evidence pronove on objections

7/23/2019 EVIDENCE Pronove on Objections

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Evidence Pronove Lecture

OBJECTIONS

Rule 132 Secs. 35, 36, 37 & 38

Your Honor, I object

When to Object

Evidence not objected to is deemed admitted and becomes the property of the case. To be excluded,

timely objection to its introduction must be made when the ground for its objection become known or

should have been known.

Testimonial Evidence

Objection to the testimony of a witness should be made as soon as the question is asked and before the

answer is given. If the witness has begun to answer an improper question, he should be stopped

immediately and the objection made. This is so because testimonial evidence is considered offered right

after being given.

If the question is proper but the answer is objectionable, e.g., for being hearsay, the remedy is to strikethe answer off the record. The same remedy is available if the witness answers immediately, depriving

opposing counsel of sufficient opportunity to object.

Documentary Evidence

Documents, on the other hand, should be objected to at the time they are being offered, not when they

are merely being identified by a witness or marked as exhibits by counsel. Documents have to be

identified so that their authenticity can be established.

The offer of documentary evidence is made after the witnesses have testified and just before a party

rests his case. And the offer is made by disclosing the purpose for which a document is being presented.

Grounds For Objection

The ground for objection, whether for testimonial or documentary evidence, must be specified always.

Once stated, the objection is good and effective only for that ground.

To the same class of evidence already objected to, repetition of the same objection is not necessary.

Courts Ruling

It is the duty of the court to rule immediately on the objection. But if the court desires to study the

matter further, it must rule at such time during the trial so as to give the parties an opportunity to meet

the situation created by the ruling

Weight Of Evidence

After evidence is admitted, the court shall determine its weight while preparing the decision. Admittedevidence does not mean that it is significant or believable. It does not mean that it is entitled to weight

automatically.

INCOMPETENT, IRRELEVANT AND IMMATERIAL

Rule 128 Secs. 3 & 4

Objection, Your Honor, it is irrelevant and immaterial to the issue.

Although there is a distinction between relevancy and materiality, on the one hand, and incompetency,

on the other, these three grounds have been lumped together to become a common form of objection.

They have been invoked frequently when counsel cannot think of the appropriate ground for objecting.

But these grounds should not be used indiscriminately for they lose their effectiveness in excluding

objectionable evidence.


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Irrelevant Evidence

Irrelevant or immaterial evidence are those which do not shed light on, have no logical connection to, or

are too remote in time and substance to the matter in issue. Not of much help to the case, they are

excluded because they tend to mislead, confuse, unfairly surprise a party or waste the time of the court.

Collateral Matters

As a rule, collateral matters are not admitted for they do not prove directly the fact in issue. They stand

remote from the point being disputed. However, they become admissible when the existence or non-

existence of the fact in dispute may be implied or deduced from them, as in the case of circumstantial

evidence.

But note that if the inference drawn from collateral matters is speculative or conjectural in nature, the

offered evidence is irrelevant. For example, the presence of blood stain inside a car, without proof that

it is human blood or that it belongs to the victim, cannot be admitted, even as part of the mosaic of

circumstantial evidence, because the inferences that the blood stain is human and belongs to the victim

are highly speculative and conjectural.

Determination of RelevancySince questions of relevancy are addressed to reason, logic, common sense and experience, there are no

hard and fast rules governing them. Their determination is usually left to the sound discretion of the

court.

As a rule, though, if the evidence has a tendency in reason to prove a disputed fact in issue, it is

considered relevant. A good question to ask is: Would a reasonable mind draw an inference from the

evidence being offered that the disputed fact exists or does not exist?

In cross examination, more than in direct examination, a wider latitude is sometimes allowed to counsel

in asking questions designed to test the credibility of witnesses. But this should not be done at the

expense of relevancy.

When InadmissibleAlthough a piece of evidence is relevant, it may still be inadmissible if its presentation is forbidden by

the rules or by law.

The introduction of such evidence may not be allowed by:

(a) A provision of lawe.g., bank accounts under Rep. Act No. 1405 (1955);

(b) A rule of evidencee.g., hearsay rule;

(c) Settled jurisprudencee.g. in reviewing an administrative case by certiorari, evidence not presented during the

administrative investigation is inadmissible in the certiorari proceeding (Lovina v. Moreno, G.R. No. 17821,

November 29, 1963, 62 O.G. 74/Oct., 1964/ 118 Phil. 1401, 9 S.C.R.A. 557 /1963/).

Evidence illegally seized is not admissible (Stonehill v. Diokno, G.R. 19550, June 19, 1967, 20 S.C.R.A. 383 /1967/).

Extrajudicial confession obtained without the assistance of a lawyer is inadmissible (People v. Robles, G.R. Nos.

39523 & 39524, May 15, 1981, 104 S.C.R.A 450 /1981/).

Incompetent Evidence

The term incompetent evidence has meant evidence whose admission is prohibited by the rules or by

law. But now, it is the witness and not the evidence that is properly referred to as being incompetent.

OPINION OR CONCLUSION OF A WITNESS

Rule 130 Secs. 30, 42 & 44

Objection, Your Honor, on the ground that the question calls for the opinion or conclusion of the

witness.

Actual Knowledge Needed

Our system of proof demands the most reliable source of information. It requires actual knowledge of

facts derived from first hand or personal observation.

Hence, an ordinary witness cannot testify on facts he has not perceived or known through his senses,

that is, those which he himself has not seen, heard, smelled or touched.


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Interpretation Prohibited

Because it is the court and not the witness who will judge and decide the case, the ordinary witness,

who of course, is not an expert, is not allowed to interpret the facts. He cannot attribute meaning to

facts, form opinions or draw conclusions from them. Answers of a witness which are mere guesses,

speculations, conjectures or suppositions on his part are banned and excluded.

If a witness is not allowed to interpret facts, he is with more reason prohibited from interpreting the

law. His testimony in this regard will be in the nature of a legal conclusion which only a court can make.

Opinion Allowed On Certain Matters

However, there are certain matters regarding which an ordinary witness may be permitted to express an

opinion in order to expedite the taking of testimony. Thus, an ordinary witness may testify on:

(a) Physical dimension or measurementsize, weight, shape, height;

(b) Colordark, light, shade;

(c) Physical orientationspeed, motion, time, direction, visibility;

(d) Personalityemotion, anger, happiness, and sadness;

(e) Demeanor or personal reactioncalm, upset, scared, frustrated;

(f) Identity of personal backgroundage, sex, nationality, language;(g) Intoxicationdrunk, sober;

(h) Mental conditiongood health, bad health; and

(i) Genuineness of handwriting.

Witnesses sometimes preface their testimonies with expressions like I believe or I think so. Such

opening phrases should be considered more as indicative of poor memory or inattentive observation.

They can be grounds for objection only if they are found to mean that the witness speaks from

conjecture or from hearsay.

EXPERT OPINION

Rule 130 Sections 43 & 45Objection, Your Honor, because the question calls for an opinion of the witness who has not been

qualified to testify as an expert.

Matters that are not within the common knowledge or understanding of an average person are the only

ones that require expert opinion. If the facts to be proved do not require expert knowledge, there is no

reason for calling an expert.

Qualifications of an Expert

A witness is considered an expert because of his special skill, knowledge or experience in some field of

science, art, trade, profession or calling. Because he is supposed to draw conclusions from facts, his skill

and knowledge must be such as to enlighten the court on matters it does not ordinarily understand.

Indeed, an expert is called more for his opinion on a given set of facts than his recollection of events.

Before an expert can express his opinion, his qualification must first be established. His education,

special study, work and experience in the particular field he is going to testify has to be known. Of

course, considerable time may be saved if the parties can stipulate on an experts qualifications.

Subject Requiring Expert Opinion

Some of the subjects on which expert opinion are usually received are:

(a) Medical: cause of injury or death, extent of disability, chances and length of recovery.

(b) Forensic science: identification of fingerprints, footprints, ballistics, blood chemistry, handwriting

and questionable documents.(c) Property appraisal: just compensation in condemnation proceedings, recovery in fire insurance cases.

(d) Mechanical engineering and architectural construction

(e) Other sciences: weather

(f) Unwritten law of foreign countries

The number of experts a party may call may be limited by the court.


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FAILURE TO MAKE CONNECTION

Your Honor, I move that the testimony or exhibits be stricken off the record for failure of counsel to

make the necessary connection.

