MIDTERM EXAMINATION IN EVIDENCE 2010

MIDTERM EXAMINATION IN EVIDENCE

February 20, 2010

1.What do you mean by “impeachment of a witness”? In what ways may a witness be impeached by a party against whom he was called?

2.What is the purpose and extent of re-direct examination? Are questions on matters not dealt with during the cross examination be allowed during re-direct examination?

Re-direct examination; its purpose and extent. — After the cross-examination of the witness has been concluded, he may be re-examined by the party calling him, to explain or supplement his answers given during the cross-examination. On re-direct-examination, questions on matters not dealt with during the cross-examination, may be allowed by the court in its discretion. (12)

3. After a witness is examined by both sides, can the witness be recalled ? Explain.

After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require.

4. If a witness made a statement in writing which is inconsistent, how can he be impeached on said matter? If it is a testimony, will your answer be the same?

Sec. 13.How witness impeached by evidence of inconsistent statements. — Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them

5. What do you mean by the “ancient document rule”? What are the requisites?

Sec. 21.When evidence of authenticity of private document not necessary. — Where a private document is more than thirty years old, is produced from the custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given.

6. Under what situations are leading questions allowed? How about misleading questions?

Sec. 10.Leading and misleading questions. — A question which suggests to the witness the answer which the examining party desires is a leading question. It is not allowed, except:chanrobles virtua law library

(a)On cross examination;

(b)On preliminary matters;

(c)When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute;

(d)Of an unwilling or hostile witness; or

(e)Of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.

A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. It is not allowed

7. Is evidence of good character of a witness admissible as evidence in Court? Is there an exception to this rule? If there is, state it.

Sec. 14.Evidence of good character of witness. — Evidence of the good character of a witness is not admissible until such character has been impeached.

8.How do you prove the due execution and authenticity of a private document? What about other private documents?

Answer: Sec. 20.Proof of private document. — Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either:

(a)By anyone who saw the document executed or written; orchanrobles virtua law library

(b)By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which it is claimed to be.

9. How do you prove a foreign marriage?

Answer:

a. the existence of the foreign law on marriage as a question of fact;

b. the alleged foreign marriage by convincing evidence.

10. Normer Velasco was convicted by the RTC of murder. The conviction was based on the testimony of the lone eyewitness to the incident, Leonardo Lucaban. After Lucaban gave his testimony, the judge recalled him to the witness stand. Velasco avers that the recall of Lucaban had no basis and was made with grave abuse of discretion.

Is the act of the judge in recalling the witness to the witness stand upon his own order valid? Explain.

ANSWER: Yes. People v. Velasco, 307 SCRA 684, May 28, 1999.(p258)

11. To prove New York law and jurisprudence on damages, defendants presented the affidavit of Alyssa Walden, a New York attorney. The affidavit discussed various court decisions copies of which were attached to the affidavit. Is it sufficient as proof of foreign law?

ANSWER: No. Under Sec. 24 of Rule 132 of the rules of evidence, the record of the public document of sovereign authority or tribunal may be proved by: (a) an official publication thereof (b) or a copy attested by the officer having the legal custody of such. (Manufacturers Hanover Trust v. Guerrero, 397 SCRA 709, Feb. 19, 2003).

12.The deed of assignment that was introduced as an ancient document was in the custody of plaintiff and not in the folder of the Bureau of Lands for the lot in question. Can the deed of assignment be considered to have been “produced from a custody in which it would naturally be found if genuine” as to qualify as an ancient document?

ANSWER: Yes. (see Cleofas v. St. Peter Memorial Park Inc. 324 SCRA 223, Feb. 1, 2000)

13.Petitioner Dy intervened in an action over the ownership of two lots. To prove his claim that they were previously sold to him by his own father, he presented two receipts and a deed of sale from his father. Considering that said receipts are private documents, how should their genuineness be established?

Answer: In proving that due execution and genuineness of private documents, it is not sufficient that the witness state in general manner that the person whose signature appears thereon was the one who executed the document. The testimony of an eyewitness authenticating a private document must be positive, categorically stating that the document was actually executed by the person whose name is subscribed thereto. In this case, the details surrounding the execution of the documentary evidence were not even narrated.(Dy v. CA, 204 SCRA 878) Dec. 17, 1991.

