EVIDENCE: TESTIMONIAL EVIDENCE

Chapter III 4. As a general rule, a person who takes the stand as a witness, is
presumed to be qualified to testify. A party who desires to question the
TESTIMONIAL EVIDENCE competence of a witness must do so by making an objection as soon as
the facts tending to show incompetency are apparent (Jones, Vol. 3, §796).

Qualifications Of Witnesses
Qualifications of a witness

Sec. 20 of Rule 130, supplies the basic qualifications of a witness,

Nature of testimonial or oral evidence
namely:
1. Testimonial or oral evidence is evidence elicited from the mouth
(a) he can perceive; and in perceiving
of a witness as distinguished from real and documentary evidence
(Black's, 5th Ed., 1323). It is sometimes called viva voce evidence which
(b) he can make known his perception to others.
literally means "living voice" or by word of mouth. In this kind of
evidence, a human being is called to the stand, is asked questions, and
To these, we may add the following:
answers the questions asked of him. The person who gives the testimony is
called a "witness."
(a) he must take either an oath or an affirmation (Sec. 1, Rule 132,
Rules of Court); and
2. Recall that competent evidence means evidence that is not
excluded by the law or by the rules. It therefore, means the eligibility of an
(c) he must not possess the disqualifications imposed by law or
evidence to be admitted by the court. When applied to a witness,
the rules.
competence means that the witness is qualified to take the stand and
testify. It means that he is fit or that he is eligible to testify on a particular
matter in a judicial proceeding. If a witness cannot perceive or even if he
Oath or affirmation
can perceive he cannot remember what he has perceived, he is in-
competent to testify. If he has no personal knowledge of an event the truth
1. Taking an oath or affirmation is either rarely mentioned or
of which he wants to prove, he is also incompetent to testify. Competence
merely glossed over by commentators in discussing the qualifications of
of a witness therefore, refers to his personal qualifications to testify.
a witness to take the stand, although the rule requires that the
examination of a witness in a trial or hearing shall be done under oath or
3. Experience and plain observation will tell us that the
affirmation (Sec. 1, Rule 132, Rules of Court).
presentation and introduction of every kind of evidence, whether it be
object, demonstrative or documentary evidence, needs the intervention of a
2. A person is disqualified to be a witness if he is incapable of
witness. The admission of any evidence requires its identification by a
understanding the duty to tell the truth. An oath or affirmation is
witness. It is a legal truth that identification precedes authentication.
necessary for the witness to recognize the duty to tell the truth. The oath
Without a witness, no evidence can ever be authenticated. Even the so-
of a witness signifies that he is swearing to the Creator "to tell the truth
called "self-authenticating documents" need a witness to identify the
and nothing but the truth" and that if he does not, he will later on answer
document.
for all the lies the is guilty of. Of course, in the early stages of legal
history, this was concededly the underlying reason for requiring an oath