Conditional Admissibility of Evidence

Involved here is the rule on conditional admissibility of evidence.

As in the construction of a house, a case or defense is built step by step. Only one piece of evidence can

be introduced at a time. At the beginning, a particular evidence may appear irrelevant, although it is

relevant if connected to other facts not yet presented.

To meet this problem, counsel should move for the admission of the isolated evidence on the promise

that he will later on tie it up with other facts. After the court admits it conditionally, it may be stricken

off the record if the necessary connection is not made before the case is closed.

INADMISSIBLE FOR PARTICULAR PURPOSEObjection, Your Honor, on the ground that it is inadmissible for the purpose for which it is being

offered.

Multiple Admissibility of Evidence

This involves the rule on multiple admissibility. Since a piece of evidence may be relevant for two or

more purposes, it is necessary that it satisfies the requirements of the particular purpose for which it is

being offered. Otherwise, it will be rejected even if it fulfills the requirements of the other purposes.

For example, a declaration of a deceased person may be admitted as a declaration against interest, a

dying declaration, or as part of the res gestae.

CROSS-EXAMINATION BEYOND SCOPE OF DIRECT EXAMINATION

Rule 132 Secs. 8 & 11

Objection, Your Honor, the question is not within the scope of direct examination

Scope of Cross Examination

Unlimited cross-examination is not allowed under our rules. A witness may be cross-examined only as to

matters within the scope of the direct examination, that is, to those stated in the direct examination and

connected therewith.

Note that scope of direct examination extends to implied facts as well as to those stated in the

witnesss testimony. Thus, a cross-examination may cover the entire transaction and not be limited to

the period about which the witness testified.

Indeed, when part of an act, declaration, conversation, or writing is given in evidence, the whole of the

same subject may be inquired into by the other party.

Exception

But when attacking the credibility of a witness, the cross-examiner is not limited to the scope of direct

examination.

If a party wishes to ask questions outside the scope of the direct examination, to establish his cause ofaction or defense, he should make the witness his own when his turn to present evidence comes.

A witness cannot be cross-examined about what another witness has said and which he has not

repeated in his testimony for that will be examining him outside the scope of his direct examination.


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LEADING QUESTION

Rule 132 Sec. 5

Objection, Your Honor, the question is leading.

A leading question suggests to the witness the answer the examining party wants. It is objectionable

because of the danger that what is being suggested by the question may influence the witness in his

answer.

Why Objectionable

Although the suggestiveness of the substance of the question determines whether a question is leading,

the way the question is framed may sometimes indicate whether it is objectionable. Questions that are

begun with did or didnt or ending with phrases such as didnt he or doesnt it are often leading.

However, a question that may be answered by a simple Yes or a simple No is not necessarily

leading.

When Prohibited, Allowed

Leading questions may be asked:

(a) in cross-examination, but not when the witness is friendly to the cross-examiner;(b) to assist a witness who is ignorant, young, or mentally and physically handicapped in expressing

himself;

(c) to examine an adverse party;

(d) to examine an uncooperative and prejudiced or hostile witness; and

(e) to identify persons, things or exhibits

(f) preliminary questions.

MISLEADING QUESTION

Objection, Your Honor, the question is misleading.

This type of question is objectionable not only for suggesting an answer but more so for suggesting a

wrong or untruthful answer.

Why Objectionable

It is classified as a trick question, one that is calculated to make the witness give a false or inconsistent

answer.

While leading questions are allowed in cross examination, misleading questions are not allowed in both

direct and cross examinations.

An example is: You stated in your last testimony that you saw A driving the car, why are you now

insisting that A was not driving, when what the witness had merely said was that he had seen A on the

front seat of the vehicle.

COMPOUND QUESTION

Objection, Your Honor, it is a compound question.

A compound question is objectionable because it contains two or more questions. It is identified by the

use of conjunctions, and or or.

Why Not Allowed

It is not allowed because a part of the question may call for irrelevant and inadmissible testimony. Also,

the court may find it difficult to determine which part of the question is being answered by the witness.

An example of a compound question is: Does ABC or did ABC produce the goods that your company was

intending to buy?


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GENERAL QUESTION

Objection, Your Honor, the question is too general.

Why Specific Answers Necessary

When a question elicits from a witness very general answers such that he can say almost whatever

comes to his mind, the introduction of irrelevant and inadmissible evidence cannot be helped. This

wastes the time of the court and confuses the issues.

As much as possible, the question to a witness must call for a specific answer on a particular subject.

An example of a too general question is: What did you observe about the couple after they got

married?

QUESTION CALLING FOR NARRATION

YourHonor, the question calls for a narrative answer.

A question that invites a narration of facts is objectionable.

Why Narration Objectionable

It deprives the opposing counsel of opportunity to make a timely objection to the introduction of

inadmissible testimony.

In a narration, the witness is free to say almost anything he likes even if it is not connected or relevant to

the issue. The other danger is that the witness usually finds it easy to inject his opinion and perception

of the case if asked to narrate in his own way.

An example is: Tell us in your own words, what happened?

VAGUE QUESTION

Objection, Your Honor, the question is vague, ambiguous, unintelligible.

Why Not Allowed

Truth is easily ascertained from clear answers which in turn are deprived from clear questions

questions that are not vague, ambiguous or unintelligible.

Definition And Test

Vague or ambiguous questions are those that cannot be answered specifically or are capable of double

meaning. An unintelligible question, on the other hand, is one that cannot be understood because of the

way it is framed or expressed.

To be free from vagueness and this is the test the question must call for a specific answer the

relevance of which is apparent from the question.

Court May Ascertain Clarity

If the court is not sure about the clarity of the question, it should ask the witness if he understands it. If

the objection is overruled, the witness cannot then say, after answering the question, that he did not

understand.

HYPOTHETICAL QUESTION

Your Honor, I object because it is a hypothetical question and the witness is not presented as an

expert.

Hypothetical questions usually begin with words like if suppose, assuming or isnt it possible.

The Court is interested with what actually happened, not what might have possibly happened


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Why Objectionable

They are not allowed for the same reasons that questions that assume facts not in evidence are not

allowed.

Moreover, a hypothetical question usually calls for an opinion which if given by an ordinary witness has

no weight or probative value.

Exception

Only an expert, who is permitted to express an opinion, may be asked hypothetical questions which

should be based on facts that the evidence tends to prove.

ARGUMENTATIVE OR HARASSING QUESTION

Objection, Your Honor, the question is argumentative.

Objection, Your Honor, the question is harassing the witness

Purpose of Question Test

Usually, questions that are intended to bring out new facts or additional information are not

argumentative. However, when the purpose is to corner a witness, badger or trick him, the question ismore often than not argumentative. This is especially true when the question tries to point out or

emphasize some real or apparent inconsistencies in a witnesss testimony.

Examples

If two statements, for example, are not reconcilable, asking a witness how he can reconcile two

inconsistent statements is argumentative. Asking which of two inconsistent statements is true, however,

may be proper.

Another argumentative question: How is it that you can recollect a date as long ago as that and you

cannot remember the day of the week?

EMBARRASSING QUESTION

Rule 132 Sec. 3

I object, Your Honor, because the question tends to embarrass or degrade the character of the

witness.

Duty To Testify

It is the duty of every citizen to testify in court when required. But in the performance of this duty, the

citizen has the right not to be subjected to embarrassment.

Right Not To Answer

When asked a question the answer to which will tend to degrade, dishonor, discredit or humiliate him,

the witness can rightfully refuse to answer and may not be compelled to do so.

Exception

This rule, however, is subject to an exception. Even if the question tends to degrade his character, the

witness must give his answer if it refers to the very fact in issue or to a fact from which the fact in issue

can be inferred. In other words, if the witness is asked the embarrassing question merely for the

purpose of impeaching his credibility, he can refuse to answer. When the embarrassing question is

asked to prove the fact in issue, the witness has no choice but to answer.

UNRESPONSIVE ANSWER

Your Honor, the answer should be stricken off the record because it is not responsive.

Remedy

Improper questions can be objected to but not answers that do not reply to or address the questions.

Since they cannot be anticipated or known until given, the remedy is to strike the unresponsive answer

off the record.


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Reasons

Unresponsive answers are not allowed because they are usually irrelevant to the issues. Apart from

injecting confusion in a case, they also prolong the trial.

