwriting • No preference rule - The law makes no preference, much less distinction among and between the different means stated in the Rules of Court in proving the handwriting of a person. (Domingo v. Domingo, G.R. No. 150897, 11 April 2005) • Probative value of opinions of handwriting experts Courts are not bound to give probative value or evidentiary value to the opinions of handwriting experts, as resort to handwriting experts is not mandatory. (Bautista v. Castro, G.R. No. 61260, 17 February 1992, 206 SCRA 305, 312)

AUTHENTICATION AND PROOF OF DOCUMENTS f) Public documents as evidence; proof of official record • Public documents as evidence 1. Entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated. (Rule 132, Sec. 23). 2. All other public documents are evidence, even against a third person, of: • the fact which gave rise to their execution; • and of the date of the document. (Rule 132, Sec. 23).

AUTHENTICATION AND PROOF OF DOCUMENTS f) Public documents as evidence; proof of official record • Proof of official records • The record of public documents (referred to in paragraph Rule 132, Sec. 19 [a]) may be evidenced by: 1. An official publication thereof; or 2 By a copy attested by the officer having the legal custody of the record, or by his deputy.

AUTHENTICATION AND PROOF OF DOCUMENTS g) Attestation of a copy •Attestation requirements. • Primary requisites 1. Statement of correctness - The attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. (Rule 132, Sec. 25) 2. Official Seal - The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. (Rule 132, Sec. 25)

AUTHENTICATION AND PROOF OF DOCUMENTS g) Attestation of a copy •Attestation requirements. • Requisites for foreign public documents 1. Certificate of custody - If the record is not kept in the Philippines the copy must be accompanied by a certificate that such officer has the custody. The certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept (Rule 132, Sec. 24). 2. Authentication – the certificate must be authenticated by the seal of the office of the issuer (Rule 132, Sec. 24).

AUTHENTICATION AND PROOF OF DOCUMENTS g) Attestation of a copy •Attestation requirements. –Requisites for foreign public documents

Absent the attestation of the officer having the legal custody of the records and the certificate to that effect by a Philippine foreign service officer, a mere copy of the foreign document is NOT admissible as evidence to prove foreign law (Wildvalley Shipping Co. Ltd. v. CA, G.R. No. 119602, 6 October 2000).

AUTHENTICATION AND PROOF OF DOCUMENTS h) Public record of a public document • Proof of public records of private documents 1. The original record; (Rule 132, Sec. 27) 2. Copy of the original record, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. (Rule 132, Sec. 27)

AUTHENTICATION AND PROOF OF DOCUMENTS i) Proof of lack of record • A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry (Rule 132, Sec. 28).

AUTHENTICATION AND PROOF OF DOCUMENTS j) How a judicial record is impeached • Any judicial record may be impeached by evidence of:

(a) want of jurisdiction in the court or judicial officer; (b) collusion between the parties; or (c) fraud in the party offering the record, in respect to the proceedings (Rule 132, Sec. 29.).

AUTHENTICATION AND PROOF OF DOCUMENTS k) Proof of notarial documents • Notarial documents may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved (Rule 132, Sec. 30).

AUTHENTICATION AND PROOF OF DOCUMENTS l) How to explain alterations in a document • A party may show that an alteration was: 1. made by another, without his concurrence; 2. was made with the consent of the parties affected by it or was otherwise properly or innocent made; or 3. that the alteration did not change the meaning or language of the instrument (Rule 132, Sec. 31).

AUTHENTICATION AND PROOF OF DOCUMENTS m) Documentary evidence in an unofficial language • Article XIV, Sec. 3 1935 Constitution – English and Spanish are official languages. • Article XV, Sec. 3(3), 1973 Constitution – English and Filipino. (P.D. No. 155 – Spanish language shall continue to be recognized as an official language while important documents in government files are in the Spanish language and not translated into Pilipino or English) • Article XIV, Sec. 7, 1987 Constitution - the official languages are Filipino and, until otherwise provided by law, English, with the regional languages as auxiliary official languages in the region

LIBERAL CONSTRUCTION OF THE RULES OF EVIDENCE

Rule 1, Section 6 of the Rules of Court states that the “[r]ules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding.”

LIBERAL CONSTRUCTION OF THE RULES OF EVIDENCE •Clarification: Procedural rules are tools designed to facilitate the adjudication of cases. Courts and litigants alike are thus enjoined to abide strictly by the rules. And while the Court, in some instances, allows a relaxation in the application of the rules, this…was never intended to forge a bastion for erring litigants to violate the rules with impunity. The liberality in the interpretation and application of the rules applies only to proper cases and under justifiable causes and circumstances. While it is true that litigation is not a game of technicalities, it is equally true that every case must be prosecuted in accordance with the prescribed procedure to insure an orderly and speedy administration of justice (Alamayari v. Pabale, G.R. No. 182924, 24 December 2008).

QUANTUM OF EVIDENCE

a) Proof beyond reasonable doubt • Proof beyond reasonable doubt is that degree of proof which produces conviction in an unprejudiced mind. • Proof beyond reasonable doubt is required in criminal cases. • Absolute certainty is not required, only moral certainty.

QUANTUM OF EVIDENCE

a) Proof beyond reasonable doubt • N.B. An extrajudicial confession made by an accused, is not a sufficient ground for conviction UNLESS corroborated by evidence of corpus delicti. (Rule 133, Sec. 3).

• Requisites for circumstantial evidence to be sufficient for conviction: • There is more than 1 circumstance; • The facts from which the inferences are derived are proven; and • The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. (Rule 133, Sec. 4).

QUANTUM OF EVIDENCE b) Preponderance of evidence • Preponderance of evidence is required in civil cases • In determining preponderance of evidence, the court may consider: • • • • • • • •

All the facts and circumstances of the case; The witnesses’ manner of testifying; Their intelligence; Their means and opportunity of knowing the facts to which they testify; The probability or improbability of their testimony; Their interest or want of interest; Personal credibility so far as the same may legitimately appear upon the trial; Number of witnesses (note preponderance is not necessarily equivalent with the no. of witnesses).

QUANTUM OF EVIDENCE c) Substantial evidence Substantial evidence is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.

QUANTUM OF EVIDENCE d) Clear and convincing evidence Evidence is clear and convincing if it produces in the mind of the trier of fact a firm belief or conviction as to allegations sought to be established. It is intermediate, being more than preponderance, but not to the extent of such certainty as required beyond reasonable doubt in criminal cases (Black’s Law Dictionary, 5th ed., 227).

QUANTUM OF EVIDENCE Power of the court to stop further evidence The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution. (Rule 133, Sec. 6)

QUANTUM OF EVIDENCE

Evidence on motion When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (Rule 133, Sec. 7). Examples of motions which require presentation of evidence:  Motion for bail;  Application for TRO/injunction;  Motion to dismiss.

2004 BAR EXAMS

Amendment to Conform to Evidence Question: In a complaint for a sum of money filed before the MM RTC, plaintiff did not mention or even just hint at any demand for payment made on defendant before commencing suit. During the trial, plaintiff duly offered Exh. "A" in evidence for the stated purpose of proving the making of extrajudicial demand on defendant to pay P500.000, the subject of the suit.

2004 BAR EXAMS

Amendment to Conform to Evidence Question: xxx Exh. "A" was a letter of demand for defendant to pay said sum of money within 10 days from receipt, addressed to and served on defendant some two months before suit was begun. Without objection from defendant, the court admitted Exh. "A" in evidence. Was the court's admission of Exh. "A" in evidence erroneous or not? Reason. (5%)

2004 BAR EXAMS

Amendment to Conform to Evidence Suggested Answer: The court's admission of Exh. "A" in evidence is not erroneous. It was admitted in evidence without objection on the part of the defendant. It should be treated as if it had been raised in the pleadings. The complaint may be amended to conform to the evidence, but if it is not so amended, it does not affect the result of the trial on this issue. (Sec. 5 of Rule 10).

2004 BAR EXAMS

Sworn Statement Without Assistance of a Counsel Question:

Sgt. GR of WPD arrested two NPA suspects, Max and Brix, both aged 22, in the act of robbing a grocery in Ermita. As he handcuffed them he noted a pistol tucked in Max's waist and a dagger hidden under Brix's shirt, which he promptly confiscated.

2004 BAR EXAMS Sworn Statement Without Assistance of a Counsel Question: At the police investigation room, Max and Brix orally waived their right to counsel and right to remain silent. Then under oath, they freely answered questions asked by the police desk officer. Thereafter they signed their sworn statements before the police captain, a lawyer. Max admitted his part in the robbery, his possession of a pistol and his ownership of the packet of shabu found in his pocket.

2004 BAR EXAMS

Sworn Statement Without Assistance of a Counsel Question:

xxx Brix admitted his role in the robbery and his possession of a dagger. But they denied being NPA hit men. In due course, proper charges were filed by the City Prosecutor against both arrestees before the MM RTC.

2004 BAR EXAMS

Sworn Statement Without Assistance of a Counsel Question: May the written statements signed and sworn to by Max and Brix be admitted by the trial court as evidence for the prosecution? Reason. (5%)

2004 BAR EXAMS Sworn Statement Without Assistance of a Counsel Suggested Answer: No. The sworn written statements of Max and Brix may not be admitted in evidence, because they were not assisted by counsel. Even if the police captain before whom they signed the statements was a lawyer, he was not functioning as a lawyer, nor can he be considered as an independent counsel. Waiver of the right to a lawyer must be done in writing and in the presence of independent counsel (People v. Mahinay, 302 SCRA 455 11999]; People v. Espiritu, 302 SCRA 533 [1999]).

2005 BAR EXAMS

Private Document Question: May a private document be offered, and admitted in evidence both as documentary evidence and as object evidence? Explain.

2005 BAR EXAMS Private Document Answer: Yes, it can be considered as both documentary and object evidence. A private document may be offered and admitted in evidence both as documentary evidence and as object evidence. A document can also be considered as an object for purposes of the case. Objects as evidence are those addressed to the senses of the court. (Sec. 1, Rule 130, Rules of Court)

2005 BAR EXAMS Private Document Answer: xxx Documentary evidence consists of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions, offered as proof of their contents. (Sec. 2, Rule 130, Rules of Court) Hence, a private document may be presented as object evidence in order to establish certain physical evidence or characteristics that are visible on the paper and writings that comprise the document.

2006 BAR EXAMS

Admission of Guilt During Custodial Investigation Question: What are the requirements in order that an admission of guilt of an accused during a custodial investigation be admitted in evidence? (2.5%)

2006 BAR EXAMS Admission of Guilt During Custodial Investigation Suggested Answer: An admission of guilt during a custodial investigation is a confession. To be admissible in evidence, the requirements are: (1) the confession must be voluntary; (2) the confession must be made with the assistance of competent and independent counsel; (3) the confession must be express; and (4) the confession must be in writing (People v. Principe, 381 SCRA 642 [2002]).

2008 BAR EXAMS Offer of Compromise in Criminal Cases Question: Bembol was charged with rape. Bembol's father, Ramil, approached Artemon, the victim's father, during the preliminary investigation and offered P1 Million to Artemon to settle the case. Artemon refused the offer.

a. During trial, the prosecution presented Artemon to testify on Ramil's offer and thereby establish an implied admission of guilt. Is Ramil's offer to settle admissible in evidence? (3%)

2008 BAR EXAMS Offer of Compromise in Criminal Cases Suggested Answer: a. The offer of Artemon is not admissible in evidence against Bembol as an implied admission of guilt. To be admissible as an implied admission of guilt, the offer must be “an offer of compromise by the accused” (Sec. 27, Rule 130, Rules of Court). The facts of the case do not indicate that it was Bembol, the accused, who made the offer.

2008 BAR EXAMS

Oral Confession Question:

The mutilated cadaver of a woman was discovered near a creek. Due to witnesses attesting that he was the last person seen with the woman when she was still alive, Carlito was arrested within five hours after the discovery of the cadaver and brought to the police station. The crime laboratory determined that the woman had been raped.

2008 BAR EXAMS Oral Confession Question: xxx While in police custody, Carlito broke down in the presence of an assisting counsel and orally confessed to the investigator that he had raped and killed the woman, detailing the acts he had performed up to his dumping of the body near the creek. He was genuinely remorseful. During the trial, the State presented the investigator to testify on the oral confession of Carlito. Is the oral confession admissible as evidence of guilt? (4%)

2008 BAR EXAMS

Oral Confession Suggested Answer:

The oral confession is not admissible as evidence of guilt. The confession is in the nature of an extrajudicial confession before an investigator while under custodial investigation. Hence, the statutory provisions under R.A. No. 7438 (Sec. 2[d]) should have been to be complied with.

2008 BAR EXAMS Oral Confession Suggested Answer: xxx Under said law, any extrajudicial confession made by a person arrested, detained, or under custodial investigation shall be in writing and signed by such person in the presence of his counsel. An oral confession does not comply with the mandatory provisions of the law. Under R.A. No. 7438, the confession is inadmissible in evidence in any proceeding (Sec. 2[d], R.A. No. 7438).

2009 BAR EXAMS

Fruit of the Poisonous Tree Doctrine Question:

Arrested in a buy-bust operation, Edmond was brought to the police station where he was informed of his constitutional rights. During the investigation, Edmond refused to give any statement. However, the arresting officer asked Edmond to acknowledge in writing that six (6) sachets of "shabu" were confiscated from him.

2009 BAR EXAMS Fruit of the Poisonous Tree Doctrine Question: xxx Edmond consented and also signed a receipt for the amount of P3,000.00, allegedly representing the "purchase price of the shabu." At the trial, the arresting officer testified and identified the documents executed and signed by Edmond. Edmond's lawyer did not object to the testimony. After the presentation of the testimonial evidence, the prosecutor made a formal offer of evidence which included the documents signed by Edmond.

2009 BAR EXAMS

Fruit of the Poisonous Tree Doctrine Question: xxx Edmond's lawyer objected to the admissibility of the documents for being the "fruit of the poisoned tree." Resolve the objection with reasons. (3%)

2009 BAR EXAMS Fruit of the Poisonous Tree Suggested Answer: The objection to the admissibility of the documents, which the arresting officer asked Edmond to sign without the benefit of counsel, is well taken. Said documents having been signed by the accused while under custodial investigation, constitute an “admission” without the benefit of counsel, that the shabu came from him and that the P3,000.00 was received by him pursuant to the illegal selling of the drugs.

2009 BAR EXAMS

Fruit of the Poisonous Tree Suggested Answer:

xxx Thus, it was obtained by the arresting officer in clear violation of Sec. 12(3), Art. III of the 1987 Constitution, particularly the right to be assisted by counsel during custodial investigation. Moreover, the objection to the admissibility of the evidence was timely made, i.e., when the same is formally offered.

2010 BAR EXAMS Objections; Fruit of the Poisonous Tree Doctrine Question: Dominique was accused of committing a violation of the Human Security Act. He was detained incommunicado, deprived of sleep, and subjected to water torture. He later allegedly confessed his guilt via an affidavit.

After trial, he was acquitted on the ground that his confession was obtained through torture, hence, inadmissible as evidence.

2010 BAR EXAMS Objections; Fruit of the Poisonous Tree Doctrine Question: In a subsequent criminal case for torture against those who deprived him of sleep and subjected him to water torture, Dominique was asked to testify and to, among other things, identify his above-said affidavit of confession. As he was about to identify the affidavit, the defense counsel objected on the ground that the affidavit is a fruit of a poisonous tree. Can the objection be sustained? Explain. (3%)

2010 BAR EXAMS Objections; Fruit of the Poisonous Tree Doctrine Suggested Answer: No, the objection may not be sustained on the ground stated, because the affiant was only to identify the affidavit which is not yet being offered in evidence. The doctrine of the fruit of the poisonous tree can only be invoked by Dominique as his defense in the crime of Violation of Human Security Act filed against him but not by the accused in a torture case filed by him.

2010 BAR EXAMS

Objections; Fruit of the Poisonous Tree Doctrine Suggested Answer: In the instant case, the presentation of the affidavit cannot be objected to by the defense counsel on the ground that it is a fruit of the poisonous tree because the same is used in Dominique’s favor.

2011 BAR EXAMS

Proof of Due Execution of Genuineness Question: Bearing in mind the distinction between private and public document, which of the following is admissible in evidence without further proof of due execution or genuineness?

2011 BAR EXAMS Proof of Due Execution of Genuineness Question: (A) Baptismal certificates. (B) Official record of the Philippine Embassy in Singapore certified by the Vice- Consul with official seal. (C) Documents acknowledged before a Notary Public in Hong Kong.

(D) Unblemished receipt dated December 20, 1985 signed by the promissee, showing payment of a loan, found among the well-kept file of the promissor.

2011 BAR EXAMS

Evidence of Guilt of a Past Crime Question: Ben testified that Jaime, charged with robbery, has committed bag-snatching three times on the same street in the last six months. Can the court admit this testimony as evidence against Jaime?

2011 BAR EXAMS Evidence of Guilt of a Past Crime Question: xxx (A) No, since there is no showing that Ben witnessed the past three robberies. (B) Yes, as evidence of his past propensity for committing robbery. (C) Yes, as evidence of a pattern of criminal behavior proving his guilt of the present offense. (D) No, since evidence of guilt of a past crime is not evidence of guilt of a present crime.

TESTIMONIAL EVIDENCE

(WITNESS - ASKED IN 1998, 2003, 2005, 2009, 2013)

QUALIFICATIONS OF A WITNESS • All persons who can perceive, and perceiving, can make their known perception to others, may be witnesses (Rule 130, Sec. 20). • Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification (Rule 130, Sec. 20).

COMPETENCY VERSUS CREDIBILITY OF A WITNESS • Competency: The presence of those characteristics, or the absence of those disabilities, which render a witness legally fit and qualified to give testimony in a court of justice. • Credibility: Worthiness of belief; that quality in a witness which renders his evidence worthy of belief. After the competence of a witness is allowed, the consideration of his credibility arises.

COMPETENCY VERSUS CREDIBILITY OF A WITNESS • A competent witness is one who is not excluded by law or the Rules of Court from being a witness. Competency is determined by the prevailing exclusionary rules of evidence.

•

A credible witness is one who being competent to give evidence, is worthy of belief (Black’s Law Dictionary).

•

It is well-settled that the determination of the credibility of the witnesses is correctly assigned to the trial court, which is in the best position to observe the demeanor and bodily movements of all the witnesses (People v. Banzuela, G.R. No. 202060, 11 December 2013).

HEARSAY

(ASKED IN 1998, 1999, 2001, 2002, 2003, 2004, 2005, 2007, 2009, 2010, AND 2012)

2. HEARSAY RULE (ASKED IN 1998, 1999, 2001, 2002, 2003, 2004, 2005, 2007, 2009, 2010, AND 2012)

a) Meaning of hearsay • Hearsay evidence – any evidence, whether oral or documentary, whose probative value is based not on personal knowledge of the witness but on the knowledge of some other person not on the witness stand.

