JURIS REMEDIAL NOTES EVIDENCE EVIDENCE IN GENERAL 1. What are the facts that do not need introduction of evidence?

SUGGESTED ANSWER: a. Facts which a court shall or may take judicial notice. (Secs. 1 and 2, Rule 129, ROC) b. Judicial admissions. (Sec. 4, Rule 129, ROC) c. Facts which may be presumed from proven facts. JUDICIAL NOTICE ***2. Distinguish mandatory judicial notice from discretionary judicial notice. SUGGESTED ANSWER: a. For mandatory judicial notice the court is compelled to take judicial notice because of the use of the word "shall" in Sec. 1, Rule 129, ROC WHILE for discretionary judicial notice the court is not compelled because of the use of the word "may" in Sec. 2, Rule 129, ROC. b. Mandatory judicial notice takes place at the court's own initiative WHILE discretionary judicial notice may take place at the court's initiative, or on request of a party. c. Discretionary judicial notice requires a hearing and presentation of evidence WHILE mandatory judicial notice does not require hearing and presentation of evidence. 3. Is there judicial notice of foreign laws? Explain. SUGGESTED ANSWER: In general, courts may not take judicial notice of foreign laws, EXCEPT in a few instances where, in the exercise of sound discretion, they may take judicial notice of such foreign laws of which they are evidently familiar. (Delgado vs. Republic, L-2546, January 28, 1950; Pardo vs. Republic, 85 Phil. 323) NOTES AND COMMENTS: a. When foreign laws may be the subject of judicial notice. a. When the local court is evidently familiar with the foreign law. b. When the foreign law refers to the law of nations. (Sec. 1, Rule 129, ROC) c. When the court takes judicial notice of a published treatise, periodical or pamphlet on a subject of law as a learned treatise. (Sec. 46, Rule 130, Ibid.) d. When the foreign statute is accepted by the Philippine government. (Republic v. Guanzon, 61 SCRA 360) e. When a foreign judgment containing foreign law is recognized for enforcement. (Sec. 48, Rule 39, ROC) f. If the foreign law refers to common law doctrines and rules from which many of our laws were derived. (Alzua v. Johnson, 21 Phil. 308) ***4. Is evidence obtained from illegal search and seizure admissible ? Explain. SUGGESTED ANSWER: Any evidence in violation of Section 2, Article III, shall be inadmissible for any purpose in any proceeding. [Sec. 3 (2), Article III, 1987 Constitution) NOTES AND COMMENTS: The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and he persons or things to be seized. (Sec. 2, Article III, 1987 Constitution) ***5. Explain the right against self-incrimination. SUGGESTED ANSWER: No person shall be compelled to be a witness against himself. (Sec. 17, Article III, 1987 Constitution) This right is recognized under the Rules on Evidence, which provides that, it is the right of a witness not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law. [Sec. 3 (4), Rule 132, ROC)

Justicis Nemini Neganda Est

2 NOTES AND COMMENTS: The human body could be used as evidence without violating the right. Mechanical acts without the use of intelligence do not fall within the scope of the protection. Some of the acts which are not covered by the right of self-incrimination are the following: a. Fingerprinting, photographing and paraffin testing, physical examination. (U.S. v. Tang, 23 Phil. 145) b. Physical examination of a woman accused of adultery to determine if she is pregnant. (U.S. vs. On Suy Hon, 36 Phil. 735; Villaflor vs. Summers, 41 Phil. 62) c. Undergoing ultra-violet rays examination to determine presence of fluorescent powder on the hands. (People vs. Tranca, 35 SCRA 455) d. Subpoena directing government officials to produce official documents or public records in their custody. e. Fitting the accused foot over a foot print, putting on a pair of trousers, etc. OBJECT EVIDENCE 6. Are photographs admissible as evidence? SUGGESTED ANSWER: Photographs may be admissible upon proof of their exactness and accuracy by the photographer himself who can testify of his personal knowledge of the correctness of the representation. (Tan It vs. Sun Insurance Office, 51 Phil. 212) NOTES AND COMMENTS: a. Photographs. The photographer is not the only witness who can identify the pictures. The faithful representation of the photograph may be proved prima facie by the testimony of those who were present at the time it was taken, or by any other competent witness who can testify as to its exactness and accuracy. Once proved, the court may admit it subject to impeachment as to its accuracy. The value of a photograph lies in its being a correct representation or reproduction of the original, and its admissibility is determined by its accuracy in portraying the scene at the time the picture was taken. (Sison vs. People, 250 SCRA 58, 75-76) Photocopies or Xerox copies of signed documents are not duplicate originals because thy are not signed. (Mahilum vs. Court of Appeals, 17 SCRA 482) b. Treatment of computer printouts. If the data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an original. (Evidence Code of California, Added by Stats. 1977, Sec. 1) In a labor case, IBM Philippines, Inc., et al., vs. NLRC, et al., G.R. No. 117221, prom. April 13, 1999, the Supreme Court held that computer printouts which were not signed because they are unsigned. The Court went on further to say that its decisions, while adhering to a liberal view in the conduct of proceedings before administrative agencies, have nonetheless consistently required some proof of authenticity or reliability as condition for the admission of documents. Not one of the 18 print-out copies submitted by IBM was ever signed, either by the sender or the receiver. There is thus no guarantee that the message sent was the same message received. Neither were the print-outs certified or authenticated by any company official who could properly attest that these came from IBMs computer system or that the data stored in the system were not and/or could not have been tampered with before the same were printed out. DOCUMENTARY EVIDENCE BEST EVIDENCE RULE ***7. What is the best evidence rule and how is it applied to documents? SUGGESTED ANSWER: If, possible, the best evidence which the nature of the case is susceptible shall always be required, if not available, then the best evidence that can be had shall be allowed. (Kneedler vs. Paterno, 85 Phil. 183; 20 Am. Jur. 364) When the subject of inquiry is the contents of a document no evidence shall be admissible other than the original itself. (Sec. 3, Rule 130, ROC arrangement and numbering supplied) NOTES AND COMMENTS: a. Reason for rule: The reason for the best evidence rule is to prevent fraud. (Anglo-American, etc., vs. Cannon, 31 Fed. 314). The best evidence rule is a misnomer because it merely requires the best evidence that is available, and if not available, secondary evidence shall be allowed.

3 b. Application of best evidence rule: The best evidence rule applies only to contents of a writing, when those contents are the facts in issue, and not to its execution which may be proved by parol testimony or extrinsic papers. (Hernaez v. Mcgarth, 90 Phil. 565) c. Documents defined. Documents as evidence consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents. (Sec. 2, Rule 130, ROC arrangement and numbering supplied) d. The different rules on admissibility of documentary evidence are the: 1) Best evidence rule; 2) Rules for admission of secondary evidence; 3) Parol evidence rule; and 4) Rules on interpretation of documents. ***8. What are the exceptions to the best evidence rule or instances where the original need not be presented or instances where secondary evidence is admissible? SUGGESTED ANSWER: a. When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; b. When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; c. When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general results of the whole; and d. When the original is a public record in the custody of a public officer or is recorded in a public office. (Sec. 3, Rule 130, ROC rearrangement and numbering supplied) NOTES AND COMMENTS: ***a. Procedure for order of proof using secondary evidence: Proof of execution; Proof of loss or unavailability; Proof of contents. (Wigmore, Sec. 1189) ***b. Procedure for proving contents of writing where original document is not available or how secondary evidence is presented where original document is not available. 1) When the original document a) has been lost or b) destroyed, or c) cannot be produced in court, 2) the offeror, a) upon proof (1) of its execution or existence (2) and the cause of its unavailability (3) without bad faith on its part, b) may prove its contents (1) by a copy, or (2) by recital of its contents in some authentic document, or (3) by the testimony of witnesses (4) in the order stated. (Sec. 5, Rule 130, ROC arrangement and numbering supplied) ***c. Procedure for proving contents of writing where original documents is in the adverse partys possession or control or how secondary evidence is presented where original is in the custody or control of the adverse party. 1) If the document is 2) in the custody or under the control 3) of the adverse party, a) he must have reasonable notice b) to produce it. 4) If after such notice and a) after satisfactory proof of its existence, b) he fails to produce the document, 5) secondary evidence may be presented 6) as in the case of its loss. (Sec. 6, Rule 130, ROC rearrangement and numbering supplied)

