41235061 EVIDENCE Midterms Vinluan

8/8/2019 41235061 EVIDENCE Midterms Vinluan

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EVIDENCE MIDTERMS Prof. R. A. Vinluan [1st Sem, AY1011] KARICHI E. SANTOS up law Page 1 of 27

UNIVERSITY OF THE PHILIPPINES

College of Law

Diliman, Quezon City

EVIDENCEProf. Rogelio A. Vinluan

1st

Semester, AY 2010-2011

I. Admissibility of EvidenceA.

Rule 128, Section 1.Evidence defined. Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth

respecting a matter of fact.

Regalado:

y Evidence is the mode and manner of proving competent facts in a judicial proceeding.

y Proof is the result or effect of evidence i.e. when the requisite quantum of evidence of a particular fact has been duly admitted and

given weight

y Factum probandum ultimate fact or the fact sought to be established; a proposition

y Factum probans evidentiary fact or the fact by which the factum probandum is to be established; materials which establish that

proposition

y CLASSIFICATION OF EVIDENCE

1. Object (real) evidence directly addressed to the sense of the court and consists tangible things exhibited to or demonstrated in

open court, ocular inspection or at a place designated by the court for its view or observation of an exhibition, experiment or

demonstration

2. Documentary evidence evidence supplied by the written instruments OR derived from conventional symbols such as letters by

which ideas are represented on material substances

3. Testimonial evidence that which is submitted to the court through the testimony or deposition of a witness

DIRECT CIRCUMSTANTIAL

That which proves the fact in dispute without the aid of any inference

or presumption

Proof of a fact/s from which taken either singly or collectively, the

existence of the particular fact in dispute may be inferred as a necessaryor probable consequence

RAV says:- Additional reasoning needed to be believed in. Get the logical nexus between

the fact in issue and the evidence.

- The more steps, less probative value. Chain is only as strong as the weakest link

In the words of McCormick, a brick is not a wall

CUMULATIVE CORROBORATIVE

Evidence of the same kind and to the same state of facts Additional evidence of a different character to the same point

PRIMA FACIE CONCLUSIVE

That which, standing alone, unexplained or uncontradicted, is sufficient

to maintain the proposition affirmed

Class of evidence which the law does not allow to be contradicted

PRIMARY aka best evidence SECONDARY aka substitutionary evidence

That which the law regards as affording the greatest certainty of the

fact in questions

That which is inferior to the primary evidence and is permitted by law

only when the best evidence is not availablePOSITIVE NEGATIVE

When the witness affirms that a fact did or did not occur; Entitled to

greater weight since witness represents of his personal knowledge of

the absence or presence of the fact

When the witness states he did not see or know the occurrence of a

fact; just a total disclaimer of personal knowledge

RAV says:

What is evidence?

y The definition in the Code is not really accurate because some rules impede the search for truth. For instance, in the case of privileges,

there are sociological values that are given more importance than the truth.

y The common sense definition is it is any matter which serves as a proof of a factual representation

y In the Code Revision Committee, we decided to just retain whats written there because we had a hard time defining it.

Whatare the systems of evidence presentation?

y Inquisitorial (Europe) Judge is responsible for production of evidence; he examines the witnesses while lawyers play a passive role

y Adversarial (Philippines) Lawyers are responsible for production of evidence; judge plays a passive role of merely weighing the


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EVIDENCE MIDTERMS Prof. R. A. Vinluan [1st Sem, AY1011] KARICHI E. SANTOS up law Page 2 of 27evidence. Judges are ideally neutral, impartial and inactive.

What is truth,how do youunderstandtruth?

y Many of the cases are not decided on merits but on extra-legal considerations. Success depends on the imponderable.

Rule 128, Section 2.Scope. The rules of evidence shall be the same in all courts and in all trials and hearings, EXCEPT as otherwise provided by the

law or these rules.

Regalado:

y Rules are applicable only in judicial proceedings, only suppletory or by analogy in case ofquasi-judicial

y Court of Agrarian Relations: Rules ofCourt not applicable even in suppletory character, EXCEPT in criminal and expropriation cases

Reyes v. Court of Appeals

(1993)

RAV says:- Affidavits where affiants did

not testify is hearsay.

People v. Turco

(2000)

RAV says:

- Admissibility vs. weight.

Medical certificate or official

record is admissible, although

it cannot carry weight because

you must first show the

qualifications of the doctor.

B. RelevanceRule 128, Section 3.Admissibility of evidence. Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules.

Regalado:

y Two requisites of admissibility:

1. Relevant to the issue sought to be proved determinable by the rules of logic and human experience2. Competent determined by the prevailing exclusionary rules of evidence

y Wigmores restatement ofaxioms of admissibility:

1. None but facts having rational probative value are admissible

2. All facts having rational probative value are admissible unless some specific rule forbids their admission

y Wigmores notion ofrelevant evidence any class of evidence which has rationale probative value to establish the issue incontroversy

y Admissibility of evidence is determined at the time it is offered to the court (S. 35, R. 132)

o Real: [1] presented for its view or evaluation (e.g. ocular inspections or demonstrations) OR [2] when the party rests his case

and the real evidence consists objects exhibited in court

o Testimonial: offered by calling the witness to the stand

o Documentary: formally offered by the proponent immediately before he rests his case

y Objection to the admissibility of the evidence shall be made at the time such evidence is offered OR as soon as thereafter as the

objection to its admissibility shall have been apparent, otherwise, objection shall be deemed waived.

y KINDS OF ADMISSIBILITY

1. Conditional

2. Multiple

3. Curative

Rule 128, Section 4.Relevancy; collateral matters. Evidence must have such relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed EXCEPT when it tends in any reasonable degree to establish the probability or

improbability of the fact in issue.

Regalado:

y Relevant evidence having any value in reason as tending to prove any matter provable in an action

o TEST OF RELEVANCY: logical relation of the evidentiary fact to the issue i.e. whether the former (evidentiary fact tends to

establish the probability or improbability of the latter (issue)

y Material evidence evidence directed to prove a fact in issue as determined by the rules of substantive law and pleadings

o TEST OF MATERIALITY: whether the fact it intends to prove is in issue or not i.e. determined by the substantive law, pleadings,

pre-trial order and admissions/confession on file

o An evidence may be relevant BUT immaterial

y Competent evidence one that is not excluded by the Rules, a statute or the Constitution

y

Collater

al matter

s matters other than the facts in issue and which are offered as a basis for inference as to the existence or non-


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RAV says:

y Are the Garci tapes admissible? Considering they didnt admit it was them talking.

II. What Need Not Be ProvedA.

Rule 129, Section 1.Judicial notice, when mandatory. The court SHALL take judicial notice, without the introduction of evidence, ofa. existence and territorial extent of states

b. their [states] political history

c. forms of government [of states]

d. symbols of nationality [of states]

e. law of nations

f. admiralty and maritime courts of the world

g. their seals

h. political constitution and history of the Philippines

i. official acts of the Legislative, Executive and Judicial departments of the Philippines

j. laws of nature

k. measure of time

l. geographical divisions.

Rule 129, Section 2.Judicial notice, when discretionary. The court MAY take judicial notice of matters which are

a. of public knowledge OR

b. capable of unquestionable demonstration OR

c. ought to be known to judges because of their judicial functions.

Regalado:

y Judicial notice is the cognizance of certain facts which judges may properly take and act on without proof because they already know

them. The current rules make a distinction between facts of which courts MUST(mandatory) take judicial notice and of which they MAY

(discretionary) take judicial notice.

y BASIS:

o Considerations of expediency and convenience

o Displaces evidence since being equivalent to proof, it fulfills the object which the evidence is intended to achieve and therefore

makes such evidence unnecessary

y Power to exercise judicial notice must be exercised with caution and every reasonable doubt on the subject must be resolved in thenegative (Republic v CA)

y Judicial notice of ordinances (cf with laws) When RTC must take judicial notice of ordinances:

o When required to do so by statute

o In a case on appeal before them and wherein the inferior court took judicial notice of an ordinance involved in said case (US v

Blanco,US vHernandez)

o Appellate court: facts capable of unquestionable demonstration (Gallego v Pp)

o Reasons/scenarios above are also applicable to administrative regulations

y Courts are required to take judicial notice of the decisions of the appellate courts but NOT of the decisions of coordinate trial courts, nor

even of a decision or the facts involved in another case tried by the same court itself, UNLESS the parties introduce the same in evidence

or where the court, as a matter of convenience, may decided to do so.

y Judicial notice is not the same as judges personal knowledge.

y What are the laws of a foreign state? Question of fact, not law. Court may choose not to take judicial notice and have to be proved like

any other fact.

y How to prove a written foreign law? Complied requirements of Sec. 24 and 25 of Rule 132 on official publication or duly attested andauthenticated copy thereof.

y Doctrine of processual presumption - Absent any of the foregoing evidence, the foreign law is presumed to be the same as that of the

Philippines

McCormick (Chapter 35):

y There are two categories of facts that fall within the perimeters of judicial notice: [1] adjudicative facts and [2] legislative facts

y Adjucative facts facts about the particular event which gave rise to the lawsuit and help explain who did what, when, where how and

with what motive and intent. Either because they were facts so commonly known in the jurisdiction OR so manifestly capable of accurate

verification, they were facts reasonable informed people in the community would regard as propositions not reasonably subject to

dispute.

y Legislative facts judicial notice of these facts occurs when a judge is faced with the task of creating law, by deciding upon the

constitutional validity of a statute or interpretation of a statue or the extension or restriction of a common law rule, upon grounds of

policy and the policy is thought to hinge upon social, economic, political or scientific facts.


