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Evidence LSG Bar Ops Reviewer
Evidence LSG Bar Ops Reviewer
Evidence LSG Bar Ops Reviewer
Introduction
A. Scope
EVIDENCE
D. Evidence Compared
1. To PROOF IT IS THE RESULT
OF SUCH FACT. OR EFFECT OF EVIDENCE; WHEN THE REQUISITE
Rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules. (Rule 128, Sec 2.)
QUANTUM OF EVIDENCE OF A PARTICULAR FACT HAS BEEN DULY ADMITTED AND GIVEN WEIGHT, THE RESULT IS CALLED THE PROOF
B. Definition
It is the means, sanctioned by these rules, of ascertaining in a judicial proceeding, the truth respecting a matter of fact. (Rule 128, Sec. 1.) Bustos v. Lucero (81 PHIL 640) (Evidence) is the mode and manner of proving competent facts in judicial proceedings.
2. To FACTUM PROBANDUM THE ULTIMATE FACT OR THE FACT SOUGHT TO BE ESTABLISHED; REFERS TO THE PROPOSITION (EX. VICTIM WAS STABBED) 3. To FACTUM PROBANS THE EVIDENTIARY FACT OR THE
THAT ESTABLISH THE PROPOSITION
FACT
BY
WHICH
THE
FACTUM
(EX. BLOODY
KNIFE)
C. Classification
1. Evidence is classified in the Rules of Court according to form a. OBJECT A.K.A. REAL EVIDENCE; DIRECTLY ADDRESSED
TO THE SENSES OF THE COURT AND CONSISTS OF TANGIBLE THINGS EXHIBITED OR
DEMONSTRATED;
REFERRED
TO
AS
WRITTEN INSTRUMENTS
c. TESTIMONIAL
B. Kinds
CONDITIONAL
EVIDENCE AT THE TIME OFFERED APPEARS TO BE IMMATERIAL OR IRRELEVANT UNLESS IT IS CONNECTED WITH OTHER FACTS TO BE SUBSEQUENTLY PROVED; SUCH EVIDENCE MAY BE RECEIVED IN CONDITION THAT THE OTHER FACTS WILL BE PROVED THEREAFTER ; THERE SHOULD BE NO BAD FAITH
CIRCUMSTANTIAL PROOF A FACT OR FACTS FROM WHICH, TAKEN SINGLY OR COLLECTIVELY, THE EXISTENCE OF
THE PARTICULAR FACT IN DISPUTE MAY BE INFERRED AS A NECESSARY OR PROBABLE CONSEQUENCE; IT IS EVIDENCE OF RELEVANT COLLATERAL FACTS
b.
CUMULATIVE
MULTIPLE
EVIDENCE IS RELEVANT AND COMPETENT FOR TWO CONSIDERS THE RIGHT OF A PARTY TO INTRODUCE
OR MORE PURPOSES
CORROBORATIVE
ADDITIONAL
EVIDENCE
OF
CURATIVE
INCOMPETENT EVIDENCE IN HIS BEHALF WHERE THE COURT HAS ADMITTED THE SAME KIND OF EVIDENCE ADDUCED BY THE ADVERSE PARTY
c.
PRIMA FACIE
CONCLUSIVE
d.
PRIMARY (BEST
AS AFFORDING QUESTION
SECONDARY
PERMITTED BY LAW UNAVAILABLE
ONLY
(SUBSTITUTIONARY
WHEN THE BEST
EVIDENCE) EVIDENCE IS
e.
SEE
POSITIVE
(THERE
NEGATIVE
OR KNOW
OF
(TOTAL
EVIDENCE
EXCEPT
WHEN
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b.
HAS C.
IN CONTROVERSY.
RELEVANT RATIONAL
EVIDENCE IS ANY CLASS OF EVIDENCE WHICH PROBATIVE VALUE TO ESTABLISH THE ISSUE MATTERS ARE MATTERS OTHER THAN THE
COLLATERAL
FACTS IN ISSUE AND WHICH ARE OFFERED AS A BASIS FOR INFERENCE AS TO THE EXISTENCE OR NON-EXISTENCE OF THE FACTS IN ISSUE.
WHAT
THE
RULES
COLLATERAL MATTERS.
between fact B and the issues in the case. If B has been placed in issue by the pleadings or the pre-trial order or by consent of the parties then evidence tending to establish the actuality of B is material. iv. Evidence may be relevant but may be immaterial in the case! 2. Competence EVIDENCE IS COMPETENT IF IT IS NOT EXCLUDED RULES OF COURT. (RULE 128, SEC. 3)
d.
i.
COMPARED TO MATERIALITY Relevant evidence is evidence having any value in reason as tending to prove any matter provable in an action. Material evidence is evidence directed to prove a fact in issue as determined by the rules of substantive law and pleadings. ii. The test of relevancy is the logical relation of the evidentiary fact in issue (i.e. whether the former tends to establish the probability or improbability of the latter). Materiality is determined by whether the fact it intends to prove is in issue or not. As to whether a fact is in issue or not is in turn determined by the substantive law, the pleadings, the pretrial order and by the admissions or confessions on file. iii. Relevance refers to the tendency in reason of offered fact A to prove fact B. If the existence of A makes the actuality of B more probable, than A is relevant to B. Materiality refers to the relationship 3. Exclusionary Rules under the 1987 Constitution a. SECS. 2 & 3, ART. III UNREASONABLE SEARCHES AND SEIZURES; PRIVACY OF COMMUNICATION AND CORRESPONDENCE. ANY EVIDENCE OBTAINED IN VIOLATION OF
THIS SHALL BE INADMISSIBLE FOR ANY PURPOSE IN ANY PROCEEDING.
BY LAW OR THE
People vs. Turco (2000) Since admissibility of evidence is determined by its relevance and competence, admissibility is therefore an affair of logic and law. On the other hand, the weight to be given to such evidence depends on judicial evaluation within the guidelines provided in Rule 133 and the jurisprudence laid down by the court. Bautista vs. Aparece (1995) Relevant evidence is one that has any value in reason as tending to prove any matter probable in an action. Evidence is said to be material when it is directed to prove a fact in issue as determined by the rules of substantive law and pleadings, while competent evidence is one that is not excluded by law in a particular case.
CABLE, OR BY USING ANY OTHER DEVICE OR ARRANGEMENT, TO SECRETLY OVERHEAR, OR INTERCEPT, OR BY RECORD USING A SUCH DEVICE COMMUNICATION SPOKEN WORK
COMMONLY KNOWN AS A
DICTAPHONE
OR DICTOGRAPH OR
b.
SEC. 12, ART III MIRANDA RIGHTS; RIGHT TO COUNSEL; PROHIBITION ON TORTURE, FORCE, VIOLENCE, THREAT, INTIMIDATION, OR OTHER MEANS WHICH VITIATE THE FREE WILL; PROHIBITION OF SECRET DETENTION PLACES, SOLITARY, INCOMMUNICADO; ANY CONFESSION OR ADMISSION OBTAINED IN VIOLATION OF THIS OR SECTION 17 HEREOF SHALL BE INADMISSIBLE IN EVIDENCE AGAINST HIM. C. SEC. 17, ART III NO PERSON SHALL BE COMPELLED TO BE A WITNESS AGAINST HIMSELF. 4. Statutory Rules of Exclusion SEC. 201, NIRC AN INSTRUMENT,
PART
INFORMATION THEREIN CONTAINED, OBTAINED OR SECURED BY ANY PERSON IN VIOLATION OF THE PRECEDING SECTIONS OF THIS
ACT
JUDICIAL, B.
RULES ON ELECTRONIC EVIDENCE (RULE 4, SECTION 2) c. CIVIL CODE PRESUMPTIONS E.G., ARTICLE 2185 AS TO PRESUMPTION OF NEGLIGENCE WHEN THERE IS
VIOLATION OF TRAFFIC RULES OR LAWS
DOCUMENT OR PAPER
d.
WHICH IS REQUIRED BY LAW TO BE STAMPED AND WHICH HAS BEEN SIGNED, ISSUED, ACCEPTED OR TRANSFERRED WITHOUT BEING DULY STAMPED, SHALL NOT BE RECORDED, NOR SHALL IT OR ANY COPY THEREOF OR ANY RECORD OF TRANSFER OF THE SAME BE ADMITTED OR USED IN EVIDENCE IN ANY COURT UNTIL THE REQUISITE STAMP OR STAMPS SHALL HAVE BEEN AFFIXED THERETO AND CANCELLED. A.
COMMERCIAL LAWS E.G. SEE ARTICLE 448 OF COMMERCE (EVIDENTIARY WEIGHT CONFLICTING ENTRIES IN MERCHANTS BOOKS
THE CODE
OF OF
SEC. 1.
BEING
AUTHORIZED
Gaanan vs. IAC (1986) An extension telephone cannot be placed in the same category as a Dictaphone, dictograph or the other devices enumerated in Sec. 1 of RA 4200 as the use thereof cannot be considered as tapping the wire or cable of a telephone line.
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Salcedo-Ortaez vs. CA (1994) RA 4200 expressly makes tape recordings of tapped conversations inadmissible in evidence absent a clear showing that both parties to the phone conversations allowed the recording.
B)WHEN THE ORIGINAL IS IN THE CUSTODY OR UNDER THE CONTROL OF THE PARTY AGAINST WHOM THE EVIDENCE IS OFFERED, AND THE LATTER FAILS TO PRODUCE IT AFTER REASONABLE NOTICE; C)WHEN THE ORIGINAL CONSISTS OF NUMEROUS ACCOUNTS OR OTHER DOCUMENTS WHICH CANNOT BE EXAMINED IN COURT SOUGHT D)WHEN WITHOUT TO BE GREAT LOSS OF FROM A TIME AND THE FACT THE THE
ESTABLISHED ORIGINAL IS
THEM
IS ONLY IN
GENERAL RESULT OF THE WHOLE; AND THE PUBLIC RECORD CUSTODY OF A PUBLIC OFFICER OR IS RECORDED IN A PUBLIC OFFICE.
ORIGINAL 1. THE 2.
OF A
DOCUMENT
ORIGINAL OF THE DOCUMENT IS ONE THE CONTENTS OF A DOCUMENT IS IN TWO OR MORE COPIES EXECUTED AT
WHEN WHEN
(A)
OR ABOUT THE SAME TIME, WITH IDENTICAL CONTENTS, ALL SUCH COPIES ARE EQUALLY REGARDED AS ORIGINALS. AN ENTRY IS REPEATED IN THE REGULAR COURSE OF BUSINESS, ONE BEING COPIED FROM ANOTHER AT OR NEAR THE EQUALLY REGARDED AS ORIGINALS.
ITS
(5 MORAN,
V.
(B )
3.
RESULT IN DELAYS, INCONVENIENCE NECESSARY EXPENSES OUT OF PROPORTION TO THE EVIDENTIARY VALUE OF SUCH OBJECT
(PEOPLE
TAVERA, 47 PHIL 645); (C) SUCH EVIDENCE WOULD BE CONFUSING OR MISLEADING (PEOPLE V. SAAVEDRA, [CA], 50 O.G. 5407); OR (D) TESTIMONIAL OR DOCUMENTARY EVIDENCE
ALREADY PRESENTED CLEARLY PORTRAYS THE OBJECT IN QUESTION AS TO RENDER A VIEW THEREOF UNNECESSARY
AFFIDAVITS
BEING THE OR BEST AFFIANTS
AND
ARE AS
CONSIDERED IF WITNESSES.
NOT THE
EVIDENCE,
NOT
ADMISSIBLE
SEC.6).
(RULE 133,
DEPONENTS
THE
CONTENTS OF SUCH AFFIDAVITS AND DEPOSITIONS ARE NOT THE ISSUES IN THE CASE BUT ARE ONLY INTENDED AS EVIDENCE TO
US v. Tan Teng (23 PHIL 145) Object evidence includes any article or object which may be known or perceived by the use of any of the senses. It includes the examination of the anatomy of a person or of any substance taken therefrom. Sison vs. People (1995) Photographs can be identified by the photographer or by any other competent witness who can testify to its exactness or accuracy. 2. Documentary Evidence Rule 130, Sec. 2. DEFINITION: WRITINGS OR ANY MATERIAL CONTAINING LETTERS, WORDS, NUMBERS, FIGURES, SYMBOLS OR OTHER MODES OF WRITTEN EXPRESSION OFFERED AS PROOF OF THEIR CONTENTS. People v. Camacho (44 PHIL 484) A document is a deed, instrument or other duly authorized paper by which something is proved, evidenced or set forth. a. BEST EVIDENCE RULE SECS. 3-4 GENERAL RULE: WHEN EXCEPTIONS: A)WHEN
THE SUBJECT OF INQUIRY IS THE CONTENTS OF A DOCUMENT, NO EVIDENCE SHALL BE ADMISSIBLE OTHER THAN THE ORIGINAL DOCUMENT ITSELF. THE ORIGINAL HAS BEEN LOST OR DESTROYED, OR
a.1. RULES ON ELECTRONIC EVIDENCE (RULE 4) VISBEST EVIDENCE RULE SEC. 1. ORIGINAL OF AN ELECTRONIC DOCUMENT AN
ELECTRONIC DOCUMENT SHALL BE REGARDED AS THE EQUIVALENT OF AN ORIGINAL DOCUMENT UNDER THE
EVIDENCE RULE
SIGHT OR ACCURATELY.
BEST
DATA
OTHER
SEC. 2. WHEN A
COPIES
DOCUMENT
COPIES
EXECUTED AT OR ABOUT THE SAME TIME WITH IDENTICAL CONTENTS, OR IS A COUNTERPART PRODUCED BY THE SAME IMPRESSION AS THE ORIGINAL, OR FROM THE SAME MATRIX, OTHER OR BY OR THE MECHANICAL BY CHEMICAL TECHNIQUES OR ELECTRONIC OR RERECORDING, REPRODUCES REPRODUCTION, WHICH BY THE
EQUIVALENT
ACCURATELY
FOREGOING, COPIES OR DUPLICATES SHALL NOT BE ADMISSIBLE TO THE SAME EXTENT AS THE ORIGINAL IF: QUESTION OR IS RAISED TO AS TO THE THE A GENUINE OF OF THE THE AUTHENTICITY COPY IN LIEU
ORIGINAL.
NOTWITHSTANDING
CANNOT BE PRODUCED IN COURT, WITHOUT BAD FAITH ON THE PART OF THE OFFEROR;
People vs. Tan (1959) Carbon copies are deemed duplicate originals. They may be introduced as evidence without accounting for the non-production of the original.
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People vs. Tandoy (1990) The Best Evidence Rule applies only when the contents of the document are the subject of inquiry. It does not apply when the issue is only as to whether or not such document was actually executed or in the circumstances relevant to its execution. Lee v. People (2004) Before the onset of liberal rules of discovery, and modern technique of electronic copying, the best evidence rule was designed to guard against incomplete or fraudulent proof and the introduction of altered copies and the withholding of the originals. But the modern justification for the rule has expanded from the prevention of fraud to a recognition that writings occupy a central position in the law. The importance of the precise terms of writings in the world of legal relations, the fallibility of the human memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplicate are the concerns addressed by the best evidence rule. The offeror of secondary evidence is burdened to prove the predicates thereof: (a) the loss or destruction of the original without bad faith on the part of the proponent/offeror which can be shown by circumstantial evidence of routine practices of destruction of documents; (b) the proponent must prove by a fair preponderance of evidence as to raise a reasonable inference of the loss or destruction of the original copy; and (c) it must be shown that a diligent and bona fide but unsuccessful search has been made for the document in the proper place or places. It has been held that where the missing document is the foundation of the action, more strictness in proof is required than where the document is only collaterally involved. If the document is one in which other persons are also interested, and which has been placed in the hands of a custodian for safekeeping, the custodian must be required to make a search and the fruitlessness of such search must be shown, before secondary evidence can be admitted. The certificate of the custody of the document is incompetent to prove the loss or destruction thereof. Such fact must be proved by some person who has knowledge of such loss. b. SECONDARY EVIDENCE SECS. 5-8 SECONDARY EVIDENCE a) ORIGINAL
MAY BE INTRODUCED WHEN: DOCUMENT OFFEROR, IS UNAVAILABLE
II. III.
I.
A A
THE
b)
ORIGINAL
A.
DOCUMENT
CUSTODY OR CONTROL .
IF
AFTER REASONABLE NOTICE IS GIVEN TO ADVERSE THE PARTY OF TO THE PRODUCE DOCUMENT THE IS
THE OF
DOCUMENT AND AFTER SATISFACTORY PROOF EXISTENCE MADE, HE FAILS TO PRODUCE THE DOCUMENT, SECONDARY EVIDENCE MAY BE PRESENTED.
c)
ISSUED
PUBLIC
SECTION 8 - A
EVIDENCE.
Compania Maritima vs. Allied Free Workers (1977) The voluminous character of the document must be established before evidence other than the original may be introduced. Villa Rey Transit vs. Ferrer (1968) In the case where the original is in the custody of the adverse party, it is not necessary that it be in the actual possession of the adverse party. It is enough that the circumstances show that the writing is in his possession or under his control. Secondary evidence is admissible where the adverse party denies having it in his possession. De Vera vs. Aguilar (1983) All duplicates or counterparts must be accounted for before using copies as evidence. PNB v. Olila (98 PHIL 1002) When the original is outside the jurisdiction of the court, as when it is in a foreign country, secondary evidence is admissible. Citibank v. Teodoro (2003) Applying the above Rule to the present case, before a party is allowed to adduce secondary evidence to prove the contents of the original sales invoices, the offeror must prove the following: (1) the existence or due execution of the original; (2) the loss and destruction of the original or the reason for its nonproduction in court; and (3) on the part of the offeror, the absence of bad faith to which the unavailability of the original can be attributed. The correct order of proof is as follows: existence, execution, loss, and contents. At the sound discretion of the court, this order may be changed if necessary. In the present case, the existence of the original
(LOST,
OF ITS
a.
