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Chapter I INTRODUCTION

Evidence
 is the means sanctioned by Rules 128-133 of the Rules of Court of ascertaining in a judicial
proceeding the truth respecting a matter of fact.
 It is part of adjective law ( that which provides the method of enforcing rights or obtaining
redress for their invasion) as distinguished from substantive law (that which defines and
create certain rights).

What the rules of evidence determine


a) The RELEVANCY OF FACTS, or what sort of facts may be proved in order to established the
existence of the right, duty, or liability defined by substantive law.
b) The PROOF OF FACTS, that is what sort of proof is to be given of those facts.
c) The PRODUCTION OF PROOF OF RELEVANT FACTS, that is, who is to give and how it is to be
given; and the effect of improper admission or rejection of evidence.

Factum Probandum – is the proposition to be established; it is conceived of as hypothetical; it is that


which the one party affirms and the other denies, the tribunal being as yet not committed in either
direction.
Factum Probans – is the material evidencing the proposition; it is conceived for practical purposes as
existent, and is offered as such for the consideration of the tribunal.

Classes of Evidence
1. Relevant – evidence is relevant when it has tendency in reason to establish the probability
or improbability of a fact in issue. Relevant evidence “that a reasonable mind might accept
as adequate to support a conclusion”.
2. Competent – Evidence is competent when it is not excluded by law in a particular case.
(production of the original copy of document because of the best evidence rule).
3. Testimonial – the testimony of a witness, usually on oath or affirmation, given by his word
of mouth in the witness stand. Testimonial evidence commands greater weight than sworn
statements because testimonies given during trial are more exact and elaborate. (ex. B
struck me when I attempted to arrest him)
4. Documentary – documents as evidence consist of writings or any material containing letters,
words, numbers, figures, symbols or other modes of written expressions offered as proof of
their contents. (ex. Books, letters, papers)
5. Object – evidence which proves the fact in dispute without the aid of any inference or
presumption. Not limited to the sense of vision but extends to that which is perceived by the
senses of hearing, taste, smell or touch. (ex. firearm, bullet
6. Direct – evidence which proves the fact in dispute without the aid of any interference or
presumption. (ex. testimony of A that he saw A attack B with bolo killing him)
7. Circumstantial – proof of facts from which taken collectively, the existence of the particular
fact in dispute may be inferred as a necessary or probable consequence. (ex. The testimonu
of X that he saw A running away from the place where B was found dead with wounds)

Circumstantial evidence is sufficient for conviction if the following requisites concure:


a) There is more than one circumstance;
b) The facts from which the inferences are derived have been established; and
c) The combination of all circumstances is such as to warrant a finding of guilt beyond
reasonable doubt.
8. Primary – evidence which affords the greatest certainty of the fact in question. (ex. In an
action on a written contract, the original of the contract is primary evidence of its contents)
9. Secondary – evidence which is inferior to primary evidence and shows on its face that better
evidence exists. (ex. In an action on a written contract, a copy of the contract is primary
evidence of its contents)
10. Positive – when a witness affirms that a fact did or did not occur. (ex. The testimony of X
that he saw A set fire the house of B)
11. Negative – when a witness states that he did not see or know the occurrence of a fact. (ex.
The testimony of X that he was on that occasion at the place where the house of B was
burned and that he did not see A set fire on said house)

 Medico-legal certificate – is merely corroborative in character, which could be dispensed


with accordingly.

12. Cumulative – evidence of same kind and character as that already given tending to prove
the same proposition. (ex. Evidence of his classmates as to his capacity to write a certain
paper is cumulative to that of his teachers on his capacity to write a certain paper)
13. Prima Facie – that which suffices for the proof of a particular fact, until contradicted and
overcome by other evidence.
14. Conclusive – that which is incontrovertible. (ex. A partners introducing in evidence a letter
writer by his agent to the adverse party, is bound by the statements obtained therein)
15. Rebuttal – evidence that which is given to explain, repel, counteract or disprove facts given
in evidence by the adverse party.
16. Sur-rebuttal – when plaintiff in rebuttal is permitted to introduce new matter, defendant
should be permitted to introduce evidence in sur-rebuttal.
17. Expert – expert evidence is the testimony of one possessing in regard to a particular subject
or department of human activity, knowledge not usually acquired by other persons.
18. Substantial – substantial evidence is that amount of relevant evidence which a reasonable
mind might accept as adequate to justify a conclusion.

