DEAN RIANO EVIDENCE
FINALS REVIEWER and LAST MINUTE TIPS
by Bimby and Klowee
1.
Memorize
Falsus in uno falsus in omnibus
Falsus in uno vs. Falsus in Omnibus
means “false in one thing, false in everything”
*interpretation is not strict
*While the witnesses may differ in
their recollections of an incident, it does not necessarily follow from their
disagreements that all of them should be disbelieved as liars and their
testimonies completely discarded. It is not a positive rule of law. The witness
must have a conscious and deliberate intention to falsify a material point.
2.
Distinguish
Factum Probans vs. Factum Probandum
Factum Probandum
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Factum Probans
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Ultimate Facts
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Material evidencing the proposition
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Hypothetical
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Existent.
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a. Factum
probandum is the fact or proposition to be established
b. Factum
Probans the facts or material evidencing
the fact or proposition to be established
*Example: If P claims to have been
injured by the negligence of D who denies having been negligent, the negligence
of D and the causal connection between such negligence, and the injuries of P
taken as a whole = Factum Probandum
The evidence offered by P, whether
it be object, documentary or testimonial, constitute the materials to prove the
liability of D. The totality of the evidence to prove the liability refers to
the Factum Probans
*If the defendant admits his
negligence in his answer to the complaint, there is no more need to prove
negligence. Hence, negligence ceases to be a factum probandum in this case.
*if the factum probandum
“signifies the fact or proposition to be established,” then matters of 1)
judicial notice, 2)conclusive presumptions, 3)judicial admissions cannot qualify as parts of the factum
probandum of a particular case, because such matters need not be established or
proven.
*Factum probandum in civil case
refers to the elements of a cause of action from the point of view of the
plaintiff and the elements of the defense from the point of view of the
defendant.
*In criminal cases factum
probandum includes all matters that the prosecution must prove beyond
reasonable doubt in order to justify a conviction.
3.
Can
Rules of Evidence be used in non-judicial proceedings?
The rules of evidence, being parts
of the Rules of Court, apply only to judicial proceedings (Sec. 1 Rule 128)
*Sec.4. In what cases not
applicable. – These Rules shall not apply to election cases, land registration,
cadastral, naturalization and insolvency proceeding, and other cases not herein
provided for, except by analogy or in a suppletory character and whenever
practicable and convenient.
Ex. Not applicable in Administrative
bodies, CSC, Petition for naturalization, labor cases
4.
Best
Evidence Rule (Original document rule) (primary evidence rule)
a. Concept
i.
Original of the document must be produced; When
the subject matter of the inquiry is the contents of a document , no evidence
shall be admissible other than the original document itself,
b. Exceptions
to the rule
i.
When the original has been lost, or destroyed,
or cannot be produced in court, without bad faith on the part of the offeror;
ii.
When the original is in the custody or under the
control of the party against whom the evidence is offered, and the latter fails
to produce it after reasonable notice;
iii.
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 only the general result of
the whole
iv.
When the original is a public record in the
custody of a public officer or is recorded in a public office.
*Involves only the contents of a
writing. The rule cannot be invoked unless the contents of a writing is the
subject of judicial inquiry, in such case; the best evidence is the original
writing itself.
*Where the issue is the execution
or existence of the document or the circumstances surrounding its execution,
the best evidence rule does not apply and the testimonial evidence is
admissible.
*Where the issue is only as to
whether such document was actually executed, or exists, or on the circumstance
relevant to or surrounding its execution, the best evidence rule does not apply
and testimonial evidence is admissible.
*The best evidence rule applies
only when the purpose is to establish the terms of a writing. When the evidence
introduced concerns some external facet about a writing like its existence,
execution or delivery without reference to its terms, the rule cannot be
invoked. The subject of inquiry under
the best evidence rule it the CONTENTS of a writing, NOT THE TRUTH thereof.
Where the truth is in issue, the hearsay rule will now be involved.
c. Illustrative
applications
i.
1994 Bar At the trial of ace for the violation
of the Dangerous Drugs Act, the prosecution offers in evidence a photocopy of
the marked bills used in the “buy-bust” operation. Ace objects to the
introduction of the photocopy on the ground that the Best Evidence Rule
prohibits the introduction of secondary evidence in lieu of the original is the
photocopy admissible in evidence?
1. Yes,
the photocopy of the bills being object evidence is admissible in evidence
without violation of the best evidence rule. The rule applies only to
documentary evidence and not to object evidence.
*The reason for the best evidence
rule is the prevention and detection of fraud.
*The best evidence rule may be
waived if not raised in the trial
*If the original be presented in
evidence
1)
Find a legal excuse for failure 2) present secondary evidence
If secondary evidence is to be
offered in evidence, like a copy, the proponent has to lay the basis for the
admission of the copy of the document.