THE
UPON
(1)
PROOF
(2)
CAUSE OF
(3)
(ORDER
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sales invoices was established by the photocopies and the testimony of Hernandez. Petitioner, however, failed to prove that the originals had been lost or could not be produced in court after reasonable diligence and good faith in searching for them. Indeed, the loss of the originals and reasonable diligence in the search for them were conditions that were not met, because the sales invoices might have been found by Equitable. Finally, when more than one original copy exists, it must appear that all of them have been lost, destroyed, or cannot be produced in court before secondary evidence can be given of any one. A photocopy may not be used without accounting for the other originals failed to show that he had subsequently followed up the request. DECS v. Del Rosario (2005) Secondary evidence of the contents of a document refers to evidence other than the original document itself. A party may introduce secondary evidence of the contents of a written instrument not only when the original is lost or destroyed, but also when it cannot be produced in court, provided there is no bad faith on the part of the offeror. However, a party must first satisfactorily explain the loss of the best or primary evidence before he can resort to secondary evidence. A party must first present to the court proof of loss or other satisfactory explanation for non-production of the original instrument. The correct order of proof is as follows: existence, execution, loss, contents, although the court in its discretion may change this order if necessary. c. PAROL EVIDENCE RULE SEC. 9 PAROL EVIDENCE DEFINITION: ANY EVIDENCE ALIUNDE, ORAL OR WRITTEN , WHICH IS INTENDED OR TENDS TO
IN A DOCUMENT. WHETHER VARY OR
Notes There is latent or intrinsic ambiguity when the writing on its face appears clear and unambiguous but there are collateral matters or circumstances which make the meaning uncertain or where a writing admits of two constructions both of which are in harmony with the language used. Patent or extrinsic ambiguity, on the other hand, is such ambiguity which is apparent on the face of the writing itself and requires something to be added in order to ascertain the meaning of the words used. Parol evidence is not admissible in cases of patent ambiguity otherwise the court would thereby not be construing a contract but would be rather creating a contract between the parties. Mistake here refers to a mistake of fact mutual to the parties or where the innocent party was imposed upon by unfair dealing of the other Imperfection includes an inaccurate statement in the agreement or incompleteness in the writing or the presence of inconsistent provisions therein Differentiated from Best Evidence Rule Parol Evidence Rule (PER) presupposes that the original document is available in court whereas the Best Evidence Rule (BER) contemplates the situation wherein the original writing is not available and/or there is a dispute as to whether said writing is the original PER prohibits the varying of the terms of a written agreement while BER prohibits the introduction of substitutionary evidence in lieu of the original document regardless whether or not it varies the contents of the original PER applies to documents contractual in nature only (exception: wills) while BER applies to all kinds PER can be invoked only when the controversy is between the parties to the written agreement, their privies or any party directly affected thereby whereas BER can be invoked by any party to an action regardless of whether or not such party participated in the writing involved PNB vs. Seeto (1952) The Parol Evidence Rule does not apply to collateral agreements. Pioneer Savings v. CA (226 SCRA 740) The rule does not apply to exclude evidence of conditions subsequent in a deed of sale where such conditions were not stated in the agreement.
GENERAL RULE: WHEN THE TERMS OF AN AGREEMENT (INCLUDING WILLS) HAVE BEEN REDUCED TO WRITING, IT IS CONSIDERED AS CONTAINING ALL THE TERMS AGREED UPON AND THERE CAN BE, BETWEEN THE PARTIES AND THEIR SUCCESSORS IN INTEREST, NO EVIDENCE OF SUCH TERMS OTHER THAN THE CONTENTS OF THE WRITTEN AGREEMENT. EXCEPTIONS: A PARTY MAY PRESENT EVIDENCE TO MODIFY, EXPLAIN OR ADD TO THE TERMS OF WRITTEN AGREEMENT IF HE PUTS IN ISSUE IN HIS PLEADING: (A) AN INTRINSIC AMBIGUITY, MISTAKE OR IMPERFECTION IN THE WRITTEN AGREEMENT; (B) THE FAILURE OF THE WRITTEN AGREEMENT TO
EXPRESS THE TRUE INTENT AND AGREEMENT OF THE PARTIES THERETO;
(C) THE VALIDITY OF THE WRITTEN AGREEMENT; OR (D) THE EXISTENCE OF OTHER TERMS AGREED TO BY
EXECUTION OF THE WRITTEN AGREEMENT.
THE
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Woodhouse vs. Halili (1953) It also does not apply if the issue revolves around fraud and false representation since they are incidental to the execution and not to the integration. Lechugas vs. CA (1986) It does not apply either when third parties are involved. Ortaez vs. CA (1997) The exceptions to the Parol Evidence Rule must be squarely put in issue. d. INTERPRETATION DOCUMENTS SECS. 10-19
TO ITS TO BE
CHARACTERS, OR WHO UNDERSTAND THE LANGUAGE, IS ADMISSIBLE TO DECLARE THE CHARACTERS OR THE MEANING OF THE LANGUAGE.
SEC. 17. OF TWO CONSTRUCTIONS, WHICH WHEN THE TERMS OF AN AGREEMENT HAVE BEEN
PREFERRED.
INTENDED IN A
DIFFERENT SENSE BY THE DIFFERENT PARTIES TO IT, THAT SENSE IS TO PREVAIL AGAINST EITHER PARTY IN WHICH HE SUPPOSED THE OTHER UNDERSTOOD IT, AND WHEN DIFFERENT CONSTRUCTIONS OF A PROVISION ARE OTHERWISE EQUALLY PROPER, THAT IS TO BE TAKEN WHICH IS THE MOST FAVORABLE TO THE PARTY IN WHOSE FAVOR THE PROVISION IS MADE.
OF
SEC. 18. CONSTRUCTION IN FAVOR OF NATURAL RIGHT. WHEN AN INSTRUMENT IS EQUALLY SUSCEPTIBLE OF TWO INTERPRETATIONS, ONE IN FAVOR OF NATURAL RIGHT AND THE OTHER AGAINST IT, THE FORMER IS TO BE ADOPTED. SEC. 19. INTERPRETATION
ACCORDING TO USAGE.
SEC. 10. INTERPRETATION OF A WRITING ACCORDING LEGAL MEANING. THE LANGUAGE OF A WRITING IS
PLACE OF ITS OTHERWISE. EXECUTION , UNLESS THE PARTIES
AN
INSTRUMENT MAY BE CONSTRUED ACCORDING TO USAGE, IN ORDER TO DETERMINE ITS TRUE CHARACTER.
WHERE THERE ARE SEVERAL PROVISIONS OR PARTICULARS, SUCH A CONSTRUCTION IS, IF POSSIBLE, TO BE ADOPTED AS WILL GIVE
3. Testimonial Evidence Rule 130, Sec. 20 A. WITNESS QUALIFICATIONS: CAN PERCEIVE, AND PERCEIVING, CAN MAKE THEIR PERCEPTION KNOWN TO OTHERS. B. DISQUALIFICATIONS i. By reason of mental incapacity or immaturity Sec. 21
INSTRUMENT, THE INTENTION OF THE PARTIES IS TO BE PURSUED; AND A PARTICULAR A GENERAL PROVISION ONE THAT ARE INCONSISTENT, THE LATTER IS PARAMOUNT TO THE FORMER. PARTICULAR INTENT CONTROL INCONSISTENT WITH IT.
IN
THE CONSTRUCTION OF AN
SO
A IS
THE THE
Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. i.1. Child Witness Rule (A.M. No. 00-4-07SC, Sec. 6) Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu propio or on motion of a party, 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. People vs. Salomon (1993) A mental retardate is not for this reason alone disqualified from being a witness. People vs. Mendoza (1996) Requisites of competency of a child as witness: capacity of observation; capacity of
SITUATION OF THE SUBJECT THEREOF AND OF THE PARTIES TO IT, POSITION OF THOSE WHOSE LANGUAGE HE IS TO INTERPRET.
SIGNIFICATION OF TERMS.
THE
TERMS OF
A WRITING ARE PRESUMED TO HAVE BEEN USED IN THEIR PRIMARY AND GENERAL ACCEPTATION, BUT EVIDENCE IS ADMISSIBLE TO SHOW THAT THEY HAVE A LOCAL, TECHNICAL, OR OTHERWISE PECULIAR SIGNIFICATION, AND WERE SO USED AND UNDERSTOOD, IN THE PARTICULAR INSTANCE, IN WHICH CASE THE AGREEMENT MUST BE CONSTRUED ACCORDINGLY.
WHEN
AN
INSTRUMENT CONSISTS PARTLY OF WRITTEN WORDS AND PARTLY OF A PRINTED FORM, AND THE TWO ARE INCONSISTENT, THE FORMER
AND IS
INTERPRETERS
TO THE
BE
USED TO BY
IN IN BE THE
WRITINGS. LANGUAGE
WHEN
IS NOT
CHARACTERS
WRITTEN
ARE
DIFFICULT
UNDERSTOOD
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recollection; and capacity of communication. People v. Bustos (45 PHIL 9) An intelligent boy is undoubtedly the best observer to be found. People v. Guzman (107 PHIL 1122) The childs naivete and apparent accuracy makes his testimony most impressive.
Administrator or Other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring BEFORE the death of such deceased person or before such person became of unsound mind. Ong Chua v. Carr (53 PHIL 975) However, the survivor may testify against the estate of the deceased where the latter was guilty of fraud which fraud was established by evidence other than the testimony of the survivor. Tongco v. Vianzon (50 PHIL 698) He may also testify where he was the one sued by the decedents estate since the action then is not against the estate. Goi v. CA (144 SCRA 222) He may likewise testify where the estate had filed a counterclaim against him or where the estate cross-examined him as to matters occurring during the lifetime of the deceased. Sunga-Chan v. Chua (363 SCRA 249) The survivor-witness must be a claimant against the estate and not a disinterested third party. iv. Privileged Communication
ii.
22
Object: Privilege to prevent testimony by other spouse based on an aversion to use judicial compulsion in a litigation to place spouses in an opposing posture that may weaken or destroy their marriage (see People v. Francisco).
General Rule: During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse.
Exceptions: 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.
People v. Francisco (68 PHIL 694) This privilege is also given to a spouse to prevent the other from testifying in his favor. Arroyo v. Azur (76 PHIL 493) For this rule to apply, the marriage must be valid and existing at the time the testimony was offered. Ordoo v. Daguigan (62 SCRA 270) The wife is competent to testify against her husband in a prosecution against him for raping their daughter.
MARITAL PRIVILEGE Sec. 24 (a) Object: Privilege for confidential communications justified on the ground that it promotes marital harmony; marital partners should be encouraged to share their most closely-guarded secrets as an additional measure of intimacy and mutual support to their marriage Rule: Husband or the wife, 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
iii.
Dead Mans Statute Sec. 23 A.K.A: Survivorship Rule Object: To guard against the temptation to give false testimony on the part of the surviving party and to put the parties to the suit upon terms of equality in regard to opportunity to produce evidence (Bautista, Basic Evidence). Rule: Parties or assignor of parties to a case, or persons in whose behalf a case is prosecuted, against An executor or
In a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants
Distinguished from Marital Disqualification (Sec. 22) Sec. 22 is broader since it prevents all adverse testimony between spouses and not merely
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disclosure of confidential communications and may even cover matters occurring prior to the marriage. Sec. 24 is limited to those made during the course of marriage. Where neither spouse is a party, the disqualifying rule is that for marital communications (Sec. 24).
disclosure does not apply to third parties but only to the physician. b) The privilege belongs to the patient, not the physician so that the latter cannot claim it if the patient abandons it. Lim vs. CA (1992) This privilege does not apply when the doctor is presented as an expert witness and only hypothetical problems were presented to him. Krohn v. CA (233 SCRA 146) Plaintiff husband in a suit for annulment of marriage on the ground of his wifes psychological incapacity is allowed to testify on the contents of a confidential psychiatric report made on his wife, a copy of which he allegedly obtained from the examining doctors. His testimony is not a circumvention of the prohibition because his testimony does not have the force and effect of the testimony of a physician who examined the patient and executed the report. Priest- Penitent Privilege Sec. 24 (d) A minister or priest cannot, without the consent of the person making the confession, be examined as to Any confession made to or Any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs Public Officer Privilege Sec. 24 (e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. Parental and Filial Privilege Sec. 25 A person cannot be compelled to testify against his parents, other direct ascendants, children or other direct descendants. Cavili v. Fernando (154 SCRA 610) The specific enumeration in the Rules of disqualified witnesses is understood to exclude the operation of causes of disability other than those mentioned therein. People v. Zheng Bai Hi (338 SCRA 420) The failure of a witness to take an oath prior to his testimony is a defect that may be waived by the parties. v. Admissions and Confessions
US v. Antipolo (37 PHIL 726) A widow of a victim allegedly murdered may testify as to her husbands dying declaration as to how he died the since the same was not intended to be confidential. ATTORNEY-CLIENT PRIVILEGE Sec. 24 (b) An attorney cannot, without the consent of his client, be examined as to Any communication made by the client to him, or
His advice given thereon in the course of, or with a view to, professional employment, Nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity
Regala vs. Sandiganbayan (1996) The attorney-client privilege may not be invoked to refuse to divulge the identity of the client, EXCEPT: (1) When a strong probability exists that revealing the name would implicate that person in the very same activity for which he sought the lawyers advice; (2) When disclosure would open the client to liability; (3) When the name would furnish the only link that would form the chain of testimony necessary to convict. Physician-Patient Privilege Sec. 24 (c) Rule: A person authorized to practice medicine, surgery or obstetrics cannot in a CIVIL CASE, without the consent of the patient, be examined as to Any advice or treatment given by him or
Any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in capacity, and which would blacken the reputation of the patient
Admissions Sec. 26
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Definition: Any statement of fact made by a party against his interest or unfavorable to the conclusion for which he contends or is inconsistent with the facts alleged by him Types: Verbal or written, express or tacit, judicial or extrajudicial Rule: Any act, declaration or omission of a party as to a relevant fact may be given in evidence against him. Judicial and Extrajudicial Admissions: Judicial: One made in connection with a judicial proceeding in which it is offered Extrajudicial: Any admission other than judicial. Secs. 26 and 32 of the Rules refer to extrajudicial admissions. Distinguished from Confession: An admission does not involve an acknowledgment of guilt or liability but is merely a statement of fact. An admission maybe express or tacit while a confession must be express. Admissions maybe made by third parties and are, in certain cases, admissible against a party while confessions can be made only by the party himself and are admissible against his co-accused in some instances. Distinguished from Self-serving testimony An admission is made against the interest of the admiter, while a selfserving testimony is in made in favor of the interest of the person making the statement An self-serving statement is made in anticipation of future litigation An admission is admissible in evidence, while self-serving declarations are not Self-serving;Requisites The statement was made extrajudicially The statement is in favor of the declarants interest The statement was made in anticipation of future litigation Viacrucis vs. CA (1986) Such admission may be received in evidence not only against the party who made it or his successors-in-interest but also against third persons. People vs. Alegre (1979) The silence of an accused under custody or his failure to deny statements by another implicating him in a crime cannot be considered
as a tacit confession of his participation in the commission of the crime. Lichauco v. Atlantic Gulf (84 PHIL 330) A self-serving declaration is one which has been made extrajudicially by a party in favor of his interests and is not admissible in evidence. Co v. CA (1980) A self-serving testimony refers to an extrajudicial statement being urged for admission in court. It dies not include the partys testimony as a witness in court. Korisu v. Rizal Cement (36 O.G. 1472) Where the statement was not made in anticipation of a future litigation, it is not selfserving. US v. Sarikala (37 PHIL 486) Flight from justice is an admission by conduct and circumstantial evidence of consciousness of guilt. Admission by Silence Sec. 32 An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him. US v. De la Cruz, 12 PHIL 87 The rule does not apply if the statements adverse to the party were made in the course of an official investigation. Compromises Sec. 27 Civil Cases An offer of compromise is not an admission of any liability, and is not admissible against the offeror. Criminal Cases An offer of compromise by the accused may be received in evidence as an implied admission of guilt EXCEPT in cases involving quasi-offenses (criminal negligence) or those allowed by law to be compromised. A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to lesser offense, is not admissible in evidence against the accused who made the plea or offer. An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury. People vs. Godoy (1995) It has long been held that in cases of public crimes, the accused is permitted to show that the offer was not made under a
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consciousness of guilt but merely to avoid the inconvenience of imprisonment of for some other reason which would justify a claim by the accused that the offer was not in truth an admission of his guilt or an attempt to avoid the legal consequences which would ordinarily ensue therefrom. People vs. De Guzman (1996) A plea of forgiveness may be considered as analogous to an attempt to compromise. People vs. Yparriguirre (1997) An offer to compromise does not require that a criminal complaint be first filed before the offer can be received as evidence against the offeror. Res Inter Alios Acta Alteri Nocere Non Debet Rule Sec. 28 Definition: The rights of a party cannot be prejudiced by an act, declaration, or omission of another (First branch of the res inter alios acta rule). Notes: Only the admissions of a partylitigant are admissible as substantive evidence. Those of non-party witnesses may be admitted for impeachment purposes only.
Sec. 29 Requisites: (1) The act/declaration must be within the scope of the authority of the partner or agent. (2) The act or declaration must have been made during the existence of the partnership or agency. (3) The partnership or agency must be shown by evidence other than the act or declaration. This rule applies to the act/declaration of a joint owner, joint debtor, or other person jointly interested with the party. Statements made after a partnership has been dissolved do not fall within this exception.
vi.
Co-conspirators Admission Sec. 30 Requisites: (1) The act/declaration must relate to the conspiracy. (2) It must have been made during the existence of the conspiracy. (3) The conspiracy must be shown by evidence other than such act or declaration.
People vs. Chaw Yaw Shun (1968) The admissibility of a confession by one accused against the other in the same case must relate to statement made by one conspirator during the pendency of the unlawful enterprise and in furtherance of its objects and not to a confession made long after the conspiracy had been brought to an end. People vs. Serrano (1959) Sec. 30, Rule 130 applies only to extrajudicial statements and not to testimony given on the stand. People v. Belen (1963) The existence of the conspiracy may be inferred from the acts of the accused. People v. Alegre (1976) Where there is no independent evidence of the alleged conspiracy, the extrajudicial confession of an accused cannot be used against his co-accused as the res inter alios rule applies both to extrajudicial confessions and admissions. Admission by Privies Sec. 31 Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former. People v. Du ([CA] 68 O.G. 2229) To be admissible, these requisites must concur: (1) There exists a relation of privity between the party and the declarant; (2) admission was made by declarant as predecessor-in-interest while holding title to
An admission by a third-party cannot bind a party-litigant because such third-party admission would be res inter alios acta and therefore hearsay.
People vs. Raquel (1996) Exceptions to the rule that extrajudicial statements of an accused implicating a coaccused may not be utilized against the latter: (1) the co-accused impliedly acquiesced in or adopted the confession by not questioning its truthfulness; (2) the accused persons voluntarily and independently executed identical confessions without collusion and without contradiction by the others present; (3) the accused admitted the facts after being apprised of the confession; (4) if they are charged as co-conspirators of the crime which was confessed by 1 of the accused and the confession is used only as a corroborating evidence; (5) the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator; (6) the confessant testified for his co-defendant; (7) the co-conspirators extrajudicial confession is corroborated by other evidence on record. Exceptions to this Rule:
10 of 39
Co-partners/Agents
Admission
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property; and (3) admission is in relation to said property. Alpuerto v. Perez Pastor (38 PHIL 785) Privity in estate may have arisen by succession, acts mortis causa or acts inter vivos.
and
vii.
