Romano, Cherry Jean O.

POLYTECHNIC UNIVERSITY OF THE PHILIPPINES

College of Law
Manila
REMEDIAL LAW REVIEW 2
FINAL EXAMINATION 20 January 2021

1. The accused in the crime of murder was identified during the police
line-up by two witnesses. In the course of the trial before the
Regional Trial Court, it was disclosed that these witnesses were not
at the place and at the time of the stabbing incident leading to the
death of the victim. They are therefore not eyewitnesses. It was
shown that they were instructed by the police personnel in the police
station to point out that the accused as the one who killed the victim
so as to solve the case with dispatch. As the prosecutor handling this
case, how will you solve this error? Explain. (5%)
Answer:
As the prosecutor, I will resolve this error by presenting the
witnesses in open court to identify the accused.

Under the new Rules, a statement is not a hearsay if the declarant

testifies at the trial and his statement, which must include the
identification of accused, is subjected to cross-examination by the
other party.

2. Generally, courts are not authorized to take judicial notice of the

contents of the records of other cases. This is true even when said
cases have been tried or are pending in the same court or before the
same judge. Give the exceptions, if any. (5%)
Answer:

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The following are the exceptions:
a. in the absence of objection and with the knowledge of the
opposing party, the contents of said other case are clearly
referred to by title and number in a pending action and adopted or
read into the record of the latter; or
b. when the original record of the other case or any part of it is
actually withdrawn from the archives at the court’s discretion
upon the request or with the consent of the parties and admitted
as part of the record of the pending case.

3. Mr. R and Mr. O entered into a contract of sale of a piece of land,

specifically a “Conditional Deed of Sale With A Right to Repurchase.”
The “deed” was recorded in the primary entry book of the Register of
Deeds in Tuguegarao City where the property is situated.
Accordingly, the deed was annotated in the TCT. After full payment
of the purchase price and compliance with all the conditions of the
contract, the buyer, Mr. O, demanded from Mr. R, the seller, the
execution of an “Absolute Deed of Sale.” Mr. R refused. A legal
controversy was then brought in court. One of the pieces of evidence
presented by complainant Mr. O was the Annotation in the Transfer
Certificate of Title (TCT) showing the description of the deed of sale
in lieu of the “Deed of Sale With A Right to Repurchase.” The same
is offered to prove the contents of their agreement. Is the
presentation of the document objectionable? Reason. (5%)

Answer:
Yes. The Annotation in the Transfer Certificate of Title (TCT)
showing the description of the deed of sale in lieu of the “Deed of
Sale With A Right to Repurchase is objectionable on the ground
that it violates the Parol Evidence Rule.

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Under the parol evidence rule, when the terms of an agreement
have been reduced to writing, it is considered as containing all the
terms agreed upon and there can be, between the parties and
their successors in interest, no evidence of such terms other than
the contents of the written agreement. As such, it prevents the
introduction of evidence of prior or contemporaneous
negotiations and agreements that contradict, modify, or vary the
contractual terms of a written contract when the written contract
is intended to be a complete and final expression of the parties'
agreement

4. In the preceding problem, if you are trial judge how will you rule on
the objection, if any? Or if there is no objection raise, will you admit
the evidence? Why? (5%)
Answer:
As the trial judge, I will sustain the objection on the ground that it
violates the parol evidence rule.

If there was no objection raised, I now have the discretion

whether or not to admit the evidence depending on its relevance
to the fact in issue. As with all possible objections to the
admission of evidence, a party's failure to timely object is deemed
a waiver, and parol evidence may then be entertained.

5. Mr. R and Ms. C married in 2004. Their relationship, however, turned

sour, and, to ease their marital strain, Ms. C underwent psychological
testing. Still they separated in fact. Mr. R having a second copy of the
confidential report signed by Drs. X and Y, obtained a decree from
the Matrimonial Tibunal of Manila in Intramuros nullifying their
marriage. Their conjugal partnership was voluntarily dissolved by the
Regional Trial Court. Mr. R filed a petition for the annulment of his
marriage to Ms. C, citing the Confidential Psychiatric Evaluation. Ms.