The fact that an answer happens to be relevant cannot save it from being stricken off the record. For the

sake of orderly procedure in the presentation of evidence, the relevant but unresponsive answer has to

be expunged.

ASKED AND ANSWERED QUESTION

Your Honor, the witness has already answered the question.

Your Honor, already answered.

Why Not Allowed

Repeated questions on the same subject are not allowed because they are time consuming and may

unduly emphasize testimony on a particular point.

When AllowedWhen the purpose of the question is to clarify prior testimony it may be allowed, however.

In cross-examination, a witness may be asked to repeat what he has said on a particular point to test his

recollection and to find out if he has varied his testimony. But he cannot be made to repeat his entire

testimony given in direct examination, especially if the purpose is to annoy him.

ASSUMES FACTS NOT IN EVIDENCE

Objection, Your Honor, the question assumes facts not in evidence.

Why Objectionable

A question that assumes a fact that has not been established by any evidence is objectionable for:(a) it brings before the court something that has not and may never be proved;

(b) it may mislead the court by suggesting that the assumed fact has already been established; and

(c) it is unfair to the witness since any answer he makes may be taken to mean that he is affirming the

truth of the assumed fact.

This type of question often begins with Did you know or Do you know. For example: Did you know

that the accused had been beating his wife nightly?, when there is no prior evidence that such was the

case. Or if the accused is the one asked: When did you stop beating your wife?, when there is no

evidence that he had been beating his wife.

LACK OF BASIS OR FOUNDATION

Objection, Your Honor, no basis. It has not been shown that . . . . . . . . . . . . . . . . .

Your Honor, I object because a sufficient foundation has not been laid establishing that . . . . . . . . .

Necessity for Preliminary Fact

Certain types of evidence need a foundation before they can be admitted. That foundation is called a

preliminary fact. Thus, before questions about the contents of a private document are asked, the writing

must first be authenticated. The preliminary facts are that the writing is the same one signed by the

parties and that the signatures appearing thereon are genuine signatures.

Instance Where Necessary

Again, before a Xerox copy of a document can be admitted in place of the original, the

preliminary fact that the original was lost or is otherwise unavailable must first be proved.When a witness is going to describe an incident, it must first be shown, as a preliminary fact,

that he has personal knowledge of the incident because he saw it.

Voluntariness and a showing that the Miranda warnings have been given are preliminary facts

that should be established before a confession can be admitted in criminal cases.


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Whether the declarant had personal knowledge of the cause and circumstances of his death,

and whether he sensed his impending death are preliminary facts to the admission of the declarants

dying declaration.

Finally, the qualifications of an expert are preliminary facts that should be proven before the

expert is allowed to express an opinion.

PRIVILEGED COMMUNICATIONSTATE SECRET

Rule 130 Sec. 21 (e)

Objection, Your Honor, on the ground that the question calls for the disclosure of a state secret.

Only State Security Protected

It is essential that governmental matters or activities that bear on or involve the security of the state be

kept secret. For this reason, a public officer or employee cannot be compelled to testify on any

communication made to him or acquired by him in official confidence, if to disclose such communication

will injure public interest.

SELF-INCRIMINATING QUESTIONObjection, Your Honor, the question is self-incriminating.

I request that the witness be advised of his right against self-incrimination.

Involved here is the constitutional right of a person not to be compelled to be a witness against himself.

Definition

A question that has a tendency to expose a witness to a criminal charge or to any kind of punishment is

self-incriminating. Thus, a question that attempts to establish a link in the chain of evidence which may

lead to the conviction of a witness, or will call for the disclosure of the names of persons upon whose

testimony the witness might be convicted, is prohibited.

How Right Invoked

The right against self-incrimination which is strictly personal can be invoked only by the witness. Not

even his lawyer or the party who called him to testify can claim the right for him. Hence, when an

incriminating question is asked, the lawyer should object and request the Court to advise the witness of

his right against self-incrimination or the lawyer may do the advising directly with the courts

permission.

Once the right is invoked, the court shall determine whether the question is incriminating or not. If it

finds that the danger of self-incrimination is not imaginary or speculative but is real and reasonable,

considering all the circumstances, the court will not allow the question to be answered.

Certainly, the government cannot compel an accused to testify as a prosecution witness in a criminal

case. But a confession that was voluntarily given does not violate the right against self-incrimination

What Right Consists Of

Basically, the right protects the witness against testimonial compulsion, that is, the giving of oral

declarations against his wish. Upon proper showing, therefore, a witness may be asked to show his body

for inspection without violating his right.

ILLEGALLY OBTAINED EVIDENCE

Objection, Your Honor, to the introduction of the evidence on the ground that it was obtained

illegally.

Objection, Your Honor, the evidence was illegally obtained through anunreasonable search andseizure.

All illegally obtained evidence is made inadmissible in order to enforce the constitutional protection

against unreasonable search and seizure.


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In the United States, specifically in California, the unreasonableness of a search or seizure of evidence

that has been or will be offered against an accused can be tested in a motion to return property or

suppress evidence. This motion has to be filed before the trial or if allowed during the trial, before

conviction.

There is no reason why we cannot follow the same procedure since it is expedient and not violative of

any rule.

DEFECTIVE CONFESSION

Rule 130 Sec. 29 Rule 133 Sec. 3

Objection, Your Honor, to the admission of the confession because it was not voluntary or the

accused was not properly advised of his rights.

When Confession Admissible

A confession, to be admissible, must be voluntary. In making it, no force, threat, intimidation or

inducement of any kind must have been employed. This requirement is very important because a

confession is evidence of the highest order. Indeed, with evidence of corpus delicti, a person can be

convicted solely on the basis of his confession.

Miranda Warning

The ruling in the Morales case makes it clear that the Miranda warnings, as they are generally called,

have to be made so that a confession can be admitted. Therefore, while under police custody and

investigation, the accused must be apprised of his:

Right to remain silent with an explanation that anything he might say might be used against him;

Right to talk to a lawyer, relative or friend and have a lawyer, relative or friend present while he is being

questioned; and

Right to the appointment of a lawyer if he cannot afford one.

The right to a lawyer may be waived but the waiver to be valid must be with assistance of counsel.

PHOTOGRAPHS, X-RAYS, VIDEO TAPE AND MOTION PICTURES

Rule 130 Sec. 1

Your Honor, I object to the use or introduction in evidence of the photograph because it has not been

authenticated or because it does not accurately represent the scene that it depicts.

Photographs, x-rays, etc. always give the court a more detailed and convincing picture of the situation or

of what had occurred. Their use is, therefore, encouraged. If availed of, they are made part of the

testimony of the witness who mentioned or referred to them.

Authentication Necessary

In order that photographs, etc. may be used, they must first be authenticated by showing that they

accurately portray at a particular time the scenes or events that are shown. Of course, authentication is

best done by the photographer or person who took the motion picture or video tape etc., but other

persons can also authenticate provided they can assure the court that they know or are familiar with

the scenes or objects shown in the pictures and that photographs, etc. accurately depict them.

A photograph that is distorted is objectionable for it does not accurately represent a scene.

SKETCHES, CHARTS, DIAGRAMS AND MAPS

Rule 130 Sec. 1

Your Honor, Iobject to the use or introduction of the sketch because it does not accurately representthe scene it purports to depict.

A sketch, chart, etc. already prepared may be used provided a witness testifies that it accurately shows

the scene, situation or thing that it portrays. As in the case of photographs, it may be authenticated by

the person who made them or by somebody who can confirm their authenticity.


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Considered Testimony of Witness

Of course, if the sketch is prepared in court by a witness while testifying, no more authentication is

necessary. That sketch is considered the testimony of the witness in graphic form.

A sketch need not be drawn to scale, but if it misleads or grossly misrepresents a scene it may be

excluded and rebutted by the other party.

INCOMPETENT WITNESSES

Rule 130 Sec. 18 & 19

Objection, Your Honor, on the ground that the witness is incompetent to testify.

This refers to the competency of a person to testify, not to the competency of his testimony.

Who are Incompetent?

Due to their physical disability, the following persons cannot testify:

(a) Insane personsThe insanity that will disqualify is that which exists at the time the witness is called

upon to testify. If the person was insane at the time the incident occurred, but not when he is placed on

the witness stand, he may be permitted to testify if he can recollect the facts and appreciate the

obligation of being a witness. Of course, his having been insane greatly affects his credibility;

(b) Children The test is not the age but the maturity of the child. If found by the court, after

preliminary examination, that the child has enough intelligence, understanding and sense of duty to tell

the truth, he may be allowed to testify.

