Evidence Flashcards
(149 cards)
1
Q
What is evidence
A
Evidence is the means, sanctioned by the Rules of Court, of ascertaining in a judicial proceeding the truth respecting a matter of fact
2
Q
Principle of Uniformity
A
The rules of evidence shall be the same in all courts and in all trials and hearings. (Rule 128, Section 2)
XP: When otherwise provided by law or these rules, such as those enumerated under Rule 1, Sec. 4 of the Rules of Court (ROC): (1) Election cases;
(2) Land registration cases;
(3) Cadastral cases;
(4) Naturalization proceedings;
(5) Insolvency proceedings; and
(6) Other cases not herein provided for by law.
3
Q
Kinds of Evidence as to its form
A
Documentary - Writings or any material offered as proof of their contents
Object - Evidence which directly addressed to the court’s senses
Testimonial - Consist of the statement of a witness offered to the court. Maybe oral/live or by judicial affidavit
4
Q
Evidence vs Proof
A
Evidence - It is the medium or means of proving or disproving a fact. It is the medium of proof.
Proof - It is the effect and result of evidence. It is the probative effect of evidence and is the conviction or persuasion of the mind resulting from the consideration of the evidence
5
Q
Factum Probans vs Probadum
A
Probans - The fact by which the factum probandum is to be established.
Probandum - The fact or proposition to be established.
S - The fact to be proved; the fact which is in issue and to which the evidence is directed.
UM - The probative or evidentiary fact tending to prove the fact in issue.
One must adduce during trial the factum probans or the evidentiary facts by which the factum probandum or the ultimate fact can be established.
6
Q
Burden of Proof vs. Burden of Evidence
A
Burden of Proof - the duty of a party to present evidence on the facts in issue necessary to establish his or her claim or defense by the amount of evidence required by law. Burden of proof never shifts (Sec. 1, Rule 131, Rules of Court)
Burden of Evidence - the duty of a party to present evidence sufficient to establish or rebut a fact in issue to establish a prima facie case. Burden of Evidence may shift from one party to the other in the course of the proceedings, depending on the exigencies of the case
7
Q
Admissibility of Evidence
A
refers to the question of whether or not the circumstance (or evidence) is to be considered at all. On the other hand, the probative value of evidence refers to the question of whether or not it proves an issue
8
Q
Requisites for Admissibility
A
Evidence is admissible when it is relevant to the issue and is not excluded by the Constitution, the law or by the Rules of Court.
For evidence to be admissible, two elements must concur: (Admissibility = Relevancy + Competent)
a. Relevancy – it must have such a relation to the fact in issue as to induce belief in its existence or non-existence.
b. Competency – it must not be excluded by the Constitution, the law or by the rules (Rule 128, Sec. 3, as amended).
9
Q
Right against self-incrimination as to object evidence
A
What the Constitution prohibits is the use of physical or moral compulsion to extort communication from the accused, but not an inclusion of his body in evidence, when it may be material.
10
Q
Original Document Rule
A
When the subject of the inquiry is the contents of the document, no evidence shall be admissible other than the original document
11
Q
Parole Evidence Rule
A
When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, as between the parties and their successors in interest, no evidence of such other terms other than the contents of their written agreements’
The parol evidence rule precisely forbids any addition to or contradiction of the terms of a written agreement by testimony or other extrinsic evidence purporting to show that, at or before the execution of the parties’ written agreement, other or different terms were agreed upon by the parties, varying the purport of the written contract. When an agreement has been reduced to writing, the parties cannot be permitted to adduce evidence to prove alleged practices which, to all purposes, would alter the terms of the written agreement. Whatever is not found in the writing is understood to have been waived and abandoned.
12
Q
Hearsay Evidence Rule
A
a witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception
13
Q
Offer of Compromise in Civil Case
A
In civil case, an offer of compromise is NOT admission of any liability and is NOT admissible in evidence against the offeror
14
Q
Direct vs. Circumstantial Evidence
A
Direct - Evidence which proves a challenged fact without drawing any inference
Circumstantial - Indirectly proves a fact in issue, such that the factfinder must draw an inference or reason from circumstantial evidence
The difference between direct evidence and circumstantial evidence involves the relationship of the fact inferred to the facts that constitute the offense. Their difference does not relate to the probative value of the evidence.
15
Q
Requisites to warrant a conviction based on circumstantial evidence
A
(a) there is more than one circumstance;
(b) the facts from which the inferences are derived are proven; and
(c) the combination of all the circumstances is such as to produce conviction beyond reasonable doubt (Rule 133, Sec. 4)
16
Q
Positive vs. Negative Evidence
A
Positive - When a witness affirms in the stand that a certain state of facts exist or that a certain event happened
Negative - when the witness states that an event did not occur or that the state of facts alleged to exist does not exist
17
Q
Requisites of Judicial Notice
A
(1)The matter must be of common knowledge;
(2)It must be well and authoritatively settled and not doubted or uncertain; and,
(3)It must be known to be within the limits of the jurisdiction of the court
18
Q
Mandatory Judicial Notice
A
Mandatory
As a general rule, when the matter is subject to
a mandatory judicial notice, no motion or hearing
is necessary for the court may take judicial notice
of a fact.