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EVIDENCE MIDTERMS Prof. R. A. Vinluan [1st Sem, AY1011] KARICHI E. SANTOS up law Page 5 of 27y Matters of common knowledge The fact is so commonly known in the community as to make it unprofitable to require proof and so

certainly known as to make it indisputable among reasonable men; Loosely described as universal knowledge.

y Facts capable of certain verification when asked to notice a fact not generally known, but which obviously could easily be ascertained

by consulting materials in common use such as the day of the week on which January 1 fell ten years ago, the judges resorted to

calendars but purported to be refreshing memory as to a matter of common knowledge. It is under this caption that judges take judicia

notice of the scientific principles which, while not verifiable but not likely commonly known, justify the evidentiary use of radar, blood

tests for intoxication and non-paternity, handwriting and typewriting identification and ballistics.

RAV says:

y Judicial notice is only applicable to adjudicative facts.y Brown v Board (as cited in McCormick) was the leading American case wherein the judge decided on the basis of legislative facts.

Legislative facts are not disputed.

y Custom is not a proper subject of judicial notice. See the Romulo Mabanta and Sycip firm name retention case (In Re Sycip). They invoked

what kind of custom there?

y White Plains v QC Finance and DevelopmentCorporation: Case which Sir lost due to stupid procedure of SC. White Plains Roadlot 1 which

was supposedly part ofHighway 38 from QC to Novaliches. Was Roadlot 1 subject of judicial notice?

Rule 129, Section 3.Judicial notice,when hearing is necessary. DURING TRIAL, the court may on its own initiative OR at the request of a party

- announce its intention to take judicial notice of any matter AND

- allow the parties to be heard thereon.

AFTER TRIAL, AND BEFORE JUDGMENT or ON APPEAL, the proper court, on its own initiative OR at the request of a party, may

- take judicial notice of any matter AND

- allow the parties to be heard thereon IF such matter is decisive of a material issue in the case.

RAV says:

What is the purpose ofthe hearing?

y Present evidence

y Afford parties reasonable opportunity to present information relevant to the propriety of taking judicial notice or to the tenor of the

matter to be noticed.

When do is hearing required?

y In discretionary judicial notice only.

y HOWEVERCourt may choose not to hold hearing in case of discretionary judicial notice if fact is capable of unquestionable

demonstration

y Mandatory judicial notice and legislative facts require no hearing.

Whatisth

e effect

ofth

e court

stak

ing of ju

dicia

l notice?

y It is conclusive upon the parties and therefore, is not rebuttable.

Rule 129, Section 4.Judicialadmissions. An admission, verbal OR written, made by a party in the course of the proceedings in the same case,

does NOT require proof.

The admission may be CONTRADICTED only by showing that

a. it was made through palpable mistake OR

b. no such admission was made.

Rule 11, Section 8. Effectofamended pleadings. An amended pleading supersedes the pleading that it amends. HOWEVER, admissions in

superseded pleadings may be received in evidence against the pleader; and claims or defenses alleged therein not incorporated in the amended

pleading shall be deemed waived.

Regalado:

y Howare judicialadmissions made?

a. In the pleadings filed by the parties

b. In the course of the trial either by verbal or written manifestations or stipulations

c. Other stages of the judicial proceedings e.g. pre-trial

d. Admissions obtained through modes of discovery e.g. depositions, written interrogatories, requests for admissions

y Where must the judicial admissions be made?

GENERAL RULE: In the same case in which it is offered. If made in another case OR in another court, the fact of such admission must be

proved as in the case of any other fact.

Implication: Judicial admission in once case are admissible at the trial of another case PROVIDED they are proved and are pertinent to the

issue involved in the latter.

Effect of admission in another case offered as evidence: Since it was made in a judicial proceeding, it is entitled to a greater weight

EXCEPTION:

a. Admissions were made only for purposes of the first case e.g. rule in implied admissions (Rule 26)


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EVIDENCE MIDTERMS Prof. R. A. Vinluan [1st Sem, AY1011] KARICHI E. SANTOS up law Page 6 of 27b. Admissions were withdrawn with the permission of the court

c. Court deems it proper to relieve the party therefrom

y Admission in a pleading which had been withdrawn or superseded by an amended pleading although filed in the same case are

considered as extrajudicial admissions AND must be proved by the party who relies thereon by formal offer in evidence of the original

pleading.

RAV says:

y Can a party contradict that which hs been admitted by him? Contrast McCormick and Regalados views.

y What is the effect of admission? It is conclusive, takes the matter out of the controversy, it becomes a non-issue precisely because it has

been stipulated already.y Whataboutamendments in the original pleading,are they stilladmissions?No, It has lost its judicial character, it must first be offered in

evidence. If you read Regalado, he says that amended admissions are still judicial. RAV disagrees citing the code.

y Evidentiaryadmissions out of court admissions

B. Cases:

1. Judicial NoticeCity of Manila v. Garcia

(1967)

Municipal trial courts are required to take judicial notice of the

ordinances of the municipality wherein they sit. However in the

case of RTC, they must take such judicial notice only when

required to do so by statute e.g. Manila as required by the City

Charter

Baguio v. Vda. de Jalagat

(1971)

Courts are not required to take judicial notice of the

decision or the facts involved in another case tried by th

same court itself, UNLESS the parties introduce the same

in evidence or where the court, as a matter of

convenience, may decided to do so.

Prieto v. Arroyo

(1965)

Yao-Kee v. Sy-Gonzales

(1988)

Tabuena v. CA

(1991)

People v. Godoy

(1995)

RAV says:- The court should have said

Lust is no respecter of

menstrual period.

- Story of Bryan Dy, son of

Isabela Governor who is still at

large after raping an American

BPI-Savings v. CTA

(2000)

2. Judicial AdmissionsLucido v. Calupitan

(1914)

Torres v. CA(1984)

III. Real and Demonstrative Evidence

A.

Rule 130, Section 1.Objects as evidence. Objects as evidence are those addressed to the senses of the court. When an object is relevant to the

fact in issue, it may be exhibited to, examined or viewed by the court.

Rule 130, Section 2.Documentary evidence. Documents as evidence consist of writings OR any material containing letters, words, numbers,

figures, symbols and other modes of written expressions offered as proof of their contents.


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Regalado:

y Object evidence include any article or object which may be known or perceived by the use of any of the senses

y Observations of the courts may be amplified by interpretations afforded by testimonial evidence especially by experts.

y Documents may be object evidence IF the purpose is to prove their existence or physical condition e.g. nature of the handwritings

thereon, age of the paper, blemishes or alterations

y Includes Courts may refuse introduction of object evidence and rely on testimonial evidence alone if:

o Exhibition of such object is contrary to public policy, morals or decency

o To require it being viewed would result in delays, inconvenience, unnecessary expenses out of proportion to the evidentiary

value of such object

o Evidence would be confusing or misleading e.g.

purpose is to prove the former condition of the object AND there is no preliminary showing that there has been no

substantial change in said condition

o Testimonial or documentary evidence already presented clearly portrays the object in question as to render a view thereof

unnecessary

y GENERAL RULE: Repulsive or indecent objects are not view.

y EXCEPTION: View of the same is necessary in the interest of justice

o Exclude the public from such view

o Exhibit/examine in camera

o If the indecent/immoral objects constitute the very basis for the criminal or civil action

Ocular inspections

y

Depends on the discretion of the trial court (Pp vM

oreno)y The fact that an ocular inspection has been held does not preclude a party from introducing other evidence on the same issue (PhilMovie

Pictures WorkersAssn. v Premiere Productions)

y Must be conducted after notice to OR in the presence of the parties, otherwise invalid.

