EVIDENCE: sample questions with answers

1. Petitioners Jacinto Olan and Renato Eballe were defendants in Ejectment Case No. 929 in the Municipal Trial Court (MTC) of Los Baños, Laguna filed by herein respondent spouses Librado Villanueva and Tomasa Ignacio. The MTC^{^[i]}^[3] ordered OLAN and EBALLE to entirely vacate Lot 3839 and Lot 3842, both of the Los Baños Cadastre 450-D, situated at Brgy. Timugan, Los Baños, Laguna, which lots said defendants are now unlawfully occupying, and to turn them over to the possession of plaintiffs LIBRADO VILLANUEVA and TOMASA L. IGNACIO^{^[ii]}^[4]

Petitioners appealed the decision to the Regional Trial Court (RTC) of Calamba, Laguna which affirmed the decision of the MTC. A writ of execution pending appeal was granted by the RTC which petitioners moved to quash in the Court of Appeals^{^[iii]}^[5] (CA. G.R. No. 30812) on the ground that the lot occupied by petitioners was different from the lots ordained or decreed in the dispositive portion of the MTC decision.

Meanwhile, petitioners appealed the decision of the RTC to the Court of Appeals (C.A. G.R. No. 31618) which affirmed the RTC decision.^{^[iv]}^[7] The Court of Appeals ruled that:

“In their petition for review, the herein petitioners simply reiterates/repeats their above-mentioned argument that the lot occupied by Olan is not the lot “ordained or decreed to be delivered to respondents herein in the dispositive portion of the decision of the Municipal Trial Court of Los Baños, Laguna, which decision was affirmed in toto by the Regional Trial Court on appeal”^{^[v]}^[8]

Petitioners seek to compel the Court of Appeals through the Writ of Mandamus to receive into evidence a certification made by the Department of Environment and Natural Resources (DENR) to the effect that the lot possessed by petitioner OLAN is different from the lots decreed in the dispositive portion of the decision as newly discovered evidence.

Question: 1) Can the Court of Appeals be compelled to receive said evidence?

2)What is a “newly discovered evidence” to warrant a “new trial”?

ANSWERS: The Court of Appeals cannot be compelled to receive said evidence, it not being a newly discovered evidence..

Sections 1 and 2, Rule 37 of the 1964 Rules of Court as amended^{^[vi]}^[13] read:

“SECTION 1. Grounds of and period for filing motion for new trial. – Within the period for perfecting appeal, the aggrieved party may move the trial court to set aside the judgment and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party:

(a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights;

(b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered, and produced at the trial, and which if presented would probably alter the result;

(c) Award of excessive damages, or insufficiency of the evidence to justify the decision, or that the decision is against the law.

SEC. 2. Contents of motion for new trial and notice thereof. – The motion shall be made in writing stating the ground or grounds therefor, a written notice of which shall be served by the movant on the adverse party.

When the motion is made for the causes mentioned in subdivisions, (a) and (b) of the preceding section, it shall be proved in the manner provided for proof of motions. Affidavit or affidavits of merit shall also be attached to a motion for the cause mentioned in subdivision (a) which may be rebutted with counter-affidavits. xxx”

Instead of filing a petition for review of the RTC decision affirming the MTC and a motion to quash the writ of execution issued by the RTC, merely attaching thereto the alleged “newly discovered evidence”, petitioners should have filed a motion for new trial with the RTC on the ground of newly discovered evidence in accordance with the aforequoted Rule 37 of the 1964 Rules of Court. Petitioners failed to support their claim with affidavits to show compliance with the following requisites for newly discovered evidence as a ground for new trial: (a) the evidence was discovered after the trial; (b) such evidence could not have been discovered and produced at the trial with reasonable diligence; and (c) that it is material, not merely cumulative, corroborative or impeaching, and is of such weight that, if admitted will probably change the judgment.^{^[vii]}^[14]

Even assuming that petitioners complied with the above-mentioned requirements, we are not convinced that the certification in question is “newly discovered evidence”. Petitioners did not prove that, even with the use reasonable diligence, they could not have obtained the certification during the trial. The fact that petitioners’ request with the DENR to determine whether there was a relationship between Lot 3839 and 3842 with Lot 8253 was made only on April 13, 1993^{^[viii]}^[15] or almost ten years after the decision of the MTC was rendered on May 18, 1992 shows that petitioners did not exercise reasonable diligence to obtain this evidence (OLAN v. Court of Appeals, [G.R. No. 116109. September 14, 1999]

2. WHAT IS A DYING DECLARATION? WHAT ARE THE REQUISITES IN ORDER THAT IT MAY BE ADMISSIBLE AS EVIDENCE IN COURT?

ANSWER:The declaration of a dying person, made under a consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. In order that a dying declaration may be admissible, to wit: (a) it concerns the crime and the surrounding circumstances of the declarant’s death; (b) at the time it was made, the declarant was under a consciousness of an impending death; (c) the declarant was competent as a witness; and (d) the declaration is offered in a criminal case for homicide, murder or parricide, in which the declarant was the victim.