(1) Existence and territorial extent of states;
(2) Their political history, forms of government
and symbols of nationality;
(3) The law of nations;
(4) The admiralty and maritime courts of the
world and their seals;
(5) The political constitution and history of the
Philippines;
(6) The official acts of the legislative, executive
and judicial departments of the National
Government of the Philippines;
19
Q
Discretionary Judicial Notice
A
Discretionary Judicial Notice
- Matters which are of public knowledge
- Matters capable of unquestionable demonstration
- Matters ought to be known to judges because of their Judicial Functions
20
Q
Is Judicial Notice equal to judicial knowledge?
A
No. Judicial Notice is not judicial knowledge. The mere personal knowledge of the judge is not the judicial knowledge of the court, and he is not authorized to make his individual knowledge of a fact, not generally or professionally known, the basis of his action
21
Q
General Rule on Judicial Knowledge
A
As a general rule, courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same, and notwithstanding the fact that both cases may have been tried or are actually pending before the same judge
22
Q
Judicial Admission Requisites
A
- Made by party or his counsel
- Made in the course of the proceeding of the same case
- May be oral/written
23
Q
How are Judicial Admissions Made
A
- In the pleadings
- In the course of trial/pre-trial
- Other stages of judicial proceedings
24
Q
Basic requisites of admissibility of object evidence
A
- It must be relevant
- The evidence must be authenticated/requires testimonial sponsorship
- The authentication must be made by a competent witness
- The object must be formally offered in evidence
25
Categories of Object Evidence
1. Actual/Autoptic - those which have a direct relation or part in the fact or incident brought to the court for personal examination by the judge. May be divided into 3 more categories:
a. Unique Objects - Those that have readily identifiable marks
b. Objects made unique - Those that are made readily identifiable
c. Non-unique objects - no identifying marks
2. Demonstrative Evidence - those that represent the actual object ( pics and vids) being offered to draw an inference or to aid in comprehending the verbal testimony of a witness
26
What constitutes documentary evidence?
Documents as evidence consists of writings, recordings, photographs or any material containing letters, words, sounds numbers, figures, symbols or their equivalent, or other modes of written expression offered as proof of their contents
27
Exceptions to the original document rule
1. When the original is lost, destroyed or cannot be produced in court without the bad faith on the part of the offeror
2. WHen the original is in the custody or control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice, or the original cannot be obtained by local judicial processes or procedures
3. 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 tp be established is the only the genral result of the whole
4. When the original is a public record in the custody of a public officer or recorded in a public office
5. WHen the originalis not closely related to a controlling issue
28
What is a duplicate
It is a counterpart produced by the same impression of the original , or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording or by chemical reproduction or by other equivalent techniques which accurately reporduce the original
29
When is a duplicate not admissible
1. A genuine question is raised as to the authenticity of the original
2. It is unjust or inequitable to admit the duplicate in lieu of the original
30
What is secondary evidence
Secondary Evidence of the contents of a written instrument or document itself refers to evidence other than the original instrument or document itself
31
What are the requisites in introducing secondary evidence when the original is lost, destroyed or cannot be produced in court?
The offeror must prove the following
1. The existence or due execution of the original
2. The loss and destruction of the original or the reason for its nonproduction in court
3. on the part of the offeror, the absence of bad faith to which the unavailability of the original can be attributed
32
What can be considered as evidence when the original is unavailable
1. Copy of the original document
2. Recital of its contents in some authentic documents
3. Testimony of witnesses
IN THE ORDER STATED
33
What are the requisites when the original is in the adverse party's control
The offeror must prove the following:
1. The existence of the document
2. The document is under the control or custody of the adverse party
3. the proponent has given reasonable opportunity to produce the original to the other party
4. Despite reasonable notice, the other party failed to produce it
34
How do you present secondary evidence when the original is in the custody of a public officer?
1. The contents may be proved by a CTC issued by the public officer in the custody thereof.
35
Exceptions to the parole evidence (five)
A party may present evidence to modify, explain, add or add to the terms of the agreement if he/she puts in issue in a VERIFIED PLEADING
1. An intrinsic ambuguity
2. The failure of the written agreement to express the true intent and agreement of the parties thereto
3. The validity of the written agreement
4. The existence of other terms agreed to by the parties or their successors-in-interest after the execution of the written agreement
36
Who is qualified to be a witness
All who perceives, and perceiving, can make known their perception to others, may be witnesses
Religious or politcal belief, interest in the outcome of the case or conviction of a crime unless otherwise provided for by law, shall not be a ground for disqualification
37
What is the presumption as to the competence of a witness?
