TESTIMONIAL KNOWLEDGE: THE HEARSAY RULE
CREDIT:http://www.batasnatin.com/law-library/remedial-law/evidence/1089-rule-130-rules-of-court-admissibility-of-evidence.html
I. INTRODUCTION
A. Sources of What a Witness Testifies On. When a person testifies that a certain event occurred or that a person did or did not do an act, his reasons or basis may either be:
1. Facts based on his own personal knowledge or direct knowledge, such as when he testifies to facts or events which he personally saw or in which he participated, or to statements he personally heard.
CREDIT:http://www.batasnatin.com/law-library/remedial-law/evidence/1089-rule-130-rules-of-court-admissibility-of-evidence.html
I. INTRODUCTION
A. Sources of What a Witness Testifies On. When a person testifies that a certain event occurred or that a person did or did not do an act, his reasons or basis may either be:
1. Facts based on his own personal knowledge or direct knowledge, such as when he testifies to facts or events which he personally saw or in which he participated, or to statements he personally heard.
2. Opinions, conclusions or estimations which the witness himself arrived at or formed.
3. Matters relayed to him, or learned by him from third persons or acquired by from sources outside of his own personal knowledge.
Testimony based on the first source is admissible so long as it is relevant and they are what the rules desire to be testified upon.
Testimony based on the second is generally not admissible.
Testimony based on the third source is generally inadmissible and considered as hearsay.
II. CONCEPT OF HEARSAY EVIDENCE
Testimony based on the second is generally not admissible.
Testimony based on the third source is generally inadmissible and considered as hearsay.
II. CONCEPT OF HEARSAY EVIDENCE
A. In general, the term embraces all assertions of facts, whether in the form of oral or written statements or conduct, the source of which cannot be subjected to the opportunity for cross-examination by the adverse party at the trial in which the statements are being offered against him.
1. The essence and test of what is hearsay is the fact that the source i.e. the person who made the statement, can not be subjected to the opportunity for cross-examination. These two concepts can not be separated from one another.
2. The emphasis is on the opportunity to cross examine and not actual cross-examination because if there was opportunity to cross examine but it was not actually exercised due to the fault or negligence of the adverse party, the evidence is admissible.
B. The rule on hearsay is intended to satisfy the requirement of due process which is that the adverse party has the right to confront the witnesses against him, to test their credibility, the truth of their statements, their accuracy, or the reliability of the evidence against him. This is through the process known as cross-examination. This is why the rule on hearsay evidence can not be separated from the requirement of due process.
III. KINDS OF STATEMENTS USED AS PROOF OF FACTS
A. “In-Court-Hearsay Statements”. These are assertions of facts by a witness based on his own personal perception but the witness was not subjected to the opportunity for cross examination.
1. This usually occurs after a witness has testified during the direct examination but the testimony becomes hearsay because the witness refused to go back to court to be cross-examined; or he dies, becomes incapacitated mentally or physically, goes abroad, or where for any cause not attributable to the adverse party, he was prevented from cross-examining the witness.
2. The remedy of the adverse party is to Move To Strike From the Records the Direct Testimony on the ground that it is hearsay. If granted, the legal effect would be that the direct testimony would be erased/stricken from the records such that it was as if the witness never testified at all.
3. The testimony is not hearsay if the right to cross examine was expressly waived, or if it was lost by failure of the adverse party to claim or exercise it despite the opportunity given him.
B. “Out-of-Court-Statements”. These refer to statements or declarations by third persons which are being used or referred to by a witness in order to prove a fact. The phrase aptly describes statements or declarations or conduct which were made elsewhere than in the trial of the case where they are being used as evidence.
They are of three kinds:
1. The Non-Hearsay Statements also referred to as the Independently relevant statements and therefore admissible.
a). Statements the making of which are the very fact in issue.
b). Statements which are circumstantial evidence of the fact in issue
2. The Hearsay Statements which are inadmissible under Section 36.
3. The Hearsay Statements but admissible as an exception under Sections 37 to 47.
IV. NON- HEARSAY OR INDEPENDENTLY RELEVANT STATEMENTS
A. The purpose of introducing the statement or declaration of another is not to prove the truth of a fact but either: (i) to prove the statement was indeed made, uttered, or written, or (ii) to prove the tenor of the declaration i.e why it was made, or that it was part of a conversation or exchange of communications or part of a transaction or occurrence.
B. The first kind: Statements the Making of Which is the Very Fact in Issue. The question before the court is: “Was there such an oral or written declaration/statement which was made? Was there such a conduct which was done”? or “What was the statement or conduct made? What were the words uttered or written?
1. It therefore becomes necessary for a witness to quote or refer to the statements or declarations or conduct of a third person in order to answer the issue.
2. Examples are: (a). statements as constituting libel or oral defamation; (b) actions based on a breach of a promise or warranty (b). statements which are offered as an admission by the adverse party (c). statements quoted to destroy the credibility of a witness or party.
C. Second Kind: Statements Which Are Circumstantial Evidence of the Facts In Issue
1. To show the state of mind, mental condition, belief, ill will or criminal intent of the utterer/declarant
a). To prove insanity- “I am God”
b). Discernment on the part of a minor: “he said” Takbo na”, Tago tayo”
c). Evident Premeditation: “ May araw ka rin”
f). Guilty knowledge: Don’t tell anyone this money is fake, or it was stolen”
g). Bias: I will stand by him no matter what. “May pinagsamahan kami kasi”
h). Ill-Will: “I hope he dies”. “Ma fail ka sana”
i). Anger, excitement, joy, elation, gratitude:
j). That Erap was resigned to giving up the presidency: “Masakit, Ayoko na, ”
k).He was intoxicated
2. To prove the statement of mind of the hearer or third person or of the witness, such that :
a). He was not attentive
b). He is bias
c). He did not understand or that he was mistaken
d). He was intoxicated
3. To show the physical condition of the utterer
a). Illness: I have a headache
b). Pain: Aray: Tama na ( to substantiate a claim of self defense)
c). Tired: Let’s rest. My feet are killing me.
4. To fix or identify date, time, place or person in question
a). Place: Quoting statements in the local dialect by unknown people
b). Time: “Good evening”, “Gabi na, tulog na kayo.”, “Gising na, umaga na”, Kain na, Boom Tarantara
c). Identity: Kuya Pedro, My younger brother, My seatmate, My crush, “Itay”, ““Baket”
d). Sex of a Person: words such as Manong, ate, kuya, Sexy, Pogi
5. To show the lack of credibility of the witness
V. PURE HEARSAY AND INADMISSIBLE
A. This is what is covered by section 36 : A witness can testify only to those facts which he knows of his own personal knowledge, that is, which are derived from his own perception, except as otherwise provided in these rules.
B. Concept: A witness asserts something as true but his reason is the statement, declaration or conduct of another. The witness merely repeats the declarations of others, he “heard (it) said”, or his testimony is to a second hand information.
C. Illustrations:
1. Oral declarations or statements such as relying on news broadcasts, popular opinions, what people think or believe.
2. Written statements such as Affidavits of third persons, news paper reports, entries in the police blotter, medical reports, and any written account, report or statement , which even if true, but the maker/author is not the witness testifying on it.
3. Non-verbal statements or conduct. which are offered as assertion or proof of a fact. Example: On the question of who killed Z, the witness was asked: Why do you say it was X who killed Z? and he answered: “I inquired from those present who did the stabbing and one lifted his finger and pointed to X ”. The act of pointing is non verbal hearsay conduct.
4. However, the testimony of a witness as to a non-human statement is not subject to the Hearsay Rule, such as those of machines and animals because: (a). the lack of motive to lie on the part of animals and machines and to (b). the workings of a machine can be explained by human beings who then are subjected to cross-examination. Examples:
i). to prove a party is not the owner of the dog, a witness testified that he saw the accused approached the dog and he heard the dog let out a grrrrrr
ii). to prove the accused was carrying a prohibited article, the witness testified that when the accused passed through the detector/machine, the machine emitted a whirring sound.
