PRIVILEGED COMMUNICATION ATTORNEY AND CLIENT An attorney can best prepare the case of a client if he knows all the facts. A client will disclose them only if he knows that they can be kept secret. Hence, to promote this confidentiality, an attorney without the consent of his client, cannot divulge any information acquired during their relationship. Specifically, he cannot testify on: 1. Any written or oral communication made confidentially to him by his client; 2. Any legal advice or opinion he may have given to his client; and, 3. The contents of any document handed to him by his client. Acts of the client, like the demonstration of physical strength that tend to show that he could or could nothave committed the crime, are considered silent communications which are also covered by the privilege. To be privileged, it is not essential that the communication be made while the attorney is under actual contract with the client. It is enough if the communication is made while the client is trying to retain the services, or is seeking the professional advice of the attorney. It does not matter if, after learning of the communication or 52giving his opinion, the attorney later declined to act as counsel of the client.82 To make the privilege effective the secretary, stenographer and clerk of the attorney are also prohibited from testifying on the same matters, Because it is-not supposed to be confidential, the contract for the payment of attorney’s fees is not considered privileged. Not privileged too is confidential communication given in furtherance of crime and fraud. Lastly, a communication for which the privilege is claimed is presumed to have been made in confidence and the opponent of the claim has the burden of proving that it is not confidential. 82 Porter v. Hall, 29 Mass. (12 Pick) 89, 98, 22 Am. Dec, 400. 53PRIVILEGED COMMUNICATION DOCTOR AND PATIENT To treat an ailment effectively there must be full and complete information about it. Therefore, the doctor should feel free to ask any question and the patient to give any answer concerning the ailment. This is achieved by keeping all information given about an illness strictly confidential.83 Thus, the physician is prohibited from making public any such information especially if their disclosure will result in the embarrassment or disgrace of the patient. In civil cases, therefore, the doctor without the consent of the patient, cannot testify on: 1. Any statement made to him by the patient; 2. Any information which he may have acquired by examining or observing the patient and specially if such disclosure: would embarrass or blacken the character of the patient ; and, 3. Any medical opinion or prescription he may have given the patient from which the ailment of the patient may be disclosed, 83 Krohn v. Court of Appeals, GR No. 108854, June 14, 1994. 54To be privileged, the communication must have been made by the patient in a confidential manner while seeking medical advice or treatment. Also, the information must have been acquired by the doctor while attending to the patient either for curing or preventing an illness.84 Note that it is the tenor only of the communication that is privileged. The mere fact of making a communication, as well as the date and number of consultations made are not.85 Statements of the patient which are not necessary for his treatment, like the identity of the person who injured him or the reason why he was assaulted, are not included in the privilege.86 So that the privilege will not be defeated, the patient cannot be forced or compelled to testify on the same matters. But he may do'so if he likes for this privilege, like any other, can be waived. Pharmacists, nurses and attendants who overheard the con- fidential communicationare free to disclose it, if they are notemployed by or act as agents of the doctor, Otherwise, they too are prohibited. This privilege can be claimed in civil cases only. It cannot be invoked in a criminal case because the privilege cannot be used as a shield in the prosecution of crimes, as held ina foreign case.87 84 Lim v. Court of Appeals, GR No, 91114, Sept. 25, 1992. 85 Lim v. Court of Appeals, supra. 86 Van Wie v. US. 77 F, Supp. 22. Harriman y, Stowe, 57 Mo. 9395 Nelson v. Oneida, 156 N.¥.219, 50 NE. 802. 87 People v. Harris, 1361N.Y. 423, 448, 33 N.E.65 cited in Francisco, Handbook on Evidence 358, 1984 ed.PRIVILEGED COMMUNICATION PRIEST AND PENITENT Confessions are meant to be secret. Many people will hesitate to confess their sins if the priest or minister can be forced to disclose them. Hence, without the consent of the person making the confession, the priest or minister cannot testify on anything said to him by the . penitent. This includes any reply, advice or penance that may have been given. The penitent in turn cannot be compelled to tell what he has said during his confession although he can do so if he likes. Tobe privileged, itis necessary thatthe confession beconducted inthe course of the discipline to which both priest and penitent belong. The confession must be penitential in character, thatis, with the view of obtaining pardon for one’s sins.88 Statements made by aperson while merely seeking spiritual advice or help from a priest or minister are not included in the privilege. ‘As in the case of other privileged communications, third persons who overheard the confession are not prohibited from testifying about them. « ~ 88 Notes: LR.A. 1917-D, 280PRIVILEGED COMMUNICATION STATE SECRET For obvious reasons, it is essential that government matters or activities especially those that bear on or involve the security of the state are kept secret. Hence, a public officer or employee cannot be compelled to testify on any communication made to or acquired by him in official confidence if to disclose such communication or information will affect or injure public interest.89 Although “public interest is a broad term that is not easy to define for purposes of this rule, it can be said, however, that matters involving the defense of the country against foreign and local aggressors clearly fall within the scope of this prohibition. 