SR SB You will immedi {ule for Givi Actions, Proceedings, that is p, on Evidence apply to ap “tual be applicabie onty Sereral rule is that, o¢ excont 1018 for civil actions? Serarate evidentiary rites for civ action: * 2P4 a third set tor speciay Proceedings. just ike the the reason is easy 1 y “erstand because Evidence, as Ss, i8 the means of $scertoning the Wuth ina jcicia) Proveeding conceming 5 ater OF fact. Whether the Proceeding is cv, or eviminay or 2 sP#tial proceeding, the purpose ot MONEE is always 16 ascertain the tra MP concerning a mater of fac And it te ttn could bgSan Beda College of Law 2004 CENTRALIZED BAR OPERATIONS ‘ascertained by using the means sanctioned in the Rules for civil cases, there is no reason why the same means could not also be used to ascertain the truth in 8 criminal case or in a special proceeding In your course of Legal Philosophy. you might have come across the axiom that the truth has f6ur sides in a civil case, in a criminal case or in @ special proceeding In any iiigation ‘regardless of the nature ofthe itigaton, ruth consists of four sides. The firs isthe truth according to the plain, the truth according to the defending party. the truth according to the court and the feal truth which only God knows. So the finding of the court of the truth is not really the Wuth, itis ‘only at most an approximation ofthe truth, So if you read eases that are reported in the Philippine Reports, the decision always start with the phrase: “The findings of the Court according ta the Opinion of the Court’. So the factual findings of @-court are just an approximation of what the court may have been ‘And in the search of truth, human experience lells us that in looking for the truth. the frst thing that we use of course is our senses: sense of sight, sense of hearing, sense of smell ike that, But if the truth could not be ascertained through the use of our senses, the next move of ‘anybody looking for the tuth is to get the testimony of others, what others know, either verbally or what they have written about the subject matter. If stil we are not satisfied with what others tell us, then we use our inference. that is circumstantial evidence. That is always the problem of the court in any litigation In any tigation, whenever evidentiary rules are used by the court, the assumption is that between the Contestants a dispute as {0 what the truth is concerning a niatter of faci, The dispule could! never be a dispute concerning a matter of law. That's not possible. In our system, the dispute should always be the ascertainment of truth concerning a matter of fact Factum brobandum and factum probans Why cannot we have a dispute to be decided by the court concerning @ matler of f Well because under our Civil Code, everybody is presumed conclusively to know the law So the Plainttt is conclusively presumed to know the law, the defendant likewise is conclusively presumed to know the law. The court is conclusively presumed to know the law. So there could be no dispute between the parties and even the court itself concerning the truth about a matter of law. So the dispute should always be the truth concerning a matter of fact which brings us now lo the concept of factum probandum and factum probans. Factum brobandum is the fact in issue. Probans is {he evitentiary fact which wall prove or disprove the fact in issue Ag&é3er the case is criminal of civ! or a special proce: the court determine whether or not there is a factum probanclum in the first place, and if there is a ng, how vl factum probandum, what is the factum probandum? Let us take first @ civil case. The plainti Creditor files a complaint against the debtor for the recovery of an unpaid loan. What is tlie factum M7San Beda College of Law 2004 CENTRALIZED BAR OPERATIONS probandum? The answer is, at the time of the filing of the complaint, there is no factum probandum yet. If.an information is filed against the accused, let us say for homicide, what 1s the factum probandum? There is none, We cannot ascertain the factum probandym by merely reading the information, We cannot ascertain what the factum probandum is by merely reading the compiaint, So if we cannot ascertain the factum probandum by merely reading the complaint or the information, when will the court be able to ascertain whether or not in a particular litigation. there ‘are probanda? In a civil case, the fact in. dispute concerning matters of fact could only be ascertained outrightly, that is initially, upon the filing of the’ responsive pleading So m our example, if he creditor files @ complaint for the recovery of an unpaid loan against the debtor, we should wait until the debtor files a responsive pleading - an answer, before the probandum could be determined. ‘Will the filing of answer necessarily give rise to a probandum? Again the answer is no. If the defendant files an answer there ray or may not be a probandum, because the answer filed by a defendant may not tender an issue at all, of the answer of the defendant may admit ail the allegations in that complaint, in which case, there is no issue that could be tried by the court at al I.the defendant in his answer says: “I admit that | owe the plaintiff so much, and | admit that | have not paid the loan on tim thete is no fact in issue that is disputed by the parties. In such a situation, the court will not conduct a trial. And if the court does not conduct a trial. there is'no way for the court to apply the Rules on Evidence. See, the Rules on Evidence are applicable only there Is going to be a trial, In our example, if there'is no probandum contained in the complsint and in the answer, as we have learned a long lime ago, the court can simply render a judgment fon the pleadings, We follow the same principle when it comes to a criminal case, There is an information {or homicide. At the time of the filing.of the information. the court would not be able to determine the probandum, Even the prosecution will not be able to determine the probandum. We have to wall unti the accused, until the defendant enters a plea during the arraignment, If he accused enters a plea of guily during the arraignment, there is no probandum. There 1s no Néed for the court to try the case, But ARjsstse general rule when it comes lo a criminal case fiven if the accused enters 2 plea of guilty during the arraignment, the court could stil order a trial of the ease if the case involves a heinous efime, But generally, when the accused enters a plea of guily during the arraignment, there is no probandum that could be tried by the court, The plea of guilly by the accused is enough justification for the court to render a judgment of conviction, because there is no dispute that is presented the court for triat and hearing. But if the accused in the criminal case enters a plea of not guily, then there will be a probandum, In fact there could be severat probnda, because the accused denies having committed the crime. Let us compare this to a civil case. Our civil case is about 2 creditor filing an action against the debtor for a defaulted toan, The defendant files an answer with a denial THE defendant files an answer telling the court: “I deny that | owe the plaintiff this sum of money” Is asSan Beda College of Law 2004 CENTRALIZED BAR OPERATIONS i there a probandum? The answer is, when it comes to a civil case, we apply the particular rules governing a ci case. A mere denial in a civil case is not 2 specific denial. In a civil case, the denial must be a specific denial. We do not allow a general denial in a civil case So if the answer contains what we call a general denial, the answer will not present @ probandum general denial under the Rules on Civil Actions, will be considered as an admission of all the allegations in the com; taint, But again why do we allow the accused simply to enter a plea of not guilly. and then atier the plea of not guilty has been entered, we now have'a probandum? Why do we treat the two cases differently? in criminal cases, a general denial s allowed n fact, when the accused tell he court “not guilty’, the court cannot asked the accused: ‘Why are you entering a plea of not guilty? Gould you cite the defenses that you wil later on prove in cour?" That is not within the authority of the court, So in criminal cases, a general denial is allowed. That will give rise to a probandum But in 2 civil case, a general denial will not give rise to a probandum, The denial in a civil case ‘must be a specific denial that is according to Rule 8 ‘We continue with probandum, The pleadings in a civil case as well as the information and, the plea entered by the accused in a criminal case do not necessarily define the probandum. In civil cases, the probandum could be taken outrightly oF initially from the. pleadings, but the probandum contained in the pleadings may be changed in the pre-trial order, So in civil cases, what the court follows when it comes to the ascertainment of the fact in issue is the pre-trial order in both a civil and a criminal case. In a civil case, it is TRESATcally possible that the action is one for the recovery af money. if we read the pleadings. But when it comes to the pre-trial order. the nature of the action is changed from the recovery of money to the recovery of re8l property. There is.nothing wrong with that in @ civil case. In Rule 18, if you go to Rule 18, itis the pre-trial order that governs the course fof the:proceedings, ‘So a fact in issue raised in the pleadings may not necessarily be the issue that will be tried by the court, because the court will mit the tral of a civil case to the facts in issue which are identified in the pre-ial order. Can the court validly try a fact in issue not raised in the pleadings and not raised in the pre-trial order in-a civil case? ‘The answer is yes, So facis in issue not raised in the pleadings, which aré not raised in the prectial order could be validly tried by the cour. How is this possible? It is proper because in Rule 10, itis specifically provided that a fact in issue may be raised with the express or implies consent of the parties. And when tried by the court, these facts in issue will be considered as having amended the pleadings automatically. So again theoretically, a civil achon may stait as ‘one for the recovery of money, it could end up as a civil action for the recovery af ownership of real propery. And the probandum in these instances will not be found in the ‘pleadings: They could be found in the pre-trial order. oF even if they are not found in the pre-trel order. they could2004 CENTRALIZED BAR OPERATIONS. . bbe found in the issues that are tried with express or implied consent of the parties during the tial itsett, We use this principle with certain limitations also to a criminal case. In a criminal case, in . Rule 118, itis also provided that the probandum to be tried by the court, are those embodied in the pre-trial order. But the pre-trial order should not substantially change the accusation, the indictrient contained in the information. Otherwise, under Criminal Procedure. the case will have to be dismissed San Beda College of Law Do we apply these principles in ascertaining the probandum to @ Special Proceeuing tke settlement or a petition for the probate of a wil? In a petition for the probate of a will which 1s a proceeding in rem, of course, there is a petitioner but there is no particular respondent who is impleaded. After selling the case for the probate of a will for hearing, if there are no oppositors, or