McCormick (Chapter 21):

y Demonstrative evidence

RAV says:

y Object evidence because to see is to believe. As compare with testimonial evidence which depends on the weight and credibility of the

witness

y McCormick uses demonstrative very broadly. But some authors distinguish it with real.

o DEMONSTRATIVE - narrow sense, illustrative purpose; that which will help the court understand or appreciate better the

testimony of the witness e.g. chart, diagram, flowchart, cartographic sketch (?)

o REAL - an evidence that played an actual role e.g. tape from CCTVy Whatdo youhave to do withan objectevidence?AUTHENTICATE it i.e. lay proper foundation for admission. Prove that the object is what

you claim it to be. For some object evidence which are not readily identifiable e.g. chemical composition, you will need to establish chain

of custody. Every person who handled the evidence from the time it was seized must be presented in court. Make them explain how

they obtained and what they did to preserve the integrity of the evidence. E.g. in a buy-bust operation: Police chemist evidence

custodian

y However, if it has unique characteristics, the chain of custody is not required.

y Whatkind ofauthentication is needed fordemonstrative?It is enough that the evidence is an accurate representation.

y How do youauthenticate a CCTV?Present a person who is familiary with the process

y In practice: Because of pre-trial, most of the authentication done away with when the adverse party admits the evidence. Pero may

kalokohan sila diyan: We admit the existence, but not the authenticity. Anong ibig sabihin non?

B. Cases:

People v. Bardaje

(1980)

Sison v. People

(1995)

Adamczuk v. Holloway

(1940)

State v. Tatum

(1961)

RAV says:

y Can documentbe objectevidence?Yes, depending on purpose. If not contents and only its existence and physical condition is presented.

y Whenever you offer evidence, you think of the purpose.


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IV. Best Evidence Rule

A.

Rule 130, Section 2. Documentary evidence. Documents as evidence consist ofwritings OR any material containing letters, words, numbers,

figures symbols or other modes of written expression offered as proof of their contents.

Rule 130, Section3. Original documents mustbe produced; exception. When the subject of the inquiry is the contents of the document, no

evidence shall be admissible other than the document itself, except in the following cases:

(a) When the original has been LOST, DESTROYED or CANNOT BE PRODUCED IN COURT without bad faith on the part of the offeror

(b) When the original is in the CUSTODY or CONTROL of the party against whom evidence is offered, and the latter fails to produce it

after reasonable notice.

(c) When the original consists of NUMEROUS ACCOUNTS or OTHER DOCUMENTS which cannot be examined in court without great loss

of time AND the fact sought to be established from them is the general result of the whole

(d) When the original is a public record in the custody of a public officer OR is recorded in a public office.

Rule 130, Section4. Original ofa document.

(a) An original of a document is one the contents of which is the subject of inquiry.

(b) When the document is in two or more copies, executed AT or ABOUT the same time, with identical contents, all such copies are

equally regarded as originals.

(c) When an entry is repeated in the regular course of business, one being copied from another, AT or NEAR the time of transaction, all

the entries are likewise equally regarded as originals.

Rule 130, Section5. When original ofa documentis unavailable. When original document has been LOST, DESTROYED or CANNOT BE PRODUCED

IN COURT, the offeror, upon [1] satisfactory proof of its existence or due execution and [2] cause of unavailability without bad faith on his part, may

prove its contents by [1] a copy, [2] a recital of its contents in an authentic document or [3] testimony of a witness in the order stated.

Rule 130, Section6. When the original is in the adverse partys custody orcontrol. If the document is in the custody or control of the adverse

party, he must have REASONABLE NOTICE to produce it. If after [1] such notice AND after [2] satisfactory proof of its existence, he fails to produce

the document, secondary evidence may be presented as in the case ofLOSS.

Rule 130, Section7. Evidence admissible when original documentis a public record. When original document is [1] in the custody of a public

officer OR [2] is recorded in a public office, its CONTENTS may be proved by a CERTIFIED COPY issued by the public officer in custody thereof.

Rule 130, Section8. Party who calls fordocumentnotboundto offer it. A party who [1] CALLS for the production of document AND [2] INSPECTSthe same is NOT OBLIGED to offer it as evidence.

Rule 132, Sections 25. Whatattestation of copy muststate. Whenever a copy of a document or record is attested for the purpose of the

evidence, the attestation must state in substance, that the copy is a CORRECT copy of the original OR a specific part thereof, as the case may be.

The attestation must be under the official seal of the attesting officer, if there be any, OR if he be the clerk of a court having a seal, under the seal

of such court.

Rule 132, Sections 27. Public record ofa private document. An authorized public record of a private document may be proved by the original

record OR by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer ahs the custody.

Electronic Commerce Act (R.A. 8792)

Sections 5-15

Rules on Electronic Evidence (REE)

Rule 2, Section 1

Rule 3

Rule 4

B. Cases:

Air France v. Carrascoso

(1966)

Meyers v. United States

(1948)

People v. Tan

(1959)


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EVIDENCE MIDTERMS Prof. R. A. Vinluan [1st Sem, AY1011] KARICHI E. SANTOS up law Page 9 of 27Seiler v. Lucas Film, Ltd.

(1986)

People v. Tandoy

(1990)

U.S. v. Gregorio

(1910)

Fiscal of Pampanga v.

Reyes

(1931)

Vda. de Corpus v.

Brabangco (C.A.) (1963)

Compania Maritima v.

Allied Free Workers (1977)

Villa Rey Transit v. Ferrer

(1968)

Michael & Co. v. Enriquez

(1915)

De Vera v. Aguilar

(1983)

V. Parole Evidence Rule

A.

Rule 130, Section 9.Evidence of written agreements. When the terms of an agreement are reduced into writing, [1] it is considered as containing

all the terms agreed upon AND [2] there can be, as between the parties and their successors in interest, no evidence of such terms other than the

contents of the written agreement.

HOWEVER, the parties may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleadings:

(a) An intrinsic ambiguity, mistake or imperfection in the written agreement

(b) Failure of the written agreement to express the true intent and agreement of the parties

(c) Validity of the written agreement

(d) Existence of other terms agreed upon by the parties or their successors in interest after the execution of the written agreement.

Art. 1403, Civil Code. Text here.

B. Cases:

Enriquez v. Ramos

(1962)

Canute v. Mariano

(1918)

Yu Tek v. Gonzales

(1915)

Land Settlement & Dev.

Corp v. Garcia Plantation

(1963)

Maulini v. Serrano

(1914)PNB v. Seeto

(1952)

Woodhouse v. Halili

(1953)

Robles v. Lizarraga Cruz

(1927)

Cruz v. Court of Appeals

(1990)

Lechugas v. CA

(1986)

Inciong v. CA

(1996)

Ortanez v. CA


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EVIDENCE MIDTERMS Prof. R. A. Vinluan [1st Sem, AY1011] KARICHI E. SANTOS up law Page 10 of 27(1997)

RAV says:Applicable exception must be

expressly invoked in the

pleading. Its not enough to

allege that the contract of sale

was subject to condition.

VI. Interpretation of DocumentsA.

Rule 130, Section 10. Heading. Text here.










Art. 1370. Text here.

To

Art. 1379. Text here.

B. Cases:

Lambert v. Fox

(1914)

Capital Insurance v.

Sadang

(1967)

VII. Qualifications of Witnesses

RAV says:

y Every person is presumed to be competent. Competent means qualification to be a witness. Burden of proof is on the person challenging

the competency.

Are there otherrequirements ofthe law before you can be allowedto testify?

y Oath

y Personal knowledge if it is clear that he does not possess personal from the initial questions. Later we distinguish that, lack of personal

knowledge is often confused with hearsay rule but those two things are different.

y There was a time when atheist and parties were not allowed to testify. But eventually all the states abolished that requirement.

y Bias of the witness because he is a party in the case will not disqualify him but only in the weight of the testimony.

y Conviction of a crime can be used to impeach the witness credibility

A. Mental Incapacity or Immaturity

Rule 130, Section 20.Witnesses; theirqualifications. Except as provided in the next succeeding section, all persons who

[1] can perceive AND

[2] perceiving, can make know their perception to others,

may be witnesses.

[1] Religious and political belief,

[2] interest in the outcome of the case and

[3] conviction of a crime unless otherwise provided by law

shall not be a ground for disqualification.