1) 2) 3) 4)

4 *** d. Procedure for proving the contents of original in the custody of a public officer: When the original of a document is in the custody of a public officer or is recorded in a public office its contents may be proved a) by a certified copy b) issued by the public officer c) in custody thereof. (Sec. 7, Rule 130, ROC rearrangement and numbering supplied)

PAROL EVIDENCE RULE ***9. What is meant by parol evidence and what is the rule regarding this concept? SUGGESTED ANSWER: Parol evidence is oral or verbal testimony of a witness. It is also known as extrinsic evidence or evidence aliunde. 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. (1st par., Sec. 9, Rule 130, ROC rearrangement and numbering supplied) NOTES AND COMMENTS: a. Nature of parol evidence rule: It is not a rule of evidence but of substantive law. It is part of the law of contracts, the law of negotiable instruments, and the law of wills. It is founded upon the substantive rights of the parties. It was made part of the rules of evidence in order that it may be considered in all its phases in one place. (70 A.L.R. Anno. 752; Tracy's Handbook, 62 Ed., p. 97; 20 Am. Jur. 963) b. Reasons for the parol evidence rule: 1) When the parties have reduced their agreement in writing, 2) It is presumed that they have made the writing 3) The only repository and memorial of the truth, and 4) Whatever is not found in the writing must be understood to have been waived or abandoned. (Van Sychel vs. Dalrymple, 32 N. J., EQ. 233) c. Best evidence rule distinguished from parol evidence rule: 1) Under the best evidence rule, the issue is contents of a writing (Sec. 3, Rule 130, ROC) WHILE under the parol evidence rule, there is no issue as to contents of a writing (Sec. 9, Rule 130, ROC); 2) Under the best evidence rule, secondary evidence is offered to prove the contents of a writing, which is not allowed unless the case falls under any of the exceptions (Sec. 3, Rule 130, ROC) WHILE under the parol evidence rule, the purpose of the offer of parol evidence is to change, vary, modify, qualify, or contradict the terms of a complete written agreement, which is not allowed unless the case falls under any of the exceptions. (Sec. 9, Rule 130, ROC) 3] Under the best evidence rule, any litigant to an action can invoke such while only the parties and their successors in interest, and not strangers may invoke the protection of the parol evidence rule. (Sec. 9, Rule 130, ROC) 4] The former applies to all forms of writing, while the latter applies to written agreements (contracts and wills) 5. the former establishes preference for original documents, while the latter is not concerned on such primacy. ***10. What are the exceptions to the parol evidence rule or when are the instances when testimonial evidence may be used to prove the terms of a written agreement? SUGGESTED ANSWER: A party may present evidence to modify, explain or add to the terms of the written agreement if he puts into issue in his pleading: a. An intrinsic ambiguity, mistake or imperfection in the written agreement. b. The failure of the written agreement to express the true intent and agreement of the parties thereto. c. The validity of the written agreement. d. The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. (Sec. 1, Rule 130, ROC rearrangement and numbering supplied)

5 ***11. What is the coverage of the parol evidence rule and what are the exceptions to the parol evidence rule ? SUGGESTED ANSWER: a. Covered. Only prior and contemporaneous agreements which are deemed to have been merged in the writing conformably to the "integration of the agreement rule." (Woodhouse vs. Halili, 93 Phil. 526) b. Not covered. 1) Subsequent agreements, notwithstanding that such agreement may have the effect of adding to, changing, modifying, or even altogether abrogating the contract of the parties as evidenced by the writing. 2) Collateral agreements which although oral and contemporaneous with the writing are separate and distinct agreements. (PNB vs. Seeto, 91 Phil. 756) NOTES AND COMMENTS: a. Contemporaneous agreement. A contemporaneous agreement is one entered into at the same time as the agreement which has been reduced to writing. b. Tests to determine whether a contemporaneous oral agreement is separate and distinct from the written agreement and therefore provable by parol evidence: 1) The first test is the subject-matter of the two agreements. If the subject-matter of the written agreement is different from that of the contemporaneous oral agreement, then the latter is a separate and distinct agreement and, therefore, provable by parol evidence. 2) If the two agreements refer to the same subject-matter, the test is to determine whether or not the contemporaneous oral agreement is separable, then the contemporaneous oral agreement is separate and distinct and, therefore, probable by parol evidence. (Lese vs. Lamprecht, 196 N.Y. 32) c. Example of agreement which CANNOT be proven by parol evidence: Express trusts concerning real property cannot be proven by parol evidence because title and possession cannot be defeated by oral evidence which can easily be fabricated and contradicted. (Sinaon, et al., vs. Sorongon, et al., 136 SCRA 410) d. Examples of collateral agreements which CAN be proved by parol evidence: 1) An agreement of reconveyance is a distinct agreement, separate from the sale itself, although the two agreements are usually contained in one and the same document. (Laureano vs. Kilayco, 34 Phil. 148; Yacapin vs. Neri, 40 Phil. 61) 2) Inducements and representations which led to the execution of an agreement may be proven by parol evidence because they do not vary the terms of the agreement. (Woodhouse vs. Halili, 93 Phil. 526; Bough vs. Cantiveros, 40 Phil. 209) 3) Parol evidence is admissible to prove an independent and collateral agreement which constitutes an inducement to the making of the sale or part of the consideration thereof. (Robles vs. Lizarraga Hnos., 50 Phil. 387) 4) A condition precedent not stipulated in writing is provable by oral evidence. REASON: Before the happening of the condition, there is no written agreement yet to which the parol evidence may apply. 5) Verbal assurances given by the indorser of an out-of-town check to the employees of the bank where it was presented for encashment that he would refund the amount if the check should be dishonored by the drawee bank is a collateral agreement separate and distinct from the indorsement, by virtue of which the first bank was induced to cash the same, and therefore, provable by parol evidence. (PNB vs. Seeto, 91 Phil. 756) 6) Any prior or contemporaneous conversation in connection with a note or its indorsement may be proved by parol evidence. (PNB vs. Seeto, 91 Phil. 756; Philips vs. Preston, 5 How. [U.S.] 278) 7) An extrinsic agreement between indorser and indorsee which cannot be embodied in the instrument without impairing its credit may be proved by parol evidence. (PNB v. Seeto, 91 Phil. 756; 9 Wigmore 148) d. The fact that parties who appear to have signed as principals did so as merely sureties is provable by parol evidence. (Tan Machan vs. De la Trinidad, 3 Phil. 684) INTERPRETATION OF DOCUMENTS AUTHENTICATION AND PROOF OF DOCUMENTS 12. How are alterations in documents explained?

6 SUGGESTED ANSWER: The party producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration. he may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he fails to do that, the document shall not be admissible in evidence. (Sec. 31, Rule 132, ROC) 13. As a general rule there is need to prove the authenticity of private documents. Are there exceptions to this general rule? SUGGESTED ANSWER: Yes. There may be no need to prove the authenticity of private documents: a. When the document is ancient. (Sec. 21, Rule 132, ROC) b. When the execution and genuineness of the document is admitted by the adverse party. (Tria v. Cruz, 14 Phil. 551); and c. When the genuineness and due execution of the document is immaterial. (Hicks vs. Coleman, 25 Cal., 122) NOTES AND COMMENTS: a. The ancient document rule: Where a private document is more than thirty years old, is produced from a custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given. (Sec. 21, Rule 132, ROC) b. How genuineness of handwriting proved: The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen handwriting purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison made by the witness in court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. (Sec. 22, Rule 132, ROC) c. Not much weight is given to handwriting experts. Unless, therefore, there is, in a given case, absolute absence, or manifest dearth, or direct or circumstantial competent evidence of the character of a questioned handwriting, much weight should not be given to characteristic similarities, or dissimilarities, between the questioned handwriting and an authentic one. (Punzalan vs. Commission on Elections, et al., G.R. No. 126669; Meneses vs. Commission on Elections, et al., G.R. No. 127900; Punzalan vs. Commission on Elections et al., G.R. No. 12880; and Punzalan vs. Commission on Elections, G.R. No. 132435 prom. April 27, 1998 citing Lorenzo vs. Diaz, 53 O.G. 4110-4111, cited in Francisco on Evidence, Vol. VII, Part I, 1997 Edition, p. 674) Questions involving the mere similarity or dissimilarity of handwritings could be determined by the court itself as authorized under Sec. 22, Rule 132 of the Rules of Court by making a comparison of the disputed handwriting "with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge." (Punzalan vs. Commission on Elections, supra) EVIDENCE TO BE PRESENTED MUST BE ADMISSIBLE ***14. When is evidence admissible? What is meant by relevancy and are there instances when evidence that is not relevant is admissible? Explain. SUGGESTED ANSWER: Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. (Sec. 3, Rule 128, ROC arrangement and numbering supplied) Relevant evidence is that evidence that has such a relation to the fact in issue as to induce belief in its existence or non-existence. (1st sentence, Sec. 4, Rule 128, ROC arrangement and numbering supplied) Only relevant evidence is admissible and evidence on collateral matter is not allowed. However, it may be allowed when it tends in any reasonable degree to establish the probability or improbability of the facts in issue. (2nd sentence, Sec. 4, Rule 128, ROC arrangement and numbering supplied) NOTES AND COMMENTS: To determine whether evidence is admissible look for the purpose. The reason behind the above statement is that evidence may be admissible for one purpose and not for another purpose. ILLUSTRATION: While Leon was sitting in front of his house, he saw Miguel running and heard him shouting, "Juan stabbed Pedro."

