TABLE OF CONTENTS PREFACE TABLE OF CONTENTS INTRODUCTION TOPICS: Objections Irrelevant And Immaterial Evidence Incompetent Evidence Opinion Of Ordinary Witness Expert Opinion Leading Question Misleading Question Compound Question General Question Question Calling For Narration Vague Question Hypothetical Question Argumentative Or Harassing Question Embarrassing Questién Question On Admitted Matter Already Answered Question Self-Incriminating Question Unresponsive Answer Failure To Make Connection Inadmissible For A Particular Purpose Outside Scope Of The Pleadings Beyond Scope of Direct Examination Assumes Facts Not In Evidence Lack Of Basis Or Foundation Illegally Obtained Evidence Photographs, X-rays, Video Tapes and Motion Pictures Sketches, Charts, Diagrams and Maps Incompetent or Disqualified Witnesses Disqualified Witness - Spouse Disqualified Witness - Transacting With Dead or Insane PersonTestimonial Privilege — Parents and Children Privileged Communication — Attorney And Client Privileged Communication — Doctor And Patient Privileged Communication — Priest And Penitent Privileged Communication — State Secret Impeachment — Own Witness Impeachment — Adverse Party's Witness Impeachment — Prior Inconsistent Statement Impeachment — Character of Witness - Memorandum To Aid Memory Right To Show Entire Transaction Right To Inspect Document Exclusion And Separation Of Witness Hearsay Evidence Self-Serving Evidence Hearsay Exception — Dying Declaration Hearsay Exception — Declaration Against Interest Hearsay Exception — Pedigree (Family History) Hearsay Exception — Family Reputation Hearsay Exception — Common Reputation Hearsay Exception — Res Gestae Hearsay Exception — Book Entries Hearsay Exception — Official Record Hearsay Exception — Commercial Lists Hearsay Exception — Learned Treatises Hearsay Exception — Former Testimony Judicial NoticeOBJECTIONS Evidence is admitted if not objected to. This is the rule. To be excluded, timely objection to its introduction must be made.Once admitted the evidence becomes the “property of the case” becoming completely subject to the disposition of the court.! In the case of oral evidence, objection may now be made on two occasions: before a witness testifies and while testifying. This is so because when a witness is called to testify, the party presenting him is required to make an offer of testimony which is a statement of what counsel expects to Prove through the witness. 2 When the offer is made, it may be objected to on the ground that the proposed testimony is either immaterial, irrelevant or incompetent. 3 Because the objection is allowed before the witness testifies, the time of the court is not wasted. On the other hand, when a witness is already testifying, the objection should be made as soon as the question is asked and before an answer is given. If the witness has began to answer an improper question, he must be stopped and an objection should be made ; People v. Cruz, GR. Nos. 13219-21, August 31, 1960, 109 Phil. 288, 291, ? People v. Yap, GR No. 103517, February 9, 1994. Catuira v. Court of Appeals, GR No, 105813, Sept. 12, 1994, Catuira v. Court of Appeals, supra. De Dios Chua Soco v. Veloso, 2 Phil. 658,__ known or should have been known. If the question is proper but the answer is objectionable, ¢.g., for being hearsay, the remedy is to strike the answer off the records. The answer is not-allowed to remain because the ground for objec- tion is not apparent in the question and becomes known only in the answer. The same remedy of striking out is available if the witness answers before the opposing counsel can object. But if the question is improper and the ground for objection is apparent, the failure to object on time will be considered a waiver. The answer even if objectionable will be allowed to stay in the records.6 Documents, on the other hand, should be objected to at the time they are being offered and not when they are merely being identified by a witness or marked as an exhibit.? Identification or marking of a document does not mean that the writing is being offered as evidence. Usually, documents are identified while their authenticity and due execution are being established. Identification is necessary so that the documents will not be lost in the records. As a matter of - practice, those for the plaintiff or prosecution are marked alphabeti- cally while those for the defendant, respondent or defense are marked numerically. Justice Van Syckel in Berryman y. Graham, 21 NJ Eq. 370; Abrenica v. Gonda, 35 Phil. 739. § De Dios Chua Soco v. Veloso, supra People yv. Teodoro, 98 Phil. 569. People v. Marino, 130 SCRA 595. People v. Solon, 79 Phil. 214. 7 Libudan y. Gil, GR. No. 21163, May 17, 1972, 45 SCRA 17. People v. de Roxas, 6 Phil. 977; 6 SCRA 666. People v. Teodoro 98 Phil. 569. People v. Santito, GR. No. 91628, Aug 22, Pooiey Yap, GR No. 10357, Feb. 9, 1984. See topic on this point.‘The offer of documentary evidence is made after the witnesses have testified and just before a Party rests his case. The offer is made by disclosing the purpose for which a document is being presented. Although it can be done orally, the offer is usually made in writing if many documents are involved. If in writing, the other party has three days normally within which to object. If the court excludes the document or things being presented, the movant may have it attached to the record so that its exclusion can be teviewed properly on appeal, Object evidence, orreal evidence as known before, whichis the third kind of evidence, are those which are addressed to the senses of the court. When an object is relevant to a fact in issue, it may not only be viewed by the court but tasted, heard and touched as well. In other words, it is fully subject to examination by the judge, If the object evidence can be produced in court readily, it is usually introduced in the course of and as part of the testimony of the witness identifying it, In suchacase, objection is madeas in testimonial evidence. But if the object to be viewed cannot be taken to court, like 4 piece of land, there must first be a showing that the proposed inspection is relevant and necessary to the resolution of the issue. Usually, after viewing an object evidence that cannot be produced in court, the judge orcommissioner appointed by the court, immediately enters into the records his observations. If a party does not agree with them he can and should register his objections then and there, Remember that the right to object is only a Privilege. If not invoked at the right time, which means at the earliest opportunity, it may be lost and result in a waiver of objection. 