EVIDENCE: evidence handbook

O B J E C T I O N S 1

“Your Honor, I object……………………………………………………………”

Evidence not objected to is deemed admitted and becomes the property of the case.” To be excluded, timely objection should be made.

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

If the question is proper but the answer is objectionable, e.g., for being hearsay, the remedy is to strike the answer off the record. The same remedy is available if the witness answers immediately, depriving opposing counsel of sufficient opportunity to object.

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.6 Document have to be identified so that their authenticity can be established.

The offer to 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.

The ground for objection, whether for testimonial of 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.

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.

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

INCOMPETENT, IRRELEVANT AND IMMATERIAL 2

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

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

Irrelevant or immaterial evidence are those which do not shed light or, 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.

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.

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.

Evidence that is offered to prove a fact no longer in dispute because the other party has already admitted its existence or non-existence is also irrelevant.2 but evidence that is irrelevant to prove a non-controverted issue may still be admitted to prove other disputed facts.

Since 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 in inference from the evidence being offered that the disputed fact exists or does not exist?

In cross-examination, more than in direct examination, wider latitude is sometimes allowed to counsel in asking questions designed to test the credibility of witness. But this should not be done at the expense of relevancy.

Although a piece of evidence is relevant, it may still be inadmissible if its presentation is forbidden by the rules of by law.

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 3

“Objection, Your Honor, on the ground that the question calls for the opinion or conclusion of the witness.”

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

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

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.3

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 measurement – size, weight; shape, Height;

(b) Color – dark, light, shade;

(d) Personality – emotion, anger, happiness, and sadness;

(e) Demeanor or person reaction – calm, upset, scared, frustrated;

(f) Identity of personal background – age, sex, nationality, language;

(g) Intoxication – drunk, sober;

(i ) Genuineness of handwriting.

Witnesses sometimes preface their testimonies with expression 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 objections only if they are found to mean that the witness speaks from conjecture or from hearsay.4

EXPERT OPINION 4

“Objection, 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.1

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 ordinary understand. Indeed, an expert is called more for his opinion on a given set of facts than for his recollection of events.2

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.

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

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

length of recovery.3

(b) Forensic science : identification of fingerprints, footprints, ballistic, blood

chemistry, handwriting and questionable documents.4

very in fire insurance cases.5

(d) Mechanical engineering and architectural construction

(e) Other sciences : weather6

(f) Unwritten law of foreign countries

FAILURE TO MAKE CONNECTION 5

“Your Honor, I move that the testimony or exhibit be stricken off the record for failure of counsel to make the necessary connection.”

Involve here is the rule on conditional admissibility of evidence.1

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 time. At the beginning, a particular evidence may appear irrelevant, although it is relevant if connection 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 PURPOSE 6

“Objection, Your Honor, on the ground that it is inadmissible for the purpose for which it is being offered,”

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 fulfill the requirements of the other purpose.1

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.

OUTSIDE THE SCOPE OF THE PLEADINGS 7

“Objection, Your Honor, on the ground that it is not alleged or pleaded”

Only matters that are in dispute – in issue – require proof and can be proven.

And those in issue, in civil cases, are only those that are defined in and limited by the pleadings: the complaint, answer and reply. The pleadings serve to inform the parties and the court of what is being disputed and what is going to be proved.

Therefore, evidence that is being presented to prove an issue, which is not alleged in the pleadings, is not admissible.1 Apart from being irrelevant; it should be excluded because it unfairly surprises the party against whom it is being adduced.

In criminal cases, no evidence may be admitted which do not tend to prove a fact alleged in the information. This in to prevent an accused from being convicted of an offense of which he has not been informed.2

CROSS-EXAMINATION BEYOND SCOPE OF DIRECT EXAMINATION 8

“Objection, Your Honor, the question is not within the scope of direct 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 witness’s testimony.1 thus, a cross-examination might 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.2

But when attacking the credibility of a witness, the cross-examination 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 of action 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.

LEADING QUESTION 9

“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.

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 “didn’t or ending with phrases such as “didn’t he” or doesn’t it” are often leading. However, a question that may be answered by a simple “Yes” or “No” is not necessarily leading.