As a general rule, when a witness takes the witness stand, the law presumes that he is competent to testify
38
May deaf-mutes be witnesses
Yes. All who persons who can perceive and make their perception known may be witnesses
Deaf-mutes may be witnesses where
1. They can understand and appreciate the sanctity of an oath
2. Can comprehend the facts on which they are going to testify
3. Can communicate their ideas through a qualified interpreterC
39
Competence vs. Credibility of a witness
Competence - refers to the basic qualifications of a witness as his capacity to perceive and communicate his perception to others. In deciding this, the court will not look into a witness' trustworthiness
Credibility - Refers to the weight and trustworthiness/reliability of a witness.
40
Marital Disqualification Rule
During their marriage, neither the husband nor the wife may testify for or against the other without the consent of theaffected spouse
XP: In a civil case by one against the other
In a criminal case committed by one against the other or latter's direct descendants or ascendants
41
Essential factors to establish existence of marital communication privilege
1. There exists a valid marriage between H&W
2. There was a communication received by the H/W during the subsistence of the marriage
3. The communication was received in confidence
4. The other spouse did not consent to the examination
5. It is not a Crim/Civ case by one against the other or his direct AD
42
May the marital communication privilege be invoked even after the subsistence of marriage?
Yes. Rule 130 provides that the same is applicable during or after marriage
43
Marital Disqualification vs Marital Communication
MD - Disqualification is absolute. The H/W cannot testify against the other without the consent of the other spouse
MC - Disqualification is relatiev such that the HW is only prohibited to testify on matters received by him/her in confidence during the marriage without the consent of the other spouse
MD - May be invoked only during the marriage
MC - May be invoked during or after the marriage
44
Parental Privilege Rule
A parent cannot be compelled to testify against their child or other direct descendants
45
Filial Privilege Rule
A child may not be compelled to testify against his parent or other direct ascendants
46
Does the Parental/Filial Privilege Rule apply to criminal cases?
Yes.
XP: 1. Such testimony is indispensable in a crime committed against such direct descendant
2. In a crime committed by one parent against the other
47
Privilege relating to trade secrets
A person cannot be compelled to testify about any trade secret
XP: The non disclosure will conceal fraud or otherwise work injustice
48
Is an offer of compromise in civil cases admissible in evidence?
No it not an admission of any liability and is not admissible in evidence against the offereor
49
Is an offer of compromise in criminal cases admissible in evidence?
Yes,except those involcing quasi-offenses or those allowed by law to be compromised
50
Is a plea of guilty later withdrawn or an unaccepted offer of a plea of guilty to a lesser offense admissible?
No. neither is any statement made in the course of plea bargaining with the prosecution
51
Good Samaritan Rule
An offer to pay medical, hospital or other expenses is not admissible in evidence as proof of civil or criminal liability for the injury
52
Res Inter Alios Acta
1. The rights of a party cannot be prejudiced by an ado of another
2. Evidence of previous conduct or similar acts at one time is not admissible to prove that one did or did not do the same act at another time
53
Res Inter Alios Acta in relation to co-accused
Extrajudcial confessions are only binding on the confessant and not admissible against the co-accused and is considered hearsay
54
Exceptions to Res Inter Alios Acta
Admissions by a parter r co-agent
Admissions of a joint owner, joint debtor or other interested person
by a conspirator
by privies
by silence
55
What is hearsay
a statement made by one other than the declarant while testifying at trial or hearing, offered to prove the truth of the facts asserted therein
56
When is a statement not considered hearsay
A statement is not hearsay if the DECLARANT TESITIFIES at the trial or hearing and is subject to cross-e and the statement is:
1. Inconsistent with the declarant's testimony and was given under oath subject to the penalty of perjury
2. Consistent with the declarant's testimony and is offered to rebut am express or implied charge against the declarant of recent fabrication or improper influence
3. One of identification of a person made after perceiving him or her
57
Requisites of Dying Declaration
1. The declaration concerns the cause and the surrounding circumstances of the declarant's death
2. It is made when death appears to be imminent and declarant is under conciousness of an impending death
3. The declarant would have been competent to testify had he or she survived
4. The dying declaration is offered in a case in which the subject of inquiry involves the declarant's death
58
Requisites for Spontaneous Exclamations res gestae
1. The principal act, the res gestae, be a startling occurrence
2. The statements were made before, during or shortly after the declarant had time to contrive or devise
3. That the statements made must concern the occurrence in question and its immediately attending circumstances
59
Verbal Res Gestae
1. The principal act to be characterized must be equivocal
2. Equivocal act must be material to the issue
3. Statements must accompany the equivocal act
4. Statements give a legal significance to the equivocal act
60
Sexual Abuse Shield Rule
The following are inadmissible evidence
1. Evidence offered to prove that the alleged victim engaged in other sexual behavior; and
2. Evidence offered to prove the sexual predisposition of the alleged victim
XP: Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accysed was the source of semen, injury or other physical evidence shall be admissible.