even if there are strangers who filed their comment in court and these strangers manifest to the court that they.agree that the will has been duly executed in accordance with the Civit Code, in other words there is an admission by the persons who have fled their comments that there is nothing wrong with the wats tertnere be a probandum nonetheless? In other words, if there appears to be no contest, "6 dispute between the petitioner and the other parties who have entered their appearance in the case, will there still be a probandum? Well the answer is yes. We do not follow the principles that we outlined awhile ago to @ Special Proceeding for the probate of will In other words, if there is a petition for the probate of a will even if there is no opposition the petitioner is still required by law to prove that the will has been duly executed in accordance {with the Civil Code. So In ascertaining the probandum in a liigation we cannot set a fixed standard, we have ~'— to determine the nature of the case. There ere different rules governing a Civil case. there are different rules in governing: a Criminal case, there are different rules in governing Special Proceedings when it comes to the ascertainment ofthe fact in issue, of the probandum to be tried and decided by the cour. | Relevant evidence and competent evidence; Wigmore's axioms of competency and relevancy : The classification of Evidence is cistributed throughout Part IV, and the fist classification that we meet in Evidence is the classification of evidence into relevant evidence and competent evidence, and for this purpose, | suppose thal by now you have memorized the axioms of Wigmore on the admissibility of evidence You should memorize the axiom of relevancy and the axiom of competency. They are very short axioms, None but facts having rational probative value are admissible ~ that is the axiom of relevancy. Ang then the axiom of competency is that ~ all facts Having rational probative value are admissible untess specifically excluded by the rule 264San Beda College of Law 2004 CENTRALIZED BAR OPERATIONS Although the Rules tell us that to be admissible. an evidence must both be relevant and competent, the standard set-up in determining whether’ or not a piece of evidence #s relevant 1s not really very cleat. So we have to resort jurisprudence in determining the standard. 1 Getermining the relevancy of an evidence, According to the Supreme Court. relevancy of evidence is not determined by law. It could not be determined by the Rules of Court, It could nol be determined even by substantive law, Relevancy of evidence Is determined purely by logic. ts connection to the fact in issue, whether or.not a piece of evidence is relevant Will have to meet the standard - that it has a reasonable tendency to prove tlle existence oF non-cwsstenee af Whe fact in issue, and that is a mater OT logic. But when it comes to competency of evidence, that is 2 matter of law: In fact the purpose why we have Rules on Evidence, Our Rules on Evidence refer mostly to competency of evidence If you will notice, in the next classification of evidence, we meet rlles of exclusion, that «, there are certain pieces of evidence which are relevant to the fact in issue but they are excluded by the Rule. So competency of evidence is determined this time by the law, whereas relevancy of evidence is determined purely by logic. ‘To ilustrate, in an action for the recovery of a defaulted loan, and the debtoridefendapt fies an answer which sets up 2 specific denial or an affemative defense, and therefor & probandum is presented to the court for trial and decision, The promissory note signed by the defendant is of course a piece of evidence that is relevant because it tends to prove the existence of the loan. Supposing the plaintiff, in addition to the promissory note signed by the defendant presenis to the court love letters, written by the defendant to his mistress, do you consider these love letters as relevant to the issue? You don’t have to read the Rules of Court in order to determine whether or not the love letters are relevant, You just resort to logic. Do the love letters have anything to do with the existence or non-existence of the loan. If there is no relationship between the love letters and the fact in issue, thal is whether or not there is 2 loan, then these documents are not relevant. They will not be admitted by the court But you will also note that the Rules on Evidence, although they tell us which evidence should be excluded and which evidence should be admitted by the court, are not self-executing rules, So the basic rule in Evidence is that any evidence submitted by a Itigant will be admitted by the court even if it is irelevant, even if is incompetent, as long as the adverse party does not object to the admission of evidence, If the love letters are irrelevant, they are offered in evidence by the plaintif, but the defendant does not object, the court wil have to admit this evidence, But of course even if these are admitted by the cour, it does not mean to say that the court will (ake these irrelevant evidence in evaluating later on the merits of the case. If itis only for the purpose of admissibility the rule in Evidence is that, any evidence olfered by a party whether irrelevant er incompetent, wil be admitted by the cour if there is no objection set up by the adverse pany. ant as we shall see later, the objections must be made on time. otherwise, these objections are also deemed waive dorSan Beda College of Law 2004 CENTRALIZED BAR OPERATIONS When it comes to SGGMBe that is relevant and which is excluded by the Rules, « other words 2 competent evidence You wil also notice tha this evidence excluded by the Rules are usually relevant evidence. Using the samie example of 2 promissory note, which proves the existence of the oan, the original of the promissory note is relevant evidence. The xerox copy of that same promissory note is also relevant evidence because these twd pieces have tendency '0 prove, in fact, they directly prove the existence of the van. The original of the promissory note 1S relevant and itis not excluded by Rule, But the xerox copy of the promissory note, although relevant, is not admissible if there is an objection, because under the best evidence rule, when the contents of the document are in issue, it only the origina! that is admissible, But note again that any excluded evidence under the Rules, any piece of evidence that is excluded by the Rul is usualy relevant evidence, So evidence may be relevant, but may be Incompetent, & is nt allowed 1o be admitted by the Rules ‘Competent court, competent evidence and competent witness We should also clatify the term competent court, competent evidence and 2 competent witness in order to avoid confusion. When we speak about competent court, we talk about a court that has jurisdiction over the subject matter and over the person of the litigants, So competent court refers to @ court having jurisdiction over the subject matter and over the person of the liligants. Competent evidence, refers to, evidence that is nol excluded by the Rules A competent witness on the other hand does not refer to a witness who is excluded by the Rules in the same way that an incompetent evidence is excluded. A competent witness, is the term usually used to refer to a qualified witness. So a competent witness is a qualified witness. There is a difference between competent evidence and a competent witness. A competent witness, that is a witness duly qualified, may give an incompetent evidence. in the same way that 2 witness who is not qualified, who is incompetent, but who is allowed to testify, may give competent evidence. Example, a witness, let us say. is presented to court and he is qualified as a witness So he is competent witness, Can he give incompetent evidence? The ansiver is yes if {nat wiiness gives testimony that is hearsay, the wilness is competent but the evidence he is giving 10 court 1s not competent, because hearsay evidence generally is excluded by the Rules, So there should be no confusion. between the concept of competent court, competent witness and competent evidence. RULE 129, WHAT NEED NOT BE PROVED RULE 129 Section 4: Jdicial notice, when mandatory; Section 2: When discretionary 20San Beda College of Law 2004 CENTRALIZED BAR OPERATIONS Now we go to judicial notice first. Judicial notice is the cognizance taken by the court either mandatorly of in a discretionary manner ofthe existence or non-existence of certain facts, Mandatory judicial notice isa imitation o the privilege of litigants lo present tothe court factstn probandum. If you look at 8 case realistically, the preparation of the complaint is solely in the hands of the plaintiff or his lawyer, The preparation of the answer is also under the control absolutely of the defendant, The court has nothing to do with the preparation of the pleadings submitted by the parties, The plaintiff prepares his complaint, the defendant prepares his answer without intervention by the, court. So this means to say that the parties can allege in their respective pleadings any matter that is relevant to the contest, to the dispute, But the principle of Judicial notice will serve a6 a limitation to the privilege given to the parties, to embody certain allegations in thei pleadings. Example, in the complaint filed by the creditor to enforce payment of a defaulted loan against the debtor, the plaintif alleges in the complaint that the defendant obtained a loan fron the plaintiff on: this particular date and ‘the contract was entered into between the parties in Jakarta, indonesia. And then the other paragraphs follow, The loan matured, there was no payment. Let us assume that the other allegations will establish a cause of action are embodied like cettifcation on non-forum shopping; if there is an arbitration clause, the fact that the arbitration clause had been complied with. Now the defendant will have to respond so thal we can have a probandum. In the answer by the defendant, he tells the court: “1.1 deny that | oblained a toan from the plaintiff on such and such a date. The agreement entered into was not @ contract of Joan but it was an arrangement concerning an investment of money; 2. That the defendant also denies that there is a city of Jakarta. 