Rule 130, Section 21.Disqualification byreason of mental incapacity orimmaturity. The following persons cannot be witnesses:


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EVIDENCE MIDTERMS Prof. R. A. Vinluan [1st Sem, AY1011] KARICHI E. SANTOS up law Page 11 of 27(a) Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently

making known their perception to others.

(b) Children, whose mental maturity is such as to render them incapable of:

[1] perceiving the facts respecting which they are examined and

[2] relating them truthfully.

Regalado:

y GENERAL RULE: Qualification of a witness is determined as of the time said witnesses are produced for examination.

y

EXC

EP

TION: In case of children of tender years, their competence at the time of the occurrence to be testified should also be taken intoaccount, especially if such event took place long before their production as witnesses.

Interest of witness

y Interest of witness in the subject matter of the action OR in its outcome does not disqualify him from testifying, EXCEPT those covered by

the rule on surviving parties aka Dead Man Statute.

y Interest of witness affects only his credibility but not his competency

y Defaulting defendant is not prohibited from testifying for his non-defaulting co-defendant even if he is interested in thec ase.

Conviction of a crime

y Also not a ground for disqualification BUT he must answer to the fact of a previous final conviction under Rule 132, Sec. 3(5).

y Such fact may also be shown by his examination OR the record of the judgment

y Why? Because the same may be taken into consideration as affecting his credibility

y When is a person previously convicted of crime disqualified as witness? In CC Art. 8221, those convicted of [1] falsification of document,

[2] perjury and [3] false testimony are disqualified from being witness to a will and the probate thereof.

Unsound mind

y Includes any mental aberration, whether organic or functional, or induced by drugs or hypnosis

y Mental unsoundness at the time the fact to be testified to occurred affects only his credibility

Deaf-mutes

y Competent witnesses when they can

o understand and appreciate the sanctity of an oath

o comprehend the facts they are going to testify to

o communicate their ideas through a qualified interpreter

Child witness

y In determining his competency, the court must consider his capacity

o At the time the fact to be testified to occurred such that he could receive correct impressions thereof

o To comprehend obligation of an oath

o To relate those facts truly at the time he is offered as a witness

y Otherwise stated, Court should take into account his capacity for: observation, recollection and communication.

y Unless a childs testimony is punctured with serious inconsistencies as to lead one to believe he is coached, if he can perceive and make

known his perception, he is considered as a competent witness.

y A childs naivete and apparent accuracy make his testimony most impressive.

RAV says:

y Under the Child Witness Rule, every child is presumed to be competent. But the court may look into competency of child motu propio or

by request of a party

y Are you still considered a child under the rules? No, until 18 years old only

y Take into account his ability to perceive at the time of the event he was to testify to. Especially if the case happened 7 years ago. With

respect to children, consider their capacity to:o Observe

o Recollect

o Communicate

Whatquestions will youaska 4-5 yearold child?

y Offer of testimony before you can proceed

y Judge says: Okay proceed!

y What do you ask child to show that he understands?

y OBITER: Sir has a pro bono case in Cabugao, Ilocos Sur, habeas corpus for Custody. The dad brought the children from US to Philippines.Mother filed a case. The child was no longer English speaking, Ilocano na. In trial, the child said that his mother likes to go out with Blacks

Coached at pinalabas na loose morals yung nanay.

y Ordinarily pag direct examinations, not leading questions: i.e. answer the question you desire. Pag sa child witnesses, pwede leading

questions.

y You know you have to tell the truth? You know what will happen if you dont say the truth? I go to hell or Congress.


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EVIDENCE MIDTERMS Prof. R. A. Vinluan [1st Sem, AY1011] KARICHI E. SANTOS up law Page 12 of 27y Sec. 21 is superfluous because its already covered by Sec. 20 when it said all persons

People v. De Jesus

(1984)

As long as the witness can convey ideas by words or signs, and

give sufficiently intelligent answer to the questions

propounded, she is a competent witness even if she is feeble-

minded.

People v. Salomon

(1993)

People v. Mendoza

(1996)

B. Marital Disqualification

Rule 130, Section 22 Disqualification byreason of marriage. During their marriage, neither husband nor the wife may testify for or against the

other without the consent of the affected spouse, EXCEPT

- in a civil case by one against the other, OR

- in a criminal case for a crime committed against the other or the latters direct descendants or ascendants.

Regalado:

y Sometimes referred to in American law as spousal immunity and is different from marital privilege under Sec. 24 (a)

y Rationale for the rule:

1. Identity of interest between the spouses

2. Consequent danger of perjury where one spouse testifies against the other

3. Guarding the marital confidences and preventing domestic disunion

4. Danger of punishing one spouse through the hostile testimony of the other

y RAV mentioned in class: Case ofAlvarez vRamirez the exception to MDR was applied even when the offended party in the crime of arson

was the wifes sister (ergo, husbands sister-in-law) even if the rule is l imited to crimes committed against the other or latters direct

descendant or ascendant. Rationale for the ruling: Where the marital and domestic relations are so strained, the foregoing considerations

(see four rationale above) no longer apply.

y REQUISITES FOR MARITAL DISQUALIFICATION RULE TO APPLY:

1. Subsisting valid marriage

2. Time of the spouses testimony: during the existence of marriage3. Either spouse is party to the case

RAV says:

y It is one of the marital privileges. In the US, its limited to civil cases. Aka adverse spousal testimony privilege a spouse cannot testify in a

criminal case but our law is broader because it applies to both criminal and civil. Its not only immunity against but for or againsty I told you earlier, we have this because certain social values are more important that the truth. BUT please take note that this must be

construed strictly because they are in derogation of search for truth.

y What societal values are involved? Foster marital harmony.

y Ewan ko bakit nilagay yung for eh. It is understandable bakit yung against. Kapag for kasi, sino ba mag-oobject dun? Walang mag-oobject.

Pinapatangal ko yan sa bagong edition.

y What will happen if you dont have this privilege? Danger of perjury, spouses witness will be tempted to lie or the witness spouse may refuse

to testify in which case the court may cite him for contempt or testifies and tells the truth and betrays his/her loved one.

y Avoid placing the witness spouse in a trilemma: perjury, contempt and betrayal of loved one!

y What if the spouse is willing to testify, what marital harmony is there to preserve? Holder of the privilege is with the witness spouses. Thats

the US SC but we dont follow that. Its simple that if a spouse is willing to testify, the marriage is beyond repair, no more marital harmony to

preserve. Highly criticized decision because it encourages the government to pit one spouse against the other. Coconspirate yung wife to

testify against husband, well let you go. For your information lang yan. US vTrammel.

y What is the requirement about the marriage: it must be a valid marriage, not bigamous etc. Otherwise privilege will not apply

y Can this privilege be waived by the affected spouse? Yes. In addition this, there is privilege relating to confidential info. Even when spouseallowed testify, the affected spouse can still object on the confidential communication.

y What if you marry your GF just to prevent her from testifying against you. Take note: Applies even to acts or events that took place even

before the marriage. This is a complete ban.

Ordono v. Daquigan

RAV says:

At the time this case

arose, that was the old

rule which did not include

the witnesss spouse

direct

descendants/ascendants.

Husband raped daughter, wife filed a case against him. Wife not disqualified to testify for the prosecution since the crime

may be considered as having been committed against the wife.

Citing Cargill vState: When an offense directly attacks, or directly

and vitally impairs the conjugal relation, it comes within the

exception to the statue that one shall not be a witness against the

other except in a criminal prosecution for a crime committed (by

one) against the other. The conjugal harmony sought to be

protected by the rule no longer exists.

People v. CastaedaWife filed case against husband who falsified her signature in a Exception to the marital disqualification rule.


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EVIDENCE MIDTERMS Prof. R. A. Vinluan [1st Sem, AY1011] KARICHI E. SANTOS up law Page 13 of 27deed of sale involving their conjugal property.

People v. Francisco Accused husband in his testimony impute the commission of thecrime (killing of son) to his wife.

Husband is deemed to have waived his objection to the wifes

testimony in rebuttal.

Lezama v. Rodriguez

(1968; )

Wife is a co-defendant in a suit charging her and her husband with

collusive fraud.

The wife cannot be called as an adverse party witness because

this will violate the marital disqualification rule.

C. Dead Man's Statute

Rule 130, Section 23 Disqualification byreason of death orinsanity ofadverse party. Parties or assignors of a parties to a case or persons in

whose behalf a case is prosecuted, against an executor or administrator or other representatives of a deceased person or against a person of

unsound mind, upon a claim or demand against the estate of such person of unsound mind, cannot testify as to any matter of fact occurring before

the death of such deceased person or before such person became of unsound mind.