HEARSAY RULE a) Meaning of hearsay • If a party does not object, the hearsay evidence is admissible. Illustration: The repeated failure of the party to cross-examine the witness is an implied waiver of such right and the testimony of the said witness who died thereafter should not be excluded from the record (Savory Luncheonette v. Lakas ng Manggagawang Pilipino, G.R. No. L-38964, 31 January 31). • But even if hearsay evidence not objected to is admissible, it has no probative value. Hearsay evidence whether objected to or not has no probative value (People v. Parungao, G.R. No. 125812, 28 November 1996).

HEARSAY RULE a) Meaning of hearsay •Two concepts of hearsay evidence:

(1) Second hand information (not derived from personal knowledge of witness); and (2) Testimony by a witness derived from his personal knowledge but the adverse party is not given opportunity to cross-examine.

HEARSAY RULE a) Meaning of hearsay • Principle of Independently Relevant Statements The doctrine on independently relevant statements holds that conversations communicated to a witness by a third person may be admitted as proof that, regardless of their truth or falsity, they were actually made. Evidence as to the making of such statements is not secondary but primary, for in itself it (a) constitutes a fact in issue or (b) is circumstantially relevant to the existence of such fact (Republic v. Heirs of Alejega, G.R. No. 146030, 3 December 2002).

HEARSAY RULE b) Reason for exclusion of hearsay evidence • The real basis for the exclusion of hearsay evidence lies in the fact that hearsay testimony is not subject to the tests which can ordinarily be applied for the ascertainment of the truth of testimony, since the declarant is not present and available for cross-examination (Mollaneda v. Umacob, G.R. No. 140128, 6 June 2001).

HEARSAY RULE c) Exceptions to the hearsay rule i. Dying declaration • Dying declaration is an ante mortem statement or statement in articulo mortis. • Requisites: (1) That death is imminent and the declarant is conscious of that fact;

(2) That the declaration refers to the cause and the surrounding circumstances of such death; (3) That the declaration relates to facts which the victim is competent to testify to; (4) That the declaration is offered in a case wherein the declarant’s death is the subject of the inquiry (People v. Serenas, G.R. No. 188124, 29 June 2010; People v. Umapas, G.R. No. 215742, 22 March 2010).

HEARSAY RULE c) Exceptions to the hearsay rule i. Dying declaration • Dying declaration has weight even if declarant did not die immediately after his declaration. It is the belief of impending death and not the rapid succession of death that renders the dying declaration admissible (People v. Bautista, G.R. No. 111149, 5 September 1997)

HEARSAY RULE c) Exceptions to the hearsay rule i. Dying declaration • Victim need not state that he has lost all hope of recovery. It is sufficient that circumstances are such as to inevitably lead to the conclusion that at the time the declaration was made, the declarant would not expect to survive the injury from which he actually died. The degree and seriousness of the wounds and the fact that death supervened thereafter constitute substantial evidence of the victim's consciousness of his impending death (People v. Tanaman, et al., G.R. No. 71768, 28 July 1987).

HEARSAY RULE c) Exceptions to the hearsay rule i. Dying declaration • Mere gesture of dying victim inconclusive. The gesture of a dying woman in pointing to a direction, when asked for the identity of her assailant, is too vague to be given such probative value in determining the culpability of the accused (People v. Ola, G.R. No. L47147, 3 July 1987).

HEARSAY RULE c) Exceptions to the hearsay rule ii. Declaration against interest •Requisites: (1) The declaration is made by: (i) a person deceased; or (ii) a person who is unable to testify [i.e. in foreign country or with physical/mental impairments]; (2) The declaration is against the interest of the declarant; (3) The fact asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration, unless he believed it to be true (Rule 130, Sec. 38; Fuentes v. Court of Appeals, G.R. No. 111692, 9 February 1996).

HEARSAY RULE c) Exceptions to the hearsay rule ii. Declaration against interest • Theory: The theory under which declarations against interest are received in evidence notwithstanding they are hearsay is that the necessity of the occasion renders the reception of such evidence advisable and, further that the reliability of such declaration asserts facts which are against his own pecuniary or moral interest (Parel v. Prudencio, G.R. No. 146556, 19 April 2006).

HEARSAY RULE ADMISSIONS

DECLARATION AGAINST INTEREST

It is made by a party to a litigation or by one in privity with or identified in legal interest with such party (Unchuan v. Lozada, G.R. No. 172671, 16 April 2009, 585 SCRA 421, 435). It is admissible whether or not the declarant is available as a witness. (Unchuan v. Lozada, supra) It is not necessarily against the interest of the admitter.

It is made by a person who is neither a party nor in privity with a party to the suit (Lazaro v. Agustin, G.R. No. 152364, 15 April 2010).

It is admissible only when the declarant is unavailable as a witness. (Lazaro v. Agustin, supra). The declaration must necessarily be against declarant’s interest.

HEARSAY RULE c) Exceptions to the hearsay rule iii. Act or declaration about pedigree • Requisites: (1) The actor or declarant is dead or unable to testify; (2) The act or declaration is made by the person related to the subject by birth or marriage; (3) The relationship between the declarant or the actor and the subject is shown by evidence other than such act or declaration; (4) The act or declaration was made prior to the controversy. (Rule 130, Sec. 39; Nepomuceno v. Lopez, G.R. No. 181258, 18 March 2010).

HEARSAY RULE c) Exceptions to the hearsay rule iv. Family reputation or tradition regarding pedigree • Requisites: (1) Witness testifying as to reputation or tradition must be a member, by consanguinity or affinity, of the same family as the subject; (2) Such tradition or reputation must have existed in that family ante litem motam. (Rule 130, Sec. 40; People v. Soriano, G.R. No. 154278, 27 December 2002).

HEARSAY RULE c) Exceptions to the hearsay rule v. Common reputation • Common reputation refers to general reputation; definite opinion of the community in which the fact to be proved is known or exists. • Requisites. (1) The subject of inquiry must be facts of public or general interest more than 30 years old, respecting marriage or moral character; (2) The evidence must refer to facts ante litem motam; (3) The facts may be established by: Testimonial evidence of competent witness; Monuments and inscription in public places; Documents containing statements of reputation.

HEARSAY RULE c) Exceptions to the hearsay rule vi. Part of the Res Gestae

• Res gestae is a Latin phrase which literally means "things done.“ (Capila v. People, G.R. No. 146161, 17 July 2006). • Two Types of Res Gestae: 1. Spontaneous statements; and 2. Contemporaneous statements or verbal acts (Rule 130, Sec. 42)

HEARSAY RULE c) Exceptions to the hearsay rule vi. Part of the Res Gestae • Requisites of the First Type (Spontaneous Statements): The rule in res gestae applies when the declarant himself did not testify and the testimony of the witness who heard the declarant complies with the following requisites: (1) the principal act, the res gestae, is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise; and (3) the statements concerned the occurrence in question and its immediately attending circumstances (prior or subsequent) (Rule 130, Sec. 42; People v. Calinawan, G.R. No. 226145, 13 February 2017).

HEARSAY RULE c) Exceptions to the hearsay rule vi. Part of the Res Gestae • Requisites of the Second Type (Verbal Acts): (1) The principal act to be characterized must be equivocal; (2) The equivocal act must be relevant to the issue; (3) The verbal act must be contemporaneous with the equivocal act; (4) The verbal act must give legal significance to the equivocal act (Talidano v. Falcom Maritime & Allied Service, Inc. G.R. No. 172031, 14 July 2008).

HEARSAY RULE c) Exceptions to the hearsay rule vii. Entries in the course of business • Requisites: (1) The person who made the entry must be dead or unable to testify; (2) The entries were made at or near the time of the transaction to which they refer; (3) The entrant was in a position to know the facts stated in the entries; (4) The entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious; (5) The entries were made in the ordinary or regular course of business or duty (Rule 130, Sec. 43; Jose, Jr. v Michaelmar Phils., Inc., et al., G.R. No. 169606, 27 November 2009).

HEARSAY RULE c) Exceptions to the hearsay rule vii. Entries in the course of business • Theory for admissibility Entries in the course of business are accorded unusual reliability because their regularity and continuity are calculated to discipline record keepers in the habit of precision. If the entries are financial, the records are routinely balanced and audited. In actual experience, the whole of the business world function in reliance of such kind of records (LBP v. Monet’s Export and Manufacturing Corp., G.R. No. 184971, 19 April 2010).

HEARSAY RULE c) Exceptions to the hearsay rule viii. Entries in official records • Requisites: (1) Entries were made by: (i) a public officer in the performance of his duties; or (ii) by a person in the performance of a duty specially enjoined by law; (2) The entrant had personal knowledge of the facts stated by him or such facts were acquired by him from reports made by persons under a legal duty to submit the same; and (3) Such entries were duly entered in a regular manner in the official records (Alvarez v. PICOP Resources, G.R. No. 162243, 3 December 2009).

HEARSAY RULE c) Exceptions to the hearsay rule viii. Entries in official records • Entrant need not be presented. The presentation of the records themselves would, therefore, have been admissible as an exception to the hearsay rule even if the public officer/s who prepared them was/were not presented in court, provided the above requisites could be adequately proven (Alvarez v. PICOP Resources, supra; Africa v. Caltex, 123 Phil. 272).

HEARSAY RULE c) Exceptions to the hearsay rule viii. Entries in official records • Police reports of vehicular accidents. The presentation of the police report itself is admissible as an exception to the hearsay rule even if the police investigator who prepared it was not presented in court, as long as the requisites under Rule 130, Sec. 44 could be adequately proved (Malayan Insurance Co., Inc. v. Alberto, G.R. No. 194320, 1 February 2012).

HEARSAY RULE c) Exceptions to the hearsay rule ix. Commercial lists and the like • Requisites: A document is a commercial list if: (1) it is a statement of matters of interest to persons engaged in an occupation; (2) such statement is contained in a list, register, periodical or other published compilation; (3) said compilation is published for the use of persons engaged in that occupation, and (4) it is generally used and relied upon by persons in the same occupation (Rule 130, Sec. 45; PNOC Shipping v. Court of Appeals, G.R. No. 107518, 8 October 1998).

HEARSAY RULE c) Exceptions to the hearsay rule x. Learned treaties • Requisites: (1) The court takes judicial notice of published treatise, periodical or pamphlet on a subject of history, law, science or art; or (2) A witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as an expert in the subject (Rule 130, Sec. 46).

HEARSAY RULE c) Exceptions to the hearsay rule xi. Testimony or deposition at a former trial • Requisites: (1) Witness is dead or unable to testify; (2) His testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; (3) The former case involved the same subject as that in the present case, although on different causes of action; (4) The issue testified to by the witness in the former trial is the same issue involved in the present case; and (5) The adverse party had an opportunity to cross-examine the witness in the former case.

HEARSAY RULE c) Exceptions to the hearsay rule xi. Testimony or deposition at a former trial • Meaning of “unable to testify” The phrase "unable to testify" refers to a physical inability to appear at the witness stand and to give a testimony. Hence notwithstanding the deletion of the phrase "out of the Philippines," which previously appeared in Section 47, Rule 130 of the Rules of Court, absence from jurisdiction may still constitute inability to testify under the same rule (Republic v. Sandiganbayan, G.R. No. 152375, 16 December 2011).

HEARSAY RULE c) Exceptions to the hearsay rule xi. Testimony or deposition at a former trial • Meaning of “same parties.” To render the testimony of a witness admissible at a later trial or action, the parties to the first proceeding must be the same as the parties to the later proceeding. Physical identity, however, is not required; substantial identity or identity of interests suffices, as where the subsequent proceeding is between persons who represent the parties to the prior proceeding by privity in law, in blood, or in estate. The term "privity" denotes mutual or successive relationships to the same rights of property (Republic v. Sandiganbayan, supra).

OPINION RULE • General rule The opinion of a witness is NOT admissible (Rule 130, Sec. 48). • Exceptions (1) Opinion of expert witness (2) Opinion of ordinary witness

OPINION RULE a) Opinion of expert witness • The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence. (Rule 130, Sec. 48).

OPINION RULE a) Opinion of expert witness • Courts are not bound by expert’s testimony. Section 49, Rule 130 of the Revised Rules of Court states that the opinion of a witness on a matter requiring special knowledge, skill, experience or training, which he is shown to possess, may be received in evidence. The use of the word "may" signifies that the use of opinion of an expert witness is permissive and not mandatory on the part of the courts. Allowing the testimony does not mean, too, that courts are bound by the testimony of the expert witness. The testimony of an expert witness must be construed to have been presented not to sway the court in favor of any of the parties, but to assist the court in the determination of the issue before it, and is for the court to adopt or not to adopt depending on its appreciation of the attendant facts and the applicable law (Tabao v. People, G.R. No. 187246, 20 July 2011).

OPINION RULE b) Opinion of ordinary witness •The opinion of a witness for which proper basis is given, may be received in evidence regarding; (a) the identity of a person about whom he has adequate knowledge; (b) a handwriting with which he has sufficient familiarity; (c) the mental sanity of a person with whom he is sufficiently acquainted; and (d) his impressions of the emotion, behavior, condition or appearance of a person (Rule 130, Sec. 48).

CHARACTER EVIDENCE

• General rule:

Character evidence is not admissible (Rule 130, Sec. 51).

Exceptions: a) Criminal cases • Accused – may prove his good moral character pertinent to the moral trait in the offense charge. • Prosecution – may present character evidence pertaining to accused’s bad moral character pertinent to the moral trait involved in the offense charged only in rebuttal. • Offended party - The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged

Exceptions: b) Civil cases • Evidence of the moral character of a party in a civil case is admissible only when pertinent to the issue of character involved in the case.

• Evidence of the good character of a witness is not admissible until such character has been impeached (Rule 130, Sec. 51).

• Rape Shield Rule In prosecutions for rape, evidence of complainant's past sexual conduct, opinion thereof or of his/her reputation shall not be admitted unless, and only to the extent that the court finds, that such evidence is material and relevant to the case (R.A. No. 8505, Sec. 6).

2003 BAR EXAMS HEARSAY RULE Independently Relevant Statement Question: X was charged with robbery. On the strength of a warrant of arrest issued by the court, X was arrested by police operatives. They seized from his person a handgun. A charge for illegal possession of firearm was also filed against him. In a press conference called by the police, X admitted that he had robbed the victim of jewelry valued at P500,000.00.

2003 BAR EXAMS HEARSAY RULE

Independently Relevant Statement

Question (continued):

The robbery and illegal possession of firearm cases were tried jointly. The prosecution presented in evidence a newspaper clipping of the report of the reporter who was present during the press conference stating that X admitted the robbery. It likewise presented a certification of the PNP Firearms and Explosive Office attesting that the accused had no license to carry any firearm. The certifying officer, however, was not presented as a witness. Both pieces of evidence were objected to by the defense.

2003 BAR EXAMS HEARSAY RULE Independently Relevant Statement Question: a) Is the newspaper clipping admissible in evidence against X?

b) Is the certification of the PNP Firearm and Explosive Office without the certifying officer testifying on it admissible in evidence against X?

2003 BAR EXAMS HEARSAY RULE

Independently Relevant Statement Suggested Answers: Yes, the newspaper clipping is admissible in evidence against X. Regardless of the truth or falsity of a statement, the hearsay rule does not apply and the statement may be shown where the fact that it is made is relevant. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such fact (Gotesco Investment Corporation vs. Chatto, 210 SCRA 18 [1992]).

2003 BAR EXAMS HEARSAY RULE

Independently Relevant Statement Suggested Answers:

Yes, the certification is admissible in evidence against X because a written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry (Sec. 28 of Rule 132).

2005 BAR EXAMS Exception to Hearsay Rule; Res Gestae; Independently Relevant Statement Question: Dencio barged into the house of Marcela, tied her to a chair and robbed her of assorted pieces of jewelry and money. Dencio then brought Candida, Marcela's maid, to a bedroom where he raped her. Marcela could hear Candida crying and pleading: "Huwag! Maawa ka sa akin!" After raping Candida, Dencio fled from the house with the loot. Candida then untied Marcela and rushed to the police station about a kilometer away and told Police Officer Roberto Maawa that Dencio had barged into the house of Marcela, tied the latter to a chair and robbed her of her jewelry and money.

2005 BAR EXAMS Exception to Hearsay Rule; Res Gestae; Independently Relevant Statement Question (continued): Candida also related to the police officer that despite her pleas, Dencio had raped her. The policeman noticed that Candida was hysterical and on the verge of collapse. Dencio was charged with robbery with rape. During the trial, Candida can no longer be located. (8%)

2005 BAR EXAMS Exception to Hearsay Rule; Res Gestae; Independently Relevant Statement Question: If the prosecution presents Police Officer Roberto Maawa to testify on what Candida had told him, would such testimony of the policeman be hearsay? Explain. If the police officer will testify that he noticed Candida to be hysterical and on the verge of collapse, would such testimony be considered as opinion, hence, inadmissible? Explain.

2005 BAR EXAMS Exception to Hearsay Rule; Res Gestae; Independently Relevant Statement Suggested Answers: No. The testimony of the policeman is not hearsay. It is part of the res gestae. It is also an independently relevant statement. The police officer testified of his own personal knowledge, not to the truth of Candida's statement, i.e., that she told him, despite her pleas, Dencio had raped her. He did not testify to the truth of his statement (People v. Gaddi, G.R. No. 74065, 27 February 1989).

2005 BAR EXAMS Exception to Hearsay Rule; Res Gestae; Independently Relevant Statement Suggested Answers: No, it cannot be considered as opinion, because he was testifying on what he actually observed. A witness may testify on his impressions of the emotion, behavior, condition or appearance of a person. (Rules of Court, Rule 130, Sec. 50, last par.).

2007 BAR EXAMS Hearsay Rule; Res Gestae; Admission Against Interest Questions:

Dying

Declaration;

• What is the hearsay rule? (5%) • In relation to the hearsay rule, what do the following rules of evidence have in common? (5%) • The rule on statements that are part of the res gestae; • The rule on dying declarations; • The rule on admissions against interest.

2007 BAR EXAMS Hearsay Rule; Res Gestae; Admission Against Interest Suggested Answers:

Dying

Declaration;

The hearsay rule is a rule of evidence to the effect that a witness can testify only to those facts which he knows of his own knowledge or derived from his own perceptions, except as otherwise provided in the Rules of Court (Rule 130, Sec. 36, Rules of Court).

2007 BAR EXAMS Hearsay Rule; Res Gestae; Dying Declaration; Admission Against Interest Suggested Answers:

The rules on the evidence specified in the question asked, have in common the following: The evidence although hearsay, are allowed by the Rules as exceptions to the hearsay rule;

2007 BAR EXAMS Hearsay Rule; Res Gestae; Dying Declaration; Admission Against Interest Suggested Answers:

The facts involved are admissible in evidence or reasons of necessity and trustworthiness; and The witness is testifying on acts which are not of his own knowledge or derived from his own perception.