10 9 Lopez v. Valdez, 32 Phil. 644, 10 Catuira v. Court of Appeals, supra,be k -Mentary or object evidence, must be specified always. Once stated, The ground for objection, whether for testimonial, docu- the objection is good and effective only for that ground.!! To the same class of evidence already objected to, repetition of the same objection is not necessary. It is enough if a continuing objection is made of record. !? “This the duty of the court to rule immediately on the objection. But if it desires to study the matter further the court must rule at such time during the trial so as to give the parties an opportunity to meet the situation created by the ruling.!3 In its ruling the court may overrule the objection, that is, allow the question to be answered, or sustain it, that is, prevent the question from being asked, Or it may order the modification of the question or allow it to be asked under some conditions, the discretion of the court being wide in this regard. As in the case of documents, if the court excludes oral evidence the offeror may make a tender of evidence by Stating on the record the name and other personal circumstances of the witness and the substance of the proposed testimony. !4 The purpose is to enable the appellate court to rule on the correctness of the exclusion later on. The basic principleis that no piece ofevidencecanbe considered and weighed by the court unless previously admitted. In the process of evaluation the court shall determine the credibility of the evidence, finding out which evidence to believe and which to ignore or reject. Keep in mind that admitted evidence does not mean automatic credibility. Admitted evidence may or may not be given any weight by the court. ‘ 1 People ¥. Singh, 45 Phil. 676. People v. Bande, 50 Phil. 37. ‘Tinsay v. Yusay, 47 Phil. 639. Ed A. Keller & Co. v. Ellerman & Bucknall Steamship Co., 38 Phil. 514. 12 Tan Machan v. De La Trinidad, 3 Phil. 684. 13 Lopez y. Valdez, 32 Phil. 644. 1S Rule 132, Sec. 40.Evidence can be received not only by the judge but also by a branch clerk of court acting as a commissioner in certain cases. This means that the power to receive certain class of evidence can be delegated.!5 But if evidence is received by the commissioner it is the judge alone who can and must evaluate them. 15 Go v. Court of Appeals, GR No. 100772, July 1, 1992.Although there is a difference among relevancy, materiality and incompetence, these three grounds have been lumped together as a common form of objection. Frequently, they are invoked when -counsel cannot think of an appropriate or specific reason for objecting. But these grounds should not be used indiscriminately for they lose their effectiveness in excluding objectionable evidence. If grouped together as an objection, they can be overruled or denied on the ground of vagueness. Irrelevant evidence are those which do not shed any light on, have no logical connection to, or are too remote in time and substance to the matter in issue. Not of much help to the case, they are excluded because they tend to mislead, confuse, unfairly surprise a party or waste the time of the court. Evidence that is offered to prove a fact no longer in dispute because its existence or non-existence has already been admitted by the other party is an example of irrelevant and immaterial evidence.!6 But note that such evidence may still be admitted if relevant to prove other disputed facts. 16 Krouse v. Graham 19 Cal 3d 59.Relevant evidence, on the other hand, are those which induce one to believe that a disputed fact exists or does not exist. Forinstance, to prove that insanity exists, evidence that a person was under psychiatric care for sometime is relevant. But a showing that he was hospitalized for flu or other ailment not affecting his sanity is not. Thus, relevancy is a question of logic and experience. When a piece of evidence tends to support a particular inference, that is, gives a meaning that will prove the existence or non-existence of a fact in dispute in accordance with common knowledge and experience, itis relevant. A good question to ask is: does the evidence have a tendency in reason to prove the disputed fact? Since the test of relevancy is logic - common sense - and experience, there are no hard and fast rules to follow. Its determi- nation is left mainly to the sound judgment of the court. Just remember that the relevance of a piece of evidence may be directly or circumstantially, thatis, indirectly, shown. In the example above, the psychiatric treatment of the person directly proves his insanity. That ‘on one occasion ‘he acted abnormally is a circumstance that might indirectly prove the person’s mental aberration. Although the evidence of treatment has more probative value than the other both may be considered relevant. Material evidence is, of course, always relevant. But it is one that has reference to an issue raised in a case. Whether the evidence is material or not is therefore determined by the applicable law and the pleadings which define the issues of a controversy. For example, the fact that plaintiff's claim has been paid is a valid defense in a collection suit, But if the defendant fails to plead payment as a ground in a motion to dismiss or as an affirmative defense in an answer, he cannot later on present evidence showing payment if objected to. Such evidence will be barred because it is immaterial to the issue of the case even though relevant in that it proves the non-existence of the debt. Few seem to make the distinction between relevant and material evidence despite its practical significance.E 4 a ‘As a rule, evidence on collateral matters are not allowed because they do not prove directly the fact in issue. They stand far and remote from the point being investigated and resolved. Sometimes, their connection to the issue being proved still needs the introduction of other facts and circumstances. Usually. collateral matters are generated by circumstantial rather than by direct evidence. However, evidence on collateral matters becomes admissible when the existence ornon-existence of the disputed fact can be clearly implied or deduced from them. They are then admissible because they help in determining the fact in issue. Butifthe inference drawn from collateral matters offers no help for being speculative or conjectural in nature, the offered evidence will be considered irrelevant. For example, the presence of blood stains inside a car without proof that it is human blood or that it belongs to the victim