3. The case of PP V. GONZALES (311 SCRA 547) ENUMERATED THE THREE REQUISITES FOR A CHILD WITNESS TO BE COMPETENT, WHAT ARE THESE?

ANSWER: 1. CAPACITY OF OBSERVATION 2. CAPACITY OF RECOLLECTION AND 3. CAPACITY OF COMMUNICATION.

4. In the absence of a marriage certificate, how is marriage proved under the rules on evidence?

ANSWER: In Trinidad vs. Court of Appeals, et al. G.R. No. 118904, April 20, 1998, citing Pugueda vs. Trias, 4 SCRA 849, 855 [March 31, 1962] cited also in Sarmiento v. Court of Appeals 305 SCRA 138) the Supreme Court ruled that as proof of marriage may be presented: a) testimony of a witness to the matrimony; b) the couple’s public and open cohabitation as husband and wife after the alleged wedlock; c) the birth and baptismal certificate of children born during such union; and d) the mention of such nuptial in subsequent documents.

5. Appellant hinges his bid for exoneration on whether he was properly identified by the two (2) eyewitnesses as one of the killers of the victims. He contends that eyewitnesses Bonifacio and Elmer Vasquez presented an “incredible” story because it is “highly improbable” that they could have “distinctly and positively recognized accused-appellant as one of the perpetrators of the crimes."^{^[i]} According to appellant, Bonifacio, who was in the dark portion of the yard hiding behind a coconut tree, could not have identified appellant by the light emanating from gas lamp inside the camalig where Emeterio Vasquez and Rufino Agunos were staying at the time of the incident. Neither could Elmer Vasquez, who declared that he saw his grandfather shot by appellant, could have identified appellant because of the poor lighting coming from the gas lamp being carried by his grandfather. Appellant claims that the gas lamp carried by Elmer's grandfather was “a small can about two (2) inches tall and the wick is smaller than a cigarette” and the lamp inside the camalig “was placed inside a bigger can so that the direction of the light emanating therefrom was upwards and not sidewise.”

QUESTION: Considering said lighting conditions, in the decided cases of the supreme court, is an illumination coming from a gas lamp sufficient to support identification? If the illumination comes from a “star light”, would that be also considered sufficient illumination for identification purposes?

ANSWER: Visibility is indeed a vital factor in the determination of whether or not an eyewitness could have identified the perpetrator of a crime. However, it is settled that when conditions of visibility are favorable, and the witnesses do not appear to be biased, their assertion as to the identity of the malefactor should normally be accepted. Illumination produced by kerosene lamp or a flashlight is sufficient to allow identification of persons. Wicklamps, flashlights, even moonlight or starlight may, in proper situations be considered sufficient illumination, making the attack on the credibility of witnesses solely on that ground unmeritorious.(Pp. v. Adoviso, 309 SCRA 1).

6. In the early morning of December 8, 1995, accused-appellant hired Jimbo Pelagio, a tricycle driver working the night shift, to take him to Paco, Obando, Bulacan. When they reached their destination, he ordered Pelagio to get off the tricycle. Then, accused-appellant robbed Pelagio of his money and repeatedly struck him on the head with a gun. Pelagio fell on the ground unconscious. Accused-appellant shot him on the head and fled on board his tricycle.

That same morning, SPO1 Froilan Bautista got a call from the Valenzuela Emergency Hospital stating that a man had been shot on the head and was in their hospital. SPO1 Bautista and SPO1 Jose Sta. Ana rushed to the hospital and found the still conscious Pelagio lying on a stretcher.

SPO1 Bautista took the statement of Pelagio in a question and answer method, which he took down on two sheets of yellow paper. After his statement was taken, Pelagio affixed his thumbmark on both sheets.The statement is as follows:

T: Alam mo ba ang dahilan kung bakit ka naririto sa Valenzuela Emergency Hospital at kinukunan ka ng salaysay?

S: Opo, dahil pinagpapalo po ako ng baril ni RAMIL PEÑA sa ulo at kinuha and tricycle kong minamaneho.

T: Taga saan itong si Ramil Peña?

S: Sa Dulong Tangke, Valenzuela, (Malinta), M.M.

T: Saan, kailan at anong oras nangyari ito?

S: Sa Paco, Obando, Bulacan, kaninang ika-8 ng Disyembre 1995 sa ganap na ika-4:15 ng umaga.

T: Sakay mo ba itong si Ramil Peña?

S: Oho, sumakay sa may gasolinahan ng Petron sa Malinta, Valenzuela, M.M.

T: Dati mo bang kilala si Ramil Peña?

S: Opo.

T: Ano ba ang tatak ng tricycle mo?

S: Yamaha RS-100, kulay itim.

T: Sino and may-ari ng tricycle?

S: Si Rey Dagul.

T: Binaril ka ba ni Ramil?

S: Muntik na ho.

T: Bakit sa iyo ginawa ni Ramil and bagay na ito?

S: Ewan ko ho.^{^[i][4]}

Eventually, Pelagio died, and Ramil Peña was charged for the death of Pelagio. On the basis of said statement as above-written, would you consider the same admissible as a “dying declaration”? Can it be admitted as part of the “res gestae”? What are the elements of res gestae?

