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Chapter IV: Testimonial Evidence

Competency and Credibility


Bar 2004
Q: Distinguish: competency of the witness
and credibility of the witness
A: Competency of a witness has reference
to the basic qualifications of a witness as
his capacity to perceive and his capacity to
communicate his perception to others. It
also includes the absence of any of the
disqualifications imposed upon a witness.
Credibility of the witness refers to the
believability of the witness and has nothing
to do with the law or the rules. It refers to
the weight and the trustworthiness or
reliability of the testimony.
In deciding the competence of a witness,
the court will not inquire into the
trustworthiness of the witness. Accordingly,
a prevaricating witness of one who has
given contradicting testimony is still a
competent witness.
Bar 1994
Q: Al was accused of raping ourdes. !nly
ourdes testified on how the crime was
perpetrated. !n the other hand, the
defense presented Al"s wife, son and
daughter to testify that Al was with them
when the alleged crime too# place. $he
prosecution interposed a timely ob%ection
to the testimonies on the ground of obvious
bias due to the close relationship of the
witnesses with the accused. If you were the
%udge, how would you rule on the
ob%ection&
A: I would overrule the ob%ection, interest in
the outcome of a case which also includes
close relationship is not a ground to
disqualify a witness 'sec. () *+,(-
Bar 1994
Q: ouis is being charged with frustrated
murder of *oy. $he prosecutions lone
witness, .ariter, testified to having seen
ouise prepare the poison which she later
surreptitiously poured into *oy"s wine
glass, ouise sought the disqualification of
.ariter as witness on account of her
previous conviction of per%ury. *ule on
ouise"s contention.
A: $he contention of ouise has no legal
basis. /asic is the rule that previous
conviction is not a ground for
disqualification of a witness, unless
otherwise provided by law. .ariter"s
conviction is not sufficient to have her
disqualified to testify. 0er situation is not
one of the e1ceptions provided for by law.
Competency of a Child Witness
Q: .ay a person over +2 years old be
sometimes considered as a child&
A: sometimes, he may. In child abuse
cases, a child includes one over +2 years
but is found by the court as unable to fully
ta#e care of himself or protect himself from
abuse, neglect, cruelty, e1ploitation or
discrimination because of a physical or
mental disability or condition '*ule on
31amination of a Child 4itness-.
Bar 2005
Q: 4hen may the trial court order that the
testimony of a child be ta#en by live5lin#
television&
A: $he court may order that the testimony
of the child be ta#en by live5lin# tv if there
is a li#elihood that the child would suffer
trauma from testifying the presence of the
accused, his counsel or the prosecutor as
the case may be. $he trauma must be of a
#ind which would impair the completeness
or truthfulness of the testimony of the child
'31amination of a child witness-.
Survivorship Disqualification Rule of
the Dead Mans Statute
0ypo:
.r. D approaches .r. C one rainy 6unday
morning to borrow one hundred thousand
pesos to be paid e1actly a year after.
4ithout hesitation, c gives d the amount
requested. C does not require d to e1ecute
a promissory note. $hey had been very
good friends for as long as they can
remember. 7ears ago, when .r. C"s small
business was on the verge of ban#ruptcy it
was the generosity of the then wealthy .r.
D that bailed him out. 31actly a day before
the agreed date for payment, .r. D dies
without paying the debt. 4hat does .r. C
do& 4ell he does what every creditor would
do under the circumstances. 0e goes to the
e1ecutor of what remains of the estate of
.r. D, and tells him of the debt of .r. D. he
says: 8$oday is supposed to be the due
date of his debt. I cannot demand payment
from him because his dead. 7ou are the
e1ecutor and alive.
4hat is the effect of the death of .r. D&
.r. C is rendered incompetent to testify as
to the transaction he has with D. he is
incompetent because of the possibility that
his claim is fraudulent. If C were to be
heard there would be a high ris# of paying
a fraudulent or a fictitious claim. It is C who
has the motive to lie. 0e is the survivor. D
cannot lie. 0e is dead. 0e did not survive9
he cannot answer bac#, nor disprove the
claim of C. $o level the playing field
between the luc#y survivor and the poor
deceased our remedial law ancestors
devised a rule that would seal the lips of
the survivor by declaring him incompetent
to testify on the transaction between him
and the deceased the rule is definitely one
that does not protect the survivor even at
the ris# of not paying a %ust and valid claim
because it is the survivor who has the
stronger reason to file a false claim. $he
rule is for the protection of the guy who
died. 0ence the name, dead man"s statute.