D. Evidentiary Value of Hearsay Evidence. Hearsay evidence has no evidentiary value whatsoever even if it was admitted without objection from the other party. This is because this would violate the requirements of due process and because the source of the information was not subjected to the personal observation of the Court as his demeanor.
VI. HEARSAY STATEMENTS BUT ADMISSIBLE.
A. CONCEPT: These are the statements, oral or written, presented as evidence in court without the author of the statement having been presented to testify on them. A witness offers these statements by third persons to prove a fact.
B. BASIS. These statements are essentially hearsay because the makers or authors of these statements are not presented in court and are not subjected to the opportunity for cross examination. They are however are admissible because of two reasons: (1). The guarantee of trustworthiness or that they are presumed more likely to be true than not and (2. Necessity in that the court has no option but to accept them due to circumstances which exempt the authors from being personally presented in court as witnesses.
C. KINDS: They are those enumerated from section 37 to 47. The enumeration is exclusive.
Sec. 37. DYING DECLARATIONS
I. RULE: The declaration of a dying person, made under consciousness of an impending death, may be received in any case where in his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death.
II. CONCEPT: Often referred to as antemortem statements or statements in articulo mortis, they are statements or utterances whether oral, written, or conduct, made by a victim of violence, after sustaining a mortal wound, under the belief that death is imminent, stating the facts concerning the cause and circumstances of his mortal wound.
III. REASONS FOR ADMISSIBILITY.
A. Necessity. What the victim declared is material to the case. But the victim/declarant is already dead hence the only available remedy is to rely on the testimony of a witness who heard, read or saw the dying declaration. This also to prevent an injustice if the only evidence of the crime is the dying declaration and yet it is excluded.
B. Guarantee of Trustworthiness in that what the victim declared is presumed to be true in that:
1. There is no more motive for a dying person to fabricate a falsehood, or in the words of Lord Baron Eyre:
“The general principle on which this species of evidence is admitted is that they are declarations made in extremis, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful consideration to speak the truth; a situation so solemn and so awful is considered by law as creating an obligation equal to that which is created by a positive oath administered in a court of justice.”
2. Another basis for the presumed truthfulness is the fear if punishment in the after life which may induce a person to speak the truth during his last moments. But the fat that the declarant does not believe in an after-life of rewards and punishment does not make his declarations less true.
IV. REQUIREMENTS FOR ADMISSION
A. THE STATEMENT MUST BE MADE UNDER CONSCIOUSNESS OF IMPENDING DEATH
1. The declarant is aware that his death is imminent or that his death is certain to follow by reason of his wound. He knows, is aware and accepts that he may die at any moment.
2. But it is not required that death should immediately follow for it may happen that the victim dies after the lapse of hours or days. It may happen that his condition improved but nevertheless he died after an interval of time. It is enough that when he made the statement he believed he was about to die.
3. If he entertained some hope of recovering or of surviving his injury, his statement will not constitute a dying declaration, but if later when his condition worsened, he ratified his statement and thereafter died, then the statement ill be considered as a dying declaration.
4. This requirement is present:
a). From the express declarations of the victim
b). Inferred or implied from his utterances or conduct, such as when he begged forgiveness, asked for a priest to give him the last rites, asked a friend to watch over his family.
c). Inferred from his conduct or reaction of acquiescence when it was communicated to him that his condition is hopeless and he cried or his countenance changed.
d). Inferred from the actual character and seriousness of his wounds, which may justify and acceptance of mortal danger. Example: when the victim pointed out his assailant, he was in agony due to a mortal wound or was gasping for breath.
B. THE DECLARATION MUST CONCERN THE CAUSE AND SURROUNDING CIRCUMSTANCES OF THE DECLARANT’S OWN DEATH/INJURY.
1. The declaration must relate to the why, who, how, where and what, about his own mortal wound. If it concerns the wound of another, it might be admissible under the Res Gestae Rule, or if the declaration is something contrary to the declarant’s interest, it might be admissible as a declaration against interest.
2. Thus if before dying, the victim of a shooting incident told these statements to his friend:. “Pedro shot me and (b) he also shot Peter. (c). Tell my children that the son of Maria is their half brother”. Statement (a) is a dying declaration whereas statement (b) would be admissible as part of the Res Gestae in the prosecution of Pedro for shooting Peter. Statement (c) would be a declaration against interest in an action against the estate of the victim by the illegitimate son.
3. There are two kinds of declarations which, even if they refer to the cause and circumstances, are not admissible as dying declarations: (a) Those which are in the nature of opinions or conclusions. Example: “ I believe Pedro was the one who shot me. He is the only who wanted me killed”, and (b) those which contain hearsay information. Example: “People say it was Pedro who shot me”.
C. THE DECLARATION IS OFFERED IN A CASE WHERE THE SUBJECT OF INQUIRY IS THE DEATH OF THE DECLARANT
1. The case may either be criminal or civil so long as the issue involves the death of the declarant. If a criminal case, it may be for consummated Homicide, Murder or Parricide, and it may be a simple or complex crime as for example Robbery with Homicide, Rape with Homicide, Direct Assault with Homicide, or Multiple Homicide.
2. The civil cases include action for damages arising from the death of the declarant, or claims for insurance.
D. THE DECLARANT MUST HAVE BEEN COMPETENT AS A WITNESS HAD HE BEEN CALLED UPON TO TESTIFY IN COURT.
1. Dying declarations stand in the same footing as testimony given in open court by a witness. At the time of the dying declaration, the declarant has all the qualifications as a witness and is not suffering from any physical or mental ground for disqualification.
2. Thus if the declarant was at that time too drunk, under the influence of drug, mentally insane, or an infant, his statements would not qualify as a dying declaration.
E. THAT THE DECLARATION WAS MADE FREELY AND VOLUNTARILY AND WITHOUT COERCION OR SUGGESTION OF IMPROPER INFLUENCE.
V. FORM AND MANNER OF INTRODUCING DYING DECLARATIONS
A. They may be oral which maybe in the form of answers to questions asked, or voluntary statements or utterances at the instance of the declarant. These may be introduced through the testimony of the person to whom the oral declarations were given or by one who heard them
B. They may be written either in a paper or other solid surface with the use of pen, pencils or conventional writing materials, or with the use of any material by which letters or written symbols are formed, such as blood, lipstick or sharp instrument. The written declaration need not be signed by the declarant. These are introduced by presenting the written declaration if physically possible, else reproductions thereof may be used in substitution or their existence and contents maybe testified to by witnesses
C. It may be in the form of bodily movements such as by pointing or hand, gestures, swinging or nodding of the head, eye movements, or any physical form of communication. These is introduced by the testimony of the persons to who received them as answers to his inquiries, or by those who saw or observed the gestures
D. Where the declarations are in the form of answers to inquiries, there must be observance of the Rule of Completeness: the declarations /statements or answers, must be responsive to the question asked, is not vague or equivocal, such that it provides a complete information to what is asked concerning the injuries of the declarant.
VI. WEIGHT OF DYING DECLARATIONS
A. Dying Declarations do not enjoy any advantage nor do they deserve higher consideration over other evidence. They are not superior evidence. They are in the same level as all other evidence hence:
1. They are subject to the same tests of credibility applied to all types of evidence.
2. The court has the discretion whether to accept or reject a dying declaration or to give it value or not, and how much weight it will accord it.
3. Dying declarations do not automatically result in conviction. They must be corroborated.
B. Dying declarations may be impeached or shown to be unreliable through the following modes:
1. By showing that the witness testifying thereon is not credible or that he is untrustworthy. Example: he has a motive against the accused, he is not fluent with the dialect in which the declaration was made, the possibility of having misheard the declaration, that his attention as focused elsewhere than to listening to the statements.