2011 BAR EXAMS CHARACTER EVIDENCE - Admissibility

Question: Character evidence is admissible (A) in criminal cases, the accused may prove his good moral character if pertinent to the moral trait involved in the offense charged. (B) in criminal cases, the prosecution may prove the bad moral character of the accused to prove his criminal predisposition.

(C) in criminal cases, the bad moral character of the offended party may not be proved. (D) when it is evidence of the good character of a witness even prior to impeachment.

2011 BAR EXAMS Excited Statement Question: To prove that Susan stabbed her husband Elmer, Rico testified that he heard Leon running down the street, shouting excitedly, "Sinasaksak daw ni Susan ang asawa niya! (I heard that Susan is stabbing her husband!)" Is Leon's statement as narrated by Rico admissible? (A) No, since the startling event had passed.

(B) Yes, as part of the res gestae. (C) No, since the excited statement is itself hearsay. (D) Yes, as an independently relevant statement.

2012 BAR EXAMS Exception to Hearsay Rule Question: When caught, X readily admitted to the Forestry Ranger that he cut the trees. Such a statement may be admitted and is not necessarily hearsay because: (A) it is a judicial admission of guilt. (B) it shows the statement was true. (C) it will form part of the circumstantial evidence to convict. (D) it proves that such a statement was made.

DISQUALIFICATIONS OF WITNESSES a) By reason of mental capacity or immaturity •

The following persons cannot be witnesses: (a) Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; (b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully (Rule 130, Sec. 21)

DISQUALIFICATIONS OF WITNESSES a) By reason of mental capacity or immaturity • Minority, alone, is not a sufficient ground for disqualification. Leeway should be given to witnesses who are minors, especially when they are relating past incidents of abuse (People v. Dominguez, G.R. No. 191065, 13 June 2011). Thus, a child may still be a witness as long as the following are shown: (a) capacity of observation; (b) capacity of recollection; and (c) capacity of communication (People v. Mendoza, G.R. No. 113791, 22 February 1996, 254 SCRA 18).

DISQUALIFICATIONS OF WITNESSES a) By reason of mental capacity or immaturity •

Mental retardation per se does not affect credibility (People v. Rosales, G.R. No. 197537, 24 July 2013). • Mental unsoundness of the witness at the time of the event testified to affects only his or her credibility. As long as the witness can convey ideas by words or signs and gives sufficiently intelligent answers to the questions propounded, she is a competent witness even if she is a mental retardate (People v. Maceda, G.R. No. 138805, 28 February 2001, 353 SCRA 228).

DISQUALIFICATIONS OF WITNESSES b) By reason of marriage • General Rule: During their marriage, spouses may not testify for or against the other without the consent of the affected spouse. (Rule 130, Sec. 22). • Exceptions: • In a civil case by one against the other; or • In a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. (Rule 130, Sec. 22).

DISQUALIFICATIONS OF WITNESSES b) By reason of marriage Requisites for spousal immunity: 1. Valid marriage; 2. Other spouse is party to the action. Waiver of spousal immunity: • The objection to the competency of the spouse must be made when he or she is first offered as a witness. Failure to make a timely objection is tantamount to waiver of spousal immunity (People v. Pansensoy, G.R. No. 140634. 12 September 2002).

DISQUALIFICATIONS OF WITNESSES b) By reason of marriage Spousal immunity in cases where a spouse is jointly charged with other accused: • The testimony of a wife of an accused, when timely objected to, is inadmissible against the latter. However, the same may be admitted as against other persons jointly charged in said case. (People v. Quidato, Jr. G.R. No. 140634, 12 September 2002).

DISQUALIFICATIONS OF WITNESSES b) By reason of marriage Estranged Spouses •The disqualification does not apply in case of estranged spouses. Where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fails. In such a case, identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, the security and confidences of private life, which the law aims at protecting, will be nothing but ideals, which through their absence, merely leave a void in the unhappy home (Alvarez v. Ramirez, G.R. No. 143439, 14 October 2005).

DISQUALIFICATIONS OF WITNESSES c) By reason of death or insanity of adverse party (Dead Man’s Statute or Survivor’s Disqualification Rule)

•

Cases where applicable: (i) cases against an executor or administrator or other representative of a deceased person upon a claim or demand against the estate of a deceased person; or (ii) against a person of unsound mind, upon a claim or demand against the estate of such person of unsound mind (Rule 130, Sec. 23).

DISQUALIFICATIONS OF WITNESSES c) By reason of death or insanity of adverse party • To Whom or When not applicable: i.

ii.

Ordinary witnesses, who are not the plaintiff, assignor of plaintiff, or person in whose behalf the case is prosecuted. (Bajenting v. Bañez, G.R. No. 166190, 20 September 2006). Officers and/or stockholders of a corporation are not disqualified from testifying, for or against a corporation which is a party to an action upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person. (Lichauco v. Atlantic Gulf, G.R. No. L-2016, 23 August 1949).

DISQUALIFICATIONS OF WITNESSES c) By reason of death or insanity of adverse party •To Whom or When not applicable: (iii)

When there is an imputation of fraud against the deceased which had been established beyond all doubt, the plaintiff is not barred from testifying to such fraud. The Dead Man’s Statute is not designed to shield wrongdoers and to render a plaintiff incompetent to testify to fraudulent transactions of the deceased (Ong Chua v. Carr, 53 Phil. 975; Go Chi Gun v. Co Cho, 96 Phil. 622). (iv) When the plaintiff is the executor, administrator or legal representative of the deceased, or the person of unsound mind, the defendant or defendants are free to testify against the plaintiff (Tongco v. Vianzon, 50 Phil. 698).

DISQUALIFICATIONS OF WITNESSES c) By reason of death or insanity of adverse party •To Whom or When not applicable: (v)

When the survivor's testimony refers to a negative fact. (Mendezona v. Vda. de Goitia, 54 Phil. 557). (vi) When the survivor's testimony is favorable to the deceased (Icard v. Marasigan, 71 Phil. 419). (vii) Testimony on transactions with agent of deceased or incompetent party (Goni, et al., v. Court of Appeals, et al., 144 SCRA 231).

DISQUALIFICATIONS OF WITNESSES c) By reason of death or insanity of adverse party •How protection of the dead man’s statute is waived: (i) By not objecting to plaintiff's testimony on prohibited matters (Marella v. Reyes, 12 Phil. 1). (ii) By cross-examining the plaintiff on prohibited matters. (Tongco v. Vianzon, 50 Phil. 698). (iii) By calling witnesses to testify on prohibited matters. (Arroyo v. Azur, 76 Phil. 493). (iv) When the plaintiff's deposition is taken by the representative of the estate or when counsel for the representative crossexamined the plaintiff as to matters occurring during the deceased's lifetime (Goni, et al., v. Court of Appeals, et al., 144 SCRA 231).

DISQUALIFICATIONS OF WITNESSES Dead Man’s Statute Not completely disqualified but is only prohibited from testifying on the matters therein specified. Applies only to a civil case or special proceeding over the estate of the deceased or insane person.

Marital Disqualification Rule Complete and absolute disqualification.

Applies to a civil or criminal case, subject to the two exceptions provided.

PRIVILEGED COMMUNICATION (ASKED IN 1998, 2000, 2004, 2006, AND 2010)

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications • (a) Husband and wife (Marital Privilege Rule) • The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants.

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications • (a) Husband and wife (Marital Privilege Rule) • Applicability  Scope of protection extends during or after the marriage. (Rule 130, Sec. 24 [a]).  Since the confidential nature of the communication is the basis of the privilege, the same cannot be invoked where it was not intended to be kept in confidence by the spouse who received the same, as in the case of a dying declaration of the husband to his wife as to who was his assailant.

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications • (a) Husband and wife (Marital Privilege Rule) • Waiver of protection: (1) Failure to object to presentation; or (2) Through any conduct that may be construed as implied consent (Lacurom v. Jacoba, A.C. No. 5921, 10 March 2006).

DISQUALIFICATIONS OF WITNESSES Spousal Immunity Rule Marital Privilege Rule Can be invoked only if one of Can be claimed whether the spouses is a party to the or not the spouse is a action. party to the action. Applies only if marriage is Can be claimed even existing at the time the after the marriage had testimony is offered. been dissolved. Constitutes a total prohibition Applies only to against any testimony for or confidential against the spouse of the communications between witness. the spouses.

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications (b) Attorney-Client Privilege Rule • An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity.

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications (b) Attorney-Client Privilege Rule • Requisites: (1) Relationship of lawyer and client; (2) Privilege is invoked with respect to a confidential communication between them in the course of, or with the view of professional employment; (3) Client has not given his consent to the disclosure of the communication. (Rule 130, Sec. 24[b]; Disini v. Sandiganbayan, G.R. No. 180564, 22 June 2010).

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications (b) Attorney-Client Privilege Rule • Persons covered: (1) The attorney; (2) The attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity (Rule 130, Sec. 24[b]).

• Waiver of protection: The client may waive the protection of the Attorney-Client Privilege Rule. If the client waives the privilege, even his attorney cannot invoke it.

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications (b) Attorney-Client Privilege Rule • The Regala Doctrine • General rule: A lawyer may NOT invoke the privilege and refuse to divulge the name or identity of his client. • Exceptions: (1) When a strong probability exists that revealing the name would implicate that person in the very same activity for which he sought the lawyer’s advice; (2) When disclosure would open the client to liability; (3) When the name would furnish the only link that would form the chain of testimony necessary to convict (Regala v. Sandiganbayan, G.R. No. 105938, 20 September 1996).

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications (c) Physician-Patient Privilege •

A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in capacity, and which would blacken the reputation of the patient.

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications (c) Physician-Patient Privilege •

Requisites:

(1) The physician is authorized to practice medicine, surgery or obstetrics; (2) The information was acquired or the advice or treatment was given by him in his professional capacity for the purpose of treating and curing the patient (3) The information, advice or treatment, if revealed, would blacken the reputation of the patient; (4) The privilege is invoked in a civil case whether the patient is a party thereto or not (Rule 130, Sec. 24 [c]).

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications (c) Physician-Patient Privilege

• Meaning of “professional capacity” • The physician may be considered to be acting in his professional capacity when he attends to the patient for curative, preventive, or palliative treatment. Thus, only disclosures which would have been made to the physician to enable him to "safely and efficaciously to treat his patient" are covered by the privilege. (Lim v. Court of Appeals, G.R. No. 91114, 25 September 1992).

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications (c) Physician-Patient Privilege

• Waiver of protection • This privilege belongs to the patient, so that it is only he that can claim or waive it. It is waivable expressly or impliedly (See Penn. Mutual Life Ins. Co. v. Wiler, 100 Ind. 92). • Example: Under Rule 28, the court may order a party to submit to a physical or mental examination, so long as the mental or physical condition is in dispute. The party examined may request a report of the examination. By doing so, he waives any privilege he may have in that action regarding the testimony of every other person who has examined him in respect of the same examination (Rule 28, Sec. 4).

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications (c) Physician-Patient Privilege • Information elicited during consultation with a physician in the presence of third parties removes such information from the mantle of the privilege (Lim v. Court of Appeals, G.R. No. 91114, 25 September 1992).

• What is protected is the tenor of the consultation. The number of times a patient consulted with his doctor is not privileged. (Lim v. Court of Appeals, supra).

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications (d) Minister/Priest – Penitent Privilege • A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs.

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications (e) State Secrets Rule • A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. • Public interest is paramount. The rule that a public officer cannot be examined as to communications made to him in official confidence does not apply when there is nothing to show that the public interest would suffer by the disclosure in question (Banco Filipino v. Monetary Board, 142 SCRA 523).

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications (f) Parental and Filial Privilege Rule •

•

No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants (Rule 130, Sec. 25). No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one parent against the other (Family Code, Article 215).

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications (g) Newsman’s Privilege • The publisher, editor or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news report or information appearing in said publication which was related in confidence to him, unless the court or a House or committee of Congress finds that such revelation is demanded by the security of the State (See R.A. No. 53, as amended by R.A. No. 1477, the “Shield Law”).

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications (h) Privilege under the Labor Code •

All information and statements made at conciliation proceedings shall be treated as privileged communications and shall not be used as evidence in the NLRC, and conciliators and similar officials shall not testify in any court or body regarding any matter taken up at the conciliation proceedings conducted by them (Labor Code, Art. 233).

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications (i) Privilege under Alternative Dispute Resolution (ADR) laws • Mediation • Information obtained through mediation shall be privileged and confidential (R.A. No. 9285, Sec. 9[a]). • A party, a mediator, or a nonparty participant may refuse to disclose and may prevent any other person from disclosing a mediation communication (R.A. No. 9285, Sec. 9[b]).

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications (i) Privilege under Alternative Dispute Resolution (ADR) laws • Mediation • Confidential information obtained during mediation shall not be subject to discovery and shall be inadmissible in any adversarial proceeding, whether judicial or quasijudicial. However, evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its use in a mediation (R.A. No. 9285, Sec. 9[b]).

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications (i) Privilege under Alternative Dispute Resolution (ADR) laws • Mediation • In such an adversarial proceeding, the following persons involved or previously involved in a mediation may not be compelled to disclose confidential information obtained during mediation: (1) the parties to the dispute; (2) the mediator; (3) the counsel for the parties; (4) the nonparty participants; (5) any persons hired or engaged in connection with the mediation as secretary, stenographer, clerk or assistant; and (6) any other person who obtains or possesses confidential information by reason of his/her profession (R.A. No. 9285, Sec. 9[c]).

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications (i) Privilege under Alternative Dispute Resolution (ADR) laws • Arbitration • The arbitration proceedings, including the records, evidence and the arbitral award, shall be considered confidential and shall not be published except (1) with the consent of the parties, or (2) for the limited purpose of disclosing to the court of relevant documents in cases where resort to the court is allowed herein.

DISQUALIFICATIONS OF WITNESSES d) By reason of privileged communications (i) Privilege under Alternative Dispute Resolution (ADR) laws • Arbitration • Provided, however, that the court in which the action or the appeal is pending may issue a protective order to prevent or prohibit disclosure of documents or information containing secret processes, developments, research and other information where it is shown that the applicant shall be materially prejudiced by an authorized disclosure thereof (R.A. No. 9285, Sec. 23).

2004 BAR EXAMS Marital Privilege Rule Question: XYZ, an alien, was criminally charged of promoting and facilitating child prostitution and other sexual abuses under Rep. Act No. 7610. The principal witness against him was his Filipina wife, ABC. Earlier, she had complained that XYZ's hotel was being used as a center for sex tourism and child trafficking.

2004 BAR EXAMS Marital Privilege Rule Question:

The defense counsel for XYZ objected to the testimony of ABC at the trial of the child prostitution case and the introduction of the affidavits she executed against her husband as a violation of spousal confidentiality and marital privilege rule.

2004 BAR EXAMS Marital Privilege Rule Question: xxx It turned out that DEF, the minor daughter of ABC by her first husband who was a Filipino, was molested by XYZ earlier. Thus, ABC had filed for legal separation from XYZ since last year. May the court admit the testimony and affidavits of the wife, ABC, against her husband, XYZ, in the criminal case involving child prostitution? Reason. (5%)

2004 BAR EXAMS Marital Privilege Rule Suggested Answer: Yes. The court may admit the testimony and affidavits of the wife against her husband in the criminal case where it involves child prostitution of the wife's daughter. It is not covered by the marital privilege rule. One exception thereof is where the crime is committed by one against the other or the latter's direct descendants or ascendants. (Sec. 22, Rule 130).

2004 BAR EXAMS Marital Privilege Rule Suggested Answer:

A crime by the husband against the daughter is a crime against the wife and directly attacks or vitally impairs the conjugal relation (Ordono v. Daquigan, 62 SCRA 270 [1975]).

2006 BAR EXAMS Marital Privilege Rule Question:

Leticia was estranged from her husband Paul for more than a year due to his suspicion that she was having an affair with Manuel their neighbor. She was temporarily living with her sister in Pasig City. For unknown reasons, the house of Leticia's sister was burned, killing the latter. Leticia survived. She saw her husband in the vicinity during the incident.

2006 BAR EXAMS Marital Privilege Rule Question: xxx Later he was charged with arson in an Information filed with the Regional Trial Court, Pasig City. During the trial, the prosecutor called Leticia to the witness stand and offered her testimony to prove that her husband committed arson. Can Leticia testify over the objection of her husband on the ground of marital privilege? (5%)

2006 BAR EXAMS Marital Privilege Rule Suggested Answer: Yes, Leticia can testify over the objection of her husband. As a general rule, neither the husband nor the wife, during their marriage, may testify for or against the other without the consent of the affected spouse, except in civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants (Rule 130, Sec. 22, Revised Rules on Evidence).

2006 BAR EXAMS Marital Privilege Rule Suggested Answer: xxx In a number of cases, it has been held that the marital disqualification is aimed at protecting the harmony and confidences of marital relations; hence, where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the marital disqualification no longer applies.

2006 BAR EXAMS Marital Privilege Rule Suggested Answer: Xxx The act of Paul in setting fire to the house of his sister-inlaw, knowing fully well that his wife was there, is an act totally alien to the harmony and confidences of marital relation which the disqualification primarily seeks to protect. The criminal act complained of had the effect of directly and vitally impairing the conjugal relation.

2006 BAR EXAMS Marital Privilege Rule Suggested Answer: xxx It underscored the fact that the marital and domestic relations between her and the accused-husband have become so strained that there is no more harmony, peace or tranquility to be preserved (Alvarez v. Ramirez, 473 SCRA 72 [2005]).

2013 BAR EXAMS Marital Privilege Rule; Physician-Patient Privilege Rule; Priest-Penitent Privilege Rule Question:

For over a year, Nenita had been estranged from her husband Walter because of the latter’s suspicion that she was having an affair with Vladimir, a barangay kagawad who lived in nearby Mandaluyong. Nenita lived in the meantime with her sister in Makati. One day, the house of Nenita’s sister inexplicably burned almost to the ground.

2013 BAR EXAMS Marital Privilege Rule; Physician-Patient Privilege Rule; Priest-Penitent Privilege Rule Question:

xxx Nenita and her sister were caught inside the house but Nenita survived as she fled in time, while her sister tried to save their belongings and was caught inside when the house collapsed.

2013 BAR EXAMS Marital Privilege Rule; Physician-Patient Privilege Rule; Priest-Penitent Privilege Rule Question: xxx As she was running away from the burning house, Nenita was surprised to see her husband also running away from the scene. Dr. Carlos, Walter’s psychiatrist who lived near the burned house and whom Walter medically consulted after the fire, also saw Walter in the vicinity some minutes before the fire.

2013 BAR EXAMS Marital Privilege Rule; Physician-Patient Privilege Rule; Priest-Penitent Privilege Rule Question:

xxx Coincidentally, Fr. Platino, the parish priest who regularly hears Walter’s confession and who heard it after the fire, also encountered him not too far away from the burned house.