89 In re Pazaro, 82 Phil. 230, 57Ifa party is allowed to discredit his own witness, a dangerous situation could arise. A party can destroy and reject his own witness ifhe spoke against him, and make him appear credible and adopt him if he testifies favorably.°° Moreover, when a party presents a witness he is supposed to have investigated him for truth and honesty. Hence, he cannot subsequently impeach or question the credibility of his witness by showing that he is a liar or a bad person. But there is an exception to the rule. When a party can show that he was deliberately misled by a witness into calling him to testify or that the witness was discovered to have an interest adverse to that of the party who presented him, impeachment may be allowed at the court’s discretion. 7 90 Hanrahan v. N.Y Edison Co., 238 N.Y. 194, 144 NE. 499.In such a case, it is necessary that the witness be first declared by the court an unwilling or hostile witness after adequate showing that his refusal to testify was unjustified or that the witness possessed contrary or antagonistic interest. If it is the adverse party himself who is being presented and examined as a witness with more reason impeachment is allowed. Indeed, it would be unfair if a party were to lose his case just because the witness on whom he depended had decided to change his mind and betray him.°! Thus, a witness who assured a party before going to court that he saw the signing of a document and then while testifying denied having witnessed the event, surprising the party who called him, may be impeached. Impeachment is done principally by showing that the witness has made a prior statement inconsistent with his present testimony. It cannot be accomplished by evidence of bad character, that is, by showing that the witness is a bad person or has a reputation for not telling the truth. Another remedy of a party whose witness has testified against him is to present other witnesses who will contradict and correct the testimony of the treacherous witness, even if in the process the credibility of the latter is indirectly attacked. The rule allows the presentation of contradictory evidence.92 ®t Underhill’s Criminal Evidence, (4th ed. 1935) sec. 422 92 Wharton's Criminal Evidence, (IIth ed.) sec, 1391.IMPEACHMENT OF ADVERSE PARTY’S WITNESS One’s own witness may be impeached by contradictory evi- dence or by prior inconsistent ‘statement. But not by evidence of bad character. In the case of an adverse party's witness he can be impeached by: 1. Evidence that in the community where he resides, his general reputation for truth, honesty or integrity is bad. Here it is the bad reputation that must be proved, not the particular instances of immoral or wrongful acts, nor improper or unlawful conduct that the witness might have | committed; 2. Priorinconsistent statement (please see discussion on laying j of predicate or foundation); 3. Evidence of prior conviction of an offense which may be: proved by eliciting an admission from the witness or by a record of his conviction; and, 4, Contradictory evidence which may consist of the testimony, of another witness, showing that what the witness bei impeached said is nottrue or is different from what occ!IMPEACHMENT - PRIOR INCONSISTENT STATEMENT Ifa witness is to be impeached by showing that he had made a statement that is contrary to what he is now saying, the correct foundation to discredit him must first be established. Tf the prior inconsistent statement is oral and made out of court, the procedure is to ask the witness whether or not he made the statement which should be repeated to him. In this connection, the circumstances of time, place and persons present when the statement was made must be related or made known to the witness. If the witness admits having made the statement, the cro: examiner gains an admission. But even then the witness should given an opportunity to explain any discrepancy in his testimony, should there be any.°° If the witness denies or does not remember having made thi Prior inconsistent statement he must, of course, be cross examine‘ well on the point. Then later on, contrary evidence can be presented, This means that any person who heard the statement can testify th: he was present when the witness made it. % U.S. v. Baluyot, 40 Phil, 385. 97 Wharton's Criminal Evidence, llth ed. sec.1359. Jones on Evidence, sec. 2411 (2d ed., 1926). 62If the prior inconsistent statement is in writing, the letter, affidavit or signed statement must be shown to the witness so he can inspect, read and identify it, especially if his signature is affixed thereon.98 If the witness admits making the inconsistent statement, the cross-examiner gains an admission and can make the writing his exhibit and part of his documentary evidence.° Note that no question witness. * If the prior inconsistent statement was made in the course of a trial, the portion of the transcript containing it must first be shown or read to the witness before any questioning can begin. Since the statement is contained in an official transcript, there is no need to ask in detail the circumstances under which the statement was made. It is sufficient toask the witness if he made the statement being attributed to him.100 If the witness admits having made the statement an admis- sion is gained. If he denies, the pertinent portion of the transcript read to the witness should be marked as an exhibit and made part of the documentary evidence of the cross examiner. If a prioreinconsistent statement is offered in evidence to impeach a witness but the foundation for impeachment has not been laid, that is, the witness has not been confronted with his earlier statement and given a chance to explain any apparent inconsistency, the offer should be objected to by counsel and rejected by the court. Note that the failure to object might be construed a waiver, !0! On appeal, it is rather late for a party to take advantage of a prior inconsistent statement if the witness who made it was not impeached on that ground during the trial. 