On direct examination, when the leading question refers to the fact in issue or is electing the main point a witness wants to prove, the question is prohibited. But when the query is direct to preliminary matters – those that will bring the witness to testify at once on a fact in issue, thereby saving time, the leading question may be allowed. Examples are: “As medico-legal officer, did you examine the cadaver of the deceased?”; “And you wrote down your finding in your report?”; “And this is your report, isn’t it”.

Leading questions may also be asked:

(a) in cross-examination, but not when the witness is friendly to the cross-exami-

nation

(b) to assist a witness who is ignorant, young, or mentally and physically handi-

capped in expressing himself;

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

(e) to identity persons, things or exhibits.2

MISLEADING QUESTION 10

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.

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

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 seated on the front seat of the vehicle.

COMPOUND QUESTION 11

“Objection, Your Honor, it is 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”.

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?

GENERAL QUESTION 12

“Objection, Your Honor, the question is too general”.

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 13

“Your Honor, the question calls for a narrative answer”.

A question that invites a narration of facts is 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 anytime 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 in asked to narrate in his own way.

An example is: “Tell us in your own words, what happed?”

VAGUE QUESTION 14

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

Truth is easily ascertained from clear answers which in turn are derived from clear questions – question that are not vague, ambiguous or unintelligible.

Vague or ambiguous questions are those that cannot be answered specifically or are capable of double meaning. An unintelligible question, on the other hand, id 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.

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 questions, that he did not understand.

HYPOTHETICAL QUESTION 15

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

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.

Moreover, a hypothetical question usually calls for an opinion which if given by an ordinary witness has no weight or probative value.

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 prov.1

ARGUMENTATIVE OR HARASSING QUESTION 16

“Objection, Your Honor, the question is argumentative. ”

“Objection, Your Honor, the question is harassing the witness.”

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 is more often than not argumentative. This is especially true when the question tries to point out or emphasize some real or apparent inconsistencies in a witness’s testimony.

If two statements, for example, are not reconcilable, asking a witness how he can reconcile two inconsistent statements is argumentative.1 Asking which of two inconsistent statements is true, however, may be proper.2

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 17

“I object, Your Honor, because the question tends to embarrass or degrade the character of the witness.”

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.

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.

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 impeachment his credibility, he can refuse answer. When the embarrassing question is asked to prove the fact in issue, the witness has no choice but to answer.

UNRESPONSIVE ANSWER 18

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

Improper questions can be objected to but not answer 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.

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 19

“Your Honor, the witness has already answered the question. ”

“Your Honor, already answer.”

Repeated question on the same subject are not allowed because they are time consuming and may unduly emphasize testimony on a particular point.

When the purpose of the question is to clarify prior testimony in 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 20

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

A question that assumes a fact that has not been established by any evidence in 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 facts has

already been established; and

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.”1 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 21

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

“Your Honor, I object because a sufficient foundation has no been laid established that…………………………………………………………………………....”

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 signature.1

Again, before a xerox copy of document can be admitted in place of the original, the preliminary fact that the original was lost or is other wise unavailable must first be proved.2

When a witness is going to describe an incident, it must be first 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 establishes before a confession can be admitted in criminal cases.3

Whether the declarant had personal knowledge of the cause and circumstances of his death, and whether he sense his impending death are preliminary facts to the admission of the declarant’s dying declaration.4

Finally, the qualification of an expert is allowed to express an opinion.5

PREVILEGED COMMUNICATION – STATE SECRET 22

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

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 completed to testify on any communication made to him or acquire by him in official confidence, if to disclose such communication will injure public interest.1

SELF-INCRIMINATING QUESTION 23

“Objection, Your Honor, the question is self-incriminating. I request that the witness be advised of his right against self-incrimination . ”

Involve here is the constitutional right of a person not to be compelled to be a witness against himself.1

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 established 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.

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

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

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.4

ILLEGALLY OBTAINED EVIDENCE 24

“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 an unreasonable search and seizure.”

All illegally obtained evidence is made inadmissible in order to enforce the constitutional protection against unreasonable search and seizure.1

In the United States, specifically in California, the unreasonableness of a search of 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 file before the trial or if allowed during the trial before conviction.2

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

DEFECTIVE CONFESSION 25

“Objection, Your Honor”, to the admission of the confession because it was not voluntary or the accused was not properly advised of his rights”.

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.

A confession is presumed to be voluntary, how ever, and it is incumbent on the accused to destroy that presumption.