cannot be admitted, even as part of the mosaic of circumstantial evidence, because the assumptions that the blood _ Stain is human and belongs to the victim are highly speculative and conjectural. !7 Note that under Rule 132, section 39, the court can strike out not only irrelevant and immaterial answers but also improper ones.INCOMPETENT EVIDENCE Although a piece of evidence is relevant, it may still be inadmissible if its presentation is forbidden by the rules or by law. The prohibition may be due LA provision of law — e.g., the privacy of bank accounts under Rep. Act No. 1405 (1955); statute of frauds (Article 1403, Sec. 2 Civil Code); express trusts (Article 1443, Civil Code); 2. A tule of evidence — e.g. hearsay rule; rules on offer of compromise in civil cases; plea of guilt later on withdrawn or unaccepted plea to a lesser offense; and, 3. Settled jurisprudence — e.g. in reviewing an administrative case by certiorari, evidence not presented during the administrative investigation is inadmissible in the certiorari proceeding; !8 evidence illegally seized is not admissible for any purpose;!9 and, an extra- judicial confession obtained without the assistance of counsel is inadmissible.20 48 Lovina v. Moreno, 8 Phil. 1401, 9 SCRA 557. 19 Stonehill v. Diokno, 20 SCRA 383, 1967. People v. Bagista, GR. No. 86218, Sept. 18, 1992. 20 People v. Robles, 104 SCRA 450,‘The term Anil tte aIRALG ass anion is prohibited by law. But it has come to mean also the qualification of Sa ies omen witness.OPINION OF ORDINARY WITNESS Rule 130 “ Objection, Your Honor, on the ground that Sec. 48-50 the question calls for the opinion of the witness. Our system of proof demands the most reliable source of information, It is not satisfied with mere guesses or with what others have told us. It requires actual knowledge of facts derived from first hand observation or personal experience. Hence, an ordinary witness is not allowed to testify on facts he has not perceived or known through his senses. He can narrate only what he himself has seen, heard, smelled or touched.?! Because it is the court which will give meaning and weight to his testimony, an ordinary witness is not allowed to interpret the facts he has known or perceived. He cannot give any importance or significance, or form any opinion and draw any conclusion, on what he has seen orheard.?2 Answers which are mere guesses, conjectures, suppositions or speculations on his part are, therefore, excluded.23 Notallowed to interpret facts, a witness with more reason is not allowed to interpret the law. His opinion on the law will be in the nature of a legal conclusion that only a court can make.24 21 Rule 130, Sec.36. 2 Cruz v. Alberto, 39 Phil. 991. 2 City of Manila v, Rodrigues, 7 Phil.292 . Ortiz. v. Compania Maritima, 7 Phil, 507 Rocha & Co. v. The Steamship Muncaster Castle, 7 Phil. $43. Buenaventura y, Urbano, 5 Phil. L 2%4 Santos & Jahrling v. Collector of Customs, 26 Phil. 619 beThere are, however, certain matters regarding which an ordinary witness is allowed to express an opinion so as to expedite the taking of evidence.25 Provided he has adequate knowledge or sufficient familiarity about them, an ordinary witness may testify on the following: i 3. Color - dark, light, shade, intensity ; 9. Witnesses sometimes begin their testimonies with expressions like “I believe” or “I think so.” Such phrases are to be considered more as an indication of poor memory or inattentive observation rather than as an expression of opinion. Only if found to mean that the witness is guessing or speculating should they be objected to and . Physical dimension or measurement - size, weight, shape, Identity of a person - age, sex, nationality, language, racial features; height ; Physical features and orientation - speed, motion, time, direction, visibility ; Personality of aperson- behavior, emotion, anger, happiness and sadness ; Appearance, demeanor or personal reaction -calm, collected, upset, scared, frustrated ; Intoxication - drunk, sober ; Mental condition of a person - normal, abnormal, queer ; and, Authorship or genuineness of handwriting.EXPERT OPINION As a rule, most matters are within the common knowledge and understanding of an average person and donot require experttestimony. But if the facts to be proven are highly technical in nature or involve specialized knowledge, the opinion of an expert is called for.26 A witness is considered an expert because of his special skill, knowledge orexperience in some field of science, art, trade, profession ‘orcalling. Because he is supposed to draw conclusions from facts, his ‘skill and knowledge must be such as to enlighten the court on matters it does not ordinarily understand. Indeed, an expert is called more for his opinion ona given set of facts than for his recollection of events.27 Before an expert can express an opinion, his qualifications must first be established. His education, special study, training and work experience in the particular field he is going to testify on have to be shown. Of course, time will be saved if the parties can stipulate on his qualifications. 26 U.S. v, Gil, 13 Phil. 530 Compania Maritima v. Allied Free Workers Union, 77 SCRA 24 . 27 People v. Medrana, 110 SCRA 130. 13ints, ballistics, ble documents;?? 3. Property appraisal: just compensation in condemnation proceedings, recovery in fire insurance cases ; 3° 4, Mechanical engineering and architectural construction. 5, Other sciences : weather and environment ; *! L * = 6. Unwritten law of foreign countries ; x 7. Undeciphered writings ; and, 8. Foreign languages. The number of experts a party may call can be limited. And the weight to be given to the testimony of an expert depends on how well it is appreciated by the court. 28 People v. De Villa, 123 Phil. 226, 16 SCRA 419. ; People v. Aleman,102 SCRA. 765. : 29 Director of Lands v. Court of Appeals, 102 SCRA 370. People v, Tondo, 105 Phil. 187. 30 Republic v. Urtula, 110 Phil. 262. 31 People y. Robin, 109 SCRA 187A question is leading when it suggests, urges and prompts the Witness to give the answer the examiner wants to hear.32 It is ‘objectionable because it influences the witness in his answer. It tries © put words into his mouth making the answer not his but that of the examiner. Although the substance of the question determines whether it 4s leading, the form of the question, the way it is framed, usually indicates whether it is objectionable. Questions that begin with “Did” ‘or “Didn’t” or ending with phrases such as“ Didn’the” or “Doesn't” # are often leading. However, a question that is answerable bya simple “Yes” or “No” is not necessarily leading. Many lawyers think that they should object to all leading ‘questions. Not so for not all leading questions are objectionable. On Girect examination, only when the leading question refers to a fact in issue or is eliciting the main point a witness is intending to prove, is the question prohibited. For example, in a criminal case for murder, it is leading to ask a prosecution witness: “ Did you see the accused shoot the victim ?”