Regalado:

y Aka Survivorship Disqualification Rule or Dead Man Statute

y Only as a partial disqualification as the witness is not completely disqualified BUT is only prohibited from testifying on matters therein

specified, unlike the MDR which is a complete and absolute disqualification.

y Applies only to civil case or special proceedings over the estate of a deceased or insane person.

y REQUISITES FOR THE DMS PRIVILEGE TO APPLY:

1. Who is the witness offered for examination?a. Party plaintiff

b. Assignor of said party

c. Person in whose behalf a case is prosecuted2. Against whom is the case instituted?

a. Executor or administratorb. Other representative of a person deceased

3. Subject matter of the case?

a. Claim or demand against the estate of person deceased/of unsound mind

4. What matter cannot be testified?

a. Any matter of fact occurring before the death/became of unsound mind

-- bears upon a transaction or communication between the witness and decedent

y Applicable regardless of whether the deceased died before or after the suit against him is filed, provided he is already dead at the time of

the testimony is sought to be given.

y NOT COVERED:

o Negative testimony (that a fact did not occur during the lifetime of the deceased)

o Testimony on the present possession by the witness of a written instrument signed by the deceasedo If it is the decedents representative filed the case, oppositors are considered defendants and may therefore testify against the

petitioner.

o Even if all the four requisites are met, the prohibition does not apply (ergo allowed to testify) where the testimony is offered to

prove a

[a] claim less than what is established under a written document

[b] fraudulent transaction of the deceased

y RATIONALE:

o Discourage perjury

o Protect the estate from fictitious claims

RAV says:

y Sort of compromise when the disqualification relating to parties was adopted. Surviving party will not be allowed if the other is dead.

Remnant of old rule disqualifying parties from testifying.

y RATIONALE: Level the playing field, equalize the opportunities for proof between the surviving party and the deceased. Why? In whatsense? What do you understand by that? Unsound mind might recover his sanity someday, so lets focus on the deceased person muna.

Where death has sealed the lips of one party, then the law will seal the lips of the other.

y Question: Is that a good rationale? Jeremy Bentham thought this was blind and brainless rule. Cause justice to the dead and do injustice

to the living. Is that fair rule, you lent 1 million to your now dead friend. Majority of the states have abolished this statute. They

liberalized the rule. Theyll allow the surviving party to testify but at the same time, rule allows the estate any hearsay evidence. thats

the compromise in the US. The Evidence Rule revision committee has decided to adopt that. Magiging exception to the hearsay rule yun.

Allow surviving party to testify but allow hearsay evidence to be introduced by the estate.

y You should have no problem applying this rule. Why? Youre given a problem. Can this witness testify. You look at the witness. If he is not

a party or assignor of a party or person in whose behalf, rule will not apply. Then look at the action.

y How about this situation: In a vehicle collision, one of the parties to the collision died. The surviving party sues the estate of the deceased

driver on the theory that deceased was the one negligent. Can surviving party now testify on the manner how the accident occurred and

how it was the fault of the deceased? As held in the States, it also applies to tort actions.


14/27

EVIDENCE MIDTERMS Prof. R. A. Vinluan [1st Sem, AY1011] KARICHI E. SANTOS up law Page 14 of 27Guerrero v. St, Claire's

Realty & Co.

Witnesses were neither parties to the case, their assignors nor

persons in whose behalf the case is prosecuted.

Abraham v. Recto-Kasten RAV says:Its usually a problem during trial, e.g. you object hearsay but

court overruled your objection so when the time for your cross-

examination comes, what will you do, will you cross examine?

We will tell the court, without prejudice to our/waiving our

objection? Thats what we usually do.

On appeal you assign it as error and then the appellee court

sustains your objection. On the other hand, court sustains theruling of the lower court, what will happen on appeal. The

better practice is what we do. There is a decision of US court

where that the ruling should be taken as law of the case if you

cross-examine, you are deemed not to have waived your

objection. It is still assignable as error.

Goi v. CA Counterclaim has been interposed by the defendant as theplaintiff would thereby be testifying in his defense.

Deceased contracted with the plaintiff through an agent and

said agent is alive and can testify, but the testimony of the

plaintiff would be limited to acts performed by the agent.

Even if the property involved has already been adjudicated to

the heirs, they are still protected under this rule as they are

considered as representatives of the deceased.

Tongco v. Vianzon Rule does not apply where:- it is administrator who brings an action for recovery allegedly

belonging to the estate.- cadastral cases where there is no plaintiff or defendant therein

- disqualification is waived by defendant through cross-

examination of the witness

Disqualification under this rule is waived if the defendant cross-

examines.

Lichauco v. AtlanticGulf Citing CitySavings Bankv Enos: interest no longer disqualifies.Corporation has separate and distinct personality

Nominal party nor to officers and stockholders of a plaintiff

corporation.

Razon v. IAC

VIII. Privileged Communications

Utilitarian justification

Who may invoke? Persons protected thereunder

Who may waive? Persons protected, expressly (through timely objection) OR impliedly (through cross-examination)

McCormick:

A. Procedural recognition of rules of privilege

1. Who may assert?

2. Where may privilege be asserted? Rules of privilege in conflict of laws

B. Limitations on the effectiveness of privilege

1. Risk of eavesdropping and interception of letters

2. Adverse arguments and inferences from claims of privileges

3. Constitutional limitations on privilege

A. Marital Communications

Rule 130, Section 24 (a) Disqualification by reason of privileged communication. The following persons cannot testify as to matters learned in

confidence in the following cases:

(a) The husband or the wife, during or after the marriage cannot be examined without the consent of the other as to any communication received

in confidence by one from the other during the marriage, EXCEPT [1] in a civil case by one against the other or [2] in a criminal case for a crime

committed by one against the other OR the latters direct descendants or ascendants.

REQUISITES FOR THE MARITAL PRIVILEGE TO APPLY:

1. Valid marriage2. With respect to a confidential communication between spouses

y What does confidential mean? What are not considered confidential?

a. Not intended to be kept in confidence e.g. dying declaration as to who killed him (because it was obviously intended

to be reported to the authorities)


15/27

EVIDENCE MIDTERMS Prof. R. A. Vinluan [1st Sem, AY1011] KARICHI E. SANTOS up law Page 15 of 27b. Overheard or comes into hands of a third party, legally or not.

- Why? While the spouse is prohibited, third party is not and so, he can testify.

- EXCEPTION: There must be no collusion or voluntary disclosure by either spouse, otherwise the third party

becomes an agent of the spouse and thereby covered by the prohibition.

3. Communication during marriage

y Privilege cannot be apply to those communications madepriorto the marriage

4. Spouse against whom such evidence is being offered has not given his or her consent to such testimony

People v. Carlos (1925) Husband Privilege is lost when it is overheard or comes into

hands of a third party, legally or not

Marital disqualification vs. Marital privilege

AS TO Marital disqualification Marital privilege

When can you

invoke?

Only if one of the spouses is party to the action Regardless of whether or not the spouse is party

Duration Only during the marriage. It ceases upon death of spouse or

annulment

Forever! Even after dissolution of marriage

Scope of prohibition Total ban against any testimony for or against Only to confidential communications between spouses

Who can invoke? Spouse who is party to the action (affected spouse) Either spouse

(Only some states limit it to only the spouse who made the

communication minority view)

Topics covered Anything and everything! Confidential communications during the marriage

Implication of distinction:

y If information is not confidential, spouse party to the action can still prevent spouse testifying against him under the marital

disqualification.

y If spouse party to the action waived the marital disqualification, he can still prevent the disclosure by spouse witness of confidential

communication covered by the privilege.

RAV says:

y What is the rationale underlying this privilege? Encourage candor between the spouses.

y Do you think spouses are aware of this privilege? Most likely majority of spouses are not aware of this privilege and that they confide in each

other out of love

y What does confidential matter mean? If communicated in the presence of third persons/strangers/children who can understand will destroy

the privilege.

y What if they talked in a crowded elevator and somebody overheard? The modern trend: just like in the atty-client: If the parties took

precautions to safeguard confidentiality of their communication, the privilege will not be loss. But we still follow the ruling in Pp v Carlos.

y Situation: Husband arrived carrying bag of money after robbing the bank and in the presence of the wife, put the bag under the bed or some

hidden closet. Assuming that we dont have marital disqualification rule, and we compelled the wife to testify as to what she saw (i.e. saw the

husband arrive with the bag of loot). Will that be covered by confidential marital communication? There was no effort to hide it from the wife

It should not be covered because it is not a communication but some American courts (just FYI) apply the privilege even to acts which

otherwise would not have been done by the other in the presence of the other spouse were it not for the marital trust. Rulings are conflicting

with respect to application of the privilege to acts otherwise not have performed by the spouse in the presence of the other were it not for

the presence of trust between them.