(c) Deaf-mutes-If of sufficient intelligence and ability to communicate their ideas, by sings or in writing,

they are competent to give testimony; and

(d)Intoxicated personsPersons who are drunk, as to lose all sense of reasoning, at the time they are

called to the witness stand cannot testify because of their inability to recollect facts accurately.

Although their intoxication at the time of the incident does not disqualify them as witnesses, it affects

their credibility, however.

TRANSACTION WITH A DEAD OR INSANE PERSON

Rule 130 Sec. 20 (a)

Objection, Your Honor, because the question calls for a communication, or involves a transaction,

with a dead or insane person.

This is the rule on survivorship disqualification.

Who Can Object Cannot Testify?

This objection may be invoked only by the executor, administrator or representative of a dead

or insane person, who is the defendant in a case where a claim of demand is made against the estate of

such person.

Those who cannot testify, and to whom the objection is directed are:

(a) the plaintiff or defendant in a counterclaim and their assignors; or

(b) the person on whose behalf the case is being prosecuted.

Reasons and InstancesThese persons cannot testify on any oral communication or transaction which was made while the

deceased was still living, or before the insane lost his mind because the deceased is no longer alive and

the insane is not in a position to disprove such testimony. Thus, the party plaintiff claiming against the

estate is prohibited from testifying on:


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- A contract for payment of goods furnished the deceased or insane person;

- An agreement to divide property;

- A settlement of an indebtedness or obligation due to the deceased or insane person; and

- A contract for payment of goods given or services rendered to the deceased or insane person

However, the plaintiff himself is prohibited from testifying, he is allowed to present witnesses to prove

his claim since witnesses are not included in the prohibition. The objection may also be waived.

INCOMPETENT SPOUSE AS A WITNESS

Rule 130 Sec. 20 (b)

Objection, Your Honor, this person is privileged not to be a witness for being the spouse of the

accused or of a party in this case.

The law wants to preserve the mutual trust and confidence of the marriage relation.

Who Can Invoke

Therefore, this objection can be invoked only by the spouse who is a party or co-party in a case.Without the consent of such party spouse, the other spouse cannot testify, or even produce and identify

a document, on any matter either in favor of or against him.

In What Cases

Of course, this objection cannot be used in a civil case filed by one spouse against the other, as in legal

separation, or in a criminal case where one spouse is charged with committing a crime against each the

other, as in adultery or bigamy. Rape committed on a daughter is considered a crime committed by the

husband against the wife under this rule.

The party spouse may waive the disqualification of the other spouse by giving his consent, calling the

other spouse as a witness, or by failing to object.

For not permitting a spouse to testify either for or against, no unfavorable inference may be drawn.

DESCENDANT AS INCOMPETENT WITNESS

Rule 130 Sec. 20 ( c )

Objection, Your Honor, on the ground that the witness may not be compelled to testify against his

parents or ascendants.

Applicable Only Criminal Case

This objection can be used only in a criminal case where the parent or ascendant is charged of an

offense.

Actually, the descendant is not disqualified to become a witness against his parents or ascendants. But

if he does not like to testify against his parents or ascendants, he cannot be compelled to do so. The law

wants to preserve the close relationship among members of the same family

When a descendant is presented as a prosecution witness, the defense counsel should see to it that the

descendant is informed of his privilege not to give testimony against his parents or ascendants. This is

to insure that he knows that he can refuse to testify if he wants to.

Of course, the descendant is free to testify in favor of his parents or ascendants, whether in a criminal or

civil case.


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PRIVILEGED COMMUNICATIONHUSBAND AND WIFE

Rule 130 Sec. 21 (a)

Objection, Your Honor, on the ground that it is a privileged communication between husband and

wife.

This rule is different from that prohibiting the spouses from taking the witness stand and testifying

either for or against each other.

Matters Covered

What is prohibited here is the introduction of any communication which one spouse may have made to

the other during the marriage. Such communication may be any kind of oral or written statement made

or given in confidence. It may include an act, like the exhibition of a secret disease or physical defect,

which may be considered as silent communication.

But a third person who overheard the communication while being made by the spouses is free to

disclose it to the court.

PRIVILEGED COMMUNICATIONDOCTOR AND PATIENTRule 130 Sec. 21 ( c )

Objection, Your Honor, on the ground that it is a privileged communication between doctor and

patient

An ailment can be treated effectively only if there is full and complete information about it. The doctor

therefore, should be made to feel free to ask any questions and the patient to give any answer about

the disease. This is achieved by keeping all the information strictly confidential.

Matters Covered Civil Cases Only

In civil cases, therefore, the doctor without the consent of the patient, cannot testify on:

- Any statement made to him by his patient;- Any information which he may have acquired by examining or observing the patient and if such

disclosure would blacken the character of the patient; and

- Any medical opinion or prescription which he may have given the patient.

So that the privilege will not be defeated, the patient cannot be compelled to testify on the same

matters.

When privileged

To be privileged, the communication must have been made by the patient in a confidential manner

while seeking medical advice or treatment. Also, the information must have been acquired by the

doctor while attending to the patient either for curing or preventing the illness.

When Not Privileged

Statements of the patient which are not necessary for his treatment, like, as to who injured him or why

he was assaulted, are not included in the privilege. Dentists, pharmacists and nurses who overheard the

confidential information are free to disclose it, if they do not act as agents of the doctor. Otherwise,

they too are prohibited.

This privilege can be claimed in civil cases only. It cannot be invoked in a criminal case because the

privilege cannot be used as a shield in the prosecution of crimes.

PRIVILEGED COMMUNICATIONPRIEST AND PENITENT

Rule 130 Sec. 21 (d)Objection, Your Honor, on the ground that it is a privileged communication between priest and

penitent.

Why Privileged

Confessions are meant to be secret. Many people will hesitate to confess if the priest or minister can be

forced to disclose confessions.


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Hence, without the consent of the person making the confession, the priest or minister cannot testify on

anything said to him by the penitent and on any reply, advice or penance which he may have given.

The penitent in turn cannot be forced to tell what he has said during his confession.

Requisites

To be privileged, it is necessary that the confession be conducted in the course of discipline enjoined by

the church to which both priest and penitent belong.

Statements made by a person while merely seeking the spiritual advice or assistance of a priest or

minister are not included in the privilege.

As in the case of the other privileged communications, third persons who overheard the confession are

not prohibited from testifying about them.

USE OF MEMORANDUM TO AID MEMORY

Rule 132 Sec. 10

Your Honor, I request that the witness be allowed to refer to his memorandum to refresh his

memory.I have no objection, Your Honor, but may I examine the notes the witness is consulting.

Requirements

Before a witness can be allowed to refer to a memorandum, these two (2) requirements must be met:

- That the witness cannot fully or completely remember the facts without the aid of the

memorandum due to lapse of time; and

- That the witness was the one who wrote the memorandum or ordered it to be written at the

time the facts occurred or while they were still refresh in his memory.

The memorandum which can be used to stimulate ones memory may be any kind of note, paper,

affidavit or document. It may even be a book entry.

If a memorandum is allowed to be used, it is but fair that the opposing side is given an opportunity to

inspect and use it for cross-examination purposes.

Best Evidence Unnecessary

Since it is the recollection of the witness that is considered evidence and not the memorandum, the

memorandum need not satisfy the best evidence the rule. A mere copy of the memorandum, not

necessarily the original, may be used by a witness in refreshing his memory.

IMPEACHMENT OF OWN WITNESS

Rule 132 Sec. 7

Objection, Your Honor, on the ground that the evidence tends to impeach opposing counsels own

witness.

Your Honor, may I be allowed to impeach my own witness by showing that he had made prior

inconsistent statement?

Why Discrediting Not Allowed

If a party is allowed to discredit his own witness, a dangerous situation is created whereby the party

could destroy the witness if he spoke against him and make him a good one if he testifies favorably.

Moreover, when a party presents a witness, he is supposed to have investigated him for truth and

honesty. Hence, he cannot subsequently impeach or question the credibility of his witness by showing

that he is a liar or a bad person.