. _ = People v. Aguilar, G.R. No. 1654, November 20, 1948, 82 Phil. 122. 15re matters - those ‘issue, thereby dence - leading Leading questions may also be asked: _ Ty In cross-examination, but not when the witness is friendly to the cross-examiner; To assist a witness who is ignorant, young, or mentally and physically handicapped in expressing himself; To examine an adverse party; To examine an uncooperative and prejudiced or hostile witness; and, To identify persons, things or exhibits.33MISLEADING QUESTION This kind of question is objectionable not only for suggesting an answer but more so for suggesting a wrong or untruthful answer. Actually, it is a trick question, one that is designed to confuse and make the witness give a false or inconsistent answer. While leading questions are allowed in cross examination, misleading questions are not permitted in either direct or cross examination.34 Anexample is: “ You stated in your last testimony that you saw Pedro driving the car. Why are you now insisting that he was not driving?”. The question is misleading because the witness merely said in his previous testimony that he saw Pedro seated on the front seat of the vehicle. Thus, a question is misleading either because it assumes as truea fact which has not yet been testified to by the witness or because it is contrary to what is previously stated. 34 Francisco, Rules of Court 327 (1973 ed.). tie 17It is prohibited, ine peciiee part of eresioaimnsy call for irrelevant and inadmissible testimony. Secondly, because the witness may not realize that there are several queries in the question and he may forget to answer some of them. And lastly, because the court may find it difficult to determine which part of the question is being answered or is left unanswered by the witness. An example of a compound question that sounds simple but is not for it contains two questions actually is: Does IBM company or did IBM company produce the goods that your firm was intending to buy? Here, the question calls not only for the present but also for the past production of the company.ke QUESTION CALLING FOR NARRATION A narrative question is one that invites a continuous recitation of an incident from beginning to end. An examplé of a narrative question is: “In your own words, please tell us what you saw or what happened?” Awitness, ifallowed to testify in story form, is practically given the freedom to say almost anything even if not connected or relevant to anissue. Usually, if given the chance to tell his observations freely, not limited by any specific and detailed questioning, the witness will find it convenient to include his own opinion and perception, matters which he is not allowed to express. As a result the record will be cluttered with confusing and unnecessary testimony. Thus, although it expedites the presentation of evidence, the narrative question is unfair because it deprives the opposing counsel of an opportunity to make a timely objection to the introduction of inadmissible testimony. While it is true that objectionable testimony can be stricken off the record, this procedure tends to prolong rather than facilitate the presentation of evidence.VAGUE QUESTION Only from clear answers can truth be easily ascertained. And only from clear questions can clear answers be obtained. Questions that are vague, ambiguous or unintelligible result in vague and ambiguous answers. They must therefore be avoided, Vague questions are those that cannot be answered specifically while those which are capable of double meaning are ambiguous. An unintelligible question, on the other hand, is one that cannot be understood because of the way it is framed or asked. To be free from vagueness - and this is the test - the question mustcall for a specific answer the relevance of which is apparent from the question. An indication of an able lawyer is the clarity of his questions, which should be short, direct to the point and couched in simple, understandable language. Kilometric questions are oftentimes a sign of incompetence or lack of preparation on the part of counsel. To make the question clear, preliminary statements, like re- Peating the previous testimony of a witness, is permissible. In fact, such repetition is required in laying down the predicate to prove inconsistent declarations.35 But unless required by the rules, such 35 Rule 132, Section 13. 21_ Statements should be repeated only when necessary to make the question clear. Too much repetition of previous testimony tends to confuse and prolong the trial and must be avoided. Ifthe court isnot sure about the meaning ofa question, it should ask the witness if he understands it. Thisis done so that ifthe objection is overruled and the question is ordered answered, the witness cannot complain afterwards that he did not understand it.HYPOTHETICAL QUESTION " Your Honor, I object because it is a hypothetical question and the witness is not being — Presented as an expert.“ Hypothetical questions usually begin with words like ir, “Suppose”, “assuming” or “isn’tit possible”. It is not allowed for the Same reasons that questions that assume facts not yet in evidence are not permitted. They are objectionable because they tend to mislead the witness. Moreover, a hypothetical question usually calls for an opinion which if given by an ordinary witness has no weight or probative value. Only an expert is permitted to express an opinion and he may be asked hypothetical questions so that he can express his opinion on specific matters. Even then such questions must be based on facts that the evidence tends to prove.36 36 Richmond v. Wood, 109 Va. 75, 63 S.B, 449, United Commercial Travelers of America v. Barnes, 75 Kan, 720,9 Pac. 293. 