61
Estoppel in Pais
1. Commits conduct amounting to false representation or concealment of material facts or at least calculated to convey the impression that the facts are inconsistent with those which the party subsequently attempts to assert;
2. has the intent, or at least expectation that his conduct shall influence the other party
3. has knowledge, actual or constructive, of the real facts
62
Special Presumptions of Death
1. FOR PURPOSES OF OPENING HIS SUCCESSION: considered dead after an absence of 10 years
2. FOR PURPOSES OF OPENING HIS SUCCESSION: absentee after the age of 75 is considered dead after an absence of at least 5 years
3. FOR PURPOSES OF OPENING HIS SUCCESION OR DIVISION OF HIS ESTATE: absentee is considered dead after an absence of 4 years where there is a danger of death
4. FOR PURPOSES OF ALLOWING A SPOUSE TO REMARRY: considered dead after an absence of 4 years
5. FOR PURPOSES OF ALLOWING A SPOUSE TO REMARRY: Considered dead after an absence of of 2 tears when there is danger of death
63
Requisites of a confession
1. It must involve an express and categorical acknowledgment of guilt
2. The facts admitted be constitutive of the criminal offense charged
3. The acknowledgment of the guilt must have been given voluntarily and intelligently
4. The confession must have been made with the assitance of competent and independent counsel
5. There must be no violation of constitutional rights
6. Must be in writing and signed by counsel (In the absence of counsel, signed by parents or family)
64
Photograph out of court identification
1. A series of photographs must be shown, and not that merely of the suspect
2. When a witness is shown a group of pictures, their arrangement and display should in no way suggest which one pertains to the subject
65
Chain of Custody
Method of authenticating object evidence (object evidence not readily identifiable) by showing its MOVEMENT and LOCATION from the time it was obtained until offered in evidence
66
Evidence to prove age in a statutory rape case
1. Birth Cert
In the absence thereof (must be EXPRESSLY and CLEARLY admitted by the accused)
1. Testimony of the victim's mother or relatives
2. Complainant's testimony
67
Requisites of declaration against interests
1. The declaration is made by a person deceased or unable to testify
2. The declaration is against the interest of the declarant
3. At the time the declarations were made, the facts asserted were so far contrary to the declarant's own interest
68
What falls under pedigree
relationship, family, genealogy, birth, marriage, death and date when and the places where these facts occured.
69
Requisites for an act or declaration about pedigree be admitted into evidence.
1. The declarant is dead or unable to testify
2. Pedigree is in issue
3. Person whose pedigree is in issue must be related to thee declarant by birth or by marriage
4. That the declaration must be made before the controversy occurred
5. Relationship between the declarant and the person whose pedigree is in question must as a general rule be shown by evidence other than such act or declaration.
70
Requisites for common reputation
1. It should pertain to boundaries of or custom affecting lands in the community and reputation as to events of general history important to the community, or respecting marriage or moral character
2. Such common reputation is existing prior to the controversy.
71
Opinion Rule and exceptions
GR: The opinion of a witness is inadmissible
XP: 1. Expert Witness - opinion of a witness requiring special knowledge experience education or training may be received into evidence
72
When can the opinion of an ordinary evidence be received in evidence
The opinion of a witness, for which proper basis is given, may be received in evidence regarding:
1. The identity of a person about whom he or she has adequate knowledge
2. A handwriting with which he or she has sufficient familiarity
3. The mental sanity of a person with whom he or she is sufficiently acquianted
4. Impressions of the emotion, behavior, condition or appearance of a person
73
Define Character
The possession by a person of certain qualities of mind and morals, distinguishing them from others
74
Is evidence of a person's character admissible in evidence? Exceptions?
No, except in criminal cases:
1. The character of the offended party may be proved if it tends to establish, in any reasonable degree, the probability or improbability of the offense charged
2. The accused may prove their GMC pertinent to the moral trait involved in the offense charged. PROSECUTION MAY ONLY PROVE BAD MORAL CHARACTER ON REBUTTAL.
75
Direct Examination
Examination-in-chief of a witness by the party presenting him/her on facts relevant to the issue
76
Cross-examination
Done after DE. Examination conducted by the adverse party on the witness on any relevant matter, with sufficient fullness and freedom to:
1. test his or her accuracy and truthfulness
2. Freedom from interest or bias
3. Elicit to all important facts bearing upon the issue.
77
Re-direct examination
Re-examination by the party calling the witness to explain or supplement answers given during the cross-e.
Questions on matters not dealt with during CE may be allowed subject to court discretion.
78
Re-Cross Examination
Examination conducted by the adverse party on matters stated in the re-direct examination and also other matters as may be allowed by the court.
79
May a witness be recalled?
Yes, but only with leave of court.
80
How shall an examination of a witness be conducted
Examination of witnesses presented in trial or hearing shall be done in OPEN COURT and UNDER OATH or AFFIRMATION
Answers shall be given ORALLY
XP: 1. Witness is incapacitated to speak
2. question calls for a different mode of answer
81
Rights of a witness (DI PDE)
1. Be protected from irrelevant, improper or insulting questions, and from harsh or insulting demeanor
2. Not to be detained longer than the interests of justice require
3. Not to be examined except only as to matters pertinent to the issue
4. Not to give answers which will tend to subject him or her to a penalty for an offense unless otherwise provided by law
5. Not to give answers which will tend to degrade their reputation, unless it be to the very fact at issue (Witness must answer to the fact of his or her previous final conviction for an offense)
82
Proof Beyond Reasonable Doubt
Dones not mean such a degree of proof as, excluding the possbility of error, but produces absolute certainty. Moral certainty is required which produces conviction in an unprejudiced mind.
