THE Hearsay Rule
DYING DECLARATION vs. RES GESTAE
Testimonial Knowledge –
•What can a witness testify to?
A witness can testify only to those facts which
he knows of his personal knowledge ~~those
which are derived from his own perception,
except as otherwise provided in these rules.
The hearsay evidence rule applies also to
affidavits when the supposed affiant never
identified the affidavit and there was no
opportunity for the prosecution to cross-examine
him/her.
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.
TWO CONCEPTS OF HEARSAY EVIDENCE:
1. Second hand information (not derived from
personal knowledge of witness)
2. Testimony by a witness derived from his
personal knowledge BUT the adverse party is
not given opportunity to cross-examine
Principle of Independently Relevant Statements
- Under this principle regardless of the truth or
falsity of a statement, the fact that such
statements have been made is relevant. The
hearsay rule does not apply, and the statements
are admissible as evidence. Evidence as to the
making of such statement is not secondary but
primary, for the statement itself may constitute a
fact in issue or be circumstantially relevant as to
the existence of such a fact.
- Independent relevant statements are hearsay
in character but not legal hearsay, hence they
are not considered as exceptions to the hearsay
rule.
EXCEPTIONS TO THE HEARSAY RULE:
I. Dying Declaration – Declaration was made
under the consciousness of an impending death
•Declaration refers to cause and surrounding
circumstances of the death of the declarant
II. Res Gestae –
-Statements made by a person while a starting
occurrence is taking place or immediately prior
or subsequent thereto with respect to the
circumstances thereof
- Statements accompanying an equivocal act
material to the issue and giving it legal
significance
TWO CONCEPTS:
A. Spontaneous Statements
B. Statements accompanying Equivocal Acts
•Equivocal means ambiguous; capable of
different interpretations.
Time when statements made: DYING
DECLARATION- statements must be made after
the injury has been inflicted upon the applicant.
RES GESTAE- in so far as startling occurrence
is concerned, the statements could be made
prior or simultaneous with or after the startling
occurrence.
Death of declarant: DYING DECLARATION-
declarant must die
RES GESTAE- no need for declarant to die
Declarant: DYING DECLARATION- must be the
victim
RES GESTAE- anybody
III. Declaration Against Interest –
REQUISITES:
a. The declaration is made by
1) a person deceased, or
2) unable to testify [i.e. in foreign country or
physical/mental impairments]
b. against the interest of the declarant,
[declarant MUST KNOW that it is against his
interest]
c. if the fact asserted in the declaration was at
the time it was made so far contrary to
declarant's own interest, that a reasonable man
in his position would not have made the
declaration unless he believed it to be true.
IV. Pedigree –
By whom made: person deceased, or unable to
testify
Subject of declaration/act: pedigree of another
person related to him by birth or marriage
When admissible: occurred before the
controversy, and the relationship between the
two persons is shown by evidence other than
such act or declaration.
Pedigree - includes relationship, family
genealogy, birth, marriage, death, the dates
when and the places where these fast occurred,
and the names of the relatives. It embraces also
facts of family history intimately connected with
pedigree.
V. Family Tradition –
Subject of exception: reputation or tradition
existing in a family previous to the controversy,
in respect to the pedigree of any one of its
members, may be received in evidence if the
witness testifying thereon be also a member of
the family, either by consanguinity or affinity.
•Entries in family bibles or other family books or
charts, engravings on rings, family portraits and
the like, may be received as evidence of
pedigree.
VI. Common Reputation –
•What are admissible?
- Common reputation existing previous to the
controversy, respecting facts of public or general
interest > 30 years old, or respecting marriage or
moral character, may be given in evidence.
- Monuments and inscriptions in public places
may be received as evidence of common
reputation
Principle of NEGATIVE REPUTE
If in a community nothing good or bad is heard
about a particular person, the presumption is
that he is really a good person, because that
flows from the established principle in
substantive law that everyone is acting in good
faith.
VII. Entries in the Course of Business
When made: Entries made at, or near the time
of transactions to which they refer
By whom made: by a person deceased, or
unable to testify, who was in a position to know
the facts therein stated,
VIII. Official Records –
When made: Entries made at, or near the time
of transactions to which they refer.
By whom made: by a person deceased, or
unable to testify, who was in a position to know
the facts therein stated,
Treatment of such evidence: prima facie
evidence, if such person made the entries in his
professional capacity or in the performance of
duty and in the ordinary or regular course of
business or duty.
IX. Commercial Lists –
Evidence of statements of matters of interest to
persons engaged in an occupation contained in
a list, register, periodical, or other published
compilation is admissible as tending to prove the
truth of any relevant matter so stated if that
compilation is published for use by persons
engaged in that occupation and is generally
used and relied upon by them therein.
X. Learned Treatises –
A published treatise, periodical or pamphlet on a
subject of history, law, science, or art is
admissible as tending to prove the truth of a
matter stated therein if the court takes judicial
notice, or a witness expert in the subject
testifies, that the writer of the statement in the
treatise, periodical or pamphlet is recognized in
his profession or calling as expert in the subject.
XI. Prior Testimony –
By whom made: a witness deceased or unable
to testify,
When given: in a former case or proceeding,
judicial or administrative, involving the same
parties and subject matter,
When admissible: may be given in evidence
against the adverse party who had the
opportunity to cross-examine him.
•"Unable to testify” refers to an inability
proceeding from a grave cause almost
amounting to death as when the witness is old
and has lost the power of speech.
Conduct –
•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 or similar thing at
another time; but it may be received to prove a
specific intent or knowledge; identity, plan,
system, scheme, habit, custom or usage, and
the like.
Character –
General Rule: Character evidence is not
admissible, [because it is purely circumstantial]
•exceptions-
1.In criminal cases –
- Accused = may prove his good moral character
which is pertinent to the moral trait involved in
the offense charged.
- Prosecution = may not prove his bad moral
character unless in rebuttal.
- Offended Party = his/her good or bad moral
character may be proved if it tends to establish
in any reasonable degree the probability or
improbability of the offense charged.
2.In civil cases –
- Evidence of the moral character of a party in a
civil case is admissible only when pertinent to
the issue of character involved in the case.
- Witness = Evidence of his/her good character
is not admissible until such character has been
impeached.
Opinion Rule –
General Rule: The opinion of a witness is not
admissible (R130, ß48)
Except:
1. Expert witness: opinion of a witness on a
matter requiring special knowledge, skill,
experience or training which he shown to
possess
2. Ordinary witness: The opinion of a witness for
which proper basis is given, may be received in
evidence regarding —
(a)The identity of a person about whom he has
adequate knowledge;
(b)A handwriting with which he has sufficient
familiarity; and
(c)The mental sanity of a person with whom he
is sufficiently acquainted.
(d)The witness may also testify on his
impressions of the emotion, behavior, condition
or appearance of a person.