Confessions Sec. 33; Rule 115 (e); Cf. Art. III, Sec. 17, 1987 Constitution Definition: A categorical acknowledgment of guilt made by an accused in a criminal case without any exculpatory statement or explanation. Rule: Declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein; may be given in evidence against him. Sec. 17, Art III No person shall be compelled to be a witness against himself. US v. Tolosa (5 PHIL 616) If the accused admits having committed the act in question but alleges a justification therefore, the same is merely an admission. People vs. Compil (1995) The operative act in determining whether the right against self-incrimination has been violated is when the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect who has been taken into custody by the police to carry out a process of interrogation that lends itself to eliciting incriminatory statements and not the signing by the suspect of his supposed extrajudicial confession. People vs. Wong Chuen Ming (1996) By affixing their signatures on the boxes, accused in effect made a tacit admission of the crime charged. These signatures are tantamount to an extrajudicial confession made without the assistance of counsel, which is not sanctioned by the Bill of Rights. People vs. Yip Wai Ming (1996) Any confession, including a re-enactment without admonition of the right to silence and to counsel, and without counsel chosen by the accused is inadmissible in evidence. People vs. Maqueda (1995) The declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence against him and any person, otherwise competent to testify as a witness who heard the confession is competent to testify as to the substance of what he heard if he heard and understood it.
NOT DO THE SAME OR SIMILAR THING AT ANOTHER TIME; BUT IT MAY BE RECEIVED TO PROVE A SPECIFIC INTENT OR KNOWLEDGE; THE LIKE IDENTITY, PLAN, SYSTEM, SCHEME, HABIT, CUSTOM OR USAGE, AND
(SECOND
RULE: AN
OR TO DELIVER A WRITTEN INSTRUMENT OR SPECIFIC PERSONAL PROPERTY IS, IF REJECTED WITHOUT VALID CAUSE, EQUIVALENT TO OR PROPERTY THE ACTUAL PRODUCTION AND TENDER OF THE MONEY, INSTRUMENT,
(MERELY
ON TENDER OF PAYMENT
2. Character Sec. 51; Rule 132, Sec. 14 GENERAL RULE: CHARACTER EVIDENCE IS NOT ADMISSIBLE EXCEPTIONS: a. In criminal cases Accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. Prosecution may not prove his bad moral character unless in rebuttal. Offended Party his/her good or bad moral character may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. b. In civil cases Moral character is admissible only when pertinent to the issue of character involved in the case. Witness Evidence of his/her good character is not admissible until such character has been impeached. People vs. Irang (1937) While evidence of another crime is, as a rule, not admissible in a prosecution for robbery; it is admissible when it is otherwise relevant, as when it tends to identify defendant as the perpetrator and tends to show is presence at the scene of the crime or in the vicinity of the crime at the time charged, or when it is evidence of a circumstance connected with the crime. People vs. Soliman (1957) Good or bad moral character of the victim is not necessary in a crime of murder where the killing is committed through treachery or premeditation. US v. Pineda (37 PHIL 456) Previous acts of negligence selling barium chlorate instead of potassium chlorate is admissible to show knowledge or intent.
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F.
Hearsay Rule
VALUE OF
WHICH IS NOT BASED ON THE PERSONAL KNOWLEDGE OF THE WITNESS BUT ON THE KNOWLEDGE OF SOME OTHER PERSON NOT ON
The testimony of a witness regarding a statement made by another person, if intended to establish the truth of the facts asserted in the statement is clearly hearsay evidence. It is otherwise if the purpose is merely to establish the fact that the statement was made, or the tenor of such statement. People vs. Gaddi (1989) The testimony of a witness on the confession made to him by the accused is not hearsay. He is testifying to a fact which he knows of his personal knowledge (was testifying to the fact that the accused told him that he stabbed the victim) and not to the truth of the statement of the accused. People v. Aguel (1980) Newspaper clippings or facts published in the newspapers are hearsay and have no evidentiary value unless substantiated by persons with personal knowledge of said facts. Mallari v. People (2004) The second to the fourth circumstances are not directly established by the evidence against petitioner. None of the prosecution witnesses testified thereon. A scrutiny of the records of the case reveals that those circumstances were derived from the Written Statements that had been made by petitioners co-accused and presented when Prosecution Witnesses Carvajal and Naive testified. These witnesses were the police investigators who had reduced into writing the statements of Leonardo and Zaldy Bontia at the time of the arrest of the latter two. Section 36 of Rule 130 of the Rules of Court provides that witnesses can testify only with regard to facts of which they have personal knowledge; otherwise, their testimonies would be inadmissible for being hearsay. In the present case, neither of the said witnesses had personal knowledge of the second to the fourth circumstances considered by the appellate court, or of the rest of the statements made by the declarants in their respective Written Statements. The witnesses merely attested to the voluntariness and due execution of the Bontias respective extrajudicial confessions. Thus, insofar as the substance of those confessions is concerned, the testimonies of the police witnesses are mere hearsay. This last circumstance cited by the appellate court pertains to a supposed letter of Leonardo Bontia addressed to the victim, containing explicit details regarding the commission of the crime and asking for forgiveness. The latter was presented as part of the testimony of the victim, Erlinda Boyose. However, Leonardo was not presented in court to identify it. No other witness testified as to its genuineness or as to
REASON
FOR RULE:
THE
EVIDENCE IS PRESENTED IS DEPRIVED OF HIS RIGHT AND OPPORTUNITY TO CROSS-EXAMINE THE PERSONS TO WHOM THE STATEMENTS OR WRITINGS ARE ATTRIBUTED.
a. What can a witness testify to? i. A witness can testify only to those facts which he knows of his personal knowledge ii. Personal knowledge: those derived from his own perception, except as otherwise provided in these rules. iii. Remember that personal knowledge is that which can be perceived by the FIVE SENSES (sight, hearing, touch, smell, taste) b. Child Witness Rule Special Exception (A.M. No. 00-4-07-SC, Sec. 28) i. Hearsay testimony of a child describing any act or attempted act of sexual abuse may now be admitted in any criminal proceeding subject to certain prerequisites and the right of crossexamination by the adverse party. ii. The admissibility of such hearsay statements shall be determined by the court in light of specified subjective and objective considerations which provide sufficient indicia or reliability of the child witness. People v. Ola (1987) If a party does not object to the hearsay evidence, the same is admissible, as a party can waive his right to cross-examine. People v. Valero (1982) Hearsay evidence not objected to maybe admissible but it nevertheless has no probative value and, as opposed to primary evidence, the latter always prevails. People vs. Brioso (1971). The hearsay evidence rule applies also to affidavits when the supposed affiant never identified the affidavit and there was no opportunity for the prosecution to cross-examine him/her. People vs. Cusi (1965)
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the fact that it had personally and voluntarily been written by him. Incidentally, Boyose received it through the mail, and no one ever attested that it had in fact been written and sent by the same Leonardo Bontia, petitioners coaccused. As we have said earlier, witnesses can testify only with regard to facts of which they have personal knowledge. Testimonial or documentary evidence is hearsay if it is based, not on the personal knowledge of the witness, but on the knowledge of some other person not on the witness stand. Consequently, hearsay evidence -- whether objected to or not -- has no probative value unless the proponent can show that the evidence falls within any of the exceptions to the hearsay rule, as provided in the Rules of Court. Clearly, none of the exceptions apply to the present case.
DECLARATION
People vs. Laquinon (1985) The declaration fails to show that the deceased believed himself in extremis, at the point of death where every hope of recovery is extinct which is the sole basis for admitting this kind of declaration as an exception to the hearsay rule. People vs. Salison (1996) At the time the declaration was made, the declarant was in great pain. He expressed a belief in his imminent death and the hope that it could be used as evidence. US v. Mallari (29 PHIL 14) The intervening time from the making of the declaration up to the actual death of the declarant is immaterial as long as the declaration was made under the consciousness of an impending death. People v. Macandog (01) We agree with the trial court when it upheld the admissibility of the dying declaration of Gloriano, to wit: However, to be valid and admissible in evidence, the following requisites must concur: (a) that the declaration must concern the cause and surrounding circumstances of the declarants death;(b) that at the time the declaration was made, the declarant was under a consciousness of an impending death; (c) that the declarant is competent as a witness; and (d) that the declaration is offered in a criminal case in which the declarant is the victim. First, the declaration of Gloriano concerns the cause and surrounding circumstances of his death, that he was shot by accused Eddie and Nestor Macandog because of a land dispute; second, at the time the declaration was made, Gloriano was under the consciousness of an impending death. As a matter of fact, he died within thirty (30) minutes after making his declaration; third, that at the time Gloriano made his declaration, he was a competent witness since he was still conscious and could still speak competently although he was already dying, and fourth, the declaration of Gloriano was offered in a criminal case for Murder in which he was himself the victim. People v. Latayada (2004)
c. Doctrine of Independently Relevant Statements i. Not covered by hearsay rule (see People v. Cusi above) ii. Independent of whether the facts stated are true or not, they are relevant since they are the facts in issue or are circumstantial evidence of the facts in issue. iii. Whether or not the statement made is true is immaterial. What is sought to be proved is the fact that such statement was made. iv. Tenor of statement not truth IMPORTANT: A. There are two main requisites for evidence not to be hearsay. 1) It must be based on personal knowledge (see above for definition) 2) There must be opportunity for crossexamination by the adverse party. (Gulam v. Sps. Santos, 2006) B. The hearsay rule covers all types of evidence (oral, documentary, object; Valencia v. Cabigting, 1991)
2. Exceptions to Hearsay Rule DYING DECLARATION SEC. 37 A.K.A: ANTEMORTEM STATEMENT OR REQUISITES:
STATEMENT IN ARTICULO
MORTIS
COMPETENT TO TESTIFY TO
True, Payla made no express statement showing that he was conscious of his impending death. The law, however, does not require the declarant to state explicitly a perception of the inevitability
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of death. The foreboding may be gleaned from surrounding circumstances, such as the nature of the declarants injury and conduct that would justify a conclusion that there was consciousness of impending death. a. DECLARATION AGAINST INTEREST SEC. 38 BY WHOM MADE: A PERSON DECEASED, OR UNABLE
AGAINST THE INTEREST OF THE DECLARANT TO TESTIFY,
evidence was adduced to prove the alleged inadvertence. And even assuming there was indeed such a mistake, Miguel had ample opportunity to make the rectification in the initial stages of the intestate proceedings. b. PEDIGREE SEC. 39 PEDIGREE: RELATIONSHIP, FAMILY GENEALOGY, BIRTH, MARRIAGE, DEATH, THE DATES WHEN AND THE PLACES WHERE THESE FAST OCCURRED, AND THE NAMES OF THE RELATIVES; EMBRACES ALSO FACTS OF FAMILY HISTORY INTIMATELY CONNECTED WITH PEDIGREE. BY WHOM MADE: PERSON DECEASED, OR UNABLE TO TESTIFY SUBJECT OF DECLARATION/ACT: PEDIGREE OF ANOTHER PERSON
RELATED TO HIM BY BIRTH OR MARRIAGE
SUBJECT
TIME IT
OF DECLARATION/ACT: THE FACT ASSERTED WAS AT THE WAS MADE SO FAR CONTRARY TO DECLARANT'S OWN
INTEREST THAT A REASONABLE MAN IN HIS POSITION WOULD NOT HAVE MADE THE DECLARATION UNLESS HE BELIEVED IT TO BE TRUE
AGAINST
WHEN
THE
ADMISSIBLE: OCCURRED BEFORE THE CONTROVERSY, AND BETWEEN THE TWO PERSONS IS SHOWN BY
Compared to Admissions against interest Admissions against interest are those made by a party to a litigation or by one in privity with or identified in legal interest with such party and are admissible whether or not the declarant is available as a witness. Declarations against interest are secondary evidence which constitute an exception to the hearsay rule and are admissible only when the declarant is unavailable as a witness. A declarations against interest is the opposite of a self-serving declaration. Fuentes vs. CA (1996) Inability to testify means that the person is either dead, mentally incapacitated or physically incompetent. Mere absence from the jurisdiction does not make him ipso facto unavailable. Heirs of Franco v. CA, (418 SCRA 60) While he explicitly declared that the subject property belonged to Quintin, at the same time he was remarkably silent about his claim that he acquired one-half thereof during the lifetime of Quintin. He asserted his claim to the subject property quite belatedly, i.e., four years after he stated under oath and in a court pleading that it belonged in its entirety to his brother. Thus, the statement and the accompanying silence may be appreciated in more than one context. It is a declaration against interest and a judicial admission combined. A declaration against interest is the best evidence which affords the greatest certainty of the facts in dispute. In the same vein, a judicial admission binds the person who makes the same, and absent any showing that this was made thru palpable mistake, no amount of rationalization can offset it. In the case at bar, there is no showing of palpable mistake on the part of Miguel when he made the admission. In his Motion to Admit Amended Petition, he merely alleged inadvertence in failing to state his claim of co-ownership. Yet no
RELATIONSHIP
Notes
The relationship must preliminarily be proved by direct or circumstantial evidence. The rules do not require any specific degree of relationship but the weight to which such act or declaration is entitled may be affected by the degree of relationship.
Tison v. CA (276 SCRA 582) The requirement that there be other proof than the declarations of the declarant as to the relationship does not apply where it is sought to reach the estate of the declarant himself and not merely to establish a right through his declarations to the property or some member of the family. Gravador v. Mamigo (1967) The import of the declaration of the petitioner's brother, contained in a verified pleading in a cadastral case way back in 1924, to the effect that the petitioner was then 23 years old, can not be ignored. Made ante litem motam by a deceased relative, this statement is at once a declaration regarding pedigree within the intendment and meaning of section 33 of Rule 130 of the Rules of Court. Mendoza v. CA (1991) Nevertheless, precisely because of its nature as hearsay evidence, there are certain safeguards against its abuse. Commenting on this provision, Francisco enumerates the following requisites that have to be complied with before the act or declaration regarding pedigree may be admitted in evidence: 1. The declarant is dead or unable to testify. 2. The pedigree must be in issue. 3. The declarant must be a relative of the person whose pedigree is in issue.
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4. The declaration must be made before the controversy arose. 5. The relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such declaration. All the above requisites are present in the case at bar. The persons who made the declarations about the pedigree of Teopista, namely, the mother of Casimiro, Brigida Mendoza, and his brother, Hipolito, were both dead at the time of Isaac's testimony. The declarations referred to the filiation of Teopista and the paternity of Casimiro, which were the very issues involved in the complaint for compulsory recognition. The declarations were made before the complaint was filed by Teopista or before the controversy arose between her and Casimiro. Finally, the relationship between the declarants and Casimiro has been established by evidence other than such declaration, consisting of the extrajudicial partition of the estate of Florencio Mendoza, in which Casimiro was mentioned as one of his heirs. Jison v. CA (1998) As to Exhibits "S," "T," "U" and "V," the various notes and letters written by FRANCISCO's(alleged putative father) relatives, namely Mike Alano, Emilio Jison, Mariquit Lopez and Fernando Lopez, respectively, allegedly attesting to MONINA's filiation, while their due execution and authenticity are not in issue, as MONINA witnessed the authors signing the documents, nevertheless, under Rule 130, Section 39, the contents of these documents may not be admitted, there being no showing that the declarants-authors were dead or unable to testify, neither was the relationship between the declarants and MONINA shown by evidence other than the documents in question. (Eds Note: Please take note and caution with Mendoza and Jison and the difference of the two rulings.) c. FAMILY TRADITION SEC. 40 SUBJECT OF EXCEPTION: REPUTATION OR
FAMILY PREVIOUS TO THE
US v. Agadas (36 PHIL 246) Such statement (as to his age) prevails over the mere opinion of the trial judge. US v. Evangelista (32 PHIL 321) However, such statement (as to age) cannot generally prevail over the secondary statement of the father. Jison v. CA (98) It is evident that this provision may be divided into two (2) parts: the portion containing the first underscored clause which pertains to testimonial evidence, under which the documents in question may not be admitted as the authors thereof did not take the witness stand; and the section containing the second underscored phrase. What must then be ascertained is whether Exhibits S to V, as private documents, fall within the scope of the clause "and the like" as qualified by the preceding phrase "[e]ntries in family bibles or other family books or charts, engravings on rights [and] family portraits." We hold that the scope of the enumeration contained in the second portion of this provision, in light of the rule of ejusdem generis, is limited to objects which are commonly known as "family possessions," or those articles which represent, in effect, a family's joint statement of its belief as to the pedigree of a person. These have been described as objects "openly exhibited and well known to the family," or those "which, if preserved in a family, may be regarded as giving a family tradition." Other examples of these objects which are regarded as reflective of a family's reputation or tradition regarding pedigree are inscriptions on tombstones, monuments or coffin plates. d. COMMON REPUTATION SEC. 41 WHAT ARE ADMISSIBLE?
COMMON
MORE
PREVIOUS PUBLIC OR OR
TO
THE
CONTROVERSY, INTEREST
GENERAL
30
OLD,
RESPECTING
MONUMENTS
PEDIGREE OF ANY ONE OF ITS MEMBERS, MAY BE RECEIVED IN EVIDENCE IF THE WITNESS TESTIFYING THEREON BE ALSO A MEMBER OF THE FAMILY, EITHER BY CONSANGUINITY OR AFFINITY
CONTROVERSY,
DOCUMENTARY
OTHER FAMILY BOOKS, CHARTS, ENGRAVINGS ON RINGS, FAMILY PORTRAITS, AND THE LIKE
EVIDENCE ALLOWED:
ENTRIES
IN FAMILY BIBLES OR
Gravador v. Mamigo (1967) A persons statement as to his date of birth and age as he learned of these from his parents or relatives is an ante litem motam declaration of a family tradition.
Notes Common reputation means the general or substantially undivided reputation although it need not be unanimous. Common reputation is the definite opinion of the community in which the fact to be proved is known or exists. Character refers to the inherent qualities of a person while reputation is the opinion of him by others. Under this section, the character of a person is permitted to be established by his
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common reputation.