The ruling in the Morales case makes it clear that Miranda warning as they are generally called, have to be made so that a confession can be admitted.1 Therefore, while under police custody and investigation, the accused must be appeared of his:

(a) right to remain silent with an explanation that anything he might say might be

used against him;

(b) right to talk to a lawyer, relative or friends and have a lawyer, relative or

friends present while he is being questioned; and

The right to a lawyer may be waived but the waiver to be valid must be made with the assistance of counsel.2

PHOTOGRAPHS, X-RAYS, VIDEO TAPE AND MOTION PICTURES 26

“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 pictures of the situation or of what had occurred. Their use is therefore, encouraged.1 If availed of, they are made part of the testimony of the witness who mentioned or referred to them.

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.2 Of course, authentication is best done by the photographer or person who took the motion picture or video tape, etc. but other person 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 the photographs, etc. accurately depict them.3

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

SKETCHES, CHARTS, DIAGRAM, AND MAP 27

“Your Honor, I object to the use or introduction of the sketch because it does not accurately represent the scene it purports to depict.”

A sketch, chart, etc. already prepared may be used provided a witness testified that is 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.

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 WITNESS 28

“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.

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

(a) Insane persons – The insanity that will disqualify is that which exist 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 children 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;1

(c) Deaf-mutes – If of sufficient intelligence and ability to communicate their ideas, by signs or in writing, they are competent to give testimony;2 and

(d) Intoxicated persons – persons whop 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 witness, it affects their credibility, however.3

TRANSACTION WITH A DEAD INSANE PERSON 29

“Objection, Your Honor, because the question calls for a communicate, or involves a transaction, with a dead or insane person.”

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.2 Thus, the party plaintiff claiming against the estate is prohibited from testifying on:

(a) a contract for payment of goods furnished the deceased or insane person;

(b) an agreement to divide property;

However, while the plaintiff himself is prohibited from testifying, he is allowed to present witness to prove his claim since witness are not included in the probation. 3 The objection may also waived.4

INCOMPETENT SPOUSE AS A WITNESS 30

“Objection, Your Honor, this person is private 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.

Therefore, this objection can be invoked only by the spouse who is a party or co-party in a case.1Without the contest 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.2

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 the other, as in adultery or bigamy.3 Rape committed on a daughter is considered a crime committed by the husband against the wife this rule.4

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.5

For not permitting a spouse to testify either for or against, no unfavorable inference may be drawn.6

DESCENDANT AS INCOMPETENT WITNESS 31

“Objection, Your Honor, on the ground that the witness may not be compelled to testify against or ascendant.”

This objection can be used only in a criminal case where the parent or ascendant is charge 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 member 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.

PRIVILEGED COMMUNICATION – HUSBAND AND WIFE 32

“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.

What is prohibited here is the introduction of any communication which one spouse may have made to the other during the marriage.1 Such communication may be any kind of oral or written statement made or given in confidence.2 It may include an act, like the exhibition of a secret disease or physical defect, which may be considered as silent communications.3

But a third person who overheard the communication while being made by the spouses is free to disclose it to the court.4

PRIVILEGED COMMUNICATION – ATTONEY AND CLIENT 33

Objection, Your Honor, on the ground that it is privileged communication between attorney and client.”

An attorney can best prepare the case of his client if he knows the facts, which a client will disclose only if he knows that they can be kept secret.

Hence, to promote this confidentiality, an attorney, without the consent of his client, cannot testify on:

(a) any written on oral communication made confidentially to him by his client;

(b) any legal advice or opinion he may have given to his client; and

Act of the client, like the demonstration of physical strength to show that he could not have committed the crime, are considered silent communications and are also covered by the privilege.

To be privilege, it is not essential that the communication be made while the attorney is under actual contract with the client. It is enough if the communication is made while the clients is trying to retain the services, or is seeking the professional advice, of the attorney. It does not matter if the attorney, after learning of the communications or giving his opinion, has declined to act as counsel for the client.1

To make the privilege, effective, the secretary, stenographer, or clerk of the attorney’s are also prohibited from testifying on the same matters.

Because it is not supposed to be confidential, the contract for the payments fees is not considered privileged.

Likewise, confidential communication in furtherance of crime and fraud are not privileged.

A communication for which the privilege is claimed is presumed to have been made in confidence and the opponent of the claim has the burden of proving that it is not confidential.