7 If Leon is presented as a witness, during the trial of Juan for having stabbed Pedro, and his testimony is offered to prove that Juan stabbed Pedro, his (Leon's) testimony would not be admissible because it is excluded by the rules for being hearsay. (Sec. 3, Rule 128 in relation to Sec. 36, Rule 130, both of the ROC) Leon did not have personal knowledge of the fact that Juan stabbed Pedro. His knowledge that Juan stabbed Pedro was not derived from his own perception but from that of Miguel. On the other hand, if Leon's testimony is offered to prove that he heard that Miguel shouted, "Juan stabbed Pedro," then this would be admissible. It could not be excluded under the hearsay rule because his testimony is derived from his own perception of what Miguel said. Leon's testimony is likewise admissible because it is relevant under the concept of independent relevant statement, a statement that tends in a reasonable degree to establish the probability or improbability of the fact in issue. (Sec. 4, Rule 128, ROC) His testimony would tend in a reasonable degree to establish the probability that Juan stabbed Pedro. QUALIFICATION OF WITNESSES ***15. Who are qualified to be witnesses or who may be witnesses? SUGGESTED ANSWER: All persons who can perceive, and perceiving, could make known their perception to others, may be witnesses. (1st par., Sec. 30, Rule 130, ROC), provided they are not disqualified under the Rules of Court. NOTES AND COMMENTS: The following are disqualified to be witnesses: Those who are disqualified by reason of: a. Mental incapacity or immaturity (Sec. 21, Rule 130, ROC); b. Marriage (Sec. 22, Ibid); c. Death or insanity of adverse party (Sec. 23, Ibid.) d. Privileged communication (Sec. 24, Ibid.) 1) Marital privileged communication rule (Sec. 24 [a], Ibid.); 2) Lawyer-client privileged communication rule (Sec. 24 [b], Ibid.); 3) Doctor-patient privileged communication rule (Sec. 24 [c], Ibid.); 4) Priest-penitent privileged communication rule (Sec. 24 [d], Ibid.); and 5) Public officer privileged communication rule (Sec. 24 [e], Ibid.). 6.] Parental and filial testimonial privilege rule (Sec. 25, Rule 130, ROC) Conviction of a crime does not disqualify a person from testifying but may disqualify him from being discharged as a state witness. (Sec. 9 [e], Rule 119, ROC) ***16. What is the marital disqualification rule? Distinguish the marital disqualification rule from the marital privileged communication rule. SUGGESTED ANSWER: During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case committed against the other or the latter's direct descendants or ascendants. (Sec. 22, Rule 130, ROC) The distinctions between the marital disqualification rule and the marital privileged communications rule are the following: a. The marital disqualification rule applies to any fact WHILE the marital privileged communications rule refers only to confidential communications made during the marriage. b. The marital disqualification rule is claimable only during the marriage WHILE the marital privileged communications rule is claimable during or after the marriage. NOTES AND COMMENTS: ***a. Requisites for invoking the marital disqualification rule. 1) The spouses are legally married; 2) The marriage is subsisting at the time of the testimony; 3) The spouse is being made to testify for or against the other; 4) The spouse who is testifying was not given the consent to testify by the other spouse; 5) The case is not a civil case filed by one spouse against the other or a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. (Sec. 22, Rule 130, ROC arrangement, rephrasing and numbering supplied) b. Do not confuse the marital disqualification rule under Sec. 22, Rule 130, ROC with the marital privileged communication rule under Sec. 24 [a], Rule 130, ROC. c. The rationale behind the marital disqualification rule is to preserve the marriage relation as one of full confidence, affection and concord. (U.S. vs. Concepcion, 31 Phil. 182)

8 d. The right to invoke this disqualification belongs to the spouse-party (Ortiz vs. Arambulo, 8 Phil. 98) against or for whom the testimony is being proffered. It may be waived: 1) By a failure to interpose timely objection, or 2) By calling the other spouse as witness (Ibid., People vs. Francisco, 78 Phil. 694) The privilege could be invoked even if the spouse is testifying in favor of the spouse-party because damaging testimony may be elicited during the cross-examination. ***17. What is the marital privileged communication rule? SUGGESTED ANSWER: a. The husband or the wife, b. during or after the marriage, c. cannot be examined d. without the consent of the other e. as to any communication 1) received in confidence 2) by one from the other 3) during the marriage f. except 1) in a civil case by one against the other, or 2) in a criminal case committed by one a) against the other or b) the latter's direct descendants or descendants. (Sec. 24[a]. Rule 130, ROC arrangement and numbering supplied) NOTES AND COMMENTS: a. The requisites for the marital privileged communication rule are the following: 1) The parties are or were legally married. 2) The communication, oral or written, was made during the marriage; 3) The communication was received in confidence; 4) The examination is done during the marriage. 5) The consent of the other spouse was not given. 6) The case is not a civil case filed by one against the other or a criminal case for a crime committed by one against the other or the latter's direct ascendants or descendants. b. The rationale behind the marital privileged communication rule is to preserve the peace of families and maintain the sacred institution of marriage. c. Applications of the marital privileged communication rule: 1) Every communication between spouses is presumed to be confidential. (Sexton vs. Sexton, 129 Ia. 487; Wigmore, Sec. 2336) 2) Communications made in the presence of third parties are not confidential, unless the third person may be considered as an agent of the spouses. (Floyd v. Miller, 61 Ind. 224) 3) Communications overheard by third persons remain confidential as between the spouses, but the third person who overheard may be called upon to testify. (People v. Carlos, 47 Phil. 626) 4) Communications coming into the hands of third persons, whether legally or illegally, remain confidential as between the spouses, but the third person may be called upon to testify. (People, and Hammons, supra) But if the third person acquired knowledge of the communication by collusion and voluntary disclosure on the part of either of the spouses, he thereby becomes an agent of such spouses so that the privilege is claimable against him. (Ibid.) 5) Communications intended for transmission to third persons are not confidential. (U.S. vs. Antipolo, 37 Phil. 726) NOTE: The above rules may apply by analogy to other privileged communications. d. Waiver of the marital privileged communication rule: The privilege is claimable by the spouse not called as witness, so that it its waivable only by him or her; and it is waivable by any act of such spouse which might be considered as an express or implied consent to the disclosure of the communication. (People vs. Hayes, 140 N.Y. 484) 18. What is meant by the survivors disqualification rule or the dead mans statute? Explain. SUGGESTED ANSWER: a. Parties or assignors of parties to a case, or