Scope. The rules of evidence shall be the same in all courts and in all trials and hearings, except as
otherwise provided by law or the Rules of Court.
Civil Proceedings Criminal Proceedings
The party attends by accord The accused attend by compulsion
There is no presumption as to either party The presumption of innocence attends the
accused throughout the trial until the same has
been overcome by prima evidence of his guilt
Offer to compromise does not as a general rule, It is an implied admission of guilt
amount to an admission of liability
The plaintiff must prove his claim by a The government must establish the guilt of the
preponderance of the evidence accused beyond a reasonable doubt.
 Rules of evidence are not strictly applied in proceedings before the Labor Arbiter and the
NLRC, ECC, SEC, COMELEC, Agrarian cases, CTA, etc.

 There is no vested right of property in the rules of evidence. Hence, any evidence
inadmissible according to the laws in force at the time the action accrued, but admissible
according to the laws in force at the time of the trial, is receivable.

 Rule of evidence may be waived. XPN: if the rule of evidence waived by the parties has been
established by law on ground of public policy, the waiver is void. The waiver of the privilege
against the disclosure of state secrets is void.
Sources of Evidence: 1987 Constitution, Rules 128-134 of ROC, Resolution of the SC, etc.
Chapter II ADMISSIBILITY OF EVIDENCE

When evidence admissible: Two requisites must concur:


1. That it is relevant to the issue – that it has such a relation to the fact in issue as to induce a
belief as to its existence or non-existence.

2. That it is competent – that it does not belong to that class of evidence which is excluded by
the law of Rules of Evidence.

Relevancy of Evidence – evidence is relevant when it has such a relation to the fact in issue as to
induce a belief as to its existence or non-existence.
 Res Gestae – meaning ”things done”. It is used to refer to words spoken that are so closely
connected to an event that they are considered part of the event, and their introduction
does not violated the hearsay rule.

Materiality of Evidence – evidence is material when it is directed to prove a fact in issue as


determined by the rules of substantive law and pleadings.

Competency of Evidence – evidence is competent when it is not excluded by the law or by the rules
on evidence in a particular case. It is that which the very nature of the thing to be proved requires as
the appropriate proof in the particular case.

a) Best evidence rule - when the subject of inquiry is the contents of a document, no evidence
shall be admissible other than the original document itself
b) Parole evidence rule – when the terms of an agreement have been reduced to writing, it is
considered as containing all the terms agreed upon and there can be, between the parties
and their successors in interest, no evidence of such terms other than the contents of the
written agreement. It prevents the introduction of evidence prior or contemporaneous
negotiations and agreements that contradict, modify or vary the contractual terms of a
written contract when the written contract is intended to be a complete and final expression
of the parties’ agreement.
c) Hearsay evidence rule – a witness can testify only to those facts which he knows of his
personal knowledge; that is, which are derived from his own perception. It bars the
testimony of a witness who merely recites what someone else has told him.
d) Offer of compromise – in civil cases, it is not an admission of any liability and is not
admissible in evidence against the offeror; in criminal cases, it constitutes implied admission
of guilt.
e) Disqualification of witnesses by reason of mental incapacity or immaturity
f) Disqualification by reason of marriage
g) Disqualification by reason of death or insanity of adverse party
h) Disqualification by reason of privileged communication
i) Exclusionary provisions in the Constitution (evidence obtained in violation of the right against
unreasonable searches and seizures and the privacy of communication and correspondence)

Collateral Matters – those that are outside the controversy, or are not directly connected with the
principal matter or issue in dispute, as indicated in the pleadings of the parties. Collateral matters
are not allowed because they draw away the mind of the court from the point at issue, and excite
prejudice and mislead it. They are admissible when they tend in any reasonable degree to establish
the probability or improbability of the fact in issue.
Facts in Issue – are those facts which a plaintiff must prove in order to establish his claim and those
facts which the defendant must prove in order to establish a defense set up by him, but only when
the fact alleged by the one party is not admitted by the other party.

Facts relevant to the issue – are those facts which render probable the existence or non-existence of
a fact in issue, or some other relevant facts.

Multiple Admissibility – when evidence is admissible for one purpose it should not be rejected
solely because it is inadmissible for some other purpose; to admit the evidence only for the
allowable purpose.

Conditional Admissibility – an evidence is allowed to be presented for the time being or


temporarily, subject to the condition that its relevancy or connection to the other facts will later be
proven or that the party later submit evidence that it meet certain requirements of the law or rules.

Curative Admissibility – Three (3) different ways of treating inadmissible evidence that was
admitted:
1) The admission of an inadmissible fact, without objection, does not justify the opponent in
rebutting by other inadmissible facts;
2) The opposite rule, namely that the opponent may resort to similar inadmissible evidence; &
3) The intermediate rule, otherwise known as the Massachusetts rule, namely, that the
opponent may reply with similar evidence whenever it is needed for removing an unfair
prejudice which might otherwise have ensued from the original evidence.

