Diokno Evidence Part 2

ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
Evidence for Barristers
Part 2
(Version 2020)
Dean Chel Diokno
www.chanroblesbar.com : www.chanroblesbar.com.ph
Let’s recap:
¾ We’ve taken up the first 4 questions of evidence:
¾ 1. What facts constitute my cause of action or defense?
¾ 2. Which of these facts - or of evidentiary facts tending to

prove them - are deemed proved without need of adducing
evidence? (judicial notice and judicial admissions)
¾ 3. Who must establish the facts that remain to be proved?

(burden of proof and presumptions)
¾ 4. What degree of proof is needed of these facts? (weight

and sufficiency of evidence, quantum of evidence,
circumstantial evidence, interpretation of written
agreements, evidence on motions)
Jose M. I. Diokno - All Rights Reserved 2
We’re now on the 5th Question of Evidence:
¾ 5. What available evidence is

admissible to prove these facts?
The 5th question of evidence is all about

admissibility.
So let’s start with the

two basic rules of admissibility:
Sec. 3, Rule 128: Admissibility of evidence. –

¾ Evidence is admissible when it’s—
¾ 1. Relevant
¾ induces a belief in the existence or

nonexistence of a fact in issue; and
¾ 2. Competent
¾ not excluded by the Constitution, the law or

the Rules of Court.
For example, in a homicide case, a secret tape

recording of a private conversation between A and B,
duly authenticated by B on the witness stand,
where A admitted that he killed C –
O Is relevant;
O But it’s excluded by law (RA 4200) as it was

made without A’s consent.
Sec. 4, Rule 128: Relevancy; collateral matters. –
¾ To be relevant, evidence must have such a relation to the

fact in issue as to induce a belief in its existence or non-
existence.
¾ Evidence on collateral matter is not allowed, except

when it tends in any reasonable degree to establish the
probability or improbability of the fact in issue.
Sec. 4 , Rule 128 has blurred the distinction between

relevance & materiality. Just so it’s clear, the concepts are
defined below:
¾ Evidence is RELEVANT if it ¾ Evidence is MATERIAL if

has a tendency, in reason, it’s being offered to
to prove that a fact exists prove a disputed fact –
in accordance with a fact that has been put
common knowledge and in issue by the parties.
experience.
For example: lack of consideration in a breach of contract case is
always relevant. But it is immaterial if it was not pleaded as a
defense by the defendant in his/her Answer.
When you’re asked to determine if certain evidence is

admissible, your analysis must include the following:
¾ 1. Is it relevant?
¾ Does it relate to a fact in issue as to induce belief in
its existence or non-existence?
¾ Does it tend in any reasonable degree to establish
the probability or improbability of a fact in issue?
¾ 2. Is it excluded—
¾ by the Constitution?
¾ by law?
¾ by these Rules?
There’s a third component of the admissibility—

AUTHENTICATION:
¾ 3. Has the evidence been duly authenticated/has the proper
basis been laid for its admissibility?
¾ For example:
¾ Testimonial evidence:
¾ Ordinary witness > personal knowledge
¾ Expert witness > duly qualified as expert
¾ Object evidence: chain of custody or ready
identifiability
¾ Private document:
¾ Witness who saw it executed, or
¾ Witness familiar with the author’s handwriting or
signature; or
Jose M. I. Diokno -¾
AllHandwriting/questioned
Rights Reserved document expert 10
To recap – basic rule of admissibility:

¾ Evidence is admissible when it’s—
¾ 1. Relevant;
¾ 2. Competent; and
¾ 3. Duly authenticated.
The 5th Question of Evidence has the most number of rules.

These include the following:
¾ Rules of admissibility for testimonial evidence

(who can testify, and what can they say on the
witness stand);
¾ Rules of admissibility for object (physical)

evidence;
¾ Rules of admissibility for documentary evidence

(paper-based public and private documents,
demonstrative evidence, electronic documents)
Let’s begin with the rules of admissibility for testimonial

evidence
¾ Qualified and disqualified ¾ Disqualified by reason of
witnesses; testimonial privileges:
¾ Disqualified testimony: ¾ Parental and filial privilege
¾ Lacks personal ¾ Trade secrets privilege
knowledge; ¾ Admissions & confessions;
¾ Disqualified by reason ¾ Hearsay, independently
of marriage relevant statements, and
¾ Disqualified by reason hearsay exceptions;
of privileged ¾ Previous conduct as
communications evidence;
¾ Husband-wife; ¾ Opinion evidence; and
¾ Attorney-client; ¾ Character evidence.
¾ Physician-patient;
¾ Priest-penitent;
¾ Public officers.
Who can and cannot testify?