B. Attorney-Client PrivilegeRule 130, Section 24 (b). An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him or

his advice given thereon in the course of OR with a view to professional employment; nor can an attorneys secretary, stenographer or clerk be

examined without the consent of the client AND his employer, concerning any fact the knowledge of which has been acquired in such capacity.

McCormick:

y This privilege dates back to Ancient Roman civilization.

y Justifications for the lawyers exemption from disclosing his clients secrets:

1. The law is complex and in order for citizens to comply with it in the management of their affairs and the settlement of their

disputes they require the assistance of expert lawyers.

2. Lawyers are unable to discharge this function without the fullest possible knowledge of facts of the clients situation.

3. The client cannot be expected to place the lawyer in full possession of the facts without the assurance that the lawyer cannotbe compelled, over the clients objection, to reveal the confidences in court.

Theoretical considerations

y Jeremy Bentham: The privilege is not needed by the innocent party with a righteous cause or defense, and that the guilty should not begiven its aid in concerting a false one.

y Wigmore: Although he subscribes to this view, he acknowledged that its benefits are all indirect and speculative; its obstruction is plain


16/27

EVIDENCE MIDTERMS Prof. R. A. Vinluan [1st Sem, AY1011] KARICHI E. SANTOS up law Page 16 of 27and concrete.

y Cartesian postulate: privilege effects some unknown and unknowable marginal alteration in client behavior.

y To the extent that the evidentiary privilege, then, is integrally related to an entire code of professional conduct, it is futile to envision

drastic curtailment of the privilege without substantial modification of the underlying ethical system to which the privilege is merely

ancillary.

Regalado:

y REQUISITES FOR THE ATTORNEY-CLIENTPRIVILEGE TO APPLY:

1. Existence of attorney-client relation

- Applicable even to counsel de officio

2. Privilege is invoke with respect to a confidential communication between them in the course of professional employment

- Preliminary communications made for the purpose of creating

- Rule also allows with a view to professional employment

3. The client has not given consent to the attorneys testimony thereon

4. The purpose must be lawful

y Communications covered by the privilege:

o Verbal statements

o Documents or papers entrusted to attorney

o Facts learned by the attorney through the act or agency of his client

y Not applicable to communications which are:

o Intended to be made public

o Intended to be communicated to others

o

Intended for an un lawful purposeo Received from third persons not acting in behalf OR as agents of the client

o Made in the presence of third parties who are strangers to the attorney-client relationship

y Period to be considered: that date when the privileged communication was made by the client to the attorney in relation to either a

crime committed in the past OR with respect to a crime intended to be committed in the future

Uy Chico v. Union Life

(1915; Trent,J.)

RAV says:

- We noted that whats

covered by the privilege is

confidential, what does

confidential mean? It means

not intended to be disclosed

to other persons.-Privilege was not applicable

here because it was intended

to be disclosed.

Uy Chico authorized his attorney to effect a compromise

agreement on the insurance policies with the administrator of

his fathers estate. However, he later on sought to recover the

face value of the policies. He consented to his attorneys

testimony but on appeal, the attorney wanted to withdraw the

waiver on the theory that it was privileged.

ISSUE:Was the subjectofattorneys testimony on the

compromise agreementon policies privileged?

NO. If the attorney has been authorized to transact with third

persons on behalf of the client, the instruction by the client is

no longer privileged communication.

- The evidence concerns dealings of the plaintiff's attorney

with a third person

- Purpose of atty-client privilege: Advising the clients of his

rights, i.e. communications not intended for information of 3rd

persons or to be acted upon by them.

- A communication made by a client to his attorney for the

express purpose of its being communicated to a third person is

essentially inconsistent with the confidential relation.

- Not covered by the privileged: When the attorney has

faithfully carried out his instructions by delivering thecommunication to the third person for whom it was intended

and the latter acts upon it.

- Such a communication, after reaching the party for whom it

was intended at least, is a communication between the client

and a 3rd

person, and that the attorney simply occupies the role

of intermediary/agent.

Regala v. Sandiganbayan

(1996; Kapunan,J.)

RAV says:

- Notice that hindi ako sinali sa

dispositive. Kaya hanggang

ngayon, may kaso pa rin ako!

- Read Punos dissent. Thats

the correct one. The caseshould have been remanded

and then we would have to

prove that we come under the

exceptions.

- Inuna namin si Regala kasi

pag si Angara ang nauna, it will

draw much attention.

ACCRA lawyers acted as nominees-stockholders of corporations

involved in the sequestration proceedings (because the money

involved were from the coco levy fund).

Roco was excluded as defendant because he promised to reveal

identity (which he didnt) so ACCRA lawyers wanted the same

treatment. However, PCGG laid down conditions for the ACCRA

lawyers exclusion in the case i.e. to divulge their clients

identity. SB finally denied their exclusion.

ISSUE:WONthe clients identity(allegedly Danding)andthe

deeds ofassignmentare privileged?

YES. The case at bar falls under at least two exceptions:

1. Disclosure of the alleged client's name would lead to

establish said client's connection with the very fact in issue of

the case, which is privileged information, because the privilege,

as stated earlier, protects the subject matter or the substance

(without which there would be no attorney-client relationship).

2. Revelation of the client's name would obviously provide the

necessary link for the prosecution to build its case, where none

otherwise exists.

Where the communicated information, which clearly falls

within the privilege, would suggest possible criminal activity but

there would be not much in the information known to the

prosecution which would sustain a charge EXCEPT that

- GENERAL RULE: A lawyer may NOTinvoke the privilege and

refuse to divulge the name or identity of his client.

- RATIO FOR GENERAL RULE:

1. Court has a right to know that the client whose privileged

information is sought to be protected is flesh and blood.

2. Privilege begins to exist only after the attorney-client

relationship has been established. The attorney-client privilege

does not attach until there is a client

3. Privilege generally pertains to the subject matter of the

relationship.4. Right to confrontation: Due process considerations require

that the opposing party should know his -adversary.

- EXCEPTIONS:

1.Client identity is privileged where a strong probability exists

that revealing the clients name would implicate that client in

the very activity for which he sought the lawyers advice.

2. Where disclosure would open the client to civil liability, his

identity is privileged.

3. Where the governments lawyers have no case against an

attorneys client unless, by revealing the clients name, the said

name would furnish the only link that would form the chain of

testimony necessary to convict an individual of a crime, the

clients name is privileged.

4. Content of any client communication

5. Identity of the client REQUISITES:


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EVIDENCE MIDTERMS Prof. R. A. Vinluan [1st Sem, AY1011] KARICHI E. SANTOS up law Page 17 of 27revealing the name of the client would open up other privileged

information which would substantiate the prosecutions

suspicions, then the clients identity is so inextricably linkedto

the subject matter itselfthat it falls within the protection

Compelling disclosure of the client's name in circumstances

such as the one which exists in the case at bench amounts to

sanctioning fishing expeditions by lazy prosecutors.

- nature of the attorney-client relationship has been previously

disclosed

- identity is intended to be confidential

Why? Revelation would otherwise result in disclosure of the

entire transaction.

Barton v. Leyte Asphalt &

Mineral Oil Co.

(1924; Street,J.)

RAV says:

- Notice that

Barton was sales agent for bituminous limestones mined from

Lucio Property. In disproving Bartons claim for damages,

defendant presented Exhibit 14 which consists of a carbon copy

of a letter dated June 13, 1921, written by Barton to his

attorney, Frank B. Ingersoll, and in which he states, among

other things, that his profit from the San Francisco contract

would have been at the rate of 85 cents (gold) per ton.

Authenticity of the letter was admitted, and when it was

offered in evidence by the attorney for the defendant the

counsel for the plaintiff announced that he had no objection to

the introduction of this carbon copy in evidence IF they would

explain where this copy was secured.

Attorney for the defendant: Informed the court that he

received the letter from the former attorneys of the defendant

without explanation of the manner in which the document had

come into their possession.

Attorney for the plaintiff: "We hereby give notice at this time

that unless such an explanation is made, explaining fully how

this carbon copy came into the possession of the defendantcompany, or any one representing it, we propose to object to

its admission on the ground that it is a confidential

communication between client and lawyer."

No further information was then given by the attorney for the

defendant as to the manner in which the letter had come to

his hands.