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before a witness testifies. In modern times, this reason may have been "No! I will not!"
obscured by a universal shift in moral values but the oath is nevertheless,
required as a rule even if to many, the oath appears merely to be a pious "Do you instead want to make an affirmation?"
incantation or a meaningless ritual which must be done to be allowed to
"1 won't do that either!"
testify.
The most likely scenario is of the court dismissing the proposed
3. The issue which a judge must resolve before a witness is
witness. Most likely that person will not be allowed to testify. This is
allowed to take the stand is whether the witness understands the nature of
because he failed to meet the oath or affirmation requirement.
an oath, realizes the moral duty to tell the truth, and understands the
prospects of being punished for a falsehood. This understanding is not
necessarily inferred from the age of the witness. One American case
(People us. Berry [1968] 260 CA2d 649,67 CR 312), ruled that it is not Ability to perceive
required that the understanding of the importance of an oath be a detailed
A witness must be able to perceive an event. Thus, it would be
one. It is enough that the witness understands and believes that some
absurd to ask a blind man what he saw, or a deaf person what he heard.
earthly evil will occur to him for lying.
Corollary to this capacity to perceive is the requirement that the witness
must have personal knowledge of the facts surrounding the subject matter
4. Any objection to the competency of a witness raises an issue of
of his testimony because Sec. 36 of Rule 130 explicitly requires that a
fact: whether or not the witness is capable of understanding the duty to
witness can testify only to those facts which he knows of his personal
tell the truth. The issue is addressed to judicial determination and in the
knowledge, i.e., those which are derived from his own perception. When
absence of a clear abuse of discretion, the trial court's findings will not be
the witness takes an oath or an affirmation to tell the truth, he cannot live
reversed (People us. Blagg [91970] 10 CA3d 1035,89 CR 446).
up to the oath without his ability to show that his testimony is based on his
personal knowledge. Without this personal knowledge, the witness lacks
5. Not all may want to take an oath for reasons of reli gion or the
the competence to testify. To illustrate:
lack of it. Thus, the rule in this jurisdiction, as well as in the American
states, affords the courts the flexibility to deal with those who refuse
A witness is called to testify in a defamation suit for
being sworn by requiring the witness to make an affirmation instead. alleged defamatory acts committed against the complainant on
Consider this hypothetical: March 27, 2005 in the corner of XYZ and ABC Sts. in Manila.
He willingly took the oath.
Suppose that the prosecution calls a witness and offers his
testimony to prove that it was indeed the accused who ran over the Q: Sir, where were you on the 27th of March 2005 at around 7:30
victim with a car. Here goes the brief exchange between the bailiff or in the evening?
appropriate court personnel and the supposed witness:
A: I was in Israel, Sir for a pilgrimage.
"Sir, please raise your right hand."
The witness has to be dismissed from the stand. The court has no
The supposed witness retorts: "For what?" use for him. He is incompetent for the purpose for which he was ·called.
While taking the oath enabled him to meet the first requirement for
The bailiff snaps: "You are going to be sworn before you competency, he miserably failed the next test. He did not perceive
testify, Sir." anything about the incident and could offer no facts based on his personal
knowledge.
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Ability to make known the perception to others
1. The ability to make known the perception of the witness to the
court involves two factors: (a) the ability to remember what has been
perceived; and (b) the ability to communicate the remembered perception.
Consider a witness who has taken the oath and who has personal
knowledge of the event on which he is going to testify. Imagine the
exchange that follows in the courtroom:
Q: What incident if any occurred ... etc ... etc ....
A: Sorry, sir. 1. .. can't recall ... I don't remember.
A witness is presented to testify on a matter he has perceived. If he
cannot remember, he cannot be a competent witness.
2. Deaf-mutes are not necessarily incompetent as witnesses. They
are competent where they: (a) can understand and appreciate the sanctity
of an oath; (2) can comprehend facts they are going to testify to; and (3)
can communicate their ideas through a qualified interpreter (People vs.
Tuangco, G.R. No. 130331, November 22, 2000).
Competency and credibility
1. Competence is a matter of law or in this jurisdiction, a matter of
rule. Credibility of the witness has nothing to do with the law or the rules.
It refers to the weight and the trustworthiness or reliability of the
testimony. In deciding the competence of a witness, the court will not
inquire into the trustworthiness of the witness. Accordingly, a
prevaricating witness or one who has given contradicting testimony is still
a competent witness (U.S. vs. Cook, 949 F2d 289 [10th Cir. 1991]). Although
he may be competent as a witness, his testimony may not be given much
weight by the court or no weight at all if the court deems him not worthy
of belief. The competence of the witness must hence, be sharply
distinguished from his credibility.
Bar 2004
Distinguish clearly but briefly between:
1. xxx
2. Competency of the witness and credibility of the
witness.
3. xxx
4. xxx
5. xxx
Suggested answer:
Competency of a witness has reference to the basic
qualifications of a witness as his capacity to perceive and his
capacity to communicate his perception to others (Sec. 20, Rule
130, Rules of Court). Credibility of the witness has nothing to do
with the law or the rules. It refers to the weight and the
trustworthiness or reliability of the testimony. In deciding the
competence of a witness, the court will not inquire into the
trustworthiness of the witness. Accordingly, a prevaricating
witness or one who has given contradicting testimony is still a
competent witness (U.S. us. Cook, 949 F2d 289 [10th Cir. 1991]).
2. Bias is not even a basis for declaring a witness incompetent to
testify (U.S. vs. Cervantes-Pacheco, 826 F2d 310 [5th Cir. 1987]).
3. Under the Rules of Court, persons covered by the Survivorship
Disqualification Rule (Dead Man's Statute) cannot testify as to any
matter of fact occurring before the death or insanity of the adverse party
(Sec. 23, Rule 130).
4. Drug abuse will not render a person incompetent to testify
(U.S. vs. Behrens, 689 F.2d 154 [10th Cir. 1982]). Drug abuse becomes
relevant only if the witness was under the influence of drugs at the time
he is testifying or at the time the events in questioned were observed
(U.S. vs. Novo Sampol, 636 F.2d 621 [D.C. Cir. 1980]).
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5. While bias and drug abuse may not be grounds from barring a
witness from testifying, they may serve as grounds for attacking the
credibility of the witness.
6. Questions concerning the credibility of a witness are best
addressed to the sound discretion of the trial court as it is in the best
position to observe his demeanor and bodily movements (Llanto vs.
Alzona, 450 SCRA 288, January 31, 2005).
Other factors that do not affect the competency of a witness
1. Under Sec. 20 of Rule 130, except as provided by the law and
the rules, the following factors do not, as a general rule, constitute a
disqualification of a witness:
(a) religious belief;
(b) political belief;
(c) interest in the outcome of the case; or
(d) conviction of a crime.
Bar 1994
AI was accused of raping Lourdes. Only Lourdes testified
on how the crime was perpetrated. On the other hand, the defense
presented AI's wife, son and daughter to testify that AI was with
them when the alleged crime took place. The prosecution
interposed a timely objection to the testimonies on the ground of
obvious bias due to the close relationship of the witnesses with
the accused.
If you were the judge:
(1) How would you rule on the objection?
(2) x x x
Suggested answer:
(1) I would overrule the objection. Interest in the
outcome of a case which includes close relationship, is not a
ground to disqualify a witness (Sec. 20, Rule 132, Rules of Court).
2. While conviction of a crime is not a ground for disqualification
of a witness, this is true only where no provision of law declares
otherwise. Certain persons with prior convictions are disqualified from
testifying. Examples of these persons are:
(a) Those who have been convicted of falsification of a document,
perjury or false testimony are disqualified from being witnesses to
a will (Art. 821, Civil Code of the Philippines). By implication such
persons cannot testify in probate proceedings.
(b) An accused cannot be a state witness if he has been convicted
of a crime involving moral turpitude (Sec. 17[e], Rule 119, Rules of
Court).
Bar 1994
Louise is being charged with the frustrated murder of
Roy. The prosecution's lone witness, Mariter, testified to having
seen Louise prepare the poison which she later surreptitiously
poured into Roy's wine glass. Louise sought the disqualification
of Mariter as witness on account of her previous conviction of
perjury.
(1) Rule on Louise's contention.
(2) x x x
Suggested answers:
(1) The contention of Louise has no legal basis. Basic is
the rule that previous conviction is not a ground for
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disqualification of a witness, unless otherwise provided by law.
Mariter's conviction is not sufficient to have her disqualified to
testify. Her situation is not one of the exceptions provided for by
law.
(2) x x x
3. Although as a rule, a witness is not disqualified on the basis of
mere conviction of a crime, he must answer when asked about the fact of
his previous final conviction for an offense (Sec. 3[5J, Rule 132, Rules of
Court). Of course, this rule presupposes that the question on his
conviction is relevant to the case.
Disqualifications Of Witnesses
Disqualification by reason of Mental Incapacity
1. To be disqualified as a witness by reason of mental incapacity,
the following must concur: (a) the person must be incapable of making
known his perception to others; and (b) his incapacity must exist at the
time of his production for examination. It is clear from the tenor of Sec.
21(a) of Rule 130 that incapacity at the time of the observation of the
events of which he is asked to testify to does not affect his competency
but certainly it would affect his credibility.
2. The test supplied by the Rules of Court is a simple test: Is the
mental condition of the proposed witness at the time he is to testify such
that he is incapable of making known his perception to others? (Sec.
21[a], Rule 130, Rules of Court). The answer to this question will determine
whether or not a person is a mentally competent witness.
Disqualification by reason of immaturity
1. To be disqualified as a witness by reason of immaturity the
following must be concur:
(a) the mental maturity of the witness must render him incapable
of perceiving the facts respecting which he is examined; and (b)
he is incapable of relating his perception truthfully (Sec. 21[bJ,
Rule 130, Rules of Court).
2. A "child witness" is any person who at the time of giving
testimony is below the age of eighteen (18) years. In child abuse cases, a
child includes one over eighteen (18) years but is found by the court as
unable to fully take care of himself or protect himself from abuse,
neglect, cruelty, exploitation, or discrimination because of a physical or
mental disability or condition (Sec. 4[a], Rule on Examination of a Child
Witness, A.M. No. 00-4-07-SC, November 21,2000).
3. Every child is presumed to be a qualified witness. However,
when the court finds that substantial doubt exists regarding the ability of
the child to perceive, remember, communicate, distinguish truth from
falsehood, or appreciate the duty to tell the truth in court, the court shall
conduct a competency examination of the child, motu propio or on motion
of a party (Sec. 6, Rule on Examination of A Child Witness). Because of the
presumption on the competency of a child witness, a party seeking a
competency examination must present proof of the necessity for such
examination.
4. The age of the child by itself is not a sufficient basis for an
examination (Sec. 6[a], Rule On Examination of A Child Witness). The
burden of proof to rebut the presumed competency of a child witness
rests on the party challenging his competence (Sec. 6[b], Rule On
Examination of A Child Witness).
5. When a child testifies in a criminal case as a victim or a
witness, the prosecutor, counselor the guardian ad litem may apply for an
order that the testimony of the child be taken in a room outside the
courtroom and be televised to the courtroom by live-link television (Sec.
25, Rules On Examination Of A Child Witness).
Bar 2005
(a) x x x
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(b) x x x
(c) x x x
(d) x x x
(e) When may the trial court order that the testimony of
a child be taken by live-link television?
Suggested answer:
(e) Please refer to the immediately preceding para-
graph (No.4).
Marital disqualification rule (spousal immunity)
1. The marital disqualification rule under Sec. 22 of Rule 130,
forbids the husband or the wife to testify for or against the other without
the consent of the affected spouse except in those cases authorized by the
rule. The prohibition extends not only to a testimony adverse to the
spouse but also to a testimony in favor of the spouse. It also extends to
both criminal and civil cases.
2. The rule prohibiting testimony by one spouse against the other
is based on society's intent to preserve the marriage relations and promote
domestic peace. A spouse testifying against the other creates an ugly sight
inimical to society's interests. The rule prohibiting a testimony in favor of
the spouse is intended to discourage the commission of perjury.
3. The spouses must be legally married for the spouse to invoke
the benefit of the rule. The rule does not cover an illicit cohabitation
(People us. Francisco, 78 Phil. 694). The rule applies whether the witness-
spouse is a party to the case or not but the other spouse must be a party.
4. The prohibited testimony is one that is given or offered during
the existence of the marriage. It does not prohibit a testimony for or
against the other after the marriage is dissolved. When the marriage is
dissolved on the grounds provided for by law like annulment or
declaration of nullity, the rule can no longer be invoked. A spouse can
now testify against the other despite an objection being interposed by the
affected spouse.
5. If the testimony for or against the other spouse is offered during
the existence of the marriage, it does not matter if the facts subject of the
testimony occurred before the marriage. The affected spouse may invoke
the rule by objecting to the testimony.
To illustrate: Before the marriage of W to H, she witnessed the
murder of X by H but she never reported what she witnessed to the
authorities. A year after the murder, H and W married. Barely six months
after the marriage, W became a battered wife and to get even with H, she
decided to report the murder to the police. (a) May she testify against H
for the prosecution? Answer: She cannot testify over the objection of H.
The situation is covered by the marital disqualification rule. (b) Suppose
a year after the marriage, the marriage is annulled, may W now testify
despite the objection of H? Answer: She can now testify. The prohibition
no longer applies since the testimony is to be offered after the marriage.
(c) May H successfully object to the testimony on the ground that the
facts subject of the testimony occurred during the existence of the
marriage assuming the murder of X by H took place during the existence
of the marriage between Wand H? Answer: H cannot successfully object
as long as the testimony is offered after the dissolution of the marriage.
6. Be it noted that the testimony is prohibited only over the
objection of the affected spouse or the spouse against whom the
testimony is offered. It is the latter spouse who has the right to object to
the competency of the spouse-witness. It goes without saying that the
