J.

TESTIMONIAL EVIDENCE

1.) Qualification of a witness

- The qualifications of a witness are as follows as what Sec. 20, Rule 130 of the Rules of Court
provides:

a. He can perceive; and

b. He can make known his perception to others.

To these, we may add the following:

a. He must take either an oath or an affirmation (Sec 1, Rule 132, Rules of Court); and

b. He must not possess any of the disqualifications imposed by law or the rules
(Evidence, The Bar Lecture Series by Willard B. Riano, 2016, p. 181-182)

2.) Competency and credibility of a witness

Competence is a matter of law or, in this jurisdiction, also a matter of rule. In deciding the
competence of a witness, the court will not inquire into the trustworthiness of a witness.

Credibility of a witness has nothing to do with the law or the rule. It refers to the weight and
trustworthiness or reliability of the testimony.

Competency of a witness has reference to the basic qualifications of a witness as his capacity to
perceive and communicate his perception to others. It also includes the absence of any of the
disqualifications imposed upon a witness (Secs 20-24, Rule 130, Rules of Court).

 Under the Rules of Court, persons covered by the Survivorship Disqualification Rule or the
Dead Man’s Statute cannot testify as to any matter of fact occurring before the death or
insanity of the adverse party (Sec. 23, Rule 130, Rules of Court). This rule is directed to the
issue of competency of a witness, not to his credibility. (Evidence, The Bar Lecture Series by
Willard B. Riano, 2016, p. 185-186)
 Drug abuse will not render a person incompetent to testify (U.S. v. Behrens, 689 F .2d
154(10th Cir. 1982) (Bar 2011). Drug abuse becomes relevant only if the witness was under
the influence of drugs at the time he is testifying or at the time the events in question were
observed (U.S. v. Novo Sampol, 636 F .2d 621 (D.C. Cir. 1980). While bias and abuse may not
be grounds for barring a witness from testifying, they may serve as grounds for attacking the
credibility of a witness. (Evidence, The Bar Lecture Series by Willard B. Riano, 2016, p. 186)

Factors that do not affect the competency of a witness

1. General Rule: Except as provided by the law and the rules, the following factors do not
constitute a disqualification of a witness: (Sec 20, Rule 130, Rules of Court)
a. Religious belief;
b. Political belief;
c. Interest in the outcome of the case; or
d. Conviction of a crime, unless otherwise provided by law
3.) Disqualification of witnesses

a.) Disqualification by reason of mental incapacity or immaturity

Disqualification by reason of mental incapacity

To be disqualified as a witness by reason of mental incapacity, the following must concur:

a. The person must be incapable of intelligently making known his perception to others; and
b. His incapability must exist at the time of his production for examination. (Sec. 21(a), Rule
130, Rules of Court)

Disqualification by reason of immaturity

To be disqualified as a witness by reason of immaturity, the following must concur:

a. The mental maturity of the witness must render him incapable of perceiving the facts
respecting which he is examined; and
b. He is incapable of relating his perception truthfully (Sec. 21(b), Rule 130, Rules of Court)

Note: In a disqualification by reason of mental incapacity under Sec. 21(a) of Rule 130, the
incompetence of a witness must exist, not at the time of his perception of the facts, but at the time
he is produced for examination, and consists in his inability to intelligently make known what he has
perceived. In disqualification by reason of immaturity, the incompetence of a witness must occur at
the time he perceives the event including his incapability to relate his perceptions truthfully.

b.) Disqualification by reason of marriage

The rule prohibiting testimony by one spouse against the other is based on society’s intent to
preserve the marriage relations and promote domestic peace. A spouse testifying against the other
creates an ugly sight inimical to society’s interest. The rule prohibiting a testimony in favour of the
spouse is intended to discourage the commission of perjury.

 The case of Alvarez v. Ramirez (473 SCRA 72) gives the specific reasons for the rule, thus:
a. There is identity of interests between husband and wife;
b. If one were to testify for or against the other, there is a consequent danger of perjury;
c. The policy of the law is to guard the security and confidences of private life, even at the
risk of an occasional failure of justice, and to prevent domestic disunion and
unhappiness; and
d. Where there is want of domestic tranquillity, there is danger of punishing one spouse
through the hostile testimony of the other.

The marital disqualification rule, under Sec. 22 of Rule 130, forbids the husband or the wife to testify
for or against the other without the consent of the affected spouse except in those cases authorized
by the rule. The prohibition extends not only to a testimony adverse to the spouse but also to a
testimony in favour of the spouse. It also extends to both criminal and civil cases because the rule
does not distinguish.

Illustration:

Before the marriage of W to H, she witnessed the murder of X by H but she never reported
what she witnessed to the authorities. A year after the murder, H and W married. Barely six months
after the marriage, W became a battered wife and to get even with H, she decided to report the
murder to the police.
(a.) May she testify against H over the latter’s objection even if the murder took place before the
marriage?

Answer: She cannot testify over the objection of H. The situation is covered by the marital
disqualification rule.

(b.) Suppose a year after the marriage, the marriage is annulled, may W now testify despite the
objection oh H?

Answer: She can now testify after the marriage is annulled. The prohibition no longer applies since
the testimony is to be offered after, not during the marriage.

c.) Disqualification by reason of death or insanity of adverse party.

- This rule applies only to a civil case or a special proceeding over the estate of a deceased or insane
person.