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 C denied the allegations in her Answer as “unfounded” and
“irrelevant.” During the hearing, Mr. R tried to testify and identify the
contents of the Confidential Psychiatric Evaluation Report. Ms. C
objected on the ground that it violated the rule on privileged
communication between physician and patient. As the trial judge,
rule on the objection with reasons. (5%)

Answer:

As the judge, I will sustain the objection.

As held by the Supreme Court, physician-patient privilege bars not

only the testimony on the confidential information but also
documents embodying such information. In this case, Mr. R is
testifying as to the matters in the Psychiatric Evaluation Report
which is a part of the privilege. Hence, the objection must be
sustained.

6. This is a civil action for damages arising out of a quasi-delict incident,

i.e., the truck driver’s reckless driving causing two motor vehicles to
collide with each other. The plaintiff allegedly sustained a “whiplash”
injury. The following pieces of evidence were presented: (1)
testimonial evidence of the victim herself who is a physician and an
expert in neurology; (2) pictures depicting the incident causing an
injury on the victim’s arm; and (3) the medical report prepared by a
surgeon who conducted the medical operation of the victim. The
medical report was identified by the plaintiff who thoroughly
explained the report. In his offer of evidence, counsel for the plaintiff
insists that the testimony of the victim should be considered a
testimony of an expert. This was objected to by the defense. Rule on
the probative value of the evidence of the complainant with reasons.
(5%)

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Answer:

The testimony of the Plaintiff/victim that she sustained a

whiplash injury has no probative value.

As held by the Supreme Court in a case, the probative value of an

expert testimony does not lie in a simple exposition of the
expert's opinion, but its weight lies in the assistance that the
expert witness may afford the courts by demonstrating the facts
which serve as a basis for his opinion and the reasons on which
the logic of his conclusions is founded.

Here, the Plaintiff’s medical opinion cannot be given probative

value for the reason that she was not presented as an expert
witness. As an ordinary witness, she was not competent to testify
on the nature, and the cause and effects of whiplash injury.

The plaintiff’s testimony cannot be considered as a testimony of

an expert eventhough she is a physician herself and an expert in
neurology. Her testimony cannot have the force and effect of the
testimony of the surgeon who attended the operation and
executed the medical report.

7. In a criminal trial before the Sandiganbayan for malversation of

government funds, the Special Prosecutor of the Ombudsman
presented the audit report of the Auditors of the Commission on
Audit. The said reports were identified in the course of the trial by
the members of the audit team along with their affidavits. After the
offer of its evidence, the defense objected stating, among others,
that submission of the report and the affidavits are not sufficient
evidence for the prosecution. It is necessary that the credibility of the

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 witness should be presented and proven. The prosecution failed in
this respect, the defense adds. Resolve citing your reasons. (5%)

Answer:
The objection must be overruled.

Under the Rules on Evidence, a public document made in the

performance of a duty by a public officer is a prima facie evidence
of the facts stated therein. In this case, the audit report of the
Auditors of the Commission on Audit are to be considered as
public documents since they were made by the auditors in the
course of their duty and may be presented as prima facie evidence
without the necessity of presenting the auditors.

Therefore, the objection must be overruled.

8. In the course of a proceeding in a civil action, the plaintiff’s counsel,

during the re-direct examination, showed to their witness a document
which was not mark during the pre-trial nor mentioned in the judicial
affidavit. The defense, however, objected on the ground that its
presentation is improper and additionally the document is
inadmissible because it is a mere photo-copy and thus inadmissible
under the “original evidence rule.” Rule on the objection with
reasons. (5%)

Answer:

Objection must be sustained.

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While under the Revised Rules on Evidence, a duplicate is
admissible to the same extent as an original, it is still essential
that the same be marked during the pre-trial or identified in the
judicial affidavit of the person testifying on the same.

In this case, it was not marked or identified in the judicial

affidavit of the person testifying, thus it is inadmissible as
evidence. Therefore, the objection must be sustained.