9% People v, Samonte, 48 Phil. 894, 99 U.S. v, Baluyot, 0 Phil. 385, 100 People v. Lim Quingsy, 54 Phil. 88, 91-92, 101 People v. Relucio, 86 SCRA 227. 63 can be asked on the statement unless the writing is first shown to theIn criminal cases, the prosecution cannot prove the bad moral character of an accused. !92 Apart from being presumed innocent, the accused is entitled to be judged on the basis of what he did and not on what other people think or say about his character. that he could not have committed the. r Prosecution to present contrary evi 4 Tf an accused does not decide to put his character in issue, that is, does not present evidence of good character, no unfavorable inference can be taken against him. The character evidence proving honesty is admissible i inacase of theft or estafa, bi not in homicide or assault. 102 People v.Laya, 28 SCRA 72 103 People v, Acosta, 84 Phil. 173 People v. Hodges, 46 Phil. 502 104 People v. Topacio, 59 Phil. 356. People v. Sumicad, 56 Phil. 643.The charaeter of the victim or offended [person may be proved if it iF help” in determining t the @ probability or improbability of committing the crime . Thus, the: prosecution may prove the chastity, while the defense may prove the unchastity of a victim of violent rape, to determine whether or not consent was freely given.!05 But in murder pace of character is not allowed.106 oes In civil cases, character evidence is pernied only if the moral character of a party is in issue. The rule is that a business transaction - must be judged by its own circumstances and not by the character or reputation of any of the parties. An example of a civil case where character is in issue is an action for breach of promise of marriage where the failure to marry is justified by the defendant on the ground that he discovered the plaintiff no longer a virgin, being a woman of pane iS character. helives, has resided and is ae known, Itdoes notreferto specific acts or conduct which if allowed, would raise many collateral issues that may unduly prolong the trial.” The rule is the same with respect to witnesses. Evidence showing that a witness is of ; good moral character is. ‘not admissible. It is allowed only when the character of the witness has “been impeached or questioned. 105 People v. Blance, 45 Phil. 113, 106 People y. Soliman, 101 Phil, 766. 107 People vy, Babiera, 52 Phil, 97, 65MEMORANDUM TO AID MEMORY Rule 132 Sec. 16 Before a witness can be allowed to refer to a memorandum, these three requirements must be met: 1. that the witness cannot fully or completely remember the facts without the aid of the memorandum due to lapse of time;108 2. that y e the memorandum or order the time the facts occurred or while ‘they were still fresh: his memory;!0 and, Thememorandum which canbe used tostimulate one’s memory -Inay be any kind of note, paper, affidavit or document. It may even be -a book entry, Indeed, the use of a memorandum is allowed particu- larly when it contains dates, numbers, quantities, and sums which ordinary human memory may find difficult to remember. 08 Rudd v. Suxton, 41 App. D.C. 353. 109 Louisville & N. Ry. Co. v. Moorer, 70 SO 277,195 Ala. 344. NO Sorell v. State, 167 S.W. 356,74 Tex. Cr: 100.If a memorahdum is allowed to be used, it is but fair that the opposing side be given an opportunity to inspect and use it for cross examination purposes. Since it is the recollection of the witness that is considered evidence and not the memorandum, the memorandum need not satisfy the best evidence rule. A mere copy of the memorandum, not necessarily the original, may be used by a witness in refreshing his memory.!!! But then the testimony should be received with caution and the circumstances under which the memorandum was made should be examined carefully. ERRATUM A DYING DECLARATION MAY NOW BE ADMITTED IN ANY CASE. 170 C.J. 593-594. 67 ostthe transaction particularly writing are adthiesibiel |help i in its -resolutiotRIGHT TO INSPECT DOCUMENT Whether on direct or cross examination, indeed at any stage of the hearing, when a writing or document is shown to a witness the adverse party is immediately entitled to inspect it, Counsel need not wait for the formal offering of the document before asserting the right to inspect. Even when the document i is being merely identified inspection can be demanded, — ‘The right to inspect is important because it enables the adverse party to object at once to any improper question being asked of the writing. But note that the party who called for the production and inspection of the document is not bound to offer it in evidence.!!2 i = M2 Rule 130, Sec.8.EXCLUSION AND SEPARATION OF WITNESS The purpose of sending witnesses out of the courtroom is to "prevent them from hearing and being influenced by the testimony being given by the witness on the stand. Sometimes to prevent collusion, witnesses oo ees with one another in and out of the cc om testified . Hence, their ~ physical separati sourt. In criminal cases, there is no question about the right of an accused to be present during the hearing. That is his constitutional right and so he cannot be excluded. Butin civil cases, the rigl be present during the trial is not as clearly defined. Althou y are usually allowed to stay in the courtroom because of their interest in the