testimony is admissible where no objection is interposed by the spouse
who has the right to invoke the prohibition. In other words, the benefit of
the rule may be waived. It may be waived impliedly or expressly.
7. The testimony covered by the marital disqualification rule not
only consists of utterances but also the production of documents (State
us. Bramlet, 114 S. C. 389, 103 S.E. 755).
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Exceptions to the marital disqualification rule
1. In the following instances, a spouse may testify against the
other even without the consent of the latter:
(a) in a civil case by one against the other; or
(b) in a criminal case for a crime committed by one against the
other, or the latter's direct descendants or ascendants (Sec. 22,
Rule 130, Rules of Court).
2. The phrase, "or the latter's direct descendants or ascendants" did
not appear in the old rule. Hence, in People vs. Natividad, 70 Phil. 315, it
was held that a wife cannot testify against her husband without his consent
even if the husband is accused of killing her child. The present rule has
been harmonized with the Supreme Court ruling in Ordono vs. Daquigan, 2
SCRA 270, allowing the wife to testify against her husband for raping her
daughter.
3. If the wife sues the husband for fraudulently embezzling the
paraphernal funds of the former, the reason for the rule ceases. The wife
can now testify against the husband. Also, if the wife is sued for adultery,
the husband cannot be barred from testifying against the wife. In a suit
for annulment of marriage, each spouse can testify against each other.
4. In order for a spouse to be allowed to testify against the other in
a civil case, the case must be a "civil case by one against the other." This
contemplates a situation where one spouse is a plaintiff or petitioner and
the other spouse is a defendant or respondent. Where the civil case is
between a spouse and the direct descendants or ascendants of the other, the
marital disqualification rule still applies. Thus, if the wife sues the father
of her husband for collection of a loan, the husband may be barred from
testifying against the wife upon the objection of the latter. This is because
the civil case is not by one against the other but between a spouse and the
parent of the other.
5. The rule is different in a criminal case. In a criminal case, the
privilege of one to testify against the other is not confined to crimes
committed by one against the other, but covers crimes committed by one
against the direct descendants or ascendants of the latter like the latter's
children or parents. However, crimes committed against a spouse's
collateral relatives like uncles, aunties, cousins or nephews and nieces are
not covered by the exception.
Bar 2000
Vida and Romeo are legally married. Romeo is
charged in court with the crime of serious physical injuries
committed against Selmo, son of Vida, step-son of Romeo. Vida
witnessed the infliction of the injuries on Selmo by Romeo. The
public prosecutor called Vida to the witness stand and offered her
testimony as eyewitness. Counsel for Romeo objected on the
ground of the marital disqualification rule under the Rules of
Court.
(a) Is the objection valid?
(b) Will your answer be the same if Vida's testimony is
offered in a civil case for recovery of personal property filed by
Selmo against Romeo?
Suggested answers:
(a) The objection is not valid. While the rule provides
that neither the husband nor the wife may testify for or against
the other without the consent of the affected spouse, the
prohibition is merely the general rule. Said rule is subject to
certain exceptions, one of which is in a criminal case committed
by one against the direct descendant of the other. Romeo is
accused of committing a crime against Selmo, the son of Vida
and the latter's direct descendant.
(b) The answer will not be the same. The rule in a
criminal case is not the same as that in a civil case. In a civil
case, for the marital disqualification rule not to apply, the case
must be by one spouse against the other. In the case under
consideration, the case is by the son (Selmo) of one spouse
(Vida) against the other spouse (Romeo). Romeo may thus,
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invoke the marital disqualification rule against Vida's proposed
testimony.
Survivorship disqualification rule or the dead man's statute
1. This rule applies only to a civil case or a special pro ceeding.
The following are the elements for the application of this rule: (a) The
defendant in the case is the executor or administrator or a representative
of the deceased or the person of unsound mind; (b) The suit is upon a
claim by the plaintiff against the estate of said deceased or person of
unsound mind; (c) The witness is the plaintiff, or an assignor of that
party, or a person in whose behalf the case is prosecuted; and (d) The
subject of the testimony is as to any matter of fact occurring before the
death of such deceased person or before such person became of unsound
mind (Sec. 23, Rule 130, Rules of Court).
2. A simple hypothetical may help us understand the rule:
Mr. D approaches Mr. C one rainy Sunday morning to
borrow one hundred thousand pesos to be paid exactly a year
after. Without hesitation, Mr. C gives Mr. D the amount
requested. Mr. C does not require Mr. C to execute a promissory
note. They had been very good friends for as long as they can
remember. Years ago, when Mr. C's small business was on the
verge of bankruptcy it was the generosity of the then wealthy
Mr. D that bailed him out. Exactly a day before the agreed date
for payment, Mr. D peacefully joins his Creator without paying
the debt. What does Mr. C do?· Well, he does what every
creditor would do under the circumstances. He goes to the
executor of what remains of the estate of Mr. D, and tells him of
the debt of Mr. D. "Today is supposed to be the due date of his
debt. I cannot demand payment from him because he is dead.
You are the executor and you are very much alive. I am asking
you to pay his debt."
The executor retorts: "Look Sir! I am not sure if you are
telling the truth. Don't get me wrong! I am not calling you a liar
but I cannot verify the truth of your claim. Mr. D is dead. He
cannot speak. His lips are forever sealed. I would be doing an
act unfair to Mr. D if I were to listen to you. I am sorry, I cannot
pay."
What is the effect of the death of Mr. D? The rule is clear. Mr. C is
rendered incompetent to testify as to the transaction he had with Mr. D.
He is incompetent because of the possibility that his claim is fraudulent. If
Mr. C is to be heard, there would be a high risk of paying a fraudulent or a
fictitious claim. It is Mr. C who has the motive to lie. He is the survivor.
Mr. D cannot lie. He is dead. He did not survive. Worse, he cannot answer
back. He cannot disprove the claim of Mr. C. To level the playing field
between the lucky survivor and the poor deceased, our remedial law
ancestors devised a rule that would also seal the lips of the survivor by
declaring him incompetent to testify on the transaction between him and
the deceased. The rule is definitely one that does not protect the survivor
even at the risk of not paying a just and valid claim because it is the
survivor who has the stronger reason to file a false claim. The rule is for
the protection of the guy who died. Hence the name, Dead Man's Statute.
3. The Supreme Court had repeatedly held in not a few cases that
the object of the rule is to guard against the temptation to give false
testimony in regard to the transaction on the part of the surviving party
and thereby put the parties upon equal terms. Its purpose is to close the
lips of the plaintiff when death has closed the lips of the defendant, in
order to remove from the defendant the temptation to do falsehood and the
possibility of fictitious claims against the deceased (Tan us. Court of
Appeals, G.R. No. 125861, September 9, 1998). It is obvious that the rule, by
its terms, intends to protect the representatives of the deceased person or a
person of sound mind when sued in such capacity on a claim against the
estate of the decedent or insane person.
How to apply the rule
1. The initial point of inquiry for a clearer understanding of the
rule would be in regard to the parties involved. In order to determine
whether or not the survivorship disqualification rule will apply to a
particular situation, we should know who the plaintiff is. We should also
know who the defendant is. The plaintiff is the person who has a claim
against the estate of the decedent or person of unsound mind. He is the
survivor. The defendant is the representative (executor or administrator)
of the deceased or the person of unsound mind. The rule will not apply
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where the executor or administrator is the plaintiff as representative of the
deceased or person of unsound mind. So if the executor of the estate of
the deceased, Mr. C sues Mr. D to collect an unpaid debt in favor of Mr.
C, the latter although a survivor, is not precluded from testifying as to the
transaction he previously had with Mr. C, because the case is not upon a
claim against the estate of Mr. C but a claim by his estate against Mr. D.
2. The next essential point to consider is the nature of the case.
What is the case about? Sec. 22 of Rule 130 clearly specifies that the
case be "upon a claim against the estate of the deceased person or a
person of unsound mind." The rule does not apply when the action
brought is not "against" the estate, or upon a claim "against" the estate.
3. The parties and the subject of the action having been
determined, the inquiry should now shift to the person prohibited to
testify and the subject matter of his testimony. Under the rule, the
persons disallowed are "parties or assignors of parties to a case, or
persons in whose behalf a case is prosecuted." These persons are those
who have transacted with the deceased or the person of unsound mind or
persons acting for them in a representative capacity. The rule is
obviously intended to be exclusive and does not prohibit a testimony by a
mere witness to the transaction between the plaintiff and the deceased
and who has no interest in the transaction. Thus, offering the testimony
of a so-called "disinterested witness" is not a transgression of the rule
since the prohibition extends only to the party who survives or person in
whose behalf the case is prosecuted.
Consider the following illustration:
The case is an action for a sum of money against the
decedent's estate. The decedent is Mr. D, the debtor. The
plaintiff is Mr. C, the creditor. Mr. C claims that Mr. D
borrowed two hundred thousand pesos from him and that the
debt has been due even before the death of Mr. D who despite
demand upon him, failed to pay. Mr. C calls his secretary to
testify about the transaction that occurred in her presence.
Q: What did Mr. D say to Mr. C on that day and time you
mentioned earlier?
Adverse counsel: "Objection, Your Honor. I invoke the dead
man's statute."
Counsel for Mr. C: "May I be heard, Your Honor before ruling on the
objection?"
Court: "You may."
Counsel for Mr. C: "The ground for the objection does not
apply, Your Honor. The witness is not a plaintiff or an assignor
of the plaintiff or one on whose behalf the claim against the
estate is prosecuted."
Court: "Objection is overruled." (The reason for the ruling is
obvious. The witness is not one of those prohibited to testify)
Bar 2001
Maximo filed an action against Pedro, the administrator
of the estate of the deceased Juan, for the recovery of a car
which is part of the latter's estate. During the trial, Maximo
presented witness Mariano who testified that he was present
when Maximo and Juan agreed that the latter would pay a rental
of P20,OOO for the use of Maximo's car for one month after
which Juan should immediately return the car to Maximo. Pedro
objected to the admission of Mariano's testimony.
If you were the judge, would you sustain Pedro's
objection? Why?
Suggested answer:
The objection of Pedro should not be sustained. The
testimony is admissible because the witness is not disqualified
to testify. Those disqualified under the dead man's statute or the
survivorship disqualification rule are parties or assignors of
parties to a case, or persons in whose behalf a case is
prosecuted. The witness is not one of those enumerated under
the rule (Sec. 23, Rule 130, Rules of Court).
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4. The rule does not also not intend to keep the witness out of the
stand altogether. The witness is merely precluded from testifying on
particular topics. As written, the rule bars a testimony "as to any matter
of fact occurring before the death of such deceased person or before such
person became of unsound mind." Thus, matters occurring after such
person died or became of unsound mind are admissible. Also a testimony
favorable to the estate is not barred since the rule is designed to protect
the interest of the estate of the deceased or insane person. In one old case,
an oral testimony to prove a lesser claim than what might be warranted by
the evidence was allowed (Icard us. Masigan, 40 G.G., 13th Suppl., 215;
71 Phil. 419).
5. The survivorship disqualification rule is intended to benefit the
estate of the deceased or insane person, hence, this protection may be
waived by (a) failing to object to the testimony, (b) cross-examining the
witness on the prohibited testimony, or by (c) offering evidence to rebut
the testimony.
6. The survivorship disqualification rule raises legitimate
questions on the justness of the rule. In trying to avoid fictitious claims
against the estate, it ignores the rights of persons with legitimate claims
and whose lips are sealed because of a transaction conducted without any
third person as witness or any other evidence to prove the claim.
Marital privileged communications
Under Sec. 24(a) of Rule 130 of the Rules of Court, there are
certain persons who cannot testify as to matters learned in confidence.
Among those subject to the rule are legitimate spouses. Under this rule,
the husband or the wife cannot be examined without the consent of the
other as to any communication received in confidence by one from the
other during the marriage. The application of the rule requires the
presence of the following elements: (a) there must be a valid marriage
between the husband and wife; (b) there is a communication made in
confidence by one to the other; and (c) the confidential communication
must have been made during the marriage. When these requisites concur,
the spouse against whom the testimony is offered may validly object to
the testimony of the other.
Bar 2004
XYZ, an alien, was criminally charged of promoting and
facilitating child prostitution and other sexual abuses under Rep.
Act No. 7610. The principal witness against him was his Filipina
wife, ABC. Earlier, she had complained that XYZ's hotel was
being used as a center for sex tourism and child trafficking. The
defense counsel for XYZ objected to the testimony of ABC at
the trial of the child prostitution case and the introduction of the
affidavits she executed against her husband as a violation of
espousal confidentiality and marital privilege rule. It turned out
that DEF, the minor daughter of ABC by her first husband who
was a Filipino, was molested by XYZ earlier. Thus, ABC had
filed for legal separation from XYZ since last year.
May the court admit the testimony and affidavits of the
wife, ABC, against her husband XYZ, in the criminal case
involving child prostitution?
Suggested answer:
If the testimony and affidavit of the wife are evidence of
the case against her husband for child prostitution involving her
daughter, the evidence are admissible. The marital privileged
communication rule under Sec. 24 of Rule 130 as well as the
marital disqualification rule under Sec. 22 of Rule 130 do not
apply to and cannot be invoked in a criminal case committed by
a spouse against the direct descendants of the other.
The marital disqualification rule compared with the marital
privileged communication rule
1. The marital disqualification rule under Sec. 22 of Rule 130,
will not come into play when the fact pattern in a problem makes
reference to confidential communications between husband and wife
during the marriage. Sec. 24(a) of Rule 130 will instead apply.
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Communications that are not intended to be confidential because
they were uttered in the presence of third parties are not deemed