ANSWER: 1.The requisites for the admissibility of dying declarations have already been established in a long line of cases. An ante-mortem statement or dying declaration is entitled to probative weight if: (1) at the time the declaration was made, death was imminent and the declarant was conscious of that fact; (2) the declaration refers to the cause and surrounding circumstances of such death; (3) the declaration relates to facts which the victim was competent to testify to; (4) the declarant thereafter died; and (5) the declaration is offered in a criminal case wherein the declarant’s death is the subject of the inquiry.^{^[i][5]}

The first element is lacking in the case at bar. It was not established with certainty whether Pelagio uttered his statement with consciousness of his impending death. While he was in pain when he made his statement, he expressly stated that accused-appellant only pistol-whipped him and almost shot him.

2. A declaration made spontaneously after a startling occurrence is deemed as part of the res gestae when (1) the principal act, the res gestae, is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise; and (3) the statements concern the occurrence in question and its immediately attending circumstances.^{^[i][9]}

In People v. Naerta,^{^[i][10]} this Court held that:

The term “res gestae” comprehends a situation which presents a startling or unusual occurrence sufficient to produce a spontaneous and instinctive reaction, during which interval certain statements are made under such circumstances as to show lack of forethought or deliberate design in the formulation of their content.

Pelagio’s declaration is admissible as part of the res gestae since it was made shortly after a startling occurrence and under the influence thereof. Under the circumstances, the victim evidently had no opportunity to contrive his statement beforehand.^{^[i][11}PEOPLE vs. RAMIL PEÑA,[G.R. No. 133964. February 13, 2002]

7. Is circumstantial evidence sufficient to convict an accused? Explain.

ANSWER: Yes. Circumstantial evidence is sufficient on which to anchor a judgment of conviction if the following requisites are established: (a) there is more than one circumstance; (b) the facts from which the inferences are derived have been established; and, (c) the combination of all the circumstances is such as to warrant a finding of guilt beyond reasonable doubt.

8. When is there a conspiracy? What proof is necessary to prove conspiracy? Can it be presumed?

ANSWER: Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons agree to commit a crime and decide to commit it. Direct proof is not essential to establish conspiracy, and may be inferred from the collective acts of the accused before, during and after the commission of the crime.^{^[i][36]} Conspiracy can be presumed from and proven by acts of the accused themselves when the said acts point to a joint purpose and design, concerted action and community of interests.^{^[i]}

9. What degree of proof is required to prove the qualifying circumstance of alevosia? For the court to appreciate alevosia what “burdens” would the prosecution prove?

ANSWER: The prosecution was burdened to prove beyond reasonable doubt, not only the crime itself, but also the qualifying circumstance of alevosia.[i][60] Treachery cannot be based on speculations and surmises. In order that treachery may be appreciated as a qualifying circumstance under Article 14 of the Revised Penal Code, the prosecution is burdened to prove that (a) the malefactor employed means, method or manner of execution affording the person attacked no opportunity to defend himself or to retaliate and, (b) the means, method or manner of execution was deliberately or consciously adopted by the offender. (Pp. v. Buntag, GR 123070, April 4, 2004).

10. The general rule is that the extrajudicial confession or admission of one accused is admissible only against the said accused but is inadmissible against the other accused. The same rule applies if the extrajudicial confession is made by one accused after the conspiracy has ceased. State the exception to this rule.

ANSWER: The general rule is that the extrajudicial confession or admission of one accused is admissible only against the said accused but is inadmissible against the other accused.The same rule applies if the extrajudicial confession is made by one accused after the conspiracy has ceased. However, if the declarant/admitter repeats in court his extrajudicial confession during trial and the other accused is accorded the opportunity to cross-examine the admitter, such confession or admission is admissible against both accused. The erstwhile extrajudicial confession or admission when repeated during the trial is transposed into judicial admissions.

11. Distinguish an admission from a confession.

ANSWER:In criminal cases, an admission is something less than a confession. It is but a statement of facts by the accused, direct or implied, which do not directly involve an acknowledgment of his guilt or of his criminal intent to commit the offense with which he is bound, against his interests, of the evidence or truths charged.^{^[i][48]} It is an acknowledgment of some facts or circumstances which, in itself, is insufficient to authorize a conviction and which tends only to establish the ultimate facts of guilt.^{^[i][49]} A confession, on the other hand, is an acknowledgment, in express terms, of his guilt of the crime charged.

12. In cases where the victim could not testify on the actual commission of the rape because she was rendered unconscious at the time the crime was perpetrated, can the accused be still convicted of rape? What rules of evidence are applicable when met with this particular prosecutorial deficiency?