$he rule will not apply where the plaintiff is
the e1ecutor or administrator as
representative of the deceased or if the
plaintiff is the person of unsound mind. 6o
if the e1ecutor of the estate of .r. C sues
.r. D to collect an unpaid debt incurred in
favor of C by D before the death of C, D
although a survivor, is not precluded from
testifying as to the transaction he
previously had with C because the case is
not upon a claim against the estate of C
but a claim by his estate against D.
Bar 200
Q: .a1imo filed an action against :edro,
the administrator of the estate of the
deceased ;uan, for the recovery of a car
which is part of the latter"s estate. During
the trial, .a1imo presented witness
.ariano who testified that he was present
when .a1imo and ;uan agreed that the
latter would pay a rental of :()))) for the
use of .a1imo"s car for one month after
which ;uan should immediately return the
car to .a1imo. :edro ob%ected to the
admission of .ariano"s testimony. If you
were the %udge, would you sustain :edro"s
ob%ection& 4hy&
A: $he ob%ection of :edro should not be
sustained. $he testimony is admissible
because the witness is not qualified to
testify. $hose disqualified under the dead
man"s statute or the survivorship
disqualification rule are parties or assignors
of parties to a case, or persons in whose
behalf a case is prosecuted. $he witness is
not one of those enumerated under the
rule 'sec(, * +,)-.
Bar 200!
True or False
Q: $he surviving parties rule bars .aria
from testifying for the claimant as to what
the deceased ;ose ad said to her, in a claim
filed by :edro against the estate of ;ose.
A: <A63
$he rule bars only a party plaintiff, or his
assignor or a person in whose behalf a case
is prosecuted. .aria is merely a witness
and is not one of those enumerated as
barred from testifying.
arital !is"uali#ication $ule
=!$3>>>>
5$he marital disqualification rule under sec.
(( of *ule +,) forbids the husband or the
wife to testify for or against the other
without the consent of the affected spouse
e1cept in those cases authori?ed by the
rule. $he prohibition e1tends not only to a
testimony adverse to the spouse but also
to a testimony in favor of the spouse. It
also e1tends to both criminal and civil
cases because the rule does not
distinguish.
5In order that the husband or wife may
claim the privilege, it is essential that they
be validly married. If they are not, there is
no privilege. *ule does not cover illicit
cohabitation.
56ec (( r +,) requires not only a valid
marriage but the e1istence of that valid
marriage at the moment the witness5
spouse gives the testimony.
5 the rule applies whether the witness5
spouse is a party to the case or not but the
other spouse must be a party. $hat the
other spouse must be a party is evident
from the phrase 8@neither the husband
nor the wife may testify for or against the
other...
*efer more to pp(AA5(AB '*iano-
E%ceptions to arital !is"uali#ication
$ule
Bar 2000
Q: Cida and *omeo are legally married.
*omeo is charged in court with the crime of
serious physical in%uries committed against
6elmo, son of Cida, step son of *omeo.
Cida witnessed the infliction of the in%uries
on 6elmo by *omeo. $he public prosecutor
called Cida to the witness stand and
offered her testimony as eyewitness.
Counsel for *omeo ob%ected on the ground
of the marital disqualification rule under
the rules of court. 'a-Is the ob%ection valid&
'b- 4ill your answer be the same if Cida"s
testimony is offered in a civil case for
recovery of personal property filed by
6elmo against *omeo&
A: 'a- $he obe%ection is not valid. 4hile the
rule provides that neither the husband nor
the wife may testify for or against the other
without the consent of the affected spouse,
the prohibition is merely the general rule.
6aid rule is sub%ect to certain e1ceptions,
one of which is in a criminal case
committed by one against the direct
descendant of the other. *omeo is accused
of committing a crime against 6elmo, the
son of Cida and the latter"s direct
descendant.
'b- $he answer will not be the same.
$he rule in a criminal case is not the same
as that in a civil case. In a civil case, for the
marital disqualification rule not to apply,
the case must be by one spouse against
the other. In the case under consideration,
the case is by the son of one spouse
against the other spouse. *omeo may thus,
invo#e the marital disqualification rule
against Cida"s proposed testimony.
Testimon& '& the Estran(ed )pouse
Bar 200"
Q: eticia was estranged from her husband
:aul for more than a year due to his
suspicion that she was having an affair with
.anuel, their neighbor. 6he was
temporarily living with her sister in :asig
City.