Trialjudge excluded the document, on the ground that it was a

privileged communication between client and attorney.

- The trial judges ruling was erroneous; for even supposing that

the letter was within the privilege which protects

communications between attorney and client, this privilege

was lost when the letter came to the hands of the adverse

party.

- It makes no difference how the adversary acquired possession

The law protects the client from the effect of disclosures made

by him to his attorney in the confidence of the legal relation,

but when such a document, containing admissions of the client,

comes to the hand of a third party, and reaches the adversary,

it is admissible in evidence.

- Citing Wigmore: The law provides subjective freedom for the

client by assuring him of exemption from its processes of

disclosure against himself or the attorney or their agents of

communication. This much, but not a whit more, is necessary

for the maintenance of the privilege. Since the means of

preserving secrecy of communication are entirely in the client's

hands, and since the privilege is a derogation from the general

testimonial duty and should be strictly construed, it would beimproper to extend its prohibition to third persons who obtain

knowledge of the communications. One who overhears the

communication, whether with or without the client's

knowledge, is not within the protection of the privilege. The

same rule ought to apply to one who surreptitiously reads or

obtains possession of a document in original or copy.

- When papers are offered in evidence a court will take no

notice of how they were obtained, whether legally or illegally,

properly or improperly; nor will it form a collateral issue to try

that question

Orient Insurance v. Revilla

(1930; Street,J.)

- Insurance company refused to pay the proceeds because of

the insured Teal Motors incediarism and fraud. The insurance

contract provides that insured must appeal/file a case within

three months after notice of rejection otherwise, claim would

be forfeited.

- Insurance cos representative requested Teal Motors to deferjudicial action due to possibilities of extrajudicial compromise.

Hickman v. Taylor

(1947)

Upjohn Company v. U.S.

(1981)

In re Grand Jury

Investigation

(1983)

U.S. v. McPartlin

(1979)

U.S. v. Gordon-Nikkar

(1975)

U.S. v. Nobles

(1975)

People v. Sandiganbayan

(1997)

Every communication between an attorney and a client for a

criminal purpose is a conspiracy OR an attempt at a conspiracy

which is not only lawful to divulge but must promptly be

disclosed.

RAV says:

y Assume youre already a lawyer: You cannot agree on the fees because you were charging too much so prospective client decides not to

get your services. Will the privilege apply? Yes of course.

y Situation: A cousin of yours thought youre already a lawyer, but at the time you were consulted, you were just a law student. He started

gorging out his problems and disclosed all confidential information. Yes! In the states thats the ruling. Any reasonable basis, yes.

y Can you explain to us what will happen if we dont have this privilege? Lawyer may be called to the stand to testify against me and I will

have to get a new lawyer. Ill tell him everything again and then you call him again. Thats a procedural nightmare without this privilege.

You should give him the Miranda warning.


18/27

EVIDENCE MIDTERMS Prof. R. A. Vinluan [1st Sem, AY1011] KARICHI E. SANTOS up law Page 18 of 27y What is the rationale for this privilege? Promote candor between the client and the lawyer.

y What was Benthams criticism? Its only for the guilty. It will apply on during his time when there were only few laws.

y Does this privilege reallysuppress the truth? The facts are not privileged. Illustration: Youre the lawyer, I aaaah I was a pedestrian but I

aah when I cross the street, it was against the red light. I was injured. We decided to sue the driver. So. I actually told you that when I

cross the street, it was against the red light. That was the communication I gave you. What is covered by the privilege here? Lawyer

cannot be compelled to tell what I told her. But can the other aaah counsel for the opposing party call me to the stand, whether at the

time I crossed the street, the light was red. This does not cover the underlying facts. You can always ask client as to what really happened

but not what he told his lawyer. He can lie but thats another matter.

y Situation: Suppose you shot somebody but before end of our consultation I told you, this is the gun I used in the SOP, why dont you keep

this for me? What is your obligation? Are you duty bound to surrender it to the authorities or is it covered by the privilege?

1. Are you duty bound? Yes, thats the majority view.

2. If you turn over the gun, should you disclose the source? Still not settled.

3. So you should never accept instruments of the crime from your client otherwise you are duty-bound to surrender it to

authorities.

y Situation: During my consultation, I killed somebody and buried him somewhere and I tell you the location. Is that covered by privilege,

can you be compelled to disclose? Yes, covered by the privilege. Sensational US case: Serial killers 2 lawyers went to the site and saw the

body of the victim. Parents went to the lawyers to plead where the body was buried. Sought to be disbarred because they refused to

disclose. Is this privileged? What do you think was the verdict? They were absolved. It was covered, because they did not touch the body.

Youre not supposed to touch anything.

y What about pre-existing documents? E.g. Im being charged with tax evasion. So I turn over to you pre-existing documents (not ones I

specially prepare for you). Not covered by the privileged, turning them over to the lawyer will not make them privileged. Otherwise, if

you want to keep it out of the reach of the law, you simply turn it over to your lawyers.

y

Identity of the client: Is that covered by the cl ient?1. GENERAL RULE: Fact of engagement AND identity is not covered. Lawyer may not invoke the privilege and refuse to divulge the

identity of his client.

2. EXCEPTIONS: As held in the case ofRegala,Vinluan etc.

a. If there is a probability that disclosure of the identity would implicate the client in the very matter for which legal

advice was sought in the first place

b. The disclosure would open the client to civil liability

c. Where the identity is intended to be confidential

C. Physician-Patient PrivilegeRule 130, Section 24 (c). Any person authorized to practice medicine, surgery or obstetrics, cannot in a civil case, without the consent of the

patient, be examined as to any advice or treatment given by him OR any information which he may have acquired in attending such patient in a

professional capacity, which such information was necessary to enable him to act in that capacity AND which would blacken the reputation of the

patient.

Regalado:

y Not necessary that the physician-patient privilege relationship was treated through the voluntary act of the patient. Thus, the treatment

may have been given at the behest of another, the patient being in extremis.

y REQUISITES FOR THE PHYSICIAN-PATIENTPRIVILEGE TO APPLY:

1. Physician is authorized to practice medicine, surgery or obstetrics

2. Information was acquired or the advice or treatment was given by him in his professional capacity for the purpose of treating

and curing the patient

3. The information, advice or treatment, if revealed, would blacken the reputation of the patient4. The privileged is invoked in a CIVIL case, whether the patient is a party or not

y Privilege not applicable when:

o Communication was not given in confidence

o Communication is irrelevant to the professional employment

o Communication was made for an unlawful purpose i.e. intended for the commission or concealment of a crimeo Information was intended to be made public

o Waiver of the privilege either by the provisions of contract or law

Rule 28 of RoC where results of physical and mental examination of a person, when ordered by the court are

intended to be made public, hence can be divulged in that proceeding and cannot be objected to on the ground of

privilege;

Rule 28, Sec. 4: Party examined obtains a report on the said examination or takes the deposition of the examiner

Results of autopsies or post-mortem examinations are generally intended to be divulged in court, aside from the fact

that the doctors services were not for purposes of medical treatment

Stipulations in life insurance policies

Lim v. Court of Appeals

(1992)


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EVIDENCE MIDTERMS Prof. R. A. Vinluan [1st Sem, AY1011] KARICHI E. SANTOS up law Page 19 of 27Krohn v. Court of Appeals

(1994)

D. State SecretsRule 130, Section 24 (e). A public officer cannot be examined during his term of office or afterwards as to communications made to him in official

confidence, when the court finds that the public interest would suffer by the disclosure.

U.S. v. Nixon(1974)

Banco Filipino v. Monetary

Board

(1986)

Where no public interest would be prejudiced, the rule on

State secrets does not apply.

Neri v Senate

E. Parental and Filial Privilege

Rule 130, Section 25. Parentaland filial privilege. No person may be compelled to testify against his parents, other direct ascendants, children, or

other direct descendants.

Art. 215, Family Code. Descendant may be compelled to testify against his parents and grandparents, if such testimony is indispensable in

prosecuting a crime against the descendant OR by one parent against the other.

Regalado:

y

People v. Publico

(1972)

F. Newsman's Privilege

R.A. 53, as amended by R.A. 1477.Heading. Text here.

Matter of Farber (A.B.)

(1978)

G. Priest-Penitent Privilege

Rule 130, Section 24 (d). A priest or minister cannot, without the consent of the person making the confession, be examined as to any confession

made to or any advice given by him in his professional character in the course of the discipline enjoined by the church to which the minister or

priest belongs.

