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8/12/2019 Last Minute Tips EVID

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Memorize Falsus in uno falsus in omnibusFalsus 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 aconscious and deliberate intention to falsify a material point.

2. Distinguish Factum Probans vs. Factum Probandum

Factum Probandum Factum Probans

Ultimate Facts Material evidencing the proposition

Hypothetical Existent.

a. Factum probandum is the fact or proposition to be establishedb. Factum Probans the facts or material evidencingthe 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 theinjuries of P taken as a whole = Factum ProbandumThe 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 cannotqualify 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, landregistration, 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


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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 partyagainst 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 beestablished from them is only the general result of the wholeiv. 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 awriting 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 DrugsAct, 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 evidence1) 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 original1. 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 notice3. 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


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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 unavailabilityc) The offeror must show that the unavailability was not due to his bad faithCorrect 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 orhandwriting 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 documentd. 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 ofsecondary 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 Parol Evidence Rule

Establishes a preference for the original

document over secondary evidence thereof.

Presupposes the original is available

Precludes the admission of secondary

evidence if the original document is available.

Precludes the admission of other evidence to

prove the terms of a document other than thecontents of the document itself for the purpose

of varying the terms of the writing.

Can be invoked by any litigant to an action

whether or not said litigant is a party to the

document involved.

Can be invoked only by the parties to the

document and their successors in interest.

4. Applies to all forms of writing Applies only to written contracts and wills.

5. Define Parol Evidence

*Applies to agreements and will. Parol evidence means offering extrinsic evidence that wouldmodify, 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 theexecution of the written agreement.


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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, providedthat the party in custody has sufficient time to produce it.

After the foundational requirement for the introduction of secondary evidence have beencomplied 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 documenta recital of its contents in some authentic document

By testimony of a witness in the order stated (Sec. 5 Rule 130)

7. Testimonial evidence topics not found in Rule 130a. 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?No. There is no testimonial compulsion involved by extracting blood from theaccused 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?Yes. The right against self

incrimination applies only to testimonial evidence. Extracting blood samples and cutting strandsof 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 questionsalthough 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)


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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 death3. That the declaration refers to the cause and circumstances surrounding the death ofthe declarant and not of anyone else;

4. That the declaration is offered in a case where the declarants 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 THERES 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 thevictim, no longer holds true. As amended

Parts of the Res GestaeLiterally 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 actsStatement accompanying an equivocal act material to the issue, and giving it a

legal significancea conduct that is equivocal or ambiguous, one which in itself does not signify

anything when taken separately (legal significance) To be admissible, the following requisitesmust 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.

Whichof the following is hearsay?

Hearsay vs. Opinion

Hearsay evidence is one that is not based onones personal knowledge of others to prove the

An opinion evidence is based on thepersonal knowledge or personal


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truth of the matter asserted in an out-or-court conclusion of the witness based on his

skill, training, or experience.

Examples of Non-hearsay evidencea. 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 notoffered for the truth of the contents of the conversation, but only to show that it was made, thenthe statement is not hearsay. For example, a statement that is offered to show its patent falsity, so

as to suggest the defendants consciousness of guilt, is NOT hearsay.

b. A statement relating to the state of mind of the declarant and statement relating to the state ofmind of the listener, these are not hearsay, but merely constitute circumstantial evidence of an

assertion. Ex. To prove by inference the testators 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 andwhere the reasonableness of a persons 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 provehearers reaction

are admissible when they are offered to show theireffect 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 truthor 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 Declarations2. Declaration against interest

3. Act or declaration about pedigree

4.

Family reputation or tradition regarding pedigree5. Common reputation

6. Parts of the res Gestae7. Entries in the course of business8. Entries in official records

9. Commercial lists

10. Learned treatises11. 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.


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Elements:

a) Entries were made at, or near the time of the transactions

b) Such entries were made in the regular course of businessc) 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 dutyand in the regular course of businessf) The person making the entry is now dead or unable to testify.

Declarations against InterestEx. 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 againstinterest made by the deceased, or by one unable to testify, is admissible even against the

declarants successors in interest or even against third person.

Common reputationWhile 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 LikeMust be made by persons engaged in that occupation and are generally used and relied upon bythem and those lists and reports are published.

Learned Treaties.History books, published finding of scientists fall within this exception IF the subject testifies tothe 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 latterhad 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 allegations2) Facts admitted or not denied provided they have been sufficiently alleged (Rule 8)


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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.Elements1) 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 case4) 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 admissionmotion 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 Admissions in criminal cases

Admissions in a pleading which had been

withdrawn or superseded by and amended

pleading are considered extra judicialadmission

Admissions during arraignment may be

withdrawn at any time before the judgment of

conviction becomes final, but such plea ofguilty later withdrawn is not admissible in

evidence againt the accused who made the

plea.

It is not even considered an extra judicialadmission

Disqualification by reason of Marriage

(sec. 22)

Disqualification by reason of Marital

privilege (sec. 24 (a)

Can be invoke only if one of the spouses

is a party to the action

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

Can be claimed even after the marriage is

dissolved

Constitutes a total prohibition for or

against the spouse of the witness

Applies only to confidential

communications between the spouses

The objection would be raisedon the

ground of marriage. The married witnesswould not be allowed to take the stand at

all because of the disqualification. Even if

the testimony is for or against theobjecting spouse, the spouse-witness

cannot testify.

The married person is on the stand but the

objection of privilege is raised whenconfidential marital communication is

inquired into.

Disqualification by reason of marriage (spousal immunity)

Take note of the ff.

Judicial admissions vs. Extra-judicial admissions

Competence vs RelevanceBest 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 noteCredibility definedrefers 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

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