14. One of the documents identified in court during the murder trial was an Investigation Report prepared by the Regional Inspector General. The prosecution, however, marked and offered oly as evidence a portion consisting of an entry in the police blotter of Mayorga, Leyte. When the trial court decided the case against the accused, however, it took into consideration the entire documents consisting of no less than five (5) pages. Is the Court correct in appreciating the whole document?

ANSWER: No. The trial court should not have taken the rest into account in the formulation of its conclusions, but only the portion offered in evidence, pursuant to Sec. 17, Rule 132 of the Rules of Court. (Pp. v. Kempis, 221 SCRA 628, May 10, 1993)

15.When a party invokes the statute of frauds as a defense but cross-examined the witnesses of the adverse party on the alleged oral contract, what is the effect of said cross-examination?

ANSWER: The cross examination on the contract is deemed a waiver of the defense under the statute of frauds. The oral testimony becomes competent and admissible. (Limketkai Sons Milling v. CA, 250 SCRA 523, Dec. 1, 1995)

16.After the prosecution testified, the accused moved for deferment of her cross-examination. Before the scheduled date of her cross-examination, the witness died. Must her testimony on direct examination be expunged from the records?

ANSWER: No. Where death prevents cross-examination under such circumstances that no responsibility of any sort can be ascribed to the plaintiff or witness, it seems a harsh measure to strike out all that has obtained in the direct examination. Besides being mere opportunity and not actual cross-examination is the essence of the right to cross-examine. Accused lost such opportunity when they sought the deferment of their cross-examination of the witness, and they only have themselves to blame in forever losing that right by reason of her demise.(Pp. v. Narca, 275 SCRA 696, July 21, 1997)

17.Among the witnesses in the kidnapping for ransom case was the victim who was 6 years old when she testified. After their conviction, accused claimed that the prosecution failed to establish that the child understood the nature of an oath and the need to tell the truth when she testified. Should the testimony be excluded?

Answer: No. Sec. 1, Rule 132 provides that the examination of the child witness shall be under oath or affirmation. In this case, the 6 year old child took an oath before she testified. There was no objection on the part of the accused to her competence; he did not bother requesting the court fro leave to question the child on this subject. It was too late to raise the issue then. (People v. Bisda, 406 SCRA 454, July 16, 2003)

18.To prove that she was the natural child of a certain Vicente Puerta, who was lawfully married to Genoveva Puerta, and a certain Gloria Austra, Carmelita Puerta presented pictures,school records, and judicial admissions of Vicente Puerta. The adverse party, for her part, presented witnesses that Gloria Austrial cohabited as husband and wife with a certain Juanito Austral.

Considering the presumption that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage, should Carmelita be considered as the legitimate child of Gloria and Juanito in line with Art. 255 of the Civil Code that children born during the existence of the marriage are presumed legitimate?

Answer: No. The presumption is merely disputable and may be refuted with evidence to the contrary. (De la Puerta v. CA, 181 SCRA 861, Feb. 6, 1990)

19.Macagaling was charged with illegally possessing an unlicensed firearm.The prosecution did not obtain a certification from the Firearms and Explosive Office that he had no license.Under Sec. 2, Rule 131 of the 1964 Rules on Evidence, however, it was provided that: In criminal cases the burden of proof as to the offense lies on the prosecution. A negative fact alleged by the prosecution need not be proved unless it is an essential ingredient of the offense charged. Under the revised rules however, the second sentence was deleted.

With the omission, must the prosecution still prove that the accused had not license to possess the firearm?

Answer: Yes. Despite the amendment, there is no reason t believe that such requirement for proof of a negative element of the offense changed has been dispensed with, since it is specifically provided in Sec. 1 Rule 131 of the New Rules of Evidence that the burden of proof is the duty of a party to present evidence on the facts in issue is necessary to establish his claim or defense by the amount of evidence required by law. (Pp. v. Macagaling, 237 SCRA 299, Oct. 3, 1994).

20. When the alleged forged document has been lost or destroyed can forgery be proved with the use of a photocopy as basis for comparison?

Answer: No. Basic is the rule in evidence that when the subject of inquiry is the contents of a document, no evidence is admissible other than the original document itself except in the instances mentioned in Sec. 3, Rule 130. Mere photocopies of documents are inadmissible pursuant to the best evidence rule.(Heirs of Gregorio v. CA, 300 SCRA 565, Dec. 29, 1998)