9 b. persons on whose behalf a case is prosecuted, c. against an executor or administrator or other representative d. of a deceased person, or against a person of unsound mind, e. cannot testify as to any matter of fact f. occurring before the death of such person or g. before such person became of unsound mind. Sec. 23, Rule 130, ROC arrangement and numbering supplied) NOTES AND COMMENTS: a. Rationale, object and purpose of Dead Mans Statute. 1) To discourage false testimony or perjury on the part of the survivor; and 2) To protect the deceased against false and unjust claims. (Goni, et al., vs. Court of Appeals, et al., 144 SCRA 231) ***The object and purpose of the rule is to guard against the temptation to give false testimony in regard of the transaction in question on the part of the surviving party, and further to put the two parties to a suit upon terms of equality in regard o the opportunity to giving testimony. If one party to the alleged transaction is precluded from testifying by death, insanity, or other mental disabilities, the other party is not entitled to the undue advantage of giving his own uncontradicted and unexplained account of the transaction. (Tan, et al,. vs. Court of Appeals, et al., G.R. No. 125861, prom. September 9, 1998) ***b. Exceptions to the survivors disqualification rule: 1) Ordinary witnesses, who are not the plaintiff, assignor of plaintiff, or person in whose behalf the case is prosecuted may testify. (Francia vs. Hipolito, 93 Phil. 968) 2) When the plaintiff is a corporation, the officers or stockholders thereof are not disqualified. (Lichauco vs. Atlantic Gulf, et c., 84 Phil. 330) 3) When there is an imputation of fraud against the deceased, the plaintiff is not barred from testifying to such fraud. (Go Chi Gun vs. Co Cho, 96 Phil. 622) 4) When the plaintiff is the executor, administrator or legal representative of the deceased, or the person of unsound mind, the defendant or defendants are free to testify against the plaintiff. (Tongco vs. Vianzon, 50 Phil. 698) 5) When the defendant or defendants, though heirs of the deceased, are sued in their personal and individual capacities, the plaintiff may testify against them. (Go Chi Gun vs. Co Cho, 96 Phil. 622) 6) When the survivor's testimony refers to a negative fact. (Mendezona vs. Vda. de Goitia, 54 Phil. 557) 7) When the survivor's testimony is favorable to the deceased. (Icard vs. Marasigan, 71 Phil. 419) 8) The adverse party is competent to testify to transactions or communications with the deceased or incompetent person which were made with an agent of such person in cases in which the agent is still alive and competent to testify. But the testimony of the adverse party must be confined to those transactions or communications which were had with the agent. (Goni, et al., vs. Court of Appeals, et al., 144 SCRA 231) c. How protection of the dead mans statute is waived: 1) By not objecting to plaintiff's testimony on prohibited matters. (Marella vs. Reyes, 12 Phil. 1) 2) By cross-examining the plaintiff on prohibited matters. (Tongco vs. Vianzon, 50 Phil. 698) 3) By calling witnesses to testify on prohibited matters. (Arroyo vs. Azur, 76 Phil. 493) 4) When the plaintiff's deposition is taken by the representative of the estate or when counsel for the representative cross-examined the plaintiff as to matters occurring during the deceased's lifetime. (Goni, et al., vs. Court of Appeals, et al., 144 SCRA 231) 19. Explain what is meant by the parental and filial testimonial privilege rule. SUGGESTED ANSWER No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. (Sec. 25, Rule 130, ROC) NOTES AND COMMENTS: a. Who may not be compelled to testify against certain parties under the parental and filial testimonial privilege rule? 1) Person against his parents. 2) Person against his other direct ascendants like grandparents, great grandparents, great great grandparents.

10 3) Person against his children. 4) Person against his other direct descendants like grandchildren, great great grandchildren. b. Who are not covered and may be compelled to testify: Relatives by affinity. Brothers and sisters. Aunts, uncles, nephews, nieces. Cousins of whatever degree. Other collateral relatives. Parental and filial testimony does not prohibit voluntary testimony or compelled testimony against relatives by affinity or collateral relatives. c. Rationale behind parental and filial testimonial privilege rule: To preserve harmonious relations between parent and child which could be ruptured through testifying in court. Furthermore, perjury may result because the parent or the child may give false testimony to protect the other. The author believes that the adopted and adopter are covered by the parental and filial testimonial privilege rule but only insofar as the parent and child is concerned. It does not extend to the direct ascendants of the adopter because the adoptive relation is between the adopter and the adopted only. The reason for this opinion is the rationale behind the privilege. 20. rule? What is meant by disqualification by reason of the privileged communication

SUGGESTED ANSWER: Under this rule, a person is disqualified to testify as to matters learned in confidence (Sec. 24, Rule 130, ROC). It should be noted that the person (other than a spouse under Sec. 24[a], Rule 130) is not otherwise prohibited to testify. He could testify but not on the matters learned in confidence. There are five kinds of privileged communications that could not be the subject of testimony: a. Marital privileged communication rule (Sec. 24 [a], Ibid.); b. Lawyer-client privileged communication rule (Sec. 24 [b], Ibid.); c. Doctor-patient privileged communication rule (Sec. 24 [c], Ibid.); d. Priest-penitent privileged communication rule (Sec. 24 [d], Ibid.); e. Public officer privileged communication rule (Sec. 24 [e], Ibid.). 21. What is the physician and patient privileged communication rule? SUGGESTED ANSWER: a. A person authorized to practice medicine, surgery or obstetrics b. cannot in a civil case, c. without the consent of the patient, d. be examined as to 1) any advice or treatment given by him or 2) any information a) which he may have acquired in attending such patient in a professional capacity, b) which information was necessary to enable him to act in that capacity, and c) which would blacken the reputation of the patient. (Sec. 24 [c], Rule 130, ROC arrangement and numbering supplied) The physician may be compelled to testify in a criminal case. NOTES AND COMMENTS: a. Rationale behind the privilege: The reason is to facilitate and make safe, full and confidential disclosure by a patient to the physician of all symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand. (Will of Bruendl, 102 Wis. 47) b. Waiver of the privilege: This privilege belongs to the patient, so that it is only he that can claim or waive it. It is waivable expressly or impliedly. It is impliedly waived like any other privilege rule. (Penn. Mutual Life Ins. Co. vs. Wiler, 100 Ind. 92) ADMISSIONS AND CONFESSIONS ***22. What is self-serving evidence? Is it admissible in evidence? Explain.

11 SUGGESTED ANSWER: An admission favorable to the party making it. (Lichauco vs. Atlantic Gulf & Pacific Co., 84 Phil. 342) NOTES AND COMMENTS: a. Self-serving or favorable admissions made out of court not admissible: REASONS: 1) A man may be safely believed if he declares against his own interest, but not if he advocates his interest. (Lichauco v. Atlantic Gulf & Pacific Co., 84 Phil. 342) 2) It is excluded on the same ground as any hearsay evidence, that, the lack of opportunity for cross-examination by the adverse party. (National Development Co., vs. Workmen's Compensation Commission, 19 SCRA 865) b. When self-serving or favorable admissions are admissible: 1) If made in open court 2) Giving full opportunity to the adverse party 3) To exercise his right of cross-examination. 23. State the rule on admission by silence. SUGGESTED ANSWER: a. An act or declaration made 1) in the presence and 2) within the hearing or 3) observation b. of a party who does or says nothing c. when the act or declaration 1) is such as naturally to call for action or comment if not true, and 2) when proper and possible for him to do so, d. may be given in evidence against him. (Sec. 32, Rule 130, ROC arrangement and numbering supplied) NOTES AND COMMENTS: a. Requisites for application of rule on admission by silence: Before the silence of a party can be taken as an admission of what is said, it must appear that: he heard and understood the statement; he was at liberty to interpose a denial; the statement was in respect to some matter affecting his rights, or in which he was then interested, and calling, naturally, for an answer; the facts were within his knowledge; and the fact admitted or the inference to be drawn from his silence would be material to the issue. (People vs. Paragasa, 84 SCRA 113) b. Rationale behind rule on admission by silence: The reason is the recognized rule that if a man remains silent when he ought to speak, he will be debarred from speaking later. Qui tacet consitere videtur or silence means consent. (Gabriel vs. Baens, 56 Phil. 314) c. Exceptions to the rule on admission by silence or instances where there is no admission by silence: 1) Where no good reason exists for the party to comment on the act or declaration (Veil vs. Strong, 10 Vt. 455), as when the act or declaration was not specifically directed to the party who remained silent. (80 A.L.R., Anno., 1272) 2) When the party had no opportunity to comment on the act or declaration. (People vs. Ranario, 49 Phil. 220) 3) Where the act or declaration was made in the course of an official investigation. (People vs. Tia Fong, 98 Phil. 609) 4) When silence is upon advice of counsel. (People vs. Kozlowski, 115 A.L.R. 1505) ***24. Distinguish extrajudicial confessions from admissions. SUGGESTED ANSWER: A confession, as distinguished from admission, is a declaration made at any time by a person, voluntarily and without compulsion or inducement, stating or acknowledging that he had committed or participated in the commission of a crime. The term, admission, on the other hand, is usually applied in criminal cases to statements of fact by the accused which do not directly involve an acknowledgment of the guilt of the accused or of criminal intent to commit the offense with which he is charged. (U.S. v. Corrales, 28 Phil. 365)