2. By showing that the declarant is not himself credible. Such as: his having given contradictory or conflicting declarations; ill-will or revenge against the accused or possibility of improper motives, or that his condition is too far gone as to have affected his consciousness or ability to give an accurate description of the incident.
3. By showing the lack of credibility of the declaration itself. Such as: it is hearsay, an opinion, or is not in accordance with the evidence.
C. Dying declarations may be used by either party, though generally it is the prosecution or plaintiff who is expected to use them. However there is no law which denies the accused or defendant the use of a dying declaration as their own evidence, if they believe it is to their advantage, as when it points to other perpetrators, or negate an aggravating circumstance.
Sec. 38. DECLARATIONS AGAINST INTEREST
I. CONCEPT: These refer to any oral or written declaration or conduct by a person which is against his interest provided the person is already dead or unable to testify. The declarant is not however a party to a case. The declaration maybe used against his successors in interest or against third persons. A party to a case may also use it as his own evidence.
II. DISTINGUISHED FROM AN ADMISSION
1. An admission is not necessarily against the interest of the declarant while a declaration against interest is always against the interest of the declarant.
2. In admissions the admitter may be alive while the declarant must be dead or unable to testify
3. The admitter is a party to a case while the declarant is not.
4. An admission is evidence only against the admitter save in case of vicarious admissions and admissions by adoption whereas a declaration may be used as evidence against strangers
5. An admission may be made at any time even during trial, while a declaration must be made before the controversy arose.
III. INTEREST AFFECTED MUST BE REAL AND ACTUAL
A. Civil, Pecuniary or Proprietary.
1. Pecuniary: The declarations may defeat in whole or in part a money claim he has against a person. Example: the heirs of a deceased sued X to collect from him the supposed unpaid consideration of a lot sold by the deceased. X presents the best friend of the deceased who testified that the deceased confided to him that although no receipt was issued, X actually had already over paid.
2. Proprietary: The declarations may affect his property rights. Examples: “ I am a mere administrator of this property”, or “The money is my collection as a salesman only”.
Example: Creditor Z attached the land of a deceased creditor which is actually occupied by X to answer for the debtor’s unpaid debt. X presents a letter written by the debtor prior to borrowing money from Z, which letter advised the family that he is actually a mere administrator of the land which in truth belonged to X.
B. Criminal: The statements may subject him to a possible criminal prosecution.
a). In an arson case the accused presents a letter of X to his girl friend stating that he has to leave the country because he accidentally burned the store of their neighbor.
b). Statements by persons owning up a crime for which another was charged.
c). Statement by the driver of a jeepney that he was very sleepy while driving, is admissible in an action for damages against the operator arising from a collision involving the said driver.
C. Moral:
a). The act of a one man showing he is the natural father of a child, is admissible in a paternity suit against another man.
IV. REASONS FOR ADMISSIBILITY
1. Necessity: Since the declarant is dead, there is no other source from which the court may know what the declarant said, other than the testimony of a witness.
2. Guarantee of Trustworthiness: No person would declare or do something against his own interest unless it si true. People are cautious about making statements adverse to themselves and ever they do, it is presumed that the statements are true.
V. REQUIREMENTS FOR ADMISSION
1. The declarant is dead or unable to testify. Inability to testify includes situations where the declarant can no longer be presented in court due old age, physical disabilities insanity and similar mental illness, or he cannot be located despite diligent efforts to locate him.
a). If he is alive or present and can be presented in court, then the testimony of the witness would be inadmissible as hearsay.
2. The declarant must have competent knowledge about the matter subject of his declaration.
a). A person is presumed to know certain matters about himself such as financial status, condition of his business affairs, his interest in certain properties, his participation in an act, or in a crime.
b) Thus, in an action for money for services rendered, plaintiff presented a letter written by the defendant’s son to the plaintiff stating that he knew his father owed plaintiff for services rendered. It was shown that the son did not know the true nature of the transaction between the plaintiff and his father- the defendant.
3. There is absent a motive to falsify.
PEDIGREE
I. CONCEPT: It covers all matters or information relating to a person’s:
1. Descent: his paternity, or genealogy or family tree. Example: who were the ancestors: the circumstances of their birth, marriage, death, who were legitimate and who were not.
2. The circumstances of a person’s own birth, marriage, death, legitimacy.
3. Descendants or issues if he has any including the circumstances of their birth, marriage, death
4. Sibling, i.e. brothers or sisters, whether by blood or b affinity, whether full or half blood, legitimate or illegitimate or by informal adoption, as well as circumstances of their birth, marriage, death, families.
5. All facts concerning family history intimately connected with pedigree e.g. the story that a brother was lost and presumed dead when in truth he was sent to an institution due to his abnormality)
However pedigree does not extend to the question of citizenship or to legal adoption.
II. PROOF OF PEDIGREE
A. The best proof of a person’s pedigree would be
1).The records kept in the Office of the Local Civil Registry
2). As provided by Article 172 of the Civil Code as to filiations and
3) By DNA examinations.
B. However if the foregoing are not available, proof consists of the presentation of a witness who testifies to:
1. The declaration or admission of a relative by birth or by marriage in accordance with Section 39.
2. The Family Tradition or reputation provided the witness testifying is a member of the family either by consanguinity or affinity pursuant to section 40.
3. Entries in Family Bibles, Family Books, Charts, Engraving, Rings, and the like, pursuant to section 40.
III. PROOF BY DECLARATION OF A RELATIVE (Sec. 39)
A. Reason for admissibility: ( Note that a witness is testifying to the statements of a third person - the relative- who is not available for cross-examination).
1. Necessity-to prevent a failure of justice since matters involving the descent or relationship of a person occurred long before the case was filed and only a few might still be available to testify thereon.
2. Guaranty of Trustworthiness- members of a family are supposed to know those matters affecting their own family
B. Requirements for Admissibility
1. The pedigree of a person is in issue or is relevant to the main issue
a). Example: Cases involving inheritance, support, filiation, use of surnames, parricide, incest rape/acts of lasciviousness or recognition.
2. The declarant is dead or unable to testify. If he is available to testify then the testimony of the witness quoting the declarant is inadmissible.
3. The declarant and the person whose pedigree is in question are related to one another.
a). The relationship may be by blood or by affinity and need not be close in degree.
b). The relationship must be legitimate unless the issue is the legitimacy itself. (Personal opinion: this is based on bias against illegitimates. Suppose the illegitimate relative has been accepted by the family?)
c). Non-relatives, no matter how close or intimate they may be, such as close friends, house helps, nannies, are not included and any statement they make upon a person’s pedigree are inadmissible.
4. The declaration must have been ante litem motam ( before the controversy arose) in order to ensure the declaration was not the result of bias or improper motive.
5. The relationship between the declarant and the subject person must be established by independent evidence independent of the declaration.
C. Examples
1. In the case of FPJ whose citizenship hinged on whether he was acknowledged by the father, the court admitted an Affidavit of a sister leaving in California the contents of which declared that FPJ was recognized by their father.
2. Maria wants to inherit as full heir from Pedro. X testifies that Maria is the sister of Ellen who is married to Juan, now dead. X presents a letter from Juan stating that Maria and Ellen are half-sisters because the father of Maria is not Pedro but another man.
3. AB is charged with parricide for killing X. A witness testifies that X is the illegitimate child of AB per information coming from the deceased son of AB.
IV. PROOF BY FAMILY REPUTATION OR TRADITION (Sec. 40)
A. Concept: This refers to the knowledge or beliefs of a certain family handed from one generation to another, or to practices or customs which are consistently observed or engaged in by said family. A member of said family is the one testifying to these matters.