2013 BAR EXAMS Marital Privilege Rule; Physician-Patient Privilege Rule; Priest-Penitent Privilege Rule Question:

xxx Walter was charged with arson and at his trial, the prosecution moved to introduce the testimonies of Nenita, the doctor and the priest-confessor, who all saw Walter at the vicinity of the fire at about the time of the fire.

2013 BAR EXAMS Marital Privilege Rule; Physician-Patient Privilege Rule; Priest-Penitent Privilege Rule xxx (A) May the testimony of Nenita be allowed over the objection of Walter? (3%) (B) May the testimony of Dr. Carlos, Walter’s psychiatrist, be allowed over Walter’s objection? (3%)

(C) May the testimony of Fr. Platino, the priest-confessor, be allowed over Walter’s objection? (3%)

SUGGESTED ANSWER: (A) May the testimony of Nenita be allowed over the objection of Walter? No. Nenita may not be allowed to testify against Walter. Under the Marital Disqualification Rule, during their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter‟s direct descendants or ascendants (Section 22, Rule 130, Rules on Evidence). The foregoing exceptions cannot apply since it only extends to a criminal case of one spouse against the other or the latter‟s direct ascendants or descendants. Clearly, Nenita is not the offended party and her sister is not her direct ascendant or descendant for her to fall within the exception. ALTERNATIVE ANSWER: Yes. Nenita may be allowed to testify against Walter. It is well settled that the marital disqualification rule does not apply when the marital and domestic relations between spouses are strained.

In Alvarez vs. Ramirez, G.R. No. 143439, October 14, 2005, the Supreme Court citing People vs. Castaneda, 271 SCRA 504, held that the act of private respondent in setting fire to the house of his sisterin-law Susan Ramirez, Knowing fully well that his wife was there, and in fact with the alleged intent of injuring the latter, is an act totally alien to the harmony and confidences of marital relation which the disqualification primarily seeks to protect. The criminal act complained of had the effect of directly and vitally impairing the conjugal relation. It underscored the fact that the marital and domestic relations between her and the accused-husband have become so strained that there is no more harmony, peace or tranquillity to be preserved. Hence, the identity is non-existent. In such a situation, the security and confidences of private life which the law aims to protect are nothing but ideals which through their absence, merely leave a void in the unhappy home. Thus, there is no reason to apply the Marital Disqualification Rule.

SUGGESTED ANSWER: (B) May the testimony of Dr. Carlos, Walter’s psychiatrist, be

allowed over Walter’s objection? Yes. The testimony of Walter‟s psychiatrist may be allowed. The privileged communication contemplated under Sec. 24 (c) Rule 130 of the Rules on Evidence involves only persons authorized to practice medicine, surgery or obstetrics. It does not include a Psychiatrist. Moreover, the privileged communication applies only in civil cases and not in a criminal case for arson.

Besides, the subject of the testimony of Dr. Carlos was not in connection with the advice or treatment given by him to Walter, or any information he acquired in attending to Walter in a professional capacity. The testimony of Dr. Carlos is limited only to what he perceived at the vicinity of the fire and at the time of the fire.

SUGESSTED ANSWER: (C) May the testimony of Fr. Platino, the priest-confessor, be allowed over Walter’s objection?

Yes. The Priest can testify over the objection of Walter. The disqualification requires that the same were made pursuant to a religious duty enjoined in the course of discipline of the sect or denomination to which they belong and must be confidential and penitential in character, e.g., under the seal of confession (Sec. 24 (d) Rule 130, Rules on Evidence). Here, the testimony of Fr. Platino was not previously subject of a confession of Walter or an advice given by him to Walter in his professional character. The Testimony was merely limited to what Fr. Platino perceived “at the vicinity of the fire and at about the time of the fire.” Hence, Fr. Platino may be allowed to testify.

EXAMINATION OF A WITNESS a) Rights and obligations of a witness • Rights: (1) (2) (3) (4)

(5)

To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; Not to be detained longer than the interests of justice require; Not to be examined except only as to matters pertinent to the issue; Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. (Rule 132, Sec. 3).

EXAMINATION OF A WITNESS a) Rights and obligations of a witness • Obligations: 1) A witness must answer questions, although his answer may tend to establish a claim against him (Rule 132, Sec. 3, par. 1). 2) A witness must answer to the fact of his previous final conviction for an offense (Rule 132, Sec. 3, par. 5). 3) A witness must testify under oath or affirmation (Rule 132, Sec. 1).

EXAMINATION OF A WITNESS b) Order in the examination of an individual witness i. Direct examination • Direct examination is the examination-in-chief of a witness by the party.

• Scope: facts relevant to the issue (Rule 132, Sec. 4).

EXAMINATION OF A WITNESS b) Order in the examination of an individual witness i. Direct examination •

Judicial Affidavit Rule (A.M. No. 12-8-8-SC) – • Civil Case: The parties shall file with the court and serve on the adverse party, personally or by licensed courier service, not later than five days (5) before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents, the following: (1) The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct testimonies; and (2) The parties' documentary or object evidence, if any, which shall be attached to the judicial affidavits (Sec. 2).

EXAMINATION OF A WITNESS b) Order in the examination of an individual witness i. Direct examination •

Judicial Affidavit Rule (A.M. No. 12-8-8-SC) – • Criminal Case: The Judicial Affidavit Rule shall apply to all criminal actions: (1) Where the maximum of the imposable penalty does not exceed six years; (2) Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or (3) With respect to the civil aspect of the actions, whatever the penalties involved are (Sec. 9).

EXAMINATION OF A WITNESS b) Order in the examination of an individual witness i. Direct examination • Judicial Affidavit Rule (A.M. No. 12-8-8-SC) – • Criminal Case:  The prosecution shall submit the judicial affidavits of its witnesses not later than five days (5) before the pre-trial, serving copies if the same upon the accused (Sec. 9).  If the accused desires to be heard on his defense after receipt of the judicial affidavits of the prosecution, he shall have the option to submit his judicial affidavit as well as those of his witnesses within ten (10) days from receipt of such affidavits. These affidavits shall serve as direct testimonies of the accused and his witnesses when they appear before the court to testify (Sec. 9).

EXAMINATION OF A WITNESS b) Order in the examination of an individual witness ii. Cross examination • Scope: (1) any matter stated in the direct examination; (2) or connected therewith (Rule 132, Sec. 5). (3) If unwilling/hostile/adverse party witness – cross is limited to matters stated during direct examination. (Rule 132, Sec. 12) • Purpose: (1) to test witness’ accuracy and truthfulness and freedom from interest or bias, or the reverse; and (2) to elicit all important facts bearing upon the issue. (Rule 132, Sec. 5).

EXAMINATION OF A WITNESS b) Order in the examination of an individual witness ii. Cross examination • Nature of right of cross-examination. 1. Fundamental right - The right of a party to confront and crossexamine opposing witnesses in a judicial litigation, be it criminal or civil in nature, or in proceedings before administrative tribunals with quasi-judicial powers, is a fundamental right which is part of due process. (Savory Luncheonette v. Lakas ng Manggagawang Pilipino, et al., 1975, 62 SCRA 258) 2. Personal right - The right to cross-examination is a personal right which may be expressly or impliedly waived. (Savory Luncheonette v. Lakas ng Manggagawang Pilipino, et al., 1975, supra).

EXAMINATION OF A WITNESS b) Order in the examination of an individual witness ii. Cross examination • Lack of cross-examination; effect When cross examination is not and cannot be done or completed due to causes attributable to the party who offered the witness, the uncompleted testimony is thereby rendered incomplete and should be stricken from the record. (Bachrach Motor Co., Inc., v. Court of Industrial Relations, 86 SCRA 27).

EXAMINATION OF A WITNESS b) Order in the examination of an individual witness iii. Re-direct examination • Scope: (1) any matter covered during cross-examination; (2) Matters not covered during cross, upon the court’s discretion. (Rule 132, Sec. 6). • Purpose: (1) to explain; or (2) to supplement his answers given during the crossexamination. (Rule 132, Sec. 6).

EXAMINATION OF A WITNESS b) Order in the examination of an individual witness iv. Re-cross examination • (1) (2)

•

Scope: Any matter covered during re-direct examination; Other matters, upon the court’s discretion. (Rule 132, Sec. 7).

Purpose:

(1) to test witness’ accuracy and truthfulness and freedom from interest or bias, or the reverse; and (2) to elicit all important facts bearing upon the issue.

EXAMINATION OF A WITNESS b) Order in the examination of an individual witness v. Recalling the witness •

After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require. (Rule 132, Sec. 9) • A showing of some concrete, substantial grounds for recall, i.e. such as particularly identified material points were not covered, or particular vital documents were not presented to the witness or the cross-examination was conducted in so inept manner as to result in a virtual absence thereof (People v. Rivera, 200 SCRA 786).

EXAMINATION OF A WITNESS Judge’s participation during examination of a witness

• A judge who presides at a trial is not a mere referee. He must actively participate therein by directing counsel to the facts in dispute, by asking clarifying questions, and by showing an interest in a fast and fair trial (Clarin v. Yatco, 56 O.G. 7042, Nov. 14, 1960). • He can interrogate witnesses to elicit the truth, to obtain clarification, or to test their credibility (People v Moreno, 83 Phil. 286).

• However, this power must be exercised by the court sparingly and judiciously (People v. Ferrer, 44 O.G. 112). • The judge cannot curtail counsel's right to interrogate witnesses. (People v. Bedia, 83 Phil. 909)

EXAMINATION OF A WITNESS Recantation of a witness • Courts look with disfavor upon retractions, because they can easily be obtained from witnesses through intimidation or for monetary considerations. Hence, a retraction does not necessarily negate an earlier declaration. They are generally unreliable and looked upon with considerable disfavor by the courts (People v. Bulagao, G.R. No. 184757, 5 October 2011). • The rule is settled that in cases where previous testimony is retracted and a subsequent different, if not contrary, testimony is made by the same witness, the test to decide which testimony to believe is one of comparison coupled with the application of the general rules of evidence (People v. Bulagao, G.R. No. 184757, 5 October 2011)

EXAMINATION OF A WITNESS c) Leading and misleading questions •

A leading question is a question which suggests to the witness the answer which the examining party desires (Rule 132, Sec. 10). • General rule: A leading question is not allowed. • Exceptions: (a) (b) (c)

(d) (e)

On cross examination; On preliminary matters; When there is difficulty in getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute; Of an unwilling or hostile witness; or Of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party. (Rule 132, Sec. 10).

EXAMINATION OF A WITNESS c) Leading and misleading questions •

A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated.

• General rule: A misleading question is not allowed. • Exceptions: none.

EXAMINATION OF A WITNESS d) Methods of impeachment of adverse party’s witness A party can impeach the adverse party’s witness by (Rule 132, Sec. 11): (1) Contradictory evidence; Contradictory Evidence refers to other testimony of the same witness, or other evidence presented by him in the same case, but not the testimony of another witness

(2) Evidence of prior inconsistent statements; Prior inconsistent Statements refer to statements, oral or documentary, made by the witness sought to be impeached on occasions other than the trial in which he is testifying

(3) Evidence of bad character; (4) Evidence of bias, interest, prejudice or incompetence.

EXAMINATION OF A WITNESS d) Methods of impeachment of adverse party’s witness • A party can impeach his own witness only by: (1) Evidence contradictory to his testimony; or (2) Evidence of prior inconsistent statements. • Exception: However, in the case of hostile witnesses, adverse party witnesses or involuntary witnesses, they can also be impeached by other modes of impeachment, aside from contradictory statements and prior inconsistent statements made by them. (Rule 132, Sec. 12).

EXAMINATION OF A WITNESS e) How the witness is impeached by evidence of inconsistent statements (laying the predicate) • Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony: 1. the statements must be related to him, with the circumstances of the times and places and the persons present; 2. he must be asked whether he made such statements, and if so, allowed to explain them; and 3. if the statements be in writing, they must be shown to the witness before any question is put to him concerning them (Rule 132, Sec. 13).

EXAMINATION OF A WITNESS e) How the witness is impeached by evidence of inconsistent statements (laying the predicate) • Non-compliance with the foundational elements for this mode will be a ground for an objection based on “improper impeachment.” Over a timely objection, extrinsic evidence of a prior inconsistent statement without the required foundation is not admissible (Riano, p. 327).

EXAMINATION OF A WITNESS f) Evidence of the good character of a witness • Evidence of the good character of a witness is not admissible until such character has been impeached (Rule 132, Sec. 14). • This arises from the presumption that the witness is truthful and of good character, hence the necessity of initially showing such traits is unnecessary (Riano, p. 331).

EXAMINATION OF A WITNESS g) Judicial Affidavit Rule (A.M. No. 12-8-8-SC) • Under the Judicial Affidavit Rule, judicial affidavits of witnesses shall take the place of their direct testimonies (Sec. 2). • The adverse party shall have the right to cross-examine the witness on his judicial affidavit and on the exhibits attached to the same.

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) a) Applicability of the rule • Unless otherwise provided, the Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses (Sec. 1).

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) b) Meaning of “child witness” • A child witness is any person who at the time of giving testimony is below the age of 18 years. In child abuse cases, a child includes one over 18 years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition (Sec. 4[a]).

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) c) Competency of a child witness • Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu propio or on motion of a party, when it finds that substantial doubt exists regarding the stability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court (Sec. 6).

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) c) Competency of a child witness • Proof of necessity. A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination (Sec. 6[a]). • Burden of proof. To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence (Sec. 6[b]).

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) c) Competency of a child witness • Persons allowed at competency examination. Only the following are allowed to attend a competency examination: (a) The judge and necessary court personnel; (b) The counsel for the parties; (c) The guardian ad litem; (d) One or more support persons for the child; and (e) The defendant, unless the court determines that competence can be fully evaluated in his absence (Sec. 6[c]). • Conduct of examination. Examination of a child as to his competence shall be conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child (Sec. 6[d]).

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) c) Competency of a child witness • Developmentally appropriate questions. The questions asked at the competency examination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully (Sec. 6[e]).

• Continuing duty to assess competence. The court has the duty of continuously assessing the competence of the child throughout his testimony (Sec. 6[f]).

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) d) Examination of a child witness •

The examination of a child witness presented in a hearing or any proceeding shall be done in open court. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. The party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow him to testify in the manner provided in this Rule (Sec. 8).

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) e) Live-link TV testimony of a child witness (a) The prosecutor, counsel or the guardian ad litem may apply for an order that the testimony of the child be taken in a room outside the courtroom and be televised to the courtroom by live-link television. Before the guardian ad litem applies for an order under this section, he shall consult the prosecutor or counsel and shall defer to the judgment of the prosecutor or counsel regarding the necessity of applying for an order. In case the guardian ad litem is convinced that the decision of the prosecutor or counsel not to apply will cause the child serious emotional trauma, he himself may apply for the order. The person seeking such an order shall apply at least five (5) days before the trial date, unless the court finds on the record that the need for such an order was not reasonably foreseeable.

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) e) Live-link TV testimony of a child witness (b) The court may motu propio hear and determine, with notice to the parties, the need for taking the testimony of the child through live-link television. (c) The judge may question the child in chambers or in some comfortable place other than the courtroom, in the presence of the support person, guardian ad litem, prosecutor, and counsel for the parties. The questions of the judge shall not be related to the issues at trial but to the feelings of the child about testifying in the courtroom. (d) The judge may exclude any person, including the accused, whose presence or conduct causes fear to the child.

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) e) Live-link TV testimony of a child witness (e) The court shall issue an order granting or denying the use of live-link television and stating the reasons therefor. It shall consider the following factors: (1) The age and level of development of the child; (2) His physical and mental health, including any mental or physical disability; (3) Any physical, emotional, or psychological injury experienced by him; (4) The nature of the alleged abuse; (5) Any threats against the child; (6) His relationship with the accused or adverse party;

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) e) Live-link TV testimony of a child witness (e) The court shall issue an order granting or denying the use of live-link television and stating the reasons therefor. It shall consider the following factors: (7) His reaction to any prior encounters with the accused in court or elsewhere; (8) His reaction prior to trial when the topic of testifying was discussed with him by parents or professionals; (9) Specific symptoms of stress exhibited by the child in the days prior to testifying; (10) Testimony of expert or lay witnesses; (11) The custodial situation of the child and the attitude of the members of his family regarding the events about which he will testify; and (12) Other relevant factors, such as court atmosphere and formalities of court procedure.

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) e) Live-link TV testimony of a child witness (f) The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child.

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) e) Live-link TV testimony of a child witness (g) If the court orders the taking of testimony by live-link television: (1) The child shall testify in a room separate from the courtroom in the presence of the guardian ad litem; one or both of his support persons, the facilitator and interpreter, if any; a court officer appointed by the court; persons necessary to operate the closed-circuit television equipment; and other persons whose presence are determined by the court to be necessary to the welfare and wellbeing of the child; (2) The judge, prosecutor, accused, and counsel for the parties shall be in the courtroom. The testimony of the child shall be transmitted by live-link television into the courtroom for viewing and hearing by the judge, prosecutor, counsel for the parties, accused, victim, and the public unless excluded.

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) e) Live-link TV testimony of a child witness (g) If the court orders the taking of testimony by live-link television: (3) If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor. (4) The court may set other conditions and limitations on the taking of the testimony that it finds just and appropriate, taking into consideration the best interests of the child.

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) e) Live-link TV testimony of a child witness (h) The testimony of the child shall be preserved on videotape, digital disc, or other similar devices which shall be made part of the court record and shall be subject to a protective order as provided in Section 31(b).

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) f) Videotaped deposition of a child witness (a) The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be taken of the testimony of the child and that it be recorded and preserved on videotape. Before the guardian ad litem applies for an order under this section, he shall consult with the prosecutor or counsel subject to the second and third paragraphs of section 25(a). (b) If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape.

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) f) Videotaped deposition of a child witness (c) The judge shall preside at the videotaped deposition of a child. Objections to deposition testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and shall ruled upon at the time of the taking of the deposition. The other persons who may be permitted to be present at the proceeding are: (1) The prosecutor; (2) The defense counsel; (3) The guardian ad litem; (4) The accused, subject to subsection (e); (5) Other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child; (6) One or both of his support persons, the facilitator and interpreter, if any; (7) The court stenographer; and (8) Persons necessary to operate the videotape equipment.

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) f) Videotaped deposition of a child witness (d) The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition.

(e) If the order of the court is based on evidence that the child is unable to testify in the physical presence of the accused, the court may direct the latter to be excluded from the room in which the deposition is conducted. In case of exclusion of the accused, the court shall order that the testimony of the child be taken by live-link television in accordance with section 25 of this Rule. If the accused is excluded from the deposition, it is not necessary that the child be able to view an image of the accused.