Evidence illegally seized not admissible – the exclusion of such evidence is the only practical means
of enforcing the constitutional injunction against unreasonable searches and seizures.
Chapter III JUDICIAL NOTICE, PRESUMPTIONS, JUDICIAL ADMISSIONS

Certain Matters that require no proof:

A. JUDICIAL NOTICE
 is the cognizance of certain facts which judges may properly take and act without
proof because they already know them. It is based on the Latin term “what is
known, need not be proved”.

 Object of Judicial Notice – to save time, labor and expense in securing and
introducing evidence on matters which are not ordinarily capable of dispute and are
not actually bona fide disputed. Based upon convenience and expediency.

 Requisites of Judicial Notice:


1) the matter must be one of common and general knowledge
2) it must be well and authoritatively settled and not doubtful or uncertain
3) it must be known to be within the limits of the jurisdiction of the court

 Kinds of Judicial Notice:


1) Mandatory – a court shall take judicial notice without the introduction of
evidence of the following:

a) Existence and territorial extent of states, their forms of government and


symbols of nationality
b) The law of nations – which regulate the relations of the dominant powers of
the earth
c) The admiralty and maritime courts of the world and their seals – by common
consent and general usage
d) The political constitution and history of the Philippines
e) The official acts of the legislative, executive and judicial departments of the
Phils.
f) The laws of nature – familiar and unquestioned laws of nature and of the
existence facts which must have happened according to the constant course
of nature (ebb and flow of the tides, alternation of day & night, etc.)
g) The measure of time – calendar and periods within the calendar (year,
months, weeks, days hours, minutes, seconds)
h) Acts of the President of the Philippines

 Municipal courts should take JN on municipal ordinance where they sit


 RTC not necessarily taker JN on municipal ordinances. However may and should take
JN such ordinances on appeal from MTC
 In law on nature, if not notorious (e.g. chemical composition) still needs to be
proven.

2) Discretionary – a court may take judicial notice of matters which are of public
knowledge, or are capable of unquestionable demonstration, or ought to be
known to judges because of their judicial functions.

a) Matters of public knowledge – judicial knowledge of facts is measured


by general knowledge of the same facts; when its existence or operation
is accepted by the public without qualification or contention. The test is
whether sufficient notoriety attaches to the fact.
b) Matters capable of unquestionable demonstration – that no party would
think of imposing a falsity on the tribunal in the face of an intelligent
adversary, or capable of immediate and accurate demonstration by
resort to easily accessible source of indisputable accuracy. (CFI in the
provinces will not, in the absence of statutory authority, take judicial
notice of municipal ordinances within their jurisdiction; only on appeal
from a judgment of the inferior court where the latter took judicial
notice thereof.)

 When Hearing Necessary


o during the trial – the court on its own initiative or request of party may
announce its intention to take judicial notice of any matter and allow the
parties to be hear thereon.
o After the trial and before judgment or on appeal – if such matter is decisive
of a material issue in the case
 Hearing may be necessary, not for the presentation of evidence, but to afford the
parties reasonable opportunity to present information relevant to the propriety of
taking such judicial notice. Based upon notions of procedural due process.

 Judicial Notice taken during trial – give the parties an opportunity to be heard on
the matter (i.e. witness stating a day which is Sunday)
Judicial Notice taken after the trial but before judgment or on appeal – allow the
parties to be heard thereon if such matter is decisive material issue in the case ( i.e.,
new discovery that a rule had been promulgated that would negate the alleged
negligence of the defendant)

 Rule of Judicial Notice not confined to court of record - only to every court of
justice, from the lowest to the highest; also, certain boards and special tribunals
which are not strictly courts but which are not strictly courts but which partake of
their nature and the findings of which partake of the nature of judgments may take
judicial notice of certain matters.

 Power to take judicial notice must be exercised with caution


o care must be taken that the requisite notoriety exists
o every reasonable doubt upon the subject should be promptly resolved in
the negative
o court should be permitted to give a liberal interpretation to the law
permitting them to take judicial notice of the facts of public knowledge

B. PRESUMPTIONS
 A rule of law that attaches probative value to specific facts, or directs that an
inference be drawn as to the existence of a fact, not actually known, arising from its
usual connection with other particular facts which are known or established.
 A conclusion or deduction drawn by reasonable and logical inference from the usual
probabilities attendant upon associated facts.