<or un#nown reasons, the house of eticiaDs
sister was burned, #illing the latter. eticia
survived. 6he saw her husband in the
vicinity during the incident. ater, he was
charged with arson in an Information filed
with the *egional $rial Court, :asig City.
During the trial, the prosecutor called
eticia to the witness stand and offered her
testimony to prove that her husband
committed arson.
Can eticia testify over the ob%ection of her
husband on the ground of martial
privilege&
A: eticia cannot testify. 6ec(( of *+,)
bars her testimony without the consent of
the husband during the marriage. $he
separation of the spouses has not operated
to terminate their marriage.
:ls consider this>
eticia may testify over the ob%ection of her
husband. 4here the marital and domestic
relations between her and the accused
husband have become so strained that
there is no more harmony, peace or
tranquility to be preserved, there is no
longer any reason to apply the .arital
Disqualification rule.
Bar 200#
Q: E7F, an alien, was criminally charged of
promoting and facilitating child prostitution
and other se1ual abuses under *A BA+).
$he principal witness against him was his
<ilipina wife, A/C. 3arlier, she has
complained that E7F"s hotel was being
used as a center for se1 tourism and child
traffic#ing. $he defense counsel for E7F
ob%ected to the testimony of A/C at the
trial of the child prostitution case and the
introduction of the affidavits she e1ecuted
against her husband as a violation of
espousal confidentiality and marital
privilege rule. It turned out that D3G, the
minor daughter of A/C by her first husband
who was a <ilipino was molested by E7F
earlier. $his, A/C had filed for legal
separation from E7F since last year.
.ay the court admit the testimony and
affidavits of the wife, A/, against her
husband E7F, in the criminal case involving
child prostitution&
*: If the testimony and affidavit of the wife
are evidence of the case against her
husband for child prostitution involving her
daughter, the evidences are admissible.
$he marital privileged communication rule
under sec (H rule +,) as well as the
marital disqualification rule under sec (( of
rule +,) do not apply to and cannot be
involved in a criminal case committed by a
spouse against the direct descendants of
the other.
A crime committed by the husband against
the daughter of his wife is considered a
crime committed against the wife and
directly attac#s or vitally impairs the
marital relations.
Bar 1995
Q: Allan and =arita were married on Aug +
+I2I, after ( months, =arita told Allan in
confidence that the +) year old i?a whom
she claimed to be her niece was actually
her daughter by a certain married man
In +II(, =arita obtained a %udicial decree
of nullity of her marriage with Allan on the
latter"s psychological incapacity to fulfill his
marital obligations. 4hen the decree
became final, i?a assisted by narita, filed
+) cases of rape against Allan committed
in +II+. During the trial, =arita was called
to the witness stand to testify as a witness
against Allan who ob%ected thereto on the
found of marital disqualification.
+. As a public prosecutor, how
would you meet the ob%ection&
(. 6uppose =arita"s testimony was
offered while the decision
nullifying her marriage to Allan
was pending appeal, would your
answer be different&
,. 6uppose =arita died during the
pendency of the appeal, and
soon ager, the legal wife of
basilio sued for legal separation
on se1ual infidelity in view of
/asilio"s love affair with =arita.
At the trial Allan was called by
/asilio"s wife to testify that
narita confided to him during
their marriage that li?a was her
love child by basilio. As counsel
for /asilio, can you validly
ob%ect to the presentation of
Allan as witness for the plaintiff&
31plain.
A: +. I would as# the court to overrule
the ob%ection. Jnder the marital
disqualification rule, the ob%ection to the
testimony of one spouse against the other
may be invo#ed only during the marriage.
At the time the testimony of =arita was
offered, the marriage was already
dissolved, besides, the crime was
committed against a direct descendant of
=arita.
(. $he answer would not be
different and the court may li#ewise be
as#ed to overrule the ob%ection. $he marital
disqualification rule may not be invo#ed in
a criminal case for a crime committed
against the direct descendant of the other
spouse. 0ere, li?a is the daughter of =arita.
,. 6uggested answer: I could validly
ob%ect to the presentation of Allan as a
witness on the ground that the
communication of =arita was a privileged
communication which could be invo#ed
during or after the marriage. .oreover, the
testimony of Allan would be hearsay.
4riters comment: it is submitted
that the testimony could not be validly
ob%ected upon by /asilio"s counsel on the
basis of the marital priv comm.. rule.
/asilio does not own the privilege. $he
prerogative to ob%ect to a confidential
communication between spouses is vested
upon the spouses themselves, particularly
the communicating spouse, not a third
person. $his is clear from the provision
cannot be examined without the consent
of the other the proper ob%ection should
be on hearsay grounds not on privileged
communication.
