TESTIMONIAL KNOWLEDGE
Section 36. Testimony generally confined to personal knowledge; hearsay excluded.
GENERAL RULE: A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules.
REASON FOR EXCLUDING HEARSAY: not subject to the test of truth because there is no opportunity for cross-examination. Also, this will be a violation of the constitutional right to confrontation.
HEARSAY RULE
CLASSIFICATION OF OUT-OF-COURT STATEMENTS:
1. HEARSAY-- Those which are considered as hearsay and therefore inadmissible, this occurs when the purpose for introducing the our-of-court statement is to prove the truth of the facts asserted therein;
2. NON-HEARSAY— Admissible. This occurs when the purpose for introducing the statement is not to prove the truth of the facts asserted therein but only the making of the statements and are admissible in evidence when the making of the statement is relevant. These are so-called INDEPENDENTLY RELEVANT STATEMENTS.
3. EXCEPTIONS TO THE HEARSAY RULE—Those which are hearsay but are considered as exceptions to the hearsay rule and are therefore admissible. These are from Sections 37 to 47 of Rule 130.
HEARSAY EVIDENCE:
They are admissible by reason of NECESSITY and TRUSTWORTHINESS.
Hearsay evidence not objected to may be admissible but, whether objected to or not, has no probative value and as opposed to direct and primary evidence, the latter always prevails.
EXCEPTIONS TO THE HEARSAY RULE:
1. Dying Declaration;
2. Declaration Against Interest;
3. Act or declaration About pedigree;
4. Family reputation or tradition regarding pedigree;
5. Common reputation;
6. Res Gestae;
7. Entries in the ordinary course of business;
8. Entries in official records;
9. Commercial lists;
10. Learned treatises;
11. Testimony or deposition at a former proceeding
Section 37. Dying declaration
REQUISITES:
1. That death is imminent and the declarant is conscious of that fact;
2. That the declaration refers to the cause and and surrounding circumstances of such death;
3. That the declaration relates to the facts which the victim is competent to testify to; and
4. That the declaration is offered in a case wherein the declarant’s death is subject of the inquiry.
A dying declaration may be oral or written or made by signs which could be interpreted and testified to by a witness thereto.
Dying Declarations favorable to the accused are admissible.
Dying declaration may also be regarded as part of the res gestae as they were made soon after the startling occurrence without the opportunity for fabrication or concoction.
Dying declaration is not considered a confidential communication between spouses.
A dying declaration may be attacked on the ground that any of the requisites for its admissibility are not present and the same may be impeached in the same manner as the testimony of any other witness on the stand.
HEARSAY EXCEPTION IN CHILD ABUSE CASES:
A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules:
(a) Before such hearsay statement maybe admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object.
If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent.
(b) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof, based on various factors provided by the law, which provide sufficient indicia of reliability (Sec. 28(a) and (b), The Rule on Examination of a Child Witness).
Section 38. Declarations against interest.
REQUISITES:
1. That the declarant is dead or unable to testify;
2. That it relates to a fact against the interests of the declarant;
3. That at the time he made said declaration the declarant was aware that the same was contrary to his aforesaid interest; and
4. That the declarant had no motive to falsify and he believed such declaration to be true.
Section 39. Act or declaration about pedigree.
Section 40. Family reputation or tradition regarding pedigree.
Section 39
|
Section 40
|
Act or declaration about PEDIGREE;
|
Family reputation or tradition regarding pedigree;
|
Witness need not be a member of the family;
|
Witness is a member of the family;
|
Testimony is about what declarant, dead or unable to testify, has said concerning the pedigree of the declarant’s family.
|
Testimony is about family reputation or tradition covering matters of pedigree.
|
Section 41: Common reputation
The following may be established by common reputation:
1. Matters of public interest more than 30 yrs. old;
2. matters of general interest more than 30 years old;
3. matters respecting marriage or moral character and related facts
4. individual moral character
COMMON REPUTATION—is the definite opinion of the community in which the fact to be prove is known or exists. It means the general or substantially undivided reputation, as distinguished from a partial or qualified one, although it need not be unanimous.
ÙAs a general rule, the reputation of person should be that existing in the place of his residence, it may also be that existing in the place where he is best known.
EVIDENCE OF NEGATIVE GOOD REPUTE:
Where the foundation proof shows that the witness was in such position that he would have heard reports derogatory to one’s character, the reputation testimony may be predicated on the absence of reports of bad reputation or on the fact that the witness had heard nothing against the person.
Section 42: Part of res gestae
RES GESTAE – literally means things done; it includes the circumstances, facts, and declarations incidental to the main fact or transaction necessary to illustrate its character and also includes acts, words or declaration which are closely connected therewith as to constitute part of the transaction.