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) f) Videotaped deposition of a child witness (f) The videotaped deposition shall be preserved and stenographically recorded. The videotape and the stenographic notes shall be transmitted to the clerk of the court where the case is pending for safekeeping and shall be made a part of the record. (g) The court may set other conditions on the taking of the deposition that it finds just and appropriate, taking into consideration the best interests of the child, the constitutional rights of the accused, and other relevant factors. (h) The videotaped deposition and stenographic notes shall be subject to a protective order as provided in section 31(b).

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) f) Videotaped deposition of a child witness (i) If, at the time of trial, the court finds that the child is unable to testify for a reason stated in section 25(f) of this Rule, or is unavailable for any reason described in section 4(c), Rule 23 of the 1997 Rules of Civil Procedure, the court may admit into evidence the videotaped deposition of the child in lieu of his testimony at the trial. The court shall issue an order stating the reasons therefor. (j) After the original videotaping but before or during trial, any party may file any motion for additional videotaping on the ground of newly discovered evidence. The court may order an additional videotaped deposition to receive the newly discovered evidence (Sec. 27).

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) g) Hearsay exception in child abuse cases A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules:

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) g) Hearsay exception in child abuse cases (a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent.

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) g) Hearsay exception in child abuse cases (b) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors: (1) Whether there is a motive to lie; (2) The general character of the declarant child; (3) Whether more than one person heard the statement; (4) Whether the statement was spontaneous;

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) g) Hearsay exception in child abuse cases (5)

The timing of the statement and the relationship between the declarant child and witness;

(6) Cross-examination could not show the lack of knowledge of the declarant child; (7) The possibility of faulty recollection of the declarant child is remote; and (8) The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused.

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) g) Hearsay exception in child abuse cases (c) The child witness shall be considered unavailable under the following situations: (1) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to sever psychological injury; or (2) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.

(d) When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence (Sec. 28).

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) h) Sexual abuse shield rule Inadmissible evidence: The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse: (1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and (2) Evidence offered to prove the sexual pre-disposition of the alleged victim.

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) h) Sexual abuse shield rule • Exception: Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible. A party intending to offer such evidence must: (1) File a written motion at least fifteen (5) days before trial, specifically describing the evidence and stating the purpose for which it is offered, unless the court, for good cause, requires a different time for filing or permits filing during trial; and (2) Serve the motion on all parties and the guardian ad litem at least three (3) days before the hearing of the motion.

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) h) Sexual abuse shield rule • Before admitting such evidence, the court must conduct a hearing in chambers and afford the child, his guardian ad litem, the parties, and their counsel a right to attend and be heard. The motion and the record of the hearing must be sealed and remain under seal and protected by a protected order set forth in section 31(b). The child shall not be required to testify at the hearing in chambers except with his consent (Sec. 30).

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) i) Protective orders (a) Protective order. Any videotape or audiotape of a child that is part of the court record shall be under a protective order that provides as follows: (1) Tapes may be viewed only by parties, their counsel, their expert witness, and the guardian ad litem.

(2) No tape, or any portion thereof, shall be divulged by any person mentioned in subsection (a) to any other person, except as necessary for the trial.

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) i) Protective orders (3) No person shall be granted access to the tape, its transcription or any part thereof unless he signs a written affirmation that he has received and read a copy of the protective order; that he submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he will be subject to the contempt power of the court. (4) Each of the tape cassettes and transcripts thereof made available to the parties, their counsel, and respective agents shall bear a cautionary notice that the object or document and the contents thereof are subject to a protective order issued by the court.

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) i) Protective orders (5) No tape shall be given, loaned, sold, or shown to any person except as ordered by the court. (6) Within thirty (30) days from receipt, all copies of the tape and any transcripts thereof shall be returned to the clerk of court for safekeeping unless the period is extended by the court on motion of a party. (7) This protective order shall remain in full force and effect until further order of the court (Sec. 31 [b]).

RULE ON EXAMINATION OF A CHILD WITNESS (A.M. NO. 004-07-SC) i) Protective orders (b) Additional protective orders. The court may, motu propio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of the child (Sec. 31(c).

2004 BAR EXAMS WITNESS Competency of the Witness v. Credibility of the Witness Question: Distinguish clearly but briefly between: xxx 2. Competency of the witness and credibility of the witness. xxx

2004 BAR EXAMS WITNESS Competency of the Witness v. Credibility of the Witness Suggested Answer: Competency of the witness refers to a witness who can perceive, and perceiving, can make known his perception to others (Sec. 20 of Rule 130), while credibility of the witness refers to a witness whose testimony is believable.

2005 BAR EXAMS WITNESS Examination of a Child Witness via live-link television Question: When may the trial court order that the testimony of a child be taken by live-link television? Explain.

2005 BAR EXAMS WITNESS

Examination of a Child Witness via live-link television Suggested Answer: The testimony of a child may be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. The trauma must of a kind which would impair the completeness or truthfulness of the testimony of the child. (See Sec. 25, Rule on Examination of a Child Witness).

2006 BAR EXAMS WITNESS State Witness Question: As counsel of an accused charged with homicide, you are convinced that he can be utilized as a state witness. What procedure will you take? (2.5%)

2006 BAR EXAMS WITNESS State Witness Suggested Answer:

As counsel for the accused, I will advise my client to ask for a reinvestigation and convince the prosecutor for him to move for the discharge of my client as a state witness, or the accused can apply as a state witness with the Department of Justice pursuant to Republic Act No. 6981, The Witness Protection, Security and Benefit Act. The right to prosecute vests the prosecutor with a wide range of discretion, including what and whom to charge (Soberano v. People, 475 SCRA 125 [2005]).

2006 BAR EXAMS One-Day Examination of Witness Rule Question: TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%) xxx c. The One-Day Examination of Witness Rule abbreviates court proceedings by having a witness fully examined in only one day during trial.

2006 BAR EXAMS One-Day Examination of Witness Rule Suggested Answer: TRUE. Par. 5(i) Supreme Court A.M. No. 03-1-09-SC requires that a witness has to be fully examined in one (1) day only. This rule shall be strictly adhered to subject to the courts’ discretion during trial on whether or not to extend the direct and/or cross-examination for justifiable reasons. On the last hearing day allotted for such party, he is required to make his formal offer of evidence after the presentation of his last witness and the opposing party is required to immediately interpose his objection thereto. Thereafter, the judge shall make the ruling on the offer of evidence in open court. However, the judge has the discretion to allow the offer of evidence in writing in conformity with Section 35, Rule 132.

2015 BAR EXAMS Examination of a Child Witness Question: AA, a twelve-year-old girl, while walking alone met BB, a teenage boy who befriended her. Later, BB brought AA to a nearby shanty where he raped her. The Information for rape filed against BB states: "On or about October 30, 2015, in the City of S.P. and within the jurisdiction of this Honorable Court, the accused, a minor, fifteen (15) years old with lewd design and by means of force, violence and intimidation, did then and there, willfully, unlawfully and feloniously had sexual intercourse with AA. A minor, twelve (12) years old against the latter's will and consent."

2015 BAR EXAMS Examination of a Child Witness Question:

At the trial, the prosecutor called to the witness stand AA as his first witness and manifested that he be allowed to ask leading questions in conducting his direct examination pursuant to the Rule on the Examination of a Child Witness. BB 'S counsel objected on the ground that the prosecutor has not conducted a competency examination on the witness, a requirement before the rule cited can be applied in the case. a) Is BB’s counsel correct? (3%)

2015 BAR EXAMS Examination of a Child Witness Suggested Answer: No. BB’s counsel is not correct. Every child is presumed qualified to be a witness (Sec. 6, Rule on Examination of a Child Witness). To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence (Sec. 6 of A.M. No. 00507-SC or the Rules on Examination of Child Witness).

Here, AA, a 12-year old child witness who is presumed to be competent, may be asked leading questions by the prosecutor in conducting his direct examination pursuant to the RECW and the Revised Rules on Criminal Procedure (People v. Santos, G.R. No. 171452, October 17, 2008).

2015 BAR EXAMS Examination of a Child Witness Question:

b) In order to obviate the counsel’s argument on the competency of AA as prosecution witness, the judge motu proprio conducted his voir dire examination on AA. Was the action taken by the judge proper? (2%)

2015 BAR EXAMS Examination of a Child Witness Suggested Answer: Yes, the judge may motu proprio conduct his voir dire examination on AA. Under the Rules on Examination of Child Witness, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court (Sec. 6 of A.M. No. 005-07-SC or the Rules on Examination of Child Witness).

2016 BAR EXAMS Most Important Witness Rule Question:

What is the “most important witness” rule pursuant to the 2004 Guidelines of Pretrial and Use of Deposition-Discovery Measures? Explain. (2.5)

2016 BAR EXAMS Most Important Witness Rule Suggested Answer: Under A.M. No. 03-1-09-SC or the “2004 Guidelines of Pre-trial and Use of Deposition-Discovery Measures,” in civil cases where no amicable settlement was reached by the parties, the trial judge is directed to determine the most important witnesses and limit the number of such witnesses to be heard. The court shall also require the parties and/or counsels to submit the names, addresses and contact numbers of the witnesses to be summoned by subpoena. The facts to be proven by each witness and the approximate number of hours per witness shall also be fixed by the trial judge (Section (I)(A)(5)(j) of A.M. No. 03-01-09-SC or the “2004 Guidelines of Pre-trial and Use of Deposition-Discovery Measures”, July 13, 2004).

2016 BAR EXAMS One-Day Examination of Witness Rule Question:

What is the “one day examination of witness” rule pursuant to the 2004 Guidelines of Pretrial and Use of DepositionDiscovery Measures?? Explain. (2.5%)

2016 BAR EXAMS One-Day Examination of Witness Rule Suggested Answer: The rule requires that a witness has to be fully examined in one (1) day only. This rule shall be strictly adhered to subject to the courts’ discretion during trial on whether or not to extend the direct and/or cross-examination for justifiable reasons. On the last hearing day allotted for each party, he is required to make his formal offer of evidence after the presentation of his last witness and the opposing party is required to immediately interpose his objection thereto. Thereafter, the judge shall make the ruling on the offer of evidence in open court, but the judge has the discretion to allow the offer of evidence in writing in conformity with Section 35, Rule 132 (Section (I)(A)(5)(i) of A.M. No. 03-01-09-SC or the “2004 Guidelines of Pre-trial and Use of Deposition-Discovery Measures”, July 13, 2004).

2016 BAR EXAMS Cross-Examination of a Witness Question: Pedro, the principal witness in a criminal case. Testified and completed his testimony on direct examination in 2015. Due to several postponements by the accused, grounded on his recurring illness, which were all granted by the judge, the cross-examination of Pedro was finally set on October 15, 2016. Before the said date, Pedro died. The accused moved to expunge Pedro’s testimony on the ground that it violates his right of confrontation and the right to cross-examine the witness. The prosecution opposed the motion and asked Pedro’s testimony on direct examination be admitted as evidence. Is the motion meritorious? Explain. (5%)

2016 BAR EXAMS Cross-Examination of a Witness Suggested Answer: The Motion is meritorious. The cross-examination of a witness is an absolute right, not a mere privilege, of the party against whom he is called. With regard to the accused, it is a right guaranteed by the fundamental law as part of due process. Article III, Sec. 14, par. (2), of the 1987 Constitution specifically mandates that "the accused shall enjoy the right to meet the witnesses face to face," and Rule 115, Sec. 1, par. (f), of the 2000 Rules of Criminal Procedure enjoins that in all criminal prosecutions the accused shall be entitled to confront and cross-examine the witnesses against him at the trial. Accordingly, the testimony of a witness given on direct examination should be stricken off the record where there was no adequate opportunity for cross-examination (People v. Fernando Monjey Rosario, G.R. No. 146689, September 27, 2002).

2016 BAR EXAMS Cross-Examination of a Witness Suggested Answer: In People v. Manchetti, (G.R. No. L-48883 August 6, 1980), the Supreme Court also held that if a party is deprived of the opportunity of cross examination without fault on his part, as in the case of the illness and death of a witness after direct examination, he is entitled to have the direct testimony stricken from the records. Since the accused was deprived of his opportunity to cross examine the witness without fault on his part, the motion to expunge is meritorious.

JUDICIAL NOTICE (JUDICIAL NOTICE - ASKED IN 1997, 2005, AND 2012)

WHAT NEED NOT BE PROVED •The following need not be proved: 1. Facts which a court shall or may take judicial notice of (Rule 129, Secs. 1 and 2); 2. Judicial admissions (Rule 129, Sec. 4); 3. Conclusive presumptions; 4. Disputable presumptions not disputed; 5. Res Ipsa Loquitur (Latin for "the thing or the transaction speaks for itself.“)

MATTERS OF JUDICIAL NOTICE a) Mandatory • Court is compelled to take judicial notice; takes place at the court's own initiative.

• The court shall take mandatory judicial notice of the following (Rule 129, Sec. 1): • Existence and territorial extent of states; • Their political history; • Forms of government; • Symbols of nationality; • Law of nations;

MATTERS OF JUDICIAL NOTICE a) Mandatory • The court shall take mandatory judicial notice of the following (Rule 129, Sec. 1): • Admiralty and maritime courts of the world and their seals; • Political constitution and history of the Philippines. • Official acts of the legislative, executive, and judicial departments of the Philippines; • Laws of nature; • Measure of time; • Geographical divisions.

MATTERS OF JUDICIAL NOTICE b) Discretionary

• Court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. at the court's initiative, or on request of a party; requires a hearing and presentation of evidence.

MATTERS OF JUDICIAL NOTICE b) Discretionary

• Judicial notice following:

is

discretionary

in

the

• Matters of public knowledge; • Matters capable of unquestionable demonstration; • Matters which ought to be known to judges because of their judicial functions.

MATTERS OF JUDICIAL NOTICE b) Discretionary •When hearing is necessary (Rule 129, Sec. 3) During the trial, the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon. After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case.

MATTERS OF JUDICIAL NOTICE b) Discretionary • Examples of matters of public knowledge: • Giving of tips, especially in a first rate hotel, is an accepted practice which the Court can take judicial notice of (PAL v. CA, 257 SCRA 33, 1997). • The current practice among major establishments to accept payment by means of credit cards in lieu of cash (Mandarin Villa v. CA, 257 SCRA 538). • Scientific findings that drug abuse can damage the mental faculties of the use. (Bughaw, Jr. v. Treasure Isle Industrial Corporation, G.R. No. 169606, November 27, 2009).

2005 BAR EXAMS Question: Explain briefly whether the RTC may, motu proprio, take judicial notice of: (5%) a)

The street name of methamphetamine hydro-chloride is shabu;

b)

Ordinances approved by municipalities under its territorial jurisdiction;

c)

Foreign laws;

d)

Rules and Regulations issued by quasi-judicial bodies implementing statutes;

e)

Rape may be committed even in public places.

2005 BAR EXAMS Suggested Answers: The RTC may motu proprio take judicial notice of the street name of methamphetamine hydrochloride is shabu, considering the chemical composition of shabu (People v. Macasling, GM, No. 90342, 27 May 1993).

2005 BAR EXAMS Suggested Answers: In the absence of statutory authority, the RTC may not take judicial notice of ordinances approved by municipalities under their territorial jurisdiction, except on appeal from the municipal trial courts, which took judicial notice of the ordinance in question. (U.S. v. Blanco, G.R. No. 12435, 9 November 1917; U.S. v. Hernandez, G.R. No. 9699, 26 August 1915).

2005 BAR EXAMS Suggested Answers: The RTC may not generally take judicial notice of foreign laws (In re Estate of Johnson, G.R. No. 12767, 16 November 1918; Fluemer v. Hix, G.R. No. 32636, March 17, 1930), which must be proved like any other matter of fact (Sy Joe Lieng v. Sy Quia, G.R. No. 4718, 19 March 1910) except in a few instances,…

2005 BAR EXAMS Suggested Answers: xxx the court in the exercise of its sound judicial discretion, may take notice of foreign laws when Philippine courts are evidently familiar with them, such as the Spanish Civil Code, which had taken effect in the Philippines, and other allied legislation (Pardo v. Republic, G.R. No. L¬2248 January 23, 1950; Delgado v. Republic, G.R. No. L¬2546, January .28, 1950).

PRESUMPTIONS

• Presumption – is an inference of an existence or non-existence of a fact which courts are permitted to draw from the proof of other facts. • Presumption compared with judicial notice and admissions: • Presumption - proponent still has to introduce evidence of the basis of the presumption. • Judicial notice and judicial admission - as a rule, proponent does not have to introduce evidence.

PRESUMPTIONS Classification of Presumptions

Presumption of Law Praesumptiones Juris A deduction which the law expressly directs to be made from particular facts. Based on rules, laws, and jurisprudence. Types: 1. Conclusive (juris et de jure) 2. Disputable (juris tantum or prima facie)

Presumption of Fact Praesumptiones hominis A deduction which reason draws from facts proved without an express direction from the law to that effect. Discretionary.

PRESUMPTIONS

• Conclusive presumptions

Conclusive presumptions are not permitted to be overcome by any proof to the contrary.

PRESUMPTIONS

Conclusive presumptions: • Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing is true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it (Rule 131, Sec. 2 [a]). • The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them. (Rule 131, Sec. 2 [b]).

PRESUMPTIONS •Disputable presumptions

Disputable presumptions are those which the law permits to be overcome or contradicted.

PRESUMPTIONS

• Disputable presumptions (under Rule 131, Section 3): (a) That a person is innocent of crime or wrong; (b) That an unlawful act was done with an unlawful intent; (c) That a person intends the ordinary consequences of his voluntary act; (d) That a person takes ordinary care of his concerns; (e) That evidence wilfully suppressed would be adverse if produced; (f) That money paid by one to another was due to the latter; (g) That a thing delivered by one to another belonged to the latter;

PRESUMPTIONS • Disputable presumptions (under Rule 131, Section 3): (h) That an obligation delivered up to the debtor has been paid; (i) That prior rents or instalments had been paid when a receipt for the later ones is produced; (j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possesses, or exercises acts of ownership over, are owned by him; (k) That a person in possession of an order on himself for the payment of the money, or the delivery of anything, has paid the money or delivered the thing accordingly;

PRESUMPTIONS

• Disputable presumptions (under Rule 131, Section 3): (l) That a person acting in a public office was regularly appointed or elected to it; (m) That official duty has been regularly performed; (n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; (o) That all the matters within an issue raised in a case were laid before the court and passed upon by it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them;

PRESUMPTIONS • Disputable presumptions (under Rule 131, Section 3): (p) That private transactions have been fair and regular; (q) That the ordinary course of business has been followed; (r) That there was a sufficient consideration for a contract; (s) That a negotiable instrument was given or indorsed for a sufficient consideration; (t) That an indorsement of a negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated; (u) That a writing is truly dated; (v) That a letter duly directed and mailed was received in the regular course of the mail;

PRESUMPTIONS • Disputable presumptions (under Rule 131, Section 3): (w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes, except for those of succession. The absentee shall not be considered dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.