 Presumptions distinguished from inferences


o Presumption is a deduction which the law requires, while an Inference is one which
the fact finder may or may not draw according to his own conclusions.
o Presumption of law is mandatory, while an Inference is permissible.
o Inference – a process of reasoning, a permissible deduction, judgment, or conclusion
drawn as a logical consequence from other facts proved or admitted.
o Real distinction: 1) a positive rule of law (a conclusive presumption), and 2)
rebuttable presumption- a permissible inference of fact, which yields to evidence
bearing on the point involved.
 Kinds of Presumptions
a) Presumption hominis or of fact
- are those which the experience of mankind has shown to be valid, founded on
general knowledge and information;
- inferences which naturally arise in common experience from particular
circumstances or known fact.

b) Presumption Juris or of law


- are those which the law requires to be drawn from the existence of established
facts in the absence of contrary evidence on the subject deductions which the
law expressly directs to be made from particular facts;
- are assumptions made by the law itself, deriving their force from the law rather
than from common logic or probability.

 Presumption of law classified


1) Conclusive presumptions, or presumptions juris et de jure – is a rule of substantive
law, rather than a rule of evidence.
2) Disputable or rebuttable presumptions, or presumptions juris tantum – is a species
of evidence that may be accepted and acted on when there is no other evidence to
uphold the contention for which it stands; one which may be overcome by other
evidence.
 When a statute makes a presumption conclusive, it cannot be contradicted
by evidence.

 Conclusive Presumptions
1) Estoppel in pais (equitable estoppel) – misrepresentation or concealment of material
facts on the part of the person to be estopped.
 the doctrine of estoppel is based upon the grounds of public policy, fair
dealing, good faith and justice, and its purpose is to forbid one to speak
against his own act, representations, or commitment to the injury of one to
whom they were directed and who reasonably relied thereon.
 Equitable estoppel can only be invoked by one who is in a position to be
misled by the misrepresentation with respect to which the estoppel is
invoked.

Essential elements of estoppel in pais as related to the party estopped:


1) conduct which amounts to a false representation or concealment of material
facts which is calculated to convey the impression that the facts are otherwise
than, and inconsistent with, those which the party subsequently attempts to
assert;
2) intention or at least expectation that such conduct shall be acted upon by the
other;
3) knowledge, actual or constructive, of the real facts.
Essential elements of estoppel in pais as related to the party claiming estoppel:
1) lack of knowledge and of the means of knowledge of the truth as to the facts in
question
2) reliance upon the conduct of the party estopped; and
3) action based hereon of such a character as to change his position prejudicially.

2) Estoppel against tenant – the tenant is not permitted to deny the title of his landlor at
the time of the commencement of the relation of landlord and tenant between them.

 Disputable presumptions
a) That a person is innocent of crime or wrong – this presumption remains until it is
overcome by proof of guilt beyond reasonable doubt.
b) That an unlawful act was done with an unlawful intent – GR: if it is proved that the
accused committed the unlawful charged, it will be presumed that the act was done
with a criminal intention, and it is for the accused to rebut this presumption. The act
in itself is evidence. Usually referred to as “general intent”.
c) That a person intends the ordinary consequences of his voluntary act – every
person is deemed to contemplate and can be held responsible for the natural
consequences of his own acts; ….it is only when death is not the direct or indirect
consequence of the injury, but of the malicious commission on the part of the
injured, that he is relieved of responsibility.
d) That a person takes ordinary care of his concerns – the presumption is usually
invoked only in the absence of witnesses.
e) That evidence wilfully suppressed would be adverse if produced – not applicable
when the omitted evidence is at the disposal of both parties, because it would have
the same weight against the one as against the other party.
f) That money paid by one to another was due to the latter
g) That a thing delivered by one to another belonged to the latter – if a thing
delivered to another did not belong to the latter, an implied contract known as
“solution indebiti” is created.
h) That an obligation delivered up to the debtor has been paid – possession by the
debtor of the evidence of a debt raises the presumption of payment.
i) That prior rents or installments had been paid when a receipt for the latter ones is
produced
j) That a person found in possession of a thing taken in the doing of a recent
wrongful act is the taker and doer of the whole act – when a property stolen is
found in the possession of a person who us unable to give a satisfactory explanation
of his possession, he may be deemed to have committed the crime of theft of said
property. – to raise this presumption, four basic facts must be proved: 1) that the
crime was committed; 2) that it was committed recently; 3) that the stolen property
was found in the possession of the defendant; and 4) that the defendant is unable to
explain his possession satisfactorily.
 Men who come honestly into the possession of property have no difficulty in
explaining the method by which they came into such possession.
k) That a person in possession of an order on himself for the payment of money, or
the delivery of anything, has paid the money or delivered the thing accordingly. – It
is proper to indulge to a presumption that persons act honestly and properly and
dishonesty or bad faith will not be presumed, but must be proved.
l) That a person acting in a public office was regularly appointed or elected to it –
one who is charged with liability for certain acts seeks to justify himself under his
official authority; the presumption does not apply to a public officer seeking to
recover salary attached to the office, or the benefits of a pension system.
m) That official duty has been regularly performed – this is subject to qualifications. It
is indulges only where the legality of an official act is questioned collaterally, and not
where it is directly attached or where a question of jurisdiction is involved.
n) That a court, or judge acting as such, whether in the Phils, or elsewhere, was
acting in the lawful exercise of his jurisdiction – reason: Expediency of proceedings.
o) That all the matters within an issue in a case were laid before the court and [assed
upon by it…
p) That private transactions have been fair and regular.
q) That the ordinary course of business has been followed.
r) That there was a sufficient consideration for a written contract.
s) That a negotiable instrument was given or indorsed for a sufficient consideration.
t) That an endorsement of a negotiable instrument was made before the instrument
was overdue and at the place where the instrument is dated.
u) That a writing is truly dated
v) That a letter duly directed and mailed was received in the regular course of the
mail.
w) After an absence of seven years, it being unknown whether or not the absentee
still lives, he is considered dead for all purposes, except for those of succession.