B. Examples:
1. The practice of making offerings to a deceased person, burning of incense, making of libations, visiting the grave, or including the name of a person in the family prayers, are evidence the dead is related to the family.
2. The family belief by a family in Bontoc, Mt. Province, that their surname ANDAYA was adopted by their grandfather in honor of a teacher from Tagudin, Ilocos Sur, who took care of said grandfather.
3. Stories of a grandfather that he was born on the day Bataan fell to the Japanese, or an uncle who, during the earthquake, went to the mountains and was probably buried in a landslide.
4. Practice of a family of inviting an individual to clan/family reunions.
5. Belief of a family in Aringay, La Union that the grandfather of Noli de Castro left that town in a particular year and migrated to Visayas
V. PROOF BY ENTRIES IN FAMILY BIBLES, BOOK CHARTS, ENGRAVINGS, RINGS AND THE LIKE. (Sec. 40).
A. Entries may include the names, and date and place of births, marriages, death, and other relevant data, about a relative, as well other important family occasions.
B. Other examples: pictures, portraits, baptismal certificates, the name and date appearing in wedding rings, family tree charts
C. Names of relatives in published “thank you messages” in obituaries as well as in wedding invitations.
COMMON REPUTATION (Sec. 41)
I. RULE: Common reputation existing previous to the controversy respecting facts of public interest more than 30 years old, or respecting marriage, or moral character, may be given in evidence. Monuments and inscriptions may be received as evidence of common reputation.
A. CONCEPT: Common reputation refers to the prevailing belief in the community as to the existence of certain facts or aggregates of facts arrived at from the people’s observations, discussions, and consensus. There is absent serious opposition, adverse or contrary opinion. They are not just rumors or unverified reports or say-so.
B. What common reputation may prove
1. Matters of public interests more than 30 years old or those affecting the people as a whole and matters of general interest or those affecting the inhabitants of a town, province, or barangay. (Localized matters)
a). They must affect the community as a whole and not just certain groups
b). Examples: boundaries of lands, existence of a road, a waterway or irrigation canals; that a private right exists in a public land, the reputation of a certain area as the :red district”; the birth of a town or barangay, how a town or city got its name, that a land has long been regarded as a communal land.
c). It can not be used however to establish ownership over private lands.
d). Proof of common reputation:
(i). Through the testimony of persons who are in a position to know the public or general interest. He may testify thus: “The old folks told us the land has always been regarded as communal”
(ii). By monuments, and inscriptions such as old road/streets signs; old maps and old surveys
2. Moral character or opinion of people concerning the moral character of a person provided the opinion is formed among the people in the place where a person is known, such as in his work place, residence, school. Examples:
a). The reputation of one as an honest, diligent and industrious laborer, or a fair and kind employer, among their co-workers; or as lazy
b). As a trouble maker in the barangay
c). As a conscientious teacher
d). As a person with a hostile attitude or as a belligerent and easily provoked person
e). As a girl with loose morals
3. The marriage between two persons
a). The reputation need not be from family members. Thus H and W are known as husband and wife and are addressed or that the community regard W as the wife of H and vice versa
b). But where there is a formal marriage or documentary proof thereof, reputation of non-marriage is not admissible.
PART OF THE RES GESTAE
I. RULE: Section 42: Part of the res gestae- Statements made while a startling occurrence is taking place or immediately thereafter, or subsequent thereto, with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So also, statements accompanying an equivocal act and material to the issue, and giving it legal significance, may be received as part of the res getae.
II. CONCEPT.
1. Res gestae literally means “things done”. It refers to an event, an occurrence, a transaction, whether due to the intentional or negligent acts of a person, or an accident, or due to the action of nature. All these events are set in a frame of surrounding circumstances which serve to emphasize the event or to make it standout and appear clear and strong.
2. These surrounding circumstances may consist of statements, utterances, exclamations or declarations either by the participants to the events, or by the victims, or by mere spectators. These persons may not be known or are unavailable for cross-examination and what they declared, uttered or stated, or exclaimed are repeated by the witnesses who heard them.
3. They are the events speaking for themselves thought the instinctive and spontaneous words or acts of the persons involved or present thereat.
III. CLASSIFICATION.
A. Spontaneous Statements. Those made by a person-whether a participant, victim or spectator- while a startling occurrence is taking place, or made immediately prior, during or subsequent thereto.
B. Verbal Acts or Contemporaneous Acts. These are utterances or statements, which accompany some act or conduct which explains or gives legal significance to the act.
.
IV. SPONTANEOUS STATEMENTS.
A. Requirements for admissibility
1. There must be a startling occurrence or a happening which was sudden or unexpected- not anticipated- which is capable of producing nervous excitement such that it may induce or incite a person to make an utterance representing the person’s actual impression about the event.
a). Examples of a startling occurrence: sudden death, collision between vehicles and other vehicular accidents, a fight in progress, a snatching or robbery, a fire breaking out, a suicide, an act of lasciviousness, panic breaking out.
2. The statement must relate to the circumstances of the startling occurrence or to the what, why, who, where and how of an event.
a). Examples: statements describing what is happening or referring to the persons involved such as “ Si Pedro sinasaksak”, ‘Tama na, patay na yan”, “yong mama, mabubondol”. “Mamang driver, dahan dahan, mabangga tayo”. “Snatcher, help”. B). They include screams and cries of alarm, cries of pain by victims, or words by a participant such as “ Matapang ka ha? OOm”.
c) Exited words heard over the phone by a policeman are also included.
3. The statement must be spontaneous.
a) The utterances or declarations were instantaneous, and instinctive. They were reflex words and not conclusions or products of a person’s conclusion, impression or opinion about the event. The person had no time to make a reflection about the event. Thus it is said that they are the events speaking through the person.
B. Factors to determine spontaneity especially to statements made after an occurrence.
1. The time which elapsed between the occurrence and the making of the statement. The declaration should not have been made after a period of time where it is possible for a person to reflect, analyze, and reason out. There is no yardstick to measure the time which elapsed although the time must not of such length so that the declarant can be said to be still under nervous excitement.
a). The utterance by a rape victim soon after being rescued is spontaneous
2. The place where the statement was made in that whether it was within the immediate vicinity or situs of the event or some distance away.
3. The condition of the declarant at the time he made the statement- whether he was in a cool demeanor so that he could have carefully chosen his words, or he is still in a state of nervous excitement. If as a victim, his groans are indicative he is still under the influence of the event.
4. The presence or absence of any intervening circumstance between the event and the making of the statements such as those which may have diverted a person’s mind and restored his mental balance, or which in any manner might have affected his statement.
Examples:
a). In a collision, a driver notices that several passengers are mortally injured, whereupon he exclaims: “ That bus was too fast”.
b). The arrival of the friends of the victim prompted him to shout, “ he, he is the one who mauled us for no reason”.
c). A person lost consciousness and then recovers whereupon he shouts: Juan, have mercy”
5. The nature and circumstances of the occurrence itself in that it must really be serious and capable of producing lasting effect.
C. Relation to a Dying Declaration.
1. When a statement does not qualify as a dying declaration for failure to comply with the requirement’s the latter, it may however be admitted as part of the res getae. This is under the principle of multiple admissibility. This occurs: a) when the victim survives b). there was no consciousness of impending death c). when the statement relates to the injury of another and not the declarant.
2. Example: The victim said: “ Pedro shot me. He also shot Juan”. The first is a dying declaration if the victim dies, otherwise as part of the res gestae. The second is admissible as part of the res gestae in a case involving Pedro for shooting Juan.
D. Illustrations
1. A Policeman testifies that he saw a commotion and while proceeding thereto, he heard several screams such as “ Awatin nyo si Pedro”, “Pedro maawa ka”. Such screams made by unidentified persons are part of the res gestae.
2. A security guard testified that he saw two persons entered the building and after some minutes they came out running. He asked what was the matter and one of the two answered: “napatay naming si Juan”.