case, the parties if they are also going to testify can be excluded in the discretion of the court. So that they can attend the hearing, the parties who are also” witnesses, are usually made to testify ahead of the others.HEARSAY EVIDENCE Hearsay evidence, which may either be oral or written, is one that tries to prove a fact the existence of which is based not on ve witness in cour | or heard but on what ‘someone as aid. In other words, hearsay evidence based on the personal er and experience of tl the one te: tifying. Hearsay evidence is not acceptable because it is considered unreliable and unfair. The person whose se tis being repeated or recalled in court is not present aa cannot westioned about ee sincerity, willingness and ability to tell the truth, He cannot also be cross examined about his ‘opportunity to observe the event, about his ability to recall and communicate his observations. Examples of written hearsay evidence are: 1. A medical certificate issued by a doctor who was not called to testify; !13 2. An affidavit of an accused implicating another in the commission of an offense where the accused is not placed on the witness stand; !14 113 US v. Lorenzana, 12 Phil. 64. Pioneer Ceramics Inc. v. Samia, 33 SCRA 487, 114 People v.Brioso, 37 SCRA 336.3. A report of a certified public accountant which was submitted by a commissioner who was only asked to examine the record of a case in the custody of the Anti- Usury Board;!15 = 4. The manifest of a steamship company showing that only two out of three cases shipped by the plaintiff had been received and a letter from the consignee stating that the cargo in question had not been received where neither the person who Bees the manifest or the consignee were Pilled to testify;!16 and , 5. Newspaper clippings, a letter and a telegram to show the death of an insured in an action on aig matics policy. Hg; _ Examples of verbal hearsay evidence are: . The testimony of a mother that the alleged father of her son read to her a document wherein he acknowledged her son as his;118 = 2. To show his innocence, the testimony of an accused that a third person had confessed to the crime;!!9 and , 3. Testimony of a witness to a highway accident that the driver told him that the automobile belonged to the defendant. !20 us Ngo Seng v. Femandez, 98 Phil. 197. ts Gladium Co. v, Standard Forwarding Co., 172 N.¥.S. 487. \ 11 Bebbington y. California W. States Ins, Co. 30 Cal, 24 157, 160, 180 P.2d 673, 674. mt Teague v, Wilson, 220 N.C. 241, 17 SE, 249. syl. 11941. uv Goldsmith v. State, 232 Ala, 436, 168 So. 547 (1936) syl. 1. Donnely v. United States, 228 US 243, 33 S.Ct. 447, 57 L. Ed. 820, 1913. ™ Davis v. Bennet’s Adm'r 279 Ky., 799, 132 S.W. 2d 334.syl. 7. 72Not every hearsay evidence is inadmissible. Some canbe soumges depending on the purpose for which they are being offered. Us; 1. When a statement is presented for the purpose of proving the truth of the facts asserted therein, it is hearsay and inadmissible; 2. But when the statement is presented to prove something. else, without Yeference.to its truth, it is not hearsay and admissible, Such a statement is said to be non-assertive of the truth. For instance, a Witness in a slander case testified that he heard Juana say, that Pedro was a thief. If the testimony is offered to prove that Pedro is a thief, it will not be admitted for being hearsay. But if the testimony is presented to prove that Juana uttered those words, regardless of whether her statement is true or not, the testimony is admissible. In the latter example, the statement of Juana that Pedro was a thief is also called by some authorities as an independently relevant statement, thatis, astatement relevant to the case, regardless or independently of its truth. Hearsay evidence can, therefore, be admitted if offered for the following non-assertive purposes: 1. To prove that the statement was made, as in the example of the slander case given above; 2. To show the feelings or state of mind of the declarant, like his mental condition, motive, fear, apprehension, good or bad faith,!21 tat State v. Cooper, 170 N.C. 719, 87 S.E, 50,8 ALR. 1214. Chase ¥. City of Lowell, 101 Mass, 422, 24 N.E. 212, cited in Tracy, Handbook of the Law on Evidence p. 255 (1952). People v. Ramos 30 Cal. 34 553. People v. Arcega 32 Cal. 3d 504. People v. Patton 63 Cal. 3d 21.Anexample of this is the statement of a person that he is the. King of the world, which is offered to prove his insanity, not of course to show that he is really king. Another example is the testimony of a witness that he heard ~ the testator say that he cared more for Peter than his other sons, » which may be offered to show the testator’s feelings and special fondness for Peter. !22 Likewise; threats, regardless of their truth, are admissible to show which of two parties is the aggressor and also to show the state of mind of the one who claims to have acted in self- ee The threats may be proved by anyone who heard ~ them.! as a Also, a statement of account which is offered not to prove such account but only to show the good faith of the possessor is admissible.124 3. To establish notice, knowledge, consciousness or awareness of some fact or the condition of some fact. For instance, to prove that the driver knew of the defective + condition of his brakes, evidence that he stated before the accident.to the witness that his brakes were defective is admissible 125 But if not objected to hearsay evidence is admissible. Although as a rule courts hardly give it any weight considering its source and nature. ™m Loetsch v. New York City Omnibus Corp., 291 N-Y. 308, 108 N.E. 2d 448 syl. 4.5. 133 Stokes v. People, 53 N.Y. 164, 13 Amp. Rep. 492. 4% Robles y. Lizarraga Hnos. 42 Phil. 584. 