3. The defendant alse denies that there is a countey known as Indonesia", Well the defendant can place these matters in his dnswer because as we said, the preparation, the finalization of the pleadings are solely in the hands of the parties, On the face of the pleadings, there are several probanda that are raised by the parties One of these issues is whether or not there is a city of Jakarta. The other issue is whether or not there is;2 country of Indonesia. Do we allow the parties to make this as a fact in dispute so that the couirt will accordigly try and decide these issues. If we apply the Rules on judicial notice, this will not be allowed. Even if the parties in their pleadings raise as an issue facts which should be taken judicial notice of mandatorily by the court, the court will not allow a trial on these facts in issue. So the cour, in the example, will not order the plaintiff to present evidence that there is a country known as indonesia. In the first place, how will the plaintiff prove to the court hat there is teally a country known as Indonesia? We cannot apply the rule on object evidence. And if the court allows this to happen, ceftainly our local courts will become the laughing stock of the world isn’t it? So the purpose in-having mandatory judicial notice over these matters: the existence of other states, the form of government, is to place a limitation on the privilege or the abilty of the parties to raise certain facts in issue in their pleadings. The law requires that the court should take judicial notice of the law of nations, This mandatory judicial notice of the law of nations does not refer to municipal laws of other countries. The law of nations in judicial notice refers to what is covered by your subject Public Intemational mesior M3San Beda College of Law 2004 CENTRALIZED BAR OPERATIONS Caw, ike the Charter of the United Nations, generally accepted principles of international Law, the laws that are universally accepted by various countries. So when the issue is whether or not a certain municipal law exist in a particular country, that will not be taken judicial eotice of by the court, The issue as to what is thé municipal law of a particular country is not a question of law It is 2 question of fact. So if the litigation involves a particular law applicable to a given state of facts, and the law that should be applied is a municipal taw of California for instance, what the municipal law of California is, is a question of fact, and the courts may allow the presentation of evidence, so that it could determine what is the particular California law applicable to the dispute ithe plaintif says that a particular California law is applicable tothe cispute, itis the duty of the plaintiff to give evidence, to present evidence as to what the California law is, How does the plaintif prove the particular California law involved? All he has to do is to go probably to the United States Embassy and get a ceriied true copy of the California law that is applicable and it must be duly authenticated by the Embassy of the United States if here is such a division in the Embassy. Or if there’s no such dlvision, he could write to the Secretary of State of California and then ask for a copy of the law, a certified true copy duly authenticated by the Secretary of SI and duly authenticated further by the Consulate of the Philippines to California we have @ consulate in California. e. Principle of processual presumption Ue the plaintiff alleges that their dispute should be governed by California taw but he Is ‘unable 10 prove what the California taw is all about, then the local court, the Philippine court will apply what is known as the principle of processual presumption - that is in so far as the local courtis concerned, the California law is similar to a Philippine law that governs the particular stale of facts, That is the doctrine of processual presumption. A local court ill assume, that is it val presume, thal a foreign law applicable to 2 dispute if not duly proven is similar to the Philippine law applicable to the given state of facts, ‘Aside from the mandatory judicial notice, the Rule also requires 3 court to take discretionary judicial notice of certain events, and the language used by the Rules are broad ‘enough to include everything that should really be known to a judge because of his position a5 2 judge. Those that are capable of unquestionable demonstration, those which are supposed to be known by the judge because he is a judge. ‘Now, why do we allow a court to take discretionary jucicial notice over certain events? Well the basis for discretionary judicial notice is that a jurige should net be more ignorant Brie rest of mankind. If] know that there is going to be a typhoon today and you know that there is going to be @ typhoon today also because that is what the weather bureau told us, then there is no reason for a judge not to know the events that are available to us, He should not be’ more ignorant"than people like us. That's the basis of discretionary judicial notice.San Beda College of Law 2004 CENTRALIZED BAR OPERATIONS But you will note that when the court takes discretionary judicial notice, although he can do so ex parte, he must inform the litigants of his desire to take discretionary judicial notice of certain events so that the parties may have a chance to show to the court why judicial notice should not be taken or why a judicial notice must really be Laken. And this procedure is applicable ‘not only at the level of the trial court. Even if a case is already on appeal, the appellate court could take discretionary judicial notice of certain events. But when it comes to mandatory judicial Totice, the mandatory character of judicial notice applies to a trial court, to the Court of Anpeals and even to the Supreme Court All the courts are mandated to take cognizance of the events that are enumerated in the Rules tke the taws thal are enacted by the Congress of the Philippines, the courts are mandates to know what these laws are, But according lo the Supreme Court, whert it comes to ordinances of local governments, a Regional Trial Cour, o: the Court of Appeats or the Supreme Court will not follow mandatory judicial notice of ordinances enacted by local governments. But inferior courts sitting in these respective municipalities or cities are ‘mandated to take judicial notice of these ordinances. The reason is because violations of these ordinances are usually vested to the inferior court exclusively in the exercise of their onginal jurisdiction. Now 2 Regionat Trial Court acting as an appellate court could take discretionary judiciat notice of these ordinances. The point is 2 Regional Trial Court is not mandated by the Rules, it is not mandatory on the part of the Regional Trial Court to take judicial notice of ordinances enacted by local goveraments. RULE 130 — RULES OF ADMISSIBILITY RULE 132 — PRESENTATION OF EVIDENCE B, AUTHENTICATION AND PROOF OF DOCUMENTS ‘The next classification of evidence concems the form and we talk about object evidence. about documentary evidence, and testimonial evidence. You will also notice that there is only one section that governs object-extt&rce. In fact there is no rule of exclusion when l comes to object evidence. When it comes to documentary evidence, there are two rules of exclusion, the best evidence rule and the parole evidence rule. But when it comes to testimonial evidence, that is where we meet several rules of exclusion. We meet the rules on hearsay evidence, on opinion evidence, on character evidence. The message that is given to us by the Rules in giving so many exclusions to testimonial evidence, very few exclusions when it comes to documentary evidence, and practically no rule of exclusion when it comes to object evidence, is that object evidence is the most credible of these kinds of evidence. Iis evidence that is addressed to the senses of the court A. OBJECT (REAL) EVIDENCE RULE 130 Section 1: Object as evidenceSan Beda College of Law 2004 CENTRALIZED BAR OPERATIONS Object evidence is best ilustrated by this example of an old English case There was a ‘wealthy land owner, @ 70-year old landowner in England and this is a true story. this is not a dity story, He was accused of raping a calmly 18-year old English ‘gir, And of course you probably know that in England they also follow the jury system just ike in the United States. uniike in our system, The Solicitor representing the accused, the wealthy landowner, addressed Ine jury and told the members of the jury: “We don't have to go into the trial f the case and hear the testimony of the victim. ('m telling you now directly, that the accused. my client, has been suffering from a hideous rupture of his sex organ for the past 10 years. And the rupture is so serious that :he could’ not have camal knowledge of any woman. He could not have any intercourse with any woman", And then the Solicitor went on to say: “if you want, that is in open Court, in fro of the jury, in front of the judge and in front of the audience, my client can undiess himself and show to you the condition of his sexual organ’ That is object evidence isn't a? Evidence addressed to the senses of the court. To demonstrate that the sexval organ really could ino longer stand up even if there is 2 lustful idea in the mind of the accused. that's object evidence. But if the court will allow the accused to undress himself and to show everybody the present condition of his organ, that might create a scandal in court, So what the court did was this, he told the members of the jury: "You go inside my chambers and you select fram ‘ong yourselves members who are wiling to look at the sexual organ of the accused”, And then the court said: “You call a doaistSae 2 witness for the court who will examine the organ of the ‘accused. So they went inside the chambers of the court and then the members of the jury who participated in the experiment, in the demonstration were convinced: “This guy really could not commit rape". And then they made a report to the judge. That was the end of the case You see object evidence is really the most credible because it is addressed lo the senses of the court. That's why practically there is no rule of exclusion that is given to object evidence ‘The only limitation of course is the rule on relevancy. The evidence, the object evidence must be relevant, Well this could also happen even in the Bible; the rule on object evidence was used. Fér Us Christians who have certain portions of the Bible, you must have heard of the wisdom of King Solomon, That is an application of object evidence. When there was a gispule belween two mothers who claimed to be the mother of a particular child, and King Soiomon told the women "Why don't you just alow me to divide this child into two? I give one-half to you, {give the other half to you", The true mother of course resisted the idea because that will kill the baby, And she said: "I that is your decision you might as wel give tothe other git the baby. | would not allow my baby to be killed”, Then King Solomon said: “You are the true mother’, That is an example of object evidence, That's demonstration addressed to the senses of the court. could also happen even to a Benedictine monk for instance. Say there is a Benedictine monk who was assigned as a parish priest temporarily in a certain locality You see these Benedictine monks are used only to pray and to work. White acting temporarily as a parish priest 266Sau Beda College of Law 2004 CENTRALIZED BAR OPERATIONS in a certain locality, the lead singer of the choir of that parish went to the Benedicine monk crying. And the Senedictine monk asked the girl: "My child why are you in tears?” And the gil ssid: “Father, you also know that member of the choir who accompanies my singing with 2 guitar?” “Oh yes! He's a nice man, said the Benedictine monk, Girt “Dos't allow him to entes the church anymore father". Monk: “Why not?” Gift “Because he has done me a grievous wrong “The Benedictine monk wanted to know further the meaning of 2 grievous wrong but the girl would not respond. So the Benedictine monk decided to use the rule on object evidence that 1s, cemonstrative evidence. And the monk asked the gir: "Did this guy emorace you?” and at the same time embracing the gil. That is demonstrative evidence And then the gi said: “Yes father. but he did more tisn embrace me". So the Benedictine mank, embraced the girl and Kissed the Git, and the git kissed him back. Monk: “Did this guy kiss you in this manner?: Git Well yes father, and more”. So the Benedictine laid her down the sofa and mounted her and he asked the itt "Did he lay you down emsi=wola and mount