V. VERBAL ACTS OR CONTEMPORANEOUS STATEMENTS.
.
A. CONCEPT: These are utterances, declarations or oral statements which accompany some act or conduct which explains or gives legal significance to the act.
B. REQUIREMENTS:
1. There must be an act:
a). which is equivocal or one susceptible to different meanings such as : (i) the act of handing money to another (ii) the act of chopping down a tree on a piece of land (iii) the act of building a fence.
b). The act may be a continuing act or that which takes place within a span of time such as the regular deposit of money in the account of another for a year
c). There are however certain acts which the law considers as self-explanatory (res ipsa loquitor) such as criminal acts of lasciviousness, injuring or killing another.
2. The oral statement must explain the act. Thus the act of handing over money to another was accompanied by the statements: “here is payment of my debt”, “go buy yourself lunch”. The man chopping a tree exclaimed; “This land is mine”, indicating an assertion of ownership.
3. The act is relevant to the issue. Example: In a prosecution for violation of the Anti Fencing Law, where the accused was seen receiving the cellphone, this statement of the giver is admissible: “Itago mo yan at huwag na huwag mong ipakita kahit kanino”
4. The statement is contemporaneous with the act in that it was made at the time and place of the act and not afterwards.
( NOTE: THE FOLLOWING EXCEPTIONS ARE IN THE
FORM OF WRITTEN STATEMENTS).
ENTRIES MADE IN THE COURSE OF BUSINESS
I. RULE: Sec. 43. Entries made at, or near the transaction to which they refer, by a person deceased, outside of the Philippines, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the regular course of business or duty.
II. CONCEPT: These refer to written accounts or recording of transactions or events, whether pertaining to commercial activities or not, so long as they were made by a private person
III. REQUIREMENTS
IV. EXAMPLES:
I.
II. TN> nuut
ENTRIES IN OFFICIAL RECORDS.
I. RULE: Sec. 44. Entries in official records made in the performance of his duty by a public officer of the Philippines or by a person in the performance of a duty specially enjoined by law are prima facie evidence of the facts therein stated.
I. Concept: Official records refer to official documents containing data about persons, places, conditions or properties, state of things or transactions, prepared or made by a public officer, or by another especially enjoined by law
The situation concerns facts about which a public officer has to testify on, but in lieu of his personal testimony, the official document prepared or kept by him are instead presented to the court.
II. Reasons for admissibility:
1. Necessity: difficulty of bringing the officer to court as when he has been separated from the service, or assigned to a place outside the court’s jurisdiction, as well as the great inconvenience caused to the officer, and the disruption of public service during his absence from his office. Thus the court has to rely on the official records prepared by him.
2. Guaranty of trustworthiness: The entries are presumed to be true and accurate due to:
a). The sense of official duty which led to the making of the statement
b). Fear of penalty in the event of an error or omission
c). In the routine (mechanical) and disinterested ( lack of personal involvement or interest) origin of most of the statements
d). In the publicity of the record, which makes more likely the prior exposure of errors and their consequent correction
III. Requirements for admissibility:
A. The person who made the entry must be a public officer, or by another especially enjoined by law
B. The making must be in the performance of the officer’s duty or in the performance of a duty especially enjoined by law
1. The keeping of the record must be due to any of the following reasons:
a). It is required by law. Examples:
(i). records of birth, marriage, adoption an death kept by the Local Civil Registrar
(ii) List of voters and results of elections by the COMELEC Registrar
(iii) List of Eligibles by the CSC
(iv) List of Professionals by the PRC Record
(v) The Day Book of the Register of Deeds
(vi) List of marriages by religious persons licensed to solemnize marriages
(vii) Sheriff’s Return on a writ of execution
(viii) Court docket officer
(ix) The Notarial Registry of a Notary Public
(x) Ship Log Book
b). The nature of his work requires the keeping of records i.e the records are convenient and very appropriate modes of discharging the officer’s duty.
Examples: (i).The List of those applying for a Prosecutor’s Clearance (ii).The Visitor’s Log Book of the Jail Warden (iii).Record of Cases heard by the Barangay
Police Blotter
c). The record is required by a superior. Example: The record of the whereabouts of employees
C.. The officer must have sufficient knowledge of the facts recorded by him acquired personally or through official information ( Personal or official knowledge)
1. Official knowledge: the facts were supplied by subordinates who have personal knowledge of the facts and whose duty involves ascertainment of such facts
2. Examples: (i). Tax Declarations signed by the Assessor (ii) Building Permit by the City Engineer (iii) Birth/Death Certificate issued by the Local Civil Registrar
IV. Probative Value: The entries are merely prima facie evidence of the facts stated and may be rebutted or nullified but if the entry is of a fact, but not to those made in excess of official duty, or those not required to be recorded.
SEC. 45. Commercial List and the Like
Sec. 45. refers to Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter as stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein.
Concept: This refers to journals, list, magazines, and other publications and similar written or published works carefully researched an investigated and especially prepared for sue in certain trades, industry or profession, or even by the public, which rely on them.
The authors or publishers are private persons or entities
Reason for admissibility
1. Necessity in that the authors, compilers, or publishers may not be available to testify such as when they are foreigners, or already dead
2. Trustworthiness in that these works were the product of research as to assure their correctness or accuracy
Examples:
Legal Profession: the SCRA though published by a private entity for profit i.e the Central Lawbook Publishing Co.
Banks and financial institutions rely on the FOREX
Insurance Companies rely on the Actuarial and Mortality Tables
The public on Business Phone Directories
Result of Stock Transactions/Exchanges
Census Reports
Price Index of minerals, metals
But not tourist guide brochures
9. Calendars
Learned Treatises under section 46.
I. CONCEPT: These are published treatises, books, journals on a subject of history, sciences, law and arts, which were carefully researched or subjected to scrutiny and investigation. The authors are scholars or experts on the subject or it is a group of researchers.
II. REASON FOR ADMISIBILITY:
1. Necessity: the inaccessibility or, or inconvenience to, the authors or researchers.
2. Trustworthiness in that the authors have no motive to misrepresent and awareness that the work will be subjected to inspection, scrutiny and refutation, and criticism; the works were carefully researched before being published and were purposely geared towards the truth
III. Examples:
1. Textbooks in history such as Gibbons The Rise and Fall of the Roman Empire, books on Philippine History by Agoncillo and Constantino
2. Text and reference books/materials in medicine and its branches
3. Books, periodicals and writings in the exact sciences such as algebra, mathematics, the logarithmic tables, table on weight and measurements
4. Law books quoted as references by the Supreme Court such as Evidence by Francisco ( but not anymore Legal Medicine by Solis as it is obsolete)
5. Commentaries on law subjects by recognized legal luminaries such as those by Wigmore, Clark and Jones on Evidence; Manresa, Sanchez Roman and Scaevola on Civil Law
6. Reference Books and Books on Knowledge such as dictionaries and thesaurus, encyclopedias, yearbooks
7. But not Publications on theology and religion, literature such as novels and other works of fiction even if the background or setting is a historical fact; philosophy.
IV. How introduced as evidence:
1. The court takes judicial knowledge of such publications as learned treatises
2. An expert witness testifies that the writer or author is a recognized authority in the subject
Testimony or Deposition in a former Proceeding under section 47
I. Concept: A witness is sought to be presented in a present case but he is dead, unable to testify such that in lieu of his personal testimony, what is presented is his testimony in a prior proceeding.
II. Requirements
A. The witness is dead or unable to testify. The witness may be suffering from illness or from a mental disqualification such as having become insane or loss of memory due to age. His whereabouts is unknown despite diligent efforts to locate him or he was prevented by a party from appearing as witness, either by force or by deceit or by persuasion. It does not cover a situation where the witness refuses to come to court.