PRESUMPTIONS Disputable presumptions (under Rule 131, Section 3): The following shall be considered dead for all purposes including the division of the estate among the heirs: (1)A person on board a vessel lost during a sea voyage, or an aircraft which is missing, who has not been heard of for four years since the loss of the vessel or aircraft; (2)A member of the armed forces who has taken part in armed hostilities, and has been missing for four years; (3)A person who has been in danger of death under other circumstances and whose existence has not been known for four years;

PRESUMPTIONS Disputable presumptions (under Rule 131, Section 3): (4) If a married person has been absent for four consecutive years, the spouse present may contract a subsequent marriage if he or she has a well-founded belief that the absent spouse is already dead. In case of disappearance, where there is danger of death under the circumstances hereinabove provided, an absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage. However, in any case, before marrying again, the spouse present must institute a summary proceeding as provided in the Family Code and in the rules for a declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

PRESUMPTIONS • Disputable presumptions (under Rule 131, Section 3): (x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact; (y) That things have happened according to the ordinary course of nature and the ordinary habits of life; (z) That persons acting as co-partners have entered into a contract of co-partnership; (aa) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; (bb) That property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, has been obtained by their joint efforts, work or industry.

PRESUMPTIONS Disputable presumptions (under Rule 131, Section 3): (cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquired property through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal. (dd) That if the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: (1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage;

PRESUMPTIONS Disputable presumptions (under Rule 131, Section 3): (2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage.

(ee) That a thing once proved to exist continues as long as is usual with things of that nature; (ff) That the law has been obeyed; (gg) That a printed or published book, purporting to be printed or published by public authority, was so printed or published;

(hh) That a printed or published book, purporting to contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases;

PRESUMPTIONS Disputable presumptions (under Rule 131, Section 3): (ii) That a trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest; (jj) That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and age of the sexes, according to the following rules: 1. If both were under the age of fifteen years, the older is deemed to have survived; 2. If both were above the age of sixty, the younger is deemed to have survived;

PRESUMPTIONS Disputable presumptions (under Rule 131, Section 3): 3. If one is under fifteen and the other above sixty, the former is deemed to have survived; 4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived; if the sex be the same, the older; 5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived.

(kk) That if there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall be considered to have died at the same time.

PRESUMPTIONS • Some notes on disputable presumptions under Rule 131, Section 3 Willful suppression of evidence (par. e)

• Requisites: • The evidence is material. • Party had the opportunity to produce the same. • Said evidence is available only to said party.

PRESUMPTIONS • Some notes on disputable presumptions under Rule 131, Section 3 Wilful suppression of evidence (par. e)

•Presumption does not apply: • If the evidence is at the disposal of both parties. (People v. Ducay, 225 SCRA 1). • The suppression was not willful. • The suppressed evidence is merely corroborative or cumulative. • The suppression is an exercise of a privilege (People v. Navaja, 220 SCRA 624).

PRESUMPTIONS • Some notes on disputable presumptions under Rule 131, Section 3 Presumption of authorship of a recent lawful act (par. j) The rationale for this presumption is similar to the rationale for the presumption of authorship of falsification, which states that in the absence of satisfactory explanation, one found in possession of and who used a forged document is the forger of said document. If a person had in his possession a falsified document and he made use of it, taking advantage of it and profiting thereby, the clear presumption is that he is the material author of the falsification. (Lastrilla v. Granada, G.R. No. 160257, 31 January 2006).

JUDICIAL ADMISSIONS

(ADMISSIONS - ASKED IN 1998, 2006, 2008, 2009, AND 2011)

JUDICIAL ADMISSIONS

• Judicial admission is an admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. (Rule 129, Sec. 4). • The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. (Rule 129, Sec. 4).

JUDICIAL ADMISSIONS Judicial admissions may be made in: • Pleadings filed by the parties; or • During the course of the trial, either by verbal or written manifestations or stipulations.

A judicial admission must be made in the same case in which it is offered. If made in another case or in another court, it must be proven as in any other fact, but entitled greater weight. This is admissible unless: • Made only for purposes of the first case; • Withdrawn with the permission of the court; and • Court deems it proper to relieve the party.

JUDICIAL ADMISSIONS Examples/Forms of Judicial Admissions • Implied admissions of allegations of usury and in actionable documents if not specifically denied under oath (Rule 8, Secs. 8 and 11). • Admissions during pre-trial in civil and criminal cases. (N.B.: In criminal cases the admission must be reduced in writing and signed by accused and counsel [Rule 118, Sec. 4]). • Admissions in superseded pleadings may be received in evidence against the pleader. (Rule 10, Sec. 8). These are treated as extrajudicial admissions which must be proven as fact.

JUDICIAL ADMISSIONS • Examples/Forms of Judicial Admissions • Implied admissions in the modes of discovery (Depositions; Interrogatories – Rule 23; Failure to specifically deny under oath within 15 days a Request for Admission in a pending case – Rule 26). • Plea of guilt in criminal case (N.B.: A withdrawn plea of guilt is inadmissible, unlike in civil cases where a withdrawn judicial admission is considered an extrajudicial admission).

JUDICIAL ADMISSIONS • Examples/Forms of Judicial Admissions • Admissions by counsel are generally conclusive upon a client absent any gross negligence which deprives counsel of due process of law or there is outright deprivation of property or liberty (Cuenco v. Talisay Tourist Sports Complex, G.R. No. 174154, 17 October 2008).

JUDICIAL ADMISSIONS a) Effect of judicial admissions

Judicial admissions have the following effects: • A matter admitted need no longer be proved; • The matter admitted cannot be contradicted because they are conclusive upon the party making it.

JUDICIAL ADMISSIONS b) How judicial contradicted

admissions

may

be

Judicial admissions may be contradicted in the following instances: • Upon a showing that the admission was made through palpable mistake; and • When it is shown that no such admission was made.

JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND MUNICIPAL ORDINANCE Foreign laws • Foreign laws may be taken judicial notice in the following instances: • When the foreign law refers to the law of nations. (Rule 129, Sec. 1). • When the court takes judicial notice of a published treatise, periodical or pamphlet on a subject of law as a learned treatise. (Rule 130, Sec. 46).

JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND MUNICIPAL ORDINANCE Foreign laws • Foreign laws may be taken judicial notice in the following instances: • When the foreign statute is accepted by the Philippine government (Republic v. Guanzon, 61 SCRA 360). • When a foreign judgment containing foreign law is recognized for enforcement. (Rule 39, Sec. 48). • If the foreign law refers to common law doctrines and rules from which many of our laws were derived. (Alzua v. Johnson, 21 Phil. 308).

JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND MUNICIPAL ORDINANCE

Foreign laws  Doctrine of Processual Presumption – Under this doctrine, the foreign law is considered the same as the law of the forum. It arises if the foreign law, though properly applicable is either not alleged or if alleged is not duly proved before a competent court.

JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND MUNICIPAL ORDINANCE Foreign laws To prove foreign law, the party invoking it must present a copy thereof and comply with Rules 132, Sections 24 and 25 of the Rules of Court which states: SEC. 24. Proof of official record. — The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office.

JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND MUNICIPAL ORDINANCE

Foreign laws To prove foreign law, the party invoking it must present a copy thereof and comply with Rules 132, Sections 24 and 25 of the Rules of Court which states: SEC. 25. What attestation of copy must state. — Whenever a copy of a document or record is attested for the purpose of the evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court.

JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND MUNICIPAL ORDINANCE

Law of Nations • Under the 1987 Constitution, the Philippines adopts the generally accepted principles of international law as part of the law of the land (1987 Constitution, Article II, Section 2). • Being part of the law of the land, they are therefore technically in the nature of local laws and thus subject to mandatory judicial notice.

JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND MUNICIPAL ORDINANCE

Municipal ordinances • Generally, courts are required to take judicial notice of laws. However, courts are not mandated to take judicial notice of municipal ordinances unless the charter of the concerned city provides for such judicial notice. (City of Manila v. Garcia, 1967). But inferior courts sitting in the respective municipalities or cities are mandated to take judicial notice thereof. The reason is that violations of the ordinances are usually vested to the inferior courts exclusively in the exercise of their original jurisdiction. • If an inferior court took judicial notice of a fact and there was an appeal, such court taking the appeal should likewise take judicial notice. (U.S. v. Blanco, 37 Phil. 126).

JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND MUNICIPAL ORDINANCE Court Orders • Courts are required to take judicial notice of the decisions of appellate courts but not of the decisions of coordinate courts. • In fact, a court may not take judicial notice of the decision or the facts involved in another case tried by the same court itself unless the parties introduce the same in evidence or doing so is convenient.

ADMISSIONS AND CONFESSIONS a) Res inter alios acta rule •

The maxim res inter alios acta alteri nocere non debet literally means “things done between strangers ought not to injure those who are not parties to them” (Black’s Law Dictionary, 5th ed., 1178).

•

The res inter alios acta rule has two branches, to wit: • The rule that the rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided (Rule 130, Sec. 128); and • The rule that the evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time (Rule 132, Sec. 34).

ADMISSIONS AND CONFESSIONS b) Admission by a party

An admission is an act, declaration or omission of a party as to a relevant fact which may be given in evidence against him (Rule 130, Sec. 2).

ADMISSIONS AND CONFESSIONS •

Admission and Confession, Distinguished

ADMISSION CONFESSION It is a statement of fact It involves an which does not involve an acknowledgement of guilt or acknowledgement of guilt or liability. liability.

It may be express or tacit.

It must be express.

It may be made by third It can be made only by the persons and, in certain cases, party himself and, in certain are admissible against a cases, are admissible against party. his co-accused.

ADMISSIONS AND CONFESSIONS c) Admission by a third party • General rule: The rights of a party CANNOT be prejudiced by an act, declaration, or omission of another (Rule 130, Sec. 28). *This is also known as the first branch of the Res Inter Alios Acta Rule (from “res inter alios acta alteri nocere non debet”). • Exceptions (a.k.a. “vicarious admissions”) 1. Admissions by partner (Rule 130, Sec. 29); 2. Admissions by agent or one who has a joint-interest with the party (Rule 130, Sec. 29); 3. Admission of co-conspirator (Rule 130, Sec. 30); 4. Admission of privy of the party (Rule 130, Sec. 30).

ADMISSIONS AND CONFESSIONS d) Admission by a co-partner or agent • The act or declaration of a partner or agent of the party may be given in evidence against such party under the following requirements: (1) That the partnership, agency or joint interest is established by evidence other than the act or declaration; (2) That the act/declaration must have been within the scope of the partnership, etc; (3) Such act/declaration must have been made during the existence of the partnership, etc (Rule 130, Sec. 29).

ADMISSIONS AND CONFESSIONS e) Admission by a conspirator • The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator : (1) The conspiracy is shown by evidence aliunde; (2) The admission was made during the existence of the conspiracy; and (3) The admission relates to the conspiracy itself. (Rule 130, Sec. 30; Tamargo v. Antiporda, G.R. No. 177727, 19 January 2010).

ADMISSIONS AND CONFESSIONS e) Admission by a conspirator • This rule applies only to extra-judicial acts or declaration of a co-conspirator, but NOT to testimony given on the stand at the trial, where the defendant has the opportunity to crossexamine the declarant. And while the testimony of accomplices or confederates in crime is always subject to grave suspicion, "coming as it does from a polluted source," and should be received with great caution and doubtingly examined, it is nevertheless admissible and competent (People v. Serrano, G.R. No. L-7973, 27 April 1959).

ADMISSIONS AND CONFESSIONS f) Admission by privies • Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former.

• Requisites: (1) There must be a relation of privity between the party and the declarant; (2) The admission was made by the declarant, as predecessor in interest, while holding title to the property; and (3) The admission is in relation to said property (Rule 130, Sec. 31).

ADMISSIONS AND CONFESSIONS f) Admission by privies • Privity in estate may have arisen by: (1) succession; (2) by acts mortis causa; or (3) by acts inter vivos. • Illustration: AA, father of BB, while the former was alive, openly told his acquaintances, that the land where his house stood had already been sold to CC. Here, the declaration by AA is NOT admissible against BB, because the statement was made after AA held title to the land.

ADMISSIONS AND CONFESSIONS g) Admission by silence • Requisites: Any act or declaration made in the presence and within the observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, may be given in evidence against him, under the following requisites: (1) He must have heard or observed the act or declaration of the other person; (2) He must have had the opportunity to deny it; (3) He must have understood the statement.

ADMISSIONS AND CONFESSIONS g) Admission by silence • Requisites: (4) He must have an interest to object as he would naturally have done if the statement was not true; (5) The facts are within his knowledge; and (6)The fact admitted or the inference to be drawn from his silence is material to the issue. (Rule 130, Sec. 32; People v. Ciobal, G.R. No. 86220, 20 April 1990; People v. Ranario, 49 Phil. 220)

ADMISSIONS AND CONFESSIONS g) Admission by silence • When not applicable • Accused’s refusal to be a witness during trial (Art. III, Sec. 17, 1987 Constitution). • Silence during official investigation (Art. III, Sec. 12, 1987 Constitution; U. S. v. De la Cruz, 12 Phil., 87). • Where the party had a justifiable reason to remain silent [e.g. acting on advice of counsel]. (People v. Fong, G.R. No. L-7615, 14 March 1956).

ADMISSIONS AND CONFESSIONS g) Admission by silence •When applicable to statements made in writing The rule on admission by silence applies to adverse statements in writing if the party was carrying on a mutual correspondence with the declarant. However, if there was no such mutual correspondence, the rule is relaxed on the theory that while the party would have immediately reacted by a denial if the statements were orally made in his presence, such prompt response can generally not be expected if the party still has to resort to a written reply (Villanueva v. Balaguer, G.R. No. 180197, 23 June 2009).

ADMISSIONS AND CONFESSIONS g) Admission by silence •Voluntary re-enactment. Voluntary participation in the re-enactment of the crime conducted by police is considered tacit admission of complicity. In such cases, the accused actually committed positive acts without protest or denial when he was free to refuse. Had he not actually participated in the commission of the offense for which he is charged, he would have protested being made to take part in the reenactment thereof (People v. Fong, G.R. No. L-7615, 14 March 1956).

ADMISSIONS AND CONFESSIONS h) Confessions • The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him (Rule 130, Sec. 33).

ADMISSIONS AND CONFESSIONS h) Confessions • Judicial confession - one made before a court in which the case is pending and in the course of legal proceedings therein; can sustain conviction by itself.

• Requisites: 1. It must be a categorical acknowledgement of guilt; 2. It must be made by an accused in a criminal case; and 3. It is without any exculpatory statement or explanation.

ADMISSIONS AND CONFESSIONS h) Confessions • Extrajudicial confession - one made in any other place or occasion and cannot sustain a conviction unless corroborated by evidence of the corpus delicti. (Rule 133, Sec. 3). • Corpus delicti means the substance of the crime; it is the fact that a crime has actually been committed (People v. De Leon, G.R. No. 180762, 4 March 2009).

ADMISSIONS AND CONFESSIONS h) Confessions • Extrajudicial confession • Illustrations: (a) In arson, the corpus delicti is generally satisfied by proof of the bare occurrence of the fire, e.g., the charred remains of a house burned down and of its having been intentionally caused.

(b) In murder or homicide, the corpus delicti is the fact of death (People v. Garcia, 99 Phil. 381), which may be proved even circumstantially (People v. Sasota, 91 Phil. 111; People v. Moro Ansang, 93 Phil. 44).

ADMISSIONS AND CONFESSIONS h) Confessions • Extrajudicial confession • Illustrations: (c) In robbery or theft, the fact of loss (People v. Niem, 75 Phil. 668). (d) In an affray, the fact that pistol shots were heard and a bystander was killed by one of the shots constitute evidence of corpus delicti, which is the violent death of a person, whether feloniously caused or not (People v. Nocum, 77 Phil. 1018)

ADMISSIONS AND CONFESSIONS h) Confessions • Extrajudicial confession • Requisites of Extrajudicial Confession: 1. It must be voluntary; 2. It must be made with the assistance of a competent and independent counsel; 3. It must be express; and 4. It must be in writing (People v. Domantay, G.R. No. 130612, 11 May 1999).

ADMISSIONS AND CONFESSIONS h) Confessions • Extrajudicial confession is not binding upon third parties An extrajudicial confession is binding only on the confessant, is not admissible against his or her co-accused, and is considered as hearsay against them. The reason for this rule is that on a principle of good faith and mutual convenience, a man’s own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized stranger (Tamargo v. Awingan, G.R. No. 177727, 19 January 2010).

ADMISSIONS AND CONFESSIONS h) Confessions • Extrajudicial confession; when admissible against coaccused While the general rule is that an extra-judicial confession of an accused is binding only upon himself and is not admissible against his co-accused, it has been held that such a confession is admissible against a co-accused where the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator (People v. Condemna, L22426, 29 May 1968), and where the co-conspirator's confession is corroborated by other evidence (People v. Victor, G.R. No. 75154-55, 6February 1990).

ADMISSIONS AND CONFESSIONS h) Confessions • Extrajudicial confession not admissible when confessant was not assisted by counsel An extrajudicial confession executed without the assistance of independent and competent counsel is inadmissible in evidence. (People v. Velarde, G.R. No. 139333, 18 July 2002). A municipal mayor cannot be considered as a competent and independent counsel qualified to assist a person under custodial investigation (People v. Velarde, supra).

ADMISSIONS AND CONFESSIONS h) Confessions • Extrajudicial confession v. res gestae Where the verbal extrajudicial confession was made without counsel, but it was spontaneously made by the accused immediately after the assault, the same is admissible, not under the confession rule, but as part of the res gestae (People v. Tampus, G.R. No. L-44690, 28 March 1980).

ADMISSIONS AND CONFESSIONS h) Confessions • Statements during press-conference The constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby accused orally admitted having committed a crime. The rights under Sec. 12 are guaranteed to preclude the slightest use of coercion by the State as would lead the accused to admit something false, not to prevent him from freely and voluntarily telling the truth. (People v. Mantung, G.R. No. 130372, 20 July 1999).

ADMISSIONS AND CONFESSIONS i) Similar acts as evidence • Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time(Rule 130, Sec. 34). • However, such evidence may be received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like (Rule 130, Sec. 34).

2006 BAR EXAMS Admission of Investigation

Guilt

During

Custodial

Question: What are the requirements in order that an admission of guilt of an accused during a custodial investigation be admitted in evidence? (2.5%)

2006 BAR EXAMS Admission of Investigation

Guilt

During

Custodial

Suggested Answer: An admission of guilt during a custodial investigation is a confession. To be admissible in evidence, the requirements are: (1) the confession must be voluntary; (2) the confession must be made with the assistance of competent and independent counsel; (3) the confession must be express; and (4) the confession must be in writing (People v. Principe, 381 SCRA 642 [2002]).

2008 BAR EXAMS Offer of Compromise in Criminal Cases Question: Bembol was charged with rape. Bembol's father, Ramil, approached Artemon, the victim's father, during the preliminary investigation and offered P1 Million to Artemon to settle the case. Artemon refused the offer.