ANSWER: In cases where the victim could not testify on the actual commission of the rape because she was rendered unconscious at the time the crime was perpetrated, Rule 133, Section 4, of the Revised Rules on Evidence sanctions the courts to rule on the basis of circumstantial evidence, viz:

Sec. 4. Circumstantial evidence, when sufficient. – Circumstantial evidence is sufficient for conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

A related rule is that the totality or the unbroken chain of the circumstances proved leads to no other logical conclusion than the guilt of the appellant.^{^[i][9]}

There have already been instances when this Court convicted an accused of the crime of rape, committed while their victims were unconscious, based on circumstantial evidence. In People v. Villanueva,^{^[i][10]} the Court affirmed the conviction for rape, overruling the defense’s posture that the prosecution failed to present evidence of the actual defloration. In that case, the accused-appellant claimed that if the victim was unconscious during the sexual assault, she would be incapable of knowing that, indeed, she was raped. Debunking the claim of the accused-appellant that the circumstantial evidence was not sufficient to prove rape, the Court, taking into consideration the events that transpired before and after the victim lost consciousness, i.e., the perpetrator compulsorily commanded her to remove her panty and forced her to lie down then punched her in the stomach which rendered her unconscious and that when she came to, she felt pain in the nest of womanhood, found accused-appellant guilty of rape.(PP. V. eduardo moran jr. y Gordula, GR. 170849, MARCH 7, 2007, 3^rd division, decided by Justice Chico-Nazario).

13. In a buy bust operation, is a “prior surveillance” necessary for the conviction of the accused?

Answer: Settled is the rule that the absence of a prior surveillance or test-buy does not affect the legality of the buy-bust operation. There is no textbook method of conducting buy-bust operations. The Court has left to the discretion of police authorities the selection of effective means to apprehend drug dealers.^{^[i][24]} A prior surveillance, much less a lengthy one, is not necessary especially where the police operatives are accompanied by their informant during the entrapment.^{^[i][25]} Flexibility is a trait of good police work.^{^[i][26]} In the case at bar, the buy-bust operation was conducted without need of any prior surveillance for the reason that the informant accompanied the policemen to the person who is peddling the dangerous drugs.(PP V. NICOLAS, GR 170234, Feb. 8, 2007)

14. Accused is charged of murder. The Judge issued a warrant of arrest without bail. Accused filed a motion for bail alleging that evidence against him is not strong. The bail hearing was conducted, and Elizabeth was offered as witness. The bail was not granted on the basis of her testimony. In the trial proper, Elizabeth was presented as principal witness. Due to lack of material time, and in giving the defense ample time to cross-examine Elizabeth, the trial was set on another date for the cross-examination.

Before the cross-examination could be conducted, Elizabeth died of cardiac arrest.

The defense moved that the testimony of Elizabeth be expunged for lack of cross-examination.

On the other hand, the prosecution moved that the testimony of Elizabeth during the bail hearing be adopted as part of her main testimony.

As judge how would you rule on the two motions.

ANSWER:As to the first motion, the same has to be denied. Lack of cross-examination due to the death of the witness does not necessarily render the deceased’s previous testimony expungible. Thus, this Court in Republic v. Sandiganbayan,^{^[i][19]} citing Fulgado v. CA, ^{^[i][20]} said that:

“The wholesale exclusion of testimonies was too inflexible a solution to the procedural impasse because it prejudiced the party whose only fault was to die before he could be cross-examined. The prudent alternative should have been to admit the direct examination so far as the loss of cross-examination could have been shown to be not in that instance a material loss. And more compelling so in the instant case where it has become evident that the adverse party was afforded a reasonable chance for cross-examination but through his own fault failed to cross-examine the witness.

"Where death prevents cross-examination under such circumstances that no responsibility of any sort can be ascribed to the plaintiff or the witness, it seems a harsh measure to strike out all that has obtained in the direct examination." (Italics supplied)

Besides, mere opportunity and not actual cross-examination is the essence of the right to cross-examine.^{^[i][21]} Appellants lost such opportunity when they sought the deferment of their cross-examination of Elizabeth, and they only have themselves to blame in forever losing that right by reason of Elizabeth’s demise. This Court held that the right to cross-examination

“is a personal one which may be waived expressly or impliedly by conduct amounting to a renunciation of the right of cross-examination. Thus, where a party has had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness will be received or allowed to remain in the record. x x x (W)aiver of the right to cross-examine may take various forms. But the common basic principle underlying the application of the rule on implied waiver is that the party was given the opportunity to confront and cross-examine an opposing witness but failed to take advantage of it for reasons attributable to himself alone.”^{^[i][22]} (Italics supplied)

As to the second motion, the same should be granted.The Supreme Court ruled once that “We also find unmeritorious appellants’ argument that Elizabeth’s testimony, having been taken during the bail hearings, cannot be used against them. Section 1(f) of Rule 115 provides that “either party may utilize as part of its evidence the testimony of a witness who is deceased x x x given in another case or proceeding”, and under Section 8 Rule 114^{^[i][23]} as amended by Circular 12-94,^{^[i][24]} “evidence presented during the bail hearings,” like the testimony of deceased witness Elizabeth, are “considered automatically reproduced at the trial” subject only to the possible recall of the “witness for additional examination unless the witness is dead, outside the Philippines or otherwise unable to testify.”” (PP. V. Narca, GR 108488, July 21, 1997)

15. The accused was caught in flagrante sniffing shabu inside a beach cottage in a resort. He was arrested by the police officers P01 Redoble and P02 Rosete,, accosted by Huling, the caretaker of the cottage, and Romel, the errand boy of the resort.