B. Identity of the parties. This may refer to identical parties or the parties are their successor in interest or representatives
C. Identity of issues. The issue or matter, in which the testimony of the witness is sought is common to both cases, even if there are other issues involved or that the form of action is different
Examples of cases where there is a common issue: (i) ejectment and recovery of right of ownership as both would involve the question of who has physical possession (ii) an action for damages based on an act or omission which was the subject of a prior criminal case such as killing, slander or libel or estafa.
D. Opportunity for cross examination by the opponent in the first proceeding
1. If the opponent, through his act or negligence, did not cross examine, or lost the right, the rule still applies. Example: the defendant was declared in default and plaintiff then presented evidence ex parte
2. Thus if the proceedings in the prior administrative cases was summary and not adversarial/confrontational but was decided based on affidavits and position papers, the rule does not apply
III. How to present: Present the Transcript of Testimony which the parties may stipulate on.
OPINION EVIDENCE
Sec. 48. General Rule. The opinion of a witness is not admissible except as indicated in the rules.
I. Concept of an opinion as evidence. This consists of the conclusion or inference of a witness on the existence or non-existence of a face in issue. The opinion maybe based on facts personally known to him or as relayed to him by others.
II. Evidentiary Value. Generally opinions are not admissible because:
A. The making of an opinion is the [proper function of the court. The witness is supply the facts and for the court to form an opinion based on these facts.
B. Opinions are not reliable because they are often influenced by his own personal bias, ignorance, disregard of truth, socio-cultural background, or religion, and similar personal factors. Thus there maybe as many diverse opinions as there are witnesses.
C. The admission of opinions as evidence would open the floodgate to the presentation of witnesses testifying on their opinion and not on facts.
III. Examples of matters on which opinions are irrelevant
1. The final outcome of a case such as whether an accused should be acquitted or not, or who should win a case, the amount of damages to be awarded to the winner
2. The question of care or negligence
3. Motives or reasons behind the action of a person, unless these were relayed to the witness
4. Valuation of properties
5. Cause of an event as being due to an accident, mechanical defect or human error or action of nature
IV. Exceptions or when an opinion is admissible as evidence
1. In case of expert opinions given by an expert pursuant to Section 49
2. In case of lay opinions on certain specific matters pursuant to section 50.
EXPERT OPINION
Sec. 49. Opinion of an expert- The opinion of a witness on a matter requiring special knowledge, skill, experience or training, which he is shown to possess, maybe received in evidence.
I. Who is an expert- A person possessing knowledge or skill not usually acquired or possessed by other persons, in regard to a particular subject or aspect of human activity. Expertise is acquired through any of the following manners:
1. By formal education such as in the case of lawyers, physicians, engineers, dentists, metallurgists, chemists
2. Through special training or seminars as in the case of ballisticians, weapons experts, finger print experts, questioned-documents expert, masseurs, pilots
3. Through experience based on the exercise of a profession, trade, occupation, industry such as carpenters, wielders, machinists or mechanics, deep-well diggers
4. Through hobbies as in the case of stamp collectors, coin collectors, gun collectors, ornithologists, photographers, animal breeders,
5. Through careful study and research as in the case of those who study old civilizations, or various aspects of medicine
II. Requirements for the Admissibility of Expert Opinion.
A. The subject of inquiry requires the opinion of an expert, or that the fact in issue requires the opinion of an expert.
1. The use of an expert is becoming more frequent in order to explain how and why things happened the way they did or didn’t happen the way they were supposed to, as in the following cases:
a). In personal injury cases where physicians or surgeons are needed to prove the cause and effect of certain injuries, so also economist as to the amount of income which was lost
b). Products liability cases where there is need for reconstruction experts to prove the defects in a certain products. Such as a car accident being due to factory defects in the wheel, or a mechanical defect attributable to the manufacturer
c). Actions relating to constructions where there is need for engineers and architects as injury to a bridge which collapsed, or breach of contract in that the building was constructed poorly
2. Traditional areas where expert opinion is used:
(i). Questions involving handwriting
(ii). Questioned documents
(iii). Fingerprints
(iv). Ballistics
(v). Criminal cases involving injuries and death
(vi). Drug cases
(vii). Value of properties
(viii). Blood groupings
(ix). DNA Profiling
(x) Forensics
B. The witness is shown to be an expert. It must be shown that the witness possesses certain skills or knowledge and is therefore in a position to assist the court based on these skills or knowledge
III. Manner of showing the witness is an expert
1. By asking the adverse party to admit and stipulate that the witness is an expert. This is where the witness regularly appears in court as an expert and is familiar to the court, or where the witness occupies a position requiring certain knowledge or skill, as a medico legal officer.
2. Through the process known as “Qualifying the Expert”- propounding questions to the witness concerning his background and eliciting answers from the witness showing he possesses special knowledge or skill on the matter on which he is to testify
3. If the expertise is not admitted and the witness is not properly qualified, he is to be regarded as an ordinary witness and may be objected in giving an opinion
IV. Components of Qualifying the Witness
1. Show the general professional background. Questions propounded are directed to bring about the facts concerning his (a) education (b) degrees obtained (c) academic honors or scholarships granted or earned (d) licenses obtained (e) employment history, positions held, number of years in his position , promotions earned
2. Show the specific professional background. Questions asked are directed to bring out answers to the specific facts or skills such as (a) special trainings undergone (b) publications authored (c) membership in professional associations (d) as lecturer or speaker or resource person (e) how often he was called as a witness and (f) particular work experience which bear directly on the situation about which he is testifying
V. Basis of Opinion or How to elicit the Expert’s opinion
A. Kind of Facts as Basis for the Opinion:
1. Facts personally known to the expert or about which he has first hand knowledge.
2. Opinion maybe based on facts about which he has no personal knowledge or first hand knowledge, but are based either (i) on the report or facts as found by another expert who had first hand knowledge, provided the report is not hearsay or that the other expert had testified and subjected to the opportunity for cross-examination or (ii) on facts already testified to by witnesses and established by the records of the case
B. Manner of Questioning
1. Where the basis are facts personally known to the expert, these facts must first be elicited from the witness after he may be asked directly whether he has any opinion about them and to state what his opinion is.
Example: The medico legal officer who conducted the autopsy will first be asked to state his findings as to the nature, number, location, description, depth, trajectory, etc, of the wounds of the victim after which he is asked to state his opinion as to the cause, weapon used, position of the victim and assailant, cause of the death, etc..
2. By the use of “Hypothetical Questions” when the opinion is based on facts not personally known to the witness.
a). It is a question which, for purposes of the answer, assumes certain facts which have counter parts in the evidence, and asks the witness to give an opinion as to certain matters based on these facts. Since the witness has no personal knowledge of these facts, he is told these facts and then is asked to assume the facts to be true, and finally to give an opinion.
b). The question must incorporate or refer accurately to all the relevant facts- as proven- as basis for asking the opinion
c). In case of physicians, the phraseology is usually thus: “Assuming all these facts to be true… within a reasonable degree of medical certainty, what might have caused the injuries…?
3. The expert may asked to state that his opinion is supported by learned treaties or shared by others in his class
VI. Weight of Expert Opinion
.
1. Courts are not bound as the opinions do not produce conclusive effect but are regarded as persuasive and advisory which the court may or may not consider.