83
When is circumstantial evidence sufficient for conviction
1. There is more than one circumstance
2. The facts from which inferences are derived and proven
3. The combination of all the circumstances is such as to produce conviction beyond reasonable doubt
*Inferences cannot be based on other inferences
84
Guidelines in determining the weight to be given on an expert opinion
1. WON the opinion is based on sufficient facts or data
2. WON it is the product of reliable principles and methods
3. WON the witness has applied the principlesa nd methods to the facts of the case
4. Such other factors as the court may deem helpful
85
Manner of Authenticating Electronic Evidence
(a) by evidence that it had been digitally signed by the person purported to have signed the same;
(b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or
(c) by other evidence showing its integrity and reliability to the satisfaction of the judge.
86
Method of Proof of Electronic Evidence
All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating:
1. facts of direct personal knowledge of the affiant or
2. based on authentic records.
3. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein.
87
Effect of Failure to comply with affidavit of evidence?
Failure to comply with the requirement of an affidavit of evidence has the effect of rendering documents inadmissible and bereft of any probative value as electronic documents.
88
Who are authorized to authenticate CCTV footage?
Persons authorized to authenticate the video or CCTV recording is not limited solely to the person who made the recording but also by another competent witness who can testify to its accuracy.
89
Conditions for ordering DNA testing RSURA
1. Relevance of biological sample to the case.
2. Sample not previously tested or requiring
confirmation.
3. Use of scientifically valid techniques.
4. Potential to produce new relevant information.
5. Consideration of factors affecting testing
accuracy
90
May DNA testing occur without prior court consent?
Yes. DNA testing can also occur without prior court order at the request of any party, including law enforcement agencies, before a suit or proceeding is initiated.
91
Post-conviction DNA Testing
Post-conviction DNA testing may be available, without need of prior court order, to the prosecution or any person convicted by final and executory judgment provided that
(a) a biological sample exists,
(b) such sample is relevant to the case, and
(c) the testing would probably result in the reversal or modification of the judgment of conviction
92
VALLEJO STANDARD In assessing the probative value of DNA evidence, courts should consider the following:
1. How the samples were collected;
2. How they were handled;
3. The possibility of contamination of samples;
4. The procedure followed in analyzing the samples, whether the proper standards and procedures were followed; and
5. Qualification of the analyst who conducted
the tests.
93
FRYE TEST
Under the Frye Test, scientific evidence is admissible if it was based on a scientific technique generally accepted as reliable in the scientific community.
94
Possible Results of DNA testing
1. Exclusion, which means that the samples are different and therefore must have originated from different sources. This conclusion is absolute and requires no further analysis or discussion;
2. Inconclusive, which means that it is not possible to be sure, based on the results of the test, whether the samples have similar DNA types. This might occur for a variety of reasons including degradation, contamination, or failure of some aspect of the protocol. Various parts of the analysis might then be repeated with the same or a different sample, to obtain a more conclusive result; and
3. Inclusion, which means that the samples are similar, and could have originated from the same source. In such a case, the samples are found to be similar, the analyst proceeds to determine the statistical significance of the similarity.
95
PROBABILITY OF PATERNITY
1. DNA results that exclude the putative parent from paternity shall be conclusive proof of non-paternity.
2. If the value of the probability of paternity is less than 99.9%, the results of the DNA testing shall be considered as corroborative evidence.
3. If the value of the probability of paternity is 99.9% or higher, there shall be a disputable presumption of paternity.
WHY? The presumption established in the latter case is merely disputable and should never be considered conclusive because, by definition, probability of parentage is a mere estimate under Section 3(f).
96
Who is a child witness?
A "child witness" is any person who at the time of giving testimony is below the age of eighteen (18) years.
In child abuse cases, a child includes one over eighteen (18) years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition.
97
What is the difference between “guardian ad litem” and “support person”?
What is the difference between “guardian ad litem” and “A guardian ad litem is one that is appointed by the court for a child who is a victim of, accused of, or a witness to a crime. The court shall consider the background of the guardian ad litem and his familiarity with the judicial process, social service programs, and child development, giving preference to the parents of the child, if qualified. The guardian ad litem may be a member of the Philippine Bar.
Note: A person who is a witness in any proceeding involving the child cannot be appointed as a guardian ad litem. (Sec. 5(a))
A support person is a person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support for him.
98
Best interests of the child
the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the child and most encouraging to his physical, psychological, and emotional development.
99
WHO CANNOT BE APPOINTED AS A GUARDIAN AD LITEM?