(Sec. 20, Rule 130)
¾ 1.1. General rule (sec. 20):
¾ All persons who can perceive and can make

known their perceptions to others, can testify.
¾ Religious or political belief, interest in the

outcome of the case, or conviction of a crime
unless otherwise provided by law, shall not be
ground for disqualification.
Himayin natin ang general rule:
¾ For a person to testify as an ordinary witness, s/he must

have the following faculties:
¾ 1. Ability to observe (acquire information thru his/her
senses);
¾ 2. Ability to remember what s/he observed;
¾ 3. Ability to communicate the information to others.
¾ The rules disqualifying persons to testify refer to the

absence of one or more of these abilities.
Who cannot testify/

who are disqualified from testifying?
¾ Old rule: the following persons are disqualified from being

witnesses:
¾ (1) Those incapable of intelligently making known their
perception to others;
¾ (2) Children whose mental maturity renders them incapable
of perceiving the facts they will testify on and relating them
truthfully.
¾ But the 2020 Amended Rules on Evidence have done away

with this.
The basic rule is now found in the Child Witness Rule

[A.M. NO. 004-07-SC, November 21, 2000]
¾ Sec. 6: Competency. - Every child is presumed qualified to be

a witness. However, the court shall conduct a competency
examination of a child, motu proprio or on motion, when it
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.
¾ XXX
¾ (f) Continuing duty to assess competence. - The court has the

duty of continuously assessing the competence of the child
throughout his testimony.
A “child witness” includes--
¾ Any person who at the time of giving testimony is

below the age of 18 years; and
¾ In child abuse cases, persons over 18 years but who

are found by the court as unable to fully take care of
themselves or protect themselves from abuse,
neglect, cruelty, exploitation, or discrimination
because of a physical or mental disability or
condition.
¾ Sec. 4(a), Child Witness Rule
People v. Pruna (2002) – child witness, victim of rape
¾ At the time of the incident, the victim was 3 years old.

¾ When she testified, she was 4 years old.
¾ Defense questioned her competence to testify.
¾ Court held:
¾ As a general rule, when a witness takes the witness
stand, the law, on ground of public policy, presumes
that he is competent.
¾ The court cannot reject the witness in the absence of
proof of his incompetency.
¾ The burden is, therefore, on the party objecting to the
competency of a witness to establish the ground of
incompetency.
¾ No precise minimum age can be fixed at which children

shall be excluded from testifying.
¾ The intelligence, not the age, of a young child is the test

of the competency as a witness.
¾ A child, regardless of age, can be a competent witness

if s/he can perceive and, in perceiving, can make
known his perception to others; and that s/he is
capable of relating truthfully the facts for which s/he is
examined.
¾ People v. Pruna (2002)
¾ To determine the competency of a child witness, the

court must consider the capacity of the child—
¾ (a) “to receive correct factual impressions” [i.e.,

to accurately perceive] at the time the incident
occurred;
¾ (b) to comprehend the obligation of an oath

when s/he testifies; and
¾ (c) to relate the facts truly to the court at the

time s/he testifies.
In Pruna, the child testified:
COURT: Do you know what will happen to a child if

she is not telling the truth?
A "Sa lupa."
Q: Do you know that it is a sin to tell a lie?
A: Yes, sir.
¾ The child’s statement that she’ll be sent to hell (“sa

lupa”) if she tells a lie shows that she understands the
meaning of the oath and that she knows it’s wrong to
lie.
¾ The question of competency of a child witness rests

primarily in the sound discretion of the trial court.
¾ The trial judge can observe the child’s manner of testifying,

presence or lack of intelligence, and understanding of the
obligation of an oath.
¾ Just like other trial court findings, this determination will

not be disturbed or reversed on appeal unless it’s clearly
erroneous.
¾ Pruna: The defense questioned the competency of the

victim solely on the ground of her age.
¾ Failed to discharge the burden of showing her mental

immaturity.
¾ From her testimony, the child had the capacity of

observation, recollection, and communication and could
discern the consequence of telling a lie.
¾ Trial court correct in admitting her testimony and giving it

great weight.
¾ People v. Pruna, en banc, GR 138471, October 10, 2002
How about adults with the mental age of children

in non-child abuse cases?
People v. Hamto (2001)
¾ Rape case.
¾ Witness -- victim Mary Grace –
¾ 24 YO but with a mental age of a 7 YO.
¾ IQ level of 35-42, "diminutive deficit in adoptive
functioning."
¾ Psychiatric examination:
¾ MG “perceptive but had difficulty in interpretation;”
¾ “She could tell what happened but found it difficult
to know the meaning of things.”
¾ Court held:
¾ Although MG was mentally retarded, her testimony
can’t be discredited.
¾ All persons who can perceive, and perceiving can
make known their perception to others, may be
witnesses.
¾ Mary Grace’s intellectual weakness doesn’t make
her incompetent as a witness since at the time she
testified—
¾ She had the mental capacity to distinguish between
right and wrong,
¾ She understood the nature and obligation of an
oath, and
¾ She gave a fairly intelligent and reasonable narrative
Jose M. I. Diokno of
- Allthe
Rightsincident.
Reserved 26
¾ Mary Grace was able to testify clearly and

persuasively.
¾ The psychiatrist who examined her testified that MG

was capable of being receptive and perceptive. She
could tell what happened but found difficulty in
interpreting things.
¾ We agree with the trial court's finding that Mary