2. Opinions are to be treated on the same level as any other evidence.
3. Factors to be considered in giving weight, or points to show the opinion is of no weight
a). The qualification of witness : (i) The degree of learning and academic background (ii) The experience, professional standing and training, or his being abreast with the latest developments
b). The reliability of the opinion: (i) The relative objectivity of the witness such as the presence or absence of personal or professional bias or motive and (ii) the degree of concordance of his opinion with the facts proven or the basis and logic of his conclusions
SUGGESTED CHECKLIST FOR QUALIFYING AN EXPERT
(Taken from : Fundamentals of Trial Techniques by Thomas Mauet, Professor of the University of Arizona)
1. Name, address and personal circumstances
2. Business or occupation: what is it-length of time-description of field company or organization joined- capacity and length of time –where located-prior position-description of positions
3. Education: (a) undergraduate-degree, year of graduation-honors obtained (b) graduate school- degree- when, area of study
4. Training: formal course-what-when-where-under whom-length of time
5. Licenses: what-when-reviewed-specialty- when-requirements
6. Professional associations:
7. Other background: teaching positions-publications-lectures-consultancy work
8. Expert witness at trials: how many- which side
9. Experiences in Specialty: (a) type of examination commonly done- how many
Example: Private Physician who treated a patient
A. Qualifications:
Licensed: where and when
Education and training: college/medical school-when-degree-internship-residency
Specialty training-specialty boards-requirements
Hospital staff membership
Teaching positions
Publications and lectures
Medical Society memberships
Other honors
Previously testified as an expert
B. Experience
Description of practice
Number of patients
Examination of similar types
Experience with x-rays, lab test, etc
C. Examination of Patient
1. Description of office records
2. History of the patient
3. Examination conducted
a). complaint (symptoms)
b). positive findings or negative findings
c). x-ray findings
d). lab test findings
D. Diagnosis: tentative and definite
E. Treatment (chronological) hospitalization-operation-drug-casts
F. Subsequent examinations
G. Patient’s Present Condition based on last examination
H. Opinion on causation
I. Prognosis: opinion on prospects for complete recovery
J. Amount of present and future medical service
LAY OPINION
Sec. 50. Opinion of ordinary witnesses- The opinion of a witness for which proper basis is given, may be received in evidence regarding-
(a) The identity of a person about whom he has adequate knowledge
(b) A handwriting with which he has sufficient familiarity
(c) The mental sanity of a person with whom he is sufficiently acquainted.
The witness may also testify on his impressions of the emotion, behavior, conditions or appearance of a person.
I. Opinion on the identity of a person. Where the issue is whether a particular person is involved in an event. As for example: 1). the accused sets up alibi or defense of mistaken identity; 2). in claims for insurance, determining whether a body is that of the insured 3). determining who be the victims
A. General Method of Identification
1. Identification by scientific methods: by the teeth; fingerprints, foot prints and by DNA analysis
2. By Lay Opinion: by face, physical appearance, height, body built, sex, color of hair, racial features, mannerisms, gait, clothing speech , defects, tattoos or marks or scars and other marks on the body, or by any factor which distinguishes him from another. .
a). Identification of a person is not solely through knowledge of his name. In fact, familiarity with physical features, particularly of the face, is the best way to identify a person. One maybe familiar with the face but not necessarily with the name of a person. It does not follow therefore that to be able to identify a person, one must necessarily know his name. Example: precisely because of the unusual bestiality committed before their eyes, eyewitnesses, especially victims of a crime, can remember with high degree of reliability the identity of criminals.
b) The witness must however be able to explain his basis of identification
3. By the style of writing
B. In-court and Out-of-Court Identification in criminal cases. In-court identification maybe influenced by the reliability of the out-of-court- identification. The latter consists of either:
1. By the police Methods of Identification of suspects
a) Show-ups-where the suspect alone is brought face to face with the witness for identification
b). Mug file shots or based on the “Rouge’s Gallery”
c). Line-ups where a witness identifies the suspect form a group of persons lined up for the purpose
2. By circumstances: Totality of Circumstances Test. Several factors are to be considered, to wit:
a). Witness’ opportunity to view the criminal at the time of the crime. These include matters such as presence of light, distance of viewing, length of time of the event; presence of obstructions to line of visions, the position of the witness in relation to the suspect
b). The witness’ degree of attention at that time: to what or who was he focused on, as well as the presence of distractions
c). The accuracy and consistency of any prior descriptions by the witness
d). The level of certainty demonstrated by the witness at the time of the identification. Example: the reaction of a victim upon seeing the suspect
e). The length of time between the time of the occurrence and the time of the identification
f). The suggestiveness of the identification process.
C. Concept and Types of Positive Identification
1. Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the crime.
2. First Type: As direct evidence: where a witness, as an eyewitness, may identify a suspect or accused to the very act of the commission of the crime
3. Second Type: As part of circumstantial evidence: where a witness may not have actually witnessed the very act of the commission of the crime but is still able to positively identify a suspect or accused as the perpetrator of a crime as when, for instance, the suspect/accused is the person last seen with the victim before or right after the commission of the crime ( Baleros vs. People, 483 SCRA 10, Feb. 22, 2006)
II. Opinion on Handwriting. A handwriting maybe proved to be that of a particular person by any of the following:
1. By the opinion of an expert
“the opinions of handwriting experts, although helpful in the examination of forged documents because of technical procedure involved in the analysis, are not binding upon the courts. As such, resorts to these experts is not mandatory or indispensable to thee examination or the comparison of handwriting. A finding of forgery does not depend entirely on the testimonies of handwriting experts, because the judge must conduct an independent examination of the questioned signature in order to arrive at a reasonable conclusion as to its authenticity ( G& M Phil. Inc. vs. Cuambot 507 SCRA 552)
2. By the admission of the author/owner of the handwriting
3. By the testimony of witnesses or those who actually saw the person write, they maybe subscribing witnesses or eye witnesses
4. By the testimony of those who have gained sufficiently familiarity with the handwriting of the person, under section 50.
a) By the fact that he has seen writing purporting to be that of the other person upon which he has acted or been charged. Example: persons in receipt of demand letters, notices, purchase orders, letters of inquiry, directive, memorandum, letters of authority
b) Familiarity has been acquired due to close personal, business, social or professional relations which include the regular receipt, sending and reading of mutual written hand-written communications between the witness and the other person. Examples are (i) Personal or social relations such as pen-pals, spouses, lovers, classmates (ii) Business such as between the employee such as secretary and employer, teacher and student
5. By the testimony of those who are in receipt of reply letters ( Identification by subject matter)
6. Identification by the court based on a comparison between the genuine handwriting and the one in issue
7. Identification by the style of writing
Note: Familiarity with signature is not necessarily familiarity with handwriting and vice-versa. ( The application of section 50 may be lessened due to increasing frequency of communications by e-mail, or machine prepared communications, and other modern gadgets.)
1. An allegation of forgery and a perfunctory comparison of the signature/handwritings by themselves cannot support a claim of forgery, as forgery cannot be presumed and must be proved by clear, positive and convincing evidence and the burden of proof lies on the party alleging forgery.
Criteria to determine forgery or falsification: per Ladignon vs. CA ( 390 Phil. 1161 as reiterate din Rivera vs. Turiano ( March 7, 2007)
The process of identification must include not only the material differences between or among the signatures/handwritings but a showing of the following:
(i) the determination of the extent, kind and significance of the resemblance and variation ( of the handwriting or signature)
(ii) that the variation is due to the operation of a different personality and not merely an expected and inevitable variation found in the genuine writing of the same writer
(iii) that the resemblance is a result more or less of a skillful imitation and not merely a habitual and characteristic resemblance which normally appears in genuine handwriting
III. Opinion on the sanity of a person.
There are two instances when an ordinary person may testify on the mental sanity or state of mind of a person:
1. Under the Civil Code it permits the opinion of a subscribing witness to a writing the validity of which is in dispute in that the sanity or state of mind of a party thereto is put in issue. Examples: (a). An attesting witness to a will may give his opinion on whether the testator was of sound and disposing mind (b) A subscribing witness to a contract may give his opinion that the party was fully conscious and aware of the nature of his acts
2. Under section 50 of Rule 130 in that it allows the opinion of an intimate acquaintance who may give his opinion based on the external conduct of a person. Examples are family members, immediate neighbors, house hold helps, office and business acquaintances. Thus where the accused puts up insanity as a defense, his friends, relatives and family members are competent to testify on his mental sanity. But not strangers or casual acquaintances
IV. Opinions on the emotions, behavior, conduct or appearance of a person.
1. Examples: (a) emotions: that a person is angry, agitated, exited, tense, nervous, hesitant. Happy, elated, grateful, afraid (b) condition or appearance- as unkempt, dirty, well groomed, drunk, tired, sleepy, haggard, sickly
2. But a witness may not give his opinion on the motive, reason or purpose why a person did or did not do an act unless these were communicated to the witness, such as jealousy or revenge, or financial reward.