(1) A person who is a witness in any proceeding involving the child cannot be appointed as a guardian ad litem; and
(2) The offending parent where the child is the victim.
100
duties of the guardian ad litem
(1) Shall attend all interviews, depositions, hearings, and trial
proceedings in which a child participates;
(2) Shall make recommendations to the court concerning the
welfare of the child;
(3) Shall marshal and coordinate the delivery of resources and
special services to the child;
(4) Shall explain, in language understandable to the child, all
legal proceedings, including police investigations, in which the
child is involved; and
(5) Shall assist the child and his family in coping with the
emotional effects of crime and subsequent criminal or noncriminal proceedings in which the child is involved.
101
rights of the guardian ad litem
(1) Have access to all reports, evaluations, and records
necessary to effectively advocate for the child, except
privileged communications;
(2) Remain with the child while the child waits to testify;
(3) Interview witnesses;
(4) May request additional examinations by medical or
mental health professionals if there is a compelling need
therefor;
(5) Communicate concerns regarding the child to the court
through an officer of the court designated for that purpose;
and
(6) If the guardian ad litem is a lawyer, he may object during
trial that questions asked of the child are not appropriate to
his developmental level.
102
Motions that guardians ad litem are allowed to file
(1) For the appointment of an interpreter
(2) For the appointment of support persons
(3) For an order that the testimony of the child be taken in a
room outside the courtroom and be televised to the court by
live-link television;
(4) For an order that the chair of the child or that a screen
or other device be placed in the courtroom in such a manner
that the child cannot see the accused while testifying;
(5) For an order that a deposition be taken of the testimony
of the child and that it be recorded and preserved on
videotape; and
(6) For the issuance of additional orders to protect the
privacy of the child.
103
PRESUMPTION OF COMPETENCY OF CHILD WITNESSES
Every child is presumed qualified to be a witness. Regardless of age, any child is a competent witness provided he meets the following criteria:
(1) ability of the child to perceive, remember, communicate;
(2) distinguish truth from falsehood; and
(3) appreciate the duty to tell the truth in court.
104
Persons allowed at competency examination
Only the following are allowed to attend a competency examination:
(1) The judge and necessary court personnel;
(2) The counsel for the parties;
(3) The guardian ad litem;
(4) One or more support persons for the child; and
(5) The defendant, unless the court determines that
competence can be fully evaluated in his absence.
105
Mode of questioning of child witnesses
The trend in procedural law is to give a wide latitude to the courts in
exercising control over the questioning of a child witness. The
reasons are clear: W-H-A-T
(1) to facilitate the ascertainment of the truth,
(2) to ensure that questions are stated in a form appropriate to the
developmental level of the child,
(3) to protect children from harassment or undue embarrassment,
and
(4) avoid waste of time
106
When are leading questions allowed in the examination of child witnesses
The court may allow leading questions in all stages of examination of a child if the same will further the interests of justice.
- As a rule, leading questions are not allowed. However, the rules provide for exceptions when the witness is a child of tender years as it is usually difficult for such a child to state facts without prompting or suggestion. Leading questions are necessary to coax or obtain the truth out of their reluctant lips. Leading questions to the child are allowed because he is evidently young and unlettered, making the recall of events difficult or uncertain.
107
Who can authenticate electronic evidence?
Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof.
108
Newly discovered evidence, requisites
A motion for new trial upon the ground of newly discovered evidence is properly granted where there is concurrence of the following three requisites:
(a) the evidence had been discovered after trial;
(b) the evidence could not have been discovered and produced during trial even with the exercise of reasonable diligence; and
(c) the evidence is material, and not merely corroborative, cumulative or impeaching and is of such weight that if admitted, would probably alter the result.
109
Doctrine of Multiple Admissibility
Where the evidence is relevant and competent for two or more purposes, such evidence shall be admitted for any or all the purposes for which it is offered, provided it satisfies all the requisites of law for its admissibility therefore.
110
Doctrine of Conditional Admissibility
Where the evidence at the time of its offer appears to be immaterial or irrelevant unless it is connected with the other facts to be subsequently proved, such evidence may be received, on condition that the other facts will be proved thereafter; otherwise, the evidence already given shall be stricken out.
111
Doctrine of Curative Admissibility
Where the court has admitted incompetent evidence adduced by the adverse party, a party has a right to introduce the same kind of evidence in his/her behalf.
112
Rationale behind Parole Evidence Rule
When parties enter into an agreement, that agreement is considered as the REPOSITORY OF EVERYTHING that the parties have agreed upon in relation to their contractual relationship
113
WHEN IS AUTHENTICATION NOT REQUIRED | DISPENSED WITH
Section 21, Rule 132- When the private document is an ancient document, authentication is no longer needed;
Section 8, Rule 8- When the private document is an actionable document not denied under oath by a party;
Section 19, Rule 132- the writing is a public document or record;
Section 30, Rule 132- the writing is a notarial document acknowledged, proved, or certified in accordance with law- not ALL notarized documents fall under this instance, the document must be acknowledged before a notary public; jurat is not included; and
Section 20, Rule 132- when such genuineness and due execution are immaterial to the issue as when the document is not offered as authentic.