In convicting the accused, the Judge relied on the testimony of P01 Redoble, since Huling and Romel were not presented as witnesses for the prosecution.

On appeal the accused assigned as one of the errors the non-presentation of PO1 Rosete, Huling and Romel, claiming that the prosecution willfully suppressed other evidence which gives the presumption that the same is adverse to the prosecution, and could have resulted to his acquittal on the ground of reasonable doubt.

Rule on said assigned error.

ANSWER: Accused-appellant faults the prosecution for its failure to introduce the independent testimonies of the workers at the resort, which amounts to a willful suppression of evidence and gives rise to the presumption that the same is adverse to the prosecution if produced, pursuant to Rule 131, Section 3(e) of the Revised Rules of Court.

The contention is without merit.

The prosecution has the prerogative to present the witnesses it needs to meet the quantum' of evidence necessary to merit the conviction of the accused.⁴⁷ Hence, the prosecution cannot be faulted for presenting only the three (3) police officers involved in the arrest of accused-appellant. As these officers enjoy a presumption of regularity in the performance of official duty,⁴⁸ it was likewise error for the defense to question their testimonies solely on the ground that they were the very officers who conducted the arrest. Besides, the trial court had sufficient opportunity to observe the demeanor of these witnesses and to determine the truth or falsity of their testimonies. We see no reason, therefore, to overturn the findings of facts of the lower court.(PP V. DANILO DE GUZMAN, GR 117952-53, FEB 14, 2001)

16. Arriving home one late afternoon of April 4, 1987, Amador Organez was informed by his wife that their six (6) year old daughter, Maritess, was missing. Upon inquiry, Cristy Manalastas, one of his neighbors, told Amador that a pregnant woman was seen near the vicinity of his house. This was corroborated by two other neighbors, namely, Julie and Baby Wycoco. Amador searched for the pregnant woman at Tondo. She chanced upon Shirley Martinez whose child was also missing. Shirley related to Amador that, after one, Zenaida Isla, who was her former classmate, visited her at her house, her child disappeared. Amador, continued his search in Caloocan and met Lola Danding whose grandchild was also missing. She told Amador that it was appellant who took her granddaughter when the latter went to her house.

On July 18, 1987, the police authorities from Malabon went to Amador’s house and informed him that appellant had been arrested. Amador then went to the Malabon Police Headquarters where appellant told him to proceed to San Simon, Pampanga to fetch his child. On that same day, Amador went to Pampanga together with six Malabon policemen, Lola Danding, appellant, and Mrs. Loring whose child was also missing. After coordinating with the police authorities of Pampanga, they proceeded to the town of Sta. Monica, to meet Maura “Orang” Mabalot.

Upon reaching the house of Maura, the police authorities showed her a picture of Maritess and she identified the child in the picture as the same child who was with appellant when the latter went to her house in April, 1987. She also related that during the said visit, appellant told her that she was looking for someone to adopt the child known as Maritess. Appellant, upon hearing Maura’s statement reacted by telling the group that she sold the child at Angeles City. Thereafter, the same group went to a dry goods store at the Angeles City Market. The owner of the said store answered positively when the policemen inquired if a child was sold to her but, upon verification, the child was not Maritess. Then the group checked on another child, who was sold but again upon verification, did not turn out to be Maritess.

Subsequently, appellant was brought back to the Malabon Police Department but was transferred to the Western Police District of Manila. On July 21, 1987, appellant was investigated before P/Cpl. Pablito Marasigan, an investigator at the WPD General Assignment Section. Thereafter, she executed an extrajudicial statement wherein she admitted that she took Maritess Organez and brought her to Teofilo Ablaza for adoption. Said extrajudicial statement was executed with Atty. Domingo Joaquin of the Citizen’s Legal Assistance Office (CLAO), Department of Justice, beside her.

Appellant on the other hand, denied the charges hurled against her. She claimed that she has no knowledge of the contents of the sworn statement attributed to her which is marked as Exhibit “B” nor had she read it. She alleged that she was lured into signing the said document when Marasigan promised to release her after affixing her signature thereat. More so, she alleged that when she affixed her signature in the document, she was not assisted by a counsel as Atty. Domingo Joaquin of CLAO arrived at the police station after the document was already prepared and finished.

In this appeal, appellant interposes the following as errors of the court a quo:

“The trial court gravely erred in finding the accused guilty of kidnapping, inasmuch as:

1. The decision was basically based on hearsay evidence;

2. The alleged extra-judicial confession is inadmissible in evidence, being extracted in violation of the constitutional rights of the accused(sic).”

Rule on the assigned errors on the basis of PP. V. Isla, GR 96176, Aug. 21, 1997)..

ANSWER: PEOPLE vs. ZENAIDA ISLA,[G.R. No. 96176. August 21, 1997] 1. Based on the facts of the case the decision was based on hearsay. Indeed, in the case at bench, the evidence presented dismally failed to pierce the shield of presumptive innocence, as the prosecution merely relied on hearsay evidence. As can be gleaned from the facts the testimony of the father of the victim and that of the other prosecution witnesses were merely hearsay as they were not personally aware of the facts surrounding the alleged kidnapping of Maritess Organez. They all just averred that they were informed or matters were merely related to them, which, taken as a whole, could not legally sustain a conviction.