When Allowed

Only when a party can show that he was misled by a witness into calling him to testify can impeachment

be allowed at the courts discretion. It would be unfair if a party were to lose his case just because the

witness on whom he depended had decided to change his mind and betray him.


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Thus, a witness who assured a party before going to court that he saw the signing of a document and

then while testifying denied having seen it, surprising the party who called him, may be impeached.

How Impeachment is Done

In such case, the witness may be impeached by showing that he has made a prior statement

inconsistent with his present testimony. Note that even in this example, impeachment cannot be made

through evidence of bad character or reputation tending to show that the witness lacks credibility.

Another remedy of a party whose witness has testified against him is to present other witnesses who

will contradict and correct the testimony of the treacherous witness, even if in the process the

credibility of the latter is indirectly attacked. The rule allows the presentation of contradictory

evidence.

INCONSISTENT STATEMENT-LAYING OF PREDICATE OR FOUNDATION

Rule 132 Sec. 16

Objection, your Honor, because the correct predicate or foundation has not been laid to show prior

inconsistent statement.

If a witness is to be impeached by showing that he had made a statement earlier that is contrary to what

he is now saying, the correct foundation to discredit him must first be established.

Impeaching Oral Statement

If the prior inconsistent statement is oral and made out of court, the procedure is to ask the witness

whether he has made the statement, where and when he made it and to whom. Only when the witness

denies or does not remember having made the statement can contrary evidence be presented. This

means that any person who heard the statement may be presented to prove it. However, if the witness

admits making the statement, he should be given an opportunity to explain the discrepancy, if any

Impeaching Written Statement

If the prior inconsistent statement is in writing, it is enough that the letter, affidavit or signed statement

is shown to the witness so he can read or inspect it. In this case, detailed questioning, as in oral

statement, is not necessary. On the other hand, if the witness admits making the inconsistent

statement, the cross-examiner gains an admission and he should make the writing his exhibit and part of

his documentary evidence.

Impeaching Court Testimony

In case the prior inconsistent statement was made while the witness was testifying in court, the portion

of the transcript containing it must be shown or read to the witness before any questioning can begin.

Since the statement is in an official transcript, there is no need to ask in detail the circumstances under

which the statement was made. It is sufficient to ask the witness if he made the statement attributed to

him.

Effect of Failure To Impeach

On appeal, it is rather late for a party to take advantage of a prior inconsistent statement if the witness

who made it was not impeached on that ground during the trial.

If a prior inconsistent statement is offered in evidence to impeach a witness but the foundation for

impeachment has not been laid, that is, the witness has not been confronted with his earlier statement

and given a chance to explain any apparent inconsistency, the offer should be objected to. Failure toobject constitutes a waiver.


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IMPEACHMENT OF ADVERSE PARTYS WITNESS

Rule 132 Sec. 15

Your Honor, the evidence is admissible for impeachment purposes to show ..

How to Impeach Adverse Partys Witness

Ones own witness may be impeached by contradictory evidence or by prior inconsistent statement. But

an adverse partys witness can be impeached by:

- Evidence that in the community where he resides, his general reputation for truth, honesty or veracity

is bad. Here it is the bad reputation that must be proved, not the particular instances of immoral or

wrongful acts, nor improper or unlawful conduct that the witness might have committed.

- Prior inconsistent statement (Please see discussion on laying of predicate or foundation);

- Evidence of prior conviction of an offense which may be proved by eliciting and admission from the

witness or by a record of his conviction; and

- Contradictory evidence, which may consist of the testimony of another witness, showing that what the

witness being impeached said is not true or is different what occurred.

When to ImpeachImpeachment of an adverse partys witness usually occurs during cross-examination or during the other

partys turn to present evidence. During cross-examination impeachment is accomplished also by:

- involving the witness in contradictions;

- showing the impossibility or improbability of the witness version of the incident;

- showing the bias, interest or hostile feeling and attitude of the witness; and

- proving acts or conduct inconsistent with his testimony.

CHARACTER EVIDENCE

Rule 130 Secs. 46 & 47

Objection, Your Honor, this is an attempt to introduce character evidence that is inadmissible

because ..Character of Accused

In criminal cases, the prosecution cannot prove the bad moral character of an accused. Apart from

being presumed innocent, the accused is entitled to be judged on the basis of what he did and not on

what other people think or say about his character.

But once an accused elects to prove his good character to show that he could not have committed the

crime, he opens the door for the prosecution to present contrary evidence.

If an accused does not decide to put his character in issue, that is, does not present evidence of god

character, no unfavorable inference may be drawn, however.

Relevant Character

The character that an accused may prove must be relate to the traits, characteristics or elements of the

offense charged. Hence, evidence proving honesty is admissible in a case of theft or estafa, but not in

homicide or assault.

Character of a Victim

The character of a victim or offended person may be proved if it will help in determining the probability

or improbability of committing the crime. Thus, the prosecution may prove the chastity, while the

defense may prove the unchastity, of a victim of violent rape to find out whether or not consent was

freely given. But in murder, proof of character is not allowed.

Character In Civil Cases

In civil cases, character evidence is allowed only if the moral character of a party is in issue. The rule is

that a business transaction must be judged by its own circumstances and not by the character orreputation of the parties.

An example of a civil case where character is in issue is an action for breach of promise of

marriage, where the failure to marry is justified by the defendant on ground that he discovered the

plaintiff no longer a virgin, being a woman of unchaste character.


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Whether in a civil or criminal case, character evidence is limited to the general reputation a

person has in the community where he lives, has resided and is best known. It does not refer to specific

acts or conduct which if allowed, would raise many collateral issues that may unduly prolong the trial.

BEST EVIDENCE RULE

Rule 130 Sec. 2

Objection, Your Honor, this is not the best evidence to prove the contents of the writing.

When Rule Applicable

The best evidence rule simply means that if a party wants to prove the contents of a writing what the

document sayshe must present to the court the original of the writing, if available. Therefore, what is

stated in the document cannot be proven by a mere copy of the writing or by the oral recollection of a

witness, unless the existence and non-production of the original document are accounted for. The

original is considered preferred evidence, preferred to a mere copy of the writing.

Secondary Evidence, Foundation RequiredWhen the original writing is not available for one reason or another, the next best or second best

evidence to prove its contents is a copy of the writing, the testimony of someone who has read or knows

about it, or another document reciting its contents.

As noted elsewhere, however, it is necessary to lay the proper foundation before secondary evidence is

introduced. The due execution, delivery and reason for non-production of the original writing must first

be established.

Observe that a copy may become the original in certain cases. A carbon copy, leaving no blanks to

be filled up, signed by the person who executed the original document is considered a duplicate

original.

PAROLE EVIDENCE RULE

Rule 130, Sec. 7

Objection, Your Honor, because it violates the parol evidence rule.

Your Honor, this is inadmissible parol evidence.

When to Invoke

Often, lawyers commit the mistake of invoking the parol evidence rule when what they have in mind is

the best evidence rule. In proving the contents of a writing what the document says the best

evidence rule is the one involved. But when a party contends that what the document says is not what

was agreed upon by the parties, it is parol evidence rule that should be invoked.

When Applicable

The parol evidence rule is applicable only when the document or writing contains an agreement or is a

will. Thus, evidence is not allowed that will change or vary the agreement in a deed or written contract.

But the rule cannot be invoked when a party tries to explain that he has not been paid the money for

which he issued a receipt. In this example, the receipt is considered not an agreement but merely a

unilateral admission of a party.

What is Deemed Embodied

Under the rule, evidence of what the parties said before or at the time the agreement was made cannot

be presented to alter, contradict, diminish or enlarge the agreement. The writing is deemed to haveembodied all the intentions of the parties, that it should be respected as the final and complete

expression of their agreement.

Exceptions

However, the rule has exceptions and is not applicable in the following cases where oral evidence is

admissible:


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(a) When what appears in the document is not a valid and binding agreement either because of

(aa) want of consideration;

(bb) want of valid consent due to lack of capacity, fraud or duress;

(cc) illegality of subject matter; and

(dd) illegality of consideration.