No Presumption of legitimacy or illegitimacy of a child born after 300 days following the dissolution
of the marriage or the separation of spouses.

Conflicting Presumptions: one in favour of innocence and one in favour of guilt, the one in favour of
innocence is to be applied. A disputable presumption cannot prevail against a presumption of
innocence.

Judicial Admission – is one so made in pleadings filed or in the progress of a trial as to dispense with
the introduction of evidence otherwise necessary to dispense with some rules of practice necessary
to be observed and complied with.

1. Formal judicial admissions – are those which are usually made in writing, such as pleadings.
2. Informal judicial admissions – those which in general are made orally in the course of trial or
proceeding (while on witness stand)

Extra-judicial admission – made out of court.

 Judicial admissions are conclusive upon the party making them while other admissions are,
as a rule and where the elements of estoppel are not present, disputable.

 Judicial admission may not be contradicted unless they are able to show that it was made
through palpable mistake or that no such admission was made.
CHAPTER XIII WITNESSES AND THEIR QUALIFICATIONS

Testimonial duty of citizens – is to support the administration of justice by attending its courts and
giving his testimony whenever he is properly summoned. Performance of the citizen’s testimonial
duty can only be invoked by the state after adequate notice is given such as subpoena

Witness – a person who testifies in a cause or gives evidence before a judicial tribunal.

Competency of Witness – means the legal fitness or ability of a witness to be heard on the trial of a
cause.

Persons Qualified to be witnesses – all persons who can perceive and perceiving, can make known
their perception to others, may be witnesses.
 “Religious or political belief” shall not be a ground for disqualification
 “Conviction of a crime” is not a ground for disqualification. XPN: convicted of any offense
involving moral turpitude; convicted of falsification of a document, perjury or false
testimony are disqualified from being witnesses to a will.

Not disqualified from becoming witnesses:


a) Accused
b) Co-defendant in criminal case
c) Accomplice
d) Detectives, policemen and other officers
e) Persons convicted of a crime
f) Attorney

Presumption of competency of witnesses – as a general rule, when a witness takes the stand to
testify, the law, on grounds of public policy, presumes that he is competent. The burden is upon the
party objecting to the competency of a witness to establish the grounds of incompetency.

Objection to the competency of a witness is necessary – it is the right and privilege of the adverse
party. Objection must be made before he has given any testimony; if the incompetency appears on
the trial, it must be interposed as soon as it becomes apparent.

Waiver of Objection:
a) Where a witness testifies without objection, though at that time the party knows of his
incompetency.
b) Where the party who might have made the objection owns the witness in support of his own
case.
 If objection is overruled, party may examine the incompetent witness without waving his
objection.

Disinterested Witness’ testimony is afforded evidentiary weight by his or her lack of interest in the
outcome of the case.

General Grounds for the disqualification of a person from being a witness:


A. Mental Incapacity - His insanity must be of such degree that he is actually incapable of
perceiving and making his perception to others.
 Test of competency to testify: Witness is deemed competent if he has ability to Recollect,
Observe, and Communicate (ROC) the essentials about which he is called to testify with
accuracy sufficient to make narration correspond the knowledge and recollection.
B. Mental Immaturity
 Children whose mental maturity is such as to render them incapable of perceiving the facts
respecting which they are examine and of relating them truthfully cannot be witnesses.
 A “child witness” is any person who at the time of giving testimony is below the age of 18
 In child abuse cases, a child include one over 18 but is found by the court as unable to fully
take care or protect himself from abuse, neglect, cruelty, exploitation or discrimination
because of physical or mental disability or condition.
 Rule on Examination of a Child Witness:
- Capacity to receive just impressions of the facts to which he has to satisfy and to relate such
impressions truly.
- Comprehends the obligation of an oath, he is a competent witness
- The court shall conduct examination of a child, motu propio or on motion of a party, when it
finds that substantial doubt exists regarding the ability of the child to perceive, remember,
communicated, distinguish truth from falsehood or appreciate the duty to tell the truth in
court.
- The examination should show that the child has some understanding of the punishment
which may result from false swearing.