V. Instantaneous impressions of the mind.
1. These include opinions on the conditions or state of things, or of persons or things in motion such as on the weather, speed of vehicles, distance, value of his personal things or property, or value of services
VI. Opinion on the age of a person.
As a general rule, the age of person maybe established by: (a) the record of birth (b) Opinion of an expert (c) Opinion of an ordinary witness who is acquainted with the person whose age is in question, such as a relative, a contemporary, persons in the know in the community where he lives, as well as (d) Family tradition, entries in family records
CHARACTER EVIDENCE
I. INTRODUCTION. Section 51 provides the general rule that character evidence is generally not admissible as evidence except in the cases specified therein.
II. Concept of Character As Evidence
1. Character is the sum total of all the traits of a person which distinguishes the person from others. They include the physical, mental, emotional and psychological attributes of a person. These maybe genetically acquired, or inherited or in-born, such as a person’s sex, height, physical appearance. Or they may be acquired and developed such as personality and behavioral characteristics due to virtues or vices, such as being bad, immoral, honest, lazy, anti-social or friendly.
Character is what a person truly is.
2. Reputation on the other hand is the estimation of a person by other people, or what people think a person is. Character is not always one’s reputation as people may pretend and present a public face or image different from what they are in private. One may have a good reputation but a bad character and vice-versa.
3. What a person thinks of himself is either his illusion or delusion
III. Proof of Character
1. By personal opinions- this is not allowed
2. By specific conduct- this is also not allowed
3. The only method allowed is proof of reputation in the community or place where a person is known by persons acquainted with him. Although it may happen that the reputation is not always the character.
IV. Coverage of the Rule. Where the rule allows the introduction of character evidence, it is understood to be limited to MORAL CHARACTER, the possession by a person of the qualities of mind and morals distinguishing him from others. This is limited to:
1. Good Moral Character which includes all the elements necessary to make up such a character as honesty, veracity in all professional, business, commercial intercourse or dealings of a person; the virtue of chastity, or those character which measures up as good among people, or that which makes a person look upon as being up to the standards of good behavior and upright conduct.
2. Bad Moral Character or those which defines a person’s tendency to be of loose morals, evil, to be violent, dishonest, to disregard law and authority and the welfare of the community
V. Reason for the General Rule on Inadmissibility
Character is highly irrelevant in determining a controversy. If the issues were allowed to be influenced by evidence of the character or reputation of a party, the trial would have the aspect of a popularity contest rather than a factual inquiry into the merits of the case. After all the business of the court is to try the case and not to try the man for a very bad man may have a very good case, in much the same manner that a very good man may have a very bad case.
VI. Rule in Criminal Cases
1. Moral Character of the Accused.
a). The accused enjoys the presumption of good moral character but he is given the privilege of proving a particular moral character if it is “pertinent to the moral trait involved in the offense” i.e. the character evidence must be relevant and germane to the kind of act or omission charged.
(i). In estafa or embezzlement or malversation the moral trait is that of dishonesty and deceit. Hence the accused may introduce evidence of his honesty, fairness and openness in his personal and business deals or transactions
(ii). In physical assault cases the moral trait is violence hence the accused may introduce evidence of his peaceable nature, his being friendly or of his passivity
(iii). In rape, he may prove his chaste character
b) The moral character must be one in existence at the time of the commission of the crime
c). evidentiary value. Evidence of good moral character is not a basis for acquittal. (i) It serves only as a positive defense because I affords a presumption against the commission of a crime in that, it is improbable that a person who has uniformly pursued an honest and upright course of conduct will depart from it. (ii) It is to be regarded only as circumstantial evidence of innocence as its role is to provide a basis for the court to doubt his guilt.
d). Where the crime is one of great or atrocious nature or criminality, or the so called heinous crimes, evidence of good moral character is of little weight, as for instance in multiple murder
e). The Prosecution may not immediately introduce evidence of the bad moral character because: (i) it is to avoid undue prejudice on the part of the judge due to the deep tendency to punish not because the accused is guilty but because of his bad character and (ii) to avoid confusing the issues
f) WHEN MAY THE PROSECUTION INTRODUCE EVIDENCE OF THE BAD MORAL CHARACTER OF THE ACCUSED?
(Ans). 1. Pursuant to section 51, only in rebuttal provided the accused introduced evidence of his own good moral character during the presentation of his evidence-in-chief. This is to prevent the accused from having a free hand and fabricating evidenced of his good moral character without fear of contradiction.
2. Pursuant to the Rule on Cross-Examination, if the accused testifies in his own behalf, the prosecution may prove his band character as a witness i.e. his veracity for truth is bad
2. The Moral Character of the Victim may be proved “ if it tends to establish in any reasonable degree the probability or improbability of the offense charged”
a). The Prosecution may immediately introduce evidence of the good moral character of the victim if:
(i). If it is an element of the offense charged, such as good reputation in case of seduction, or in libel and oral defamation
(ii) It proves the probability of the offense charged as in sex crimes such that the victim could not have given consent due to her good moral character
b). The accused may prove the bad moral character of the victim in the following cases
(i). In assault or homicide cases where he sets self-defense, or in cases of the Battered Wife Syndrome defense, the accused may prove the victim is of a violent character, quarrelsome, trouble seeker or pugnacious.
This is to prove it was the victim who was the aggressor. Likewise to show the state of mind of the accused in that bad character of the victim produced a reasonable belief of imminent danger on the mind of the accused and a justifiable conviction that a prompt action was necessary.
(ii) In sex crimes involving unchaste acts of the accused, where the willingness of the woman is material, her character as to her chastity is admissible to show whether or not she consented to the man’s acts
(iii) In murder an in other heinous crimes, evidence of the bad moral character of the victim is irrelevant
VII. Rule in Civil Cases
1. Evidence of the character of the parties is not admissible unless the issue involved is character i.e. character is of particular importance in the case, or that the good or bad moral character of a party will affect the outcome of the case.
2. Examples of the exception
a). Action for damages for injury to plaintiff’s reputation as in libel cases
b). Actions which impute moral turpitude such as the employment of deceit, misrepresentation or fraud
c). Actions for damages due to seduction
d). Legal separation or annulment of marriage based on reasons grounded on the character of the spouses, such as psychological incapacity
e). Action for damages for breach of promise to marry where the bad character of plaintiff maybe used as a defense
f). As a defense in actions for Alienation of Affection
g). In actions involving custody of children
h). Opposition to the appointment of a guardian, or administrator of the property of another
VIII. Rule as to Witnesses
1. The witness enjoys the presumption of good moral character hence it is not necessary to introduce evidence thereof
2. However, evidence thereof is necessary in order to rehabilitate the character of the witness if the same had been impugned by the adverse party
3. The bad moral character as witness, his tendency to lie or improper motives may be shown by the adverse party
IX. Rule as to Third Parties
1. Generally evidence thereof is inadmissible being irrelevant as they are neither parties nor witnesses
2. However if relevant in that they may affect the issues of the case, then evidence thereof maybe admitted. Thus in an action for legal separation based on adultery by the wife with a man, evidence that the man is a person of good moral character may be introduced as proof that the man could not have entered into the adulterous relationship