114
Ancient Document Requisites
that the private document is more than 30 years old;
that it is produced from the custody in which it would naturally be found if genuine; and
that it is unblemished by any alterations or circumstances of suspicion.
115
Public Documents
The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country;
Documents acknowledged before a notary public except last wills and testaments- wills are not included because wills need to be proved in probate, it is an exception to the general rule;
Documents that are considered public documents under treaties and conventions which are in force between the Philippines and the country of source; and
Public records, kept in the Philippines, of private documents required by law to enter therein.
All other writings are private. (19a)
116
How to authenticate private documents
By anyone who saw the document executed or written;
By evidence of the genuineness of the signature or handwriting of the maker; or
By other evidence showing its due execution and authenticity.
117
How to prove an official record
If the document is found in the Philippines, prove by presenting:
1. an official publication thereof; or
2. a copy attested by the officer having the legal custody of the record, or by his deputy.
If the document is found in a Foreign Country, prove by presenting:
1. an official publication thereof; or
2. a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody.
118
Apostille Certificate
An Apostille is a certificate that authenticates the origin of a public document. It is issued by a country that is party to the Apostille Convention to be used in another country which is also a party to the Convention. On 14 May 2019, the Philippines became a party to the Apostille Convention
119
Impeachment of a Judicial Record
any judicial record may be impeached by evidence of-
a. want of jurisdiction in the court or judicial officer;
b. collusion between the parties; and
c. fraud in the party offering the record in respect to the proceedings.
120
HOW DO YOU PROVE THE EXISTENCE OF A PUBLIC RECORD OF A PRIVATE DOCUMENT?
a. if they be proved by the original record;
b. by a copy thereof attested by the legal custodian of the record with an appropriate certificate that such officer has the custody.
121
Prove Lack of Record
The certification must contain proofs that there is really no records:
1. Statement that there has been a diligent search of the record; and
2. Despite the diligent effort, no record or entry of a specified tenor is found to exist in the records of the office.
122
Altered Documents (ACID)
Where a document offered as authentic appears to have been altered after its execution, the proponent of such document must account for the alteration by showing that the alteration: A-C-I-D
1. was made by another, without his or her concurrence; or
2. was made with the consent of the parties affected by it; or
3. was otherwise properly or innocently made; or
4. did not change the meaning or language of the instrument.
123
When do you determine the qualification of a witness?
determined at the time the witness is
1. presented in court for examination;
2. at the time of taking his deposition
124
May a witness who was declared in default take the witness stand?
Yes. There is NO PROVISION UNDER THE LAWS DISQUALIFYING a defendant who was declared in default to take the witness stand for those that are non-defaulted defendants.
125
What if there is a complaint affidavit or affidavit of a witness and there are inconsistencies between those contained in the affidavit and testimonial evidence. Which would prevail?
Normally, the testimonial evidence would prevail. It is judicially recognized that affidavits are prepared ex-parte, they are mostly incomplete and often subject to inaccuracy.
126
When may discrepancies between a witness and his statement in an affidavit sufficient to discredit him?
as when the omission in the affidavit refers to a very important detail of the incident that one relating the incident as an eyewitness could not be expected to fail to mention, or
when the narration in the sworn statement substantially contradicts the testimony in court.
127
Who are disqualified to become a witness
Disqualification by reason of mental incapacity or immaturity;
Disqualification by reason of marriage or spousal immunity rule;
Disqualification by reason of parental and filial privilege;
Disqualification by reason of trade secrets.
128
Can the accused marry the victim to seal her lips?
YE. However, this disqualification may still be waived if the other party failed to object on the presentation of the witness in court and invoking the privilege. Also, if it is the party himself who presented his spouse, then it also constitutes waiver. The spouse witness may be subject to cross-examination.
129
XP to the rule that an offer of compromise in civil cases are inadmissible
The following evidence, however, are admissible, even though they originate from a compromise or attempts to arrive at a compromise:
Evidence otherwise discoverable; and
Evidence offered for another purpose such as:
Proving bias or prejudice of a witness;
Negativing a contention of undue delay; or
Proving an effort to obstruct a criminal investigation or prosecution.
130
An offer of compromise in a criminal case is not an implied admission guilt when:
criminal cases involving quasi-offenses or cases of criminal negligence under Article 365 of RPC; or
criminal cases allowed by law to be compromised (example: NIRC- may have compromise with respect to minor violations or those that can be compromised under Katarungang Pambaranggay Law- offenses where imprisonment do not exceed 1 yr or fine of not more than P5,000.00)
Marital rape, the subsequent forgiveness of the wife extinguished criminal action.
131
Admission by silence
The part must have heard or observed the act or declaration of the other person;
He must have had the opportunity to deny it;
He must have understood the act or declaration;
He must have an interest to object as he would naturally have done if the act or declaration was not true;
The facts are within his knowledge; and
The fact admitted or the inference to be drawn from his silence is material to the issue.