PRIVILEGED COMMUNICATION – DOCTOR AND PATIENT 34

Objection, Your Honor, on the ground that it is privileged communication between doctor and patient.”

An ailment can be treated effectively only if there is full and complete information about it. the doctor, should be made to feel free to ask any question and the patient to give any answer about the disease. This is achieved by keeping all the information strictly confidential.

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

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

To be privilege, 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 an illness.

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.1 Dentist, pharmacists and nurses who overheard the confidential communication 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 COMMUNICATION – PRIEST AND PENITENT 35

“Objection, Your Honor, on the ground that it is privileged communication between priest and penitent .”

Confession are meant to be secret. Many people will hesitate to confess if the priest or minister can be forced to disclose confessions.

Hence, without the consent of the person making the confession, the priest or minister cannot testify on anything said to him by the patient 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.

To be privilege, it is necessary that the confession be conducted in the course of discipline enjoyed 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 other privileged communications, third persons who overheard the confession are not prohibited from testifying about them.

USE OF MEMORANDUM TO AID MEMORY 36

“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.”

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

(a) that the witness cannot fully or completely remember the facts without the aid of the memorandum due to lapse of time; and

(b) 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 fresh in his memory.

The memorandum which can be used to stimulate one’s 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.

Since it is the recollection of the witness that is considered evidence and not the memorandum, the memorandum need not satisfy the best evidence rule. A mere copy of the memorandum, not necessary the original, may be used by a witness in refreshing his memory.

IMPEACHMENT OF OWN WITNESS 37

“Objection, Your Honor, on the ground that the evidence tends to impeach opposing counsel’s own witness”.

“Your Honor, may I be allowed to impeach my own witness by showing that the he had made prior inconsistent statement”?

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.1 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.

Only when a party can show that he was misled by a witness into calling him to testify can impeachment be allowed at the court’s discretion. It would be unfair if a party were to lose his case just because the witness on whom he depended had decided to chance his mind and betray him.2

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 calling him, may be impeached.

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 witness who will contradict and 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.3

INCONSISTENT STATEMENT – LAYING OF PREDICATE OR FOUNDATION 38

“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.

If the prior inconsistent 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.1 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.

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 of inspect it.3 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.4

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.5

On appeal, it is rather late for a party to take advantages 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 to object constitutes a waiver.6

IMPEACHMENT OF ADVERSE PARTY’S WITNESS 39

“Your Honor, the evidence is admissible for impeachment purpose to show…..”

one’s own witness may be impeached by contradictory evidence or by prior inconsistent statement. But an adverse party’s witness can be impeached by:

(a) 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 prove, not the particular instances of immoral or wrongful acts, not improper or unlawful conduct that the witness might have committed;

(b) prior inconsistent statement (Please see discussion on laying of predicate or foundation);

(c) evidence of prior conviction of an offense which may be proved by eliciting an admission from the witness or by a record of his conviction; and

(d) 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 from what occurred.

Impeachment of an adverse party’s witness usually occurs during cross-examination or during the other party’s turn to present evidence. During cross examination impeachment is accomplished also by:

(a) involving the witness in contradictions;1

(b) showing the impossibility of the witness’ version of the incident;2

(d) proving acts or conduct inconsistent with his testimony.

CHARACTER EVIDENCE 40

“Objection, Your Honor, this is an attempt to introduce character evidence that is inadmissible because ………..”

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.2

If an accused does not decide to put his character in issue, that is, does not present evidence of good character, no unfavorable inference may be drawn, however.

The character that an accused prove must to the relate to the traits, characteristics or elements of the offense charged.3 Hence, evidence proving honesty is admissible in a case of theft or estafa, but not in homicide or assault.

The character of the victim or offended person may 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.4 But in murder, proof of character is not allowed.5

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 or reputation of the parties.

An example of a civil case where character is in issue in 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.

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. Id does not refer to specific acts or conduct which if allowed, would raise many collateral issues that may unduly prolong the trial.6

BEST EVIDENCE RULES 41

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

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.