2. The extra-judicial confession is inadmissible as it was taken not in the presence of a lawyer. n Gamboa v. Cruz, we ruled that the moment there is a move of investigator to elicit admissions or even plain information from the suspect which may appear innocent or innocuous at the time, the suspect should be assisted by counsel, unless he waives his right, but the waiver should be made in writing and in the presence of counsel. The legal tenet was reiterated in the case of People v. Ayson and other cases.

So, in the case at bar, when P/cpl. Marasigan started his investigation without providing appellant with counsel of her choice, the former violated her rights as enshrined in the Constitution. It was only after he conducted an investigation on appellant that P/Cpl. Marasigan summoned Atty. Domingo Joaquin of the Citizens Legal Assistance Office and detailed at the Western Police District as inquest lawyer, to assist the appelant in giving a confession. This is the testimony of Atty. Joaquin:

“Q: After you were summoned by Marasigan, (sic) then what did you do?

A: When I arrived at the General Assignment Section of the Western Police District, I was briefed or informed by P/Cpl. Marasigan that he was investigating the suspect Zenaida Isla and the suspect intend to give an extrajudicial confession.”

On this basis, there is reason to believe appellant’s assertion that Atty. Joaquin did not assist her during the investigation, inasmuch as the statement was already finished and prepared before he arrived at the police station.

17. In a case for property heirship, the alleged niece testified about her ‘being a niece” to the decedent. She testified that allegedly, her deceased childless Aunt, the owner of the property in questions, since her lifetime had always declared her as her niece, who would be capacitated to inherit her property.

The adverse party claims that it is hearsay evidence, and hence inadmissible.

The Judge sustained the objection. Is the Judge Correct?

Answer: The Judge is wrong. The Supreme Court ruled in Tison V. Court of Appeals ([G.R. No. 121027. July 31, 1997] “The primary proof to be considered in ascertaining the relationship between the parties concerned is the testimony of Corazon Dezoller Tison to the effect that Teodora Dezoller Guerrero in her lifetime, or sometime in 1946, categorically declared that the former is Teodora’s niece. Such a statement is considered a declaration about pedigree which is admissible, as an exception to the hearsay rule, under Section 39, Rule 130 of the Rules of Court, subject to the following conditions: (1) that the declarant is dead or unable to testify; (2) that the declarant be related to the person whose pedigree is the subject of inquiry; (3) that such relationship be shown by evidence other than the declaration; and (4) that the declaration was made ante litem motam, that is, not only before the commencement of the suit involving the subject matter of the declaration, but before any controversy has arisen thereon.” As the statement is a declaration about pedigree,the same can be admitted as evidence, as an exception to the hearsay rule.

18.In a rape case, the following witnesses testified as follows:

Witness Lucela testified that she saw the victim a retardate, who went voluntarily with the accused in the bushes, where the accused had sex with her. The accused removed his pants, sat on the grasses where the victim sat on top of him. Her affidavit beforehand submitted did not mention of said fact.

Witness Rosario, an Aunt of the retardate, testified that the accused after the incident left their place, and even wrote a letter asking for forgiveness.

The retardate testified and pointed to the accused as the person who had sex with her in the bushes.

The trial court convicted the accused on the basis of said testimonies.

On appeal, the accused assigned the following errors:

(1) The testimony of the retardate is inadmissible and should not have been believed.

2) That his asking for forgiveness and his leaving the place are irrelevant matters and should not have been considered by the court.

3) The testimony of Lucela should have been discredited as it did not jibe with her affidavit.

Rule on the three assigned errors.

ANSWER: 1) A retardate is not disqualified to testify. “The fact that the victim in this case is a mental retardate is no consequence, as it is a settled rule that a mental retardate, for that reason alone, is not disqualified from being a witness. This Court has likewise held that a mental retardate who has the ability to make perceptions known to others is a competent witness”.

2) The flight of the accused and his asking for forgiveness are relevant matters, and are considered as indicia of guilt. “While the flight of an accused person after the commission of an offense creates no legal presumption of guilt, it is nevertheless a circumstance which is admissible in evidence against him, and, if not explained in a manner consistent with his innocence, is to be considered as tending to show that he was the person who committed the deed.

The Supreme Court has ruled that such an act (of asking for forgiveness) is undeniably indicative of guilt.

3) the Testimony of Lucila cannot just be discredited. X x x testimonial evidence in court carries more weight than affidavits. Testimonies given during trials are much more precise and elaborate than those stated in sworn statements. Ex-parte affidavits are almost always incomplete and often inaccurate for varied reasons, at times because of partial or innocent suggestion or for want of specific inquiries. Witnesses cannot be expected everytime, except when told, to distinguish between what may be consequential and what may be mere insignificant details.” (PP V. ERARDO, G.R. No. 119368. August 18, 1997]

19. Do you agree with the ruling of the judge when he decided that ” Neither do the tax receipts which were presented in evidence prove ownership of the parcels of land inasmuch as the weight of authority is that tax declarations are not conclusive proof of ownership in land registration cases” ? Why? What is the correct rule with respect to tax declarations used as evidence to prove ownership of land?