C. Marital Privilege
 During marriage, H & W cannot testify for or against the other without the consent of the
affected spouse. XPN: in a civil case by one against the other; or in a criminal case for a crime
committed by the other against the other or the latter’s direct descendants or ascendants.
 Reason: based on principles which are deemed important to preserve the marriage relation
as one of full confidence and affection.
 Res Gestae (utterances made before, during or right after the occurrence) declarations of
husband and wife are admissible for or against each other, even though each is incompetent
to testify.
 If marriage is dissolved by death (no more marriage) privilege no longer applies

D. Death or Insanity
 Object and purpose: to guard against the temptation to give false testimony in regard to the
transaction in question on the part of the surviving party; to protect the estate from
fictitious claims, and to discourage perjury.
 Requisites that witness may be disqualified:
a) that the witness is a party or assignor of a party to a case, or of a person in whose behalf
a case is prosecuted
b) that the action is against an executor or administrator or other representative of a
deceased person, or against a person of unsound mind
c) that the subject matter of the action is a claim or demand against the estate of such
deceased person or against such person of unsound mind
d) that his testimony refers to any matter of fact which occurred before the death of such
deceased person or before such person became of unsound mind.
 Mere witnesses who are neither parties plaintiff are not included in the prohibition

E. Privileged Communication – is used to designate any information which one person derives
drom another by reason of a confidential relationship existing between the parties.

1. Husband and Wife


- During marriage, H & W cannot testify for or against the other without the consent of
the affected spouse. XPN: in a civil case by one against the other; or in a criminal case for
a crime committed by the other against the other or the latter’s direct descendants or
ascendants.
- Reason: that society has a deeply rooted interest in the preservation of peace of families
and its safeguard is to preserve with jealous care any violations of those hallowed
confidence inherent in. and inseparable from the marital status.
- Requisites:
a) That the spouses must have been legally married
b) That said communication was made confidentially during the marriage
c) That the privilege is claimed with regard to a communication, oral or written.
- Third person overhearing cannot be prevented from testifying
- Third party comes into possession of the communication by collusion and voluntary
disclosure on the part of either spouses, he becomes an agent of such spouse, and
cannot testify without the consent of the other.
- XPNs as to the rule of privilege communication:
a) The case is not a civil case instituted by one against the other
b) The case is not a criminal case instituted by one against the other

2. Attorney and Client


a) There must be a relation of attorney and client
b) There must be communication by the client to the attorney
c) Such communication has been made in the course or with a view to professional
employment
 Communications to an attorney are not privileged where they are voluntary made after he
has refused to accept employment.
 Professional communications are not privileged when such communications are for an
unlawful purpose, having for their object the commission of a crime. (conspiracy)
 Third persons (not an agent) are competent to testify to the communications they overheard
even without or against the consent of the attorney and client.
 The privilege does not apply when the client files an action against the attorney wherein the
disclosure of confidential communications become necessary for the attorney’s own
protection.
 The privilege continues even after the relation of client and attorney is terminated.
 Waiver of the privilege may be express or implied. Implied waiver consists of:
a) Client’s failure to object to attorney’s testimony
b) Giving evidence on the privileged communication
c) When privileged communication falls into the hands of the adverse party
d) In calling or cross-examining his attorney regarding the privileged communication

3. Physician and Patient – may be claimed against those duly authorized to practice medicine,
surgery or obstetrics who are to protect the disclosures to enable him to safely and
efficaciously treat his patient.
Requsites:
a) that the action in which the information is to be used is a civil case
b) that the relation of physician and patient existed between the person claiming the
privilege or his legal representative and the physician
c) that the information was acquired by the physician while professionally attending
the patient
d) that the information was necessary for the performance of his professional duty
e) that the disclosure of the information would tend to blacken the character of the
patient.
 Privilege may be claimed in civil cases only, it does not apply in criminal cases.
 In criminal cases, the privilege does not apply for the maintenance of public order and the
life and liberty of the citizens are deemed more important than the purpose for which the
privilege was created.

4. Priest and Penitent


 to compel a priest to testify to a confession made to him by a penitent is equivalent
of an annulment of the confessional institution.
 Privilege covers only confessions of sins with a view to obtaining pardon and
spiritual advice or assistance.
 Communications made not in the course of religious disciple but in contemplation of
a crime are not privileged.