you?" Girl “Well yes father, and more’ Well the Benedictine monk decided to continue applying the rule on demonstrative evidence He undressed the gitl and asked the girt “Did he undress you in this manner?" And the girl said: “Yes father and more’, So the Benedictine monk had to go on with his experiment. Then he had carnal knowledge with the girl, and the git! seemed to enjoy what the monk had done. And alter they were through, the monk asked the git: “Did this guy do this to you?” Girl "Yes father, and more” Now the Benedictine monk was at a loss because he thought that he has done all the things that ‘a man should do to @ woman who is willing fo give herself up. So the Benedictine monk insisted in knowing what really had happened, After a few minutes, the girl eventually relented and told the Benedictine monk: "You see father, that guy gave me gonorthea’. That is demonstrative evidence. That's object evidence. | View of an object or autoptic preference linough the Rules do not. give us practically any exclusions whei comes 10 demonstrative evidence or object evidence, it does not meen to say that the court is le wihout any discretion In determining whether or not a piece of evidence should be brought to court Of course the material consideration is: Could thet object be brought to court? If that abject could not be brought to court, well what the court will do is to order an ocular inspection and that we used 10 call object evidence as view of an object or autoptic proference. So if the object evicence pertains to the condition of @ building for instance, we cannot present the building to the court So the court can assign somebody or the judge himself can condhict an ocular inspection of the building But in one American case, the court did not allow the object to be brought to court. to be: presented as evidence, on the ground that the presentation of this abject to court could violate the rules of decency, it could cause anomaly. In this American case, an accident occurred which resulted to the amputation of one arm of the victim, The victim turned out to be a doctor or 2 chemist who had the knowledge of preserving the arm that was amputated as 2 resull of the accident. A case was filed by him for the recovery of damages. The plaintiff, the lawyer for the oaSan Beda College of Law 2004 CENTRALIZED BAR.OPERATIONS plaintf tried to present to the court as an exhibit, the arm itself duly preserved The court said Well that is realy relevant evidence no question about it. But i does not appear to be far if we allow as exhibit A for instance’ the amputated arm", The court said, “Why don't you just preseat a picture of yourself with an arr that has been amputated. You don't have fo bring the amputated ‘aim itself to the court’, TRAY Ag of the tral court was assatled vetore the Supreme Court And ‘the Supreme Court of the United States said: “Thats tue, Although there are no rules of exclusion practically, when it cOmes to object evidence, the court is given enough discretion 10 determine which object evidence should be presented, and when it will resull to @ scandal. or t does not work any additional benefit to the’ plainti, instead it will give undue prejudice to the defendant, because by the time the judge will write the decision, he will be exanvining the exhibits i and he will be facing as exhibit A the amputated arm itself, That will give undue prejudice, that wll ‘result to undue prejudice against the defendant’, The court said: "We don't have to admit this object evidence even if itis really relevant to the fact in issue" So that when the piece of evidence sought to be presented by object evidence is 0 document itself, @ writing, we don't follow the best evidence rule, we dor't follow the rules of : exclusion. You see, a writing could be object evidence, i( could be documentary evidence When the purpose in presenting a witing Is to prove the contents of the writing, we consider the writing ‘as documentary evidence. But when the purpose is to prove the existence of the writing. ne ' condition of this writing, then the writing is not documentary evidence, but itis an object evicence So ifthe piece of evidence to be presented let us say is a deed of sale but we are not going to present the deed of sale io prove the contents of the agreement, hen the orignal of the deed of sale need not be presented in court. A xerox copy of the deed of sale may serve as object evidence itself. The reason is, when it comes to object evidence, we do not follow Ihe pest evidence rule, When the writing is presented as an object evidence, the writing itself, tne orginal of the writing need ndt be presented. Any copy, @ xerox copy of the witing will be acimissible in coutt is relevant, it is competent, because the best evidence rule does not apply to an object evidence. You should also note the other terms used for object evidence - real evidence, demonstrative evidence, physical evidence, autoptic proference B, DOCUMENTARY EVIDENCE RULE 130 Section 2: Documentary evidence Now we go t2 documentary evidence, AS we said, in documentary evidence, the purpose in presenting the writing is {c prove the contents of the wring, And when the purpose is to prove the contents of the writing, the law requires that the original must be presented Any evidence presented to prove the contents of the writing, which is not criginal, is incompetent. Wis excluded by the Rules. Using the example we had awhile ago, if the writing is a deed of sale. we must present fo the court the original of the deed of sale. Ifthe plaintif does not preseat the dosKan Beda College of Law 2004 CENTRALIZED BAR OPERATIONS original but only a xerox copy of the deed of sale, the xerox copy is relevant evidence, but itis not ‘competent. Its excluded by the Rule because itis not the best evidence Why are the courts very selective when it comes to documentary evidence, after all a xerox copy contains the same contents, they could have identical contents with the original? Well the courts are very selective. They insist on the presentation of the original of the document so that the court will avoid itself using perjured or fraudulent documents. That will not be good for fhe image of the court. In court Itigations, courts expect the parties to present a document that atfords the parties to present @ document that affords the greatest certainty when it cpmes to the existence or non-existence of the fact in issue. But you must always remember that in the best evidence rule, the excluded evidence, that’s secondary evidence or substitutionary evidence 's stil relevant evidence, although it is excluded in order to avoid the commission of fraud or the presentation of perjured documents. Electronic evidence You should also take into account in relation to documentary evidence the concept now of electronic evidence under the E-Commerce Law.’ Even without the E-Commerce taw. the definition of documentary evidence in the Rules of Court is broad enough to include electronic documents, because the Rules of Court define documentary evidence as any writing containing symbols, numbers, figures, letters. In electronic documents they consist mainly of symbols, isn't it? So the definition of electronic document is coveréd by the concept of a documentary evidence in the Rules of Court. The difference between an electronic document and ordinary document, for Purposes of the Rules of Court, would come when it comes to the duty of a perty to authenticate these documents Best evidence rule in relation to authentication and proof of documents Going back first to the best evidence rule where the contents of the document are the subject of the inquiry, only the original should be presented to the court, excluding secondary or substitutionary evidence. Supposing that the plaintiff has complied with this cule, he is able to present to the court the original of the deed of sale, {Lis now presented to the court? Will the court necessarily admit in evidence the original of the deed of sale? The answer is no. If a litigant complies with the best evidence rule by’ presenting to the court the original writing, it does not Recessariy follow that the original writing witl be admitled by the court? Why is this so? Because in the admission of criginal writings, in compliance with the best evidence rule, a party must also ‘meet the requirements for the authentication of documents, and this we should jump in the mean time to Rule 132, that is section 19, beginning with section 19 So again, even if the original of the deed of sale is presented to court, the: presentation of the original is not a guarantee that it will be admitted by the court in evidence Even af the 269San Beda College of Law 2007 CENTRALIZED BAR OPERATIONS document before the court is the original writing itself, he adverse party and the court could still cite grounds for the non-admission of the original writing. The reason for this is the presentation ‘of the original writing in court, will impose another burden on the interested party who has brought along with him the original of the document. The original of 2 document if presented in cout must be duly authenticated. So there must be proof of authentication of the original writing May the court admit the original writing of the deed of sale without any prooteof authentication, or is it always necessary ‘or the interested party to present evidence that will authenticate the document? So if you are going to read that part of authentication of documents in Rule 132, you will notice that for purposes of authentication, there are two kinds of documents ‘ public document and a private document. That is for purposes of authentication {f the deed of sale is @ public document, then there is no need for further authentication. But ifthe original of the deed of sale is not a public document, its just a private writing. there is @ need for authentication, otherwise the court will not admit the deed of sale even if iis the original deed of sale, which brings us to the concept of what a public document is, or what a private ‘document is for purposes of authentication when it comes to this deed of sale If the deed of sale becomes notarized, it becomes a public document. There is n0 further need of authentication. But when we say itis 2 notarized deéd of sale, we are assurning that the person who notarized itis really @ notary public, and that he-has notarized tne document in accordance with the Notarial Law. So if that document was notarized, let us say by Notary Public Mr. Cruz, and he makes it appear thet he is, that is the Notary Public is given authority to notarize documents in Manila, but on the face of the document it seems to have been notarized in Tarlac, Tare, then itis not a notarized document, It is not a public document. When we say a document that is duly notarized, the notary public must be 2 person authorized by a court under the Notarial Law to render notarial services within a particular locality. Ion ils face the document is notarized but it tums out that the notary public is not duly authorized, then the document is not 2 public document. It is stil a private document which needs further authentication before it can be admitted by the Court. Yesterday we. said that when an original writing is produced, its production does not necessarily mean that the original wiriting is going to be admitted in court. After prod 9 the original writing, the proponent stil has the burden of authenticating the original writing if the original writing