Grace's credibility commands great weight and
respect.
¾ People
Jose M. I. Diokno v. Hamto
- All Rights Reserved (2001) 27
People v. Francisco Bustos, GR L-27200, Jan. 20, 1928
¾ Prosecution witness > Soledad, PWD who couldn’t hear and

couldn’t talk (deaf-mute).
¾ Soledad’s testimony - interpreted by a teacher from the deaf

and dumb school.
¾ For PWD’s like Soledad, the interpreter must know the

meaning of their signs, either from having had them taught to
him, or from having acquired a knowledge of them through
frequent contact with PWD.
¾ Otherwise it’d be dangerous to rely on the interpretation,

specially since the life and liberty of an accused are at stake.
¾ The interpreter here didn’t know the meaning of some of

Soledad’s signs.
¾ Soledad was not her student.
¾ She had had no interaction with Soledad that would
have given her an opportunity to acquire some
knowledge of the meaning of her sign language.
¾ Thus, it wouldn’t be prudent to admit the Soledad’s

testimony as interpreted by the teacher.
Who else is disqualified from being a witness?
Disqualification by reason of marriage

[Sec. 23, Rule 130, Rules on Evidence as amended by A.M. No. 19-08-15-SC effective May 1, 2020]
¾ During their marriage, H can’t testify against W and W can’t

testify against H, without the consent of affected spouse,
except:
¾ In a civil case by one against the other; or
¾ In a criminal case where the spouse is charged with

committing a crime against the other spouse or the
latter’s direct descendants/ascendants.
Take note! There are two separate provisions

prohibiting spousal testimony:
¾ Disqualification by reason ¾ Disqualification by reason of
of marriage: privileged communication:
¾ Sec. 23 which disqualifies ¾ Sec. 24(a) which prohibits a

a spouse from testifying spouse from being
against his/her spouse; questioned on privileged
and communications
(communications received in
confidence by one from the
other during the marriage).
Sec. 22 --------------vs.-------------- Sec. 24(a)

of Rule 130
¾ During their marriage ¾ During or after their marriage
¾ A spouse cannot testify against ¾ Spouses cannot be examined
the other spouse (i.e., questioned)
¾ [On matters learned in ¾ On matters learned in
confidence – US v. Antipolo] confidence
¾ Without the consent of the
affected spouse ¾ Without the consent of the
¾ Except: affected spouse
¾ Civil case by one against the ¾ Except:
other ¾ Civil case by one against the
¾ Criminal case by one other
against the other or the ¾ Criminal case by one against
latter’s direct ascendants or the other or the latter’s
descendants direct ascendants or
Jose M. I. Diokno - All Rights Reserved descendants 32
U.S. v. Antipolo (1918)
¾ Rationale for rule of disqualification by reason of

marriage:
¾ To protect statements made in confidence between H and
W;
¾ To protect the H/W from being compelled to reveal them.
¾ But here, what is involved is not a confidential

communication but a dying declaration.
¾ When a person makes a dying declaration, the

communication is in no sense confidential. On the
contrary, the declaration is made so that the
Jose M.authorities will
I. Diokno - All Rights know who caused the declarant’s
Reserved 33
death.
¾ TAKE NOTE: There used to be a fourth type of disqualified

witness under the “Dead man’s statute” rule but this was
deleted by the SC in the 2020 Rules on Evidence.
¾ Dead man’s statute, simplified:
¾ A plaintiff, his/her assignor, or one in whose behalf a case
is prosecuted,
¾ cannot testify on any factual matter occurring before the
death or insanity of the adverse party,
¾ in a case involving a claim or demand against the estate of
that dead or insane person.*
¾ *Adverse party is
executor/administrator/representative of the dead or
insane person.
¾ (Sec. 23, R130)
While this has been deleted in 2020 Rules on

Evidence, it is now a hearsay exception (with some
modifications).
Let’s move on to disqualifications by reason of

privileged communications
¾ The persons mentioned here can testify, but
they can’t be examined (questioned) on

communications that are privileged.
2. Disqualified Testimony
¾ 2.1. Communications received in confidence between H &
W:
¾ Section 24. The following cannot testify as to matters

learned in confidence in the following cases:
¾ (a) The H or the W, during or after the marriage, cannot be

examined without the consent of the other as to any
communication received in confidence by one from the
other during the marriage except in a civil case by one
against the other, or in a criminal case for a crime
committed by one against the other or the latter's direct
descendants or ascendants.
2.2. Lawyer-client privilege
[The oldest of the privileges…]
¾ An attorney or person reasonably believed by the

client to be licensed to engage in the practice of law
cannot, without the consent of the client, be
examined as to any communication made by the
client to him or her, or his or her advice given
thereon in the course of, or with a view to,
professional employment, nor can an attorney's
secretary, stenographer, or clerk, or other persons
assisting the attorney, concerning any fact the
knowledge of which has been acquired in such
capacity, except:
¾ Except:
¾ (i) Furtherance of crime or fraud. If the services or

advice of the lawyer were sought or obtained to
enable or aid anyone to commit or plan to commit
what the client knew or reasonably should have
known to be a crime or fraud;
¾ (ii) Claimants thru same deceased client. As to a
communication relevant to an issue between parties
who claim thru the same deceased client, regardless
of whether the claims are by testate or intestate or
by inter vivos transaction;
¾ (iii) Breach of duty by lawyer or client. As to a
communication relevant to an issue of breach of duty
by the lawyer to his or her client, or by the client to
his or her lawyer;
¾ (iv) Document attested by the lawyer. As to a

communication relevant to an issue concerning an
attested document to which the lawyer is an
attesting witness; or
¾ (v) Joint clients. As to a communication relevant to a

matter of common interest between two or more
clients if the communication was made by any of
them to a lawyer retained or consulted in common,
when offered in an action between any of the
clients, unless they have expressly agreed otherwise.
Himayin muna natin ang general rule:

¾ An attorney or person reasonably believed by the client
to be licensed to engage in the practice of law,
¾ cannot be examined as to
¾ any communication made by the client to him or
her,
¾ or his or her advice given thereon in the course of,
or with a view to, professional employment,
¾ without the client’s consent of the client,
¾ Except (1) furtherance of crime or fraud, (2) claimants

thru same deceased client, (3) breach of duty by lawyer
or client, (4) document attested by the lawyer, or
Jose M. I. (5)joint clients.
Diokno - All Rights Reserved 40
¾ The attorney's secretary, stenographer, or clerk, or

other persons assisting the attorney,
¾ cannot be examined concerning any fact the

knowledge of which has been acquired in such
capacity,
¾ without the client’s consent of the client,
¾ Except (1) furtherance of crime or fraud, (2)

claimants thru same deceased client, (3) breach of
duty by lawyer or client, (4) document attested by
the lawyer, or (5)joint clients.
The 2020 Amended Rules on

Evidence now contain
express exceptions where the
L-C privilege does not apply
1st exception: Furtherance of crime or fraud.
¾ Privilege does not apply in cases where the

services or advice of the lawyer were sought
or obtained to enable or aid anyone to
commit or plan to commit what the client
knew or reasonably should have known to be
a crime or fraud.
Example of 1st Exception

¾ Client Mr. X engages lawyer Y to conceal or “launder”
stolen funds or ill gotten wealth.
¾ Court compels lawyer Y to reveal identity of client and

documents he prepared for that purpose. Lawyer Y invokes
lawyer-client privilege.
¾ Judge can compel lawyer Y to disclose identity and submit

documents.
¾ Privilege does not apply where the services or advice of

the lawyer were sought or obtained to enable or aid
anyone to commit or plan to commit what the client knew
or reasonably should have known to be a crime or fraud.
2nd exception: Claimants thru same deceased client.
O The L-C privilege does not apply to a

communication relevant to an issue between
parties who claim thru the same deceased
client, regardless of whether the claims are
by testate or intestate or by inter vivos
transaction.
Example of 2nd exception
¾ A dies, leaving a number of properties. B and C both

claim a right to the A’s properties.
O When there’s a dispute between parties claiming a

right to the property of a deceased client, the lawyer
of the deceased client cannot invoke the L-C
privilege.
O The L-C privilege, in other words, does not apply to a

communication relevant to an issue between parties
who claim thru the same deceased client, regardless
of whether the claims are by testate or intestate or
by inter vivos transaction.
3rd exception: Breach of duty by lawyer or client.
¾ Privilege does not apply to a communication

relevant to an issue of breach of duty by the
lawyer to his or her client, or by the client to
his or her lawyer.
Example of 3rd exception
O Client sues his lawyer for malpractice.
O L-C privilege does not apply where disclosure

of confidential communications is necessary
for the lawyer’s own protection.
4th exception: Document attested by the lawyer.

relevant to an issue concerning an attested
document to which the lawyer is an attesting
witness.
Example of 4th exception
O A asks Atty. G to be an attesting witness to A’s

will and Atty. G agrees.
O Later, Atty. G is called to the witness stand to
answer questions about the execution of the
will. Can Atty. G invoke L-C privilege?
O No, because (1) there’s no lawyer-client
relationship; and (2) the client’s consent to
the lawyer being an attesting witness = waiver
of L-C privilege for communications relevant
to the execution and validity of the will.
5th exception: Joint clients.

relevant to a matter of common interest
between two or more clients if the
communication was made by any of them to
a lawyer retained or consulted in common,
when offered in an action between any of
the clients, unless they have expressly
agreed otherwise.
¾ Straightforward and self-explanatory.

Take note:
¾ Purpose of L-C P > to encourage clients to make full
disclosure to their lawyers.
¾ Client must give his/her informed consent before the
lawyer can disclose privileged communications.
¾ For the privilege to apply, the communication must have
been confidential.
¾ When a third party is present or overhears the
conversation, the seal of confidentiality is broken and
L-C P does not apply.
¾ L-C privilege continues even after the client's death.
¾ The L-C privilege extends to similar communications made
to or received by a law student acting for the legal clinic.
¾ Sec. 3, Rule 138-A
¾ L-C P applies only when the communication is for a

lawful purpose or in furtherance of a lawful end
(People v. SB, 275 SCRA 505).
¾ L-C P covers statements to a lawyer relating past
misconduct constituting a crime, tort or fraud. But it
does not cover ongoing or future crimes or frauds.
¾ For example:
¾ Client tells lawyer that he killed his wife. Lawyer advises
client to hide the murder weapon. Is the lawyer’s advice
covered by the L-C P?
¾ No. It does not relate to past misconduct but to
ongoing/future misconduct.
¾ Take note of Canon 21, Rule 1, Code of Professional