(b)Where both parties committed a mistake of fact in expressing their agreement in the writing, if

pleaded as an issue. For instance, the parties committed a mistake in describing the property being sold

in a document of sale or in stating that the price was to be paid in dollars when their agreement was in

pesos. Such mistakes can be corrected in an action for reformation of contract;

(c) Where the document or writing does not perfectly express the agreement of the parties as where

the lawyer who prepared the document failed to use accurate language to describe the agreement;

and;

(d) Where the writing does not express the true intent and agreement of the parties, if pleaded as anissue. Here, the document on its face perfectly expresses an agreement but it happens not to be the

true and actual agreement of the parties. Thus, oral evidence may be presented to prove that a written

instrument, purporting to transfer absolute title to property is in truth and in fact executed by the

parties for the purpose of securing the payment of a loan.

HEARSAY EVIDENCE

Rule 130, Sec. 30

Objection, Your Honor, the question calls for hearsay evidence.

Your Honor, I move that the testimony be stricken off the record for being hearsay.

DefinitionHearsay evidence is evidence, either oral or written, that tries to prove a fact the existence of which is

based on what someone else has said and not on what the person testifying has seen or heard himself.

It is not based on the personal knowledge or observation of the person testifying.

Why Not Admitted

Hearsay evidence is considered unreliable. The person who made the statement, which is being

repeated or recalled by a witness in court, cannot be questioned about his sincerity, willingness nor

ability to tell the truth. He cannot be cross-examined about his opportunity to observe the event, ability

to recall what he has seen or heard, and to communicate his observations.

Hearsay evidence is admissible if not objected to, although courts, as a rule, do not give it much weight

considering its nature.

Written Hearsay

Examples of written hearsay evidence are:

(a) A medical certificate issued by a doctor who has not called to testify;

(b) An affidavit of an accused implicating another in the commission of an offense where the accused is

not placed on the witness stand;

(c) A report of a certified public accountant which was submitted by a commissioner who was only asked

to examine the record of a case in the custody of the Anti-Usury Board;

(d) The manifest of a steamship company showing that only two out of three cases shipped by the

plaintiff had been received and a letter from the consignee stating that the cargo in question had not

been received where neither the person who prepared the manifest or the consignee were made totestify; and

(e) Newspaper clippings, a letter and a telegram to show the cause of death of an insured in an action on

a life insurance police.


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Verbal Hearsay

Examples of verbal hearsay evidence are:

(a) The testimony of a mother that the alleged father of her son read to her a document wherein he

acknowledged her son as his;

(b) To show his innocence, the testimony of an accused that a third person had confessed to the crime;

and

(c) Testimony by a witness to a highway accident that the driver told him that the automobile belonged

to the defendant.

Not all hearsay evidence is inadmissible. Some can be admitted depending on the purpose for which

they are being offered.

Assertive Purpose

When a statement is presented for the purpose of proving the truth of the facts asserted therein, it is

hearsay and inadmissible. But when the statement is presented to prove something else, without

reference to its truth, it is not hearsay and admissible. In this case, the statement is deemed non-

assertive of the truth.

For instance, a witness in a slander case testified that he heard Juana say that Pedro was a thief. If the

testimony is offered to prove that Pedro is a thief, it will not be admitted for being hearsay. But if the

testimony is presented to prove that Juana uttered those words, regardless of whether her statement is

true or not, the testimony is admissible. In the latter example, the statement of Juana that Pedro was a

thief is also called by some authorities as an independently relevant statement, that is, a statement

relevant to the case, regardless or independently of its truth.

Non-Assertive Purposes

Hearsay evidence can, therefore, be admitted if offered for the following non-assertive purposes:

(a)To prove that the statement was made, as in the example of the libel case given above;

(b) To show the feelings or state of mind of the declarant, like his mental condition, motive, fear,

apprehension, good or bad faith. An example of this is a statement of a person that he is the king of the

world, which is offered to prove his insanity, not of course, to show its truth. Another example is the

testimony of a witness that he heard the testator say that he cared more for Peter than his other sons,

which may be offered to show the testators feelings and special fondness for Peter.

Likewise, threats, regardless of their truth, are admissible to show which of two parties is the aggressor

and, also, to show the state of mind of the one who claims to have acted in self-defense. The threats

may be proved by anyone who has heard them. Also, a statement of account which is offered not to

prove such account but only to show the good faith of the possessor is admissible.

(c)To establish notice, knowledge, consciousness or awareness of some fact or the condition of some

fact. For instance, to prove that the driver knew of the defective condition of his brakes, evidence that

he stated before the accident that his brakes were defective is admissible.

Exceptions, Reasons For

The exceptions to the hearsay rule refer to those statements which although made out of court and

cannot be subjected to cross-examination are, nevertheless, admitted to establish their truth.

They are admitted under the necessity rule so that the court will not be deprived of the use of an

evidence considered important and necessary in deciding a case.

They are also admitted because of the circumstances under which the hearsay declarations were made

which more or less guarantee or assure the court of their trustworthiness. The circumstances serve as a

substitute for cross-examination, the lack of which is the basis for exclusion under the hearsay rule.


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The various exceptions to the hearsay rule, which shall be discussed individually, are as follows:

(a) Dying declaration;

(b) Declaration against interest, pecuniary or moral;

(c) Act or declaration about pedigree;

(d) Family reputation or tradition regarding pedigree;

(e) Common reputation;

(f) Part of the res gestae;

(g) Entries in the course of business;

(h) Entries in official records;

(i) Commercial lists and the like;

(j) Learned treatise; and

(k) Testimony at a former trial.

One word about these exceptions: they are not mutually exclusive. One statement may meet

the admission requirements of more than one hearsay exception. For example, a dying declaration may

be considered part of the res gestae or an admission.

SELF-SERVING EVIDENCERule 130, Sec. 30

Objection, Your Honor, the evidence is self-serving.

Definition

Self-serving evidence is evidence made out of court at one time. It is an extra-judicial declaration, oral

or written, considered favorable to the interest of the declarant.

Why Not Admissible

It is not admissible as proof of the facts asserted therein primarily because of its hearsay character. The

lack of opportunity to cross-examine the person who made the declaration renders its objectionable.

Another reason is that its introduction would open the door to defraud and perjury.

The testimony of an interested party, either as plaintiff, defendant, complainant or accused, no matter

how favorable to his interest, is not considered self-serving because it can be subjected to cross-

examination.

An example The mother of a defendant heard her son say to a prosecution witness: Why did you tell

all those lies? The mother was going to repeat in court what her son said which, of course, was

favorable to him. The sons out-of-court statement is not only self-serving but also hearsay.

Another example The defendant was charged with driving under the influence of liquor. When his

wife arrived at the hospital several hours later, she asked the defendant who was driving. The

defendant replied that his companion did. This out-of-court statement of the defendant, which was

favorable to him, is self-serving hearsay, if narrated by the wife in court.

HEARSAY EXCEPTIONDYING DECLARATION

Rule 130, Sec. 31

Your Honor, the evidence is admissible as a dying declaration.

Why Admitted

A dying declaration is admitted because of the belief that a person who is about to face his Maker can

be expected to tell the truth.

Because the declarant cannot be cross-examined, a dying declaration should be received with caution

and the rules governing its admission should be followed strictly.


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Requisites

(a)The declaration has been made under a consciousness of impending death. The belief that death

was fairly imminent may be proved not only by the seriousness of the wounds but also by statements

uttered by the deceased.

The following have been held sufficient proof of a sense of impending death: I am sure to die, I

cannot live and I want to make a dying declaration, and I believe, I have no hope. Likewise,

requesting the presence of a priest in order that the declarant might receive the last rites of the church

may be shown as evidence of a belief in impending death;

Death, however, need not immediately follow the declaration. It is enough that the declarant believed

that death was at hand;

(b)The declaration is used not in a civil case but in a criminal case where the death of the declarant is

the subject of inquiry. Where the accused is on trial for the murder of one person, the dying declaration

of another person who was killed in the same incident cannot be admitted;

(c)The declaration is to prove only the facts and circumstances producing and attending the death ofthe declarant. To the extent that it refers to past transactions like previous threats, or to what occurred

three hours before the murder, or to past quarrels, it is not admissible; and

(d)If the dying declaration has been reduced to writing, the original of the written declaration must be

produced. Secondary evidence is allowed only after the non-production of the original has been

explained.

How to Disprove

A dying declaration is not inviolable. It may be discredited by showing that the reputation of the

deceased for truth and veracity is bad; that the deceased did not believe in God or in a future state of

rewards and punishment; that it is inconsistent with a previous statement made by the deceased; that it

is incredible in itself; or, that it is contradicted by the testimony of disinterested witnesses.