12 ***25. When is an offer of compromise not admissible in evidence ? SUGGESTED ANSWER: In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. (1st par., Sec. 27, Rule 130, ROC) NOTES AND COMMENTS: a. An offer to pay of the payment of medical, hospital, or other expenses, occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury. (last par., Sec. 27, Rule 130, ROC) b. Rationale for non-admissibility of offer to compromise in civil cases: To encourage the parties to settle their suits amicably resulting to decongestion of the courts' clogged dockets. c. Compromise is a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced. (Article 2028, Civil Code of the Philippines) 26. When is an offer to compromise admissible in evidence? Are there any exceptions? Explain. SUGGESTED ANSWER: a. In criminal cases, except 1) those involving quasi-offenses (criminal negligence) or 2) those allowed by law to be compromised, b. an offer of compromise by the accused c. may be received in evidence as an implied admission of guilt. (2nd par., Sec. 27, Rule 130, ROC arrangement and numbering supplied) acta ? ***27. What is meant by res inter alios acta alteri nocere non debet or res inter alios

SUGGESTED ANSWER: Statements made or matters accomplished between two parties cannot prejudice a third party. (Blanza vs. Arcangel, 21 SCRA 4) The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. (Sec. 28, Rule 130, ROC) NOTES AND COMMENTS: a. Rational for res inter alios acta: This evidentiary rule guards against the practical inconvenience of trying collateral issues and protracting the trial and prevents surprise or other mischief prejudicial to litigants. (Cruz, et al., vs. Court of Appeals, et al., G.R. No. 126713, prom. July 27, 1998 citing Francisco) b. Exceptions to res inter alios acta: 1) When there is a rational similarity or resemblance between the conditions giving rise to the fact offered and the circumstances surrounding the issue or fact to be proved. (Cruz, et al., vs. Court of Appeals, et al., G.R. No. 126713, prom. July 27, 1998) 2) In actions based on fraud and deceit, because it sheds light on the state of mind or knowledge of a person; it provides insight into such person's motive or intent; it uncovers a scheme, design or plan; or it reveals a mistake. (Cruz, supra) 3) The rights of a party may be prejudiced by the act, declaration or omission of another when between the parties making the admission and against whom it is offered there exists a relation of: partnership; agency; joint interest; conspiracy; or privity. c. Rule on admission by co-partner or agent: 1) The act or declaration of a partner or 2) agent within the scope of his authority and during the existence of the partnership or agency, 3) may be given in evidence against such party 4) after the partnership or agency a) is shown by evidence b) other than such act or declaration. 5) The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. (Sec. 29, Rule 130, ROC arrangement and numbering supplied)

13 d. Rule on admission by conspirator: 1) The act or declaration of a conspirator 2) relating to the conspiracy and during its existence, 3) may be given in evidence against the co-conspirator 4) after the conspiracy a) is shown by evidence b) other than such act or declaration. (Sec. 30, Rule 130, ROC arrangement and numbering supplied) e. Requisites for application of the admission by conspirator: 1) The conspiracy must be established by independent evidence. 2) The statement refers to the purpose or object of the conspiracy. 3) The statement must be made during the existence of the conspiracy. (People vs. Dagundong, L-10398, June 30, 1960) This refers to extrajudicial acts and declarations of a conspirator and not to his testimony as a witness in the trial. (People vs. Atencio, L-222518, Jan. 17, 1968) ***28. What is the probative value of a confession? SUGGESTED ANSWER: It depends on whether the confession is judicial or extrajudicial. a. A judicial confession, like a plea of guilty, is in fact evidence of guilt of the most trustworthy kind, is conclusive upon the court and is sufficient to sustain a judgment of conviction. (People vs. Sta. Rosa, 88 Phil. 487) b. An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. (Sec. 3, Rule 133, ROC) NOTES AND COMMENTS: a. Confession, defined. The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein. (Sec. 33, Rule 130, ROC ) A confession made by an accused may be given in evidence against him. (Sec. 33, Rule 130, ROC paraphrasing supplied) b. Confession is evidence of high order: 1) There is no evidence of a higher quality than a confession; it represents the outward manifestation of a man. Unless, therefore, the confession is nullified by evidence of duress, the same is admissible as an evidence of guilt of a high quality. (People vs. Garcia, 54 Phil. 329, 358) 2) If a confession be true and voluntary, the deliberate act of the accused with a full comprehension of its significance, there is no impediment to its admission as evidence and it then becomes evidence of a high order, since it is supported by the presumption, a very strong one, that no person of normal mind will deliberately and knowingly confess himself to be the perpetrator of a crime, especially if it be a serious crime, unless prompted by truth and conscience. (People vs. Zea, et al., 130 SCRA 87, 88) c. Probative value of recantations: They are looked upon with disfavor as recantations are usually secured through intimidation or for a monetary consideration. (Molina vs. People, 259 SCRA 138) d. General rule on admissibility of confession: A confession is admissible only against the accused who made it and not against his co-accused, for as against the latter, the confession would be hearsay and res inter alios acta. (People vs. Talledo, 85 Phil. 533) e. Exceptions: when a confession is admissible against co-accused: 1) When the confession of an accused implicating his co-accused is made judicially at a joint trial (U.S. vs. Macamay, 36 Phil. 893) or when the extrajudicial statements implicating a coaccused are repeated in open court (People vs. Ola, G.R. No. L-47147, July 3, 1987), because the co-accused as a chance to cross-examine. 2) When the offer in evidence of an extrajudicial confession against a co-accused is not objected to. (People vs. Atienza, 86 Phil. 576) 3) When the co-accused against whom an extrajudicial confession is offered had, by his acts, conducts and declarations adopted the confession as his own. (People vs. Atienza, supra; People vs. Orencia, 47 Phil. 970) 4) Where several accused, without collusion, made extrajudicial confessions which are identical in essential details and corroborated by other evidence, such confession is admissible against the others. (People vs. Pelonia, L-14624, July 24, 1960) 5) The confession of a conspirator is admissible against his co-conspirator provided it was made during the existence of the conspiracy. (Sec. 30, Rule 130, ROC; People vs. Ramirez, L-5875, May 15, 1953)