Bar $$%
+: C is the child of the spouses 0 and 4. 0
sued his wife for %udicial declaration of
nullity of marriage under Art. ,A of the <C.
In the trial, the ff. testified over the
ob%ection of 4: C, 0, and D, a doctor of
medicine who used to treat 4. rule on 4"s
ob%ection which are the ff:
a. 0 cannot testify against her
because of the rule on marital
privilege
A: $he ob%ection should be overruled. $he
rule invo#ed by 4, the rule o marital
privilege does not apply to a civil case by
one against the other. $he suit between
the spouses is a civil case against the
other.
*ttorne&,Client -rivile(e
Bar 200%
Q: A tugboat owned by 6peedy :ort
6ervice, Inc. '6:6- san# in .anila /ay while
helping tow another vessel, drowning five
'K- of the crew in the resulting shipwrec#.
At the maritime board inquiry, the four 'H-
survivors testified. 6:6 engaged Atty. 3ly to
defend it against potential claims and to
sue the company owning the other vessel
for damages to the tug. 3ly obtained
signed statements from the survivors. 0e
also interviewed other persons, in some
instance ma#ing memoranda. $he heirs of
the five 'K- victims filed an action for
damages against 6:6.
:laintiffsD counsel sent written
interrogatories to 3ly, as#ing whether
statements of witnesses were obtained9 if
written, copies were to be furnished9 if oral,
the e1act provisions were to be set forth in
detail. 3ly refused to comply, arguing that
the documents and information as#ed are
privileged communication. Is the
contention tenable& 31plain.
A: $he contention is not tenable. $he
documents and information sought to be
disclosed are not privileged. $hey are
evidentiary matters which will eventually
be disclosed during the trial. 4hat is
privileged under sec. (Hb of * +,) is 'a-
the communication made by the client to
the attorney, or 'b- the advice given by the
attorney, in the course of, or with the view
to professional employment. $he
information sought is neither a
communication by the client to the
attorney nor is it an advice by the attorney
to his client.
-h&sician, -atient -rivile(e
Bar $$%
+: C is the child of the spouses 0 and 4. 0
sued his wife for %udicial declaration of
nullity of marriage under Art. ,A of the <C.
In the trial, the following testified over the
ob%ection of 4: C 0 and D, a doctor of
medicine who used to treat 4. *ule on 4"s
ob%ection which are the ff:
'C.+.-. D cannot testify against her
because of the doctrine of privileged
communication.
'c.(- C cannot testify against her
because of the doctrine of parental
privilege
A+: D cannot testify over the ob%ection of 4
where the sub%ect of the testimony is the
advice or treatment given by him or any
information which he may have acquired in
attending to 4 in his professional capacity.
A(. 4 cannot invo#e the privilege which
belongs to the child. C may testify if he
want to although he may not be compelled
to do so.
-riest.inister, -enitent -rivile(e
/0TE1
$he privilege e1tends not only to a
confession made by the penitent but also
to any advice given by the minister or
priest. $he confession and the advice must
have been made or given pursuant to the
course of discipline of the denomination or
sect to which the minister or priest
belongs. $hus, the minister or priest must
be duly ordained or consecrated by his
sect.
=ot every communication made to a
minister or priest is privileged. $he
communication must be made pursuant to
confession of sins. As clearly provided in
the rule. $he advice given as a result of the
confession, must be made in the ministers
processional character or in his spiritual
capacity. Accordingly, where the penitent
discussed business arrangements with the
priest, the privilege does not apply.
-rivile(ed Communication under the
rules on electronic evidence
:riv. Comm apply even to electronic
evidence. Jnder sec. , rule , of the rules
on e5evid, the confidential character of a
privileged communication is not lost solely
on the ground that it is in the form of an e5
document.
0ther -rivile(ed Communication not
#ound in the $ules o# Court
,editors may not be allowed to disclose the
source of published news
5voters may not be compelled to disclose
for whom they voted
5trade secrets
5info. contained in ta1 census returns9 and
ban# deposits
5under Art. (,, abor Code information and
statements made at conciliation
proceedings shall be treated as
confidential. A.A, institutions covered by
the law and its officers and employees who
communicate suspicious transactions to
A.C are barred from disclosure the fact of
such report to other persons.