confidential even when made during the marriage. If an adverse
testimony is offered against the other as a result of the remarks not made
in confidence, Sec. 22 or the marital disqualification rule will apply. The
same rule applies if the communication, although confidential, is not
made during the marriage. On the other hand, the marital privileged
communication rule applies only to testimonies of a confidential nature
made by one spouse to the other during the marriage and does not
include acts merely observed by the spouse.
2. When the marital privileged communication rule applies, the
spouse affected by the adverse testimony may object to the testimony
even after the dissolution of the marriage. The marital disqualification
rule on the other hand, can no longer be invoked once the marriage is
dissolved. It may be asserted only during the marriage.
3. The marital disqualification rule requires that the spouse for or
against whom the testimony is offered is a party to the action. This is not
required in the marital privileged communication rule.
4. In the marital disqualification rule, the prohibition is a
testimony for or against the other. In the latter what is prohibited is the
examination of a spouse as to matters related in confidence to the other
spouse.
Illustration (Bar 1995)
Allan and Narita were married on August 1, 1989. After
two months, Narita told Allan in confidence that the 10-year old
Liza whom she claimed to be her niece was actually her
daughter by a certain Basilio, a married man.
In 1992, Narita obtained a judicial decree of nullity of
her marriage with Allan on the latter's psychological incapacity
to fulfill his marital obligations. When the decree became final,
Liza assisted by Narita, filed 10 cases of rape against Allan
purportedly committed in 1991. During the trial, Narita was
called to the witness stand to testify as a witness against Allan
who objected thereto on the ground of marital disqualification.
1. As public prosecutor, how would you meet the
objection?
2. Suppose Narita's testimony was offered while the
decision nullifying her marriage to Allan was pending appeal,
would your answer be different?
3. Suppose Narita died during the pendency of the
appeal, and soon after, the legal wife of Basilio sued for legal
separation on sexual infidelity in view of Basilio's love affair
with N arita. At the trial Allan was called by Basilio's wife to
testify that Narita confided to him (Allan) during their marriage
that Liza was her love child by Basilio. As counsel for Basilio,
can you validly object to the presentation of Allan as witness for
the plaintiff? Explain.
Suggested answers:
(1) I would ask the court to overrule the objection.
Under the marital disqualification rule, the objection to the
testimony of one spouse against the other may be invoked only
during the marriage. At the time the testimony of Narita was
offered, the marriage was already dissolved (Sec. 22, Rule 130,
Rules of Court).
(2) The answer would not be different and a valid
objection may still be interposed. The marital disqualification
rule may not be invoked in a criminal case for a crime
committed against the direct descendant of the other spouse.
Here, Liza is the daughter of Narita.
(3) Suggested answer of D.P. Law Center: Yes. I could
validly object to the presentation of Allan as a witness on the
ground that the communication of Narita was a privileged
communication which could be invoked during or after the
marriage. Moreover, the testimony of Allan would be hearsay.
Writer's Comment: The testimony could not be validly
objected upon by Basilio's counsel on the basis of the marital
privileged communication rule. Basilio does not own the
privilege. The prerogative to object to a confidential
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communication between spouses is vested upon the spouses
themselves, particularly the communicating spouse, not a third
person. This is clear from the provision: " …cannot be examined
without the consent of the other " (Sec. 24, Rule 130, Rules of
Court).
Bar 1998
C is the child of the spouses Hand W. H sued his wife
for judicial declaration of nullity of marriage under Art. 36 of
the Family Code. In the trial, the following testified over the
objection of W: C, Hand D, a doctor of medicine who used to
treat W. Rule on W's objection which are the following:
(a) He cannot testify against her because of the rule on
marital privilege.
(b) x x x
(c) x x x
Suggested answer:
The objection should be overruled. The rule invoked by
W, i.e., the rule on marital privilege, does not apply to a civil
case by one against the other. The suit between the spouses is a
civil case against the other.
Attorney-client privilege
1. The following requisites must be present for the privilege to
arise:
(a) There must be a communication made by the client to the
attorney or an advice given by the attorney to his client;
(b) The communication or advice must have been given in
confidence; and
(c) The communication or advice must have been given either in
the course of the professional employment or with a view to
professional employment.
2. The present rules do not require a perfected attorney-client
relationship for the privilege to exist. The communications between the
attorney and the client no longer need be in the course of an actual
professional employment. It is enough that the communication or advice
be "with a view to" professional employment (Sec. 24[b], Rule 130, Rules
of Court). Hence, the privilege is extended to communications made for
the purpose of securing the services of counsel even if the counsel later
refuses the professional relationship. The insertion of the clause "with a
view to" includes preliminary negotiations within the privilege. Without
the clause, it would seem extremely risky to consult an attorney for the
first time and communicate to him certain sensitive information without
the protection of confidentiality.
3. The relationship between the attorney and the client is said to
exist where a person employs the professional services of an attorney or
seeks professional guidance, even though the lawyer declines to handle
the case (Keir vs. State, 152 Fla, 389, 11 So. [2dJ 886 [1943]).
4. The privilege of a client to keep communications to his
attorney confidential is predicated upon the client's belief that he is
consulting a lawyer in that capacity and has manifested his intention to
seek professional legal advice (24 Iowa L. Rev. 538, In Note). There is
authority to support the theory that it is enough if he reasonably believes
that the person consulted is a lawyer, although in fact he is not as in the
case of a detective pretending to be a lawyer (People vs. Barker, 60 Mich.
277, 27 N. W 539 cited in McCormick, §88). For the privilege to exist,
payment of a fee is not essential (United States vs. Landorf, 591 F .2d 36 3d
Cir. 1980).
5. Where a person consults an attorney not as a lawyer but merely
as a friend, or a participant in a business transaction, the consultation
would not be one made in the course of a professional employment or
with a view to professional employment as required by Sec. 24(b) Rule
130, Rules of Court, and if proven to be so, would not be within the
ambit of the privilege (U.S. vs. Tedder, 801 F.2d 1437 [4th Cir. 1986J).
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6. Accordingly, the privilege is not confined to communications
regarding actual pending cases. The communications may refer to
anticipated litigations or may not refer to any litigation at all. It is sufficient
that the statements have been made in the course of legitimate professional
relationship between the attorney and the client (Jones, Vol. 3, §749). The
communication may be oral or written but is deemed to extend to other
forms of conduct like physical demonstration as long as they are intended to
be confidential. It is likewise submitted that the communication between a
client and his lawyer is not deemed lacking in confidentiality solely because
the communication is transmitted by facsimile, cellular telephone, or other
electronic means.
7. It is commonly acknowledged that the privilege does not extend
to communications where the client's purpose is the furtherance of a future
intended crime or fraud (8 Wigmore, Evidence, §§2298, 2299 [McNaughton
reev.1961]; Gardner, The Crime of Fraud Exception to the Attorney-Client
Privilege, 47 A. B.A. J. 708), or for the purpose of committing a crime or a
tort (U.S. us. Wilson, 798 F.2d 509 [lst Cir. 1986J or those made in
furtherance of illicit activity (U.S. us. Aucoin, 964 F.2d 1492 [5th Cir. 1992]).
Accordingly, although communications made when used to further crimes
are not privileged, the discussion of the communications in confidence with
the lawyer after the crime has been committed may still be privileged even
though the earlier ones were not (In re Federal Grand Jury Proceedings 89-10
[MIAJ 938 F.2d 1578 [11th Cir. 1991J).
8. Does the privilege preclude inquiries into the fact that the lawyer
was consulted? The traditional and still applicable rule is that an inquiry
into the fact of consultation or employment is not privileged. Even the
identity of the client is not privileged as well as that of the lawyer is not
privileged (Behrens us. Hironimus, 170 F.2d 627 [4th Cir. 1948J; Shientag, J
in People us. Warden, 270 N.Y.S., 369). However, under the "last link
doctrine," non-privileged information, such as the identity of the client, is
protected if the revelation of such information would necessarily reveal
privileged information (In re Grand Jury Proceedings [GJ90-2J, 946.2d 746
[11th Cir. 1991]).
9. The statements of the client need not have been made to the
attorney in person. Those made to the attorney's secretary, clerk or
stenographer for transmission to the attorney for the purpose of the
professional relationship or with a view to such relationship or those
knowledge acquired by such employees in such capacity are covered by
the privilege. Like the attorney, their employer, these persons cannot be
examined as to the communication made by the client or the advice given
by the attorney without the client's consent (Sec. 24[b], Rule 130, Rules of
Court).
10. Before the statements of the client and the advice of the
attorney be deemed as privileged, the same should have been intended to
be confidential. This confidentiality is the essence of the privilege. The
communications between lawyer and client do not become confidential
merely from the fact that they were made to each other. The matters
communicated to the attorney are evidently not intended to be confidential
when they were made to the lawyer but in the presence of third persons
who neither stand in a position of peculiar confidence to the client or are
not agents of the attorney. If the communications made by the client to his
attorney were also made to third persons, the intention of secrecy does not
appear (MacCormick §91). There can be no attorney-client privilege
where the information is given with the expectation that it will be revealed
to others (In re Grand Jury Proceeding, 727 F.2d 1354 [4th Cir. 1984]). In
the case of persons overhearing without the knowledge of the client, it
seems that the more reasonable view is one which would protect the client
against disclosure, unless he has failed to use ordinary precautions against
overhearing, but the cases in American jurisprudence have permitted the
eavesdropper to speak (Van Horn us. Commonwealth, 239 Ky 833,
40S.W.2d 372).
11. Does the privilege apply in suits between the attorney and the
client? The weight of authority supports the view that when the client and
attorney become embroiled in a controversy between themselves, as in an
action filed for payment of attorney's fees or for damages against the
negligence of the attorney, the privilege is removed from the attorney's
lips (Sokol vs. Mortimer, 81 ill. App.2d 225 N.E.2d 496 in McCormick, §91).
This rule however, should be made to apply only where the suit is
between the attorney and his client. The communication would still be
privileged where the suit is by or against a third party (State vs. Markey,
259 Wis. 527, 49 N. W. 2d 437 [1951]).
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12. The privilege is owned by the client. It is he who can invoke
the privilege. As a rule, every communication arising from the
professional relationship cannot be disclosed without his consent. The
privilege is personal and belongs to the client. If the client waives the
privilege, no one else including the attorney can invoke it (In Re Young's
Estate, 33 Utah 382, 94 P 731, 732). For example, if the client is asked on
cross examination of his communications to his lawyer and reveals the
same, there would be a waiver of the confidentiality of the com-
munication. There would also be a waiver if the client does not object to
his attorney's testimony on the communication.
13. The protection of the privilege will generally survive the
death of the client (Denver Tramway Co. vs. Owens, 20 Colo., 107, 36 Pac.
848; State vs. Macumber, 1121 Ariz. 569, 544 P.2d 1084 [1976]). There had
been cases where the privilege was not made to apply in cases involving
the validity or interpretation of the client's will. Where there is an attack
on the validity of the will, communications made to the attorney on the
drawing of the will, while confidential during the lifetime of the client
are not intended to require secrecy after his death (8 Wigmore, Evidence,
§2314 [MacNaughton rev. 1961]).
Physician-patient privilege
1. This privilege, embodied in Sec. 24(c) of Rule 130 applies to a
civil case, whether the patient is a party or not. The phraseology of the
rule implies that the privilege cannot be claimed in a criminal case
presumably because the interest of the public in criminal prosecution
should be deemed more important than the secrecy of the
communication.
2. The rationale traditionally mentioned to justify the privilege is
to encourage the patient to freely disclose all the matters which may aid
in the diagnosis in the treatment of a disease or an injury. For this
purpose it is necessary to shield the patient from embarrassing details
concerning his condition (Falkinburg vs. Prudential Insurance Co., 132
Neb. 831, 273 N. W 478). Accordingly, this privilege protects the interest
of the patient. It is designed to promote health, not truth. It encourages
free disclosure in the sickroom by preventing disclosure in the
courtroom. The patient is the person to be encouraged and he is the
holder of the privilege (Metropolitan Life and Insurance Co. vs. Kaufman,
104 Colo. 13, 87 P.2d 758 in McCormick, Evidence, §102).
3. The person against whom the privilege is claimed is a person
duly authorized to practice medicine, surgery or obstetrics. The
information which cannot be disclosed refers to (a) any advice given to
the client; (b) any treatment given to the client; and (c) any information
acquired in attending such patient provided that the advice, treatment or
information was made or acquired in a professional capacity and was
necessary to enable him to act in that capacity; and that (d) the informa-
tion sought to be disclosed would tend to blacken the reputation of the
patient (Sec. 24[c), Rule 130, Rules of Court). The word "reputation" is
used instead of the previous word, "character."
4. Also, the rule does not require that the relationship between the
physician and the patient be a result of a contractual relationship like one
initiated by the patient's voluntary act. It might have been the result of a
quasi-contractual relationship as when the patient is seriously ill and the
physician threats him even if he is not in a condition to give his consent
as in the situation described in Art. 2167 of the Civil Code of the
Philippines.
5. It is necessary for the operation of the privilege that the
physician is acting in his "professional capacity" and that the advice or
treatment given or acquired in such capacity. The physician may be said
to be acting in a professional capacity when he attends to the patient for
either curative or preventive treatment (Baird's Estate, 173 Cal., 617, 160
Pac, 1078; Smart vs. Kansas City, 208 Mo., 162, 105 S.W. 709). Hence, it
is submitted that results of autopsies may not be deemed covered by the
privilege because autopsies are not intended for treatment.
6. The privilege does not apply to shield the commission of a crime
or when the purpose is an unlawful one as to obtain narcotics or prohibited
drugs in violation of law because there is no treatment involved. Similarly,