9. During the presentation of the prosecution’s evidence, the accused

move for the suspension of the proceeding on the ground of a
prejudicial question. The accused avers that before the institution of
the criminal action for estafa, they already instituted a civil action
before another branch of the Regional Trial Court the issue of which
is who are the rightful officers of the corporation including the
treasurer. The accused here is the treasurer of the corporation. Thus,
there is still an issue to be resolved whether the movant/accused is
obliged to remit to the new treasurer the sums of money in her
possession belonging to the corporation. The civil action before the
Regional Trial Court is still pending. The prosecution, on the other
hand, opposed the motion for suspension of the proceeding
contending among others, that: (1) an intra-corporate controversy is
not a prejudicial question, and (2) the accused having been arraigned
it is now too late to move for the suspension of the proceeding.
Resolve. (5%)
Answer:

If I were the judge, I would grant the motion to suspend the

proceeding on the ground of prejudicial question.

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The following requisites must be present for a civil action to be
considered prejudicial to a criminal case as to cause the
suspension of the criminal proceedings until the final resolution of
the civil case:
(1) the civil case involves facts intimately related to those upon
which the criminal prosecution would be based;
(2) in the resolution of the issue or issues raised in the civil
action, the guilt or innocence of the accused would necessarily be
determined; and
(3) jurisdiction to try said question must be lodged in another
tribunal.

Here, the civil action in the RTC involved the question of who are
the rightful officers of the corporation, including the accused.
Thus, the issue is the authority of the said accused to act for and
behalf of the corporation. The elements of demand and
misappropriation bear relevance to the validity or invalidity of the
authority of the officers of the corporation. Since the alleged
offended party is the corporation, the validity of the demand for
the delivery rests upon the authority of the person making such a
demand on the company’s behalf. If the supposed authority of the
person making the demand is found to be defective, it is as if no
demand was ever made, hence the prosecution for estafa cannot
prosper.

10. Ms. A, was indicted in court for Slight Physical Injuries before
the Metropolitan Trial Court in Manila. Because of failure to appear
during the arraignment and pre-trial, the court issued a bench
warrant recommending bail of Php3,000.00 for her provisional liberty.
Upon discovery of the issuance of the warrant of arrest, the accused
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 submitted herself to the jurisdiction of the court and posted cash
bond for Php3,000.00. Thereafter, she filed a motion for preliminary
investigation claiming the she did not receive a subpoena from the
Office of the Prosecutor. Neither did she receive a subpoena from the
court. As presiding judge, resolve. (5%)
Answer:

As a judge I will resolve in favor of the prosecution.

In criminal cases, jurisdiction over the person may be acquired
through voluntary appearance. In this case, Ms. A presented
herself before the court hence, jurisdiction against her was
obtained by the court.

11. A complaint for murder was filed before the Office of the City
Prosecutor, Tandag City, Surigao Del Sur. After the required
preliminary investigation, the Supreme Court issued an Order
transferring the venue of the criminal action to Makati City, Metro
Manila. The judge issued a warrant of arrest on the basis of the
prosecutor’s certification alone. The records of the preliminary
investigation were still in Tandag City when the judge issued the
warrants. Is the issuance of the warrant proper? Why? (5%)
Answer:

Yes the issuance of the warrant of arrest is proper. The requirement of the
Rules for the determination of the judge of probable cause requires
personal examination of the affidavits or witnesses. Hence, he may rely on
the certificate issued by the prosecution after his personal examination of
the said certificate.

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12. Arrested for selling ”shabu,” Mr. J was brought to the Office of
the Prosecutor for inquest. Claiming that he was not selling a
dangerous drug and the evidence was planted by a police corporal,
he insisted the he should be given the opportunity to answer the
false accusation against him. As counsel for Mr. J, is preliminary
investigation a remedy available for him during the inquest
proceeding? If yes, explain stating how such remedy can be availed
of. If your answer is no, explain. (5%)

Answer:
Yes. Preliminary investigation may be availed of by Mr. J.

Under the Rules, a person arrested may ask for a preliminary

investigation in accordance with the Rules, but he must sign
a waiver of the provisions of Article 125 of the Revised Penal
Code, as amended, in the presence of his counsel.