E%amination o# 2itnesses
E%amination o# 2itness and $ecord
-roceedin(s
Bar $!%
Q: After the accused himself had testified
in his defense in a murder case, the trial
%udge over the ob%ection of the fiscal,
allowed the defense counsel to file and
merely submit the affidavits of the other
witnesses of the accused in lieu of their
direct testimony but sub%ect still to cross
e1amination by the prosecution. $he fiscal
thus filed with the 6C a petition for
certiorari and prohibition to nullify the
order of the trial court %udge allowing such
a procedure.
6hould said petition be granted&
A: $he petition should be granted. $he
provisions of the *ules of Court require that
the e1amination of the witnesses shall be
done in open court and their answers be
given orally, not in writing unless the
e1ceptions mentioned therein apply to with
the witness is incapacitated to spea#, or
the question calls for a different mode of
answer. =one of the e1ceptions apply to
the case under consideration. $he court
therefore, acted in e1cess of %urisdiction
amounting to lac# of %urisdiction when it
allowed the presentation of the affidavits
without an oral e1amination of the witness.
$i(hts and 0'li(ations o# a 2itness
Bar 200&
Q: Jnder *epublic Act =o. 2,K,, one may
be charged with and found guilty of
qualified rape if he #new on or before the
commission of the crime that he is afflicted
with 0uman Immuno5Deficiency Cirus
'0IC-LAcquired Immune Deficiency
6yndrome 'AID6- or any other se1ually
transmissible disease and the virus or
disease is transmitted to the victim.
Jnder 6ection +B'a- of *epublic Act =o.
2K)H the court may compel the accused to
submit himself to a blood test where blood
samples would be e1tracted from his veins
to determine whether he has 0IC.
a- Are the rights of the accused to be
presumed innocent of the crime
charged, to privacy, and against
self5incrimination violated by such
compulsory testing& 31plain.
A: $he rights of the accused are not
violated by such testing"s. $his is a settled
rule. $here is no testimonial compulsion
involved by e1tracting blood from the
accused for testing purposes. $here is
hence, no violation of the right to privacy
and the right to be presumed innocent.
Bar 200#
Q. At the scene of a heinous crime, police
recovered a man"s shorts with blood stains
and strands of hair. 6hortly afterwards, a
warrant was issued and police arrested the
suspect. AA during his detention, a medical
tech e1tracted blood sample from his finger
and cut a strand from his hair, despite AA"s
ob%ections
During AA"s trial for rape and murder, the
prosecution sought to introduce D=A
evidence against AA, based on forensic
matching of the materials found at the
crime scene and AA"s hair and blood
samples, AA"s counsel ob%ected, claiming
that D=A evidence is inadmissible because
the materials ta#en from AA were in
violation of his constitutional right against
self5incrimination as well as his right of
privacy and personal integrity.
6hould the D=A evidence be admitted or
not&
A: $he D=A evidence should be admitted.
$he right against self5incrimination applies
only to testimonial evidence. 31tracting
blood samples and cutting strands of hair
do not involve testimonial compulsion but
purely mechanical acts which neither
requires discretion or reasoning.
Bar $$%
Q: A was accused of having raped E. rule
on admissibility of the ff. pcs. !f evidence:
- A pair of short pants allegedly left
by A at the crime which the court,
over the ob%ection of A, required
him to put on and when he did, it fit
him well.
A: $he pair of short pants may be
considered as circumstantial evidence
when ta#en with other circumstances. =o
valid ob%ection may be interposed over the
order of the court to put on the pair of
pants. $he right against self5incrimination
does not apply to a physical and
mechanical act. It applies only to
testimonial compulsion which is not the
case under the facts.
=!$3: if the witness is the accused, he may
totally refuse to ta#e the stand. A mere
witness cannot altogether refuse to ta#e
the stand. /efore he refuses to answer, he
must wait for the incriminating question.
3eadin( "uestions
Q: $he case is a collection case. $he
defendant contends that the debt has been
paid. 0e calls a witness to testify to the
fact of payment.
5while the plaintiff and the defendant were
engaged in a conversation on the date and
time you mentioned, did you see the
defendant deliver K)# to the plaintiff&
0ere, the question of ob%ectionable on the
ground that it is leading. 0ere the
e1aminer obviously wants the witness to
directly testify that money was delivered
by the defendant to the plaintiff in his
presence. $he question could have been
properly framed in this manner: what
have you observed if any, while the
plaintiff and the defendant were engaged
in a conversation
Q. $he fact situation is a robbery case. $he
accused claims innocence and that a
couple of hours after the alleged robbery,
he is arrested by the police while in the
par# with his children. $he defense counsel
calls the accused to the stand.