Responsibility:
¾ A lawyer shall not reveal the confidences or secrets

of his/her client, except:
¾ When authorized by the client after acquainting
him/her of the consequences of the disclosure;
¾ When required by law;
¾ When necessary to collect his/her fees, or to
defend himself/herself, his employees or
associates or by judicial action.
Cases on Lawyer-Client Privilege
Regala v. SB, GR 105938 Sept. 20, 1996

¾ July 31, 1987 - PCGG filed a complaint w SB for recovery of
alleged ill-gotten wealth, including shares of stocks in UCPB,
UNICOM, COCOLIFE, COCOMARK, CIC, and more than 20 other
coconut levy funded corporations.
¾ Defendants:
¾ Eduardo M. Cojuangco, Jr.;
¾ Members of the ACCRA Law Firm who assisted in the
organization and acquisition of the corporations included in
Civil Case No. 0033, and who acted as incorporators and/or
nominees-stockholders thereof:
¾ Petitioners Teodoro Regala, Edgardo J. Angara, Avelino V.
Cruz, Jose C. Concepcion, Rogelio A. Vinluan, Victor P.
Lazatin, Eduardo U. Escueta and Paraja G. Hayudini, and
¾ Private respondent Raul S. Roco.
¾ August 20, 1991, PCGG filed a "Motion to Admit Third

Amended Complaint" and "Third Amended Complaint"
which excluded private respondent Raul Roco from the
complaint in PCGG Case No. 33 as party-defendant.
¾ PCGG excluded Roco after he executed an undertaking to

identity of the principals for whom he acted as
nominee/stockholder in the companies involved in PCGG
Case No. 33.
¾ Petitioners were included in the Third Amended

Complaint on the strength of the following allegations:
¾ Expanded Amended Complaint alleged:
¾ 14. Defendants…plotted, devised, schemed conspired and

confederated with each other in setting up, through the use of
the coconut levy funds, the financial and corporate framework
and structures that led to the establishment of UCPB, UNICOM,
COCOLIFE, COCOMARK, CIC, and more than 20 other coconut
levy funded corporations, including the acquisition of San
Miguel Corporation shares and its institutionalization through
presidential directives of the coconut monopoly. Through
insidious means and machinations, ACCRA, being the wholly-
owned investment arm, ACCRA Investments Corporation,
became the holder of approximately 15 million shares
representing roughly 3.3% of the total outstanding capital stock
of UCPB as of 31 March 1987….On the other hand, corporate
books show the name Edgardo J. Angara as holding
approximately 3,744 shares as of February, 1984.
¾ In their Answer, the ACCRA lawyers alleged that their acts

were “in furtherance of legitimate lawyering.”
¾ They also demanded, in a "COMMENT AND/OR OPPOSITION"

with Counter-Motion, that the PCGG grant them the same
treatment (exclusion as parties-defendants) as private
respondent Roco.
¾ PCGG "Comment”: set the following conditions precedent for

excluding petitioners:
¾ (a) the disclosure of the identity of its clients;
¾ (b) submission of documents substantiating the lawyer-
client relationship; and
¾ (c) submission of the deeds of assignments petitioners
executed in favor of its client covering their respective
shareholdings.
¾ Sandiganbayan denied the ACCRA lawyers motion to be

excluded because they refused to comply with the conditions
required by PCGG:
¾ ACCRA lawyers may take the heroic stance of not
revealing the identity of the client for whom they have
acted, i.e. their principal, and that will be their choice.
But until they do identify their clients, considerations of
whether or not the privilege claimed by the ACCRA
lawyers exists cannot even begin to be debated. The
ACCRA lawyers cannot excuse themselves from the
consequences of their acts until they have begun to
establish the basis for recognizing the privilege; the
existence and identity of the client.
¾ The PCGG has apparently offered to the ACCRA lawyers

the same conditions availed of by Roco; full disclosure
in exchange for exclusion from these proceedings. The
ACCRA lawyers have preferred not to make the
disclosures required by the PCGG. The ACCRA lawyers
cannot, therefore, begrudge the PCGG for keeping
them as party defendants. In the same vein, they
cannot compel the PCGG to be accorded the same
treatment accorded to Roco.
¾ Neither can this Court.
¾ WHEREFORE, the Counter Motion… is DENIED for lack

of merit.
¾ SC majority held:
¾ The general rule in our jurisdiction as well as in the U.S. is that a
lawyer may not invoke the privilege and refuse to divulge the
name or identity of this client.
¾ The reasons for the general rule are well established:
¾ First, the court has a right to know that the client whose
privileged information is sought to be protected is flesh and
blood.
¾ Second, the privilege begins to exist only after the attorney-
client relationship has been established. The attorney-client
privilege does not attach until there is a client.
¾ Third, the privilege generally pertains to the subject matter of
the relationship.
¾ Finally, due process considerations require that the opposing
party should, as a general rule, know his adversary. "A party
suing or sued is entitled to know who his opponent is." He
cannot be obliged to grope in the dark against unknown
forces.
¾ The general rule, however, is qualified by some important