2008 BAR EXAMS Offer of Compromise in Criminal Cases Question: a. During trial, the prosecution presented Artemon to testify on Ramil's offer and thereby establish an implied admission of guilt. Is Ramil's offer to settle admissible in evidence? (3%)

2008 BAR EXAMS Offer of Compromise in Criminal Cases Question: b. During the pre-trial, Bembol personally offered to settle the case for P1 Million to the private prosecutor, who immediately put the offer on record in the presence of the trial judge. Is Bembol's offer a judicial admission of his guilt? (3%)

2008 BAR EXAMS Offer of Compromise in Criminal Cases Suggested Answer:

a. The offer of Artemon is not admissible in evidence against Bembol as an implied admission of guilt. To be an implied admission of guilt, the offer must be “an offer of compromise by the accused” (Sec. 27, Rule 130, Rules of Court). The facts of the case do not indicate that it was Bembol, the accused, who made the offer.

2008 BAR EXAMS Offer of Compromise in Criminal Cases Suggested Answer:

b. Bembol’s offer is a judicial admission. A judicial admission is one that is verbal or written, made by a party in the course of the proceedings in the same case (Sec. 4, Rule 129, Rules o Court). Bembol is a party to the case. The offer was made in the course of a judicial proceeding.

2008 BAR EXAMS Offer of Compromise in Criminal Cases Suggested Answer:

An admission is judicial if made not only in the pleadings, or by verbal or written manifestations in the trial but also in the pre-trial of the case (Programme, Inc. v. Province of Bataan, G.R. No. 144635, 226 June 2006). Under Sec. 27 of Rule 130, the judicial admission could be considered as an implied admission of guilt.

2008 BAR EXAMS Oral Confession Question:

The mutilated cadaver of a woman was discovered near a creek. Due to witnesses attesting that he was the last person seen with the woman when she was still alive, Carlito was arrested within five hours after the discovery of the cadaver and brought to the police station. The crime laboratory determined that the woman had been raped.

2008 BAR EXAMS Oral Confession Question: While in police custody, Carlito broke down in the presence of an assisting counsel and orally confessed to the investigator that he had raped and killed the woman, detailing the acts he had performed up to his dumping of the body near the creek. He was genuinely remorseful. During the trial, the State presented the investigator to testify on the oral confession of Carlito. Is the oral confession admissible as evidence of guilt? (4%)

2008 BAR EXAMS Oral Confession Suggested Answer: The oral confession is not admissible as evidence of guilt. The confession is in the nature of an extrajudicial confession before an investigator while under custodial investigation. Hence, the statutory provisions under R.A. No. 7438 (Sec. 2[d]) should be complied with. Under said law, any extrajudicial confession made by a person arrested, detained, or under custodial investigation shall be in writing and signed by such person in the presence of his counsel.

2008 BAR EXAMS Oral Confession Suggested Answer: An oral confession does not comply with the mandatory provisions of the law. Under R.A. No. 7438, the confession is inadmissible in evidence in any proceeding (Sec. 2[d], R.A. No. 7438).

2009 BAR EXAMS Doctrine of Adoptive Admission Question:

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%) d. Under the doctrine of adoptive admission, a third party's statement becomes the admission of the party embracing or espousing it.

2009 BAR EXAMS Doctrine of Adoptive Admission Suggested Answer: TRUE. The effect or consequence of the admission will bind also the party who adopted or espoused the same, as applied in Estrada v. Desierto, 356 SCRA 108 (2001). An adoptive admission is a party’s reaction to a statement or action by another person when it is reasonable to treat the party’s reaction as an admission of something stated or implied by the other person.

2011 BAR EXAMS Admission by a Co-conspirator Question:

Henry testified that a month after the robbery, Asiong, one of the accused, told him that Carlos was one of those who committed the crime with him. Is Henry’s testimony regarding what Asiong told him admissible in evidence against Carlos?

2011 BAR EXAMS Admission by a Co-conspirator Question:

(A) No, since it is hearsay. (B) No, since Asiong did not make the statement during the conspiracy.

(C) Yes, since it constitutes admission against a coconspirator. (D) Yes, since it part of the res gestae.

DNA EVIDENCE (ASKED IN 2009, 2010, AND 2012)

RULE ON DNA EVIDENCE (A.M. NO. 06-11-5SC) a) Meaning of DNA • “DNA” means deoxyribonucleic acid, which is the chain of molecules found in every nucleated cell of the body. The totality of an individual's DNA is unique for the individual, except identical twin. (Sec. 3 [b], A.M. No. 06-11-5-SC).

RULE ON DNA EVIDENCE (A.M. NO. 06-11-5SC) b) Applicable for DNA testing order • Who may issue a DNA Testing Order? • The appropriate court, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation. (Sec. 4) • The Rule on DNA Evidence does not preclude the conduct of DNA testing, without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced.

RULE ON DNA EVIDENCE (A.M. NO. 06-11-5SC) b) Applicable for DNA testing order • Conditions of issuance: • (1) Due notice and hearing; and (2) a showing that: (a) A biological sample exists that is relevant to the case; (b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons; (c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing.

RULE ON DNA EVIDENCE (A.M. NO. 06-11-5SC) b) Applicable for DNA testing order • Contents of DNA Testing Order • If the court finds that the requirements in Section 4 have been complied with, the court shall – (a) Order that biological samples be taken from any person or crime scene evidence;

(b) Impose reasonable conditions on DNA testing designed to protect the integrity of the biological sample, the testing process and the reliability of the test results, and (c) Issue an order requiring all parties to the case or proceedings to witness the DNA testing to be conducted if there not enough samples for confirmatory testing of the other party (Section 5).

RULE ON DNA EVIDENCE (A.M. NO. 06-11-5SC) b) Applicable for DNA testing order • The court my order that the result of the DNA testing be simultaneously released to the parties. (Section 5). • N.B.: An order granting the DNA testing shall be immediately executory and shall not be appealable. • Any petition for certiorari initiated therefrom shall not, in any way, stay the implementation thereof, unless a higher court issues an injunctive order (Section 5). • The grant of a DNA testing application shall not be construed as an automatic admission into evidence of any component of the DNA evidence that may be obtained as a result thereof.

RULE ON DNA EVIDENCE (A.M. NO. 06-11-5SC) c) Post-conviction DNA testing; remedy • Court order is not required. • This remedy is available to the prosecution or any person convicted by final and executory judgment provided that: (a) a biological sample exists; (b) such sample is relevant to the case; and (c) the testing would probably result in the reversal or modification of the judgment of conviction (Section 6)

RULE ON DNA EVIDENCE (A.M. NO. 06-11-5SC) c) Post-conviction DNA testing; remedy • Remedy if the results are favorable to the convict • File a petition for a writ of habeas corpus in the court of origin. A similar petition may be filed either in the Court of Appeals or the Supreme Court, or with any member of said courts, which may conduct a hearing thereon or remand the petition to the court of origin and issue the appropriate orders. • In case the court, after due hearing, finds the petition to be meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict, unless continued detention is justified for a lawful cause. (Section 10).

RULE ON DNA EVIDENCE (A.M. NO. 06-11-5SC) d) Assessment of probative value of DNA evidence and admissibility • Factors considered in the assessment of probative value of DNA evidence:

(a) The chain of custody (i.e., handling and collection biological samples; possibility of contamination of the samples) (b) The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests;

RULE ON DNA EVIDENCE (A.M. NO. 06-11-5SC) d) Assessment of probative value of DNA evidence and admissibility • Factors considered in the assessment of probative value of DNA evidence: xxx (c) The forensic DNA laboratory, including accreditation by any reputable standards-setting institution and the qualification of the analyst who conducted the tests. (d) The reliability of the testing results

RULE ON DNA EVIDENCE (A.M. NO. 06-11-5SC) d) Assessment of probative value of DNA evidence and admissibility • Factors considered in the assessment of probative value of DNA evidence:

• N.B.: If the laboratory is not accredited, the relevant experience of the laboratory in forensic casework and credibility must be properly established (Section 7[b]) • The provisions of the Rules of Court concerning the appreciation of evidence shall apply suppletorily in assessing the probative value of DNA evidence (Section 7, par. 2).

RULE ON DNA EVIDENCE (A.M. NO. 06-11-5SC) d) Assessment of probative value of DNA evidence and admissibility • Evaluation of DNA Testing Results; Factors (a) The evaluation of the weight of matching DNA evidence or the relevance of mismatching DNA evidence; (b) The results of the DNA testing in the light of the totality of the other evidence presented in the case; and (c) DNA results that exclude the putative parent from paternity shall be conclusive proof of non-paternity (Section 9).

RULE ON DNA EVIDENCE (A.M. NO. 06-11-5SC) d) Assessment of probative value of DNA evidence and admissibility • Evaluation of DNA Testing Results; Factors • If the value of the Probability of Paternity < 99.9%, the results of the DNA testing = corroborative evidence. • If the value of the Probability of Paternity > 99.9% or higher = there shall be a disputable presumption of paternity (Section 9[c]).

RULE ON DNA EVIDENCE (A.M. NO. 06-11-5SC) d) Assessment of probative value of DNA evidence and admissibility • DNA Testing Orders in paternity and filiation suits • Is a prima facie showing of possible paternity necessary before a court can issue a DNA testing order? Yes. • In Lucas v. Lucas (G.R. No. 190710, 6 June 2011), the Supreme Court felt the need to supplement Section 4 of the Rule on DNA Evidence and ruled that since a DNA Testing Order could indeed be likened to a “search,” it is proper that during hearings on motions for DNA testing, the movant must present prima facie evidence or establish a reasonable possibility of paternity.

RULE ON DNA EVIDENCE (A.M. NO. 06-11-5SC) e) Rules on evaluation of reliability of the DNA testing methodology • Evaluation of the Reliability of DNA Testing Methodology; Factors (a) The falsifiability of the principles or methods used, that is, whether the theory or technique can be and has been tested; (b) The subjection to peer review and publication of the principles or methods; (c) The general acceptance of the principles or methods by the relevant scientific community;

RULE ON DNA EVIDENCE (A.M. NO. 06-11-5SC) e) Rules on evaluation of reliability of the DNA testing methodology • Evaluation of the Reliability of DNA Testing Methodology; Factors (d) The existence and maintenance of standards and controls to ensure the correctness of data generated; (e) The existence of an appropriate reference population database; and (f) The general degree of confidence attributed to mathematical calculations used in comparing DNA profiles and the significance and limitation of statistical calculations used in comparing DNA profiles (Section 8).

2009 BAR EXAMS Vallejo Standard Question: TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

The Vallejo standard refers to jurisprudential norms considered by the court in assessing the probative value of DNA evidence. xxx

2009 BAR EXAMS Vallejo Standard Suggested Answer: TRUE. In People v. Vallejo, 382 SCRA 192 (2002), it was held that in assessing the probative value of DNA evidence, courts should consider, among other things, the following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests.

2010 BAR EXAMS Challenging Evidence Obtained Through DNA Testing Question: In a prosecution for rape, the defense relied on Deoxyribonucleic Acid (DNA) evidence showing that the semen found in the private part of the victim was not identical with that of the accused’s. As private prosecutor, how will you dispute the veracity and accuracy of the results of the DNA evidence? (3%)

2010 BAR EXAMS Challenging Evidence Obtained Through DNA Testing Suggested Answer: As a private prosecutor, I will attempt to discredit the results of the DNA test by questioning and possibly impugning the integrity of the DNA profile by showing a flaw/error in obtaining the biological sample, or in the chain of custody of the biological sample obtained; the testing methodology employed; the scientific standard observed; the forensic DNA laboratory which conducted the test; and the qualification, training and experience of the forensic personnel who conducted the DNA testing.

2012 BAR EXAMS Post-conviction DNA Testing Question: C, a convict, was able to get favorable results of a post-conviction DNA testing showing that C could not have committed the crime. To gain freedom, C may:

(A) file a petition for Writ of Habeas Corpus before the court of origin. (B) apply for full pardon.

(C) file a Motion to annul judgment of conviction on the ground of fraud. (D) file a Motion for new trial under Rule 121.

ELECTRONIC EVIDENCE (ASKED IN 2009, 2010, AND 2012)

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) a) Scope; coverage; meaning of electronic evidence; electronic data message • Scope • The Rules on Electronic Evidence (“REE”) apply whenever an electronic document or electronic data message is offered or used in evidence (REE, Sec. 1).

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) a) Scope; coverage; meaning of electronic evidence; electronic data message • Meaning of “electronic document” • “Electronic document” refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented: • by which a right is established or an obligation extinguished, or • by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) a) Scope; coverage; meaning of electronic evidence; electronic data message • Meaning of “electronic document” • It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. Under the REE, the term “electronic document” is interchangeably with “electronic data message.” (REE, Rule 2, Sec. 1[h]).

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) a) Scope; coverage; meaning of electronic evidence; electronic data message • Meaning of “electronic data message.” • “Electronic data message” refers to information generated, sent, received or stored by electronic, optical or similar means. (REE, Rule 2, Sec. 1[g]).

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) a) Scope; coverage; meaning of electronic evidence; electronic data message •Meaning of “electronic signature.” –“Electronic signature” refers to any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedure employed or adopted by a person and executed or adopted by such person with the intention of authenticating, signing or approving an electronic data message or electronic document. An electronic signature includes digital signatures.. (REE, Rule 2, Sec. 1[j]).

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) b) Probative value of electronic documents or evidentiary weight; method of proof • Evidentiary weight of electronic documents • Electronic evidence is considered as the functional equivalent of paper-based documents. Whenever a rule of evidence refers to the term writing, document, record, instrument, memorandum or any other form of writing, such term shall include an electronic document (REE, Rule 3, Sec. 1)

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) b) Probative value of electronic documents or evidentiary weight; method of proof • Evidentiary weight of electronic documents • The electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately (REE, Rule 4, Sec. 1).

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) b) Probative value of electronic documents or evidentiary weight; method of proof •

Evidentiary weight of electronic documents • Factors for assessing evidentiary weight In assessing the evidentiary weight of an electronic document, the following factors may be considered: (a) The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic data message or document, in the light of all the circumstances as well as any relevant agreement; (b) The reliability of the manner in which its originator was identified;

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) b) Probative value of electronic documents or evidentiary weight; method of proof •

Evidentiary weight of electronic documents • Factors for assessing evidentiary weight In assessing the evidentiary weight of an electronic document, the following factors may be considered: (c) The integrity of the information and communication system in which it is recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors; (d) The familiarity of the witness or the person who made the entry with the communication and information system;

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) b) Probative value of electronic documents or evidentiary weight; method of proof •

Evidentiary weight of electronic documents • Factors for assessing evidentiary weight In assessing the evidentiary weight of an electronic document, the following factors may be considered: (e) The nature and quality of the information which went into the communication and information system upon which the electronic data message or electronic document was based; or (f) Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message. (REE, Rule 7, Sec. 1).

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) b) Probative value of electronic documents or evidentiary weight; method of proof •

Evidentiary weight of electronic documents • Integrity of an information and communication system In any dispute involving the integrity of the information and communication system in which an electronic document or electronic data message is recorded or stored, the court may consider, among others, the following factors: (a) Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system;

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) b) Probative value of electronic documents or evidentiary weight; method of proof •

Evidentiary weight of electronic documents • Integrity of an information and communication system (b) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it; or

(c) Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it. (REE, Rule 7, Sec. 2).

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) b) Probative value of electronic documents or evidentiary weight; method of proof • Method of Proof All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records (REE, Rule 9). • The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein (REE, Rule 9, Sec. 1). • The affiant shall be made to affirm the contents of the affidavit in open court and may be cross-examined as a matter of right by the adverse party (REE, Rule 9, Sec. 2).

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) c) Authentication of electronic documents and electronic signatures • Authentication of electronic documents • Manner of authentication: Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means: (a) by evidence that it had been digitally signed by the person purported to have signed the same; (b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or (c) by other evidence showing its integrity and reliability to the satisfaction of the judge. (REE, Rule 5, Sec. 2).

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) c) Authentication of electronic documents and electronic signatures • Authentication of electronic documents Proof of electronically notarized document: a document electronically notarized in accordance with the rules promulgated by the Supreme Court shall be considered as a public document and proved as a notarial document under the Rules of Court. (REE, Rule 5, Sec. 2).

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) c) Authentication of electronic documents and electronic signatures • Authentication of electronic signatures. • An authenticated electronic signature under the REE is admissible in evidence as the functional equivalent of the signature of a person on a written document. (REE, Rule 6, Sec. 1). • An electronic signature may be authenticated in any of the following manner: (a) By evidence that a method or process was utilized to establish a digital signature and verify the same; (b) By any other means provided by law; or (c) By any other means satisfactory to the judge as establishing the genuineness of the electronic signature. (REE, Rule 6, Sec. 2).

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) d) Electronic documents vis-a-vis the hearsay rule • Business records as exception to the hearsay rule • “Business records” include records of any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit, or for legitimate or illegitimate purposes. (REE, Rule 2, Sec. 1[b]).

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) d) Electronic documents vis-a-vis the hearsay rule • Business records as exception to the hearsay rule • Inapplicability of the hearsay rule. – A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses • made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and • kept in the regular course or conduct of a business activity, and • such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule on hearsay evidence. (REE, Rule 8, Sec. 1).

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) d) Electronic documents vis-a-vis the hearsay rule • Business records as exception to the hearsay rule • However, the hearsay rule may be applied to business records as defined under the REE by presenting evidence of the untrustworthiness of: • the source of information; • the method or circumstances of the preparation, transmission or storage thereof. (REE, Rule 8, Sec. 2).

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) e) Audio, photographic, video and ephemeral evidence • Audio, video and similar evidence shall be proven: • by the testimony of a person who was a party to the same or has personal knowledge thereof. • In the absence or unavailability of such witnesses, other competent evidence may be admitted. • If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 on authentication of electronic documents shall apply.

RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) e) Audio, photographic, video and ephemeral evidence • Meaning of communication”

“ephemeral

electronic

“Ephemeral electronic communication” refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained.(REE, Rule 2, Sec. 1[k]).

2003 BAR EXAMS ELECTRONIC EVIDENCE Admissibility; Original Document under the Best Evidence Rule

Question: •a) State the rule on the admissibility of an electronic evidence. •b) When is an electronic evidence regarded as being the equivalent of an original document under the Best Evidence Rule? 4%

2003 BAR EXAMS ELECTRONIC EVIDENCE Suggested Answer:

(a) Whenever a rule of evidence refers to the term writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules. (Sec. 1 of Rule 3, Rules of Electronic Evidence effective August 1, 2001).

2003 BAR EXAMS ELECTRONIC EVIDENCE Suggested Answer: An electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these Rules. (Sec. 2 of Rule 3, Id.). The authenticity of any private electronic document must be proved by evidence that it had been digitally signed and other appropriate security measures have been applied. (Sec. 2 of Rule 5, Id.).