1 Borderland and Coal Co. Kerns, 165 Ky. 487, 177 S.W., 266.On the other hand, there are many exceptions to the hearsay rule. They refer to those statements which, although made out of court and cannot be subjected to cross examination, are nevertheless admitted to establish their truth. They are admitted under the necessity rule that says that courts must not be deprived of the use of an evidence considered vital and necessary in deciding a case. They are also admitted because of the circumstances under which the hearsay declarations are made which more or less guarantee or assure the court of their trustworthiness. The ~ circumstances serve as a substitute for cross examination the lack of which, as pointed out above, is the basis for exclusion under the hearsay rule. The various exceptions, which are discussed in the following pages, are: (1) Dying Declarations; (2) Declaration against Interest; (3) Act of Declaration about Pedigree; (4) Family Reputation or Tradition regarding Pedigree; (5) Common Reputation; (6) Part of the Res Gestae: (7) Entries in the Course of Business; (8) Entries in Official Records; (9) Commercial Lists and the like; (10) Learned Treatises; (11) Testimony or Deposition at a Former Proceeding. One word about these exceptions: they are not mutually exclusive. One statement may meet the admission requirements of more than one hearsay exception. For example, a dying declaration may be used or considered part of the res gestae or an admission. 75SELF-SERVING EVIDENCE Self-serving evidence is usually a statement, oral or written, made out of court at one time that is considered favorable to the interest of the declarant. It is not admissible as proof of the facts asserted therein primarily because of its hearsay character. Not being present in court the person who made the declaration cannot be cross-examined on what he said in his statement.!26 Moreover, the introduction of self- serving evidence, which by its nature is easy to manufacture, would open the door to fraud and perjury. Butnote thatthe testimony in court ofan interested party, which may be the plaintiff, defendant, complainant or accused in a case, is not considered self-serving no matter how favorable itis to its interest. This isbecause the testimony can be subjected tocross-examination.127 An example: The mother of a defendant heard her son say to a prosecution witness: “Why did you tell all those lies?” The mother was going to repeat in court what her son said which, of course, was favorable to him. The son’s out-of-court statement is not only self- serving but also hearsay.!2& 1 Lichauco v. Atlantic Gulf & Pacific Co. of Manila, 84 Phil. 330. am NDC v. Workmen’s Compensation Commission, 19 SCRA 861. ‘3 People v. Maxey, 28 Cal. 3d 190, 198, 104 Cal. Reptr. 466, 470. 76Another example: The defendant was charged with driving under the influence of liquor. When his wife arrived at the hospital several hours later, she asked the defendant who was driving the car. The defendant replied that he was not the one but his companion, This out-of-court statement of the defendant, which was favorable to him, is self-serving hearsay if narrated by the wife in court. malsHEARSAY EXCEPTION - DYING DECLARATIO A dying declaration is admitted because of the belief thi person who is about to die and face his Creator can be expected the truth. Because the declarant can no longer be cross-exan dying declaration should be received with caution and the ru governing its admission should be strictly followed . These rules a 1. The declaration is made under a consciousness of impendit death. The belief that death is fairly imminent may be p not only by the seriousness of the wounds sustained, but by the statements uttered by the deceased;!29 Held sufficient proof of a sense of impending death are the following statements : “I am sure to die”; “I cannot live and] want to make a dying declaration”; and, “I believe I have nj hope”.!30 ’ Likewise, requesting the presence of a priest in order the declarant might receive the last rites of the church may be shown as evidence of a belief in impending death;!5! 13 People v, Pereja, 47 Phil. 525. People y, Saliling, SCRA 427. People v, Cruz, GR No. 04716, Feb. 19, 1988. 10 People v. Talledo, 85 Phil. 533. ui Carver v. US, 164 U.S. 694,17 S.Ct. 228, 41 L.Ed. 602. BIn this regard, death need not immediately follow the declaration. Itis enough that the declarant believes that death is at hand when he makes the declaration;!? 2. The declaration is used in a criminal case, not in acivil case, where the death of the declarant is the subject of inquiry.!33 Where the accused is on trial for the murder of one person, the dying declaration of another person who was killed in the same incident cannot be admitted;!94 3. The declaration is to prove only the facts and circumstances producing and attending the death of the declarant. To the extent it refers to past transactions like previous threats, or to what occurred three hours before the murder, or to past quarrels, it is not admissible;!35 4. If the dying declaration has been reduced to writing the original of the written declaration must be produced. 136 Secondary evidence is allowed only after explaining the non-production of the original; and, an . The declarant is competent as a witness.!37 12 People y. Alfaro, 83 Phil. 85. i U.S. ¥. De La Cruz, 12 Phil, 87, 91. People v. Molas, GR No, 97437-39, Feb. 5, 1993. 0 State v. Fitzhugh, 2 Or. 227, cited in Richardson On Evidence 253 (1961). ns People v. Bustos, 45 Phil. 9, 21. People v, Sabio, 102 SCRA 219. 1 Wharton, Criminal Evidence 896-898. Richardson on Evidence 253 (961). 1% People v. Andia, 112 Phil. 338; 2 SCRA 423. People v. Odencio, 88 SCRA 1. 1 People v. Apa-ap, GR No. 110993, August 17, 1994. 