8, RULES ON ELECTRONIC EVIDENCE (REE) WHEN MADE: AT, OR NEAR THE TIME OF TRANSACTIONS
THEY REFER
TO WHICH
US v. Chua Chiok (36 PHIL 831) The character of a place as an opium joint may be proved by its common reputation in the community. e. RES GESTAE SEC. 42 DEFINITION: IT LITERALLY MEANS THINGS DONE WHAT ARE ADMISSIBLE AS PART OF THE RES GESTAE? STATEMENTS MADE BY A PERSON WHILE
OCCURRENCE THEREOF IS TAKING
BY
WHOM MADE: A PERSON DECEASED, OR UNABLE TO TESTIFY, OF SUCH EVIDENCE: PRIMA FACIE EVIDENCE, IF SUCH
TREATMENT
PERSON MADE THE ENTRIES IN HIS PROFESSIONAL CAPACITY OR IN THE PERFORMANCE OF DUTY AND IN THE ORDINARY OR REGULAR COURSE OF BUSINESS OR DUTY
A STARTING PRIOR OR
REPORT, ACTS,
HEARSAY
RULE
RECORD EVENTS,
PLACE OR IMMEDIATELY
CONDITIONS, OPINIONS, OR DIAGNOSES, MADE BY ELECTRONIC , OPTICAL OR OTHER SIMILAR MEANS AT OR NEAR THE TIME OF OR FROM TRANSMISSION OR SUPPLY OF INFORMATION BY A PERSON WITH KNOWLEDGE THEREOF, AND KEPT IN THE REGULAR COURSE OR CONDUCT OF A BUSINESS ACTIVITY, AND SUCH WAS THE REGULAR PRACTICE TO MAKE THE MEMORANDUM, REPORT, RECORD, OR DATA MEANS, ALL OF OF WHICH THE ARE SHOWN OR BY COMPILATION BY ELECTRONIC, OPTICAL OR SIMILAR THE TESTIMONY CUSTODIAN OTHER
STATEMENTS
TO THE
AN
EQUIVOCAL IT A
ACT LEGAL
MATERIAL
GIVING
SIGNIFICANCE.
Notes The rule refers to (a) spontaneous statements in connection with a startling occurrence relating to that fact and in effect forming a part thereof and (b) statements accompanying an equivocal act verbal acts on the theory that they are the verbal parts of the act to be explained. As opposed to dying declarations which are made only after a homicidal attack has been committed, statements, in res gestae, may precede, accompany or be made after such attack. People v. Reyes (82 PHIL 563) A dying declaration can be made only by the victim after the attack while a statement as part of the res gestae may be that of the killer himself after or during the killing. People v. Balbas (1983) Where the elements of both are present, the statement may be admitted both as a dying declaration and as part of the res gestae. People v. Berame (1976) If the statement was made under the influence of a startling event and the declarant did not have the opportunity to concoct or contrive a story, even if made 9 hours after the killing, the statement is admissible as part of the res gestae. Borromeo v. CA (1976) Notes taken regarding a transaction by a person who is not a party thereto and who has not been requested to take down such notes are not part of the res gestae. f. ENTRIES
16 of 39
IN THE
EVIDENCE
Cang Yui v. Gardner (34 PHIL 376) If the entrant is available as a witness, said entries will not be admitted as an exception to the hearsay rule but they may nevertheless be availed of by said entrant as a memorandum to refresh his memory while testifying on the transactions reflected therein. Yek Tong Fire & Marine Insurance v. Gutierrez ([CA], 59 O.G. 8122) There is no overriding necessity to bring into court all the clerks and employees who individually made the entries in a long account. It is sufficient that the person who supervises their work testify that the account was prepared under his supervision and that the entries were regularly entered into in the ordinary course of business. g. OFFICIAL RECORDS SEC. 44 WHEN MADE: ENTRIES MADE AT,
TRANSACTIONS TO WHICH THEY REFER
OR
NEAR
THE
TIME
OF
BY
WHOM MADE: BY A PERSON DECEASED, OR UNABLE TO TESTIFY, OF SUCH EVIDENCE: PRIMA FACIE EVIDENCE, IF SUCH
TREATMENT
PERSON MADE THE ENTRIES IN HIS PROFESSIONAL CAPACITY OR IN THE PERFORMANCE OF DUTY AND IN THE ORDINARY OR REGULAR COURSE OF BUSINESS OR DUTY
COURSE
OF
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The report submitted by a police officer in the performance of his duties on the basis of his own personal observation of the facts reported, may properly be constituted as an exception. Salmon, Dexter & Co. v. Wijangco (46 PHIL 386) The entrant must have personal knowledge of the facts stated by him or such facts acquired by him from reports made by persons under a legal duty to submit the same. People vs. Cabuang (1993) Entries in a police blotter are conclusive proof of the truth of such entries. not
GIVEN REGARDING:
OPINION
OF
OF A WITNESS FOR WHICH PROPER BASIS IS A PERSON ABOUT WHOM HE HAS ADEQUATE
a. b. c. d.
IDENTITY
KNOWLEDGE
IMPRESSIONS
APPEARANCE OF A PERSON.
(SEC. 50)
Fortus v. Novero (1968) Baptismal certificates or parochial records of baptism are not official records. h. COMMERCIAL LISTS SEC. 45 EVIDENCE OF STATEMENTS OF MATTERS
Dilag Co. vs. Merced (1949) There is no precise requirement as to the mode in which skill or experience shall have been acquired. Scientific study and training are not always essential to the competency of a witness as an expert. Knowledge acquired by doing is no less valuable than that acquired by study. People vs. Adoviso (1999) Polygraph test has not as yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception.
OF INTEREST TO PERSONS
ENGAGED IN AN OCCUPATION CONTAINED IN A LIST, REGISTER, TENDING TO PROVE THE TRUTH OF ANY RELEVANT MATTER
PERIODICAL, OR OTHER PUBLISHED COMPILATION IS ADMISSIBLE AS SO STATED IF THAT COMPILATION IS PUBLISHED FOR USE BY PERSONS ENGAGED IN THAT OCCUPATION AND IS GENERALLY USED AND RELIED UPON BY THEM THEREIN .
i. LEARNED TREATISES SEC. 46 A PUBLISHED TREATISE, PERIODICAL OR PAMPHLET ON A SUBJECT HISTORY, LAW, SCIENCE, OR ART IS ADMISSIBLE AS TENDING
III. What Need Not be Proved and Burden of Proof (rule 129 & 131)
A.
1.
OF TO
PROVE THE TRUTH OF A MATTER STATED THEREIN IF THE COURT TAKES JUDICIAL NOTICE, OR A WITNESS EXPERT IN THE SUBJECT TESTIFIES, THAT THE WRITER OF THE STATEMENT IN THE TREATISE, PERIODICAL OR PAMPHLET IS RECOGNIZED IN HIS PROFESSION OR CALLING AS EXPERT IN THE SUBJECT.
j. PRIOR TESTIMONY SEC. 47 BY WHOM MADE: A WITNESS DECEASED OR UNABLE TO TESTIFY, WHEN GIVEN: IN A FORMER CASE OR PROCEEDING, JUDICIAL OR ADMINISTRATIVE, INVOLVING THE SAME PARTIES AND SUBJECT
MATTER
AGAINST
Tan vs. CA (1967) Unable to testify refers to an inability proceeding from a grave cause almost amounting to death as when the witness is old and has lost the power of speech.
POLITICAL CONSTITUTION AND HISTORY OF PHILIPPINES OFFICIAL ACTS OF THE LEGISLATIVE, EXECUTIVE, JUDICIAL DEPARTMENTS OF THE PHILIPPINES LAWS OF NATURE MEASURE OF TIME GEOGRAPHICAL DIVISIONS
THE AND
2.
E.
When Discretionary Sec. 2 A. MATTERS OF PUBLIC KNOWLEDGE B. MATTERS CAPABLE OF UNQUESTIONABLE DEMONSTRATION c. MATTERS WHICH OUGHT TO BE KNOWN TO JUDGES
BECAUSE OF THEIR JUDICIAL FUNCTIONS
General Rule: Opinion of a witness is not admissible (Sec. 48) Except: 1. Expert witness OPINION OF A WITNESS ON A MATTER REQUIRING SPECIAL KNOWLEDGE, SKILL, EXPERIENCE OR TRAINING WHICH HE SHOWN TO POSSESS (SEC. 49) 2. Ordinary witness
When Hearing is Necessary Sec. 3 a. DURING THE TRIAL: THE COURT, ON ITS OWN INITIATIVE, OR ON REQUEST OF A PARTY, MAY ANNOUNCE ITS INTENTION TO TAKE JUDICIAL NOTICE OF ANY MATTER AND ALLOW THE PARTIES TO BE HEARD THEREON.
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b.
AFTER
(1) Allegations contained in the complaint or answer immaterial to the issues. (2) Facts which are admitted or which are not denied in the answer, provided they have been sufficiently alleged. (3) Those which are the subject of an agreed statement of facts between the parties; as well as those admitted by the party in the course of the proceedings in the same case. (4) Facts which are the subject of judicial notice. (5) presumed. Facts which are legally
ON REQUEST OF A PARTY, MAY TAKE JUDICIAL NOTICE OF ANY MATTER AND ALLOW THE PARTIES TO BE HEARD
City of Manila vs. Garcia (1967) Courts are not mandated to take judicial notice of municipal ordinances unless the charter of the concerned city provides for such judicial notice. Tabuena vs. CA (1991) General Rule Courts cannot take judicial notice of the contents/records of other cases even if both cases may have been tried or are pending before the same judge. (Prieto vs. Arroyo, 1965) Exception - In the absence of objection from the adverse party, with the knowledge of the adverse party; or at the request or with the consent of the parties, the case is clearly referred to or the original or part of the records of the case are actually withdrawn from the archives and admitted as part of the record of the case then pending. Yao-Kee vs. Sy-Gonzales (1988) Courts cannot take judicial notice of foreign laws. Republic v. Vda. De Neri (04) We find for the petitioner. As applicants in LRC Case No. N-531, the private respondentshad the burden of complying with the statutory requirement of serving the Director of the Bureau of Lands with a copy of their application and amended application, and to show proof of their compliance thereon. However, we also agree with the CA that it was the burden of the petitioner in the trial court to prove the material allegations of its complaint. This is provided in Section 1, Rule 131 of the Rules of Court which reads x x x. Obviously, the burden of proof is, in the first instance, with the plaintiff who initiated the action. But in the final analysis, the party upon whom the ultimate burden lies is to be determined by the pleadings, not by who is the plaintiff or the defendant. The test for determining where the burden of proof lies is to ask which party to an action or suit will fail if he offers no evidence competent to show the facts averred as the basis for the relief he seeks to obtain, and based on the result of an inquiry, which party would be successful if he offers no evidence. . All facts in issue and relevant facts must, as a general rule, be proven by evidence except the following:
PALPABLE
Torres vs. CA (1984) Having been amended, the original complaint lost its character as a judicial admission, which would have required no proof and became merely any extrajudicial admission requiring a formal offer in order to be admissible.
a.
WHENEVER
A PARTY BY HIS OWN DECLARATION, ACT, ACTS UPON SUCH BELIEF, HE CANNOT IN
OMISSION, HAS LED ANOTHER TO BELIEVE A PARTICULAR THING TO BE TRUE ANY LITIGATION ARISING OUT OF SUCH DECLARATION, ACT OR OMISSION BE PERMITTED TO FALSIFY IT. B.
AND
THE TENANT
HIS
OF
LANDLORD
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DISPUTABLE MNEMONIC: LO! I WON 7 PALM CROPS WHILE MP SCOT TOPPED 300 IN JUMP!) A) PERSON IS INNOCENT OF A CRIME OR WRONG B) UNLAWFUL ACT IS DONE WITH AN UNLAWFUL
INTENT C) D) E) F) G) H) I) J)
75,
ABSENCE OF
FOR ALL PURPOSES INCLUDING THE DIVISION OF THE ESTATE AMONG THE HEIRS III. ON BOARD A VESSEL LOST DURING A OR AN AIRCRAFT WITH IS VOYAGE,
4
IV.
YEARS SINCE THE LOSS OF THE VESSEL OR OF THE ARMED FORCES WHO HAS
PERSON
MEMBER PERSON
UNDER YEARS
TAKEN PART IN ARMED HOSTILITIES, AND HAS BEEN MISSING FOR OTHER
PERSON TAKES ORDINARY CARE OF HIS EVIDENCE WILLFULLY SUPPRESSED MONEY THING
ADVERSE IF PRODUCED PAID BY ONE TO ANOTHER WAS DUE TO THE DELIVERED BY ONE TO ANOTHER BELONGED DELIVERED UP TO THE DEBTOR HAS LATTER
vi.
TO THE LATTER
OBLIGATION PRIOR A
BEEN PAID RENTS OR INSTALLMENTS HAD BEEN PAID FOUND IN POSSESSION OF A THING WHEN A RECEIPT FOR THE LATER ONES IS PRODUCED PERSON TAKEN IN THE DOING OF A RECENT WRONGFUL ACT IS THE TAKER AND DOER OF THE WHOLE ACT; OTHERWISE, THAT THINGS WHICH A PERSON POSSESSES OR EXERCISES ACTS OF OWNERSHIP OVER, ARE OWNED BY HIM K)
WHERE
HEREINABOVE A SUMMARY
PROVIDED. PROCEEDINGS
BEFORE
AS
PERSON
FAMILY CODE
DECLARATION OF PRESUMPTIVE DEATH OF THE ABSENTEE, EFFECT SPOUSE. OF WITHOUT REAPPEARANCE ABSENT
FOR THE PAYMENT OF THE MONEY OR THE DELIVERY OF ANYTHING L) M) N) THE O) HAS THING ACCORDINGLY
PERSON
ACQUIESCENCE THINGS
APPOINTED OR ELECTED TO IT
OFFICIAL DUTY HAS BEEN REGULARLY PERFORMED A COURT OR JUDGE ACTING AS SUCH, WHETHER IN PHILIPPINES OR ELSEWHERE, WAS ACTING IN THE ALL
THE MATTERS WITHIN AN ISSUE RAISED IN A
THE THING ACQUIESCED IN WAS CONFORMABLE TO THE LAW OR FACT Y) HAVE HAPPENED ACCORDING TO THE ORDINARY COURSE OF NATURE AND ORDINARY NATURE HABITS OF LIFE Z) AA)
LAWFUL EXERCISE OF JURISDICTION CASE WERE LAID BEFORE THE COURT AND PASSED UPON BY IT; ALL MATTERS WITHIN AN ISSUE RAISED IN A DISPUTE SUBMITTED FOR ARBITRATION WERE LAID BEFORE ARBITRATORS AND PASSED UPON BY THEM P) Q) R) S) T)
PERSONS A
ACTING
AS
COPARTNERS
HAVE
ENTERED INTO A CONTRACT OF CO-PARTNERSHIP MAN AND WOMAN DEPORTING THEMSELVES AS HUSBAND AND WIFE HAVE ENTERED INTO A LAWFUL CONTRACT OF MARRIAGE BB)
TRANSACTIONS COURSE OF
HAVE
BEEN
FAIR HAS
AND BEEN
PROPERTY
REGULAR BUSINESS FOLLOWED WAS A SUFFICIENT CONSIDERATION FOR A INSTRUMENT WAS GIVEN OR INDORSED CONTRACT
WHO ARE CAPACITATED TO MARRY EACH OTHER AND WHO LIVE EXCLUSIVELY WITH EACH OTHER AS HUSBAND AND WIFE WITHOUT THE BENEFIT OF MARRIAGE OR UNDER VOID MARRIAGE, HAS BEEN OBTAINED BY THEIR JOINT EFFORTS, WORK OR INDUSTRY. CC) OTHER OR
NEGOTIABLE AN
IN
AND
CASES OF COHABITATION BY A MAN AND A WHO HAVE SUCH ACQUIRE PROPERLY THROUGH THEIR
FOR A SUFFICIENT CONSIDERATION INDORSEMENT OF NEGOTIABLE INSTRUMENT WAS MADE BEFORE THE INSTRUMENT WAS OVERDUE AND AT THE PLACE WHERE THE INSTRUMENT IS DATED U) V)
WOMAN WHO ARE NOT CAPACITATED TO MARRY EACH THEIR ACTUAL JOINT CONTRIBUTION OF MONEY, PROPERTY INDUSTRY, CONTRIBUTIONS AND CORRESPONDING SHARES INCLUDING JOINT DEPOSITS OF MAILED WAS RECEIVED MONEY AND EVIDENCES OF CREDIT ARE EQUAL DD) NOT KNOWN HUNDRED
w)
YEARS,
IF
IT BEING
MOTHER CONTRACTED ANOTHER MARRIAGE WITHIN THREE DAYS FORMER MARRIAGE, THESE RULES SHALL GOVERN IN THE
WHETHER OR NOT HE IS ALIVE, IS CONSIDERED DEAD FOR ALL PURPOSES EXCEPT FOR SUCCESSION. I.
FOR
THE
PURPOSE
OF
OPENING
HIS
SUCCESSION : AN ABSENCE OF
10
YEARS, IF
180
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OF
THE TO SUCH
CONSIDERED
DURING
MARRIAGE, OF THE
300
FORMER
of
180
OF SUCH
THE
THE
CONSIDERED
MARRIAGE,
300
THE
FORMER
TO BE PRINTED OR PUBLISHED BY PUBLIC AUTHORITY, WAS SO PRINTED OR PUBLISHED HH) OF II) WAS TO THE
PURPORTING
TO CONTAIN REPORTS OF CASES ADJUDGED IN TRIBUNALS COUNTRY CONTAINS CORRECT REPORTS OF SUCH CASES
CONVEY
PERSON HAS ACTUALLY CONVEYED IT TO HIM WHEN SUCH PRESUMPTION IS NECESSARY TO PERFECT THE TITLE OF SUCH PERSON OR HIS SUCCESSOR IN INTEREST JJ)
1. How done Rule 132, Sec. 1 A. OPEN COURT B. UNDER OATH OR AFFIRMATION Mode of answering i. General Rule: oral ii. Exception: Witness is incapacitated to speak or Question calls for a different mode of answer Exceptions in general i. in civil cases, testimony of witness may be given by depositions pursuant to R23 and R24 ii. in criminal cases, by depositions or conditional examinations (R119, R123) iii. Cases covered by Rule on Summary procedure = affidavits allowed People v. Estenzo (1976) Mere presentation of the affidavits of prosecution witnesses subject to crossexamination is not allowed by the Rules. People v. Moreno (88 Phil. 286) The testimony of the witness should be elicited by questions of counsel. But the court may itself propound questions either on the direct or cross examination of the witness. Co v. CA (1980) The testimony of a witness in court cannot be considered self-serving since he can be subjected to cross examination. Self-serving evidence is one made out of court and is excluded on the same ground as hearsay evidence, i.e., deprivation of the right of crossexamination. Heirs of Sabanpan v. Comorposa (03) Petitioners assert that the CA erred in disregarding the Affidavits of their witnesses, insisting that the Rule on Summary Procedure authorizes the use of affidavits. They also claim that the failure of respondents to file their position paper and counter-affidavits before the MTC amounts to an admission by silence. The admissibility of evidence should not be confused with its probative value. Admissibility refers to the question of whether certain pieces of evidence are to be considered at all, while probative value refers to the question of whether the admitted evidence proves an issue. Thus, a
PERSONS PERISH IN THE SAME CALAMITY, AND IT IS SHOWN WHO DIED FIRST, AND THERE IT ARE CAN NO BE CIRCUMSTANCES FROM WHICH
EXCEPT
NOT
PARTICULAR
INFERRED, THE SURVIVORSHIP IS DETERMINED FROM THE PROBABILITIES RESULTING FROM THE STRENGTH AND THE AGE OF I. THE RULES: II. SEXES, ACCORDING TO THE FOLLOWING
BOTH < 15: OLDER SURVIVED; BOTH > 60: YOUNGER SURVIVED; III. ONE <15; OTHER >60: <15 SURVIVED; IV. BOTH >15, <60 AND THE SEX BE DIFFERENT, THE MALE IS DEEMED TO HAVE SURVIVED, IF THE SEX BE THE SAME, THE OLDER; V. ONE < 15 OR >, AND THE OTHER BETWEEN THOSE AGES, THE LATTER IS DEEMED TO HAVE
SURVIVED KK)
THAT
OR MORE PERSONS WHO ARE CALLED TO SUCCEED EACH OTHER , AS TO WHICH OF THEM DIED FIRST, WHOEVER ALLEGES THE DEATH OF ONE PRIOR TO THE OTHER, SHALL PROVE THE SAME; IN THE ABSENCE OF PROOF, THEY
(5A) People vs. Padiernos (1976) The presumption that evidence not produced or willfully suppressed is adverse to the party, will not apply if the evidence is at the disposal of both the defense and the prosecution and if the evidence is merely conclusive.