5 4hat where you doing in the par#& I was
ta#ing a stroll with my two adolescent
children,
5 4hile you were in the par# with your
children, the police officers arrived to
arrest you, is that true.
$he question is leading. It suggests
the ne1t event which the witness should
testify to. $he atty. Could convert the
question into a non5leading one by ta#ing
the suggestive element our of the question.
$hus What happened if any, while you and
your children were at the park?
0pinion Evidence
0pen o# an 0rdinar& 2itness4 2hen
*dmissi'le
/ar ())K
Q: Dencio barged into the house of
.arcela, tied her to a chair and robbed her
of assorted pieces of %ewelry and money.
Dencio then brought Candida, .arcela"s
maid, to a bedroom where he raped her.
.arcella could hear Candida crying and
pleading.M0uwag> .Aawa #a sa a#in>
After raping Candida, Dencio fled from the
house with the loot. Candida then untied
.arcela and rushed to the police station
about a #ilometer away and told :olice
!fficer *oberto .aawa that Dencio had
barged into the house of .arcela, tied the
latter to a chair and robbed her of her
%ewelry and money. Candida also related to
the police officer that despite her pleas,
Dencio had raped her. $he policeman
noticed that Candida was hysterical and on
the verge of collapse. Dencio was charged
with robbery with rape. During the trial,
Candida can no longer be located.
b- If the police officer will testify that
he noticed Candida to be hysterical
and on the verge of collapse, would
such testimony be considered as
opinion, hence, inadmissible&
31plain.
A: $he testimony would be admissible even
if it would be an opinion. $he opinion of an
ordinary witness is admissible when such
testimony refers to his impressions of the
emotion, behavior condition or appearance
of person.
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5E*$)*6 EVI!E/CE
+7 4hat is the hearsay rule&
In relation to the hearsay rule, what do the
following rules of evidence have in
common&
+. $he rule on statements that are part of
the res gestae9
(. $he rule on dying declarations9
,. $he rule on admissions against interest.
A: +. 6ec. ,A *.+,)
(. $hey are e1ceptions to the rule that
hearsay evidence is inadmissible. $hey are
in other words, admissible hearsay
Bar 200#
Q: Distinguish hearsay evidence and
opinion evidence
A. 0earsay evidence is one that is not
based on one"s personal perception
but based on the #nowledge of
others to prove the truth of the
matter asserted in an out5of5court
declaration 'sec,A*+,)-
An opinion evidence is based n the
personal #nowledge or personal
conclusions of the witness based on
his s#ill, training or e1perience 'sec.
HI * +,)-
Independentl& $elevant )tatements
Bar 200'
Q: $he prosecution presented in evidence a
newspaper clipping of the report to the
reporter who was present during the
presscon stating that E admitted the
robbery. Is the newspaper clipping
admissible against E&
A: $he newspaper clipping is admissible as
non5hearsay if offered for the purpose of
showing that the statement of E was made
to a reporter regardless of the truth or
falsity of the statement. $he admissibility
depends now on whether the fact that the
statement was made is relevant to the
case. It is relevant, it is admissible as an
independent relevant statement. It would
be hearsay if offered to prove the truth that
1 was the robber.
=ote: $he statement of E to a reporter may
be admitted as an admission under sec (A.
of *+,). $his answer should also be
considered by the e1aminer because it has
a clear legal basis.
Bar $$
Q: 4hat are the requisites to the
admissibility of a dying declaration&
6ee sec ,B of *ule +,)
Q: !ne evening at I:)) %ust as he reached
the gate of his house in Apas, Cebu city,
and as soon as he alighted from his car to
open the gate, Carlos was shot by tito, who
had been waiting behind a coconut tree
nearby, with a .,2 caliber revolver, Carlos
was hit at the sternum of the second rib.
0earing the shot, .arilyn, Carlos9 wife ran
out toward the gate and found Carlos lying
on the ground, with blood splattered on his
chest. 4ith her son 7, she brought Carlos
to the Cebu Doctors 0ospital. In the car,
although he was in a semi)conscious state,
Carlos told .arilyn that it was $ito who shot
him. Carlos was brought to the 3*.
0owever, two hours later, he e1pired. $ito
was then charged with murder before the
*$C of Cebu. .arilyn was presented as
witness for the prosecution by her
testimony regarding the above statement
of Carlos was ob%ected to under the
hearsay rule. $he court overruled the
ob%ection on the ground that the statement
may be considered as a dying declaration.