13. At around 3:00 A.M., on 12 January 2020, police and civilian

operatives while on board a patrol car and a tricycle saw two
identified men rush out of a house and immediately boarded a jeep.
Suspecting that a crime had been committed, the police personnel
approached the house from where the men came and peeked
through the partially opened door. The police personnel saw Mr. D
holding an improvised tooter and a pink lighter. Beside him was his
live-in partner, Ms. N, who was holding an aluminum foil and
improvised burner. They sat facing each other at the living room.
This prompted the police personnel to enter the house, introduce
themselves, and arrest Mr. D and Ms. N. After an inquest, an
information for violation of R.A. No. 9165, the Dangerous Drugs Act
of 2002 was filed against them. Thereupon and before the
arraignment, the accused filed a Motion to Quash on the ground that
the court did not acquire jurisdiction over their persons the

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 warrantless arrest being unlawful. As the presiding judge, rule on the
motion. (5%)

Answer:
As the judge, I will deny the motion.

Under the Rules, for warrantless arrest, the legality of arrest

must be invoked during inquest proceedings and any defect
from arrest is cured when the after the accused has been
subjected to inquest.

In this case, the accused had been subjected to inquest.

Hence, the Motion to Quash questioning the legality of arrest

must be denied.

14. Arrested in a buy-bust operation, Mr. E was brought to the

police station where he was informed of his constitutional rights.
During the investigation, Mr. E refused to give any statement.
However, the arresting officer asked Mr. E to acknowledge in writing
that six (6) sachets of “shabu” were confiscated from him. Mr. E
consented and also signed a receipt for the amount of Php30,000.00
allegedly representing the “purchase price of the shabu.” At the trial,
the arresting officer testified and identified the documents executed
and signed by Mr. E. Mr. E’s lawyer did not object to the testimony.
After the presentation of the testimonial evidence, the prosecutor
made a formal offer of evidence which included the documents
signed by Mr. E. Mr. E’s lawyer objected to the admissibility of the
documents for being the “fruit of the poisoned tree.” Resolve the
objection with reasons. (5%)

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 Answer:
The objection must be sustained.

It is settled that the signature of an accused in the receipt of

property seized is inadmissible in evidence if it was obtained
without the assistance of counsel. The signature of the
accused on such a receipt is a declaration against his interest
and a tacit admission of the crime charged.

15. After the prosecution had rested and made its formal offer of
evidence, with the court admitting all of the prosecution evidence,
the accused filed a demurrer to evidence with leave of court. The
prosecution was allowed to comment thereon. Thereafter, the court
granted the demurrer, finding that the accused could not have
committed the offense charged. If the prosecution files a motion for
reconsideration on the ground that the court order granting the
demurrer was not in accord with the law and jurisprudence, will the
motion prosper? Explain. (5%)
Answer:
No. The motion will not prosper.
The motion for reconsideration will amount to double jeopardy as
the grant of the demurrer to evidence tantamounts to dismissal.
Under the rules, when the Court granted the demurrer to
evidence, it is tantamount to an acquittal of the accused,
considering that the evidence presented by the prosecution is
insufficient to convict the accused beyond reasonable doubt.
Consequently, if a motion for reconsideration was filed by the
prosecution as to the granting of the demurrer to evidence, it will
place the accused in double jeopardy.

Thus, the motion for reconsideration will not prosper.

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 16. A criminal information was filed in court charging Mr. A with
Attempted Homicide. Mr. A files a motion to quash the information on
the ground that no preliminary investigation was conducted. Will the
motion be granted? Why or why not? (5%)
Answer:

The motion must be denied.

The ground that no preliminary investigation is not one of the grounds for
the quashal of an information. Mr. A can instead file for a motion for
preliminary investigation.

17. Mr. D was accused of committing a violation of the Anti-

Terrorism Law. He was detained incommunicado, deprived of sleep,
and subjected to water torture. He later allegedly confessed guilt via
an affidavit. After trial he was acquitted on the ground that his
confession was obtained through torture, hence, inadmissible as
evidence.