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particular item of evidence may be admissible, but its evidentiary weight depends on judicial evaluation within the guidelines provided by the rules of evidence. People v. Cadley (2004) Appellant draws attention to the fact that the judge who wrote the decision did not hear the case, hence, did not have the opportunity to observe the demeanor of the witnesses. That a judge did not hear a case does not necessarily render him less competent in assessing the credibility of witnesses. He can rely on the transcripts of stenographic notes of their testimony and calibrate them in accordance with their conformity to common experience, knowledge and observation of ordinary men. Such reliance does not violate substantive and procedural due process of law.
TO DEGRADE HIS REPUTATION , UNLESS IT TO BE THE VERY FACT AT ISSUE OR TO A FACT FROM WHICH THE FACT IN ISSUE WOULD BE PRESUMED.
BUT
In 3.4 above, unless otherwise provided by law refers to immunity statutes, such as those in which the witness is granted immunity from criminal prosecution for offenses admitted, e.g., Sec. 8 RA 1379
2. Proceedings to be Recorded Rule 132, Sec. 2 THE ENTIRE PROCEEDINGS OF A TRIAL/HEARING, INCLUDING THE QUESTIONS PROPOUNDED TO
A WITNESS AND HIS ANSWER THERETO
a.
How recorded? by shorthand by stenotype or iii. other means found suitable by the court b. Transcript i. made by the official stenographer, stenotypist or recorder ii. shall be certified as correct iii. deemed prima facie a correct statement of such procedings i. ii. 3. Rights and Obligations Rule 132, Sec. 3 OBLIGATION OF A WITNESS: ANSWER QUESTIONS, ALTHOUGH HIS ANSWER MAY TEND TO ESTABLISH A CLAIM AGAINST HIM. RIGHTS OF A WITNESS: 3.1 TO BE PROTECTED FROM IRRELEVANT, IMPROPER, OR INSULTING QUESTIONS, AND FROM HARSH OR INSULTING DEMEANOR ; 3.2 NOT TO BE DETAINED LONGER THAN THE INTERESTS OF JUSTICE REQUIRE; 3.3 NOT TO BE EXAMINED EXCEPT ONLY AS TO MATTERS PERTINENT TO THE ISSUE; 3.4 NOT TO GIVE AN ANSWER WHICH WILL TEND
TO SUBJECT HIM TO A PENALTY FOR AN BY OFFENSE LAW; OR UNLESS OTHERWISE PROVIDED
RA 1379 Section 8. Protection against self-incrimination. Neither the respondent nor any other person shall be excused from attending and testifying or from producing books, papers, correspondence, memoranda and other records on the ground that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or subject him to prosecution; but no individual shall be prosecuted criminally for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against selfincrimination, to testify or produce evidence, documentary or otherwise, except that such individual so testifying shall not be exempt from prosecution and conviction for perjury or false testimony committed in so testifying or from administrative proceedings.
4. Order in the Examination Rule 132, Sec. 4 4.1 DIRECT EXAMINATION RULE 132, SEC. 5 EXAMINATION-IN-CHIEF OF A WITNESS BY THE
PARTY PRESENTING HIM ON THE FACTS RELEVANT TO THE ISSUE.
MAY
WHEN MATTERS
BE
CONDUCTED :
UPON
CROSS-EXAMINED
ADVERSE PARTY AS TO
(A) ANY
MATTERS OR
STATED
EXAMINATION,
CONNECTED
WITH SUFFICIENT FULLNESS AND FREEDOM TO TEST HIS ACCURACY AND TRUTHFULNESS AND FREEDOM FROM INTEREST OR BIAS, OR THE REVERSE, AND
(B) TO
3.5
21 of 39
NOT
Bachrach Motor Co., Inc. v. CIR (1978) When cross-examination is not and cannot be done or completed due to causes attributable to the party who offered the witness, the uncompleted testimony is thereby rendered
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incompetent and should be stricken from the record Dela Paz vs. IAC (1987) Implied waiver of cross-examination The party was given the opportunity People v. Gorospe (1984) Striking out of answers not warranted when the prosecution witness was extensively cross-examined on the material points, even if the cross-examination has not been concluded. 4.3 RE-DIRECT EXAMINATION RULE 132, SEC. 7
2. 3.
4. or
On preliminary matters; When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute; Of an unwilling or hostile witness;
WHEN
(Sec. 12) A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his (a) adverse interest, (b) unjustified reluctance to testify, or (c) his having misled the party into calling him to the witness stand. 5. Of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.
QUESTIONS:
WHY
THE
OR
SUPPLEMENT
DURING
ON
RE-DIRECT-EXAMINATION , THE COURT IN ITS DISCRETION MAY ALLOW QUESTIONS ON MATTERS NOT DEALT WITH DURING THE CROSS-EXAMINATION. 4.4 RE-CROSS EXAMINATION RULE 132, SEC. 8 ADVERSE PARTY MAY RE-CROSSEXAMINE THE WITNESS ON MATTERS STATED IN HIS RE-DIRECT EXAMINATION, AND ALSO ON SUCH OTHER MATTERS AS MAY BE ALLOWED BY THE COURT IN ITS DISCRETION, UPON THE CONCLUSION OF THE RE-DIRECT EXAMINATION .
MISLEADING
THOSE
NOT YET TESTIFIED TO BY THE WITNESS, OR CONTRARY TO THAT WHICH HE HAS PREVIOUSLY STATED
NOT ALLOWED.
See Summary of Child Witness Rule below for procedure for child witnesses 5. Recalling Witnesses Rule 132, Sec. 9 AFTER THE EXAMINATION OF A WITNESS HAS BEEN CONCLUDED BY BOTH SIDES HAS BEEN CONCLUDED, THE WITNESS CANNOT BE RECALLED WITHOUT LEAVE OF COURT. THE COURT WILL
GRANT OR WITHHOLD LEAVE IN ITS DISCRETION AS THE INTERESTS OF JUSTICE MAY REQUIRE.
People v. Dela Cruz ( 2002) It is usual and proper for the court to permit leading questions in conducting the examination of a witness who is immature; aged and infirm; in bad physical condition; uneducated; ignorant of, or unaccustomed to, court proceedings; inexperienced; unsophisticated; feeble-minded; of sluggish mental equipment; confused and agitated; terrified; timid or embarrassed while on the stand; lacking in comprehension of questions asked or slow to understand; deaf and dumb; or unable to speak or understand the English language or only imperfectly familiar therewith. 7. Impeachment of Witnesses 7.1. IMPEACHMENT OF ADVERSE PARTYS WITNESS RULE 132, SEC. 11 HOW DONE: BY CONTRADICTORY EVIDENCE; BY EVIDENCE
THAT HIS GENERAL REPUTATION FOR TRUTH, HONESTY OR INTEGRITY IS BAD; OR BY EVIDENCE THAT HE HAS MADE AT OTHER TIMES STATEMENTS INCONSISTENT WITH HIS PRESENT TESTIMONY.
People vs. Rivera (1991) There must be a satisfactory showing of some concrete, substantial ground (i.e. particularly identified material points were not covered in the cross-examination; particularly described vital documents were not presented to the witness; the cross-examination was conducted in so inept a manner as to result in a virtual absence thereof. 6. Leading and Misleading Questions Rule 132, Sec. 10 LEADING QUESTIONS: QUESTIONS THAT SUGGEST TO THE WITNESS THE ANSWER, WHICH THE EXAMINING PARTY DESIRES, ARE LEADING QUESTIONS. a. General Rule: Not allowed b. Exceptions: 1. On cross examination;
EVIDENCE
ACTS
OF IS NOT
PARTICULAR ALLOWED
WRONGFUL
EXCEPT THAT IT MAY BE SHOWN BY THE EXAMINATION OF THE WITNESS, OR THE RECORD OF THE JUDGMENT, THAT HE HAS BEEN CONVICTED OF AN OFFENSE.
OF
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GENERAL RULE:
THE
PARTY
WITNESS
present testimony cannot serve as basis for impeaching her credibility unless a) her attention was directed to the inconsistencies or discrepancies and b) she was given an opportunity to explain said inconsistencies. Ysmael v. Hashim (50 Phil 132) Where the previous statements of a witness are offered as evidence of an admission, and not merely to impeach him, the rule on laying the predicate does not apply. People v. Relucio (1978) Unless the witness is given opportunity to explain the discrepancy, impeachment is incomplete. the the
1. A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his a. adverse interest,
b.
unjustified reluctance to testify, or c. his having misled the party into calling him to the witness stand. EXCEPTION #2 : WHEN
THE WITNESS IS AN ADVERSE PARTY OR AN OFFICER, DIRECTOR , OR MANAGING AGENT OF A PUBLIC OR PRIVATE CORPORATION OR OF A PARTNERSHIP OR ASSOCIATION WHICH IS AN ADVERSE PARTY
People v. Molo (1979) A defect in the impeachment of the witness is deemed waived if no objection on that ground is raised when the document involved is offered for admission. 8. THE Exclusion and Separation of Witnesses Rule 132, Sec. 15
JUDGE MAY EXCLUDE FROM THE COURT ANY WITNESS NOT AT
THE TIME UNDER EXAMINATION, SO THAT HE MAY NOT HEAR THE TESTIMONY OF OTHER WITNESSES.
1. The impeachment may be made by the party presenting the hostile or unwilling witness in all respects as if he had been called by the adverse party, except by evidence of bad character. He may also be impeached and crossexamined by the adverse party, but such crossexamination must only be on the subject matter of his examination-in-chief. 7.3. Impeachment by Prior Inconsistent Statements Rule 132, Sec. 13
THE
WITNESSES SEPARATED AND PREVENTED FROM CONVERSING WITH EACH OTHER UNTIL ALL HAVE BEEN EXAMINED.
People v. Sandal (54 Phil 883) Another assignment of error alleged by the appellants in this instance deals with the trial court's refusal to admit a certain witness presented by the defense. The court took this stand for the reason that this witness had been present during the hearing notwithstanding the court's order that all witnesses leave the court room. Under such circumstances it lies within the court's discretion to admit or reject the testimony of the witness. People v. Lua Chu (56 Phil 44) With regard to the trial judge's refusal to order the exclusion of Juan Samson, the principal witness of the Government, from the court room during the hearing, it is within the power of said judge to do so or not, and it does not appear that he has abused his discretion. 9. Refreshing Recollection of Witnesses Rule 132, Sec. 16 9.1 REVIVAL OF PRESENT MEMORY A WITNESS MAY BE ALLOWED TO REFRESH HIS MEMORY RESPECTING A FACT, BY
ANYTHING WRITTEN OR RECORDED BY HIMSELF OR UNDER HIS DIRECTION AT THE TIME WHEN THE FACT THEREAFTER , OR AT ANY OTHER TIME WHEN THE FACT WAS FRESH IN HIS MEMORY AND KNEW THAT THE SAME WAS CORRECTLY OCCURRED, OR IMMEDIATELY
BEFORE
BY
EVIDENCE HIS
OTHER TIMES STATEMENTS INCONSISTENT WITH PRESENT STATEMENTS MUST BE RELATED TO HIM, WITH THE CIRCUMSTANCES OF THE TIMES AND PLACES AND THE PERSONS PRESENT, AND HE MUST BE ASKED WHETHER HE MADE SUCH STATEMENTS, AND IF SO, BE ALLOWED TO EXPLAIN THEM; IF THE STATEMENTS BE IN WRITING THEY MUST BE SHOWN TO THE WITNESS BEFORE ANY QUESTION IS PUT TO HIM CONCERNING THEM TESTIMONY:
(LAYING
THE PREDICATE).
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WRITTEN OR RECORDED,
WRITING OR RECORD?
BUT
THE
RECORD
MUST
INSPECTED BY THE ADVERSE PARTY, WHO MAY, IF HE CHOOSES, CROSS EXAMINE THE WITNESS UPON IT, AND MAY READ IT IN EVIDENCE.
BE INQUIRED INTO BY THE OTHER , AND WHEN DETACHED CONVERSATION, WRITING OR RECORD IS GIVEN CONVERSATION, WRITING OR
IN EVIDENCE, ANY OTHER ACT, DECLARATION , RECORD NECESSARY TO ITS UNDERSTANDING MAY ALSO BE GIVEN IN EVIDENCE.
THIS
PART
OF
THE
PROVISION
APPLIES
WHEN
THE
WITNESS REMEMBERS THE FACTS REGARDING HIS ENTRIES AND IS ENTITLED TO GREATER WEIGHT.
Borromeo v. CA (76) As may be observed, this provision applies only when it is shown beforehand that there is need to refresh the memory of the witness, which is not the case here. Nowhere in the record is there any indication that Alcantara needed during her testimony the aid of any memorandum in respect to the matters contained in the notes in dispute. Besides, under the above witness does not constitute evidence, and may not be admitted as such, for the simple reason that the witness has just the same to testify on the basis of refreshed memory. In other words, where the witness has testified independently of or after his testimony has been refreshed by a memorandum of the events in dispute, such memorandum is not admissible as corroborative evidence. It is self-evident that a witness may not be corroborated by any written statement prepared wholly by him. He cannot be more credible just because he support his opencourt declaration with written statements of the same facts even if he did prepare them during the occasion in dispute, unless the proper predicate of his failing memory is priorly laid down. What is more, even where this requirement has been satisfied, the express injunction of the rule itself is that such evidence must be received with caution, if only because it is not very difficult to conceive and fabricate evidence of this nature. This is doubly true when the witness stands to gain materially or otherwise from the admission of such evidence, which is exactly the case of Crispina Alcantara. 9.2 PAST RECOLLECTION RECORDED A WITNESS MAY TESTIFY FROM SUCH WRITING OR RECORD, (AS IN THE CASE IN REVIVAL OF PRESENT MEMORY) THOUGH HE
RETAIN NO RECOLLECTION OF THE PARTICULAR FACTS, IF HE IS ABLE TO SWEAR THAT THE WRITING OR RECORD CORRECTLY STATED THE TRANSACTION WHEN MADE; BUT SUCH EVIDENCE MUST BE RECEIVED WITH CAUTION .
B. Authentication Documents
and
Proof
of
1. Classes of Documents 1.1 PUBLIC DOCUMENTS RULE 132, SEC. 19 Antillon v. Barcellon (37 Phil 148) x x x generally include notarial documents and are admissible in evidence without the necessity of preliminary proof as to its authenticity and due execution Pacific Asia Shipping v. NLRC (1988) Translations of a foreign judgment (a public document) from Arabic to English must be made by an official court interpreter of the Philippines or foreign governments or by a competent and accurate translator Adriano v. De Jesus (23 Phil 350) Only baptismal certificates issued by the priests during the Spanish regime are considered public documents 1.1.1-A Written official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines or of a foreign country; Records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines or of a foreign country. How Proven (Rule 132, Sec. 24) The record may be evidenced by: (1) an official publication thereof; (2) a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the record is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul-
1.1.1-B
THIS
RECALL
RULE THE
APPLIES FACTS
WHERE
THE
WITNESS IS
DOES
NOT TO
INVOLVED
AND
ENTITLED
LESSER WEIGHT.
WHAT
PART
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general, consul, vice-consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. Wildvalley Shipping v. CA, (00) This section outlines the requisites for admissibility in evidence of a foreign public document. A mere copy of the foreign document, without the attestation and the certificate, is not admissible in evidence to prove foreign law
execution 1.1.3 Public Records (kept in the Philippines) of Private Documents required by law to be entered therein How Proven = Sec. 27 Such may be proved by the original record, or a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. Probative Value = Rule 132, Sec. Such documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of execution
23 Contents of Attestation (Rule 132, Sec 25): The attestation must state that the copy is a correct copy of the original or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. Irremovability of Record (Rule 132, Sec. 26): Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of a pending case. Probative Value (Rule 132, Sec. 23): Documents consisting of entries in public records made in the performance of duty by a public officer are prima facie evidence of the facts therein stated People v. Llandelar (2001) While the birth certificate is primary evidence of a victims age in a case of statutory rape, in the absence of such evidence, the victims minority may be proved by other documentary evidence such as her baptismal certificate or other authentic records. 1.1.2 Notarial Documents except last wills and testaments; How Proven (Rule 132, Sec. 30) Notarial documents may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved. Probative Value (Rule 132, Sec. 23) Such documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of
(Note: The public document is not the writing itself but the public record thereof.) Proof of Lack of Record (Sec. 28) A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search, no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate that such officer has the custody, is admissible to prove that the records of his office contain no such record or entry. 1.2 PRIVATE DOCUMENTS 1.2.1. If Offered as Authentic How Proven (Rule 132, Sec. 20) Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (1) by anyone who saw the document executed or written; or (2) by evidence of the genuineness of the signature or handwriting of the maker. Any other private document need only be identified as that which it is claimed to be. Authentic Document Rule (Rule 132, Sec. 21) Requisites: (1) The private document is more than 30 years old; (2) It is produced from a custody in which it would naturally be found if genuine; (3) It is unblemished by any alterations or circumstances of suspicion. If all requisites have been met, no other evidence of its authenticity is required. Thus, the general rule is that private documents need preliminary proof of authenticity and due 1.1.4
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execution. How Genuineness of Handwriting is Proven (Rule 132, Sec. 22) It may be proved by any witness who believes it to be the handwriting of such person because a) he has seen the person write, or b) has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given c) by a comparison made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. Expert evidence may also be admitted to prove the genuineness of the handwriting (Rule 130, Sec. 49) Method b) is an exception to the opinion rule (see Rule 130, Secs. 48, 50) Lopez v. CA, (78) Section 22 merely enumerates the methods of proving handwriting but does not give preference or priority to a particular method 1.2.2. If not offered as authentic
IV.