How ever, the rule is not applicable and the writing need not be produced;

(a) If the purpose is not to prove the contents of the writing but only to show that the document exist, has been executed or delivered. In such case, the oral testimony of a witness is enough to prove the existence, execution or delivery of the writing.1

(b) If the writing is merely collateral or involve in some remote way to the issue.2 In the following examples, where the fact to be proved by the writing is merely collateral or not closely related to the main issue, oral testimony can be admitted to prove that:

(aa) a person is married, without producing the marriage certificate;3

(bb) a person died, without producing the death certificate;

(cc) a person took a trip, without producing the ticket or travel documents; and

(dd) a person owns the land in a forcible entry and detainer case, without producing the title, since possession not title is the issue in the case.4

(c) If the purpose is to prove a fact that has an existence independent of any writing, even though that fact has been reduced to, or is evidenced by a writing.5 For instance, the payment of money may be proved orally, although a written receipt was given, because what is being proved is the fact of payment and not the terms or conditions of the receipt.6 Similarly, a conversation may be proved by the oral testimony of someone who heard it, although the conversation was recorded.7

However, even if the purpose is to prove the contents, the original of the writing need not be produced if:

(a) the original has been lost, destroyed or cannot be produced in court;8

(b) the original is last known to be in the hands of the opposing party who refuses to surrender it after receiving reasonable notice to produce it;9

(d) the original is a public record which may be evidenced by a certified true copy; and

(e) the original consists of numerous accounts or voluminous documents which cannot be examined without great loss of time and where the fact to be proven is only the general result of the whole.

When 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.10

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.11

Other that a “copy” may become the “original” in certain cases. A carbon copy, leaving no blanks to be filled up, singed by the person who executed the original document is considered a “duplicate original.”12 But where several copies are made on the typewriter at the same time, by the use of carbon paper, and only one of them is signed, the signed copy becomes the original and the others with the signature missing on them are mere copies.13

Duplicates by photostat or xerox, photography, microfilm, or recordak in the absence of special rules or statutes, are considered copies not originals.14

The best evidence rule applies only to writings and not to things, but if the writing is found on an object, like an inscription on a wedding ring the court has discretion, considering its importance to the issue, to determine whether the object itself should be produced.

PAROLE EVIDENCE RULE 42

“Objection, Your Honor, because it violates the parole evidence rule.”

“Your Honor, this inadmissible parole evidence.”

Often, lawyers commit the mistake of invoking the parole evidence rule when what they 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 involve. But when a party contents that what the document says is not what was agreed upon by the parties, it is parole evidence rule that should be invoked.

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

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

(a) When what appears in the document is not a valid and binding agreement3 either because of:

(aa) want of consideration;4

(bb) want of valid consent due to lack of capacity, fraud or duress;5

(cc) illegality of subject matter;6 and

(dd) illegality of consideration.7

(b) Where both parties committed a mistake of fact in expressing their agreement in the writing, if pleaded as an issue.8 For instance, the parties committed a mistake in describing the property being sold in a document of sale9 or in stating that the price was to be paid in dollars when their agreement was in pesos.10 Such mistakes can be corrected in an action for reformation of contract;

(c) Where the document or writing does not perfectly express the document failed to use accurate language to describe the agreement;11

(d) Where the writing does not express the true intent and agreement of the parties, if pleaded as an issue. 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.12

HEARSAY EVIDENCE 43

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

“Your Honor, I more that the testimony be stricken off the record for the being hearsay.”

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.

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

Examples of written hearsay evidence are:

(a) A medical certificate issue by a doctor who was not called to testify;1

(b) An affidavit of an accused implicating another in the commission or an offense where the accused is not placed on the witness stand;2

(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;3

(d) The manifest of a steamship company showing that only two out of three cases shipped by the plaintiff has 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 to testify;4

(e) Newspaper clippings, a letter and a telegram to show the cause of death of an insured in an action on a life insurance policy.5

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;6

(b) To show his innocence, the testimony of an accused that a third person had confessed to the crime;7 and

(c) Testimony by a witness to a highway accident that the driver told him that the automobile belonged to the defendant.8

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

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 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 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.

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

(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.9 An example of this is a statement of a person 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 say that he cared more for Peter than his other sons, which may be offered to show the testator’s feelings and special fondness for Peter.10

Likewise, threats, regardless of their truth, are admissible to show which of two parties is the 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 prove by anyone who has heard them.11 Also, a statement of accounts which is offered not to prove such account but only to show the good faith of the possessor is admissible.12

(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.13

The exception 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 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.

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

(a) Dying declaration;

(b) Declaration against interest, pecuniary or moral;

(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 list and the like;

(j) Learned treaties; 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 EVIDENCE 44

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

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.