19A dying declaration is not inviolable. It may be discredited by showing that the reputation of the deceased for truth and veracity is bad; that the deceased is unworthy of belief because he has been convicted of a crime; that the deceased does not believe in God or in a future state of rewards and punishment; that it is inconsistent with a previous statement made by the deceased; that it is incredible in itself; or, that it is contradicted by the testimony of disinterested witnesses.138 ‘8 People v. Bingsan, 48 Phil. 929. People v. Almendralejo, 48 Phil. 268. People v. Aniel, 96 SCRA 199.HEARSAY EXCEPTION DECLARATION AGAINST INTEREST Declarations against interest are admissible, even though hearsay, because of the belief that a person will not make a false statement if it will be against his pecuniary or moral interest. Unlike an admission which is made by a party to a case, a declaration against interest is made by a third person who is not directly involved in the case, like a predecessot-in-interest. To be admissible, the declaration must meet the following requirements: 1, Itis made by a person who is dead, outside the Philippines or unable to testify. The unavailability to testify should be due to serious causes, e.g., the person is physically incapable or mentally incompetent. In one foreign case, a declarant who was present in court but who refused to testify because of fear forhisandhis family’s safety was considered unavailable;139 2. The declaration is not self-serving. It is against the pecuniary or moral interest of the declarant. Particularly if financial interest is involved, the declaration against it must be actual and substantial that a reasonable man wouldnothave made the declaration unless he believed it to be true; 14° bs People v. Roja, 15 Cal. 3d 540, 125 Cal. Rptr. 357. 1 Tracy, Handbook On Evidence, 247-248. ‘Del Mundo v. Court of Appeals, 97 SCRA 373. Dequito y. Llamas, 66SCRA 504. ‘Ong v. Court of Appeals, 100 SCRA 641. 81Typical examples are statements like: “I am indebted to Juan de la Cruz’; “I am owner of only one half of the property registered in my name”; or, “I have already sold the land to Pedro even though it is still registered in my name”; Declaration against penal interest may also be considered as declaration against moral interest;!4! and , 3. The declarant knew the facts and had nomotive to misrepresent or falsify them.!42 The declaration may be oral or written. It may appear in deeds, accounts, memoranda, receipts, etc. And it need not be made in the regular course of business or be contemporaneous with the act recorded.!43 The declaration may be used not only against the declarant and his successors in interest but also against third persons. ut People y, Surio, 56 SCRA 774. People v. Toledo & Holgado, 51 Phil. 825. People v. Caparas, 102 SCRA 781. ix McCormick, Evidence 553. w Richardson on Evidence 248. Aboitiz v. De Silva, 45 Phil. 883. 82HEARSAY EXCEPTION PEDIGREE (FAMILY HISTORY) © Matters of family history like the relationship, age, date and place of birth, marriage ordeath ofafamily member may be established by the act or declaration of a dead or unavailable person. The act or declaration may be found in a family bible, deed, letter, will or other types of family record. Inorder that such declaration may be admitted it is necessary to show that: 1. The declarant is dead, outside the country or otherwise unavailable; 2, He is a member of the family either by birth or marriage which fact must be proven by independent evidence;4 and, 3. The declaration is made before the controversy at a time when the declarant has no motive to lie.!4° Declarations about pedigree are admitted out of necessity and because of the belief that people are not prone to lie about their family history. us Ferter v. De Inchausti,38 Phil. 905. Lazatin v. Campos, 92 SCRA 250. us Gravador v. Mamigo, 20 SCRA 742, 747. 83HEARSAY EXCEPTION FAMILY REPUTATION A living family member can testify about the pedigree or lineage of a relative provided it is based on family reputation or tradition that existed before the controversy. !46 But it is necessary that the witness first prove that he is a member of the family either by consanguinity or affinity. To prove his relationship independent evidence is not necessary. He can rely on his own testimony. Under section 39, pedigree is proven by what was said by a relative who is already dead or unavailable. In this exception, it can be shown by a living relative who has come forward to testify. “6 Gravador v. Mamigo, 20 SCRA 742, 747. 84.EE HEARSAY EXCEPTION COMMON REPUTATION Common reputation can be used to prove: 1. Facts of public or general interest that are more than 30 years old; 2. Marriage;!47 and, 3. The good or bad moral character of a person. Group or community opinion, not individual opinion, is the basis of and constitutes common reputation. Such opinion, if itcannot be unanimous, must at least represent the general consensus of the community. There is another requirement. The common reputation must have existed before the controversy started, This requirement is imposed to insure the trustworthiness of the reputation. An example of a matter of public or general interest is the boundary of a town or province, or the public character and location of a road. i. «7 Inte; Florencio Mallare, Adm. Case No. 553, 59 SCRA 45. 