is not a public document. So this gives us the advantage which a public document enjoys over a private document. When 2 document is public, there is no need for further authentication. But when the document is a private document there is a need for further authentication so that the original writing could be admitted in court ‘And how does one authenticate a private writing? Rule 132 describes to us how 2 private document should be authenticated for evidentiary purposes. And authentication simply refers to a testimonial evidence, that is testimony of 2 witness who will confirm to the courl that the sighatory in that document has indeed signed the documient. In other words, a documentary 20San Beda College of Law 2004 CENTRALIZED BAR OPERATIONS evidence is usually complimented by testimonial evidence. The production of the original, if there is a need for authentication, will require testimonial evidence for purposes of authentication We follow the same rule with respect to object evidence. Although object evidence is the most credible of the three, in offering object evidence there is usually a need also for testimonial evidence. The witness will have to identify the object or the real evidence to be presented in cour, Are there instances where the court may refuse to admit an original writing? ' the signature contained in the original writing has been authenticated by an eyewitness, oF by @ witness who is familiar with the signature, or by comparison by exper testimony, is the original writing now admissible in court? The answer is stil-no. Even if the original writing nas been produced, it has been authenticated, there could stil be several reasons for the court not ‘admitting the original writing. In Rule 192, after authenticating the private document, it is stil the burden of the proponent to comply with the rule that if the original writing is not in an official language — that is in English, or any of the major Filipino dialects, i is his duty to give to the court @ translation thereot. So if the original writing is written in Chinese characters, even if it has already been authenticated, it may not be admitted by the court unless there is @ cortelative translation that accompanies the original wring Another reason to refuse admission of the original writing is if it contains alterations. tt is again the burden of the proponent to explain to the court what these alterations are all about, whetner these alterations were innocently done, or whether they were inserted with the consent of the party, RULE 132 Section 21: When evidence by authenticity of private document not necessary If these requirements in 132 are satisfied, they are complied with by the proponent. thea the original writing may now be admitted in court. So you will se¢ that the authentication of a private document could be a tedious process. We have to present in court witnesses, who should authenticate the document, Are there private documents, which do not fall within the coverage of ‘authentication? Well the first exceplion in 132 refers to an ancient document, that is a private writing that is more than 30 years of age at the time of the production. And it is given by a person who ought to be in custody if itis genuine, and it does not suffer alteration, is considered as an ancient document. The ancient document is a private document and its admission does not require prior authentication, poe Other means of avoiding the necessity of authenticating private documentsSan Beda College of Law 2004 CENTRALIZED BAR OPERATIONS In order to avoid this tedious process of authenticating a private wring, ne partes can resort to other remedial measures which we studied in Civil Actions as well as im Casninal Procedure, For instance, a remedial step that could obviate of avoid authentication of a private iting isthe rule on actionable documents in Rule 8. If an actionable document is made the basis of a complaint or an answer, the law requires that it should be annexed fo the pleading or thet the contents thereof be copied verbatim in the pleading, Under Rule 8. 1f there is an actionable document and the adverse pary fails to make = specific denial under oath. the genuineness and due execution of that actionable document are deemed dmilled I the genuineness and due execution of an actionable document are admitted, that judicial admission wil tke the place of eutienticaion, There is no more need to present witnesses. to authenticate the private writing ; Another method to avoid authentication of a private writing, that is once the original writing is produced in compliance with the best evidence rule, is, by using the mode of discovery, that is request for admission. if a certain document, a private writing, is made the subject of a request for admission and the adverse party does not object within the period given in the Rulgs, the genuineness and due execution of that private writing are likewise admitted Another mode will be the pre-trial of a civil or a criminal case. During the pre-trial of 2 civil of @ criminal case, the parties: could enter into @ stipulation, where they will admit the genuineness and due execution of this private writing. If there's such a stipulation, then that stipulation will take the place of the burden of the proponent to authenticate this private writing RULE 130 Section 4: Original of document The oF nal of a document has a special meaning in the Rules on Evidence So the ‘original could refer to several copies. in fact the Rules define the original first as the document whose contents is the subject of the inquiry. And in the next paragraph, in the next number, the law says that if a document is executed in several copies al or at the same time with identical contents, all these copies are considered as originals. Or if 2 certain document is copied in the ‘ordinary course of business, then alt these copies will be considered as originals. So there is such @ thing as the original of Ing sergument, there is @ duplicate original, there could be a Inplicate ‘original or quadruplicate original, All these documents are considered as originals. The Best Evidence Rule also recognizes several exceptions to the burden given to the Proponent to submit to the court the original writing. The first is when the original has been lost or destroyed without bad faith on the part of the offeror or the proponent, Or when the original is in the hands of the adverse party who refuses to surrender the original after due notice, or when the original consists of several accounts and the only purpose is for the court to get the result of the totality. And fourth, when the original is in the hands of a public officer in which case a certified copy will ke admissible by express provision of the Rules.San Beda College of Law 2004 CENTRALIZED BAR OPERATIONS Secondary evidence or substitutionary evidence What is excluded again by the Best Evidence Rule is secondary evidence or substitutioriary evidence. This substitutionary evidence is relevant evidence but itis excluded, because secondary evidence does not give to the court the greatest certainty as to the existence of non-existence of the fact in issue, One of the reasons why we have this Preferred Evidence Rule or the Best Evidence Rule, is to avoid the commission of perjuty in court proceedings. When secondary evidence is attempted to be introduced by the proponent, on the ground that the original has been lost or destroyed, the proponent must prove to the court the exsience ofall the originals. So if there is an originat in the hands of the plaintif, and another original in the hands of the defendant, the plaintitf must prove first that the original in his possession as well as, the original in the possession of the defendant had been lost or destroyed. Ifthe plaintif is able to prove only that the original in his possession has been lost or destroyed, but he is not able to prove that the original in the hands of the defendant has not been lost or destroyed. he is prohibited at that point to present secondary evidence. He must resort to the second exception « that he must give notice to the adverse party to produce the original in the hands of the adverse party Now the mode by which this notice to produce would be accomplished by resorting to that mode of discovery ~ motion for the production of documents, which is always made with leave of court. If the court orders the adverse party to produce the original in his hands. wel the adverse party will have to options: either to comply with the order of the court or to ignore the ‘order of the court for the production of the original. Ifthe adverse party refusés to obey the order fof the court, then the plain Gat Row introduce secondary evidence. Rule of exclusion for secondary evidence ~ parole secondary evidence But when it comes to the presentation of secondary evidence, we also follow a rule of exclusion, and the rule of exclusion when it comes to secondary evidence 1s called parole secondary evidence. So in the presentation of secondary evidence to prove the contents of @ ‘writing when the original has been lost or destroyed, or the adverse party has refused to obey an order of the court for the production of the original, the Rules say that the secondary evidenge must be presented in the following order: (1) a copy; (2) recital in 2n authentic document and (3) testimionial evidence. So when it comes to secondary evidence itself there is another set of exclusionary rules, The proponent therefor cannot present testimonial evidence to prove the contents of the writing, unless he has also proven that there is no copy, oF that there is no recital in some authentic document. So the rules of exclusion when it comes to secondary evidence is called parole secondary evidence.San Beda College of Law 2004 CENTRALIZED BAR OPERATIONS ‘Supposing that the piaintf! obtains from the court an order directing the defendant to produce the original in the possession of the defendant, and the defendant refuses (0 obey ine order of the court, So the plaintiff will now introduce secondary evidence concerning the contents of the document. After the plaintif has presented secondary evidence, the defendant now tels the court “t have finally changed my mind. 1 am. going to produce or to surrender to the court the ‘original in my possession”. Will the court admit the origi ‘al, which is now being produced by the defendant? Under American jurisprudence, the court will not allow the admission of thal orginal ‘Recording to these American cases, if the defendant is ordered to produce the original in his possession, but he refuses to obey the order of the court, there is now a waiver on Iss part when it comes to the presentation ofthe original, So the secondary evidence presented by the plain will be the evidence to be considered by the court in determining the contents of that document Go this could be one situation where secondary evidence will prevail over the original vrling self, simply because the adverse party has refused to obey an order of the court for Ine production of a document. Jn one criminal case, the accused was in possession of a document, which according 10 the prosecution is vital n.ogéesa convince the court thatthe accused should De convicted The sxosecution was not in possession of any other document, except the original inthe hands of he accused. The prosecutor during the tral, tried to present dbcondary evidence to prove the contents of the original in the hands of the accused. The counsel for