ANSWER: See, Palomo v. CA, G.R. No. 95608. January 21, 1997] and Heirs of Segunda Maningding v. CA,G.R. No. 121157 July 31, 1997: “While tax declarations and receipts are not conclusive evidence of ownership, yet, when coupled with proof of actual possession, as in the instant case, tax declarations and receipts are strong evidence of ownership.^”

20. In a criminal case for murder, the prosecution presented as evidence the pictures of the reenactment depicting the participation of the accused in the commission of the offense. The accused objected saying that said evidence is inadmissible as evidence, as he was not assisted by counsel when the reenactment was done. The prosecution objected saying that the reenactment was voluntarily done by the accused before he was charged, and the pictures were taken thereon without any objection from him.

The Judge ruled that said pictures are admissible as evidence and that they are not covered by the right against self-incrimination.

Rule of the contentions of the parties. Is the judge correct?

ANSWER: The pictures of the reenactment depicting Lara' s role in the commission of the crime cannot be utilized as evidence of his participation as a principal therein as that reenactment was conducted without any lawyer assisting appellant. We have held that reenactments are covered by the right against self- incrimination. Atty. Ranin himself admitted on the witness stand that no lawyer assisted Lara during the reenactment because he could not find any available lawyer at that time who could act as his counsel. (People v. Suarez, G.R. No. 111193. January 28, 1997])

2. WHAT IS A DYING DECLARATION? WHAT ARE THE REQUISITES IN ORDER THAT IT MAY BE ADMISSIBLE AS EVIDENCE IN COURT?

3. The case of PP V. GONZALES (311 SCRA 547) ENUMERATED THE THREE REQUISITES FOR A CHILD WITNESS TO BE COMPETENT, WHAT ARE THESE?

ANSWER: 1. CAPACITY OF OBSERVATION 2. CAPACITY OF RECOLLECTION AND 3. CAPACITY OF COMMUNICATION.

4. In the absence of a marriage certificate, how is marriage proved under the rules on evidence?

5. Appellant hinges his bid for exoneration on whether he was properly identified by the two (2) eyewitnesses as one of the killers of the victims. He contends that eyewitnesses Bonifacio and Elmer Vasquez presented an “incredible” story because it is “highly improbable” that they could have “distinctly and positively recognized accused-appellant as one of the perpetrators of the crimes."^{^[1]} According to appellant, Bonifacio, who was in the dark portion of the yard hiding behind a coconut tree, could not have identified appellant by the light emanating from gas lamp inside the camalig where Emeterio Vasquez and Rufino Agunos were staying at the time of the incident. Neither could Elmer Vasquez, who declared that he saw his grandfather shot by appellant, could have identified appellant because of the poor lighting coming from the gas lamp being carried by his grandfather. Appellant claims that the gas lamp carried by Elmer's grandfather was “a small can about two (2) inches tall and the wick is smaller than a cigarette” and the lamp inside the camalig “was placed inside a bigger can so that the direction of the light emanating therefrom was upwards and not sidewise.”

T: Alam mo ba ang dahilan kung bakit ka naririto sa Valenzuela Emergency Hospital at kinukunan ka ng salaysay?

S: Opo, dahil pinagpapalo po ako ng baril ni RAMIL PEÑA sa ulo at kinuha and tricycle kong minamaneho.

T: Taga saan itong si Ramil Peña?

S: Sa Dulong Tangke, Valenzuela, (Malinta), M.M.

T: Saan, kailan at anong oras nangyari ito?

S: Sa Paco, Obando, Bulacan, kaninang ika-8 ng Disyembre 1995 sa ganap na ika-4:15 ng umaga.

T: Sakay mo ba itong si Ramil Peña?

S: Oho, sumakay sa may gasolinahan ng Petron sa Malinta, Valenzuela, M.M.

T: Dati mo bang kilala si Ramil Peña?

S: Opo.

T: Ano ba ang tatak ng tricycle mo?

S: Yamaha RS-100, kulay itim.

T: Sino and may-ari ng tricycle?

S: Si Rey Dagul.

T: Binaril ka ba ni Ramil?

S: Muntik na ho.

T: Bakit sa iyo ginawa ni Ramil and bagay na ito?

S: Ewan ko ho.^{^[1][4]}

In People v. Naerta,^{^[1][10]} this Court held that:

Pelagio’s declaration is admissible as part of the res gestae since it was made shortly after a startling occurrence and under the influence thereof. Under the circumstances, the victim evidently had no opportunity to contrive his statement beforehand.^{^[1][11}PEOPLE vs. RAMIL PEÑA,[G.R. No. 133964. February 13, 2002]

7. Is circumstantial evidence sufficient to convict an accused? Explain.

8. When is there a conspiracy? What proof is necessary to prove conspiracy? Can it be presumed?

ANSWER: Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons agree to commit a crime and decide to commit it. Direct proof is not essential to establish conspiracy, and may be inferred from the collective acts of the accused before, during and after the commission of the crime.^{^[1][36]} Conspiracy can be presumed from and proven by acts of the accused themselves when the said acts point to a joint purpose and design, concerted action and community of interests.^{^[1]}

9. What degree of proof is required to prove the qualifying circumstance of alevosia? For the court to appreciate alevosia what “burdens” would the prosecution prove?