WAS
OTHERWISE
v.
DID NOT
THAT CHANGE
THE THE
ALTERATION MEANING OR
5. Documents Written in an Unofficial Language Rule 132, Sec.33 NOT ADMISSIBLE UNLESS ACCOMPANIED WITH A TRANSLATION INTO ENGLISH OR FILIPINO; PARTIES OR THEIR ATTORNEYS ARE DIRECTED TO HAVE SUCH TRANSLATION PREPARED BEFORE TRIAL.
MULTIPLE ADMISSIBILITY
Testimonial Evidence: at the time the witness is called to testify. Documentary AND Object Evidence: after the presentation of a partys testimonial evidence; offer shall be done orally unless allowed by the court to be done in writing. 2. Objection - Rule 132, Sec. 36 TESTIMONIAL EVIDENCE: MUST BE OBJECTED TO IMMEDIATELY AFTER THE OFFER IS MADE. OBJECTION TO A QUESTION PROPOUNDED
IN THE COURSE OF THE ORAL EXAMINATION OF A WITNESS APPARENT. SHALL BE MADE AS SOON AS THE GROUNDS THEREFORE SHALL BECOME REASONABLY
How Proven (Rule 132, Sec. 20) The document need only be identified as that which it is claimed to be. E.g. When one offers a falsified document in evidence, then it is not offered as authentic. It is because the factum probandum is not the authenticity of the document. 2. Impeachment of Judicial Record Rule 132, Sec. 29 HOW DONE BY EVIDENCE OF (A) WANT OF JURISDICTION IN THE COURT OR JUDICIAL OFFICER; (B) COLLUSION BETWEEN THE PARTIES; OR (C) FRAUD IN THE PARTY OFFERING THE RECORD, IN RESPECT TO THE PROCEEDINGS. 3. Alterations Rule 132, Sec. 31 a. THE PARTY PRODUCING A DOCUMENT AS GENUINE,
EXECUTION, IN A PART MATERIAL TO THE DISPUTE, MUST ACCOUNT FOR THE ALTERATION.
WHEN OFFER
ALLOWED
DAYS AFTER NOTICE OF THE OFFER UNLESS A DIFFERENT PERIOD IS WHICH HAS IN TO BY THE COURT. THE GROUNDS FOR OBJECTION MUST BE SPECIFIED IN ANY CASE.
BEEN ALTERED AND APPEARS TO HAVE BEEN ALTERED AFTER ITS QUESTION
FAILURE
b.
HE
MAY SHOW THAT THE ALTERATION WAS MADE I. II. BY ANOTHER , WITHOUT WAS MADE WITH HIS THE
2.1 When repetition is unnecessary (Rule 132, Sec. 37) It shall not be necessary to repeat the objection when it becomes reasonably apparent in the course of the examination of a witness that the questions being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled. It shall be sufficient for the adverse party to record his continuing objection to such
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class of questions. 2.2 Ruling (Rule 132, Sec. 38) Given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling. The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon. 3. Motion to Strike Rule 132, Sec. 39 a. THE COURT MAY SUSTAIN AN OBJECTION AND ORDER
People vs. Tavera (47 Phil. 645) Reservation of a ruling by the court on an objection to the admissibility of evidence, without subsequently excluding the same, amounts to a denial of an objection Vda. De Flores v. WCC (1977) Documents marked as exhibits during the hearing but which were not formally offered in evidence cannot be considered as evidence nor shall they have evidentiary value. People v. Mate (1981) In a criminal case for kidnapping with murder, the defect caused by the absence of formal offer of exhibits were cured by the identification of the exhibits by testimony duly recorded and the incorporation of the said exhibits in the records of the case. Keller v. Ellerman & Bucknall Steamship (38 Phil. 514) A court may treat the objection as a continuing one, motu proprio.
THE
ANSWER GIVEN TO BE STRICKEN OFF THE RECORD SHOULD A WITNESS ANSWER THE QUESTION BEFORE THE ADVERSE PARTY HAD THE OPPORTUNITY TO VOICE FULLY ITS OBJECTION AND SUCH OBJECTION IS FOUND TO BE MERITORIOUS.
b.
THE
COURT MAY ALSO, UPON PROPER MOTION, ORDER THE OUT OF ANSWERS, WHICH ARE INCOMPETENT,
STRIKING
4. Tender of Excluded Evidence Rule 132, Sec. 40 a. DOCUMENTARY EVIDENCE: THE OFFEROR MAY HAVE THE SAME ATTACHED OR MADE PART OF THE RECORD. b. TESTIMONIAL EVIDENCE: THE OFFEROR MAY STATE FOR THE
RECORD THE NAME AND OTHER PERSONAL CIRCUMSTANCES OF THE WITNESS AND THE SUBSTANCE OF THE PROPOSED TESTIMONY.
Interpacific Transit vs. Aviles, (1990) There is a distinction between identification of documentary evidence and its formal offer as an exhibit. The former is done in the course of the trial and is accompanied by the marking of the evidence while the latter is done only when the party rests his/her case. That a document has been identified does not mean that it will be offered. Catuira vs. CA, (1994) While there was no offer of the testimony, petitioner waived this defect by failing to object when the ground became reasonably apparent the moment private respondent was called to testify without any prior offer having been made. Vda. De Orate vs. CA, (1995) The rule requiring that there must be a formal offer of evidence before the evidence can be considered may be relaxed provided the evidence must have duly identified by testimony duly recorded and they must have been incorporated in the records of the case.
ABSOLUTE
People v. Cabrera (1990) Findings of the judge who tried the case and heard the witnesses are not to be disturbed on appeal, unless there are substantial facts and
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circumstances which have been overlooked and which, if properly considered, might affect the result. People v. Escalante (1984) and People v. CA, (2000) If the issue revolved on the identification of the accused or credibility of witness and one judge heard the testimony of the prosecution witnesses, but a different judge penned the decision, the above rule does not apply since the latter judge is not in a better position than the appellate courts to make the determination. Caluna v. Vicente (1951) As a general rule, the number of witnesses should not in and by itself determine the weight of evidence. The numerical factor may be considered in case of conflicting testimonies of witnesses. People v. Juliada (54 Phil 485) The testimony of the offended party is not essential to convict an accused if there are already other evidence to prove guilt. People v. Vinas (1968) Inconsistencies or contradictions on mere details in the testimony of a witness do not materially impair the credibility of such witness, but on the contrary such are indications of veracity rather than prevarication. People v. Baao (1986) The present rule in the Philippines is that the doctrine of falsus in uno, falsus in omnibus is not an absolute one nor mandatory and binding upon the court which may accept or reject portions of the witness testimony depending on the inherent credibility thereof or the corroborative evidence in the case. People v. Hijada (04) The perpetrators of the crime saw to it that no one was left alive who could testify against them. Hence, no eyewitness could be presented who would directly link appellants to the crime. Nevertheless, the Court has held that circumstantial evidence is sufficient for conviction if: a) there is more than one circumstance; b) the facts from which the inferences are derived are proven; and c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Habagat Grill v. DMC Urban, (2005) Preponderance of evidence means that the evidence adduced by one side is, as a whole, superior to or has greater weight than that of the other. Where the evidence presented by one side is insufficient to ascertain the claim, there is no preponderance of evidence. In criminal cases in
which the quantum of evidence required is greater than in civil cases, the testimony of only one witness -- if credible, straightforward, and worthy of belief -- is sufficient to convict. Under Section 1 of Rule 133 of the Rules of Court, among the facts and circumstances to be considered by the court in determining which of the presented evidence has superior weight is the witnesses means and opportunity to know the facts to which they testify. (see this case for discussion on factors affecting means and opportunity to know the facts to which they testify). Quinto v. Andres (05) Insofar as the civil aspect of the case is concerned, the prosecution or the private complainant is burdened to adduce preponderance of evidence or superior weight of evidence. Although the evidence adduced by the plaintiff is stronger than that presented by the defendant, he is not entitled to a judgment if his evidence is not sufficient to sustain his cause of action. The plaintiff must rely on the strength of his own evidence and not upon the weakness of that of the defendants.
UNLESS
CORROBORATED
Corpus delicti means the actual commission by someone of the particular crime charged. It is made up of two things the existence of a certain act or result forming the basis of the criminal charge and the existence of a criminal agency as the cause of the act or result. People v. Garcia (99 Phil 381) In murder, the fact of death is the corpus delicti. People v. Mutuc (1984) Where there is doubt as to the identity of a cadaver, in the absence of any other evidence, there is no corpus delicti. People v. Comendador (1980) The expression corpus delicti is not synonymous with the whole charge so as to require that all the elements of the crime be
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MOTU
WHEN TO
EXISTS REGARDING THE ABILITY OF THE CHILD PERCEIVE, REMEMBER, FROM COMMUNICATE, FALSEHOOD, OR
DISTINGUISH COURT.
TRUTH
(SS6)
SEEKING MUST OF A COMPETENCY PROOF OF EXAMINATION . COMPETENCY PRESENT
PARTY
EXAMINATION NECESSITY
COMPETENCY FOR A
SUFFICIENT EXAMINATION.
(SS6(A))
Under the RPC, one cannot be convicted of treason by means of circumstantial evidence (Art. 114, RPC, see two witness rule) MAY THE YES
POINT COURT STOP THE INTRODUCTION OF FURTHER UPON CANNOT ANY BE PARTICULAR REASONABLY POINT WHEN TO THE BE
PERSONNEL;
THE COUNSEL FOR THE PARTIES; THE GUARDIAN AD LITEM; SUPPORT PERSON/S FOR THE CHILD; AND THE DEFENDANT, UNLESS THE COURT
DETERMINES THAT COMPETENCE CAN BE FULLY EVALUATED IN HIS ABSENCE.
EVIDENCE UPON IT IS ALREADY SO FULL THAT MORE WITNESSES TO EXPECTED ADDITIONALLY WITH CAUTION. PERSUASIVE; THIS POWER SHOULD BE EXERCISED
BY
THE
COUNSEL FOR THE PARTIES, HOWEVER, CAN MAY, IN HIS DISCRETION , ASK THE CHILD.
JUDGE,
HOW
COURT
MAY HEAR
THAT THE MATTER BE
AFFIDAVITS OR DEPOSITIONS
HEARD WHOLLY OR PARTLY ON ORAL
(SS6(D)) QUESTIONS
AND
DEVELOPMENTAL
SHALL NOT BE RELATED TO THE ISSUES AT TRIAL; AND SHALL FOCUS ON THE ABILITY OF THE CHILD TO REMEMBER, DISTINGUISH BETWEEN TRUTH COMMUNICATE, AND
PRESENTED BY THE RESPECTIVE PARTIES BUT THE COURT MAY DIRECT TESTIMONY OR DEPOSITIONS.
III. A. B.
TESTIFY TRUTHFULLY.
THE
(SS6(E)) (SS6(F))
RULE. UNLESS
CRIME,
VICTIMS
IT
SHALL
APPLY
CRIMINAL
OF GIVING TESTIMONY IS
2.
CHILD INCLUDES ONE
ANY PERSON WHO AT THE TIME < 18 YEARS. IN CHILD ABUSE CASES: A OVER EIGHTEEN (18) YEARS BUT
IS FOUND BY THE COURT AS UNABLE TO FULLY TAKE CARE OF HIMSELF OR PROTECT HIMSELF FROM ABUSE, NEGLECT, OF A PHYSICAL OR MENTAL DISABILITY OR CONDITION. OF A QUALIFIED OF PROOF CRUELTY, EXPLOITATION, OR DISCRIMINATION BECAUSE
(SS7) EXAMINATION 1. HOW CONDUCTED GENERAL RULE: OPEN COURT, UNLESS THE WITNESS IS INCAPACITATED TO SPEAK, OR THE QUESTION CALLS FOR A DIFFERENT MODE OF ANSWER , THE ANSWERS OF THE WITNESS SHALL BE GIVEN ORALLY. (SS8) EXCEPTION/S: A) EXCLUSION OF THE PUBLIC WHY MADE: TO PROTECT THE RIGHT TO PRIVACY OF
THE CHILD OR
IF
THE
COURT
DETERMINES
ON
THE
II.
COMPETENCY
PRESUMED BURDEN OF
PRESUMPTION COMPETENCE.
CHILD WITNESS: EVERY CHILD IS TO BE A WITNESS. TO REBUT THE COMPETENCE ENJOYED BY A CHILD, THE
LIES ON THE PARTY CHALLENGING EXAM HIS
RECORD THAT REQUIRING THE CHILD TO TESTIFY IN OPEN COURT WOULD CAUSE PSYCHOLOGICAL HARM TO HIM, HINDER THE ASCERTAINMENT OF TRUTH, OR RESULT IN HIS INABILITY TO EFFECTIVELY COMMUNICATE DUE TO EMBARRASSMENT, FEAR, OR TIMIDITY.
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IN
MAKING THE
ITS
ORDER , OF
THE THE
COURT
SHALL THE
THE
CONSIDER THE DEVELOPMENTAL LEVEL OF THE CHILD, NATURE CRIME, NATURE OF HIS TESTIMONY REGARDING THE CRIME, HIS RELATIONSHIP TO THE ACCUSED AND TO PERSONS ATTENDING THE TRIAL, HIS DESIRES, AND THE INTERESTS OF HIS PARENTS OR LEGAL GUARDIAN.
ORDER TV:
THE
COURT OR
SHALL
ISSUE
AN
ORDER USE OF
THE
THE
COURT MAY, MOTU PROPRIO, EXCLUDE PUBLIC FROM THE COURTROOM IF THE
GRANTING
DENYING
THE
EVIDENCE TO BE PRODUCED DURING TRIAL IS OF SUCH CHARACTER AS TO BE OFFENSIVE TO DECENCY OR PUBLIC MORALS.
FACTORS
CONSIDERED
BY
THE
COURT
IN
GRANTING/DENYING APPLICATION :
THE
ACCUSED, EXCLUDE THE PUBLIC FROM TRIAL, EXCEPT COURT PERSONNEL AND THE COUNSEL OF THE PARTIES. MAY ORDER THAT PERSONS ATTENDING SHALL NOT ENTER OR LEAVE THE
(1)THE (2)HIS
HEALTH,
AGE
AND
LEVEL
OF
B)
PHYSICAL DISABILITY;
(3)ANY
BY HIM;
PHYSICAL, EMOTIONAL ,
c)
(SS24) MOTION
OR THE WITNESS IN THIS I.
NATURE
OF
THE
BY PARTY WHO PRESENTS A CHILD WITNESS GUARDIAN MAY, AD LITEM MOVE OF SUCH CHILD TO HOWEVER ,
THE
COURT
RULE (SS8):
TELEVISION CASES WHERE FOR CHILD TESTIMONY THE AN BE CHILD ORDER TAKEN IS IN A
THE ACCUSED OR ADVERSE PARTY; PRIOR ENCOUNTERS WITH THE ACCUSED IN COURT OR ELSEWHERE; REACTION THE PRIOR TOPIC TO OF OR OF TRIAL HIM WHEN BY
LIVE-LINK
CRIMINAL
VICTIM OR A WITNESS.
WHO
(SS25)
THAT IN A BE
MAY
TESTIMONY ROOM
OUTSIDE
COURTROOM
AND
1 2
PROSECUTOR, COUNSEL OR THE GUARDIAN AD LITEM FOR SUCH FIVE APPLICATION : AN THE ORDER DAYS COURT
(9)SPECIFIC
PERIOD
SEEKING LEAST DATE,
THE
LAY WITNESSES;
(10)TESTIMONY
OF EXPERT OR
SHALL FINDS
(11)THE
CUSTODIAL SITUATION
(5)
BEFORE
THE ON
OF THE CHILD AND THE ATTITUDE OF THE MEMBERS OF HIS FAMILY REGARDING THE EVENTS ABOUT WHICH HE WILL TESTIFY; AND
UNLESS
RECORD THAT THE NEED FOR SUCH AN ORDER WAS NOT REASONABLY FORESEEABLE.
HEARING
(12)OTHER
RELEVANT AS COURT
THE
FACTORS,
SUCH
AND DETERMINE, WITH NOTICE TO THE PARTIES, TESTIMONY THE OF NEED THE FOR TAKING THE CHILD THROUGH
LIVE-LINK TELEVISION.
THE
OF
COURT MAY ORDER THAT THE TESTIMONY THE CHILD IF BE THERE TAKEN IS A BY LIVE-LINK SUBSTANTIAL
THE
TELEVISION
CHAMBERS, OR IN SOME COMFORTABLE PLACE OTHER THAN THE COURTROOM, IN THE PRESENCE OF THE SUPPORT PERSON, GUARDIAN AD LITEM, PROSECUTOR , AND COUNSEL FOR THE PARTIES.
LIKELIHOOD THAT THE CHILD WOULD SUFFER TRAUMA FROM TESTIFYING IN THE PRESENCE OF THE PROSECUTOR AS THE CASE MAY BE. ACCUSED, HIS COUNSEL OR THE
THE
THE
TRAUMA MUST BE OF A KIND WHICH WOULD IMPAIR THE COMPLETENESS OR TRUTHFULNESS OF THE TESTIMONY OF THE CHILD.
QUESTIONS OF THE JUDGE SHALL NOT BE RELATED TO THE ISSUES AT TRIAL BUT TO THE FEELINGS OF THE CHILD ABOUT TESTIFYING IN THE COURTROOM.
HOW
DONE:
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1 2
WHERE TESTIMONY IS TAKEN: IN A ROOM SEPARATE FROM THE COURTROOM WHO ARE PRESENT:
GUARDIAN
AD
LITEM
(CONSULTATION TV.
WITH PROSECUTOR OR COUNSEL AS IN APPLICATION FOR USE OF LIVE-LINK HIS ALSO REQUIRED)
i.
ANY;
OFFICER
APPOINTED BY THE COURT; VI. OPERATE VII. PERSONS NECESSARY TO THE CLOSED-CIRCUIT
IF
TO
THE COURT GRANTS AN APPLICATION SHIELD THE CHILD FROM IN THE THE WHILE TESTIFYING
ACCUSED
TELEVISION EQUIPMENT; AND OTHER PERSONS WHOSE III. PRESENCE ARE DETERMINED BY THE COURT TO BE NECESSARY TO THE WELFARE AND WELL-BEING OF THE CHILD;
COURTROOM, THE COURTROOM SHALL BE ARRANGED TO ENABLE THE ACCUSED TO VIEW THE CHILD.