23ARGUMENTATIVE OR HARASSING QUESTION ot argumentative. However, when it tends ‘witness. badger or trick him, the question is more often than not argumentative. This usually happens when a lawyer wishes to point out or emphasize a factual inconsistency in the testimony of a witness. Or when the lawyer engages the witness in a discussion of the applicable law. If two statements, for example, are not reconcilable, asking a witness how he can reconcile two inconsistent statements is argumentative.37 But asking which of two inconsistent statements is true may be proper.38 Another argumentative question: “How is that you can recollect a date as long ago as that and you cannot remember the day of the week?” Because of their nature, argumentative and harassing questions are met more in cross than in the direct examination of a witness. 37 Estate of Loucks, 160 Cal. 551, 558, 117 P. 673, 676. 38 People v. Southack, 39 Cal. 2d 578,590, 248 P. 2412, 20. 24EMBARRASSING QUESTION -. Mobject, Your Honor, because the ends to embarrass or degrade the: It is the duty of every citizen to testify when required by the court. But in the performance of this duty, the citizen has the right not to be subjected to embarrassment. If asked a question the answer to which will tend to degrade, dishonor, discredit or humiliate a witness he can rightfully refuse to answer it and not be compelled to do so. This rule, however, is subject to an exception. Even if the question tends to embarrass or degrade his character, the witness must answer if it refers to the very fact in issue or to a fact from which the fact in issue can be inferred. Inother words, if the witness is asked the embarrassing question merely for the purpose of impeaching his credibility, he can refuse to answer. But when the embarrassing question is asked to prove the existence or non existence of a fact in issue, he has no choice except to answer.k Proof is required only on disputed matters. There is no need to Present evidence on points which either or both parties have admitted, Toallow such evidence will confuse the issues and unduly prolong the trial. Yet because of lack of thoroughness in preparation, some lawyers do not know exactly what they have to prove or not to prove in a hearing. The admissions that substitute for proof and do not require the introduction of evidence are those made in the course of the trial. Called judicial admissions, they may be oral or written. A witness while testifying or a lawyer while making a manifestation incourtcan make anoral admission. A written admission, on the other hand, may be found or made in a pleading, such as a complaint or answer, or in a memorandum or brief, or even in a motion. Only by a showing that an admission was made through palpable mistake or that it was never made at all can an admission be contradicted and set aside. 26Repeated questioning on the same subject is not allowed because it is time consuming, It may also unfairly emphasize the testimony of a witness on a particular point. However, when the purpose of the question is to clarify prior testimony it may be allowed. In cross examination, a witness may be asked to repeat what he has said on a particular matter to testhis recollection of an incident and to find out if he has changed or varied his observation. But he cannot be made to repeat his entire testimony given in direct examination, especially if the purpose is to annoy or harass him.39 39 O'Donnel v. Segar, 25 Mich. 367. 27* Involved here is the constitutional right of a person not to be compelled:to be a witness against himself.40 A question that has a tendency to expose a witness to acriminal | charge or to any kind of punishment is self-incriminating. Thus, a ‘@eestion that attempts to establish a link in the chain of evidence ‘which may lead to the conviction of a witness, or which will call for of the names of persons upon whose testimony the be convicted, is prohibited. EE Fe ‘The right against self-incrimination, which is strictly personal, . can be invoked only by the witness. Not even his lawyer or the party who called him to testify can claim the right for him. When an incriminating question is asked, the lawyer should : object and request the court to advise the witness of his right against self-incrimination or the lawyer may do the advising himself with the court’s permission.4! 4© Article IV, Section 20, Constitution. 41 Galman v. Pamaran, 138 SCRA 294. People v. Sandiganbayan, Gen. Fabian. Ver, 138 SCRA. 294. a eyOnce the right is invoked, the court shal] determine whether the question is incriminating or not. If it finds that the danger of self- incrimination is not imaginary or speculative but isreal and reasonable, considering all the circumstances, the court must not allow the question to be answered. The government cannot compel an accused to testify as a prosecution witness in a criminal case against him.42 That will violate his right against self-incrimination. But if the accused voluntarily gives a confession admitting guilt it may be used against him without violating his right against self-incrimination. Historically, the right protects the witness against testimonial compulsion only, that is, the giving of oral declarations against his wish. Now, under certain conditions and upon proper showing, a witness may be asked to show his body for inspection without violating any right.43 42 Chavez v. Court of Appeals, 24 SCRA. 663 43. Villaflor v. Summers, 4l Phil. 62. 29) Improper questions can be objected to. But answers that do not reply to or address the questions cannot be objected to. Since unresponsive answers cannot be anticipated or known until given, the remedy is to strike them off the records. Unresponsive answers are not allowed because they are usually irrelevant to the issues. Apart from injecting confusion in the case, they unnecessarily prolong the trial. The fact that such an answer happens to be relevant cannot save it from being stricken off the records. For the sake of orderly procedure in the presentation of evidence, the relevant but unre- sponsive answer of a witness has to be expunged from the records. But note that the rule on waiver is fully applicable to unrespon- sive answers. If not stricken off on time such answers will remain in the records as admitted evidence.FAILURE TO MAKE CONNECTION Involved here is the rule on conditional admissibility of evidence.44 As in the construction of a house, a case or defense should be built gradually, step by step if need be. For the sake of clarity, related pieces of evidence must be introduced one at a time. While this procedure is desirable, the presentation of evidence not immediately related to the one just given cannot be avoided sometimes. Hence, there are occasions when the testimony of a witness may appear irrelevant at the beginning although actually relevant if connected to another. To meet this problem, counsel should move for the admission of the isolated evidence on the promise that he will tie it up with other facts later on. On that condition, the evidence may be admitted temporarily by the court, But if the promise is not met, the necessary connection not having been made before the case is closed, the evidence already admitted may be stricken off the records for being irrelevant. + Rogers v, Brent, 10 Ill, 573, People v. Yatco, 97 Phil. 940. Prats & Co, v. Phoenix Insurance Co.,52 Phil. 807. 