HEARSAY EXCEPTIONDECLARATION AGAINST INTEREST

Rule 130, Sec. 32

Your Honor, the evidence may be received as a statement against interest.

Why Admitted

Declarations against interest are admissible, even though hearsay, because of the belief that a person

shall not make a false statement if that will be against his pecuniary or moral interest.

Unlike an admission which is made by a party to a case, a declaration against interest is made by a third

person, one who is not directly involved in the case, like a predecessor-in-interest.

Requirements:

(a)It is made by a person who is dead, outside the Philippines or unable to testify. The unavailability to

testify should be due to serious causes, e.g., the person is physically incapable or mentally incompetent.

In one foreign case, a declarant who was present in court but who refused to testify because of fear for

his and his familys safety was considered unavailable;

(b)The declaration is not self-serving. It is against the pecuniary or moral interest of the declarant. The

financial interest must be actual and substantial;

Typical examples are statements like: I am indebted to Juan de la Cruz; I am owner of only one half ofthe property registered in my name; or, I have already sold the land to Pedro even though it is still

registered in my name.

Declaration against penal interest according to Wigmore may be considered as declarations against

moral interest; and


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(c)The declarant knew the facts and had no motive to misrepresent or falsify them.

The declaration may be oral or written. It may appear in deeds, accounts, memoranda, receipts,

etc. And it need not be made in the regular course of business or be contemporaneous with the act

recorded.

HEARSAY EXCEPTIONPEDIGREE (FAMILY HISTORY)

Rule 130, Sec. 33

Your Honor, the evidence is admissible as a matter of pedigree.

Coverage

Matters of family history like the relationship, age, date and place of birth, marriage or death of a

family membermay be proved by the oral or written declaration of a person.

The declaration may be found in a family bible, deed, letter, will or other types of family record.

Requirements

In order that such declaration may be admitted it is necessary that:(a)The declarant is dead, outside the country or otherwise unavailable;

(b) He is a member of the family either by birth or marriage which must be proved by independent

evidence; and

(c) The declaration is made before the controversy at a time when the declarant has no motive to lie.

Declarations about pedigree are admitted out of necessity and because people are not prone to

lie about their family history.

HEARSAY EXCEPTIONFAMILY REPUTATIONRule 130, Sec. 34

Your Honor, the evidence may be admitted as a matter of family reputation.

Proof By Living Family Member

Here, a living family member can testify about the pedigree or lineage of a relative based on family

reputation or tradition that existed before the controversy. The witness need not prove his relationship

by independent evidence; he can rely on his own testimony.

Under section 33, pedigree is proven by what was said by a relative who is already dead or unavailable.

HEARSAY EXCEPTIONCOMMON REPUTATION

Rule 130, Sec. 35

Your Honor, the evidence is admissible as a matter of common reputation.

What Can Be Proved

Common reputation is a means of proving:

(a) Facts of public or general interest that are more than 30 years old;

(b)Marriage; and

(c)The good or bad moral character of a person.

Kind of Opinion

Group or community opinion, not individual opinion, is the basis of common reputation. If it cannot be

unanimous, such opinion must at least represent the general consensus of the community.

An example of a matter of public or general interest are the boundaries of towns and provinces and the

public character and location of roads.


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Boundaries of private lands cannot be proved by reputation except when they affect many people so as

to become a matter of general interest to them. At no instance can title to private lands be proven by

common reputation.

The moral character of a person may be established by common reputation existing before the

controversy and prevailing in the place where the person is well known.

Good character may be implied from the testimony of a witness who never heard anything bad being

said about a person.

HEARSAY EXCEPTIONRES GESTAE

Rule 130, Sec. 36

Your Honor, the statement is admissible as part of the res gestae.

Res gestae may either be a spontaneous exclamation or a verbal act.

Spontaneous Exclamation

A spontaneous exclamation is one caused by the stress and excitement of some startling external event.

The test of its admissibility is whether the statement has been uttered spontaneously so that the

declarant has had no time to deceive or fabricate a story. Therefore, the lapse of time between the

event and the utterance is important in determining whether the declarant had time to reflect; think

and deliberate about the event.

Depending on the circumstances, questions addressed to the declarant, such as what happened,

whats the matter, may or may not indicate spontaneity. An answer to such questions may be

considered narrative instead of instinctive in nature.

The person who made the spontaneous statement need not be a participant in the startling event. He

may be a bystander or observer and the statement may be reproduced in court by a witness who heard

it.A statement that fails to qualify as a dying declaration, because it was not made under a consciousness

of an impending death, may be admitted as part of res gestae.

Verbal Act

On the other hand, a verbal act is a statement or declaration which accompanies an act and tends to

explain or describe the meaning, character or nature of the act.

For example, if Pedro hands money to Juan without saying anything, the act itself is ambiguous and no

one can for what purpose the money has been given. But if at the time the money is handed, Pedro says

that it is for safekeeping, the character or purpose of the act is explained by the accompanying

statement, which is the verbal act. The declaration of Pedro, as later on recounted by a witness, will be

admitted as an exception to the hearsay rule because it is considered a part of the transaction, deriving

credit from the act itself.

To be admissible as verbal act, the statement must

(a) accompany an act, that is, be contemporaneous with the conduct;

(b) the act is material to the issue;

(c) the act is dumb, ambiguous or equivocal; and

(d) the statement explains or gives a legal meaning to the act.

HEARSAY EXCEPTIONBOOK ENTRIES

Rule 130, Sec. 37

Your Honor, the evidence is admissible as a book entry in the regular course of business.

Coverage

This exception to the hearsay rule is called business entries rule. This description is apt to be

misleading, however, because the exception is not limited to entries in books of accounts kept by

merchants. Even entries made by lawyers, physicians and others engaged in a different calling or

profession are included.


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Requisites

An entry can prove prima facie the act, condition, event or transaction that it describes, even if the

person who made it is already dead or unavailable, provided:

(a)Its custodian authenticates the entry by testifying on its identity and the manner it was prepared. It

is necessary that the entry was made when the event or transaction was happening, had just happened

or right after.

(b)The entry was made by someone while exercising his profession or performing his duty; and

(c)The entry is not an isolated or sporadic act but is one of many done regularly in the ordinary course

of business or duty.

An entry may be found in a book of marriage, report of a public service inspector or in a book of

accounts. It may take the form of a sales slip invoice, punch card, purchase order or daily log. A balance

sheet is not so considered.

HEARSAY EXCEPTIONOFFICIAL RECORD

Rule 130, Sec. 38

Your Honor, the document is admissible as an official record.

What is important here is that the entry or record was made because the law required it to be made. In

other words, the public officer or private individual was duty-bound to make the entry or record while

performing his functions.

Authentication Needed

Although the person who made the entry need not be presented in court, the entry must be

authenticated. Considered official entries or records kept by a public officer are entries in the registry of

birth, marriages and death kept by the local civil registrar; sheriffs certificate of service of summons and

return of writ of execution; certificate of acknowledgement of a notary public; and certificate of

correctness of a court stenographer.

It is necessary that the person who made the entry knew the facts which he recorded. Otherwise, the

entry will not be given any probative value and will not be considered prima facie evidence of the act,

condition or event that it describes.

Testimony Needed

There are some official records or entries that are not admitted without supporting testimony.

Examples of these are: autopsy report, baptismal certificate, police blotter and police investigation

report.

HEARSAY EXCEPTIONCOMMERCIAL LISTS

Rule 130, Sec. 39

Your Honor, the writing is admissible as a commercial lists.

How Proven

The market for stocks, machinery and goods at a particular period of time may be proved by price

quotations appearing in daily newspapers, trade journals, or printed circulars and catalogues issued by

manufacturers and distributors.

Other market and economic data, like the demand and supply of goods, the rise and fall of inflation rate,

growth or decline of the gross national product may be proved by tables and statistics published in trade

or commercial journals or as reprinted in reputable newspapers.

Weather and navigational statistics can also be admitted under this rule although if compiled by a

government agency, they are admissible also as public or official records.

Out of necessity and strong probability of their trustworthiness, the authors of the lists, quotations and

statistics need not be called to testify.


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HEARSAY EXCEPTIONLEARNED TREATISES

Rule 130, Sec. 40

Your Honor, the writing may be admitted as a learned treatise.

