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Dean Riano Evidence Finals Reviewer and Last Minute Tips by Bimby and Klowee
Dean Riano Evidence Finals Reviewer and Last Minute Tips by Bimby and Klowee
2.
Factum Probandum
Factum Probans
Ultimate Facts
Material evidencing the proposition
Hypothetical
Existent.
a.
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.
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.
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.
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.
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)
5.
*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.
b.
The failure of the written agreement to express the true intent and agreement
of the parties;
c.
d.
The existence of other terms agreed to by the parties or their successors in
interest after the execution of the written agreement.
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)
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 a recital of its contents in some authentic document
By testimony of a witness in the order stated (Sec. 5 Rule 130)
7.
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? 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?
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 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.
Spontaneous statements
a.
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.
c.
d.
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.
Opinion
Hearsay evidence is one that is not based on ones personal knowledge of others to
prove the truth of the matter asserted in an out-or-court
An opinion evidence is based on the personal knowledge or personal conclusion of
the witness based on his skill, training, or experience.
Independent relevant statement: The newspaper clipping is admissible as nonhearsay 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.
3.
4.
5.
Common reputation
6.
7.
8.
9.
Commercial lists
Dying Declarations
*must be impending, near, and certain.
places where these facts occurred, and the names of the relatives. It also embraces
facts of family history intimately connected with pedigree.
b)
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)
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.
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.
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.
Immaterial allegations
2)
Facts admitted or not denied provided they have been sufficiently alleged
(Rule 8)
3)
4)
5)
2)
The admission must be made in the course of the proceedings in the same
case, and
3)
2)
3)
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.