the accused objected, based oon the Best Evidence Rule. The counsel for the accused old the court that secondary evidence not admissible because there is an original of the document in.the hands of the accused. But the proseculor argued: "We cannot compel the accused through a motion fo surrender the originat, pecatse that wil violate the right of the accused against selt-incrimination". which is correct Bvt the coutt stil ruled: "The prosecutor should stil go through the process of asking the court (9 compel the accused fo produce the original, Because we do not know what the reaction of the accused willbe. It might be 2 violation of the accuses’ right against selFincrimination, Out Me aecused can decide, to walve this right by surrendering the origina. In other words, in Ins ‘minal case the prosecution Was not allowed 0 present secondary evidence, simply because of is neglect to comply with the provisions of the Rules that secondary evidence could be introduced only if there is prior proof of loss of destruction ofthe original, or there i refusal on ne part ofthe adverse party to surrender the orginal despite an order issued by the court Parole Evidence Rule isthe orignal wating is now in court, fetus say thatthe orginal writing is about a deed of cate nhich was our example yesterday. The ciginal is now identiied by witnesses ang marked let us say as Exhibit A for the plaitit, Can the defendant present evidence 10 show that ne document although itis considered as a deed of sale in'so far as the tile and the contents =e concerned, can the accused tell the court that the document is not realy @ deed of sale but 9 deed of mortgage? - which wil bring us now tothe Parole Evidence Rule, which says (net when the terms-of an agreement have been reduced into wring, then in so far a6 the pares =eFak Han Beda College of Law & 2004 CENTRALIZED BAR OPERATIONS concerned, that agreement is presumably to contain all the terms agreed upon, and inat the parties cannot be allowed to add, modify or alter the terms of that agreement, unless a party puts in issue in the pleadings intrinsic ambiguity, imperfection or mistake, that the agreement does nol express the true intention of the parties or the validity of the agreement, or there is @ subsequent ‘agreement which is inconsistent with this particular document “The Parole Evidence Rule should nat distract us from the basic privciple in Civil Lav. in ‘contract law, that a contract is valid in any form itis entered into. Thal is, in contract jaw, an oral contract is valid between the narties in the same way that a written contract is also vale m so lar as the parties are concer SBiong as the essential elements of 2 contract are present In ollier ‘words, the Parole Evidence rule does not require thal a certain contract should be reduced into writing, There is no such rule in contract law and even the Rules of Court do not require that a certain contract should be in writing for purposes of validity. Whether or nol the parties wall recuce their agreement into wring is purely the discretion of the parties, But when the parties decide to reduce their agreement into writing, that is the only time when we apply the Parole Evidence Rule 0 you will also notice that the Parole Evidence Rule is part of contract law Parole Evidence Rule is net procedural in character. It is substantive, itis a part of the lew on contracts ~ that when the parties have reduced their agreement into writing, the parties will nat be allowed to alter of modify, change or add or vary what is contained in the written agreement, Well this 1s @ public policy principle of substantive. law. If we allow testimonial evidence to overwhelm documentary evidence, then nobody will give credence to any written agreement incone Supreme Court decision of 2 state in the United States, the ponente of @ case involving the Parole Evidence Rule said: “I would rather trust the smallest piece of paper than the most retentive memory ever bestowed on mortal man”, That is the basis of the Parole Evidence Rule, When there is alfeady an agreement between the parties, that agreement should be considered as having contained all the terms agreed upon, tn our example, if the document that Is now before the court is a deed of sale between the vendor and the verde, can the vendee tell the court that the contract is not really one of sale but a deed of mortgage, or that itis réally an equitable mortgage? Fotlowing the provisions of the Civil Code, and note thal the Parole Evidence Rule as | said is not procedural. itis substantive in character, in out example the vendee could validly tell the court that the deed of sale 1s not really ‘one of sale but one of mortgage as long 2s he puls in issue in the pleadings, any of the matters ‘enumerated in Parole Evidence Rule: intrinsic ambiguity; mistake or imperfection; the document does not express the true intent of the parties; or that the validity of the agreement is placed in issue. In the Civil Cod deed of sale is presumed to be an equitable mortgage under certain circumstances, So this just provés to us that the Parole Evidence Rule is really a part of substantive law. because the Civil it you will recall also, the. Civil Code itself makes a presumption that 2San Beda College of Law s 2004 CENTRALIZED BAR OPERATIONS ‘Code itself tells the partigs,cg.a contract of sale that their contract of sale 1s presumably equitable morigage under certain conditions. But for evidentiary purposes. in order that ine vendee could setup the defense or stand thal the deed of sal is not realy one of sale but one of mortgage, 's for him. to putin issue if he pleadings, In other words, in his answer (@ the complaint, he must already set up the defense that the transaction between the vendor and Ine vendee is one of mortgage, itis not one of sale, if he fails to raise thi issue in the pleadings, Ne wal be precluded from presenting eviderce to show that their transaction is really one of mortgage. II he attempts to present evidence to show thal their agreement 15 realy one of mortgage, his evidence may nol be admitted on the ground of the Parole Evidence Rule ‘So what is the evidence that is excluded by the Parole Evidence Rule? ‘The Parole Evidence Rule excludes what we call as evidence aliunde, compared fo he est Evidence ule, which excludes secondary or substtutionary evidence, Evidence aliunde ~ the evidence that is excluded by the Parole Evidence Rule, could be testimonial, it could Pe & vwniten document. So any document, whether testimonial er documentary which will vary or aiter the terms of the agreement subject matter of the action, will not be admissible The exceptions refer to intrinsic ambiguity, which by implication recognizes anoles kind of ambiguity, which is extrinsic ambiguity or patent ambiguity. Under our Rules on Evidence, there is a difference between intrinsic ambiguily and extrinsic ambiguity, When the ambiguity does nol arise on the face of the document, the ambiguity will aise pecaus® ot collateral facts that thereafter appear, then the ambigully is intansie, Buti by merely reading the document, the reader wil immediately recognize that there &s something wrong wih (net document, then that ambigully Is extrinsic. Parole evidence is admissible in order to remedy an intinsically ambiguous contract, But when the contract is extrinsicaly ambiguous, parole evidence is not admissible. If we follow the usual example of intrinsic and extrinsic ambiguity given in the books of Wigmore and Jones. wen ticomes to intrinsic ambiguity: there is @ sae ofa plece of and in favor af Juan dela Crus lf you read the document there is realy nothing wrong because there is @ vendor, there is 2 vendee and theie is an object of sale, there is consideration. But it turns out Iater thet there are Wo persons who carry the name Juan dela Cruz. That document is itrinsically ambiguous Necause wwe do not know who the vendee Is, who between the two persons who carry the name Juan dela ruzis the vendee in that sale. That defect could be remedied by the introduction of testimonial evidence or other documentary evidence to show to the court whois the Juan dela Cruz mentioned in the deed of sale as the vendee’of the property, So in this situation, when he document is intrinsically ambiguous, parole evidencelevidence aliunde could be admited by Ine court puttin that deed of sale where Juan dela Cruz is the vendee, and there ss only one Juan dela Cruz, but the property sold to Juan deta Cruz is simply @ piece of tand Is the document 276San Beda College of Law 2004 CENTRALIZED BAR OPERATIONS ambiguous? Well the document is ambiguous because the docu ent sells to Juan dela Cruz only 2 piece of land, we do not know what that piece of land is. There is no description. it ss just @ piece of land sold to Juan dela Cruz. Is the ambiguity intrinsic or extrinsic? The ambiguity 1s tedinsi. It arises from the face of the document itself, Could we introduce evidence atwnd® to prove to the court the identity, the particulars of the land subject matter of the sale? We cannot because a contract of sale between the vendor and Juan dela Cruz where the vendee buys only 2 piece of land without any particular description is void, And in the Rules on Evidence, a party cannot introduce evidence in order to correct a situation where the contract is void and convert t into 2 valid contract. If that contract is void on its face, the court cannot allow the auoussion of evidence tg show the particulars canceming the identity of that land, But subsequent cases in the United States and also in the Philippines have recognized another kind of ambiguity and the Supceme Court has described this as intermediate ambiguity itis an ambiguity that is akin to both extrinsic and intrinsic ambiguity, And the Supreme Court said that when the ambiguity is intermediate, evidence atiunde can be admitted by the court in order to explain or add to the meaning of the intermediately ambiguous provisions of the contract So when it comes to these matters of intrinsic ambiguity, extrinsic ambiguity or intermediate ambiguity, when the document suffers from intrinsic ambiguity. when the document suffers from intrinsic ambiguity, evidence aliunde may be admitted. When the document suffers from extrinsic ambiguity, evidence aliuade will not be admitted. When the document suffers from intermediate ambiguity, we allow admission of evidence to explain the intermediate ambiguity ‘The concept of falsa demonstration non nocet ‘There is another concept, there is another principle in evidence which has nothing to do with ambiguity of contracts, and itis called faisa demonstratio rion nocet or falsa descriptio non nocet ~ that is, 4 false description will not invalidate an instrument In intrinsic ambiguity or in extrinsic ambiguity, we said that there is a defect in the writing when it comes to intrinsic ambiguity because certain collateral facts bring about the ambguity When it comes to extrinsic ambiguity, the ambiguity appears on the face of the document itself The document is void when it is extrinsically ambiguous, Under the principle of alsa demonstratio, if we apply our example of a deed of sale, the property sold is properly described but then there is another description which is erroneous. Soin the deed of sale, 2 parcel of land is described: "Covered by TCT # 12345" And then there is a technical description of the property. ‘And the partes also add: “And this parcel of land covered by TCT #12345 is located in the City of Tarlac’. There