The testimony of an interested party, either as plaintiff, defendant, complaint 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 son’s out-of-court statement is not only self-serving but also hearsay.3

Another example – The defendant was charge 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 relied 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 EXCEPTION – DYING DECLARATION 45

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

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. These rules are:

(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;1

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 believed, I have no hope”.2 Likewise requesting the presence of 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;3

Death, however, need not immediately follow the declaration. It is enough that the declarant believed that death was at hand;4

(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;5 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;6

(c) The declaration is to prove only the facts and circumstances producing and attending the death of the 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;7 and

(d) If the dying declaration has been reduced to writing, the original of the written declaration must be produced.8 Secondary evidence is allowed only after the non-production of the original has been explained.

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

HEARSAY EXCEPTION – DECLARATION AGAINST INTEREST 46

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

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. To be admissible, the declaration must meet the following requirements:

(a) It is made by a person who is dead, outside the Philippines or unable to testify. The unavailable 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 family’s safety was considered unavailable;1

(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;2

Typical examples are statements like: “I am indebted to Juan dela Cruz”; or, “I am owner of only one half of the 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 declaration against moral interest;3 and

The declaration may be oral or written, 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.5

HEARSAY EXCEPTION – PEDIGREE (FAMILY HISTORY) 47

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

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

In order that such declaration may be admitted it is necessary that:

(a) The declaration is deed, 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;1 and

The declarations about pedigree are admitted out of necessity and because people are not prone to lie about their family history.

HEARSAY EXCEPTION –FAMILY REPUTATION 48

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

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.1 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 by a relative who is already dead or unavailable.

HEARSAY EXCEPTION – COMMON REPUTATION 49

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

Common reputation is a means of proving:

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

(b) Marriage;1 and

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 ate the boundaries of town and provinces and the public character and location of roads.

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.2

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.3

HEARSAY EXCEPTION – RES GEATAE 50

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

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

Depending on the circumstances, questions addressed to the declarant, such as “what happened”, “what’s the matter”, may or may not indicate spontaneity. An answer to such question may be considered narrative instead of instinctive in nature.2

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.3

A statement that fails to qualify as dying declaration, because it was not made under a consciousness of an impending death, may be admitted as part of res gestae.4

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 tell 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 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 EXCEPTION – BOOK ENTRIES 51

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

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.

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.5

An entry may be used to refresh the memory of a witness.6

HEARSAY EXCEPTION – OFFICIAL RECORD 52

“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.1 In other words, the public officer or private individual was duty-bound to make the entry or record while performing his functions.

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;2 sheriff’s certificate of service of summons3 and return of wit of execution;4 certificate of acknowledgement of a notary public;5 and certificate of correctness of a court stenographer.6

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.7

There are some official records or entries that are not admitted without supporting testimony. Example of these are: autopsy report,8 baptismal certificate,9 police blotter10 and police investigation report.11

HEARSAY EXCEPTION – COMMERCIAL LIST 53

“Your Honor, the writing is admissible as a commercial list.”

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 navigation statistics can also be admitted under this rule although if compiled by a government agency, they are admissible also as public or official records.1

Out of necessary and strong probability of their trustworthiness, the authors of the list, quotations and statistics need not be called to testify.

HEARSAY EXCEPTION – LEARNED TREATISES 54

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

Written works published on any subject of history science or art is admissible if authored by someone learned or recognized as an expert in the subject.

If the competence of the expert is generally accepted, the court may take judicial notice of that fact. If not, as expert in the subject may be called to show that the author of the treatise is somebody well known in his field.

Articles in encyclopedias may be admitted. Dictionaries, while admissible, are admitted only for the purpose of showing the ordinary meaning of words.1

HEARSAY EXCEPTION – FORMER TESTIMONY 55

“Your Honor, it may be admitted as a former testimony.”

Testimony given in former case can be used for two purposes. Firs, 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.

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.1

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;2

(b) He gave his testimony in a former case involving the same parties and about the same matters;3 and

The best evidence to prove former testimony is, of course the transcript certified true and correct by the stenographer who took it. the judge’s 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.5

EVIDENCE OF CONDUCT – SIMILAR ACTS 56

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

“Your Honor, the evidence may be admitted to prove specific intent plan, ets.”

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.

EVIDENCE

Wednesday, January 7, 2015

evidence handbook

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