14 6) When the recitals in the extrajudicial confession of an accused is corroborated in its important details by other proofs in the record, it may be admitted against the other accused. (People vs. Villanueva, L-12687, July 31, 1962) f. Extrajudicial confessions identical in material respects (also known as interlocking confessions) admissible against all declarants: 1) As circumstantial evidence. Extrajudicial confessions independently made without collusion and are identical with each other in their material respects and confirmatory of the other are admissible as circumstantial evidence against co-accused implicated therein to show the probability of the latter's actual participation in the commission of the crime. (People vs. Encipido, et al., 146 SCRA 492) 2) As corroborative evidence. They are admissible as corroborative evidence against the other accused, if it is clear from other facts and circumstances presented that persons other than the declarants themselves participated in the commission of the crime charged and proved. (Ibid.) They are what is commonly known as interlocking confession and constitute an exception to the general rule that extrajudicial confessions/admissions are admissible in evidence only against the declarants thereof. (Ibid.) The invocation of amnesty is in the nature of a plea of confession and avoidance, which means that the pleader admits the allegations against him, but disclaims liability therefor on account of intervening facts which, if proved, would bring the crime charged within the scope of the amnesty proclamation. (People vs. Salig, et al., 133 SCRA 69 citing Vera vs. People, 7 SCRA 153) ***29. What is meant by corpus delicti? Give examples. SUGGESTED ANSWER: a. It refers to a particular crime and signifies that the specific offense had been actually committed by someone, being composed of two elements: certain results were produced, and someone is criminally responsible. (People vs. Marquez, 77 Phil. 83) b. It also means actual commission of the crime charged. (People vs. Madrid, 88 Phil. 1; People vs. Sanchez, 89 Phil. 423), or the specific fact of loss or injury. (People vs. Garcia, 99 Phil. 381) NOTES AND COMMENTS: a. Examples of corpus delicti: a. In murder or homicide, the corpus delicti is the fact of death (People v. Garcia, 99 Phil. 381), which may be proved even circumstantially. (People vs. Sasota, 91 Phil. 111; People vs. Moro Ansang, 93 Phil. 44). b. In robbery or theft, the fact of loss. (People vs. Niem, 75 Phil. 668) c. In arson, the fact of burning, (People vs. Marquez, 77 Phil. 83; People vs. Mones, 58 Phil. 46) d. In an affray, the fact that pistol shots were heard and a bystander was killed by one of the shots constitute evidence of corpus delicti, which is the violent death of a person, whether feloniously caused or not. (People vs. Nocum, 77 Phil. 1018) Conviction for murder proper even if victims body is not produced : In all crimes against persons in which the death of the victim is an essential element of the offense, there must be satisfactory evidence of the fact of death and the identity of the victim that a crime has been committed which is what corpus delicti really means. The failure of the prosecution to produce the body of the victim does not imply the absence of corpus delicti for the term does not refer to the body of the murdered person. (People vs. Centeno, et al., 130 SCRA 209) PREVIOUS CONDUCT AS EVIDENCE ***30. Is previous conduct admissible in evidence ? Explain. SUGGESTED ANSWER: Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same thing or a similar thing at another time. (Sec. 34, Rule130, ROC) NOTES AND COMMENTS: a. Rationale behind the prohibition: Evidence of similar acts or occurrences compels the defendant to meet allegations that are not mentioned in the complaint, confuses him in his defense, raises a variety of irrelevant issues, and diverts the attention of the court from the issues immediately

15 before it. (Cruz, et al., vs. Court of Appeals, G.R. No. 126713, prom. July 27, 1998 citing Sec. 34, Rule 130 of the Rules of Court) b. Exception or when previous conduct admissible in evidence: Evidence that one did or did not do a certain thing at one time may be received in evidence to prove a) a specific intent or knowledge, b) identity, plan, system, scheme, c) habit, custom or usage, and the like. (Sec. 34, Rule 130, ROC rephrasing, arrangement and numbering supplied) HEARSAY RULE ***31. Explain the meaning of the hearsay rule. SUGGESTED ANSWER: a. A witness can testify b. only to those facts c. which he knows of his personal knowledge; d. that is which are derived from his own perception, e. except as otherwise provided in these rules (Sec. 36, Rule 130, ROC arrangement and numbering supplied) of Court. Consequently, facts which are not derived from the perception of the witness is hearsay, and not admissible. The rule is not limited to oral testimony, it also includes writings. (20 Am. Jur. 400) NOTES AND COMMENTS: a. Examples of hearsay evidence: 1) The testimony of a witness as to what he has heard another person say about the facts in dispute. (People vs. Reyes, 76 Phil. 354; Aldecoa & Co., vs. Warner Barnes & Co., 30 Phil. 153) NOTE: See concept of independent relevant statement. 2) Affidavits. (Marisfosque vs. Luna, L-9095, May 25, 1957; People vs. Pagkaliwagan, 76 Phil. 457) 3) A letter offered in evidence to establish the facts in issue. (Pastor vs. Gaspar, 2 Phil. 592; People vs. Carlos, 47 Phil. 626) 4) A medical certificate to the extent of the injuries found by the doctor on the offended party's body. (De Guia vs. Meralco, 40 Phil. 706) 5) A resolution of the municipal council of a certain municipality as to the character of an accused in a criminal case. (U.S. vs. Tanjuatco, 1 Phil. 374) b. Theory of the hearsay rule: When a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of inference, and therefore the assertion can be received as evidence only when made on the witness stand, subject to the test of cross-examination. c. Rationale behind the non-admissibility of hearsay evidence: 1) A witness can testify only to those facts which he knows of his own knowledge; and 2) To preserve the right of parties to cross-examine the original witness or person claiming to have knowledge of the transaction or occurrence. (People vs. Pagkaliwagan, 76 Phil. 457) The right to cross-examine the adverse party's witnesses is essential in the administration of justice for it is the only means of testing the credibility of witnesses and their testimony, and this right is not available in respect of hearsay evidence since he declarant is not in court. (Donnelly vs. U.S., 228 U.S. 243) d. General rule: Affidavits without presenting affiant in court is mere hearsay: The constitutional right to confrontation precludes reliance on affidavits. Such a constitutional safeguard cannot be satisfied unless the opportunity is given to the accused to test the credibility of any person, who, by affidavit or deposition would impute the commission of an offense to him. It would be to disregard one of the most valuable guarantees of a person accused if solely on the affidavits presented, his guilt could be predicated. (People vs. Santos, et al., 139 SCRA 586-587 citing People vs. Lavarez, 23 SCRA 1301) e. Exceptions: when affidavits are given weight:

16 1) Where said affidavits are overwhelming, uncontroverted by competent evidence and not inherently improbable. (Top-Weld Manufacturing, Inc. vs. ECED, S.A., et al., 138 SCRA 132) 2) Under the Rule on Summary Procedure for civil cases; 3) When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct hat the matter be heard wholly or partly on oral testimony or depositions. (Sec. 7, Rule 133, ROC) EXCEPTIONS TO THE HEARSAY RULE 32. What are the exceptions to the hearsay rule ? SUGGESTED ANSWER: There are certain instances, where by reasons of convenience and public policy, matters usually considered as hearsay are admissible in evidence. Among such exceptional instances are: a. Dying declaration (Sec. 37, Rule 130, ROC); b. Declaration against interest (Sec. 38, Ibid.) c. Act or declaration about pedigree (Sec. 39, Ibid.); d. Family reputation or tradition regarding pedigree (Sec. 40, Ibid.) e. Common reputation (Sec. 41, Ibid.); f. Part of the res gestae (Sec. 42, Ibid.); g. Entries in the course of business (Sec. 43, Ibid.); h. Entries in official records (Sec. 44, Ibid.); i. Commercial lists and the like (Sec. 45, Ibid.); j. Learned treatises (Sec. 46, Ibid.); k. Testimony or deposition at a former proceeding (Sec. 47, Ibid.) ***33. Explain and illustrate the concept of an independent relevant statement. SUGGESTED ANSWER: It is a statement intended not to establish the truth of the facts asserted in that statement, but to establish only the tenor of the statement, not the truth of the facts therein asserted. Illustration: In a libel case, if the prosecution witness testifies that he heard the accused say that the complainant was a rapist, this testimony is admissible not to prove that the complainant was really a rapist, but merely to show what the accused uttered. Independent relevant statements are hearsay in character but not legal hearsay. hence they are not considered as exceptions to the hearsay rule. ***34. Explain the concept of dying declaration as an exception to the hearsay rule. SUGGESTED ANSWER: a. The declaration of a dying person, b. made under consciousness of an impending death, c. may be received in any case wherein his death is the subject of inquiry, d. as evidence of the cause and surrounding circumstances of such death. (Sec. 37, Rule 130, ROC arrangement and numbering supplied) NOTES AND COMMENTS: a. Rationale behind admitting dying declaration or why dying declaration is an exception to the hearsay rule: 1) Necessity, because the declarant's death makes it impossible to obtain testimony in court and, usually, in crimes against persons, the victim's testimony is the best evidence of the crime. (U.S. vs. Virrey, 37 Phil. 618) 2) Trustworthiness, because it is made at the point of death, a situation so solemn and awful as creating an obligation equal to that created by a positive oath administered in a court of justice. (U.S. vs. Gil, 13 Phil. 530) b. Requisites of ante-mortem statement: a. It must concern any case involved in and the circumstances surrounding the declarant's death; b. At the time of the declaration, the declarant must be conscious of impending death; c. The declarant must be competent as a witness; d. The declaration must be offered in any case wherein the death of the declarant is the subject of inquiry; and