WHO
VIDEOTAPED
MAY AND
DEPOSITION. FOR IT AN BE
(SS27)
ORDER THAT A
APPLY THAT
DEPOSITION BE TAKEN OF THE TESTIMONY OF THE CHILD RECORDED AND PRESERVED ON VIDEOTAPE?
THE
THE
JUDGE, AND
ACCUSED,
COUNSEL
PARTIES SHALL BE IN THE COURTROOM. TESTIMONY OF THE CHILD SHALL BE BY LIVE-LINK TELEVISION TRANSMITTED
1 2
PROSECUTOR, COUNSEL , OR
(CONSULTATION
COUNSEL AS
WITH IN
INTO THE COURTROOM FOR VIEWING AND HEARING BY THE JUDGE, PROSECUTOR , COUNSEL VICTIM, FOR THE PARTIES, ACCUSED, AND THE PUBLIC UNLESS
TV.
WHEN
OPEN
EXCLUDED.
THE CHILD WILL NOT BE ABLE TO TESTIFY IN ORDER THAT THE DEPOSITION OF THE CHILD BE TAKEN AND PRESERVED BY VIDEOTAPE. IV.
IF
TO IDENTIFY THE ACCUSED AT TRIAL, THE COURT MAY ALLOW THE CHILD TO ENTER THE COURTROOM FOR THE LIMITED PURPOSE OF IDENTIFYING THE ACCUSED, OR THE COURT MAY ALLOW THE CHILD TO IDENTIFY THE THE ACCUSED OF COURT THE THE BY OBSERVING ON A IMAGE LATTER SET
TELEVISION MONITOR.
THE
OF
MAY
FINDS JUST AND APPROPRIATE, TAKING CONSIDERATION BEST CHILD SIMILAR SHALL ORDER BE AS INTERESTS OF THE CHILD.
OF THE COURT IS BASED ON EVIDENCE THAT THE CHILD IS UNABLE TO TESTIFY IN THE PHYSICAL PRESENCE OF THE ACCUSED, THE COURT MAY DIRECT THE LATTER TO BE EXCLUDED FROM THE ROOM IN WHICH THE DEPOSITION IS CONDUCTED. EXCLUSION OF THE ACCUSED, THE COURT SHALL ORDER THAT THE TESTIMONY OF THE CHILD BE TAKEN BY LIVE-LINK TELEVISION IN ACCORDANCE WITH SECTION
THE
BE
THE
VIDEOTAPE,
IN
CASE OF
OTHER AND
DEVICES WHICH SHALL BE MADE PART OF COURT TO RECORD A SUBJECT II. PROTECTIVE
PROVIDED IN SECTION
SCREENS,
DEVICES TO
ONE-WAY
RULE.
OTHER FROM
IF
THE
25
OF THIS IS NOT
THE
ACCUSED
IS IT
EXCLUDED
ACCUSED.
DEPOSITION ,
6 OTHER
VIEW AN IMAGE OF THE ACCUSED. PERSONS BY WHOSE THE PRESENCE TO IS BE DETERMINED COURT
CHAIR OF THE CHILD OR THAT A SCREEN OR OTHER DEVICE BE PLACED IN THE COURTROOM IN SUCH A MANNER THAT THE CHILD CANNOT SEE THE ACCUSED WHILE TESTIFYING:
7 SUPPORT 8 COURT
PROSECUTOR OR
INTERPRETER, IF ANY;
STENOGRAPHER ; AND
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9 PERSONS
NECESSARY
TO
OPERATE
THE
WHEN FILIPINO
APPOINTED:WHEN
CHILD OR
VIDEOTAPE EQUIPMENT.
ENGLISH
OBJECTIONS
RIGHTS OF THE ACCUSED
TO
TESTIMONY
OR
EVIDENCE;
SIMILAR REASON
WHO
MAY BE INTERPRETER ? A WITNESS OR MEMBER OF THE OF THE CHILD CAN IS THE AS ONLY AN WHO SERVE
F I
FAMILY PERSON
2 THE
AND THE
RIGHTS TO
OF
THE
ACCUSED
DURING
TRIAL, ESPECIALLY THE RIGHT TO COUNSEL CONFRONT SHALL AND NOT CHILD, BE
INTERPRETER FOR THE CHILD, HE SHALL NOT BE DISQUALIFIED AND MAY SERVE AS THE INTERPRETER OF THE CHILD.
CROSS-EXAMINE VIOLATED
THE
INTERPRETER , HOWEVER , WHO IS ALSO A SHALL AND BE THE BE FOR WITNESS, SHALL TESTIFY AHEAD OF THE CHILD.
3 THE
VIDEOTAPED AND
DEPOSITION VIDEOTAPE
THE
NOTES CASE IS
AN
INTERPRETER
SHALL
TAKE
AN
TRANSMITTED TO THE CLERK OF THE COURT SAFEKEEPING AND SHALL BE MADE A PART OF THE RECORD.
2.
THAT IT
THE
FINDS THE
MAY
SET
CONDITIONS ON THE TAKING OF THE DEPOSITION APPROPRIATE, RIGHTS INTO CONSIDERATION THE BEST INTERESTS OF THE CHILD, CONSTITUTIONAL ACCUSED, AND OTHER RELEVANT FACTORS.
(b) FACILITATOR TO POSE QUESTIONS TO CHILD (SS10) HOW APPOINTED: THE COURT MOTU PROPRIO OR UPON MOTION, WHEN APPOINTED: CHILD IS UNABLE TO
UNDERSTAND OR RESPOND TO QUESTIONS ASKED.
WHO
AND TO A
MAY
BE
A MAY
FACILITATOR : BE A
THE
CHILD
3.
PROTECTIVE
THE
VIDEOTAPED SHALL AS
DEPOSITION BE SUBJECT IN
STENOGRAPHIC
NOTES
PSYCHIATRIST, LEADER,
SOCIAL PARENT,
ORDER
PROVIDED
SECTION
GUIDANCE RELIGIOUS
COUNSELOR ,
31(B). 4.
COURT OF
OR RELATIVE.
THE
FACILITATOR SHALL
I F,
FINDS
AT
THE THE IS OF
TIME CHILD
OF IS
THE TO ANY
TAKE AN OATH OR AFFIRMATION TO POSE QUESTIONS TO THE CHILD ACCORDING TO THE MEANING INTENDED BY COUNSEL.
THAT OR
RULE,
25(F)
UNAVAILABLE
1997 RULES
OF AT THE THE
FUNCTION RESPECTIVE
OF
FACILITATOR :
SHALL POSE QUESTIONS TO THE CHILD ONLY THROUGH THE FACILITATOR. QUESTIONS SHALL EITHER BE IN
COURT MAY ADMIT INTO EVIDENCE THE VIDEOTAPED DEPOSITION TESTIMONY CHILD TRIAL.
THE
THE
THE
COURT
WORDS USED BY COUNSEL OR, IF THE CHILD IS NOT LIKELY TO UNDERSTAND THE SAME, IN WORDS TO THE THAT CHILD ARE AND COMPREHENSIBLE
5.
BUT BEFORE OR DURING TRIAL, ANY PARTY MAY FILE ANY MOTION FOR ADDITIONAL VIDEOTAPING ON THE GROUND OF NEWLY DISCOVERED EVIDENCE. COURT MAY ORDER AN ADDITIONAL
AFTER
THE
ORIGINAL
VIDEOTAPING
WHICH CONVEY THE MEANING INTENDED BY COUNSEL. (c) SUPPORT PERSONS (SS11) A CHILD TESTIFYING AT SHALL HAVE THE
THE
VIDEOTAPED
JUDICIAL TO BE
PROCEEDING OR MAKING A DEPOSITION RIGHT ACCOMPANIED BY ONE OR TWO PERSONS OF HIS OWN CHOOSING TO PROVIDE HIM EMOTIONAL SUPPORT.
C.
RESTED.
WHEN (SS14)
CONDUCTED:
THE
COURT MAY
ORDER THAT THE TESTIMONY OF THE CHILD SHOULD BE TAKEN DURING A TIME OF DAY WHEN THE CHILD IS WELL-
D.
PROVISIONS
(1)BOTH
PERSONS SHALL REMAIN HIS TESTIMONY.
SUPPORT WITHIN
(2)ONE
OF
THE
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SUPPORT PERSONS MAY ACCOMPANY THE CHILD TO THE WITNESS STAND, PROVIDED DOES NOT THE SUPPORT PERSON OBSCURE OR MAY TO COMPLETELY PARTY,
MAY
ALSO THE
BE
TO THE HIS
ALLOW
CHILD PARTY
OPPOSING
COUNSEL , IF HE CHOOSES TO LOOK AT THEM, WITHOUT BODY OR LEAVING STAND. TURNING HIS THE WITNESS
THE CHILD FROM THE VIEW OF THE OPPOSING JUDGE, COURT PERSON HEARING OFFICER. ALLOW THE
(3)THE
SUPPORT
4 5
THE
JUDICIAL ROBE.
HOLD THE HAND OF THE CHILD OR TAKE OTHER APPROPRIATE STEPS TO PROVIDE EMOTIONAL SUPPORT TO THE CHILD IN THE COURSE OF THE PROCEEDINGS.
NOTHING
OTHER PROVISION OF LAW, EXCEPT OFFICIAL IN-COURT IDENTIFICATION PROVISIONS, SHALL BE CONSTRUED TO REQUIRE A CHILD TO LOOK AT THE ACCUSED.
(4)THE
INSTRUCT NOT TO THE PROMPT,
SUPPORT
ACCOMMODATIONS
SUPPORTED BY A
THE ATTENDANCE OF THE SUPPORT DURING CHILD OR TESTIMONY POSE A OF THE WOULD RISK AFFECTING
IF
DEVELOPMENTAL LEVEL. (g) TESTIMONIAL AIDS (SS16): USE OF DOLLS, ANATOMICALLY-CORRECT DOLLS, PUPPETS, DRAWINGS, MANNEQUINS, OR ANY OTHER APPROPRIATE DEMONSTRATIVE DEVICE TO ASSIST HIM ITEM IN HIS TESTIMONY.
ALLOWED
HIS TESTIMONY
AREA THAT
FOR IS
CHILD
SEPARATE USED
(SS17):
CHILD SHALL BE
AREAS
ALLOWED TO HAVE AN ITEM OF HIS OWN CHOOSING SUCH AS A BLANKET, TOY, OR DOLL
(SS13)
COMFORTABLE
COURT DIRECT
IN ITS DISCRETION, SUPERVISE MOVEMENT ALL INCLUDING PERSONS THE AND IN THE
COURTROOM
WITNESSES,
(SS18)
II.MODE OF QUESTIONING :
- THE
THE THE
CONTROL
OVER
(1) (2)
WITNESS FROM
CHAIR WHICH BE
OR THE
OTHER CHILD TO
PLACE
TESTIFIES
MAY
TURNED
FACILITATE HIS TESTIMONY BUT THE OPPOSING PARTY AND HIS COUNSEL MUST HAVE A FRONTAL OR PROFILE VIEW OF THE CHILD DURING THE TESTIMONY OF THE CHILD. WITNESS CHAIR OR OTHER
(3) (4)
THE
PLACE
HARASSMENT AVOID
ONE UP LAW
MENTAL
THE
CHILD
ILLNESS, TO
OR
WILL
BE
COURT WITNESS
MAY TO AND
EXPOSED
THE
PSYCHOLOGICAL INJURY; OR
(2)IS
QUESTIONS (1)
LEADING
FROM
THE
HEARING
OBJECTIONS THERETO QUESTIONS IN ALL STAGES CHILD ALLOWED SAME FURTHER INTERESTS JUSTICE MAY IF OF BE THE WILL THE OF TO EXAMINATION OF A
PROPONENT OF HIS STATEMENT HAS BEEN UNABLE TO PROCURE HIS ATTENDANCE BY PROCESS OR OTHER REASONABLE MEANS.
WHEN
IS UNAVAILABLE, HIS HEARSAY TESTIMONY SHALL BE ADMITTED ONLY IF CORROBORATED BY OTHER ADMISSIBLE EVIDENCE.
(SS20)
2)
IN
RULING ON THE ADMISSIBILITY OF SUCH STATEMENT, THE INDICIA THE COURT CONTENT WHICH RELIABILITY. SHALL AND PROVIDE TIME, OF
(2) OBJECTIONS
QUESTIONS SHOULD BE COUCHED IN A MANNER SO AS NOT TO CONFUSE, FRIGHTEN, INTIMIDATE CHILD. MISLEAD, OR THE
CIRCUMSTANCES
THEREOF
IT
D. E. F. G.
(j) WEIGHT
REQUIRED CREDIBLE FACT,
(SS21)
HIS
TESTIMONY, SHALL
IF BE
BY
ITSELF, OR
SUFFICIENT TO SUPPORT A FINDING OF CONCLUSION, IN JUDGMENT OF PROOF NONAND SUBJECT TO THE STANDARD REQUIRED CRIMINAL
WHETHER THERE IS A MOTIVE TO LIE; THE GENERAL CHARACTER OF THE DECLARANT CHILD; WHETHER MORE THAN ONE PERSON HEARD THE STATEMENT; WHETHER THE STATEMENT WAS SPONTANEOUS; THE TIMING OF THE STATEMENT AND
THE RELATIONSHIP BETWEEN COULD THE NOT DECLARANT CHILD AND WITNESS;
H.
CROSS-EXAMINATION
THE DECLARANT CHILD;
CRIMINAL CASES. (SS22) IV. QUESTIONS OF ADMISSIBILITY A. HEARSAY EXCEPTION IN CHILD ABUSE CASES (SS28) WHERE ADMITTED: CHILD ABUSE CASES, CRIMINAL OR NON-CRIMINAL HOW ADMITTED: 1) BEFORE SUCH HEARSAY STATEMENT MAY BE ADMITTED, ITS PROPONENT SHALL MAKE KNOWN TO THE ADVERSE PARTY THE INTENTION TO OFFER SUCH TO STATEMENT PROVIDE HIM AND A ITS FAIR PARTICULARS A.
THE THE
THE
POSSIBILITY OF
OF THE
FAULTY DECLARANT
RECOLLECTION J.
CHILD IS REMOTE; AND CIRCUMSTANCES STATEMENT IS NO ARE REASON THE SURROUNDING SUCH TO THAT CHILD INVOLVEMENT SUPPOSE
THERE THE
DECLARANT
B.
VIDEOTAPED
OR
OPPORTUNITY TO OBJECT.
DISCLOSURE
SHALL, CHILD
UPON BE
(SS29) WHEN 1
MOTION OF THE ADVERSE PARTY, TO PRESENT AT THE PRESENTATION OF THE HEARSAY STATEMENT FOR CROSS-EXAMINATION ADVERSE PARTY. B. BY THE
THE
OF MEMORY, MENTAL
(1)IS
INFIRMITY,
CHILD IS
(2)IS
UNABLE
ABSENT FROM THE HEARING AND THE OF HIS STATEMENT HIS HAS BEEN BY TO PROCURE ATTENDANCE
PROPONENT
BEFORE
THE AN
VIDEOTAPE
OR
AUDIOTAPE TO VIEW
IS OR
ONE UP LAW
BY
WHOM CONDUCTED:
DULY OR
TRAINED CHILD
MEMBERS
OF
A IN
DIFFERENT PERMITS
TIME
MULTIDISCIPLINARY TEAM OR REPRESENTATIVES OF LAW ENFORCEMENT PROTECTIVE SERVICES SITUATIONS WHERE CHILD ABUSE IS SUSPECTED SO AS TO DETERMINE WHETHER CHILD ABUSE OCCURRED.
(2) SERVE 3
PARTIES AND THE GUARDIAN AD LITEM AT LEAST DAYS BEFORE THE HEARING OF THE MOTION.
PROOF
INDIVIDUAL CONDUCTING THE INTERVIEW OF THE SHALL BE AVAILABLE AT TRIAL FOR COURT
CHILD
EXAMINATION BY ANY PARTY. OF THE FOLLOWING MUST BE GIVEN BY PARTY OFFERING THE VIDEOTAPE OR AUDIOTAPE:
2. BEFORE
CHAMBERS DISCLOSES THE
ADMITTING SUCH EVIDENCE, THE CONDUCT AFFORD A THE HEARING CHILD, IN HIS AND
MUST
(1)THE (2)THE
VIDEOTAPE
OR
AUDIOTAPE
IDENTITY OF ALL INDIVIDUALS PRESENT AND AT ALL TIMES INCLUDES THEIR IMAGES AND VOICES; STATEMENT WAS NOT MADE IN RESPONSE TO QUESTIONING CALCULATED TO LEAD THE CHILD TO MAKE A PARTICULAR STATEMENT OR IS CLEARLY SHOWN TO BE THE STATEMENT OF THE CHILD AND NOT THE PRODUCT OF IMPROPER SUGGESTION ;
THE
MOTION
AND
THE
RECORD
OF
THE
HEARING MUST BE SEALED AND REMAIN UNDER SEAL AND PROTECTED BY A PROTECTIVE ORDER SET FORTH IN SECTION HEARING CONSENT. IN
31(B). THE
EXCEPT
CHILD HIS
(3)THE (4)THE
VIDEOTAPE PERSON
AND
AUDIOTAPE THE
MACHINE DEVICE
OR WAS
THE CHILD
(SS31)
(5)THE VIDEOTAPE OR AUDIOTAPE CORRECT; AND (6)IT HAS BEEN DULY PRESERVED. VALUE
DONE AS REQUIRED IN THIS INVESTIGATIVE BY ITSELF INTERVIEW A
IS AUTHENTIC AND
TO
RULE: THE
IS NOT TO
ADMINISTRATIVE USE;
(1)
MEMBERS
OF
THE
COURT
STAFF
FOR
VIDEOTAPED EXCLUDE
AUDIOTAPED AS REQUIRED BY THIS SECTION SHALL NOT CONSTITUTE BASIS EVIDENCE OUT-OF-COURT STATEMENTS OR TESTIMONY OF THE CHILD.
IT
(2) THE PROSECUTING ATTORNEY; (3) DEFENSE COUNSEL; (4) THE GUARDIAN AD LITEM; (5) AGENTS OF INVESTIGATING LAW ENFORCEMENT AGENCIES; AND (6) OTHER PERSONS AS DETERMINED BY THE COURT. F. PROTECTIVE
ORDER
C.
IN ALLEGED
ANY CHILD
CRIMINAL SEXUAL
WHAT
ARE COVERED:
ANY
VIDEOTAPE OR AUDIOTAPE OF A
(1) EVIDENCE
ALLEGED VICTIM BEHAVIOR; AND
OFFERED
TO
PROVE IN
THAT
THE
PROVISOS
ENGAGED
OTHER
SEXUAL LITEM.