In a subsequent criminal case for torture against those who deprived

him of sleep and subjected him to water torture, Mr. D was asked to
testify and to, among others, identify his above-said affidavit of
confession. As he was about to identify the affidavit, the defense
counsel objected on the ground that the affidavit is a fruit of a
poisonous tree. Can the objection be sustained? Explain. (5%)

Answer:
No, the objection cannot be sustained.

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 The defense that the affidavit is a fruit of a poisonous tree
and, therefore, inadmissible is a defense available to the
accused, and not by the State against him.
Here, it was Mr. D’s constitutional rights that were violated
resulting to the defense of the affidavit being a fruit of the
poisonous tree.
Therefore, the objection raised by the defense who were the
very reason for the its existence cannot be sustained.

18. Mr. X was arrested for the alleged murder of a 6-year old lad.
He was read his Miranda rights immediately upon being arrested. In
the course of his detention, X was subjected to three hours of non-
stop interrogation. He remained quiet until, on the 3 rd hour, he
answered “yes” to the question of whether “he prayed for
forgiveness for shooting down the boy.” The trial court, interpreting
X’s answer as admission of guilt, convicted him.

On appeal, X’s counsel faulted the trial court in its interpretation of

his client’s answer, arguing that X invoked his Miranda rights when
he remained quiet for the first two hours of questioning. Rule on the
assignment of error. (5%)

Answer:

The assignment of error is proper.

The Miranda doctrine requires that any person under

custodial investigation has the right to remain silent,
anything he says can and will be used against him in a court
of law, he has the right to talk to an attorney before being
questioned and to have his counsel present when being
questioned; and if he cannot afford an attorney, one will be
provided before any questioning if he so desires.

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 In our jurisdiction, the right to counsel espoused in the
Miranda doctrine. In this case, the confession of the accused
was without the assistance of the counsel. Hence, a violation
of his Miranda Rights.

19. Juano, a naturalized citizen of the United States of America

(USA) but formerly a Filipino citizen, executed a notarial will in
accordance with the laws of the State of California, USA. Juano, at
the time of his death, was survived by his niece Tacia, an American
Citizen the condominium unit of Juano located at Espana St.,
Sampaloc, Manila; a younger brother, Berto, who manages Juano’s
fish pond in Bayabas, Surigao del Sur, and a younger sister, Kristata,
who manages Juano’s rental condominium units in Cebu City, Juano’s
entire estate which he inherited from his parents is valued at Php500
million. Johnny appointed Tacia as executrix of his will. (A) Can
Juano’s notarial will be probated before the proper court in the
Philippines? (A) In the preceding problem, is Tacia qualified to be the
executrix of Juano’s notarial will? Reasons. (5%)

Answer:
No. Tacia is not qualified to be the executrix of Juano’s notarial
will.
Under the Rules, the executor of a will must be a resident of the
Philippines. In this case, Tacia, is an American citizen without a
residential address in the Phiilippines. Hence, she is not allowed
to be an executrix of Juancho’s will.

20. In a criminal action wherein you are the duly authorized private
prosecutor, you were confronted with what pieces of evidence you

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 are going to present to ensure the conviction of the accused in the
crime of Rape with Homicide wherein there is no direct evidence.
What is available are mere circumstantial evidence. Among the
circumstantial evidence are those which are hearsay but appears to
be admissible as an exception to the hearsay rule. These pieces of
evidence, however, is not covered by Sections 38, 39, 40, 41, 42, 43,
44, 45, 46, 47, 48 and 49 of Rule 130 of the Rules of Court. Face
with such predicament, what rule should you invoke so that the
evidence may be admitted? Specifically, what are the procedural
requirements so that the hearsay evidence of this nature will
admitted? (5%)

Answer:
Hearsay is now defined as a statement other than one made by
the declarant while testifying at a trial or hearing, offered to
prove the truth of the facts asserted therein. In order to be
admitted as evidence, hearsay must fall under residual exception.
The "Residual Exception" Rule states that the statement is more
probative on the issue for which it is offered than any other
evidence the party introducing the hearsay can obtain by
reasonable efforts, and the general purposes of the rules of
evidence and the interests of justice will be served by the
admission of the hearsay.

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