31Involved here is the rule on multiple admissibility. Since a piece of evidence may be relevant for two or more ke Purposes, it is necessary that it satisfies the requirements of the particular purpose for which it is being offered. Otherwise, it will be les rejected even if it fulfills the requirements of the other purposes.45 For example, the declaration of a deceased person may be admitted as a declaration against interest, anadmission, anentry inthe be course of business, a dying declaration, or as part of the res gestae. If it is being presented as a dying declaration, there must be a i showing that it was made under the consciousness of an impending death, which need not be shown if the declaration is being offered as one against interest. t 45 People v. Ananias, GR No. 5591, March 28, 1955, 96 Phil. 979 (Unrep.) Lopez y. Standard Oil Co., 5 Phil.549. People v. De Gracia, 18 SCRA 197. 32.OUTSIDE SCOPE OF THE PLEADINGS Only matters that are disputed and in issue can be proven with evidence. Even if the parties actually quarreled about a matter but if it is not raised as an issue, no evidence can be presented to prove or disprove it. In civil cases, only those that are alleged or described in the complaint, answer and reply are considered in issue. These are the pleadings which determine the issues because they alone contain the ultimate stand of the parties, informing the court of what they have admitted and denied of each other’s allegations. Therefore, evidence that tends to prove a matter which is not raised as an issue in the pleadings is not admissible,4® Indeed, apart from being immaterial, it is excluded because it unfairly surprises the party against whom the evidence is being adduced. In criminal cases, no evidence can be adduced against an accused which does not tend to prove a fact alleged in the information. This is to prevent a conviction for an offense of which the accused has not been duly informed,47 To know the charge is a basic constitu- tional right of an accused. 46 Rogers y. Dick & Reyes, 117 Phil. 1053. De Leon v. Villanueva, 51 Phil. 676, . Philippine American General Insurance Co, Inc. v. Sweet Lines Ine., GR No. 87434, August 5, 1992, 47 US v. Tieng Pay, 42 Phil. 212.Unlimited cross examination is not allowed under our rules. Otherwise, it will eat much of the valuable time ofthe court. Itwill also result in the introduction of unnecessary and irrelevant evidence. But the court must be careful that it does not unduly restrict the cross-examiner in his questioning. Aside from the fact that a party is entitled to sufficient fullness and freedom to test the accuracy, truthfulness and lack of bias and interest of a witness, it has also the right to elicit all important facts bearing on the issues. In cross examination, a witness may be examined only as to matters stated in the direct examination or anything connected therewith. Note that the phrase “scope of direct examination” extends as well to implied facts in addition to those stated in the testimony of the witness.*# For instance, a cross examination may cover the entire a People v. Matola, 259 Cal. 2d 686, 66 Cal. Rpt. 610. Baker v. Des Moines City Ry. Co., 199 Towa 1256, 202 N.W. 762 (1925) cited in Francisco, Handbook on Evidence 459 - 460 (1984). 34transaction and not be limited to the period about which the witness testified. Indeed, when part of an act, declaration, conversation, or writing is given in evidence, the whole of the same subject may be inquired into on cross examination if relevant to the issue.49 When questioning the credibility of a person as a witness, however, the cross examiner is not limited to the scope of direct examination. He May cross examine even on other matters. Here, note the distinction between questioning the credibility of an individual as witness and questioning the credibility ofthe testimony of a witness. Ifa party wishes to ask questions outside the scope of the direct examination in order {0 establish his cause of action or defense, he should make the witness his own when his turn to present evidence comes. But if the witness happens to mention or touch his cause of action or defense in the direct examination, he can certainly cross examine the witness on that matter. Awitness cannot be cross examined about what another witness has said and which he has not repeated in his testimony for that will be questioning him outside the scope of his direct examination, Inre-cross examination, awitness may be examined notonly on matters stated in his re-direct examination but also on other matters which may be allowed by the court in its discretion. 4° Rule 132, Section 17.A question that assumes a fact not yet established by any evidence is objectionable because: 1. it brings before the court something that has not been proved and/or may never be proved; 2. it may mislead the court by suggesting that the assumed fact has already been established; and, 3. itis unfair to the witness since any answer he makes may be taken to mean that he is affirming the truth of the assumed fact. This type of question often begins with “Did you know” or “Do you know now.”50 For example: “Did you know that the accused was beating his wife nightly?”, when there is no prior evidence that they were living together. Or if the accused is the one asked: “When did you stop beating your wife?”, when there is no prior evidence that he has beaten his wife. 50 People ex rel Dept. of Pub. Works ¥. Lillard 219 Cal. 2d 368, 379; 33 Cal. Rptr.189, 195. Love v. Wolf, 226 Cal. 2d 378, 390, 38 Cal. Rptr, 183, 189 . 36LACK OF BASIS OR FOUNDATION In building a house, the roof cannot be started ahead of the posts and foundation. So it is with certain types of evidence which need a foundation before they can be presented and admitted. That foundation is sometimes called preliminary fact. Thus, before questions about the contents of aprivate document can be asked, it must first be shown that the writing is authentic, that it is true and genuine. To establish authenticity, these preliminary facts must first be proven: that the document is the same one signed by the parties and that the signatures appearing thereon are their genuine signatures.5! Likewise, before a xerox copy of a document can be admitted in place of the original, the preliminary fact that the original is lost or otherwise unavailable must first be shown.52 51 Rule 132, Section 20. US v. Evangelista, 29 Phil. 215. General Enterprises, Inc.y. Lianga Bay Logging Co., 11 SCRA 733, 52 Rule 130, Section 3, Republic v. Court of Appeals, 73 SCRA 146.