TWO TYPES OF RES GESTAE:
1. Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof (SPONTANEOUS STATEMENTS)
2. Statements accompanying an equivocal act material to the issue, and giving it a legal significance (VERBAL ACTS).
REQUISITES OF ADMISSIBILITY OF SPONTANEOUS STATEMENTS:
1. there must be a startling occurrence
2. the statement must relate to the circumstances of the starling occurrence
3. the statement must be spontaneous
REQUISITES OF ADMISSIBILITY OF VERBAL ACTS:
1. the act or occurrence characterized must be equivocal
2. verbal acts must characterize or explain the equivocal act
3. equivocal act must be relevant to the issue
4. verbal acts must be contemporaneous with the equivocal act
RES GESTAE in connection with a homicidal act
|
DYING DECLARATIONS
|
Maybe made by the killer himself after or during the killing or that of a 3rd person
|
Can be made only by the victim
|
May precede, accompany or be made after the homicidal attack was committed
|
Made only after the homicidal attack has been committed
|
Justification in the spontaneity of the statement
|
Trustworthiness based upon its being given an awareness of impending death
|
VERBAL ACTS
|
SPONTANEOUS STATEMENTS
|
the res gestae is the equivocal act
|
the res gestae is the startling occurrence
|
verbal act must be contemporaneous with or must accompany the equivocal act
|
statements may be made prior, while or immediately after the startling occurrence
|
Section 44. Entries in official records.
REQUISITES FOR ADMISSIBILITY OF OFFICIAL ENTRIES:
1. that it was made by a public officer or by another person specially enjoined by law to do so
2. that it was made by a public officer in the performance of his duty, or by another person in the performance of a duty specially enjoined by law
3. the public officer or the other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information
Probative value: only prima facie evidence of the fact stated therein
OPINION RULE
Section 48. General rule
GENERAL RULE: Opinion of a witness is not admissible.
EXCEPTIONS:
1. On a matter requiring SPECIAL knowledge, skill, experience or training which he is shown to possess (Sec. 49);
2. The identity of a person about whom he has adequate knowledge (Sec. 50[a]);
3. A handwriting with which he has sufficient familiarity (Sec. 50 [b]);
4. The mental sanity of a person with whom he is sufficiently acquainted (Sec. 50 [c]);
5. The witness’ impressions of the emotion, behavior, condition or appearance of a person (Sec. 50 [d]);.
Expert evidence is admissible only if
a) the matter to be testified requires expertise and
b) the witness has been qualified as en expert.
Hypothetical questions may be asked of an expert to elicit his opinion. Courts, however, are not necessarily bound by the expert’s findings.
CHARACTER EVIDENCE
Section 51. Character evidence generally not admissible; exceptions
GENERAL RULE: character evidence is not admissible in evidence under Sec.51 of Rule 130 of the Revised Rules on Evidence.
EXCEPTIONS:
CRIMINAL CASES:
1. accused may prove his good moral character which is pertinent to the moral trait involved in the offense charge.
2. The prosecution may not prove bad moral character of the accused unless in rebuttal when the latter opens the issue by introducing evidence of his Good moral character.
3. As to the offended party, his good or bad moral character may be proved as long as it tends to establish the probability or improbability of the offense charged
EXCEPTIONS:
1. proof of the bad character of the victim in a murder case is not admissible if the crime was committed through treachery and premeditation; and
2. in prosecution for rape, evidence of complainant’s past sexual conduct, opinion thereof or of his/her reputation shall not be admitted unless, and only to the extent that the court finds that such evidence is material and relevant to the case (Rape Shield, RA 8505 Sec. 6).
CIVIL CASES
The moral character of either party thereto cannot be proved unless it is pertinent to the issue of character involved in the case.
AS TO WITNESSES:
Both criminal and civil - the bad moral character of a witness may always be proved by either party (Sec. 11, Rule 132) but not evidence of his good moral character, unless it has been impeached. (Sec. 14)
RULE 131
BURDEN OF PROOF AND PRESUMPTIONS:
Section 1. Burden of Proof
BURDEN OF PROOF/RISK OF NON-PERSUASION—the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law.
UPON WHOM BURDEN OF PROOF RESTS:
A. Civil Cases
1. the plaintiff has the burden of proof to show the truth of his allegations if the defendant raises a negative defense
2. the defendant has the burden of proof if he raises an affirmative defense on the complaint of the plaintiff
B. Criminal Cases
The burden of proof is with the prosecution by reason of the presumption of innocence.
NOTE: Under the Speedy Trial Act, if the accused is NOT brought to trial within the time required, the information shall be dismissed on the motion of the accused. In this case, the BURDEN OF PROOF of supporting such motion is with the accused (Sec. 13, RA 8493).