Is the ruling correct&
A: $he ruling is correct. 4hile declaration of
Carlos is hearsay evidence, the declaration
is admissible as a dying declaration and
hence, admissible as an e1ception. $he
declaration of Carlos contains all the
elements of a during declaration 'should
enumerate the elements-.
Bar $%&
Q: <allen by a bullet upon being fired at,
6antos before e1piring told *omero, a
passerby who came to his rescue, I was
shot by ablo, our neighbor
.ay *omero"s testimony o what was told
him by 6antos be offered and admitted in
evidence in the separate civil action for
damages brought by the heirs against
:ablo Cru?& Discuss
A: $he statement is admissible. A dying
declaration, as in the facts in the case at
bar, may be offered in a civil case provided
that the cause and circumstances of the
death of the declarant are the sub%ects of
inquiry.
$es 8estae
)pontaneous )tatement
Bar 200&
Q: Dencio barged into the house of
.arcela, tied her to a chair and robbed her
of assorted pieces of %ewelry and money.
Dencio then brought Candida, .arcela"s
maid, to a bedroom where he raped her.
.arcela could hear Candida crying and
pleading: 80uwag> .aawa #a sa a#in>M
After raping Candida, Dencio fled from the
house with the loot. Candida then untied
.arcela and rushed to the police station
about a #ilometer away and told :olice
!fficer *oberto .aawa that Dencio had
barged into the house of .arcela, tied the
latter to a chair and robbed her of her
%ewelry and money. Candida also related to
the police officer that despite her pleas,
Dencio had raped her. $he policeman
noticed that Candida was hysterical and on
the verge of collapse. Dencio was charged
with robbery with rape. During the trial,
Candida can no longer be located.
a- If the prosecution presents :olice
!fficer *oberto .aawa to testify on
what Candida had told him, would
such testimony of the policeman be
hearsay& 31plain.
A: $he testimony would be hearsay if
offered to prove the truth of the statement
of Candida, but an admissible hearsay as
an e1ception to the hearsay rile. Jnder the
rules of court, statements made by a
person while a startling occurrence are
ta#ing place or immediately proper or
subsequent thereto with respect to the
circumstances thereof, maybe given in
evidence as part of the res gestae. $he
statements made by Candida to the police
officer falls within the res gestae rule.
If the statement of Candida is offered
merely to prove the tenor of the statement,
i.e. what Candida told the police officer
without regard to whether the statement is
true or not, it may be considered as an
independently relevant statement and this
not hearsay.
55o!oN
Chapter VI
Burden o# -roo#9 +uantum o# Evidence
and -resumptions
Bar 200#
+: !ist: /urden of proof and burden of
evidence
A: /urden of proof is the obligation of a
party to present evidence on the facts in
issue necessary to establish his claim or
defense by the amount of evidence
required by law.
/urden of evidence is the duty of a party to
go forward with the evidence to overthrow
any prima facie presumption against him.
Bar $$&
Q: 31plain the equipoise doctrine in the law
of evidence and cite its constitutional basis.
A: $he equipoise doctrine is based on the
principle that no one shall be deprived of
life, liberty or property without due process
of law.
$he doctrine refers to a situation where the
evidence of the parties is evenly balanced
or there is doubt on which side the
evidence preponderates. In this case the
decision should be against the party with
the burden of proof. 0ence, where the
burden of proof is on the plaintiff and the
evidence does not suggest that the scale of
%ustice should weigh in his favor the court
should render a verdict for the defendant.
)u'stantial Evidence
Bar 200'
+: Dist preponderance of evidence from
substantial evidence
A: $he term 8preponderance of evidenceM
applies to civil cases. It means the greater
or superior weight of evidence. It is the
evidence that is more convincing and more
credible than the one offered by the
adverse party. It means that the evidence
as a whole adduced by one side is superior
to that of the other.
!ubstantial "vidence applies to cases
filed before administrative or quasi5%udicial
bodies and which requires that in order to
establish a fact, the evidence should
constitute that amount of relevant
evidence which a reasonable mind might
accept as adequate to support a
conclusion.
55o!!N
Chapter VII
0##er o# Evidence and Trial 0':ections
2hen Formal 0##er o# Evidence is /ot
$e"uired
* formal offer of evidence is not required in
certain cases:
+. In a summary proceeding because it
is a proceeding where there is no
full blown trial
(. Documents %udicially admitter or
ta#en %udicial notice of
,. Documents, affidavits and
depositions used in rendering a
summary %udgment9
H. Documents or affidavits used in
deciding quasi5%udicial or admin.