5. Privilege communication made to public officer


 Applies to officers who have responsibility or duty to investigate or to prevent public wrongs
and not to officials in general.
 Communication is privilege, if the communication is confidential in its nature as when its
disclosure may endanger the safety of the state.
 The court may compel disclosure, if it appears necessary in order to avoid the risk of false
testimony or to secure useful testimony
 Disclosure of the name of the informer may be necessary in a case where the accused claims
he is the victim of false accusations by an enemy.

6. Parental and Filial Privilege


 No person shall be compelled to testify against his parents, other direct ascendants,
children or other direct descendants.
 Reason: Based on consideration of the solidarity of the Filipino family and the
traditional Filipino respect for ancestors.
 May be invoked in both civil and criminal cases.

7. Other Privileged Matters


a) Source of News report: XPN: the court or a house committee of congress finds that such
revelation is demanded by the security of the State.
b) Trade Secrets – covers usually formulas of manufacture and may include price lists and
customer’s list. Privilege is not absolute; the trial court may compel disclosure when it is
indispensable for doing justice.
c) Bank deposis – XPNs: a) upon written permission of the depositor; b) in cases of
impeachment; c) upon order of the a competent court in cases of bribery or dereliction of
duty of public officials; d) in cases where the money deposited or invested is the subject
matter of litigation.
CHAPTER XVII EXAMINATION OF WITNESSES

Rule on examination of witnesses:


- Shall be given in open court and under oath or affirmation
- Reason: to enable the court to judge the credibility of the witness of the witness by the
witness’ manner of testifying, their intelligence and their appearance.
- Are intended to protect the rights of litigants and to secure orderly dispatch of the
business of the courts.
- Witness may testify only on those facts which he knows of his own knowledge
- GR: On direct examination, leading questions (w/c suggest answers to the witness) are
not allowed. XPN: on preliminary matters (5 Ws and How), or when there is difficulty in
getting direct and intelligible answers from the witness who is ignorant, child of tender
years, or feeble minded
- GR: answers of the witness must be given orally; XPN: when the witness is incapacitated
to speak, i.e deaf and dumb witnesses through its gestures or sign language.

Examination of a Child Witness – the court shall exercise control over the questioning of children to:
1) Facilitate the ascertainment of the truth
2) Ensure that questions are stated in a form appropriate to the developmental level of the
child
3) Protect children from harassment or undue embarrassment
4) Avoid waste of time.

Oath – is an appeal by a person to God to witness the truth of what he declares, and an imprecation
of Divine punishment of vengeance upon him if what he says is false.

2 FOLD OBJECTIVE OF REQUIRING WITNESS TO BE SWORN


1. To affect conscience of witness
2. Be punished with perjury if he lies

Affirmation – solemn and formal declaration or assertion that witness will tell the truth. Substitute
for oath in certain cases
 Oath must be done before the examination
 Judgment may be SET ASIDE if after its rendition it is discovered that witness testified
without oath
 Recalled witness need not be sworn again
 Power to control and regulate the taking of oral testimony is vested in the trial court.
 Testimony of a witness should be given as answers to questions, framed by counsel and not
in uninterrupted narrative form; REASON: to enable the opponent to know beforehand the
nature of the given testimony, thus, enable him to in time to object and prevent the
interjection of irrelevant and inadmissible matter.
 When testimony is given in a continuous uninterrupted narrative:
- Where a party witness is his own counsel
- When allowed by the trial court in the exercise of its discretion
- In giving such testimony, it is the right and duty of the counsel to interpose and arrest the
narrative by calling the attention of the court to the objectionable and by a motion to
strike out
 Constitutional provision against compulsory self-incrimination relates to CRIMINAL
PROCEEDINGS ONLY and not in civil action
 Scope of privilege on Self-incriminating questions:
- Applies to any fact to which a penalty is attached
- when the fact would tend to incriminate the witness
- applies to a fact penalized by the law of the forum
- applies to a penal act of the witness himself, not of third person
- applies to a natural person
- does not apply to a record required to be kept, of acts not in themselves criminal
- does not apply to an oral report
 If it requires intelligence and attention = COVERED BY RIGHT AGAINST SELF INCRIMINATION
- Questions need not be actually incriminating. It is enough that there is TENDENCY TO
INCRIMINATE
- Privilege is strictly personal to witness
- Privilege not to answer questions which will have a tendency to subject him to a penalty
for an offense may be invoked not only in criminal cases but in all kinds of proceeding.
- Privilege against self-incrimination must be given at a proper time- when a question
calling for a criminating answer is propounded
- Inference from claim of privilege: silence will not be taken against, but testimony shall be
taken against him.
- Witness cannot avoid answering question material to the issue on ground that it imputes
DISGRACE if disgrace “does not” amount to INCRIMINATION
- Relevancy must be shown affirmatively by party seeking to coerce answer tending to
degrade witness
- A witness is bound to answer question about his PREVIOUS FINAL CONVICTION, even if it
tends to embarrass
- COURT MUST PROTECT A WITNESS FROM
1. Irrelevant, improper and insulting question
2. Harsh or insulting manner – the court may admonish the counsel
3. Detain only the witness so long as interest of justice requires (detain here means to
make him stay on witness stand)
4. Examine only on pertinent matters – competent, material and relevant evidence.
- If answer of witness is true but not responsive to the question, it may be stricken off.
Court will caution the witness.
- If answer is responsive but unfavorable = CANNOT BE STRICKEN
- When partly responsive and partly non-responsive = UNRESPONSIVE WILL BE STRICKEN
- Argumentative answer – must give only fact and may explain but not to argue in his
answer
- Incompetent answer (hearsay) is not allowed by the rules of evidence
- If party has more than 1 atty, the attorneys should choose among themselves who will
examine the witness. However, substitution is allowed
- Judge may properly cross-examine the witness
- Judge must observe the procedural rules in examining the witness – to prevent
impression of impartiality