Excuses for not presenting the original
1. When
the original has been lost or destroyed or cannot be produced in court, without
bad faith on the part of the offeror;
2. When
the original is in the custody or under the control of the party against whom
the evidence is offered and the latter fails to produce it after reasonable
notice
3. When
the original consists of numerous accounts or other documents cannot be
examined in court without great loss of time and the fact sought to be
establish is only the general result of the whole; and
4. When
the original is a public record in the custody of a public officer or is
recorded in a public office.
*How to lay the basis for presenting secondary evidence:
a) The offeror must prove the
execution and existence of the original document;
b) The offeror must show the cause
of its unavailability
Loss,
destruction, or unavailability
c) The offeror must show that the
unavailability was not due to his bad faith
Correct order of proof is as
follows Existence, execution, loss, and contents.
Due execution and authenticity of
the document must be proved either: a) by anyone who saw the document executed
or written, or by evidence of the genuiness of the signature or handwriting of
the maker.
When original is in the custody or
control of the adverse party:
Laying the basis requires:
a. The
original exists.
b. That
the said document is under the custody or control of the adverse party;
c. That
the proponent of secondary evidence has given the adverse party reasonable
notice to produce the original document
d. That
the adverse party failed to produce the original document despite the
reasonable notice.
*Waiver: Failure to object to the parole evidence presented
by the adverse party operates as a waiver of the protection of the rule.
* The loan may be proved by the photocopy as long as A lays
the basis for the introduction of secondary evidence, to wit: a) the existence
and due execution of the original, and b) the loss of the original without bad
faith on his part. (Sec. 5, Rule 130)
Distinction between
Best Evidence and parol Evidence
Best Evidence Rule
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Parol Evidence Rule
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1. Establishes
a preference for the original document over secondary evidence thereof.
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Presupposes the original is available
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2. Precludes
the admission of secondary evidence if the original document is available.
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Precludes the admission of other evidence to prove the terms of a
document other than the contents of the document itself for the purpose of
varying the terms of the writing.
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3. Can
be invoked by any litigant to an action whether or not said litigant is a
party to the document involved.
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Can be invoked only by the parties to the document and their
successors in interest.
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Applies only to written contracts and wills.
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5.
Define
Parol Evidence –
*Applies to agreements and will. Parol
evidence means offering extrinsic
evidence that would modify, explain or add to the terms of the
written agreement. BUT it is allowed if
any of the following are shown:
a. An
intrinsic ambiguity, mistake, or imperfection in the written agreement;
b. The
failure of the written agreement to express the true intent and agreement of
the parties;
c. The
validity of the written agreement;
d. The
existence of other terms agreed to by the parties or their successors in
interest after the execution of the written agreement.
And only if it is put in issue in
the pleadings.
*The rule applies ONLY to contracts which the parties have decided to set
forth in writing. When n the terms of an agreement is merely oral, the parol
evidence rule should not be applied.
*Parol evidence does not apply in oral agreements, public writing,
private writing, express trust (although parol evidence applies to wills.
6.
Testimonial
Evidence Adverse party Read Sec. 6. Loss, Destroyed, Unavailable Originals (Sec
5)
*Showing that the original document is in the custody or under the
control of the adverse party does not ipso facto authorize the introduction of
secondary evidence to prove its contents. The party who seeks to present
secondary evidence must lay a basis for its introduction.
Laying the basis:
1) That
the original exists;
2) That
the document is under the custody or control of the adverse party;
3) That
the proponent of secondary evidence has given the adverse party reasonable
notice to produce the original document;
4) That
the adverse party failed to produce the original document despite the
reasonable notice.
How to notify: motion for the production of the original or by subpoena
duces tecum, provided that the party in custody has sufficient time to produce
it.
After the foundational requirement for the introduction of secondary
evidence have been complied with, secondarily evidence may now be presented as
in the case of loss. This mean that the contents of the document may now be
proven by
a copy of the document à a
recital of its contents in some authentic document à
By testimony of a witness in the order stated (Sec. 5 Rule 130)
7.
Testimonial
evidence topics not found in Rule 130
a. 132
(Sec. 3) Right of witnesses (Sec .6) Cross Exam and Sec. 11 Impeachment of
witnesses
i.
Are the rights of the accused violated in case
of compulsory HIV testing? à
No. There is no testimonial compulsion involved by extracting blood from the
accused for testing purposes. Thus, there is no violation of the right to
privacy and the right to be presumed innocent.
ii.
Should DNA evidence be admitted? à
Yes. The right against self incrimination applies only to testimonial evidence.
Extracting blood samples and cutting strands of hair do not involve testimonial
compulsion but purely mechanical acts which neither requires discretion or reasoning. (Tijing v. Court of Appeals.
iii.
The right against self incrimination does not
apply to physical and mechanical act. It
applies only to testimonial compulsion which is not the case under the facts.
iv.