COUNSEL , THEIR EXPERT WITNESS, AND THE GUARDIAN AD OFFERED TO PROVE THE SEXUAL TAPE, OR ANY PORTION THEREOF, SHALL BE
EVIDENCE
OF SPECIFIC BY THE
(A)
INSTANCES
SEXUAL
BEHAVIOR
ALLEGED VICTIM TO PROVE THAT A PERSON OTHER THAN THE ACCUSED WAS THE SOURCE OF SEMEN, INJURY, OR OTHER PHYSICAL EVIDENCE SHALL BE ADMISSIBLE.
TAPE, ITS TRANSCRIPTION OR ANY PART THEREOF UNLESS HE SIGNS A WRITTEN AFFIRMATION THAT HE HAS RECEIVED AND READ A COPY OF THE PROTECTIVE ORDER ; THAT HE SUBMITS TO THE JURISDICTION OF THE COURT WITH RESPECT TO THE
(3) NO
HOW
ADMITTED:
1. A
PARTY
INTENDING
TO
OFFER
ORDER ;
AND
THAT
IN
CASE
OF
VIOLATION
(4)
EACH
OF
THE
TAPE
CASSETTES
AND
ONE UP LAW
THEIR COUNSEL, AND RESPECTIVE AGENTS SHALL BEAR THE FOLLOWING CAUTIONARY NOTICE:
1.
YOUTHFUL
CITY OR MUNICIPAL
OFFENDER HAS BEEN CHARGED BEFORE ANY PROVINCIAL JUDGE PROSECUTOR THE OR BEFORE HAVE ANY BEEN AND CHARGES
THIS
AND THE SUBJECT TO
OBJECT A
OR
CONTENTS
THEREOF
ORDERED DROPPED
PROTECTIVE
(CASE TITLE), (CASE NUMBER). THEY SHALL NOT BE EXAMINED, INSPECTED, READ, VIEWED, OR COPIED BY ANY PERSON, OR DISCLOSED TO ANY PERSON, EXCEPT AS PROVIDED IN THE PROTECTIVE ORDER. NO ADDITIONAL
ISSUED BY THE COURT IN COPIES OF THE TAPE OR ANY OF ITS PORTION SOLD, OR SHALL BE MADE, TO SUCH ANY GIVEN, PERSON SHOWN
ALL
SHALL
BE CONSIDERED AS PRIVILEGED AND MAY NOT BE DISCLOSED DIRECTLY OR INDIRECTLY TO ANYONE FOR ANY PURPOSE WHATSOEVER.
2.
YOUTHFUL
COURT
OFFENDER HIM,
HAS OR
BEEN
CHARGED THE OF
AND CASE
THE OR
ACQUITS
DISMISSES
CHAPTER 3
P. D. NO.
603, ALL
THE RECORDS OF HIS CASE SHALL ALSO BE CONSIDERED AS PRIVILEGED AND MAY NOT BE DISCLOSED DIRECTLY OR INDIRECTLY TO ANYONE DEFENDANT
ANY
EXCEPT
MAY OR IF
HAVE HE
SUSPENDED UNDER
(5) NO
TAPE SHALL BE GIVEN, LOANED, SOLD, OR DAYS FROM RECEIPT, ALL COPIES SHALL BE OF COURT FOR SAFEKEEPING
NO. 603
ARTICLE 192
P. D. P. D.
CIVIL BEEN
GRANTED HIS
(6) WITHIN 30
RETURNED TO THE
ENFORCE LIABILITY
HAS
(7) THIS
SHALL NOT BE HELD UNDER ANY PROVISION OF PROTECTIVE ORDER SHALL REMAIN IN FULL ORDERS. PERJURY TO CONCEALMENT REASON THE CASE MISREPRESENTATION ANY FACT
G. ADDITIONAL
THE COURT MAY, ANY PARTY, THE CHILD, HIS THE GUARDIAN AD LITEM,
FAILURE RECITE
ACKNOWLEDGE RELATED
H. PUBLICATION WHAT
IS
VI.
OR CAUSING
PUBLICATION
RULES OF COURT: COURT ON DEPOSITION, CONDITIONAL EXAMINATION OF WITNESSES, AND EVIDENCE SHALL BE APPLIED IN A SUPPLETORY CHARACTER. (SS32)
APPLICATION OF
SUPPLETORY
THE
PROVISIONS OF THE
RULES
OF
NUMBER, SCHOOL, OR OTHER IDENTIFYING INFORMATION OF A CHILD WHO IS OR IS ALLEGED TO BE A VICTIM OR ACCUSED OF A CRIME OR A WITNESS THEREOF, OR AN IMMEDIATE FAMILY OF THE CHILD
LIABILITY I. PHYSICAL 12 A
TO
Rules on Evidence
SCOPE UNLESS
WHENEVER MESSAGE AN ELECTRONIC SS1) DOCUMENT
Electronic
RULES
SHALL APPLY DATA
CHILD HAS A RIGHT AT ANY COURT PROCEEDING NOT TESTIFY REGARDING INCLUDING PERSONAL HIS NAME, IDENTIFYING ADDRESS,
ELECTRONIC
(R1,
INFORMATION,
TELEPHONE NUMBER, SCHOOL, AND OTHER INFORMATION THAT COULD ENDANGER HIS PHYSICAL SAFETY OR HIS FAMILY.
(R1,
SS2)
13
THE
ELECTRONIC DATA MESSAGE INFORMATION GENERATED, SENT, RECEIVED ELECTRONIC , OPTICAL OR SIMILAR MEANS. (R2,
OR
STORED
BY
SS1G)
J.
DESTRUCTION
OF
VIDEOTAPES
AND
AUDIOTAPES
PRODUCED
RULE
OR OTHERWISE MADE
ELECTRONIC SIGNATURES (R2, SS1J) REFERS TO ANY DISTINCTIVE MARK, CHARACTERISTIC AND/OR SOUND IN ELECTRONIC FORM, REPRESENTING THE IDENTITY OF A
PERSON AND ATTACHED TO OR LOGICALLY ASSOCIATED WITH THE ELECTRONIC DATA MESSAGE OR ELECTRONIC DOCUMENT OR ANY
K.
RECORDS
ONE UP LAW
METHODOLOGY OR PROCEDURE EMPLOYED OR ADOPTED BY A PERSON AND EXECUTED OR ADOPTED BY SUCH PERSON WITH THE INTENTION OF AUTHENTICATING, SIGNING OR APPROVING AN ELECTRONIC DATA MESSAGE OR ELECTRONIC DOCUMENT.
FIGURES, SYMBOLS OR OTHER MODES OF WRITTEN EXPRESSION, DESCRIBED OR HOWEVER REPRESENTED, BY WHICH A RIGHT IS EXTINGUISHED, OR BY WHICH A FACT MAY BE PROVED AND AFFIRMED, WHICH IS RECEIVED, RECORDED, TRANSMITTED, STORED, ESTABLISHED OR AN OBLIGATION
INCLUDES
DIGITAL SIGNATURES
REFERS
TRANSFORMATION OF AN ELECTRONIC DOCUMENT OR AN ELECTRONIC DATA MESSAGE USING AN ASYMMETRIC OR PUBLIC CRYPTOSYSTEM SUCH THAT A PERSON HAVING THE INITIAL UNTRANSFORMED ELECTRONIC DOCUMENT AND THE SIGNERS PUBLIC KEY CAN ACCURATELY DETERMINE:
INCLUDES
PRINTOUT
OTHER MEANS, WHICH ACCURATELY REFLECTS THE ELECTRONIC DOCUMENT. THE TERM MESSAGE. DATA MESSAGE ELECTRONIC
THE
TRANSFORMATION
WAS
CREATED
FOR
RULES,
DATA
USING THE PRIVATE KEY THAT CORRESPONDS TO THE SIGNERS PUBLIC KEY; AND, THE INITIAL ELECTRONIC DOCUMENT HAD SS1E) REFERS TO AN ELECTRONIC BEEN ALTERED AFTER THE TRANSFORMATION WAS
ELECTRONIC
INTERCHANGEABLY
ELECTRONIC
(R2,
SIGNED
EQUIVALENT
OF
PAPER-BASED
DOCUMENTS.
(R3,
DOCUMENT OR ELECTRONIC DATA MESSAGE BEARING A DIGITAL SIGNATURE VERIFIED BY THE PUBLIC KEY LISTED IN A CERTIFICATE.
ADMISSIBLE HOW
(R2,
SS1F)
RULES
OF
COURT
AND RELATED
(R6,
SS1)
1. 2. 3.
BY BY BY
(R6,
EVIDENCE TO
THAT
UTILIZED
ESTABLISH
(R3,
SS3)
VERIFY THE SAME; ANY OTHER MEANS PROVIDED BY LAW; OR ANY OTHER MEANS SATISFACTORY TO THE JUDGE AS THE GENUINENESS OF THE ELECTRONIC
ESTABLISHING SIGNATURE.
ORIGINAL OR
DISPUTABLE PRESUMPTIONS RELATING TO E-SIGNATURES: (R6, SS3) 1. THE ELECTRONIC SIGNATURE IS THAT OF THE PERSON TO WHOM IT CORRELATES; 2. THE ELECTRONIC SIGNATURE WAS AFFIXED BY THAT
PERSON WITH THE INTENTION OF AUTHENTICATING OR APPROVING THE ELECTRONIC DOCUMENT TO WHICH IT IS RELATED OR TO INDICATE SUCH PERSONS CONSENT TO THE TRANSACTION EMBODIED THEREIN ; AND
REGARDED TWO
AS
2.
IS
IMPRESSION AS THE ORIGINAL, OR FROM THE SAME OR OR BY BY MECHANICAL OTHER OR ELECTRONIC RE-RECORDING, OR BY CHEMICAL REPRODUCTION, TECHNIQUES THE ORIGINAL. COPIES TO OR DUPLICATES SAME SHALL NOT AS BE THE THE EXTENT EQUIVALENT REPRODUCES THAT ACCURATELY
3.
THE
DISPUTABLE PRESUMPTIONS RELATING TO (R6, SS4) 1. THE INFORMATION CONTAINED CORRECT; 2. THE DIGITAL SIGNATURE WAS 3. 4. NO
REVOCABLE;
DIGITAL IN A
SIGNATURES: IS
WHEN
CERTIFICATE
ADMISSIBLE ORIGINAL:
CREATED
DURING
THE
3.
4.
IF IF
AUTHENTICITY OF THE ORIGINAL; OR IN THE CIRCUMSTANCES IT WOULD BE UNJUST OR INEQUITABLE TO ADMIT THE COPY IN LIEU OF THE ORIGINAL.
THE
AND,
5.
SEEKING
TO
OF INFORMATION, DATA,
ONE UP LAW
MANNER
OF AUTHENTICATION
DOCUMENT OFFERED AS AUTHENTIC IS RECEIVED IN EVIDENCE, ITS AUTHENTICITY MUST BE PROVED BY ANY OF THE FOLLOWING MEANS:
BEFORE
BUSINESS BY A PERSON WHO IS NOT A PARTY TO THE PROCEEDINGS AND WHO DID NOT ACT UNDER THE CONTROL OF THE PARTY USING IT.
(A ) (B )
BY EVIDENCE THAT IT HAD BEEN DIGITALLY SIGNED BY THE PERSON PURPORTED TO HAVE SIGNED THE SAME; BY EVIDENCE THAT OTHER APPROPRIATE SECURITY PROCEDURES OR DEVICES AS MAY BE AUTHORIZED BY THE
HEARSAY A
EVENTS,
RULE EXCEPTION:
MEMORANDUM, REPORT, RECORD OR DATA COMPILATION OF ACTS, CONDITIONS, OPINIONS, OR DIAGNOSES, MADE BY
SUPREME COURT
OR
BY
LAW
FOR
ELECTRONIC , OPTICAL OR OTHER SIMILAR MEANS AT OR NEAR THE TIME OF OR FROM TRANSMISSION OR SUPPLY OF INFORMATION BY A PERSON WITH KNOWLEDGE THEREOF, AND KEPT IN THE REGULAR COURSE OR CONDUCT OF A BUSINESS ACTIVITY, AND SUCH WAS THE OR DATA COMPILATION BY ELECTRONIC, OPTICAL OR SIMILAR MEANS, ALL OF WHICH ARE SHOWN BY THE TESTIMONY OF THE CUSTODIAN OR OTHER QUALIFIED WITNESSES. REGULAR PRACTICE TO MAKE THE MEMORANDUM, REPORT, RECORD,
(C) A
APPLIED TO THE DOCUMENT; OR BY OTHER EVIDENCE SHOWING ITS INTEGRITY AND RELIABILITY TO THE SATISFACTION OF THE JUDGE.
THE
SUPREME COURT
SHALL
BE
(R8,
RULES
OF
COURT.
THIS
PRESUMPTION
MAY
BE
OVERCOME
EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS (R7) FACTORS FOR ASSESSING EVIDENTIARY WEIGHT. (A) THE RELIABILITY OF THE MANNER OR METHOD IN WHICH IT WAS GENERATED, STORED OR COMMUNICATED,
INCLUDING ACCURACY MESSAGE BUT AND OR NOT LIMITED OF TO INPUT AND LIGHT IN AND OUTPUT FOR DATA THE ITS AND PROCEDURES, CONTROLS, RELIABILITY DOCUMENT, OF OF TESTS IN THE CHECKS OF ALL
(R8,
HOW
ARE
MATTERS
RELATING
(R9)
BY AN AFFIDAVIT STATING RECORDS. FACTS OF DIRECT PERSONAL
THE
ELECTRONIC
RELIABILITY INTEGRITY
THE
MANNER THE
WHICH
ORIGINATOR WAS IDENTIFIED; INFORMATION COMMUNICATION SYSTEM IN WHICH IT IS RECORDED OR STORED, INCLUDING BUT NOT LIMITED TO THE HARDWARE AND COMPUTER PROGRAMS OR SOFTWARE USED AS WELL AS PROGRAMMING ERRORS; FAMILIARITY OF THE WITNESS OR THE PERSON WHO THE ENTRY WITH THE COMMUNICATION AND MADE
THE THE
AFFIDAVIT
MUST
AFFIRMATIVELY
SHOW
THE
AFFIANT
SHALL
BE
MADE
TO
AFFIRM
THE
CONTENTS OF THE AFFIDAVIT IN OPEN COURT AND MAY BE CROSS-EXAMINED AS A MATTER OF RIGHT BY THE ADVERSE PARTY.
INFORMATION SYSTEM; NATURE AND QUALITY OF THE INFORMATION WHICH INTO THE COMMUNICATION AND INFORMATION WENT
SYSTEM UPON WHICH THE ELECTRONIC DATA MESSAGE OR ELECTRONIC DOCUMENT WAS BASED; OR
EXAMINATION OF WITNESSES (R10) 1 ELECTRONIC TESTIMONY AFTER SUMMARILY HEARING THE PARTIES PURSUANT TO RULE 9 OF THESE RULES, THE COURT MAY AUTHORIZE THE
PRESENTATION MEANS. DETERMINE OF TESTIMONIAL SO FOR EVIDENCE THE SUCH BY ELECTRONIC SHALL AND
(F) OTHER
FACTORS WHICH THE COURT MAY CONSIDER AS THE ACCURACY OR INTEGRITY OF THE
BEFORE
THE
AUTHORIZING,
COURT
AFFECTING
NECESSITY
PRESENTATION
PRESCRIBE TERMS AND CONDITIONS AS MAY BE NECESSARY UNDER THE CIRCUMSTANCES, INCLUDING THE PROTECTION OF THE RIGHTS OF THE PARTIES AND WITNESSES CONCERNED.
INTEGRITY OF AN INFORMATION AND COMMUNICATION SYSTEM. IN ANY DISPUTE INVOLVING THE INTEGRITY OF THE INFORMATION
AND COMMUNICATION SYSTEM IN WHICH AN ELECTRONIC DOCUMENT OR ELECTRONIC DATA MESSAGE IS RECORDED OR STORED, THE COURT MAY CONSIDER , AMONG OTHERS, THE FOLLOWING FACTORS:
WHEN
THE ENTIRE PROCEEDINGS, INCLUDING THE QUESTIONS AND ANSWERS, STENO SHALL BE TRANSCRIBED RECORDER BY A TYPIST OR OTHER AUTHORIZED FOR THE
(A) WHETHER
THE
INFORMATION
AND
COMMUNICATION
SYSTEM OR OTHER SIMILAR DEVICE WAS OPERATED IN A MANNER THAT DID NOT AFFECT THE INTEGRITY OF THE ELECTRONIC DOCUMENT, AND THERE ARE NO OTHER REASONABLE GROUNDS TO DOUBT THE INTEGRITY OF THE
THE
THAT THE PROCEEDINGS, EITHER IN WHOLE OR IN PART, HAD BEEN ELECTRONICALLY RECORDED.
INFORMATION AND COMMUNICATION SYSTEM ; THE ELECTRONIC DOCUMENT WAS RECORDED OR STORED BY A PARTY TO THE PROCEEDINGS WITH INTEREST ADVERSE TO THAT OF THE PARTY USING IT; OR THE ELECTRONIC DOCUMENT WAS RECORDED OR STORED IN THE USUAL AND ORDINARY COURSE OF
THE
AS
ELECTRONIC EVIDENCE AND RECORDING THEREOF AS WELL THE STENOGRAPHIC BE DEEMED NOTES SHALL FACIE FORM PART OF THE SUCH
SUCH
PRIMA
ONE UP LAW
EPHEMERAL ELECTRONIC COMMUNICATION REFERS TO TELEPHONE CONVERSATIONS, TEXT MESSAGES, CHATROOM SESSIONS, STREAMING AUDIO, STREAMING VIDEO,
AND OTHER ELECTRONIC FORMS OF COMMUNICATION THE EVIDENCE OF WHICH IS NOT RECORDED OR RETAINED. SS1K)
(R2,
SHALL
A
BE PROVEN BY THE TESTIMONY OF A PERSON WHO WAS TO THE SAME OR HAS PERSONAL KNOWLEDGE
PARTY
THEREOF.
IN
SS2)
(R11,
SSSS1-2)
PHOTOGRAPHIC AND VIDEO EVIDENCE OF EVENTS, ACTS OR SHALL BE ADMISSIBLE PROVIDED IT SHALL BE
TRANSACTIONS
IDENTIFIED, EXPLAINED OR AUTHENTICATED BY THE PERSON WHO MADE THE RECORDING OR BY SOME OTHER PERSON COMPETENT TO TESTIFY ON THE ACCURACY THEREOF. O
SAME
CONVERSATION
IF
EPHEMERAL, AUDIO, PHOTOGRAPHIC AND VIDEO EVIDENCE ARE AUTHENTICATION ELECTRONIC DOCUMENTS APPLY.
(R11,
SS2)
ONE UP LAW