85Note, however, that the boundaries of private lands cannot be proven by reputation except when they affect many people so as to become a matter of general interest to them. At no instance can title to private lands be shown by common reputation.148 ‘The moral character of a person may be established by common reputation existing before the controversy and prevailing in the place where the personis well known. Good character may be implied from the testimony of a witness who never heard anything bad being said about a person.!4? ue Tracy, Handbook of the Law of Evidence 287. tw Wigmore, textbook, sec. 257, p. 257. Tracy, Handbook of the Law of Evidence 289.Part of the res gestae means part of the principal act. It may either be a spontaneous exclamation! or a verbal act.151 A spontaneous exclamation is a statement caused by the stress and excitement of some startling external event. Whether the statement has been uttered spontaneously such that the declarant has had notime to deceive, fabricatea story ortell alieis the test ofits admissibility.!5? Therefore, the lapse of time between the event and the utterance is a decisive factor. It determines whether the declarant has had the chance to think and reflect about the incident and deliberate about his reaction and statement. If the statement isnot made while the startling occurrence is going on it must at least have been made immediately prior or subsequent thereto. 1 People v. Ducay, GR No. 86939, Aug. 2, 1993. People v. Sanchez, GR No. 74740, Aug. 8, 1992 1s PAL y, Ramos, GR No. 92740, March 23, 1992. 1st People y, Ner, 28 SCRA 51 People v. Sanchez, supra. Gregorio v. Go Chong Bing, 102 Phil. 556. 87Depending on the circumstances, questions addressed to the declarant, such as “what happened”, “what’s the matter”, may or may not determine spontaneity. This is because the answers to such questions may be just narrative in character in which case it may not beconsidered spontaneous. Or the answer may be instinctive in nature in which case it may be deemed spontaneous.!53 Also, the statement must be about the occurrence in question and its immediately attending circumstances.154Statements that refer to another event or transaction different from the startling incident cannot be considered spontaneous and part of the res gestae. The person whose spontaneous statement is being presented need not be a participant in the startling event. He may be a bystander or observer and the statement may be reproduced in court by a witness who heard it.155 Astatement that fails to qualify as a dying declaration, because it was not made under a consciousness of an impending death, may be admitted as part of the res gestae.'56 On the other hand, a verbal act is a statement or declaration which accompanies an act and tends to explain or describe the meaning, character or nature of the act.!57 18 People v. Tampus, 96 SCRA 624, 1s People v. Ducay, supra. 1s People v. Macabenta, 106 Phil. 7. 1s People v. Reyes, 52 Phil. 538. People v. Yutila, 102 SCRA 264. People v. Lariosa, 106 SCRA 369, ‘7 PAL y. Ramos, supra. 88Bi le, if Pedro hands money to Juan without saying + anything, the act itself is ambiguous and no one can tell for what purpose the money has been given. But if at the time the money is handed, Pedro says that itis for safekeeping, the character or purpose of the act is explained by the accompanying statement, which is the verbal act. The declaration of Pedro, as later on recounted by a witness, will be admitted as an exception to the hearsay rule because it is considered a part of the transaction, deriving credit from the act itself. For examp! To be admissible as a verbal act: 1, The statement must accompany an act, that is, be con- temporaneous with the conduct; 2, The act is material to the issue; 3. The act is dumb, ambiguous or equivocal; and, 4. The statement explains or gives a legal meaning to the act. 89This exception to the hearsay rule is called the “business entries” rule. But this description is apt to be misleading because the exception is not limited to entries in books of accounts kept by merchants. 158 Even entries made by lawyers, physicians and others engaged in similar callings or professions are included. Because it is preserved in writing, an entry can prove the act, condition, event or transaction that it describes, even ifthe person who made it is already dead or unavailable.!5° But in order that the entry may be given weight as prima facie evidence - notconclusive evidence - of whatit describes, the tae requirements must be met: 1. The entry is authenticated by its custodian who must testify on its identity and manner of Pigpatesionl RE 2. The entry ismade when the event ortransaction is happening, has just happened or right after;!6! ise Equitable Ins, & Casualty Co,, Inc. v. Blue Funnel Line,» F C.A. GR. No.49394-R, June 28, 1974, 71 0.G, 3498, June, 1975, * 19 CA. Rep. 2d 779 (1974). 1s Encamacion v. Court of Appeals, GR No, 101292, June 8,1993. 1 Chapman v. Garcia, 64 Phil. 618. 1s! Nolan v. Salas, 7 Phil!re ee ese 3. The entry is made by someone while exercising his profession or performing his duty and is in a position to know the facts stated therein;!62 4. The entry is not an isolated or sporadic act but is one of many done regularly in the ordinary course of business or duty. An entry need not be found in a book of accounts kept by merchants. It may be found in a book of marriage, report of a public service inspector or in any similar record book. It may take the form of a sales slip invoice, punch card, purchase order or daily log. However, a balance sheet is not so considered. '63 An entry may be used to refresh the memory of a witness.16* 4 —— ‘ Batangas Transportation Co, v. Reyes, 104 Phil. 783. US. v. De Vera, 28 Phil. 105. ‘49 Consolidated Mines, Inc. v. Court of Tax Appeals, 58 SCRA 618. ‘ea Cang Yui v. Gardiner, 34 Phil. 376.= HEARSAY EXCEPTION - OFFICIAL RECORD ‘What is important is that the entry is made because the law requires it to be made.!© In other words, the public officer or private individual who made the entry is duty-bound to make it while performing his functions. Due to this requirement, which insures trustworthiness, the entry becomes official and admissible. Official entries are found in public records but not always. Considered official entries or records kept by a public officer are entries in the registry of birth, marriages and death kept by the local civil registrar!