2003 BAR EXAMS ELECTRONIC EVIDENCE Suggested Answer:

(b) An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately (Sec. 1 of Rule 4).

2012 BAR EXAMS Ephemeral Electronic Conversation Question: Under the Rules of Electronic Evidence, "ephemeral electronic conversation" refers to the following, except: (A) text messages; (B) telephone conversations; (C) faxed document; (D) online chatroom sessions.

OFFER AND OBJECTION (ASKED IN 1997 AND 2003)

OFFER OF EVIDENCE The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified (Rule 132, Sec. 34). Due process requires a formal offer of evidence for the benefit of the adverse party, the trial court, and the appellate courts. This gives the adverse party the opportunity to examine and oppose the admissibility of the evidence. When evidence has not been formally offered, it should not be considered by the court in arriving at its decision. (Republic v. Espinosa, et al., G.R. No. 186603, 5 April 2017)

WHEN TO MAKE AN OFFER Testimonial evidence - must be offered at the time the witness is called to testify. Documentary and object evidence - must be offered after the presentation of a party's testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in writing (Rule 132, Sec. 35).

OBJECTION • Rule: grounds for objections must always be specified. (Rule 132, Sec. 36, par. 4). • When to make objections: 1. Testimonial evidence - must be objected to immediately after the offer is made. (Rule 132, Sec. 36, par. 1). 2. Objection to a question during oral examination - must be made as soon as the grounds therefor shall become reasonably apparent (Rule 132, Sec. 36, par. 2). 3. Documentary evidence - shall be objected to within three (3) days after notice of the offer unless a different period is allowed by the court (Rule 132, Sec. 36, par. 3).

REPETITION OF AN OBJECTION • Repeating an objection is NOT necessary when it becomes reasonably apparent in the course of the examination of a witness that the questions being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled. (Rule 132, Sec. 37). • In such case, it is sufficient for the adverse party to record his continuing objection to such class of questions. Rule 132, Sec. 37).

RULING • When made: Immediately after the objection is made. • Exception: Unless the court desires to take a reasonable time to inform itself on the question presented (Note: but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling).

RULING • Content of ruling: The reason for sustaining or overruling an objection need NOT be stated. (In contrast, objections made by lawyers must always specify the grounds therefor.) • Exception: If objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon.

RULING Erroneous rulings on admissibility of evidence are: (1) Considered errors in judgment, not of jurisdiction; (2) Interlocutory in nature; (3) May not be the subject of a separate appeal or review on certiorari; (4) Must be assigned as errors and reviewed in the appeal properly taken from the decision rendered by the trial court on the merits of the case. (Triplex Enterprises, Inc. v. PNBRepublic Bank, et al. G.R.,No. 151007, 17 July 2006).

STRIKING OUT OF AN ANSWER •

Should a witness answer the question before the adverse party had the opportunity to voice fully its objection to the same, and such objection is found to be meritorious, the court shall sustain the objection and order the answer given to be stricken off the record (Rule 132, Sec. 39).

•

On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper (Rule 132, Sec. 39).

TENDER OF EXCLUDED EVIDENCE

If documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony (Rule 132, Sec. 40).

Thank you!

CONSOLIDATED TIPS REMEDIAL LAW

2017 BAR EXAMINATIONS BY: ATTY. RAMON S. ESGUERRA

RIGHT TO SPEEDY DISPOSITION OF CASES VS. RIGHT TO SPEEDY TRIAL The constitutional right to a speedy disposition of cases is not limited to the accused in criminal proceedings but extends to all parties in all cases, including civil and administrative cases, and in all proceedings, including judicial and quasi-judicial hearings. While the concept of speedy disposition is relative or flexible, such that a mere mathematical reckoning of the time involved is not sufficient, the right to the speedy disposition of a case, like the right to speedy trial, is deemed violated when the proceedings are attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured; or when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried. (People v. Sandiganbayan, G.R. No. 188165 & G.R. No. 189063, 11 December 2013, J. Bersamin)

RIGHT TO SPEEDY DISPOSITION OF CASES VS. RIGHT TO SPEEDY TRIAL A person's right to a speedy disposition of his case is guaranteed under Section 16, Article III of the Constitution. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. This constitutional right is not limited to the accused in criminal proceedings but extends to all parties in all cases, be it civil or administrative in nature, as well as in all proceedings, either judicial or quasi-judicial. In this accord, any party to a case may demand expeditious action of all officials who are tasked with the administration of justice. (Inocentes v. People, G.R. No. 205963-64, 7 July 2016; J. Peralta)

ENRILE V. SANDIGANBAYAN G.R. NO. 213847, 18 AUGUST 2015 J. BERSAMIN RIGHT TO BAIL Nonetheless, in now granting Enrile’s petition for certiorari, the Court is guided by the earlier mentioned principal purpose of bail, which is to guarantee the appearance of the accused at the trial, or whenever so required by the court. The Court is further mindful of the Philippines’ responsibility in the international community arising from the national commitment under the Universal Declaration of Human Rights. This national commitment to uphold the fundamental human rights as well as value the worth and dignity of every person has authorized the grant of bail not only to those charged in criminal proceedings but also to extraditees upon a clear and convincing showing: (1) that the detainee will not be a flight risk or a danger to the community; and (2) that there exist special, humanitarian and compelling circumstances.

ENRILE V. SANDIGANBAYAN G.R. NO. 213847, 18 AUGUST 2015 J. BERSAMIN Bail for the provisional liberty of the accused, regardless of the crime charged, should be allowed independently of the merits of the charge, provided his continued incarceration is clearly shown to be injurious to his health or to endanger his life. Indeed, denying him bail despite imperiling his health and life would not serve the true objective of preventive incarceration during the trial. It is relevant to observe that granting provisional liberty to Enrile will then enable him to have his medical condition be properly addressed and better attended to by competent physicians in the hospitals of his choice. This will not only aid in his adequate preparation of his defense but, more importantly, will guarantee his appearance in court for the trial.

PEOPLE V. VALDEZ G.R. NOs. 216007-09, 8 DECEMBER 2015 J. PERALTA FACTS: Accused Valdez was charged with a complex crime of Malversation of Public Funds thru Falsification of Official/Public Documents involving an amount that exceeds P22,000.00.

ISSUE: Whether or not Valdez is entitled to bail.

HELD: YES. The appropriate rule is to grant bail as a matter of right to an accused who is charged with a complex crime of Malversation of Public Funds thru Falsification of Official/Public Documents involving an amount that exceeds P22,000.00.

PEOPLE V. VALDEZ G.R. NOs. 216007-09, 8 DECEMBER 2015 J. PERALTA At this point, there is no certainty that accused Valdez would be found guilty of Malversation of Public Funds thru Falsification of Official/Public Documents involving an amount that exceeds P22,000.00. Falsification, like an aggravating circumstance, must be alleged and proved during the trial. For purposes of bail proceedings, it would be premature to rule that the supposed crime committed is a complex crime since it is only when the trial has terminated that falsification could be appreciated as a means of committing malversation. Further, it is possible that only the elements of one of the constituent offenses, i.e., either malversation or falsification, or worse, none of them, would be proven after full-blown trial.

PEOPLE V. VALDEZ G.R. NOs. 216007-09, 8 DECEMBER 2015 J. PERALTA It would be the height of absurdity to deny Valdez the right to bail and grant her the same only after trial if it turns out that there is no complex crime committed. Likewise, it is unjust to give a stamp of approval in depriving the accused person's constitutional right to bail for allegedly committing a complex crime that is not even considered as inherently grievous, odious and hateful. To note, Article 48 of the RPC on complex crimes does not change the nature of the constituent offenses; it only requires the imposition of the maximum period of the penalty prescribed by law. When committed through falsification of official/public documents, the RPC does not intend to classify malversation as a capital offense. Otherwise, the complex crime of Malversation of Public Funds thru Falsification of Official/Public Documents involving an amount that exceeds P22,000.00 should have been expressly included in Republic Act No. 7659. If truly a nonbailable offense, the law should have already considered it as a special complex crime like robbery with rape, robbery with homicide, rape with homicide, and kidnapping with murder or homicide, which have prescribed penalty of reclusion perpetua.

PROBABLE CAUSE The determination of probable cause to charge a person in court for a criminal offense is exclusively lodged in the Executive Branch of the Government, through the Department of Justice. Initially, the determination is done by the investigating public prosecutor, and on review by the Secretary of Justice or his duly authorized subordinate. The courts will respect the determination, unless the same shall be shown to have been made in grave abuse of discretion amounting to lack or excess of jurisdiction. (Caterpillar, Inc. v. Manolo P. Samson, G.R. No. 205972 & G.R. NO. 164352, 9 November 2016, J. Bersamin)

PROBABLE CAUSE Moreover, the courts could intervene in the determination of probable cause only through the special civil action for certiorari under Rule 65 of the Rules of Court, not by appeal through the petition for review under Rule 43. Thus, the Court of Appeals could not reverse or undo the findings and conclusions on probable cause by the Secretary of Justice except upon clear demonstration of grave abuse of discretion amounting to lack or excess of jurisdiction committed by the Secretary of Justice. (Caterpillar, Inc. v. Manolo P. Samson, supra.)

PROBABLE CAUSE The discretion of the Office of the Ombudsman in the determination of probable cause to charge a respondent public official or employee cannot be interfered with in the absence of a clear showing of grave abuse of discretion amounting to lack or excess of jurisdiction. (Hilario P. Soriano v. Deputy Ombudsman For Luzon Victor C. Fernandez, GR No. 168157, 19 August 2015, J. Bersamin)

CIVIL ASPECT OF CRIMINAL ACTIONS When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action. (Rules of Court, Rule 111, Section 1)

Exceptions to the above rule: • the offended party waives the civil action; • the offended party reserves the right to institute it separately; or • the offended party institutes the civil action prior to the criminal action. (Rules of Court, Rule 111, Section 1)

CIVIL ASPECT OF CRIMINAL ACTIONS The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. (Rules of Court, Rule 111, Section 1)

As a general rule, the prosecution cannot appeal or bring error proceedings from a judgment rendered in favor of the defendant in a criminal case. The reason is that a judgment of acquittal is immediately final and executory, and the prosecution is barred from appealing lest the constitutional prohibition against double jeopardy be violated. (People and AAA v. Court of Appeals, G.R. No. 183652, 25 February 2015, J. Peralta)

CIVIL ASPECT OF CRIMINAL ACTIONS Despite acquittal, however, either the offended party or the accused may appeal, but only with respect to the civil aspect of the decision. Or, said judgment of acquittal may be assailed through a petition for certiorari under Rule 65 of the Rules of Court showing that the lower court, in acquitting the accused, committed not merely reversible errors of judgment, but also exercised grave abuse of discretion amounting to lack or excess of jurisdiction, or a denial of due process, thereby rendering the assailed judgment null and void.16 If there is grave abuse of discretion, granting petitioner’s prayer is not tantamount to putting private respondents in double jeopardy. (People and AAA v. Court of Appeals, G.R. No. 183652, 25 February 2015, J. Peralta)

CIVIL ASPECT OF CRIMINAL ACTIONS If a criminal case is dismissed by the trial court or if there is an acquittal, an appeal therefrom on the criminal aspect may be undertaken only by the State through the Solicitor General. Only the Solicitor General may represent the People of the Philippines on appeal. The private offended party or complainant may not take such appeal. However, the said offended party or complainant may appeal the civil aspect despite the acquittal of the accused. (People and AAA v. Court of Appeals, G.R. No. 183652, 25 February 2015, J. Peralta)

PEOPLE VS. JUGUETA G.R. NO. 202124, 5 APRIL 2016 J. PERALTA FACTS: Accused-Appellant Jugueta, with two others, stripped off the sack walling of Divina’s hut, which he considers his residence. In the hut were his wife and their four children. Jugueta ordered Divina to step out of his house. When Divina refused, Jugueta and his companions shot at them and hit his two children. The two children died. Accused-Appellant and his companions were charged with two counts of murder and multiple attempted murders on two separate Informations. However, the two Informations filed against accused failed to comply with the requirement in Section 13, Rule 110 of the Revised Rules of Court that an information must charge only one offense. Accusedappellant entered a plea of not guilty during arraignment and failed to move for the quashal of the Informations, Furthermore, in convicting accused-appellant, the trial court used the terms "Double Murder" and "Multiple Attempted Murder" in its Judgment.

PEOPLE VS. JUGUETA G.R. NO. 202124, 5 APRIL 2016 J. PERALTA ISSUE: Whether accused-appellant waived his right to object to the defective informations? HELD: YES. As a general rule, a complaint or information must charge only one offense, otherwise, the same is defective. However, since accused-appellant entered a plea of not guilty during arraignment and failed to move for the quashal of the Informations, he is deemed to have waived his right to question the same. Section 9 of Rule 117 provides that "[t]he failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objections except those based on the grounds provided for in paragraphs (a), (b), (g), and (i) of Section 3 of this Rule."

PLEA BARGAINING AGREEMENTS UNDER SEC. 23 OF R.A. NO. 9165 ESTIPONA v. LOBRIGO G.R. No. 226679, 15 August 2017 J. Peralta

ISSUE: Whether the prohibition to enter into plea bargaining agreements under Sec. 23 of R.A. No. 9165 is unconstitutional.

HELD: YES. Section 23 of Republic Act No. 9165 is unconstitutional for being contrary to the rule-making authority of the Supreme Court under Section 5(5), Article VIII of the 1987 Constitution.

PLEA BARGAINING AGREEMENTS UNDER SEC. 23 OF R.A. NO. 9165 In this jurisdiction, plea bargaining has been defined as "a process whereby the accused and the prosecution work out a mutually satisfactory disposition of the case subject to court approval." There is give-and-take negotiation common in plea bargaining. 50 The essence of the agreement is that both the prosecution and the defense make concessions to avoid potential losses. Properly administered, plea bargaining is to be encouraged because the chief virtues of the system - speed, economy, and finality – can benefit the accused, the offended party, the prosecution, and the court. Considering the presence of mutuality of advantage, the rules on plea bargaining neither create a right nor take away a vested right. Instead, it operates as a means to implement an existing right by regulating the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them.

EFFECT OF DENIAL OF DEMURRER TO EVIDENCE GLORIA MACAPAGAL-ARROYO v. PEOPLE G. R. No. 220598, 19 July 2016

J. Bersamin ISSUE: Whether the special civil action of certiorari is the proper remedy to assail the denial of the demurrers to evidence. HELD: YES. The special civil action for certiorari is generally not proper to assail such an interlocutory order issued by the trial court because of the availability of another remedy in the ordinary course of law. Moreover, Section 23, Rule 119 of the Rules of Court expressly provides that “the order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.”

PRINCIPAL ACTION IS REQUIRED IN THE ISSUANCE OF WRIT OF PRELIMINARY INJUNCTION; PRELIMINARY INJUNCTION TO ENJOIN A PARTY FROM INSTITUTING CRIMINAL COMPLAINTS As an ancillary and preventive remedy, a writ of preliminary injunction may be resorted to by a party to protect or preserve his rights during the pendency of the principal action, and for no other purpose. Such relief will accordingly protect the ability of the court to render a meaningful decision; it will further serve to guard against a change of circumstances that will hamper or prevent the granting of proper relief after a trial on the merits. Verily, its essential function is to preserve the status quo between the parties until the merits of the case can be heard. (BPI v. Hontanosas, G.R. No. 157163, 25 June 2014, J. Bersamin, citing Saulog v. Court of Appeals [262 SCRA 51, 1996])

BPI V. HONTANOSAS G.R. NO. 157163, 25 JUNE 2014 J. BERSAMIN FACTS: Spouses Silverio et al filed a complaint against Bank of the Philippine Islands (BPI) for the declaration of nullity of the promissory notes, real estate and chattel mortgages and continuing surety agreement the parties had executed. They further sought damages and applied for a temporary restraining order (TRO) or writ of preliminary injunction to prevent the petitioner from foreclosing on the mortgages against their properties.

BPI V. HONTANOSAS G.R. NO. 157163, 25 JUNE 2014 J. BERSAMIN ISSUE: Whether the issuance of the writ of preliminary injunction was proper.

HELD: NO. The issuance of the writ of preliminary injunction upon the application of the respondents was improper. They had admittedly constituted the real estate and chattel mortgages to secure the performance of their loan obligation to the petitioner, and, as such, they were fully aware of the consequences on their rights in the properties given as collaterals should the loan secured be unpaid. The foreclosure of the mortgages would be the remedy provided by law for the mortgagee to exact payment.

BPI V. HONTANOSAS G.R. NO. 157163, 25 JUNE 2014 J. BERSAMIN As a general rule, the courts will not issue writs of prohibition or injunction – whether preliminary or final – in order to enjoin or restrain any criminal prosecution. But there are extreme cases in which exceptions to the general rule have been recognized, including: (1) when the injunction is necessary to afford adequate protection to the constitutional rights of the accused; (2) when it is necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; (3) when there is a prejudicial question that is sub judice; (4) when the acts of the officer are without or in excess of authority; (5) when the prosecution is under an invalid law, ordinance or regulation; (6) when double jeopardy is clearly apparent; (7) when the court has no jurisdiction over the offense; (8) when it is a case of persecution rather than prosecution; (9) when the charges are manifestly false and motivated by the lust for vengeance; and (10) when there is clearly no prima faciecase against the accused and a motion to quash on that ground has been denied. However, the respondents did not sufficiently show that Civil Case No. CEB-26468 came under any of the foregoing exceptions. Hence, the issuance by the RTC of the writ of preliminary injunction to enjoin the petitioner from instituting criminal complaints for violation of BP No. 22 against the respondents was unwarranted.

WRIT OF CONTINUING MANDAMUS Continuing mandamus is a writ issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied. (A.M. No. 09-6-8SC, otherwise known as “Rules of Procedure for Environmental Cases,” Rule 1, Section 4[c])

WRIT OF CONTINUING MANDAMUS Requisites: 1. An agency or instrumentality of the government or officer thereof: a) unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the enforcement or violation of an environmental law rule or regulation or a right therein, or b) unlawfully excludes another from the use or enjoyment of such right; 2. there is no other plain, speedy and adequate remedy in the ordinary course of law. (A.M. No. 09-6-8-SC, Rule 8)

RULES ON INTELLECTUAL PROPERTY LITIGATION Special Commercial Courts in Quezon City, Manila, Makati, and Pasig shall have authority to act on applications for the issuance of writs of search and seizure in civil actions for violations of the Intellectual Property Code, which writs shall be enforceable nationwide. (A.M. No. 10-3-10-SC, otherwise known as “Rules of Procedure for Intellectual Property Rights Cases,” Rule 2, Section 2)

Within their respective territorial jurisdictions, the Special Commercial Courts in the judicial regions where the violation of intellectual property rights occurred shall have concurrent jurisdiction to issue writs of search and seizure. (Id.)