Competency of Author

Written words published on any subject of history, science or art is admissible if authored by someone

learned or recognized as an expert in the subject.

Competency of Author

If the competence of the expert is generally accepted, the court may take judicial notice of that fact. If

not, an expert in the subject may be called to show that the author of the treatise is somebody well

known in his field.

Encyclopedias, Dictionaries

Articles in encyclopedias may be admitted. Dictionaries, while admissible, are admitted only for the

purpose of showing the ordinary meaning of words.

HEARSAY EXCEPTIONFORMER TESTIMONYRule 130, Sec. 41

Your Honor, it maybe admitted as former testimony.

Testimony given in a former case can be used for two purposes. First, to impeach the witness who gave

the former testimony and later on testified in another case. Secondly, to prove a fact in issue, when the

witness in his former testimony made a damaging admission proving the disputed fact.

Impeachment of Witness

If the purpose is to impeach, by showing that the witness had made a prior inconsistent statement, the

requirements of this rule need not be observed. It is enough that the predicate or foundation for it is

laid.

Proving a Fact in Issue

If the purpose is to prove a fact in issue, it is necessary to show that:

(a) The witness who previously testified is not available either because he is dead, outside the

Philippines or unable to testify due to physical or mental illness. Mere refusal to testify is not a valid

ground;

(b)He gave his testimony in a former case involving the same parties and about the same matters; and

(c)He was cross-examined or could have been cross-examined by the opposing party.

The best evidence to prove former testimony is, of course, the transcript certified true and correct by

the stenographer who took it. The judges notes, not being an official part of the record and not having

been made under the sanction of an oath, are not evidence of what a witness has said.

EVIDENCE OF CONDUCTSIMILAR ACTS

Rule 130, Sec. 48

Objection, Your Honor, it is not admissible as evidence of similar act.

Your Honor, the evidence may be admitted to prove specific intent, plan, etc.

Evidence that one did or failed to do a particular thing at one time is not admissible to show that he did

or failed to do a similar thing at another time.

Purpose, Test

Thus, previous conviction for a crime cannot be used to prove the commission of another crime by thesame person. And the fact that an act could have been done cannot be considered proof that it was

done or vice versa.

This rule of res inter alios acta is not absolute, however. If the purpose is not to show that a person is

the author of an act on the basis of what he did in the part, evidence of previous conduct may be

admitted. Indeed, it is allowed to prove specific intent or knowledge, identity, plan, system, scheme,

customs or usage.


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For example, evidence that the accused attempted to set fire to a house one week before it actually

burned is admissible to prove intent to commit arson. Admissible also is evidence that the accused had

been previously buying goods with counterfeit money to show that he had knowledge of the moneys

illegality. To prove a plan or scheme, evidence is admissible to show that in extorting money, the

accused had used the same threatening method before. Also, to prove identity, evidence may be

introduced to show that the accused wore the same clothes when he assaulted the neighbor of the

victim in a previous incident.

JUDICIAL NOTICE

Rule 129, Sec. 1

Your Honor, I request the court to take judicial notice of the fact that. . . . .

When the court takes judicial notice of a fact, evidence is dispensed with. Therefore, taking

judicial notice of a fact, evidence is dispensed with. Therefore, taking judicial notice is a short-cut in

establishing facts that are well known and do not admit of any contradiction.

When Judicial Notice Taken

Generally, judicial notice is taken of the following:

(a) Matters of common and general knowledge in the community like:

(aa) the political history and geographical facts about the Philippines and the world;

(bb) major historical events here and abroad; and

(cc) the unquestioned laws of nature.

Matters that can easily be ascertained and verified from books, encyclopedias, official reports and

documents and other authoritative sources like:

(aa)standards of weight, measure and mathematical formulas;

(bb)the contagious nature of certain diseases; and(cc)the temperature, humidity and wind velocity on a given day.

Matters which the court should know by reason of its judicial function like:

(aa) enactment, repeal or amendment of laws and their dates;

(bb) territorial jurisdiction of courts; and

(cc) its own judicial record.

When Notice Not Taken

However, judicial notice will not be taken of;

(a) the laws of a foreign country;

(b) local customs; and

(c) the judicial record of other courts or of another case.

Example of Examination of a Witness

P R O C E E D I N G S

CLERK OF COURT: (Calling the Case) Criminal Case No.395733-SA, People of the Philippines versus

Donald Valdez y Sta. Ana for Violation of B. P. 6.

FISCAL ENCISO:Good morning Your Honor for the government. We are ready Your Honor please.

ATTY. SY JUCO: For the accused Your Honor.

COURT: Please call your witness Fiscal.

FISCAL ENCISO: May we call on to the witness stand PO2 Benjamin Blanco Your Honor.COURT: Please take the witness stand.

COURT INTERPRETER: Please remain standing, raise your right hand, do you swear to tell the truth, the

whole truth and nothing but the truth before this court?

WITNESS: I do.

COURT INTERPRETER: Please state your name, age and other personal circumstances.


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WITNESS: I am PO2 Benjamin Blanco, 44 years old, Married, residing at 530 Yangco St., Gagalangin,

Tondo, Manila, Police Officer.

COURT INTERPRETER: Your witness Fiscal Enciso.

FISCAL ENCISO: We are offering the testimony of the witness to prove to this Honorable Court that he is

a bonafide member of the Philippine National Police; who on June 7, 2012 at 4:40 AM arrested the

accused in this case with SPO3 Robelio Abellera; he will testify on the incident that led them to arrest

the accused; he will testify on the recovery of the knife from the accused; he will testify that he,

together with SPO3 Rogelio Abellera executed an Affidavit of Apprehension and he will testify on some

other matters that will support the information in this case.

COURT: Any comment or objection to the offer of testimony, Atty. Sy Juco?

ATTY. SY JUCO: Subject to cross-examination Your Honor.

COURT: Please proceed, Fiscal.

FISCAL ENCISO: Before I proceed with my direct examination Your Honor please may I request for some

stipulations for admission Your Honor Please?

COURT: Proceed Fiscal.

FISCAL ENCISO: First stipulation Your Honor please is that the intended witness is a bonafide member of

the Philippine National Police assigned at Police Station 3?

ATTY. SY JUCO: Admitted Your Honor.FISCAL ENCISO: That on June 7, 2012 at around 4:40AM, he, together with SPO3 Rogelio Abellera, was at

the vicinity of SM San Lazaro, Manila, conducting patrol?

ATTY. SY JUCO: Admitted Your Honor.

FISCAL ENCISO: May I now proceed with my direct examination Your Honor please?

COURT: Please proceed Fiscal.

= = = = = = = = = = = = = = = = = = = = = = = = = = = = = =

DIRECT EXAMINATION OF PO2 BENJAMIN BLANCO

CONDUCTED BY FISCAL RENATO Z. ENCISO

= = = = = = = = = = = = = = = = = = = = = = = = = = = = = =

FISCAL ENCISO:

Q. Mr. Witness while conducting a patrol with SPO3 Rogelio Abellera on June 7, 2012, on or about

4:40AM within the vicinity of SM San Lazaro, manila, was there any untoward incident that happened?

A. Yes sir.

Q. And what was it Mr. Witness?

A. While we were on patrol, we saw a commotion sir.

Q. And what is that commotion all about, if you can still recall?

A. I saw a man and woman naghahatakan ng bag.

Q. Were there any other persons aside from the man and the woman at that time?

A. None sir.

Q. How far were you from those persons when you saw them?

A. About 10 meters sir.

Q. Mr. Witness tell us the lighting condition at the place where you saw those persons at that

time?

A .There is a light coming from our mobile car sir.

Q. Upon seeing the commotion, what did you do Mr. Witness?

A. We immediately proceeded at the scene sir.

Q. Who are you referring when you said we Mr. Witness?

A. My partner, SPO3 Rogelio Abellera sir.

Q. Were you able to reach the place where the commotion is happening at that time Mr. Witness?

A. Yes sir.Q. Upon reaching the place, what happened Mr. Witness?

A. He ran away from us when he noticed our mobile car.

Q. Tell us the gender of the person who is running away from you Mr. Witness?

A. Male person sir.

Q. And in what direction Mr. Witness?

A. He was running towards Rizal Avenue sir.


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Q. What relationship does that person have from the person whom you saw involved in the

commotion with a female person at