TRANSACTIONAL IMMUNITY USE AND FRUIT IMMUNITY


 Exempting witness from  Merely exempts a witness
prosecution from use of his testimony but
not from prosecution
CHAPTER XVIII DIRECT EXAMINATION
CHAPTER XIX CROSS EXAMINATION

Cross Examination – is the examination of a witness by the party opposed to the party who called
such witness, the latter party having examined, or having been entitled to examine, such witness in
chief.

Objects of cross-examination:
1. To elicit something in favour of the cross-examining party;
2. To weaken the force of what the witness has said in direct testimony; and
3. To show that from his present demeanor or from his past life he is unworthy of belief, and
thus weaken or destroy the effect of his testimony.

Right to cross-examine – cross examination of a witness is the absolute right, not the mere privilege,
of the party against whom he is called, and with regard to the accused, it is a right granted by the
Constitution.
 Art. III, Sec. 14(2) “that the accused shall enjoy the right to meet the witnesses face to face”
 Rule 115, Sec. 1(f) of the ROC declares that in all criminal prosecutions the accused shall be
entitled to be confronted at the trial by, and to cross-examine the witnesses against him.
 If by accident or design cross-examination is prevented, his direct examination is rendered
incompetent
 If the opposite party has had the opportunity of cross-examining but has not availed himself
of it, the direct examination will be received.
 Right to cross-examine is a vital element of procedural due process
 The right does not necessarily require an actual cross examination but merely an
opportunity to exercise this right is desired by the party entitle to its.

When cross-examination is privilege – the right to cross-examine and its concomitant privilege of
asking leading questions ceases where the cross-examination in chief is apparently concluded and
the attendance of the witness is either dispensed with from the stand or the re-examination, if any,
has begun. After that further cross-examinations is a privilege only, resting in the favour of the court.

Cross-examination is generally the function of the counsel and not of the court – the trial court
should stay out of it as much as possible, neither interfering nor intervening in the conduct thereof.

Leading questions – the court in its discretion may restrict the right of a party to ask leading
questions on cross examination so that serious injustice may not result.

Matters on which a witness may be cross-examined – ROC provides that “upon termination of the
direct examination, the witness may be cross-examined by the adverse party as to any matters
stated in the direct examination, or connected therewith, with sufficient fullness and freedom to
test his accuracy and truthfulness and freedom from interest of bias, or the reverse, and to elicit all
important facts bearing upon the issue”.

Matters on which a witness may not be cross-examined – GR: a witness cannot be cross-examined
on facts and circumstances not brought out in direct examination or in any way connected
therewith. XPN: If immaterial or irrelevant evidence has not been stricken out, it is error to refuse
cross-examination as to the facts to which it relates.
 Documents may be identified and introduced on cross-examination

Witness may be asked to physically demonstrate matters testified to in Chief


Witness may be asked to repeat what he has testified in the direct examination – for the purpose
not only of testing the recollection of the witness, but of ascertaining whether he makes a statement
at variance with what he testified to in chief. (not to repeat the whole of the direct examination)

Cross-examination of the accused - may be cross-examined as to any matter testified to upon his
evidence in chief. Within the limitations as to self-incrimination, the accused subjects himself to the
same liabilities on cross-examination as do other witnesses, and thereby becomes subject to all
proper and legitimate cross examination as to facts in issue, whether it tends to criminate him or
not.

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