‘Also, when a witness is going to describe an incident, it must first be shown as a preliminary fact that he has personal knowledge of the incident because he was atthe scene and saw it, if such is the case. Voluntariness and a showing that the Miranda warnings have been given are preliminary facts that should be established before a confession can be-introduced and admitted in criminal cases.>? Whether a dying person had personal knowledge of the cause and circumstances of his death, and whether he sensed his impending deathare preliminary facts tothe admission of his dying declaration.** Also, the qualifications of an expert are preliminary facts that need to be established before allowing him to express an opinion.5> Finally, in criminal cases particularly, when physical evidence is being introduced the identity and preservation of each item must first be established. It must be shown that the evidence was individually Jabeled at the time of discovery and its control and custody traced up to the time of the trial. This requirement, which forms the chain of evidence, guarantees that no change or alteration has been made on the evidence.ILLEGALLY OBTAINED EVIDENCE “ Objection, Your Honor, because it is event illegally a : : H Objection, ‘Your Honor, the evidence was illegally obtained through an unreasonable search and seizure.” Any article, document or property taken or seized without a valid search warrant from the person or house of an individual is considered illegally obtained. Such evidence is made inadmissible for any purpose in any proceeding to enforce the constitutional prohibition against unreasonable searches and seizures.5® In the United States, particularly in California, the unreasonableness or illegality of a search or seizure of evidence that has been or will be offered against an accused can be tested in a motion to return property or suppress evidence. This motion is filed before the trial begins or if allowed during the trial, before a judgment of conviction is handed down.57 This procedure is expedient and effectively enforces the constitutional protection against illegally obtained evidence. It may be followed. 36 Stonehill v. Diokno, 20 SCRA.383, People v. Bagista, GR No. 86218, Sept. 18, 1992 57 People v. Crafts, 13 Cal. 3d 457, 91 Cal. Rptr. 563, 564.PHOTOGRAPHS, X-RAYS, VIDEO TAPE AND MOTION PICTURES “Your Honor, L object to the use or introduction in evidence of the photograph because it has notbeen — authenticated.” — ee. “Objection on the ground that the photograph does not accurately represent the scene thatit depicts.” 2 os Photographs, x-rays and other similar materials always give the court amore detailed and convincing picture ofa situation or incident. On the premise that pictures do not lie, their use is always encour- aged.58 And they are usually given more weight by the courts. J If being presented as evidence, photographs, etc. are marked as exhibits and made part of the testimony of the witness who mentioned or referred to them. But in order that they may be used, the photographs, etc., must first be authenticated by a showing that they accurately portray at y particular time the scenes or events that are shown.? Of col authentication is best done by the photographer or person who t the photograph, motion picture or video tape, etc. But other pers can also authenticate provided they can assure the court that know or are familiar with the scenes or objects shown in the pict 58 People v. Guanzon, CA. GR Nos. 3238-R-3239-R, January 9,1950, 48 0G. 217, Jan. V 59 City of Manila v. Cabangis, 10 Phil. 151nd that the photographs, etc., depict them correctly.© Thus, it is ot indispensable to present the photographer who actually took the icture.6! { A photograph which appears distorted on its face is objectionable mn the ground that it does not accurately represent the scene or ncident. 0 5 Moran, Rules of Court 800980), citing New York, v. Moore, 105 F. 725. 1 People y. Penones, GR No, L 71153, August 22, 1991“Your Honor, Lobject to the use or introduction = of the sketch because it doe not accurately 1 sent ihe scene it purports to depict.” A sketch, chart, etc. already prepared may be used provided a witness testifies that it accurately shows the scene, situation or thing _it portrays. ‘Asin the case of a photograph, it must first be authenticated by the person who drew itor by somebody who canconfirmits authenticity. ~ an If the sketch is prepared in court by a witness while testifying, no more authentication is necessary. The sketch is considered “testimony of the witness”. baa. = Asketch need not be drawn to scale, but if it is drawn in such 5 a way that it misleads or grossly misrepresents a scene it may be | excluded and/or rebutted by the other party. Or the error or ‘Tmisrepresentation may be shown during cross examination. Asketchis classified as documentary evidence and must satisfy the best evidence rule. Documents are now defined as “writings or any material containing letters, words, numbers, figures, symbols, or other modes of written expressions offered as proof of their contents”. € Rule 130, Section 3. 63 Rule 130. Section 2INCOMPETENT OR DISQUALIFIED WITNESSES This objection refers to the competency or qualification of a person to testify or act as a witness, not to the competency of one’s testimony. Due to their sickness or physical ae the following persons cannot testify: 1. Insane persons - The insanity that will disqualify is that which exists atthe time the witness is called upon to testify.6+ Ifthe person was insane at the time the incident occurred, but not when placed on the witness stand, he may be permitted to testify provided he can recollect the facts and appreciate the obligation of being a witness. Of course, the person’s having been insane before can greatly affect his credibility. Nn . Children - The test is not the age but the maturity of the child. If found by the court that the child has enough intelligence, understanding and sense of duty to know the facts and to tell them truthfully, he may be allowed to testify. 6 Rule 130, Section 21 (a). 5 US v. De los Santos, 24 Phil 329. 