is really a land covered by TCT #12345 which technical description is correctly copied in the deed of sale. Bul this piece of land is not focated in Tarlac City, iis instead located in the Municipality of Paniqui, Tarlac. Will that false description invalidate the contract? The ‘answer is no under that principle of falsa demonstratio non nocel. The erroneous description will be considered as a supplusage. So the deed of sale involving this piece of land covered by TCTSan Beda College of Law 2004 CENTRALIZED BAR OPERATIONS #12345 will be considered as a valid deed of sale, The erroneous description of its location will be ignored by the court. It can be ignored by the parties. But you will note that this rule on falsa. demonstratio or falsa descriptio does net involve any ambiguity at all. does not involve intrinsic ambiguity. it does not involve extrinsic ambiguity. In fact there is a description, which is a correct description, ané another description. which turns out to be an erroneous description The erroneous description will be considered as @ surplusage The next topic is about Interpretation of contracts. We usually do not take thal up on the subject on Evidence, That is again part of substantive of law. The provisions of the Rules on Evidence on the interpretation of contracts are just copies of the provisions of the Civil Code So they are all substantive, they are not procedural C, TESTIMONIAL EVIDENCE The next topic is about testimonial evidence, which is, when it comes to weight and ‘when it comes to credibility, if we compare testimonial evidence to the other forms that we have taken up, that is object evidence, documentary evidence and testimonial evidence In this classification, testimonial evidence will have the least weight It has the leas! weight because according to jurisprudence in testimonial evidence, we rely on the memory of men And usually when there is a dispute between contending parties, and both rely on testimonial evidence, the parties and their witness usually suffer from selective amnesia. The plaintif to an oral contract vill only remember the terns of the contract, which are favorable to him. He will detberately forget the terms of the contract, which turn out to be harmful to his interest, The same is true with the defendant, He will also be sulfering from that disease of selective amnesia, He wil tell the court “in so fat as a | can recall, these are the terms of our agreement...” and he will enumerate the conditions which are favorable to his side, and he will not mention the terms and conditions which ‘are prejudicial to his interests. That is also the reason why, when it comes to testimonial evidence, there are several rules of exclusion RULE 132 Section 20: Witnesses; their qualifications So in testimonial evidence we rely on testimony of witnesses in court. So the first thing that we should know is who are qualified to be a witness in court? Well the qualifications given in the Rules are very simple: any person who can perceive and perceiving, can make known his perception, These are vaz_simple qualifications, So the definition, that's the qualifications of the witness given in the Rules, will involve the capacity of a person to perceive - that is, to observe. And then it involves his capacity to recoltect. And then this will involve his capacity to narrate what he has observed in the past, A person who can perceive and perceiving can make known his perception. qsSan Meda College of Law 2004 CENTRALIZED BAR OPERATIONS The assumption in the Rules is that all witnésses are presumable qualified Thats, any witness presented to court from the point of view of the court, from the eyes of the presiding judge, nas the capacity to perceive and perceiving can make known his perception. So if there 1s any liigant who desires to assail the qualification of a witness, it is his burden to prove to the ‘cour that the witness cannet perceive, and perceiving cannot make known his perception This 1s ‘also a rule of substantive law, that all persons are presumed to have the capa to act Anyhody who disputes this presumption has the burden of proving to the court that the particvlar person does not have the capacity to act. Persons who are immune from the process of subpoena ‘There are also certain rules/procedural principles that are well settied when it comes to testimonial evidence. A disinterested person could be compelled to go to court to give his testimony, that is through the process of subpoena, Bul there are also certain persons who are immune from this process of subpoena ~ either by tradition. or by convention, or by law. oF by treaty, For instance, ambassadors of foreign countries to the Phitigpines cannot be compelled to appear in court by subpoeria ad testfcandum or duces tecum by virtue of tealy obligations By Jurisprudence, the President of the Philipines or any country for that matter is immune from the process of subpoena, This rule, which immunizes the President of a county lke the Phiippines from the process of subpoena, stemmed out of an old case in the United States and probably you are familiar with this. This happened during the presidency of Thomas Jefferson. he was a President ofthe United States In one case involving a lawyer, a prominent American lawyer, thal’s:Aeron Berk - that’s the name of the lawyer, The Chief Justice of the Supreme Court of the United Stgtes issued a subpoena addressed to President Jefferson. telling him to appear in a proceeding so that he can give hhis testimony’ in court, Well the President of the United States ~ Jefferson, was very diplomatic in refusing to obey the subpoena, He told the Chief Justice: “The Execuine Department of our governgeee’is the only department that works 24 ours a day Unlike the Judiciary. unlike the Legislative body. The Executive Department works 24 hours a day because itis responsible for the security of the United States. If trouble comes out at any time. Lis the Executive Department that will be concerned with this trouble, If another country attacks the United States for instance, itis not the Judiciary, itis not the Legistative body that will be involved in the defense of the United States”. So President Jefferson concluded by saying’ “It will obey your subpoena, and | appear in court on the date time and time that you had placed in the ‘subpoena, during the time that | will be appearing in your court, nobody will be taking care of the Executive Oepartment of the United States, 50 I refuse to obey your subpoena” And then the Chief Justice forgot about the subpoena. It séems that he was convinced with the togic and the reasoning of the President of the United States. . Up to the present we follow that rule. We cannot compel the President of the* Pintippines to appear in court in compliance to a subpoena issued by the Court, because he is the only officerSan Beda College of Law 2004 CENTRALIZED BAR OPERATIONS ‘of the government who works 24 hours a day. Well 1 do not know if that is true in the Pintippines, but that is the basis of a President being immunized from the process of subpoena Examination of a child witness vs. examination of an ordinary witness You should atso note when it comes to testimonial évidence, about the administratve ‘order of the Supreme Court concerning child witnesses. II's not yet formally included in our booksiin the Rules, but itis # subject of an administrative order the Supreme Court issuéd in year 2000. And if you will read the administr fe order on child witnesses, there is also a presumption, which a court immediately gives to a child/minor witness: although he is a child or a minor, that he is qualified to be a witness. So any of the litigants who desires to assail the capacity of a child 10 be a witness, has the burden of proving that the child is not qualified to be @ witness. There is a part of the proceeding called preliminary examinat n of witnesses, oF technidally known as voir dire @xamination of witness for the purpose of establishing whether or not @ witness really is qualified as such. When it comes to a ctilld witness, and one of the contestants, one of the parties assails the qualification of a child wilness, there will also be a preliminary hearing on the qyalification of the child witness. But itis only the judge who could ask questions of the child wihess, The pisintiff and the defendant cannot ask questions, cannet propound questions directly to the chilé witness, If they want to propound questions, they should write their questions on a piece of paper and give that to the judge. And i€ is up to the judge to decide whether or not the questions prepared by the counsel will be propouivled by the court That is 2 materia difference in the treatment of a child witness and an ordinary witness whose qualification is being questioned. When the witness is not a-chilé witness and there 1s a pieliminary exantination on his capacity to be a witness, the parties to the case are given the privilege of propounding questions directly to this witness, but not in the case of a child winess Another difference in the treatment of @ child witness and an ordinary witness is that in the case of a child witness, leading questions could be asked. Generally, in the examination of witness, we disallow leading questions to be asked on direc! examination or redirect examination But when it comes to 2 child witness, feading questions could be asked whether it is inthe stage of direct examination or redirect examination, When it comes also to @ child witness, the child witness could be assisted by a faciitator so the child withess will not be siting alone on the witness stand. A facilitator could be beside him, giving him comfort or giving him advice while the proceedings are going on ‘and then whien a chié witness is on the witness stand, the proponent could ask just one question, and the child witness could give his testimony as a result of this question So the proponent could ask 8 child witness: “Tel the court what you know abou! this incident’, wich s 280San Beda College of Law 2004 CENTRALIZED BAR OPERATIONS not allowed when the witness is.an ordinary wilness. Testimony in narrative fornyis not atlowed when it.comes lo ordinary witnesses. But when the witness is a child witness he can be allowed {o giye his testimony in a narrative form, | suggest that you go over the administrative order issued by the Supreme Court when it comes to the treatment of a child witness. And this administrative order refers to oth owl and criminal cases, for all kinds of cases, as long as the witness is 2 child witness, ‘Although there is @ presumption that all witnesses are presumably qualified as such theve are certain decisions to the effect that wien the witness is under guardianship by reason of insanity, or he is confined in an insane asylum, we do not apply he presumption that he 1s qualified as such. If he is confined in an insane asylum, the presumption is to the etfecl that his insanity continues until he is released from the asylum. This is the only known Situation where the presumption is to the effect gai witness is not qualified as such a il RULE 130 Section 21: Disqualification by reason of mental incapacity 6r immaturity We go to the disqualifications by reason of mental condition or immaturity, We will also notice from the Rules that when it comes to disqualification by reason of mental condition of immaturity, the Rule does not use the word insane anymore, Unlike in the old Rules. there was a disqualification by reason of