where the purpose is to ask a physician to have one's appearance disguised
by cosmetic or plastic surgery to escape apprehension, the privilege does
not apply. Common reason suggests that all these cases be deemed outside
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the operation of the privilege because the purpose is not for treatment or
prevention of any disease or Injury.
7. The privilege survives the death of the patient (Bassil us. Ford
Motor Co., 278 Mich. 173,270 N.W. 258, 107 A.L.R. 1491). Death does not
permit the living to impair the deceased's name by disclosing
communications held confidential by law (Westouer us. Aetna Life Ins. Co.,
99 N.Y, 69 Am Rep. 1. Rep 769). Thus, in Gonzales us. Court of Appeals, the
Supreme Court, prevented the disclosure of medical findings that would
tend to blacken the reputation of the patient even after his death (Gonzales
us. Court of Appeals, G.R. No. 117740, October 30, 1998).
8. The privilege may be waived by the patient. The waiver may be
made expressly or impliedly. The waiver may be by a contract as in
medical or life insurance. When there is disclosure by the patient of the
information, there is necessarily, a waiver. When the patient answers
questions on cross on matters which are supposedly privileged, the waiver
also exists. There could also be a waiver by operation of law or rules.
Under Sec. 4 of Rule 28 of the Rules of Court, the court in which the
action is pending may, in its discretion, order a party to submit to a
physical or mental examination. This happens when the mental or physical
condition of a party is in dispute. The party examined may request a
detailed report of the examination. The other party may likewise request
from the party examined of the same examination.
Priest/minister-penitent privilege
1. The person making the confession holds the privilege and the
priest or minister hearing the confession in his professional capacity is
prohibited from making a disclosure of the confession without consent of
the person confessing. The privilege also extends to any advice given by
the minister or priest. The confession and the advice must have been made
or given pursuant to the course of discipline of the denomination or sect to
which the minister or priest belongs (Sec. 24[d], Rule 130, Rules of Court).
Thus, the minister or priest must be duly ordained or consecrated by his
sect.
2. Not every communication made to a minister or priest is
privileged. The communication must be made pursuant to confessions of
sins (Wigmore, §848). As clearly provided in the rule, the advice given as a
result of the confession, must be made in the minister's "professional
character" (Sec. 24[d], Rule 130, Rules of Court) or in his "spiritual"
capacity. Accordingly, where the penitent discussed business
arrangements with the priest, the privilege does not apply (U.S. us. Gordon,
493 F. Supp. 822 [7th Cir. 1987]).
Privileged communications to public officers
1. Communications made to a public officer in official confidence
are privileged when the court finds that the disclosure would adversely
affect the public interest. It is the interest of the public that is sought to be
protected by the rule. Hence, the disclosure or non-disclosure is not
dependent on the will of the officer but on the determination by a
competent court. The privilege may be invoked not only during the term
of office of the public officer but also after (Sec. 24[e], Rule 130, Rules of
Court).
2. The privileged communication under the Rules of Court find no
application on matters falling within the ambit of constitutional
guarantees. The Constitution of the Philippines recognizes the right of the
people to information on matters of public concern and guarantees access
to official records, and to documents, and papers pertaining to official
acts, transactions, or decisions, as well as to government research data
used as basis for policy development, subject to such limitations as may
be provided by law (Article III [Bill of Rights], Sec. 7, Constitution of the
Philippines).
3. National security matters and State secrets are of course,
confidential and a court will most likely uphold the privilege. A society
may not always be able to conduct its business with total openness and
matters affecting national interest must not be divulged (Guong us. U.S.,
860 F.2d 1063 [Fed. Cir 1988]).
4. There is also authority supporting the theory that protection
must be given to protect the identity of individuals who provide
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information to the government. Effective law enforcement often results
from information provided by citizens who do not wish to publicly
involve themselves (U.S. us. Straughter, 950 F.2d 1223 [6th Cir. 1991]). It
is not uncommon for witnesses to the commission of a crime to show
reluctance in volunteering information thereon and getting involved in
criminal investigations (People us. Paraiso, 349 SCRA 385).
Privileged Communications under the Rules on Electronic
Evidence
Privileged communications apply even to electronic evidence.
Under Sec. 3, Rule 3 of the Rules on Electronic Evidence, the confidential
character of a privileged communication is not lost solely on the ground
that it is in the form of an electronic d9cument.
Parental and filial privilege
This privilege does not disqualify a person from testifying against
his parents or children or other direct ascendants and descendants. A
person may testify against his parents or children voluntarily but if he
refuses to do so, the rule protects him from any compulsion. He cannot be
compelled to testify against any of the relatives mentioned in the rules
(Sec. 25, Rule 130, Rules of Court).
Examination of Witnesses
Open court examination
1. Sec. 1 of Rule 132 provides for the examination of the witness
in open court and unless the question calls for a different mode, the
answer of the witness shall be given orally. This method allows the court
the opportunity to observe the demeanor of the witness and also allows
the adverse party to cross-examine the witness.
2. There are however, testimonies which need not be given in
open court. Under the Rules of Summary Procedure, the affidavits of the
parties shall constitute the direct testimonies of the witnesses who
executed the same (Sec. 15, Rule on Summary Procedure). In civil cases, the
parties are merely required to submit the affidavits of their witnesses and
other evidences on the factual issues, together with their position papers
setting forth the law and the facts relied upon (Sec. 9, Rule on Summary
Procedure). Likewise, depositions need not be taken in open court. They
may be taken before a notary public (Sec. 10, Rule 23) or before any
person authorized to administer oaths (Sec. 14, Rule 23). In a criminal
case, either party may utilize the testimony of a witness who is
deceased, out of the country, or one who is unavailable or unable to tes-
tify despite the exercise of due diligence, even if the testimony was one
used in another case or proceeding, judicial or administrative, provided
the said proceeding involved the same parties and subject matter and the
adverse party had the opportunity to cross-examine the witness (Sec. 1[f],
Rule 115, Rules of Court).
Oath or affirmation
1. The witness must take either an oath or an affirmation but the
option to take an oath or an affirmation (Sec. 1, Rule 132, Rules of Court) is
given to the witness and not to the court.
2. An oath is an outward pledge made under an immediate sense
of responsibility to God or a solemn appeal to the Supreme Being in
attestation of the truth of some statement (Black's, 966). An affirmation is a
substitute for an oath and is a solemn and formal declaration that the
witness will tell the truth (Black's 55).
3. Where the witness refuses to take an oath or give any
affirmation, the testimony may be barred (U.S. us. Fowler, 605 F.2d 181 [5th
Gir. 1979]).
4. The rule requiring an oath or an affirmation is satisfied when the
court takes pains to impress on the witness the need to testify truthfully and
the witness said he would (U.S. us. Salim, 855 F.2d 944 [2nd Cir. 1988]). No
special wording is necessary for an affirmation, provided that the language
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used is designed to impress upon the individual the duty to tell the truth
(U.S. us. Kalaydjian, 784 F.2d 53 [2d Gir. 1986]). It may be an abuse of the
court's discretion to require the use of the words "swear" or "affirm" in the
oath if the language would violate the witness's religious beliefs where the
witness could otherwise testify truthfully (Gordon us. State of Idaho, 778
F.2d 1397 [4th Cir. 1969J). It is an abuse of discretion to refuse to allow the
accused to testify pursuant to an oath which he had drafted by which he
swore to testify honestly (U.S. us. Ward, 989 F.2d 1015 [9th Cir, 1992]).
Examination of witnesses and record of proceedings
1. The examination of witnesses presented in a trial or hearing shall
be done in open court and under oath or affirmation. The answers of the
witness shall be given orally except if: (a) the witness is incapacitated to
speak, or (b) the question calls for a different mode of answer (Sec. 1, Rule
132, Rules of Court).
Bar 1978
2. The questions propounded to a witness and his answers thereto
shall be recorded. Also to be recorded are the statements made by the
judge, any of the parties or any of the counsels. In fact, the entire
proceedings of the trial or hearing must be recorded. The recording may be
by shorthand, stenotype or any means of recording found suitable by the
court (Sec. 2, Rule 132, Rules of Court).
3. The official stenographer, stenotypist or recorder shall make a
transcript of the record of the proceedings and shall be certified by him as
correct. The transcript so prepared and certified shall be deemed prima
facie a correct statement of such proceedings (Sec. 2, Rule 132, Rules of
Court).
Rights and obligations of a witness
After the accused himself had testified in his defense in a
murder case, the trial judge, over the objection of the fiscal,
allowed the defense counsel to file and merely submit the
affidavits of the other witnesses of the accused in lieu of their
direct testimony but subject still to cross-examination by the
prosecution. The fiscal thus filed with the Supreme Court a
petition for certiorari and prohibition to nullify the order of the
trial court judge allowing such a procedure.
Should said petition be granted?
Suggested answer:
The petition should be granted. The provisions of the
Rules of Court require that the examination of the witnesses
shall be done in open court and their answers be given orally,
not in writing unless the exceptions mentioned therein apply, to
wit: (a) the witness is incapacitated to speak, or (b) the
questions calls for a different mode of answer. None of the
exceptions apply to the case under consideration. The court
therefore, acted in excess of jurisdiction amounting to lack of
jurisdiction when it allowed the presentation of the affidavits
without an oral examination of the witness.
1. As a rule, a witness has an obligation to answer questions,
although his answer may tend to establish a claim against him (Sec. 3, Rule
132, Rules of Court). Of course, there are questions which he is not bound
to answer. This is because a witness has certain rights like: (a) Not to give
an answer that will tend to subject him to a penalty for an offense; (b)To
be protected from irrelevant, improper, or insulting questions, and from
harsh or insulting demeanor; (c) Not to be examined except only as to
matters pertinent to the issue; (d) Not to be detained longer than the
interest of justice require; and (e) Not to give an answer which will tend
to degrade his reputation, unless it be the very fact at issue or to a fact
from which the fact in issue would be presumed (Sec. 3, Rule 132, Rules of
Court).
Bar 1981
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"S" is indebted to a bank. When the obligation falls due,
he fails to pay and the bank sues for collection. As part of the
evidence of the bank, the accountant of "S" is placed on the
stand and in the course of his examination he is asked if he, in
turn, is also indebted to the bank.
The lawyer of "8" interposes two objections to the
question: (a) x x x; and (b) it would therefore, be improper to let
him testify against himself.
If you were the judge, how would you rule on the
objections.
Suggested answer:
(a) x x x
(b) The objection must be overruled on the basis of the
ground relied upon by counsel. A witness must answer a
question even if it tends to establish a claim against him. The
witness cannot be compelled to answer only if the question
would involve an answer that would tend to subject him to a
penalty for an offense (Sec. 3, Rule 132, Rules of Court). The nature
of the question does not fall within the prohibited questions to a
witness.
2. Foremost among the rights of a witness is the right not to give
an answer that will subject him to a penalty, unless otherwise provided
by law (Sec. 3[4], Rule 132, Rules of Court). This provision in the Rules of
Court gives meaning to the right of a person against self-incrimination
(Art. III, See 17, Constitution of the Philippines).
Bar 2005
"x x x Under Republic Act No. 8353, one may be
charged with and found guilty of qualified rape if he knew on or
before the commission of the crime that he is afflicted with
Human Immuno Deficiency Virus (HIV)/Acquired Immune
Deficiency Syndrome (AIDS) or any other sexually
transmissible disease and the virus or disease is transmitted to
the victim.
Under Section 17(a) of Republic Act No. 8504, the
court may compel the accused to submit himself to a blood test
where blood samples would be extracted from his veins to
determine whether he has HIV
(a) Are the rights of the accused to be presumed
innocent of the crime charged, to privacy, and against self--
incrimination violated by such compulsory testing? Explain.
(c) x x x
Suggested answer:
The rights of the accused are not violated by such
testing. This is a settled rule. There is no testimonial compulsion
involved by extracting blood from the accused for testing
purposes (Tijing vs. Court of Appeals, 354 SCRA 17). There is
hence, no violation of the right to privacy and the right to be
presumed innocent.
Bar 2004
At the scene of a heinous crime, police recovered a
man's shorts with blood stains and strands of hair. Shortly
afterwards, a warrant was issued and police arrested the suspect,
AA. During his detention, a medical technician extracted blood
sample from his finger and cut a strand from his hair, despite
AA’s objections.
During AA’s trial for rape and murder, the prosecu tion
sought to introduce DNA evidence against AA, based on
forensic matching of the materials found at the crime scene and
AA’s hair and blood samples. AA’s counsel ob jected, claiming
that DNA evidence is inadmissible because the materials taken
from AA were in violation of his constitutional right against
self-incrimination as well as his right of privacy and personal
integrity.
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Should the DNA evidence be admitted or not?
Suggested answer:
The DNA evidence should be admitted. The right
against self- incrimination applies only to testimonial evidence.
Extracting blood samples and cutting strands of hair do not
involve testimonial compulsion but purely mechanical acts
which neither requires discretion or reasoning (Tijing vs. Court of
Appeals, 354 SCRA 17).
Bar 1998
A was accused of having raped X. Rule on the ad-
missibility of the following pieces of evidence:
(1) x x x
(2) a pair of short pants allegedly left by A at the crime
which the court, over the objection of A, required him to put on,
and when he did, it fit him well.
Suggested answer:
The pair of short pants may be considered as circum-
stantial evidence when taken with other circumstances. No valid
objection may be interposed over the order of the court to put on
the pair of pants. The right against self-incrimination does not
apply to a physical and mechanical act. It applies only to
testimonial compulsion which is not the case under the facts.
3. Aside from the right against self-incrimination, a witness
likewise has the right against being degraded. This refers to his right not
to give an answer that will degrade him. However, even if the answer is
degrading to his reputation, he must answer the question if the degrading
answer: (a) is the very fact in issue; or (b) refers to a fact from which the