Degrading questions à although degrading a
witness must answer the question if the degrading answer a) is the very fact in
issue; or b) refers to a fact from which the fact in issue would be presumed.
(Rule 132)
8.
What
are the elements of a dying declaration? #3 exam
*Must comply with the following foundational elements
1. That the
declaration is one made by a dying person;
2. That the
declaration was made by said dying person under the consciousness
Of impending death
3. That the
declaration refers to the cause and circumstances surrounding the death of the
declarant and not of anyone else;
4. That the
declaration is offered in a case where the declarant’s death is the subject of
inquiry;
5. The declarant is
competent as a witness had he survived;
6. The declarant should have died.
Note:
must refer to the death of the declarant, not merely injuries.
*If
the declarant survives HIS DECLARATION MAY BE ADMISSIBLE AS PART OF THE RES
GESTAE.
*The
former rule embodied in Supreme Court decisions, which declared that a dying
declaration is offered in a criminal case for homicide, murder, or parricide
wherein the declarant is the victim, no longer holds true. As amended
Parts
of the Res Gestae
Literally means “things done”.
Res Gestae is the startling event of which the spontaneous statement is only a
part of.
The
use of res Gestae in the Philippines is limited to two matters:
1) Spontaneous
statements
a. That
there is a startling occurrence taking
place;
b. That
statements were made while the event is taking place or immediately prior to or
subsequent thereto;
c. The
statements were made before the declarant had the time to contrive or devise a
falsehood
d. That
the statement relates to the circumstances of the startling even or occurrence,
or that the statements must concern the occurrence in question and its
immediate attending circumstance.
2) Verbal
acts – Statement accompanying an equivocal act material to the issue, and
giving it a legal significance – a conduct that is equivocal or ambiguous, one
which in itself does not signify anything when taken separately (legal
significance) To be admissible, the following requisites must be present:
a. The
principal act to be characterized must be equivocal (clear need not be
explained);
b. The
equivocal act must be material to the issue;
c. The
statement must accompany the equivocal act;
d. The
statement gives a legal significance to the equivocal act
9. Exceptions to the hearsay rule, are all
hearsay, but are admissible Sec. 36 of Rule 130 ex. Which of the
following is hearsay?
Hearsay vs.
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Opinion
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Hearsay
evidence is one that is not based on one’s personal knowledge of others to
prove the truth of the matter asserted in an out-or-court
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An
opinion evidence is based on the personal knowledge or personal conclusion of
the witness based on his skill, training, or experience.
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Examples of Non-hearsay evidence
a. A
statement having probative worth simply by virtue of the fact that it was
uttered, if relevant to a material fact inissue is not hearsay and is generally
admissible. Where a statement is not offered for the truth of the contents of
the conversation, but only to show that it was made, then the statement is not
hearsay. For example, a statement that is offered to show its patent falsity,
so as to suggest the defendant’s consciousness of guilt, is NOT hearsay.
b. A
statement relating to the state of mind of the declarant and statement relating
to the state of mind of the listener, these are not hearsay, but merely constitute
circumstantial evidence of an assertion. Ex. To prove by inference the testator’s state
of mind, “I am Stalin, Roosevelt, Saddam
Hussein, rolled into one”
c. A
threat against a witness may be offered in evidence to show its impact on the
witness and where the reasonableness of a person’s conduct is an issue, and out
of court declaration may be offered to explain the person's reactions to the
declaration.
d. Words
offered to prove hearer’s reaction are admissible when they are offered to show
their effect on one whose conduct is at issue.
Independent relevant statement: “The
newspaper clipping is admissible as non-hearsay if offered for the purpose of
showing that the statement of X was made to a reporter regardless of the truth
or falsityof the statement. If it is relevant, it is admissible as an
independent relevant statement (non hearsay) It would be hearsay if offered to
prove the truth that x was the robber.
Exception
to the Hearsay Rule:
1.
Dying
Declarations
2. Declaration
against interest
3.
Act
or declaration about pedigree
4. Family
reputation or tradition regarding pedigree
5. Common
reputation
6.
Parts
of the res Gestae
7. Entries
in the course of business
8. Entries
in official records
9.
Commercial
lists
10.
Learned
treatises
11. Testimony
or deposition at a former trial
Dying Declarations
*must
be impending, near, and certain.
Declaration about pedigree
*The
declaration about pedigree may be received in evidence if the relationship is shown
by evidence other than the declaration. The word “pedigree includes
relationship, family genealogy, birth, marriage, death, the dates when and the
places where these facts occurred, and the names of the relatives. It also
embraces facts of family history intimately connected with pedigree.
Entries in the course of business.
