FINAL EXAMINATION IN EVIDENCE
March 22, 2011 Law School 5:30pm,
1. When is the proper time to object to the testimony of a witness? If the witness has already began to answer the question what should be properly done?
Answer: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.4
2. What are collateral matters? Are they admissible as evidence? Why?
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 of non-existence of the fact in dispute may be implied or deduced from them, as in the case of circumstantial evidence.
3. Is an ordinary witness allowed to interpret facts? Is he allowed to state his opinion on a certain matter? Why?
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.1 He cannot attribute meaning to facts, from opinions or draw conclusions from them. Answer of a witness which are mere guesses, speculations, conjectures or suppositions on his part are banned and excluded.2
4. Before an expert witness is presented in court, what must be established first? Can this matter be stipulated in order to save time?
Before an expert can express his opinion, his qualifications must first be established. His education, special study, work and experience in the particular field he is going to testify have to be known. Of course, considerable time may be saved if the parties can stipulate on an expert’s qualifications.
5. What is multiple admissibility? Give an example of an evidence which has multiple admissibility.
For example, a declaration of a deceased person may be admitted as a declaration against interest, an admission, an entry in a course of business, a dying declaration, or as part of the res gestae.
6. What is a leading question? Is it always objectionable? Is there a situation where it can be admitted? Why?
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.
7. What is it which is considered a “trick question”? Is a trick question allowed under the rules of evidence? Why?
It is classified as a trick question, one that is calculated to make the witness give a false or inconsistent answer. While leading question are allowed in cross examination, misleading questions are not allowed in both direct and cross examinations.1
8.What are hypothetical questions? Are they allowed under the rules of evidence? Give an example of such a kind.
Hypothetical question usually begin with words like “if”, “suppose”, assuming” or ‘isn’t it possible”.They are not allowed for the same reasons that questions that assume facts not in evidence are not allowed.
9.It is strictly a personal right that not even his lawyer can claim the right for him. What is it?
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, 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 court’s permission.2
10. Explain the rule on survivorship disqualification.
PART TWO. Multiple Choice. Write the letter of your answer on the blank provided.
______1. The dead man’s statute can be invoked only by (a) the executor (b) administrator (c) representative of the dead or insane person (d) all of the above (e) none of the above
_______2.The doctor-patient privilege rule (a) applies both to criminal and civil cases (b) only to criminal cases (c) only in civil cases (d) all of the above (e) none of the above
_______3. IT says “that if a party wants to prove the contents of a writing – what the document says – he must present to the court the original of the writing, if available” (a) parole evidence rule (b) best evidence rule (c) character evidence rule (d) hearsay rule (e) all of the above
_________4. It is applicable only when the document or writing contains an agreement or is a will--- (a) parole evidence rule (b) best evidence rule (c) character evidence rule (d) survivorship rule (e) all of the above
_________5. 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 have embodied all the intentions of the parties, that it should be respected as the final and complete expression of their agreement. (a) parole evidence rule (b) best evidence rule (c) character evidence rule (d) survivorship rule (e) all of the above
_________6. (a) parole evidence (b) best evidence (c) character evidence (d) hearsay evidence (e)self-serving 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 been or heard himself. It is not based on the personal knowledge or observation or the person testifying.
_________7. (a) parole evidence (b) best evidence (c) character evidence (d) hearsay evidence (e)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. It is not admissible as proof of the facts asserted therein primary because of its hearsay character. The lack of opportunity to cross-examine the person who made the declaration renders it objectionable
_________8. (a) parole evidence (b) best evidence (c) character evidence (d) dying declaration (e) res gestae------ is not inviolable. It may be discredited by showing that the reputation of the deceased for truth and veracity is bad; that the deceased is unworthy of belief because he had been convicted of a crime; 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 witness
__________9. (a) parole evidence (b) best evidence (c) character evidence (d) dying declaration (e) res gestae -----may either be a spontaneous exclamation or a verbal act.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. Therefor, 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
__________10. 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. Thus, previous conviction for a crime cannot be used to prove the commission of another crime by the same person. This is known as the (a) business entries rule (b) res inter alios acta rule (c) character evidence rule (d) parole evidence rule (e) hearsay rule
END OF THE EXAMINATION
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This is rule on survivorship disqualification.
This objection may be invoked only by the executor, administrator or representative to a dead insane person, who is the defendant in a case where a claim of demand is made against the estate of such person.1
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 those behalf the case is being prosecuted.
These 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.
11. IN civil cases, therefore, the doctor without the consent of the patient, cannot testify on:
(a) any statement made to him by his patient;
(b) 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
(c) any medical opinion or prescription which he may have given the patient.
12. The best evidence rule simply means that if a party wants to prove the contents of a writing – what the document says – he must present to the court the original of the writing, if available. Therefore, 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.
13. The parole 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.1
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 have embodied all the intentions of the parties, that it should be respected as the final and complete expression of their agreement.2
14. Hearsay 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 been or heard himself. It is not based on the personal knowledge or observation or the person testifying.
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 been or heard, and to communicate his observation.
15. 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. It is not admissible as proof of the facts asserted therein primary because of its hearsay character. The lack of opportunity to cross-examine the person who made the declaration renders it objectionable.1 Another reason is that its introduction would open the door to fraud and perjury.
16. 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.
17. 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 is unworthy of belief because he had been convicted of a crime; 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 witness.9
18. Res gestae may either be a spontaneous exclamation or a verbal act.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. Therefor, 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.1
19. 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.1 Even entries made by lawyers, physicians and other engaged in a different calling or professional are included.
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 identify and the manner it was prepared.2 It is necessary that the entry was made when or transaction was happening, had just happened or right after.3
(b) The entry was made by someone while exercising his profession or performing his duty,4 and
(c) The entry is not an isolated or sporadic act but is one of many done regular in the ordinary course of business or duty.
20. 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.
Thus, previous conviction for a crime cannot be used to prove the commission of another crime by the same person.1 And the fact that an act could have been done cannot be considered proof that it was done or vice versa.2
This rue 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 past, evidence of previous conduct may be admitted. Indeed, it is allowed to prove specific intent or knowledge, identify, plan, system, scheme, customs or usage.
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.3 Admissible also is evidence that the accused had been previously buying goods with counterfeit money to show that he had knowledge of the money’s illegality.4 To prove a plan or scheme, evidence is same threatening method before.5 Also, to prove identify, 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.
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