433. Deaf-mutes - If of sufficient intelligence and ability to communicate their ideas, by signs or in writing, they are competent to give testimony; and, 4. Intoxicated persons - Persons who are drunk, as to lose all P sense of reasoning, at the time they are called to the witness - stand cannot testify because of their inability to recollect facts accurately.-Although their intoxication at the time of the incident does not disqualify them as witnesses, it affects their credibility, however.97 5. Individuals, like imbeciles and those senile, who cannot make known their perception to others. On the other hand, those who can become witnesses are those who can perceived - become aware of or understand - and can communicate or make known their perceptions to others. This means that if an individual has the ability to observe a fact or event, can remember and narrate them at the time of the trial, he is qualified to testify as a witness. ‘The fact that a witness is biased or partial to a party or stands © convicted of an offense, unless otherwise provided by law, or holds certain political or religious beliefs is not a ground for disqualifi- cation. However, there are certain persons who because of their ‘gelesioaship toa party are specifically disqualified tobecome witnesses. Tes xc treated separately in the succeeding discussions.SE aS DISQUALIFIED WITNESS - SPOUSE The law wants to preserve the mutual trust and confidence necessary in a marriage relationship. Therefore, this objection can be invoked only by the spouse who is an accused or party in a case. It cannot be availed of by a stranger or outsider to the marriage.°8 If invoked by the party spouse, the disqualification is effective regardless of the nature of the testimony to be given by the witness spouse. Again, this is because the primary purpose of the law is to preserve the marriage relationship of the spouses. Thus, without the consent of the party spouse, the witness spouse cannot testify, or even produce and identify a document, on any matter either in favor of or against the party spouse.® 8 People v. Natividad, 70 Phil. 315. De Dios v. Santiago, CA GR 28190-R, April 29, 1964, 5 CA Rep 2d 729. © State v. Bramlett, 103 SE755.As an exception to the rule, this objection cannot be availed of t when the spouses are the ones quarreling. It cannot be used in a civil case filed by one spouse against the other or in a criminal case where one spouse is charged with committing a crime against the other, as in adultery and bigamy.?° In this regard. rape committed on a daughter is considered a crime by the husband against the wifc.’! This exception also extends to crimes Committed against the direct descendants and ascendants of a witness spouse. As in other cases, the mule oa waiver operates here. The party spouse may waive the disqualification of the other spouse by giving his consent, callimg the other spouse as a witness, or by failing to object.72 But for mot pemnittine 2 spouse to testify either for or against a party spouse, no unfaworable inference can be drawn.” Neodiess to say, this objection czanot be invoked when the “ea 70 US y. Feliciano, 36 Phil. 753. US v. Orosa, 7 Phil-247. Arroyo-y. Azur, 76 Phil. 493. 71 Ordono y. Daguigan, 62 SCRA 270. 72 People v. Francisco, 78 Phil 694. ‘Tongco v. Vianzon, SO Phil. 698. 73 U.S. v. Melchor, 2 Phil. $8. Reyes v. Wells, 54 Phil. 102.DISQUALIFIED WITNESS - TRANSACTING WITH DEAD OR INSANE PERSON Involved here is the rule on survivorship disqualification or disqualification of a party to testify against the interest of a dead or insane person. This objection may be invoked only by the executor, administrator or representative of a dead or insane person, who is the defendant in acase where a claim or demand is made against the estate of such dead or insane person.74 Those who cannot testify and to whom the objection is directed are: 1. The plaintiff or defendant in a counterclaim and their assignors; or, 2. The person on whose behalf the case is being prosecuted. 74 Nanagas, et al. v. Mun. of San Narciso, 53 Phil. 719. Mendozana v. Viuda de Goitia, 54 Phil. 557. 47| | | These persons cannot testify on any oral communication or transaction made by the deceased while he was still living, or by the insane before he lost his mind. The prohibition isimposed because the deceased and the insane are no longer in a position to deny and disprove any claim against them.75 5 tate is prohibited Francia v. Hipolito, 93 Phil. 968. 77 Arroyo v. Azur, 76 Phil. 493. Abraham v. Kasten, I Phil. 39:4 SCRA. 298,TESTIMONIAL PRIVILEGE PARENTS & CHILDREN Before, this objection could only be invoked in a criminal case where the parents or other direct ascendants, or children or other direct descendants were charged with an offense. Now, it can also be invoked in a civil case. Actually, an individual is not disqualified to become a witness against his ascendants or descendants. But if he does not like to testify against them that is his privilege and he cannot be compelled to do so. Here again, the law wants to maintain harmonious relations among members of the same family and to preserve Filipino family solidarity. When a descendant is presented as a prosecution witness, the defense counsel should see to it that he is informed of his privilege not to testify against his parents or ascendants, whether in a criminal or ‘Civil case. Through inaction the privilege can be lost. = 49_ PRIVILEGED COMMUNICATION HUSBAND AND WIFE Thisruleis different from that foundin Section 22, disqualifying the spouses from becoming witnesses and prohibiting them from testifying for or against each other during the existence of the marriage. ey Here, even after the termination of the marriage, a spouse is not free to testify on any confidential communication which the other has made during the marriage.78 Such communication may be any kind of oral or written statement made, learned or given in confidence during the marriage.’ It may even include an act, like the exhibition of a Secret disease or physical defect, which is considered a form of silent communication.80 Butnote that the privilege does not extend to a third person who ‘Overheard the communication while being made by the spouses. He ize to disclose it to the court.8!And neither can the privilege be invoked in a civil case filed by ‘one spouse against the other, or in a criminal case for a crime committed by one against the other, including the latter’s direct descendants and ascendants. Considering its nature, the privilege can be waived by giving consent to the other spouse to testify on the confidential matter or by failing to object to its-introduction.