Cases
K. ost ob%ects previously mar#ed,
identified, described in the record
and testified to by witnesses who
had been sub%ects of cross5
e1amination in respect to said
ob%ects
Bar 200'
Q: E and 7 were charged for murder.
Jpon application of the prosecution, 7
was discharged from the information to
be utili?ed as a state witness. $he
prosecutor presented 7 as witness but
forgot to state the purpose oof his
testimony much less offer it in
evidence. 7 testified that he and E
conspired to #ill the victim but it was E
who actially shot the victim. $he
testimony of J was the only material
evidence establishing the guilt of E. 0
was thorognly cross5e1amined by the
defense counsel, after the prosecution
rested its case, the defense filed a
motion for demurrer to ecidence based
on the following grounds:
a. $he testimony of 7 should be
e1cluded because its purpose was
not initially stated and it was not
formally offered in evidence as
required by s. ,H r +,( off evidence
*ule on the motion of the demurrer.
A: $he demurrer to evidence should
be denied.
4hile under the *ules of Court, the
court shall consider no evidence
which has not been formally offered
this is true only when the failure to
offer evidence has been ob%ected
to. $he failure to ob%ect to the
omission of the prosecutor and the
cross5e1amination of the witness by
the adverse party, ta#en together,
constitute a waiver of the defect.
5o; an 0##er o# Evidence is ade
Bar $%'
Atty. <elipe .alang was the counsel for
the plaintiff in an action to collect the
alleged purchase price of a tractor. <or his
principal defense, the defendant alleged
that the true transaction between the
parties was only a lease of the tractor, not
a sale thereof, and therefore the
defendant, being a mere lessee, was not
liable for the alleged purchase price
In the course of the trial, lawyer was
as#ed his witnesses to identify certain
documents which he mar#ed as: 31hibit A,
the delivery receipt signed by the
defendant ac#nowledging delivery of the
tractor,@..:ls refer to pHA+
'toooooooooooo long-
Did Atty. .alang commit any error in the
manner by which he made an offer of the
documentary evidence made by the
plaintiff& *easons
A: Atty. .alang committed errors in the
manner by which he offered is
documentary evidence
Jnder the rules, when a party ma#es a
formal offer of his evidence, he must state
the nature or substance of the evidence,
and the specific purpose for which the
evidence is offered. Atty. .alang failed to
do all these.
Bar $$!
Q: 4hat are the two #inds of ob%ections&
31plain each briefly. Give an e1ample of
each
A: <ormal and substantive !b%ections
A formal ob%ection is one directed against
the alleged defect in the formulation of the
question. 31amples of defectively
formulated questions: ambiguous question9
leading and misleading questions9
repetitious questions9 multiply questions9
argumentative questions
A substantive ob%ection are ob%ections
made and directed against the very nature
of the evidence, i.e., it is in admissible
either because it is irrelevant or
incompetent or both. 31amples: parol9 not
the best evidence9 hearsay privileged
communication not authenticated9 opinion9
res inter alios acta
Bar 200#
Q: in a complaint for a sum of money filed
before the .. *$C, plaintiff did not
mention or even %ust hint at any demand
for payment made on defendant before
commencing suit. During the trial, plaintiff
dully offered 31h. A in evidence for the
stated purpose of proving the ma#ing of
e1tra%udicial demand on defendant to pay
:K))# the sub%ect of the suit. 3Eh A was a
letter of demand for defendant to pay said
sum of money within +) days from receipt,
addressed to and served on defendant
some ( months before suit was begun.
4ithout ob%ection from defendant, the
court admitted e1h A in evidence.
A: $he admission of the evidence was
correct. $here was no ob%ection when 31h 6
was offered in evidence. It could have been
ob%ected to on the ground that is not
related to an issue raised in the pleadings.
0owever, it is a basic rule that
inadmissibility of evidence may be waived.
Tender i# E%cluded Evidence <0##er o#
-roo#=
Bar $$
+: Dist. <ormal offer of evidence from offer
of proof
A: <ormal offer of evidence refers either to
the offer of the testimony of a witness prior
to the latter"s testimony, or to the offer of
the documentary and ob%ect evidence after
a party has presented his testimonial
evidence
!ffer of proof, is the process by which a
proponent of e1cluded evidence tenders
the same. If what has been e1cluded is
testimonial evidence, the tender is made
by stating for the record the name and
other personal circumstances of the
proposed witness and the substance of his
proposed testimony. If the evidence
e1cluded is documentary or of things, the
offer of proof is made by having the same
attached to or made a part of the record.