fact in issue would be presumed (Sec. 3[5], Rule 132, Rules of Court).
But a witness must answer to the fact of his previous final
conviction for an offense (Sec. 3[5], Rule 132, Rules of Court).
If the witness is the accused, he may totally refuse to take the
stand. A mere witness cannot altogether refuse to take the stand. Before he
refuses to answer, he must wait for the incriminating question (Bagadiong
vs. Gonzales, L-25966, December 28, 1979).
4. Counsel must always come to the aid of his witness being
subjected to intimidation, harassment and embarrassment. Such acts are
objectionable and a timely objection should be raised.
Kinds of examinations
1 Direct examination - This is the examination-in-chief of a
witness by the party presenting him on the facts relevant to the issue (Sec.
5, Rule 132, Rules of Court). It is actually a procedure for obtaining
information from one's own witness in an orderly fashion. It is information
which counsel wants the court to hear. The purpose is to elicit facts about
the client's cause of action or defense.
2. Cross-examination - This is the examination of the witness by
the adverse party after said witness has given his testimony on direct
examination. The scope of the cross-examination is not confined to the
matters stated by the witness in the direct examination. Thus, under the
Rules of Court, an objection that the question in the cross-examination is
on a matter not touched upon by the witness in his testimony will seldom
be sustained provided the question covers matters allowed to be asked by
way of cross-examination. This is because the rule allows questions
designed to test the accuracy and truthfulness of the witness, his freedom
from interest and bias, or the reverse, and to elicit all important facts
bearing upon the issue (Sec. 6, Rule 132, Rules of Court). Although Sec. 6 of
Rule 132 allows the cross-examiner a wide latitude in asking his questions,
the ideal cross-examination should cover only major points or the key
areas of the testimony of the witness. An exhaustive and a very lengthy
cross-examination may cause the court to feel sympathy for the witness,
especially for those suffering from some form of infirmity.
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Cross examination has two basic purposes, namely: (a) To bring
out facts favorable to counsel's client not established by the direct
testimony (Jackson vs. Feather River Water Co., 1859 14 C 18); and (b) To
enable counsel to impeach or to impair the credibility of the witness (Kelly
vs. Bailey 1961189 CA2d 728, 11 CR 448).
3. Re-direct examination - This examination is conducted after
the cross examination of the .witness. The party who called the witness on
direct examination may re-examine the same witness to explain or
supplement his answers given during the cross-examination. It is the
examination of a witness by the counsel who conducted the direct
examination after the cross-examination. In redirect examination the
counsel may elicit testimony to correct or repel any wrong impression or
inferences that may have been created in the cross-examination. It may
also be an opportunity to rehabilitate a witness whose credibility has been
damaged. In its discretion, the court may even allow questions on matters
not touched in the cross-examination (Sec. 7, Rule 132, Rules of Court).
4. Re-cross examination - This is the examination conducted
upon the conclusion of the re-direct examination. Here the adverse party
may question the witness on matters stated in his re-direct examination
(Sec. 8, Rule 132, Rules of Court).
Death or absence of a witness
If the witness dies before his cross-examination is over, his
testimony on the direct may be stricken out only with respect to the
testimony not covered cross-examination. The absence of the witness is
not enough to warrant striking out his testimony for failure to appear for
further cross-examination where the witness has already been sufficiently
cross-examined, and the matter on which cross-examination' is sought is
not in controversy (People vs. Seneris, 99 SCRA 92).
2. If the witness was not cross-examined because of causes
attributable to the cross-examining party and the witness had always made
himself available for cross-examination, the direct testimony of the
witness shall remain in the record and cannot be ordered stricken off
because the cross-examiner is deemed to have waived the right to cross-
examined the witness (De la Paz us. Intermediate Appellate Court, 154 SCRA
65).
Recalling a witness
If a witness has been examined by both sides, the witness cannot
be recalled without leave of court. Recalling a witness is a matter of
judicial discretion. In the exercise of its discretion, the court shall be
guided by the interests of justice (Sec. 9, Rule 132, Rules of Court).
Leading questions
1. A leading question is one that is framed in such a way that the
question indicates to the witness the answer desired by the party asking the
question. In the words of Sec. 10 of Rule 132, it is a question "which
suggests to the witness the answer which the examining party desires."
Leading questions are not appropriate in direct and re-direct examinations
particularly when the witness is asked to testify about a major element of
the cause of action or defense. Leading questions are allowed in cross and
re-cross examinations. In fact, leading questions are the types of questions
that should be employed in a cross-examination. Such questions enable the
counsel to get the witness to agree with his client's version of the facts.
Most lawyers will agree that a "why" question should not be asked in
cross-examination. This kind of question allows witness to explain his or
her position, emphasize key points of harmful testimony and control the
pace and scope of the examination. It invites the witness to deliver an
unwanted "lecture" in the courtroom. Short and leading questions will help
control the witness.
2. Leading questions are however, allowed in a direct examination
in the following instances: (a) on preliminary matters; (b) when the witness
is ignorant, or a child of tender years, or is feeble-minded or a deaf-mute
and there is difficulty
in getting direct and intelligible answers from such witness; (c) when the
witness is a hostile witness; or (d) when the witness is an adverse party,
or when the witness is an officer, director, managing agent of a
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corporation, partnership or association which is an adverse party (Sec. 10,
Rule 132, Rules of Court).
3. The following examples may be illuminating:
Illustration No. 1
The case is a collection case. The defendant contends
that the debt has been paid. He calls a witness to testify to the
fact of payment.
Q: While the plaintiff and the defendant were engaged in a
conversation on the date and time you mentioned, did you see
the defendant deliver fifty thousand pesos to the plaintiff?
The question is objectionable on the ground that it is
leading. Here the examiner obviously wants the witness to
directly testify that money was delivered by the defendant to the
plaintiff in his presence. The question could have been properly
framed in this manner: "What have you observed if any, while
the plaintiff and the defendant were engaged in a conversation?"
Illustration No.2
The fact situation is a robbery case. The accused claims
innocence and that a couple hours after the alleged robbery, he is
arrested by the police while in the park with his children.
Q: What were you doing in the park?
A: I was taking a stroll with my two adolescent children.
Q: While you were in the park with your children, the police
officers arrived to arrest you, is that true?
The question is leading. It suggests the next event which
the witness should testify to. The attorney could convert the
question into a non-leading one by taking the suggestive element
out of the question. Thus, "What happened if any, while you and
your children were at the park?"
Misleading questions
1. A misleading question is one which assumes as true a fact not yet
testified to by the witness, or contrary to that which he has previously
stated. It is not allowed (Sec. 10, Rule 132, Rules of Court) in any type of
examination.
2. Consider this illustration:
Counsel: "You testified that you and the accused were in a car
bound for Bagnio City. How fast were you driving?"
This question is objectionable as misleading where there was no
previous testimony from the witness that he was driving the car. The
question assumes a fact not yet in evidence.
Impeachment Of A Witness
1. Impeachment is basically a technique employed usually as part
of the cross-examination to discredit a witness by attacking his credibility.
Destroying credibility is vital because it is linked with a witness' ability and
willingness to tell the truth.
2. The rules enumerate certain guideposts in impeaching a witness:
(a) The impeachment of a witness is to be done by the party against
whom the witness is called (Sec. 11, Rule 132, Rules of Court).
Subject to certain exceptions, the party producing the witness is
barred from impeaching his own witness (Sec. 12, Rule 132, Rules of
Court). Thus, if D calls Was his witness, D is not allowed to
impeach the credibility of W. It is the adverse party, P against
whom W was called, who is accorded the privilege of impeaching
W.
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 EVIDENCE: TESTIMONIAL EVIDENCE
(b) If the witness is unwilling or hostile, the party calling him may
be allowed by the court to impeach the witness. But it is not for the
party calling the witness to make a determination that the witness
is unwilling or hostile. Whether or not a witness is hostile is
addressed to judicial evaluation and the declaration shall be made
only if the court is satisfied that the witness possesses an interest
adverse to the party calling him or there is adequate showing that
the reluctance of the witness is unjustified or that he misled the
party into calling him as a witness (Sec. 12, Rule 132, Rules of
Court). A party may be also be allowed to impeach his own witness
when said witness is an adverse party or is an officer, director, or
managing agent of a corporation, partnership or association which
is an adverse party (Sec. 12, Rule 132, Rules of Court).
(c) It is improper for the party calling the witness to present
evidence of the good character of his own witness. The same is
allowed only if the character of the witness has been impeached
(Sec. 14, Rule 132, Rules of Court). Thus, evidence of the good
character of the witness is allowed only to rebut the evidence
offered to impeach the witness’s character.
How to impeach a witness
1. There are specific ways provided by the rules for the
impeachment of a witness. Thus, a witness may be impeached through the
following modes:
(a) By contradictory evidence;
(b) By evidence that his general reputation for truth, honesty and
integrity is bad; or
(c) By evidence that he has made at other times statements
inconsistent with his present testimony (Sec. 11, Rule 132, Rules of
Court).
2. A witness cannot be impeached by evidence of particular
wrongful acts except evidence of his final conviction of an offense as
disclosed by his examination or by the record of the judgment (Sec. 11, Rule
132, Rules of Court). Thus, the witness cannot be impeached by enumerating
in court specific wrongful acts he had committed.
Impeachment by contradictory evidence
1. Every ethical trial lawyer will tell us that one basic rule in
impeaching a witness by contradictory evidence is the observance of
fairness. Fairness demands that the impeaching matter be raised in the
cross-examination of the witness sought to be impeached by allowing him
to admit or deny a matter to be used as the basis for impeachment by
contradictory evidence. Normally the basis of this mode of impeachment is
a declaration made by the witness in his direct testimony. The cross-
examiner's intention is to show to the court that there were allegations made
by the witness that do not correspond to the real facts of the case.
2. Illustration No.1
Witness A testifies on direct that he was barely five me-
ters away from where the accused D fired a shot at the victim, V.
The defense counsel has reliable information that at the time the
shooting took place, Witness A was standing as a witness in a
wedding of his friend, Witness B in a place a hundred miles away.
The defense counsel now asks:
Q: You testified that you were present when D shot V, is that right?
A: Perfectly right, Sir?
Q: Isn't it true that at the time of the alleged shooting of V by D, you
were in a wedding of your friend miles and miles away?
A: That isn't true. Sir. Absolutely not.
Because Witness A denied his being in a friend's wedding
at the time of the incident, the defense counsel now has the chance
to prove the contrary by a contradictory evidence. He can do so
by calling Witness B or any other witness to testify on the
whereabouts of Witness B on the relevant date and time.
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Impeachment by prior inconsistent statements
1. Prior inconsistent statements are statements made by a witness
on an earlier occasion which contradict the statements he makes during
the trial. In the words of Sec. 13 of Rule 132, they are "statements that he
has made at other times inconsistent with his present testimony." These
statements are admissible to impeach the credibility of the witness making
them. Impeachment by a prior inconsistent statement is the most
commonly used method because of its simplicity and the impact it makes
when properly used.
2. Effectively impeaching a witness by prior inconsistent
statements, requires laying the proper foundation. Laying the foundation
is a preliminary requirement that must be met before the impeachment
process prospers. The elements of this foundation are clearly spelled out
in Sec. 13 of Rule 132. These are:
(a) The alleged statements must be related to the witness including
the circumstances of the times and places and the persons present.
If the statements are in writing they must be shown to him;
(b) He must be asked whether he made such statements and also to
explain them if he admits making those statements .
3. The mere presentation of the prior declarations of the witness
without the same having been read to him while testifying in court is
insufficient for the desired impeachment of his testimony if he not given
the ample opportunity to explain the supposed discrepancy. This rule is
founded not only upon common sense but is essential to protect the
character of the witness (People us. De Guzman, 288 SCRA 346,354).
4. To achieve a dramatic effect, the first step in setting up the prior
inconsistent statement would actually be to ask the witness to repeat or
reaffirm his most recent statement. The second step would be to relate to
the witness his prior inconsistent statement and at the same time
"building up" or highlighting the contradictory utterance by relating to
the witness the circumstances of time, persons and place. Then the
witness is asked whether or not, the statements were made (Sec. 13, Rule
132, Rules of Court).
The underlying purpose for laying the foundation is to allow the
witness to admit or deny the prior statement and afford him an
opportunity to explain the same. Non-compliance with the foundational
elements for this mode of impeachment will be a ground for an objection
based on "improper impeachment." Over a timely objection, extrinsic
evidence of a prior inconsistent statement without the required
foundation is not admissible.
Illustration No.1
The case is a robbery case. The accused has Oriental
features and is five feet and three inches tall. The prosecution
witness is one who allegedly saw the culprit come out of the
crime scene.
Q: Mr. A, you testified on direct examination that the man you saw
come out of the burglarized store had Oriental features and was a
little over five feet tall. Is that correct?
A: Yes, Sir.
Q: Are you certain of your description of the man?
A: Very certain, Sir.
Q: And when was this?
A: On February 15, 2005, around 9:30 in the evening. That was the
date and time of the burglary.
Q: Do you recall having seen SP04 Morales outside the burglarized
store at around 10:00 of the same day and night?
A: I do, Sir. He spoke to me that night and asked me what I saw.
Q: And that was only thirty minutes from the time you saw the
man. Is that correct?
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A: That is correct, Sir. Q: Are you certain of that?