17 e. The declarant actually died, otherwise, the declaration may be admitted as part of the res gestae and not as a dying declaration c. Victim need not state that he has lost all hope of recovery. It is sufficient that circumstances are such as to inevitably lead to the conclusion that at the time the declaration was made, the declarant would not expect to survive the injury from which he actually died. The degree and seriousness of the wounds and the fact that death supervened thereafter constitute substantial evidence of the victim's consciousness of his impending death. (People vs. Tanaman, et al., G.R. No. 71768, July 28, 1987) d. Dying declaration has weight even if declarant did not die immediately after his declaration: The fact that the declarant died four (4) hours after his statement does not diminish the probative value of the dying declaration since it is not indispensable that the a declarant expires immediately thereafter. It is the belief of impending death and not the rapid succession of death that renders the dying declaration admissible. (People vs. Bautista, G.R. No. 111149, prom. September 5, 1997) Mere gesture of dying victim inconclusive: The gesture of a dying woman in pointing to a direction, when asked for the identity of her assailant, is too vague to be given such probative value in determining the culpability of the accused. REASON: Unlike an oral or a written declaration, a simple gesture of the hand unaccompanied by words, is open to various interpretations by the witness who testifies To its existence. Thus, the evidence comes to the court couched in the witness' second hand perception and possibly, imbued with his personal meanings and biases. This is what makes hearsay evidence objectionable. The second hand evidence is placed before the court without the benefit of cross-examination by the party against whom it is brought, nor of any other means of assessing the competence and credibility of the source. (People vs Ola, G.R. No. L-47147, July 3, 1987) 35. What are the requisites for admissibility of declaration against interest? Distinguish declaration against interest from admission. SUGGESTED ANSWER: a. The declaration is made by 1) a person deceased, or 2) unable to testify, b. against the interest of the declarant, c. if the fact asserted in the declaration 1) was at the time it was made 2) so far contrary to declarant's own interest, 3) that a reasonable man in his position a) would not have made the declaration b) unless he believed it to be true. (Sec. 38, Rule 130, ROC arrangement and numbering supplied) NOTES AND COMMENT: a. Declaration against interest distinguished from admission: 1) An admission is not necessarily against the interest of the admitter WHILE the declaration must be against the declarant's own interest; 2) An admission may be received even if the admitter is alive WHILE the declarant must be dead or is unable to testify; 3) An admission may be received in evidence only against the admitter and those identified with him in legal interest WHILE the declaration may be received even against third persons. (Smith vs. Moore, 142 N.C. 277) b. When declaration against interest received in evidence: 1) Against the declarant; 2) Against his successors in interest; and 3) Against third persons. (Sec. 38, Rule 130, ROC, arrangement and numbering supplied) ***36. Explain the concept of res gestae. SUGGESTED ANSWER: A matter incidental to the main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of the transaction, and without a knowledge of which the main fact might not be properly understood. 20 Am. Jur. 553) NOTES AND COMMENTS: What is admissible as part of res gestae is not the details of an occurrence, but the human assertions or statements about those details. (20 Am. Jur. 553-556)

18 Rationale behind admissibility of res gestae or why res gestae is an exception to the hearsay rule: 1) Necessity because such natural and spontaneous utterances are more convincing than the testimony of the same person on the stand. (Mobile vs. Ascraft, 48 Ala. 31) 2) Trustworthiness because these statements are made instinctively. (Wesley vs. Sate, 53 Ala. 182) ***37. What are the requisites for spontaneous exclamations as part of the res gestae? SUGGESTED ANSWER: a. The res gestae is an equivocal act. b. The equivocal act must be material to the issue. c. The statement or question must be necessary for the understanding of the equivocal act. d. The statement must accompany the equivocal act. (Tracy's Handbook, 62 Ed., p. 222) ***38. Give examples of spontaneous exclamations as part of the res gestae. SUGGESTED ANSWER: a. A conversation between two accused immediately after the commission of the crime overheard by prosecution witnesses. (People v. Reyes, 82 Phil. 563) b. A statement made by a wounded person shortly after a violent occurrence heard by another. c. The statement made by a shooting victim to persons who answered his cries for help that the accused shot him. 39. What is the nature of expert opinions? SUGGESTED ANSWER: Expert opinions are not ordinarily conclusive in the sense that they must be accepted as true on the subject of their testimony, but are generally regarded as purely advisory; the courts may place whatever weight they choose upon such testimony and may reject it, if they find that it is inconsistent with the facts in the case or otherwise unreasonable. ((Punzalan vs. Commission on Elections, et al., G.R. No. 126669; Meneses vs. Commission on Elections, et al., G.R. No. 127900; Punzalan vs. Commission on Elections et al., G.R. No. 12880; and Punzalan vs. Commission on Elections, G.R. No. 132435 prom. April 27, 1998 citing Francisco on Evidence, Vol. VII, Part 1, p. 662) NOTES AND COMMENTS: Testimony of handwriting expert not indispensable to COMELEC. Handwriting experts, while probably useful, are not indispensable in examining or comparing handwriting; this can be done by the COMELEC itself. It was ruled by the Supreme Court that evidence aliunde is not allowed to prove that a ballot is marked, an inspection of the ballot itself being sufficient. ((Punzalan vs. Commission on Elections, et al., G.R. No. 126669; Meneses vs. Commission on Elections, et al., G.R. No. 127900; Punzalan vs. Commission on Elections et al., G.R. No. 12880; and Punzalan vs. Commission on Elections, G.R. No. 132435 prom. April 27, 1998 citing Bocobo vs. COMELEC, 191 SCRA 576 in turn citing Penson vs. Parungao, 52 Phil. 718) CHARACTER EVIDENCE PRESUMPTIONS 40. What are the requisites for adverse presumption from suppression of evidence ? SUGGESTED ANSWER: a. The suppression is willful. (Sec. 3-e, Rule 131, ROC) continue b. The suppression is not in the exercise of a privilege. c. The evidence suppressed is not merely corroborative. d. The evidence is at the disposal only of the suppressing party. NOTES AND COMMENTS: Instances where adverse presumption from suppression of evidence does not apply: a. If the evidence is at the disposal of both parties. (People vs. Ducay, 225 SCRA 1) b. The suppression was not willful. c. The suppressed evidence is merely corroborative or cumulative. d. The suppression is an exercise of a privilege. (People vs. Navaja, 220 SCRA 624) 41. What is burden of proof ? SUGGESTED ANSWER:

19 a. Burden of proof is b. the duty of a party c. to present evidence d. on the facts in issue e. necessary to establish his claim or defense f. by the amount of evidence g. required by law. (Sec. 1, Rule 131, ROC, arrangement and numbering supplied. NOTES AND COMMENTS: a. Risk of non-persuasion is another term for burden of proof. The burden of proof lies upon the party who would be defeated if no evidence were given on either side. b. Burden of evidence the duty resting upon a party, by means of evidence, to create or meet a prima facie case. (McCloskey vs. Koplar, 92 .A.L.R. 641) Each party must prove his affirmative allegation. Since the burden of evidence lies with the party who asserts an affirmative allegation, the plaintiff or complainant has to prove his affirmative allegations in the complaint and the defendant or respondent has to prove the affirmative allegations in his affirmative defenses and counterclaims. (Jimenez, et al, vs. NLRC, et al., G.R. No,. 116960, prom. April 2, 1996) c. Duty of going forward with the evidence or burden of going forward is another term for burden of evidence. (Demeules vs. Sewel Tea Co., 103 Minn. 150) Illustration of going forward with the evidence: For example after the existence of a debt has been proven by the creditor the burden of proving payment devolves upon the debtor. Where the debtor introduces evidence of payment, the burden of going forward with the evidence - as distinct from the general burden of proof- shifts to the creditor who is then under the duty of producing evidence to show non-payment. (Jimenez, et al, vs. NLRC, et al., G.R. No,. 116960, prom. April 2, 1996) In short, the burden of going forward is the burden of producing evidence. 42. What is the doctrine of equipoise? SUGGESTED ANSWER: Where the evidence on an issue of fact is in equipoise or there is doubt on which side the evidence preponderates, the party having the burden of proof fails upon that issue. (Rivera vs. Court of Appeals, et al., G.R. No. 115625, prom. January 23, 1998 citing Francisco, Evidence, p. 555, second edition) Therefore, as neither party was able to make out a case, neither side could establish its cause of action and prevail with the evidence it had. They are thus no better off than before they proceeded to litigate, and, as a consequence thereof, the courts can only leave them as they are. (Rivera, supra citing Municipality of Candijay, Bohol vs. Court of Appeals, 251 SCRA 530) NOTES AND COMMENTS: a. Burden of proof distinguished from burden of evidence: Burden of proof does not shift during the course of the trial; it remains with the party upon whom the law cast it at the beginning of the trial. (Southern R. Co. v. Prescott, 240 U.S. 632) On the other hand, burden of evidence shifts or passes from side to side as the trial progresses and evidence is introduced. (Ibid.) b. The plaintiff has the burden of proof in civil cases: 1) In civil cases, the burden of proof is on the party who would be defeated if no evidence is given on either side. The party who alleges a fact has the burden of proving it. (Pacific Banking Corporation Employees Organization, et al., vs. Court of Appeals, et al., G.R. No. 109373 and The President of the Philippine Deposit Insurance Corporation, etc., vs. Court of Appeals, et al., G.R. No. 112991, prom. March 27, 1998 citing Trans-Pacific Supplies, Inc. vs. Court of Appeals, 235 SCRA 494) 2) In civil cases, the burden of proof rests upon the party who, as determined by the pleadings or the nature of the case asserts affirmative allegations of an issue. (Rodriquez vs. Valencia, 81 Phil. 787) REASON: He who asserts and not he, who denies, must prove. (Lagasca vs. De Vera, 79 Phil. 376) The party who asserts the affirmative would lose as to a particular issue or the entire case, if no evidence were given on either side. (Ibid., citing Sec. 1, Rule 131, ROC) c. Prosecution has burden of proof in criminal cases : In criminal cases the burden of proof as to the offense charged lies on the prosecution. A negative fact alleged by the prosecution need not be proved unless it is an essential ingredient of the offense charged. REASON: The accused has in his favor the presumption of innocence.