insanity, Now there is a disqualification ~ which is an absolute : tn one case, the quasi judicial body promulgated sts own rule concerning proceedings taken before i, And this quasiudicial Body required the parties to prove thei resp ve positions by presenting, the quantum of evidence that a party should submit to this quasi-judicial body oF administrative agency should be preponderance of evidence. According to the Supreme Court the quastjudicial boy has no power fo make its own rulé concerning quantum of evidence Under the Rules, the quantum of evidence for civil cases is preponderance, and the quantum of evidence for quasi-judicial and administrative bodies is only substantial evidence ‘though in criminal cases, the quantum of evidence is proof beyond reasonable doubt wn cexcer to conviet the accused, this is a burden thal is addressed to the prosecution. In so far asthe detendantthe accused is concertied, he does not have to prove his defenses wih proo! beyond ‘easonable doubt | is only the prosecution that is given the burden of proving the gut of the ‘sccused beyond reasonable doubt, In so far ag the accused is concemed, its enough # he able 10 prove his defenses by preponderance of evidence Why is this $0? Here is a criminal case, tne prosecution has presented evidence wich wil prove the gui ofthe accused eyond feasonable doubt: This is now the turn of the defendant to present his own evidence Me is able to prove his defenses only by preponderance of evidence. Is the accused entiled 19 acquital? {Well the answer is yes because_if the accused is able to prove by preponderance of evidence hs defenses, there will always be 2 reasonable doubl as to his gui And whenever there 1s reosonable doubt a8 to his gui, the accused is entitled to an acquital Equiponderance of evidence What happens when there is equipoise of evidence or equiponderance of evidence? In clher words, the evidence submitted by one paity is the equal of the evidence submitted by (he adverse party. This situation is called equiponderance or equipoise of evidence tn criminal cases, if there is equipanderance of evidence, the accused will be acquilted. How abou! in cwil cases? II there is equiponderance of evidence, is it the defendant who will lose oF could the plaintf stil win the case if there is equipoise of evidence? If there is an equipoise of evidence we {ollow a different rule in a civil case. It does not follow that if there is an equipoise of evidence the complaint will be dismissed, If there is equipoise of evidence in a civil case the party who lose is the party who has the burden of prool. And as we said yesterday, in a civil Gase, 15 nol comoct to say that itis always the plaintiff who has the burden of proof. Its possible in a cru case tha the burden of proof rests with the defendant. So in a civil case, in case of equponderance ofSan Beda College of Law 2004 GENTRALIZED BAR OPERATIONS evidence, whoever has the burden of proof will lose the case. In a criminal case, where the Bccused was able to prove his defenses by prepanderance of evidence (hereby creating a reasonable doubt as to his guilt, the prosecution will Jose because it has nol complied burden to show the guill of the accused by proof beyond reasonable doubt ah as. Evaluation of evidence When it comes to the evaluation of evidence, you should always remember two principles, which could serve as 2 fallback justification for any question when wt comeg (0 Evidence.’ The first principle is that, for evidence to be worthy of credit. the evidence must nat only proceed from a credible source but it must be credible in itself. The other principle in Evidence which could be used to justify any answer given in a question on Evilence. 1s that a party must rely on the strength of his own evidende, and nol on the weakness of the adverse | pbity's evidence. These are'the principles, whic we can consider fallback panriples when rein weston pertning to Evidence, In substantive law, oF falback justcnion Kr ay eevee at ne gue in examination is his ro'peragh sal be unjustly enna he expense of romero nave fan out otjustiicaions to OUT answers, we aways S87 “UecaUse we dle cece, ten we oe going 10 wale Is pine that o person shal be unsy cnc Tee eapente ot enater These pring in Evidence that | enoned wil epee inthe same vrcpnes ta hat pine of nj enrichment could serve 35a justification fr any answer gven inavbetontve tw You ste in the Bar Examinations, there is always an instruction given to examinees: Do not answer simply with yes or no. All answers should be justified. A plain yes or n0 wll not be given any cfegence at al, That is a usual instruction contained in the Bar Exaiminalions Sof you are able to give an answer bul in the unanimity of the Bar Examinations your memory is fost, you ‘can always rely on these principles. If you stil forget the principles, then the last fallback justification should be “Law is @ noble profession and if we decide otherwise, we are gong {0 Gestroy the nobilly of our profession’. See all you have to do is to give a justification for every answer to 8 question. ‘With respect to that fist principle in Evidence that an evidence to be worthy of cfedit must not only proceed from.a credible source but it must be credible in itself, takes into acco of course, humen experience. That is the only practical means of determining whether the testimony or the evidence presented by the party is true or not, that is the source must be credible and ‘evidence itself, the testimony itself must also be credible. For instance, if @ man tells us that he nd then he ‘says that he did not touch Rosanna Roces, then that statement is highly incredibie wart W? Is was inside a room with Rosanna Roces for 24 hours, and they were alone in bed ‘against human experience. So the testimony to be worthy of credit must Not proceed only Irom credivie source, but it must be credible in itself * RULE 133 Section 4; Circumstantial evidence, when sufficientSan Beda College of Law 2004 CENTRALIZED BAR OPERATIONS ‘Another principle in the last rule is about circumstantial evidence. And of course the opposite of cricumstantial evidence is direct evidence. In circumstantial evidence, ihe exstence or non-existence of the fact in issue is proven by an inference. nat directly I 1s proven by inference, and this inference is derived from a proven or admilled state of facts There ¥s "0 Guestion that an accused in @ criminal case can be convicted puraly on circumstantial evilance There is also no question that in a civil case, the plaintiff or the defendant as the case may be could win by relying simply on circumstantial evidence. Bul when it comes to a criminat case, the Rules are more stringent. In 2 criminal case, itis required that there should be more than one circumstance. And then there is 2 chain, a fink of these unbroken circumstances, winch wil enw! the court to bplieve that the crime has been Committed, that there is proof beyond reasonable doubt For instance, in a criminal case for homicide, the fight of the accused from the Senne of the crime is circumstantial evidence, If that is the only evidence submitted by the prosecutan welt the court will acquit the accused, So the prosecution must add other circumstantial evidence The prosecution could prove thal 2 week before the occurrence of the incident, the viclem and the accused had an argument, and that they had a fist fight. That will be another circumstantial evidence. The prosecution could aiso prove that two days before the occurrence of the incident tne accused told his neighbor that sooner oF later the victim will be resigning from the human race. Another circumstantial evidence could be the motive for instance why the accufed nas killed the victim, So in 2 criminal case, it is not enough for the prosecution Io prove Just one circumstence, There must be 2 link 6f circumstances that will lead to 9 conclusion that the accused has committed the crime charged. ‘These inferences happen in everyday life, In fact we go on life using our abikty to make » aninference from known facts or from admitted facts. And this story will give us an example of how a logical inference could be had. A newly installed King issued @ royal decree requiring the suibjects of his kingdom to be drafted to the army. One of the draftees had the physical attributes of the King. In fact if it were not for the age difference between the King and the drpfiee, ine King would be considered as an identical twin of the draftee, So the king called the drakee and asked him: “Draftee, did your moines work in our palace?” And the draflee said: "No your majesty. ! grew ‘up without knowing who my mother is", "How about your father?” The drattee said “Well my father is now old. He is the one tending to our small farm: Bul according to my father, he worked for the palace for a long time as a gardener’. You get the inference from that. That is an example of ow an inference could be made from known or admitted facts RULE 193 Section 7: Evidence on motion ‘The last section of this Rule refers to evidence on motion. Usually we do not introduce evidence to support a motion, Although @ motion is set for hearing, the court really does not conduct a hearing on motest=:Ahe court will simply say: “This motion is submitted for reson aoo, Face Sat Beda College of Law ie3 2004 CENTRALIZED BAR OPERATIONS ae But if there is an order from a court requiring thet evidence be submitted in order to justly a motion, the evidence could be in the form simply of affidavits. May there be @ motion which the our wil equize to be tried as if the court were ordering an acta trial ofthe case. that is’there is presentation of witnesses, direct examination of witnesses. cross. re-direct and re-cross? Welt there are certain motions, which may require actual headlag similar to the trial ofa case. A good example is a motion for bal in a criminal case, where the court can require the prosecution to introduce evidence to convince the cour that the evidence for the prosecution 1s strong tn this situation, the prosecution will be required to present witnesses who will be subjected to ‘exemination by the prosecution, and by the defendant. But in criminal procedure, when there is such a hearing for this mation, the Rules say thatthe records taken, the evidence taken up during the hearing of the motion will form part automatically of the records of the case, So during the actual rial there is no more need for the partes to repeat what hes been undertaken during the hearing of the motion. In a civil-case, this could also happen when there is a pettion oF appication for instance. for preliminary attachment, and the court does not want to hear the application ex parte, the court cold conduct @ hearng. When there is an application for preliminary injunction, there should be 2 hearing although it would be surmmery in nature, But there is nothing, which will prevent 2 cour from conducting a true hearing when it comes to these motions. Also in a mation to dismiss founded on certain facts which are not solely predicated on let us say, absence of jurisciction oF failure to state @ cause of action. When the motion to dismiss i$ founded on the ground of payment. the court could require the presentation of evidence to show that the obligation has been paid. But just ike in 9 criminal case, the hearings and the evidence taken during the heoring of a motion will automaticaly be considered as evidence presented during the trial of the case ‘Well that's the end of Evidence. | wish you well