Q: And at that time, everything was still fresh in your mind. Right? A: Yes, Sir.

A: You're absolutely right.
Q: Do you recall telling SP04 Morales that you cannot give an
accurate description of the man who came out of the burglarized
store because he was wearing a bonnet over his face, had a pair of
gloves on and was wearing dark long sleeves?
Q: Do you recall having made a statement to the police thirty
minutes after the incident?
A: Yes, Sir. It was done before Detective Rosales.
Q: Your statement was reduced to writing, is that right?

At this point the witness gets boxed in, and his credibility starts A: Right, Sir.
crumbling no matter how he responds to the question asking him to
affirm or deny the prior inconsistent statement. If the witness admits the Q: After your statement was typed, it was shown to you, right?
prior inconsistent statement, the rule requires that he be allowed to
A: Yes, sir.
explain them. Often, it is difficult to explain inconsistent statements and
would require a lot of effort. If the witness denied making the statement, Q: He asked you to read the statement very carefully before you
it is imperative for the impeaching party to be prepared to present sign it. Am I correct?
another witness who would contradict the witness being impeached.
A: Yes, sir.
It happens sometimes that the prior inconsistent statement is in
writing. The process of laying the foundation is fundamentally the same Q: After making sure that the contents of the written statement
as when the prior statement is oral but if the statement be in writing it were correct, you signed the statement. Is that correct?
must be shown to the witness before any question is put to him
concerning it (Sec. 13, Rule 132, Rules of Court). A: That is correct, Sir.