132
ADMISSION BY CO-PARTNER OR AGENT-
They ie an act or declaration of a partner or agent that is prejudicial to his or her other co-partners or principal;
The act or declaration must have been made either by a partner or agent who is authorized by his or her co-partners or principal to make a statement concerning the subject or by a partner or agent acting within the scope of his or her authority;
The act or declaration must have been made during the existence of the partnership or agency and while the person making the declaration was still a partner or an agent; and
The existence of the partnership or agency is proven by evidence other than such act or declaration.
133
Admission by a co-conspirator
The conspiracy be first proved by evidence other than the admission itself- it must be proved by the prosecution and not only based on the the conspirator’s admission;
the admission related to the common object; and
it has been made while the declarant was engaged in carrying out the conspiracy.A
134
Admission by Privies
There must be an act, declaration, or omission by a predecessor-in-interest;
such act, declaration, or omission must have occurred while the predecessor-in-interest was holding the title to the property; and
the act, declaration, or omission must be in relation to the property.
135
Statement of decedent or person of unsound mind
1. The statement was made upon the personal knowledge of the decedent or person of unsound mind
2. It was made at a time when the matter had been recently perceived by him and while his recollection was clear
3. It must not be made under circumstances indicating its lack of trustworthinesss
136
Declaration against interest
the declarant just not be available to testify;
the declaration must concern a fact cognizable by the declarant; and
the circumstances must render it improbable that a motive to falsify existed
137
Acts or declarations about pedigree
1. the declarant is dead or unable to testify;
2. declarant is related by birth, adoption, or marriage to the person whose pedigree is in issue;
3. in the absence of the foregoing, in whose family he or she is intimately associated as to be likely to have accurate information concerning his information concerning his or her pedigree;
4. declaration was made before the controversy; and
5. The relationship between the two persons is shown by evidence other than that declaration.
138
Modes of impeachment
by contradictory evidence
by character evidence of dishonesty
by prior inconsistent statements
139
How is a witness declared a hostile witness?
If the witness comes from the party presenter-
By contradictory evidence; or
by prior inconsistent statements.
If the witness is the adverse party-
However the cross examination should be limited only to what was touched during the direct examination.
the questions must not redound to the reason why he was impeached by the party originally presenting him.
140
What if the evidence was not formally offered, can the court still consider?
YES. Provided that the evidence was duly identified by the testimony duly recorded
141
When should an offer be made?
OFFER OF TESTIMONY- it should be made at the time the witness is called to testify;
OFFER OF DOCUMENTARY OR OBJECT EVIDENCE- it should be made after the presentation of a parties’ testimonial evidence or testimonial sponsorship.
142
When do you object?
OFFER OF TESTIMONY-
Objection for lack of formal offer- Objection should be made immediately right after the testimony.
Objection to a question- Objection should be made as soon as the ground for objection becomes apparent.
OFFER OF DOCUMENTARY OR OBJECT EVIDENCE- Objection should be made orally and immediately after the offer is made.
143
Grounds for striking out an answer ICUPU
Upon proper objection or motion, the answer of a witness may be stricken of the record:
1. If the answer is premature or the witness answers a question before the adverse party had the opportunity to voice fully its objection to the question;
2. If the answers of the witness are incompetent, irrelevant, or otherwise improper- upon motion of the adverse party.
3. If the answer is unresponsive- where a question is not objectionable, but the answer is not responsive;
4. When the witness becomes unavailable for cross-examination- and it was the party offeror’s fault why the witness could not be examined;
5. When the testimony is allowed conditionally but the condition must be fulfilled. Conditional admissibility- the purpose of the testimony is not apparent upon presentation.
144
Proffer of Evidence
For Documents and objects, the offeror may have the same attached to or made part of the record; and
For Testimonial evidence, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony.
145
Applicability of the JA rule in Criminal Cases
Applies to criminal cases where the maximum impossable penalty does not exceed 6 years.
If it exceeds 6 years, the JA rule is subject to the discretion of the accused.
NOTE: In civil cases, the JA applies irrespective of the penalty
146
How to admit audio, photohraphic or video evidence
1. Evidence must be presented in court
2. It must be identified, explained or authenticated
3. The person providing the IEA must be creator of the recording or another competent witness
147
Requisites in order to admit CCTV recordings
The presenting party must account for the following
1. Its origin
2. How it was transferred to a storage device
3. How it reached the trial court for its presentation
148
Conditions for ordering DNA testing
1. Relevance of biologic sample to the case
2. Sample not previously tested or requiring confirmation
3. Use of scientifically valid techniques
4. Potential to produce new relevant information
5. Consideration of factors affecting testing accuracy
149
When may a party impeach his own witness (UHA)
1. Unwilling or Hostile Witness (ARM)
- if declared by the court upon an adequate showing of
- Adverse Interest
- unjustified Reluctance to testify
- having Misled the party into calling him into the wintess stand
2. Adverse Party Witness
DOM of a CPA which is an adverse party