Elements for the application of this rule:

a. The suit is upon a claim by the plaintiff against the estate of said deceased or person of
unsound mind;
b. The defendant in the case is the executor or administrator or a representative of the
deceased or the person of unsound mind;
c. The witness is the plaintiff, or an assignor of that party, or a person in whose behalf the case
is prosecuted; and
d. The subject of the testimony is as to any matter of fact occurring before death of such
deceased person or before such person became of unsound mind (Sec.23, Rule 130, Rules of
Court)

Illustration:

Mr. D approaches Mr. C, one rainy Sunday morning, to borrow P100, 000.00 to be paid exactly
a year after. Without hesitation, Mr. C gives Mr. D the amount requested. Mr. C does not require Mr.
D to execute a promissory note. They have been very good friends for as long as they can remember.
Years ago, when Mr. C’s small business was on the verge of bankruptcy, it was the generosity of the
then wealthy Mr. D that bailed him out. Exactly a day before the agreed date for payment, Mr. D
peacefully joins his Creator without paying the debt. What does Mr. C do? He goes to the executor
of what remains of the estate of Mr. D, and tells him of the debt of Mr. D. He says:

“Today is supposed to be the due date of his debt. I cannot demand payment from him
because he is dead. You are the executor and you are very much alive. I am asking you to pay his
debt.”

The executor retorts:

“Look Sir! I am not sure if you are telling the truth. Don’t get me wrong! I am not calling you a
liar but I cannot verify the truth of your claim. Mr. D is dead. He cannot speak. His lips are forever
sealed. I would not be doing an act unfair to the memory of Mr. D if I were to listen to you. I am
sorry, I cannot pay.”

What is the effect of the death of Mr. D in relation to Sec. 23 of Rule 130?

Answer: The rule is clear. Mr. C is rendered incompetent to testify as to the transaction he had with
Mr. D. he is incompetent because of the possibility that his claim is fraudulent. If Mr. C were to be
heard, there would be a high risk of paying a fraudulent or fictitious claim. It is Mr. C who has the
motive to lie. He is the survivor. Mr. D cannot lie. He is dead. He did not survive. Worse, he cannot
answer back. He cannot disprove the claim of Mr. C. to level the playing field between the lucky
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 risk of not paying
a just and valid claim because it is the survivor who has the stronger reason to file a false claim. The
rule is for the protection of the guy who died. Hence, the name, Dead Man’s Statute.

Object of the rule: to guard against the temptation to give false testimony in regard to the
transaction on the part of the surviving party and thereby put the parties upon equal terms.

Purpose: to close the lips of the plaintiff when death has closed the lips of the defendant, in order to
remove from the plaintiff the temptation to do falsehood and the possibility of fictitious claims
against the deceased. (Tan v. Court of Appeals, 295 SCRA 247; See also Garcia v. Vda de Caparas,
G.R. No. 180843, April 17, 2013)

d.) Disqualification by reason of privileged communication

a. Husband and wife

Elements:

a. There must be a valid marriage between husband and wife;

b. There is a communication received in confidence by one from the other; and
c. The confidential communication was received during the marriage.

Distinctions between the marital disqualification rule and the marital privileged communication
rule

Marital Disqualification Rule Marital Privileged Communication Rule

(Sec. 22 of Rule 130)
Does not refer to confidential communications
between the spouses.
Communications that are not intended to be
confidential because they were uttered in the
presence of third parties are not deemed
confidential even when made during the
marriage; this rule should apply instead of Sec.
24(a), when used as parts of a testimony for or
against the party spouse.
Includes facts, occurrences or information even
prior to the marriage.
Can no longer be invoked once the marriage is
dissolved; it may be asserted only during the
marriage.
Requires that the spouse for or against whom
the testimony is offered is a party to the action.
The prohibition is a testimony for or against the
other.
(Sec. 24(a) of Rule 130)
Has reference to confidential communications
received by one spouse from the other during
the marriage.
Applies only to testimonies of a confidential
nature received by one spouse from the other
during the marriage and obviously does not
include acts merely observed by the spouse
unless such acts are intended as a means of
conveying confidential communication by one to
the other.
Applies only to confidential information received
during the marriage.
The spouse affected by the disclosure of the
information or testimony may object even after
the dissolution of the marriage; the privilege
does not cease just because the marriage has
ended.
Applies regardless of whether the spouses are
parties or not.
What is prohibited is the examination of a
spouse as to matters received in confidence by
one from the other during the marriage.
b. Attorney and client

Requisites:

a. There must be a communication made by the client to the attorney, or an advice given by
the attorney to his client;
b. The communication or advice must be given in confidence; and
c. The communication or advice must be given either in the course of the professional
employment or with a view to professional employment.

Accordingly, the privilege is not confined to communications regarding actual pending cases.
The communications may refer to anticipated litigations or may not refer to any litigation at all. It is
sufficient that the statements be made in the course of legitimate professional relationship between
the attorney and the client. (Jones on Evidence, Vol. 3)

It is commonly acknowledged that the privilege does not extend to communications where the
client’s purpose is the furtherance of a future intended crime or fraud, or for the purpose of
committing a crime or a tort, or those made in furtherance of illicit activity. Accordingly, although
communications made when used to further crimes are not privileged, the discussion of the
communications in confidence with the lawyer after the crime has been committed may still be
privileged even though the earlier ones were not.

Note: The statements of the client need not be made to the attorney in person. Those made to the
attorney’s secretary, clerk, or stenographer for transmission to the attorney for the purpose of the
professional relationship, or those knowledge acquired by such employees in such capacity are
covered by the privilege.