Q: I am showing you a three-page statement entitled "Sinumpaang

Salaysay." Is this the statement you signed before Detective
Illustration No.2 Rosales?
The case is a murder case. The witness was inter~ A: It is, sir.
viewed by the police half an hour after the incident. In her
signed statement, she claimed that she did not actually see the Q: At the end of the last page is a name and signature over the
accused fire the shot that felled the victim but in her direct name. Is that your name and signature?
examination, she testified that she saw him firing once at the
victim. A: They are, Sir.

Q: Did you earlier testify that you saw the accused fire at the Counsel will now ask that the statement be marked as an exhibit
victim?
including the name and signature of witness. Then counsel will call the
A: I did, sir.
attention of the witness to the relevant "paragraph of her signed statement.
The reading of the "prior inconsistent statement must be verbatim, not a

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mere summary as: In paragraph 13 of this "Sinumpaang Salaysay," you
stated, and I quote ... "
Impeachment by showing bad reputation
1. When a witness testifies, he puts his credibility at issue
because the weight of his testimony depends upon his credibility. One
way to impair his credibility is by showing a .not so pleasing reputation.
Hence, the prevailing rule allows his impeachment by evidence that he has
a bad general reputation. However, the evidence of a bad reputation should
refer only to the following specific aspects: (a) for truth; (b) for honesty, or
(c) for integrity (Sec. 11, Rule 132, Rules of Court). These are aspects of a
person's reputation that are relevant to his credibility. He cannot be
impeached for his reputation on other grounds. Thus, it would be an
improper for a witness to be impeached because of his reputation for being
troublesome.
Example: Mr. W is called by the prosecution to testify that it was
indeed the accused who picked the pocket of the victim when the latter
accidentally tripped by the sidewalk. The defense later presents Mr. D who
testifies that Mr. W has a reputation for telling lies. The testimony of Mr.
D is an impeaching testimony to discredit Mr. W. Mr. D, who has testified
on the reputation of Mr. W may be cross-examined like any witness. He
may be asked on cross-examination about the extent of his familiarity with
the witness who is being impeached, together with any prejudice and
biases he may have against the witness or his stake and interest in the case.
Evidence of good character of the witness
1. Be it noted that the party calling a witness, cannot initiate proof
of his good character. Thus, if the plaintiff in a civil case presents Mr. W
to testify on a vehicular collision, the counsel is not allowed to ask
questions tending to show the good character or reputation of the witness.
Any question to that effect can be validly objected to as "improper
character evidence." Because a witness is presumed to be truthful and of
good character, the party presenting him does not have to prove he is good
because he is presumed to be one. It is only after his character has been
attacked, can he prove his being good. He must first be discredited before
his reputation or character can be bolstered. This basic procedural rule is
supported by the provisions of Sec. 14 of Rule 132: " ... Evidence of the
good character of a witness is not admissible until such character has been
impeached."
2. The rule that bars evidence of the good character of the witness
who has not yet been impeached has reference only to a mere witness. It
does not refer to an accused in a criminal case. In a criminal case, the
accused may proved his good moral character relevant to the offense
charged even before his character is attacked (Sec. 51[l], Rule 130, Rules
of Court). In fact, the prosecution cannot initiate proof of the bad character
of the accused. It can only do so by way of rebuttal (Sec. 51[2], Rule 130,
Rules of Court). This means that the prosecution can prove the bad
character of the accused only if the latter had first presented evidence of
his good character.
No impeachment by evidence of particular wrongful acts
1. Consider this example: The case is a criminal prosecution for
robbery. The defense is presenting its evidence-in-chief and calls its first
witness who is called to impeach the primary witness of the prosecution.
The defense counsel asks a series of questions to show specific instances
of misconduct of the prosecution witness.
Q: Do you know the prosecution witness?
A: I do.
Q: How did you come to know him?
A: Two years ago, he robbed me of my wallet at gun point.
Q: Was that incident the first time you came to know the
prosecution witness?
A: No Sir.
Q: Why do you say so.
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A: Prior to my being robbed by him, he stole the carabao of my
neighbor.
Is this line of questioning objectionable? Certainly it is. A witness
cannot be impeached by evidence of particular wrongful acts (Sec. 11,
Rule 142, Rules of Court). Just as a witness cannot testify on specific acts
of misconduct committed by the witness being impeached, the latter
cannot also be examined on particular wrongful acts done by him. To do
so would be a contravention of the tenor of Sec. 11 of Rule 132. As earlier
mentioned, he can nevertheless, be impeached as to his bad reputation for
truth, honesty or integrity. Thus:
Q: How long have you known the prosecution witness?
A: Since childhood, Sir.
Q: How well do you know him?
A: Very well, Sir.
Q: Why do you say so?
A: We studied in the same school since nursery school until we
both graduated from college. We were also neighbors since
childhood.
No impeachment by evidence of bad character but by
bad reputation
"Character" is made up of the things an individual actually is and
does, whereas "reputation" is what people think an individual is and what
they say about him (Mcnaulty vs. State, 138 Tex.Cr.R. 317. 135 S. W.2d
987,989; James vs. state ex rel. Loser, 24 Tenn.App. 453, 145 S. W.2d
1026,1033 cited in Blacks 1172). Hence, a person's reputation is not
necessarily his character and vice versa. It should be noted that Sec.11 of
Rule 132 allows impeachment of a witness by evidence of bad reputation,
not evidence of bad character.
Q: What can you say about his reputation?
A: Terrible, Sir. He is dishonest and untruthful.
This line of questioning does not violate the rules on im-
peachment. This is not an impeachment by evidence of specific wrongful
conduct which is barred, but an impeachment by evidence of bad
reputation.
2. As earlier mentioned, Sec. 11 of Rule 132 disallows the
impeachment of a witness by evidence of his particular wrongful acts.
There is however, a particular wrongful act that is admissible in evidence
- his prior conviction of an offense. This prior conviction of the witness is
shown through either of two ways: (a) by his examination, i.e., by cross-
examining him, or (b) by presenting the record of his prior conviction.
Examining another witness to elicit from his lips the prior
conviction of another witness is not the correct procedure. The rule is
clear on this. It should be by "the examination of the witness." This
witness is the one whose prior conviction is the subject of inquiry.
Exclusion and separation of witnesses
1. The judge may exclude a witness who at the time of exclusion
is not under examination so that he may not hear the testimony of other
witnesses (Sec. 15, Rule 132, Rules of Court).
2. The judge may cause the witnesses to be kept separate and to be
prevented from conversing with one another until all shall have been
examined (Sec. 15, Rule 132, Rules of Court).
When the witness may refer to a memorandum
1. During his testimony, in order to refresh his memory, a witness
may refer to a memorandum or to anything written or recorded by himself
or written or recorded by someone acting under his direction. Such
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memorandum should have been written at the time the fact occurred or
immediately thereafter or at any time when the event or fact was fresh in
his memory. It is necessary too that the witness affirm that the fact was
correctly written or recorded. Also, the memorandum must be produced
and may be inspected by the adverse party (Sec. 16, Rule 132, Rules of
Court).

2. The witness may testify from the memorandum, writing or

record, although he has no more recollection of the facts written therein as
long as he swears that the memorandum, writing or record correctly stated
the fact or transaction when the recording was made. This type of
evidence must however, be received with caution (Sec. 16, Rule 132, Rules
of Court).

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