exceptions (citing US authorities):
¾ 1) Client identity is privileged where a strong probability exists
that revealing the client's name would implicate that client in
the very activity for which he sought the lawyer's advice.
¾ 2) Where disclosure would open the client to civil liability, his
identity is privileged.
¾ 3) Where the government's lawyers have no case against an
attorney's client unless, by revealing the client's name, the said
name would furnish the only link that would form the chain of
testimony necessary to convict an individual of a crime, the
client's name is privileged.
Summarizing these exceptions, information relating to the
identity of a client may fall within the ambit of the privilege
when the client's name itself has an independent significance,
such that disclosure would then reveal client confidences.
¾ This case falls under at least 2 exceptions to the general rule.

First, disclosure of the alleged client's name would lead to
establish the client's connection with the very fact in issue of
the case, which is privileged information, because the
privilege protects the subject matter or the substance
(without which there would be no attorney-client
relationship).
¾ The link between the alleged criminal offense and the legal
advice or legal service sought was duly established by no less
than the PCGG itself, when it set conditions for excluding Ps:
¾ (a) disclosure of the identity of its clients;
¾ (b) submission of documents substantiating the lawyer-
client relationship; and
¾ (c) submission of the deeds of assignment petitioners
executed in favor of their clients covering their
respective shareholdings.
¾ The Court distinguished between a case where a client takes

on the services of an attorney for illicit purposes, seeking
advice about how to go around the law for the purpose of
committing illegal activities and a case where a client thinks
he might have previously committed something illegal and
consults his attorney about it and said that:
¾ The first case clearly does not fall within the privilege because
it can’t be invoked for illegal purposes. The privilege cannot be
used as a shield for an illegal act. It’s not within the
professional character of a lawyer to give advice on the
commission of a crime. The second case, on the other hand is
covered by the L-C P.
¾ But the Court did not apply this distinction to the facts of the
case.
DAVIDE, JR., J.: dissenting

¾ 1. The invocation of L-C P is premature.
¾ 2. The L-C P is not a cause to exclude a party. It is merely a ground

for disqualification of a witness and may only be invoked at the
appropriate time, i.e., when a lawyer is under compulsion to
answer as witness, as when, having taken the witness stand, he is
questioned as to such confidential communication or advice, or is
being otherwise judicially coerced to produce, through subpoena
duces tecum or otherwise, letters or other documents containing
the same privileged matter.
¾ 3. None of the lawyers in this case is being required to testify

about or otherwise reveal "any [confidential] communication
made by the client to him, or his advice given thereon in the
course of, or with a view to, professional employment."
¾ The ACCRA lawyers are being given a choice: to disclose the

identity of their clients to the PCGG and the Court if they
want to be excluded from the complaint; or not to disclose.
The revelation is entirely optional, discretionary, on their
part. The attorney-client privilege is not therefore
applicable.
¾ Thus, the Sandiganbayan did not commit any abuse of

discretion when it denied the petitioners' prayer for their
exclusion as party-defendants because they did not want to
abide with any of the conditions set by the PCGG. There
would have been abuse if the Sandiganbayan granted the
prayer because then it would have capriciously, whimsically,
arbitrarily, and oppressively imposed its will on the PCGG.
¾ The majority seeks to expand the scope of the

Philippine rule on the lawyer-client privilege by copious
citations of American jurisprudence.
¾ In the cases cited by the majority, however, the lawyers

concerned were merely advocating the cause of their
clients but were not indicted for the charges against
their said clients.
¾ Here, the counsel themselves are co-defendants duly

charged in court as co-conspirators in the offenses
charged. The cases cited by the majority do not apply
to them.
¾ “…Prostitution of the honorable relation of

attorney and client will not be permitted under the
guise of privilege, and every communication made
to an attorney by a client for a criminal purpose is a
conspiracy or attempt at a conspiracy which is not
only lawful to divulge, but which the attorney
under certain circumstances may be bound to
disclose at once in the interest of justice.”
¾ We do not even have to go beyond our shores for an

authority that the lawyer-client privilege cannot be invoked
to prevent the disclosure of a client's identity where the
lawyer and the client are conspirators in the commission of a
crime or a fraud.
¾ Under our jurisdiction, lawyers are mandated not to counsel

or abet activities aimed at defiance of the law or at lessening
confidence in the legal system (Rule 1.02, Canon 1, Code of
Professional Responsibility) and to employ only fair and
honest means to attain the lawful objectives of his client
(Rule 19.01, Canon 19, Id.).
¾ These canons strip a lawyer of the lawyer-client privilege

whenever he conspires with the client in the commission of
a crime or a fraud.
¾ I then vote to DENY, for want of merit, the instant petition.