DEGREE OF PROOF THAT SATISFIES THE BURDEN OF PROOF:
A. CIVIL CASES
Preponderance of evidence
B. CRIMINAL CASES
1. To sustain conviction -
Evidence of guilt beyond reasonable doubt
2. Preliminary investigation -
Engender a well founded belief of the fact of the commission of a crime.
3. Issuance of warrant of arrest -
Probable cause, i.e. that there is reasonable ground to believe that the accused has committed an offense.
HEIRARCHY OF EVIDENCE:
1. proof beyond reasonable doubt
2. clear and convincing evidence
3. preponderance of evidence
4. substantial evidence
BURDEN OF EVIDENCE—logical necessity on a party during a particular time of the trial to create a prima facie case in his favor or to destroy that created against him by presenting evidence.
In both civil and criminal cases, the burden of evidence lies on the party who asserts an affirmative allegation.
BURDEN OF PROOF
|
BURDEN OF EVIDENCE
|
Does not shift
|
Shifts from party to party depending upon the exigencies of the case in the course of the trial;
|
Generally determined by the pleadings filed by the party
|
Generally determined by the developments of the trial, or by the provisions of substantive law or procedural rules which may relieve the party from presenting evidence on the facts alleged.
|
UPON WHOM BURDEN OF EVIDENCE RESTS:
A. CIVIL CASES:
The plaintiff has to prove his affirmative allegations in the complaint and the defendant has to prove the affirmative allegations in his counterclaim and his affirmative defenses.
B. CRIMINAL CASES:
The PROSECUTION has to prove its affirmative allegations in the information regarding the elements of the crime as well as the attendant circumstances; while the DEFENSE has to prove its affirmative allegations regarding the existence of justifying or exempting circumstances, absolutory causes or mitigating circumstances.
PRINCIPLE OF NEGATIVING AVERMENTS
Is a party required to prove negative allegations?
GENERAL RULE: NO. They need not be proved, whether in a civil or criminal action.
EXCEPTION: Where such negative allegations are essential parts of the cause of action or defense in a civil case, or are essential ingredients of the offense in a criminal case or defenses thereto.
HOWEVER, in civil cases, even if the negative allegation is an essential part of the cause of action or defense, such negative allegation does not have to be proved if it is only for the purpose of denying the existence of a document which should properly be in the custody of the adverse party.
PRESUMPTIONS- an inference of the existence or non-existence of a fact which courts are permitted to draw from the proof of other facts.
CLASSIFICATION OF PRESUMPTIONS:
1. PRESUMPTION IS JURIS OR OF LAW—deduction which the law expressly directs to be made from particular facts.
2. PRESUMPTION IS HOMINIS OR OF FACT—deduction which reason draws from facts proved without an express direction from the law to that effect.
PRESUMPTIONS OF LAW
|
PRESUMPTIONS OF FACT
|
Certain inference must be made whenever the facts appear which furnish the basis of the inference
|
A discretion is vested in the tribunal as to drawing the inference
|
Reduced to fix rules and form a part of the system of jurisprudence
|
Derived wholly and directly from the circumstances of the particular case by means of the common experience of mankind
|
PRESUMPTION IS JURIS may be divided into:
1. CONCLUSIVE PRESUMPTION (juris et de jure)—which is a presumption of law that is not permitted to be overcome by any proof to the contrary; and
2. DISPUTABLE PRESUMPTIONS (juris tantum)—is that which the law permits to be overcome or contradicted by proofs to the contrary; otherwise, the same remains satisfactory.
Presumptions are evidence according to the law, which considers and regulates them as such. As they constitute evidence, presumptions are irrelevant and therefore inadmissible when they do not correspond to the allegation and the facts at issue in the pleadings.
CLASSES OF CONCLUSIVE PRESUMPTIONS under RULE 131:
1. ESTOPPEL IN PAIS (Rule 131, Sec. 2(par. a)—whenever a party has, by his own declaration, act or omission, intentionally and deliberately led another to believe a particular thing to be true and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it.
2 ESTOPPEL BY DEED (Rule 131, Sec. 2 (par. b)—the tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them.
ÙDisputable presumption of regularity apply to both government and private transactions
WHEN PRESUMPTION OF “EVIDENCE WILLFULY SUPPRESSED WOULD BE ADVERSE IF PRODUCED” will not apply:
1. If the suppression is NOT willful;
2. If the evidence that is withheld is merely corroborative or cumulative;
3. If the evidence is at the disposal of or equally available to both parties;
4. If the suppression is an exercise of a privilege.
For the presumption that “A LETTER DULY DIRECTED AND MAILED WAS RECEIVED IN A REGULAR COURSE OF THE MAIL” to arise, it must be proved that the letter was properly addressed with postage prepared and that it was actually mailed.