Elements:
a) Entries
were made at, or near the time of the transactions
b) Such
entries were made in the regular course of business
c) The
person making the entries was in a position to know the facts stated in the
entries.
d) The
person making the entries did so in a position to know the facts stated in the entries
e) The
person making the entries did so in his professional capacity, or in the
performance of duty and in the regular course of business
f) The
person making the entry is now dead or unable to testify.
Declarations against Interest
Ex.
A statement by the debtor before he died that he owes the creditor a sum of
money, or an oral acknowledgment by the principal that he received the money
previously entrusted to his agent, are clear declarations against the interest
of the person making it. Note that declaration
against interest made by the deceased, or by one unable to testify, is
admissible even against the declarant’s successors in interest or even against
third person.
Common reputation
While
common reputation in the community may establish a matter of public or general
interest, marriage or moral character, it CANNOT establish pedigree. This is
established by reputation in the family and not in the community.
Commercial Lists and the Like
Must
be made by persons engaged in that occupation and are generally used and relied
upon by them and those lists and reports are published.
Learned Treaties.
History
books, published finding of scientists fall within this exception IF the
subject testifies to the expertise of the writer of if the court takes judicial
notice of such fact.
Testimony or Deposition at a Former
Proceeding.
The
testimony is one given in a former case or proceeding or administrative,
involving the same parties and the same subject matter. The testimony was given
by one who is now dead or unable to testify. Said testimony may be given in
evidence against the adverse party provided the latter had the opportunity to
cross-examine the witness who gave the previous testimony.
Waiver
The rules of evidence may be waived. The rules are established
for the protection of the parties. Except if the rule waived by the parties has
been established by law on grounds of public policy.
Matters need NOT be proved (ISA-JP)
1) Immaterial
allegations
2) Facts
admitted or not denied provided they have
been sufficiently alleged (Rule 8)
3) Agreed
and Admitted facts
4) Facts
subject to Judicial Notice
5) Facts
legally Presumed
Section 4. JUDICIAL ADMISSION is and admission, verbal or
written, made by a party in the course of the proceedings.
Elements
1) The
same must be made by a party to the case
2) The
admission must be made in the course of the proceedings in the same case, and
3) There
is no particular form for an admission, it may either be written or verbal.
Judicial Admissions may be made in
1) Pleadings
filed by the parties,
2) In
the course of trial either verbal or written manifestations or stipulations
3) In
other stages of judicial proceedings as
in the pre trial of the case
4) Admissions
obtained through depositions, written interrogatories or requests for
admissions.
- Judicial admissions can be made by either a party or counsel.
- Judicial admission may be contradicted only when it is shown that
- 1. It was made through palpable mistake or 2. That no such admission was made.
Remedy of a party who gave a judicial admission:
In case of written judicial admission – motion to withdraw
the pleadings, motion, or other written instrument containing such admission.
Judicial admissions are always conclusive upon the admitter
and do not require formal offer as evidence, unlike in the case of
extra-judicial admissions.
Rule on dismissed pleadings
Admissions made in pleadings that have been dismissed are
merely extrajudicial admission.
Admissions in civil cases
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Admissions in criminal cases
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Admissions in a pleading which had been withdrawn or
superseded by and amended pleading are considered extra judicial admission
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Admissions during arraignment may be withdrawn at any time
before the judgment of conviction becomes final, but such plea of guilty
later withdrawn is not admissible in evidence againt the accused who made the
plea.
It is not even considered an extra judicial admission
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Disqualification by reason of Marriage (sec. 22)
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Disqualification by reason of Marital privilege (sec. 24
(a)
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Can be invoke only if one of the spouses is a party to the
action
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Can be claimed whether or not the other spouse is a party
to the action
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Applies only if the marriage is existing at the time the
testimony is offered
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Can be claimed even
after the marriage is dissolved
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Constitutes a total prohibition for or against the spouse
of the witness
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Applies only to confidential communications between the
spouses
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The objection would be raisedon the ground of marriage.
The married witness would not be allowed to take the stand at all because of
the disqualification. Even if the testimony is for or against the objecting
spouse, the spouse-witness cannot testify.
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The married person is on the stand but the objection of
privilege is raised when confidential marital communication is inquired into.
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Disqualification by reason of marriage (spousal immunity)
Take note of the ff.
Judicial admissions vs. Extra-judicial admissions
Competence vs Relevance
Best Evidence Rule
Real Evidence definition (replica offered as evidence)
Parol evidence would not be objected if the ambiguity was
put in issue in the pleadings
Laying the basis for the offer of a photocopy of a contract.
Originals
Expert testimony of a promissory note
Credibility defined – refers to worthiness of belief.
Chain of custody
When may an ordinary witness testify as to his opinion?
When may parol evidence be allowed?
How do you lay the basis for introduction of secondary
evidence when a) original is lost b) ht original is in the custdy of the
adverse party.
How to impeach testimony of a witness, definition
Very nice!
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