20 d. Burden of proof in infringement cases: The burden of proof to substantiate a charge of infringement is with the plaintiff. But where he plaintiff introduces the patent in evidence, and the same is in due form, there is created a prima facie presumption of its correctness and validity. The decision of the Commissioner of Patent (now the Director of the Intellectual Property Office), in granting the patent is presumed to be correct. The burden of going forward with the evidence (burden of evidence) then shifts to the defendant to overcome by competent evidence this legal presumption. (Maguan vs. Court of Appeals, et al., 146 SCRA 116, 117) ORDER OF PRESENTATION OF EVIDENCE 43. State the order of presentation of evidence if trial is to be heard in order to adduce evidence. SUGGESTED ANSWER: a. The plaintiff shall adduce evidence in support of his complaint; b. The defendant shall then adduce evidence, in support of his defense, counterclaim, crossclaim and third-party complaint; c. The third-party defendant, if any, shall adduce evidence of his defense, counterclaim, crossclaim and fourth-party complaint; d. The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them; e. The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court; f. The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case; and g. Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda, or any further pleadings. If several defendants or third-party defendants, and so forth, having separate defenses appear by different counsel, the court shall determine he relative order of presentation of their evidence. (Sec. 5, Rule 30, ROC arrangement and numbering supplied) NOTES AND COMMENTS: a. Scope of judges participation at trial : A judge who presides at a trial is not a mere referee. He must actively participate therein by directing counsel to the facts in dispute, by asking clarifying questions, and by showing an interest in a fast a fair trial. (Clarin vs. Yatco, 56 O.G. 7042, Nov. 14, 1960) He can interrogate witnesses to elicit the truth, to obtain clarification, or to test their credibility. (People vs. Moreno, 83 Phil. 286) However, this power must be exercised by the court sparingly and judiciously. (People vs. Ferrer, 44 O.G. 112). Of course, the judge cannot curtail counsel's right to interrogate witnesses. (People vs. Bedia, 83 Phil. 909) b. Power of court to stop further evidence: 1) The court may stop 2) the introduction of further testimony 3) upon any particular point 4) when the evidence upon it is already so full 5) that more witnesses to the same point 6) cannot be reasonably expected 7) to be additionally persuasive. But this power should be exercised with caution. (Sec. 6, Rule 133, ROC arrangement and numbering supplied) When the evidence already presented on one point is sufficient and the party merely seeks to present cumulative evidence which cannot produce additional persuasive effect or that he is not sure of what the other witnesses would testify, the court may in its sound discretion stop the introduction of such further evidence. (People vs. Reyes, et al., 133 SCRA 51) c. Role of attorney during presentation of evidence: An attorney has a dual role to perform relative to proving the truth respecting a matter of fact. He must ensure that all evidence supporting the material allegations, whether raised in the pleadings or not are admitted by the court. His other role is to block the admission of evidence supporting his opponents' material allegations whether raised in the pleadings or not.

21 In order to perform this dual role the attorney should ensure that the evidence he offers are admissible in accordance with the Rules of Court and those of his opponent are properly objected to for being inadmissible 44. What is the rationale for requirement of offer of evidence? SUGGESTED ANSWER: The offer is necessary because it is the duty of a judge to rest his findings of facts and his judgment only and strictly upon the evidence offered by the parties to the suit. (Mr. Chief Justice Moran cited in People v. Franco, G.R. No. 118607, prom. March 4, 1997) NOTES AND COMMENTS: Evidence not formally offered not considered on appeal. Evidence is not formally offered before the trial court cannot be considered on appeal. To consider them at this stage will deny the other parties their right to rebut them. (Service wide Specialists, Inc. vs. Court of Appeals, et al., G.R. No. 117728, prom. June 26, 1996) ***45. What is meant by present recollection revived ? SUGGESTED ANSWER: A witness may be allowed to refresh his memory respecting a matter of at by referring to anything: a. Written or recorded by himself or under his direction; b. At the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory; c. He knew that the same was correctly written or recorded. But in such case the writing must be produced and may be inspected by the adverse party who may, if he chooses, cross-examine the witness upon it, and may read it in evidence. (Sec. 16, Rule 132, ROC) NOTES AND COMMENTS: The concept of past recollection recorded. A witness may testify from such writing or record though he retains no recollection of the particular facts, if he is able to swear that the writing or record correctly stated the transaction when made, but such evidence must be received with caution. (Sec. 16, Rule 132, ROC) to ? 46. What is the effect of inadmissible evidence that has not been properly objected

SUGGESTED ANSWER: It is a well-settled doctrine that where the proponent offers evidence deemed by counsel of the adverse party to be inadmissible for any reason, the latter has the right to object. A protest or objection against the admission of any evidence must be made at the proper time, and that if not so made it will be understood to have been waived. The proper time to make a protest or objection is when, from the question addressed to the witness, or from the answer thereto, or from the presentation of proof, the inadmissibility of evidence is, or may be inferred. (British Airways vs. Court of Appeals, et al., G.R. No. 121824, January 29, 1998 citing Abrenica vs. Gonda, 34 Phil. 739) Cross-examination conducted to the inadmissible evidence may constitute waiver. (British Airways, supra) 47. How is the adverse partys witnesses impeached ? SUGGESTED ANSWER: a. By contradictory evidence. b. By evidence that his general reputation for truth, honesty, or integrity is bad. c. By evidence that he has made at other times statements inconsistent with his present testimony. But not by evidence of particular wrongful acts, except that it may be shown by the examination of the witnesses, or the record of the judgment that he has been convicted of an offense. (Sec. 11, Rule 132, ROC) NOTES AND COMMENTS: The concept of laying the predicate. It is the duty of the party trying to impugn the testimony of a witness by means of prior or, for that matter, subsequent inconsistent statements, whether oral or in writing, to give the witness a chance to reconcile his conflicting declarations, such that it is only when no reasonable explanation is given by him that he should been deemed impeached. (People vs. Relucio, 86 SCRA 242) 48. What is the evidence required in civil cases ? SUGGESTED ANSWER: The party having the burden of proof must establish his case by a preponderance of evidence. (Section 1, Rule 133, ROC)

22 NOTES AND COMMENTS: Preponderance of evidence is evidence which is of greater weight, or more convincing that that which is offered in opposition to it. (National Power Corporation vs. Court of Appeals, et al., G.R. No. 122195, prom. July 23, 1998 citing New Testament of God v. Court of Appeals, 246 SCRA 266) 49. What are the requisites for sufficiency of circumstantial evidence ? SUGGESTED ANSWER: a. There is more than one circumstance. b. The facts from which the inferences are derived are proven. c. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. (Sec. 4, Rule 133, ROC)