IX. Admissions and Confessions

A. AdmissionsRule 130, Section 26.Admissions ofa party. The act, declaration or omission of a party as to a relevant fact may be given in evidence against him.

Regalado:

y ADMISSION is any statement of fact made by a party against his interest OR unfavorable to the conclusion for which he contends or isconsistent with the facts alleged by him.

y Distinguish between admission and confession

ADMISSION CONFESSION

Statement of a fact which does not involve an acknowledgment of

guilt or liability

Involves acknowledgment of guilt or liability

Express OR tacit Express

Made by third person; admissible against a party Can only be made by the party himself; in some cases admissible

against his co-accused

y REQUISITES FOR AN ADMISSION TOBE ADMISSIBLE:

1. Involve matters of fact, not of law


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EVIDENCE MIDTERMS Prof. R. A. Vinluan [1st Sem, AY1011] KARICHI E. SANTOS up law Page 20 of 272. Categorical and definite

3. Knowingly and voluntarily made4. Adverse to the admitters interest, otherwise it would be self-serving and inadmissible.

y Form?verbal or written

y Judicial admission is one made in connection with a judicial proceeding in which it is offered (Rule 129, Sec. 4)

y Extrajudicial admission is any other admission

y Admission by conduct e.g.

o flight from justice circumstantial evidence of consciousness of guilt

o destruction of documentary evidence OR eloignment of witnesses

y Not an admission by conduct act of repairing a machine, bridge or other facility after an injury

y Distinguish between admissions against interest and declarations against interest

ADMISSION AGAINST INTEREST DECLARATION AGAINST INTEREST

Not necessary; although it goes to the weight (greatly enhance its

probative weight)

Made against proprietary or pecuniary interest of the party

Made by the party himself and is a primary evidence and

competent though he be present in court and ready to testify

Made by a person who is either deceased OR unable to testify

Made any time Made ante litem motam

Self-serving declaration

y Is one which has been made extrajudicially by the party to favor his interest

y Not admissible in evidence

y Refers to the extrajudicial statement of a party which is being urged for admission in courty Does not include his testimony as witness in court

y No application to a court declaration

y Where the statement was not made in anticipation of a future litigation, the same cannot be considered self-serving

Rule 130, Section 32.Admission by silence. An act or declaration [1] made in the presence AND [2] within the hearing OR observation of a party

who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, AND when proper or possible for

him to do so, may be given in evidence against him.

Regalado:

y REQUISITES FOR ADOPTIVE ADMISSION TO APPLY:1. He must have heard or observed the act or declaration of the other person

2. He must have had the opportunity to deny

3.

He must have understood the statement

4. He must have an interest to object, such that he would naturally have done so if the statement was not true

5. The facts were within his knowledge

6. The fact is admitted or the inference to be drawn from his silence is material to the issue (Pp v Paragsa)

y Applicable when:

o Person was surprised in the act

o Even if he is already in the custody of the police

o Voluntary participation in the reenactment of the crime conducted by the police is considered a tacit admission of complicity

o Adverse statements in writing if the party was carrying on a mutual correspondence with the declarant

y Not applicable if:

o Statements adverse to the party were made in the course of an official investigated

o Pointed out in the course of a custodial investigation and was neither asked to reply nor comment on such imputations (Pp vAlegre)

o Party had a justifiable reason to remain silent e.g. acting on the advice of counsel, otherwise, right to silence will be illusory

o

Viacrucis v. CA

(1972)

Keller & Co. v. COB

(1986)

People v. Paragsa

(1978)

People v. Alegre

(1979)

Griffin v. California

(1965)

B. Compromises


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Rule 130, Section 27.Offerof compromise notadmissible. In CIVIL cases, an offer of compromise is NOT an admission of any liability AND is not

admissible in evidence against the offeror.

In CRIMINAL cases, EXCEPT [1] those involving quasi-offense (criminal negligence) AND [2] those allowed by law to be compromise, an offer of

compromise may be received in evidence as an implied admission of guilt.

A plea of guilty later withdrawn OR an unaccepted offer of plea of guilty to a lesser offense is not admissible in evidence against the accused

who made the plea or offer.

An offer to pay or payment of medical, hospital and other expenses occasioned by an injury is not admissible in evidence as proof of any civil or

criminal liability for the injury.

In rape cases; instances showing implied admission of guilt

y An offer to compromise for a monetary consideration, and not to marry the victim

y The attempt of the parents of the accused to settle the case with the complainant

y An offer of marriage by the accused, during the investigation of the rape case

Veradero v. Insular Lumber

(1924)

RAV says:

Liability was admitted, onlythe amount was in issue

An offer of compromise in a CIVIL case is not a tacit admission

of liability and cannot be proved over the objection of the

offeror, UNLESS such offer is clearly not only to buy peace bu

amounts to an admission of liability, the offered compromise

being directed only to the amount to be paid.

U.S. v. Torres

(1916)

People v. Godoy

(1995)

Compromise was not admitted as evidence. He was not aware

of the compromise offered by his mother.

People v. De Guzman

(1996)

He was part of the compromise scheme

People v. Yparriguirre

(1997)

RAV says:

How about the fact that civil

action is impliedly instituted

and the offer of compromise

only was only with respect to

the civil aspect, pwede bang

argument yun? Nowadays,

judges very tolerant on this.

Compromise was performed before aninformationwas filed. It doesnot make any difference.

People v. Maqui

(1914)

The accused may be permitted to prove that such offer was

not made under consciousness of guilt but merely to avoid the

risks of criminal action against him.

C. Res Inter Alios Acta

Rule 130, Section 28. Admissions bythird party. The rights of a party cannot be prejudiced by an act, declaration or omission by another, EXCEPT

as hereinafter provided.

Regalado:

y Refers to the first branch of the rule res interalios acta nocere non debet

RAV says:

y RATIONALE: Unjust and unfair for a person to be bound by the acts of stranger, unless that someone has been authorized by you. SC laid

down the rationale for this rule in Pp vRaquel(RAV read a paragraph from the decision)

People v. Alegre

(1979)

When no independent evidence is available EJC of accused

cannot be used as against his co-accused as the res inter alios

rule applies to both extrajudicial admissions and confessions.

People v. Raquel

(1996)

Must be repeated in open court

Exceptions to the rule that it may not be admitted (statement o

another cannot prejudice another):

Interlocking confessions accused voluntarily and


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independently give confessions and these confessions jive with

one another and are corroborated by other evidence

D. Exceptions to the Res Inter Alios Acta Rule

1. Partner's/Agent's Admissions

Rule 130, Section 29.Admissions bya co-partnerORagent. The act or declaration of a partner or agent of the party, within the scope of his

authority AND during the existence of the partnership/agency may be given in evidence against such party after the partnership/agency is shown

by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor or other persons

jointly interested with the party.

Regalado:

y REQUISITES FOR THE EXCEPTION TO APPLY:

1. Partnership/agency/joint interest as established by an independent evidence

2. Act/declaration is within the scope of the partnership/agency/joint interest3. Such act/declaration must have been made during the existence of the partnership/agency/joint interest

y Statements made AFTER a partnership has been dissolved do not fall within this exception, BUT where the admissions are made in

connection with the winding up of the partnership affairs, said admissions are still admissible as the partner is acting as an agent of his

co-partners in said winding up.

y Admissions by counsel are admissible against the client as the former acts in representation and agent of the client, subject to the

limitation that the same should not amount to [1] compromise OR [2] confession of judgment.

y JOINT DEBTOR does not refer to mere community of interest but should be understood according to its meaning in the common law

system which the provision was taken, i.e. in solidum and not mancomunada.

Mahlandt v. Wild Canid

Survival & Research Center

(Year)

ISSUE: WONa party can be bound bythe admission ofan agent

who has no personalknowledge ofthe fact?

RAV says: This case is authority on the point that oral

admission of an agent to be admissible against a party, no

requirement that there should be personal knowledge on the

part of the agent. It is still binding on the other party.

RAV says:

y RATIONALE according to McCormick: There are reasons to believe that the agents statements during and about the agency have some

special likelihood or liability. The statements offered against employer are likely

y Situation: Vehicular collision involving company driver. Right after the accident he said Im sorry, Im in a business errand for my

company. Is that admission that he was on company business and not just a joyride? Is it admissible against the company that this driver

during the collision was driving on company business when the accident happened? PROVIDED that it is shown by evidence other than

the admission.

2. Co-conspirator's Statements

Rule 130, Section 30. Admission by conspirators. The act or declaration of a conspirator, relating to the conspiracy AND during its existence, may

be given in evidence against the co-conspirator, after

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