ANSWER: The prosecution was burdened to prove beyond reasonable doubt, not only the crime itself, but also the qualifying circumstance of alevosia.[1][60] Treachery cannot be based on speculations and surmises. In order that treachery may be appreciated as a qualifying circumstance under Article 14 of the Revised Penal Code, the prosecution is burdened to prove that (a) the malefactor employed means, method or manner of execution affording the person attacked no opportunity to defend himself or to retaliate and, (b) the means, method or manner of execution was deliberately or consciously adopted by the offender. (Pp. v. Buntag, GR 123070, April 4, 2004).

11. Distinguish an admission from a confession.

ANSWER:In criminal cases, an admission is something less than a confession. It is but a statement of facts by the accused, direct or implied, which do not directly involve an acknowledgment of his guilt or of his criminal intent to commit the offense with which he is bound, against his interests, of the evidence or truths charged.^{^[1][48]} It is an acknowledgment of some facts or circumstances which, in itself, is insufficient to authorize a conviction and which tends only to establish the ultimate facts of guilt.^{^[1][49]} A confession, on the other hand, is an acknowledgment, in express terms, of his guilt of the crime charged.

Sec. 4. Circumstantial evidence, when sufficient. – Circumstantial evidence is sufficient for conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

A related rule is that the totality or the unbroken chain of the circumstances proved leads to no other logical conclusion than the guilt of the appellant.^{^[1][9]}

There have already been instances when this Court convicted an accused of the crime of rape, committed while their victims were unconscious, based on circumstantial evidence. In People v. Villanueva,^{^[1][10]} the Court affirmed the conviction for rape, overruling the defense’s posture that the prosecution failed to present evidence of the actual defloration. In that case, the accused-appellant claimed that if the victim was unconscious during the sexual assault, she would be incapable of knowing that, indeed, she was raped. Debunking the claim of the accused-appellant that the circumstantial evidence was not sufficient to prove rape, the Court, taking into consideration the events that transpired before and after the victim lost consciousness, i.e., the perpetrator compulsorily commanded her to remove her panty and forced her to lie down then punched her in the stomach which rendered her unconscious and that when she came to, she felt pain in the nest of womanhood, found accused-appellant guilty of rape.(PP. V. eduardo moran jr. y Gordula, GR. 170849, MARCH 7, 2007, 3^rd division, decided by Justice Chico-Nazario).

13. In a buy bust operation, is a “prior surveillance” necessary for the conviction of the accused?

Answer: Settled is the rule that the absence of a prior surveillance or test-buy does not affect the legality of the buy-bust operation. There is no textbook method of conducting buy-bust operations. The Court has left to the discretion of police authorities the selection of effective means to apprehend drug dealers.^{^[1][24]} A prior surveillance, much less a lengthy one, is not necessary especially where the police operatives are accompanied by their informant during the entrapment.^{^[1][25]} Flexibility is a trait of good police work.^{^[1][26]} In the case at bar, the buy-bust operation was conducted without need of any prior surveillance for the reason that the informant accompanied the policemen to the person who is peddling the dangerous drugs.(PP V. NICOLAS, GR 170234, Feb. 8, 2007)

Before the cross-examination could be conducted, Elizabeth died of cardiac arrest.

The defense moved that the testimony of Elizabeth be expunged for lack of cross-examination.

On the other hand, the prosecution moved that the testimony of Elizabeth during the bail hearing be adopted as part of her main testimony.

As judge how would you rule on the two motions.

ANSWER:As to the first motion, the same has to be denied. Lack of cross-examination due to the death of the witness does not necessarily render the deceased’s previous testimony expungible. Thus, this Court in Republic v. Sandiganbayan,^{^[1][19]} citing Fulgado v. CA, ^{^[1][20]} said that:

Besides, mere opportunity and not actual cross-examination is the essence of the right to cross-examine.^{^[1][21]} Appellants lost such opportunity when they sought the deferment of their cross-examination of Elizabeth, and they only have themselves to blame in forever losing that right by reason of Elizabeth’s demise. This Court held that the right to cross-examination

As to the second motion, the same should be granted.The Supreme Court ruled once that “We also find unmeritorious appellants’ argument that Elizabeth’s testimony, having been taken during the bail hearings, cannot be used against them. Section 1(f) of Rule 115 provides that “either party may utilize as part of its evidence the testimony of a witness who is deceased x x x given in another case or proceeding”, and under Section 8 Rule 114^{^[1][23]} as amended by Circular 12-94,^{^[1][24]} “evidence presented during the bail hearings,” like the testimony of deceased witness Elizabeth, are “considered automatically reproduced at the trial” subject only to the possible recall of the “witness for additional examination unless the witness is dead, outside the Philippines or otherwise unable to testify.”” (PP. V. Narca, GR 108488, July 21, 1997)