Mercado vs. Vitriolo, A.C. No. 5108, May 26, 2005

¾ Rosa Mercado filed a disbarment complaint against Atty. Vitriolo.
The complaint alleged that respondent maliciously instituted a
criminal case for falsification of public document against her, a
former client, based on confidential information gained from their
attorney-client relationship when he handled her civil case for
annulment.
¾ Atty. V alleged that Mercado had made false entries in the
Certificates of Live Birth of her children, Angelica and Katelyn Anne
indicating that she is married to a certain Ferdinand Fernandez, and
that their marriage was solemnized on April 11, 1979, when in
truth, she is legally married to Ruben G. Mercado and their
marriage took place on April 11, 1978.
¾ Mercado claimed that Atty. V’s falsification complaint against her

was based on information she had disclosed to him in confidence as
her lawyer in the annulment case.
SC held:
¾ Mercardo did not specify the alleged confidential
communication that Atty. V had allegedly disclosed without
her consent.
¾ Her claims were couched in general terms and lacked

specificity.
¾ It’s not enough to merely assert the attorney-client

privilege.
¾ The burden of proving that the privilege applies is placed

upon the party asserting the privilege.
¾ The Court took the occasion to restate basic principles

governing L-C P cases.
¾ Dean Wigmore cites the factors essential to establish the

existence of the L-C privilege, viz:
¾ (1) Where legal advice of any kind is sought,
¾ (2) from a professional legal adviser in his capacity as
such,
¾ (3) the communications relating to that purpose,
¾ (4) made in confidence,
¾ (5) by the client,
¾ (6) are at the client’s instance permanently protected,
¾ (7) from disclosure by the client or by the legal
advisor,
¾ (8) except when the protection is waived.
¾ For the L-C P to apply—

¾ (1) There must be an attorney-client relationship, or a
prospective attorney-client relationship, and it is by reason of this
relationship that the client made the communication;
¾ (2) The client must have made the communication in confidence.
No presumption arises from the existence of the L-C relationship.
The client must intend the communication to be confidential.
¾ A confidential communication refers to information
transmitted by voluntary act of disclosure between attorney
and client in confidence and by means which, so far as the
client is aware, discloses the information to no third person
other than one reasonably necessary for the transmission of
the information or the accomplishment of the purpose for
which it was given.
¾ (3) The legal advice must be sought from the attorney in his
professional capacity as a lawyer. The communication made by a
client to his attorney must not be intended for mere information,
but to seek legal advice as to his rights or obligations.
People vs. Sandiganbayan, G.R. 115439, July 16, 1997

¾ Lawyer present when client falsified docs, and filed them on
client’s behalf with Tanodbayan.
¾ SC held – L-C P does not apply because:
¾ Communication was not for a lawful purpose and was not in
furtherance of a lawful end.
¾ Lawyer engaged in conspiracy with client to commit a crime.
¾ “The testimony sought to be elicited from Sansaet as state

witness are the communications made to him by physical acts
and/or accompanying words of Parades at the time he and
Honrada, either with the active or passive participation of
Sansaet, were about to falsify, or in the process of falsifying, the
documents which were later filed in the Tanodbayan by Sansaet
and culminated in the criminal charges now pending in
respondent Sandiganbayan.”
¾ Clearly, therefore, the confidential communications thus made

by Paredes to Sansaet were for purposes of and in reference to
the crime of falsification which had not yet been committed in
the past by Paredes but which he, in confederacy with his
present co-respondents, later committed. Having been made
for purposes of afuture offense, those communications are
outside the pale of the attorney-client privilege.
¾ Furthermore, Sansaet was himself a conspirator in the

commission of that crime of falsification which he, Paredes
and Honrada concocted and foisted upon the authorities. It is
well settled that in order that a communication between a
lawyer and his client may be privileged, it must be for a lawful
purpose or in furtherance of a lawful end. The existence of an
unlawful purpose prevents the privilege from attaching.
¾ 3rd type of privileged communication:
¾ A physician, psychotherapist or person reasonably

believed by the patient to be authorized to practice
medicine or psychotherapy, cannot in a civil case,
without the consent of the patient, be examined as to
any confidential communication made for the purpose
of diagnosis or treatment of the patient’s physical,
mental or emotional condition, including alcohol or
drug addiction, between the patient and his or her
physician or psychotherapist.
¾ This privilege also applies to persons, including

members of the patient’s family, who have participated
in the diagnosis or treatment of the patient under the
direction of the physician or psychotherapist.
¾ A psychotherapist is:
¾ A person licensed to practice medicine
engaged in the diagnosis or treatment of a
mental or emotional condition, or
¾ A person licensed as a psychologist by the
government while similarly engaged.
Note: there is a specific privilege given to

psychotherapists under RA 10029:
¾ Sec. 24(c):
¾ Sec. 30, RA 10029 (2010) Rights to
¾ A physician, psychotherapist or
Privileged Communication for
Psychologists and person reasonably believed by the
Psychometricians. - Psychologists patient to be authorized to practice
and psychometricians cannot, medicine or psychotherapy, cannot
without the consent of the in a civil case, without the consent
client/patient, be examined on of the patient, be examined as to
any communication or any confidential communication
information disclosed and/or made for the purpose of diagnosis
acquired in the course of giving or treatment of the patient’s
psychological services to such physical, mental or emotional
client. condition, including alcohol or drug
addiction, between the patient and
¾ Protection extends to all pertinent
his or her physician or
records and to the secretary, clerk
psychotherapist. This privilege also
or other staff of the licensed
applies to persons, including
psychologist or psychometrician.
members of the patient’s family,
¾ Any evidence obtained in who have participated in the
violation of this provision shall be diagnosis or treatment of the
inadmissible for any purpose in patient under the direction of the
Jose any
M. I.proceeding.
Diokno - All Rights Reserved 79
Requisites for privilege to apply:

¾ 1. Privilege is claimed in a civil case.
¾ 2. Person being compelled to disclose is a physician,

psychotherapist or person reasonably believed by the patient
to be authorized to practice medicine or psychotherapy.
¾ 3. That person acquired the information while attending to

the patient in his/her professional capacity.
¾ 4. The information consists of confidential communication

made for the purpose of diagnosis or treatment of the
patient’s physical, mental or emotional condition, including
alcohol or drug addiction, between the patient and his or her
O This privilege also applies to persons, including

members of the patient’s family, who have
participated in the diagnosis or treatment of the
patient under the direction of the physician or
psychotherapist.
O Note: The privilege is not terminated by the

patient’s death. (Gonzales v. CA, 298 SCRA 322).
Take note:
O The requirement that the information, if
disclosed, will blacken the reputation of the
patient contained in the old rules has been
deleted in the 2020 amended rules.
O Let’s compare the old and new provisions:
¾ Sec. 24(c):
O (c) A person authorized
to practice medicine, ¾ A physician, psychotherapist or
surgery or obstetrics person reasonably believed by the
cannot in a civil case, patient to be authorized to practice
without the consent of medicine or psychotherapy, cannot in
the patient, be a civil case, without the consent of
examined as to any the patient, be examined as to any
advice or treatment confidential communication made for
given by him or any the purpose of diagnosis or
information which he treatment of the patient’s physical,
may have acquired in mental or emotional condition,
attending such patient including alcohol or drug addiction,
in a professional between the patient and his or her
capacity, which physician or psychotherapist. This
information was privilege also applies to persons,
necessary to enable him including members of the patient’s
to act in capacity, and family, who have participated in the
which would blacken diagnosis or treatment of the patient
Jose M. I. Diokno
the - All Rights
reputation ofReserved
the under the direction of the physician 83
patient. or psychotherapist.

Diokno Evidence Part 2

Uploaded by

Copyright:

Available Formats

You might also like

Diokno Evidence Part 2

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Diokno Evidence Part 2

Uploaded by

Copyright:

Available Formats

ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.

Evidence for Barristers

Dean Chel Diokno

¾ 1. What facts constitute my cause of action or defense?

¾ 2. Which of these facts - or of evidentiary facts tending to

¾ 3. Who must establish the facts that remain to be proved?

¾ 4. What degree of proof is needed of these facts? (weight

We’re now on the 5th Question of Evidence:

¾ 5. What available evidence is

Jose M. I. Diokno - All Rights Reserved 3

The 5th question of evidence is all about

So let’s start with the

Jose M. I. Diokno - All Rights Reserved 4

Sec. 3, Rule 128: Admissibility of evidence. –

¾ induces a belief in the existence or

¾ not excluded by the Constitution, the law or

For example, in a homicide case, a secret tape

O But it’s excluded by law (RA 4200) as it was

Jose M. I. Diokno - All Rights Reserved 6

Sec. 4, Rule 128: Relevancy; collateral matters. –

¾ To be relevant, evidence must have such a relation to the

¾ Evidence on collateral matter is not allowed, except

Jose M. I. Diokno - All Rights Reserved 7

Sec. 4 , Rule 128 has blurred the distinction between

¾ Evidence is RELEVANT if it ¾ Evidence is MATERIAL if

Jose M. I. Diokno - All Rights Reserved 8

When you’re asked to determine if certain evidence is

Jose M. I. Diokno - All Rights Reserved 9

There’s a third component of the admissibility—

To recap – basic rule of admissibility:

Jose M. I. Diokno - All Rights Reserved 11

The 5th Question of Evidence has the most number of rules.

¾ Rules of admissibility for testimonial evidence

¾ Rules of admissibility for object (physical)

¾ Rules of admissibility for documentary evidence

Jose M. I. Diokno - All Rights Reserved 12

Let’s begin with the rules of admissibility for testimonial

Who can and cannot testify?

¾ 1.1. General rule (sec. 20):

¾ All persons who can perceive and can make

¾ Religious or political belief, interest in the

Jose M. I. Diokno - All Rights Reserved 14

Himayin natin ang general rule:

¾ For a person to testify as an ordinary witness, s/he must

¾ The rules disqualifying persons to testify refer to the

Jose M. I. Diokno - All Rights Reserved 15

Who cannot testify/

¾ Old rule: the following persons are disqualified from being

¾ But the 2020 Amended Rules on Evidence have done away

Jose M. I. Diokno - All Rights Reserved 16

The basic rule is now found in the Child Witness Rule

¾ Sec. 6: Competency. - Every child is presumed qualified to be

¾ (f) Continuing duty to assess competence. - The court has the

A “child witness” includes--

¾ Any person who at the time of giving testimony is

¾ In child abuse cases, persons over 18 years but who

¾ Sec. 4(a), Child Witness Rule