®; the sheriff” scertificate of service of summons!®7 and. return of writ of execution!®8; the certificate of acknowledgment of a notary public!®; and the certi ficate of correctness of a court stenographer.!79 On the other hand, a log book entry required by law to be kept by a ship captain is an example of an official entry kept by a private individual.!7! Although the official, employee or private individual who made the entry need not be presented in court, this being an exception to the hearsay rule, the entry must be authenticated. 165 Ismael v. Guanzon, 12 Phil, 347. 1 U,S. v. Que Ping, 40 Phil. 17. 1 Vargas & Co, V. Chan Hang Cchieu, 29 Phil. 446. 1s Manalo v. Robles Trans. Co., 99 Phil. 729. 1 U.S. v. Asensi, 34 Phil. 750. 1% Samson v. Corrales, 44 Phil. 573. 1 Hayerton Shipping Ltd. v. NLRC, 135 SCRA 690. 92. - In the case of public records, this is done by presenting a certified true copy of the record where the entry is found. The certified copy must be issued by the official custodian of the record.!72 Once admitted, the entries in official records are prima facie evidence of the facts stated therein. For instance, a death certificate is evidence of the fact of death and also of the cause of death stated in the certificate.!73 But being prima facie evidence only of what has been reported, the entries can be overcome by contrary evidence. An entry in the police blotter, for instance, can be contradicted by the testimonies of witnesses.!74 The general rule is that the person who made the entries in a record which is not specifically required by law to be kept must have sufficient knowledge of the facts therein stated. Otherwise, theentries will not be given any probative value. Thus, a report of a police officer who investigated an incident based on information supplied by persons he interviewed at the scene is considered not an exception to the hearsay rule and held inadmissible. According to the court, the facts stated in the report “were not acquired by the reporting officer through official information, not having been given by the informant pursuant to any duty to do s0,"175 Usually, these official entries are presented with supporting testimony: autopsy report!76, baptismal certificate !77; police blotter!78; and police investigation teport.!79 vm Rule 130, Sec. 7 1 People v. Crisostomo, 160 SCRA 47. na People ¥. Santito, GR No. 91628, Aug. 22, 1991. ms Africa v. Caltex Inc., 16 SCRA 448, 1m US v. Lorenzana, 12 Phil. 64. People v. Pagkaliwagan, 76 Phil. 457 mm Fortus v. Novero, 23 SCRA 1330. 1m People v. Gagui, 18 SCRA 456. People v. Bagsican, 6 SCRA 400. People v. Tatlonghari, 27 SCRA . 1m Africa v. Catlex (Phil) Inc., 16 SCRA 448. 93HEARSAY EXCEPTION - COMMERCIAL LISTS: The market for stocks, machinery and goods at a particular period of time may be proved by price quotations appearing in daily newspapers, trade journals, or printed circulars and catalogues issued by manufacturers and distributors. Other market and economic data, like the demand and supply of goods, the rise and fall of inflation rate, growth or decline of the grossnational product may be proved by tables and statistics published jn trade or commercial journals or as reprinted in reputable newspapers. Weather and navigational statistics can also be admitted under this rule although if compiled by a government agency, like the weather buteau, they are admissible also as public or official records. 180 Out of necessity and strong probability of their trustworthiness, the authors of the lists, quotations and statistics need not be called to testify in order that they may be admitted. It is enough to prove that suchlists, quotations, and: statisticsarecompilationsregularly published and relied upon by the business or profession to which they belong or are intended. 1 Tan Chiong Sian v. Inchausti Case Co., 22 Phil. 152. 94The commercial lists and the like are admissible as tending to prove the truth of the relevant matters therein stated . In short, they are also prima facie evidence of what they state or describe.“ae HEARSAY EXCEPTION LEARNED TREATISES Written works published on any subject of history, science or art is admissible if authored by someone learned or recognized as an expert or authority on the subject. If the competence of the expert is generally accepted, the court may take judicial notice of that fact. If not, an expert may be called to show that the author of the treatise is somebody recognized and well known in his field. Articles in encyclopedjas may be admitted under this rule. Dictionaries, while admissible, are admitted only for the purpose of showing the ordinary meaning of words.'8! 1: 20 Am. Jur. 2d, Evidence, sec. (1967), citing Nix v, Hedden, 149 U.S. 304, 13 S.Ct. 831, L.Ed. 745.HEARSAY EXCEPTION FORMER TESTIMONY Testimony or deposition taken in aformer proceeding, whether judicial or administrative, can be used for two purposes. First, to impeach the witness who gave the former testimony. Secondly, to prove a fact in issue, when the witness i his former testimony has made a damaging admission proving the disputed fact. If the purpose is to impeach a witness who is testifying, by showing that he has made a prior inconsistent statement, the require- ments of this rule need not be observed. Itis enough that the predicate or foundation for the admission of that statement is laid before questioning the witness about it.18? But if the purpose is to prove @ fact in issue, it is necessary to show that: 1. The witness who previously testified is not available either because he is dead, outside the Philippines or unable to testify due to physical or mental illness. Note that mere refusal to testify is not a valid ground to excuse the witness from testifying;!** co a Juan Ysmacl & Co., Ine. v. Hashim, 50 Phil. 132. Rule 132, Sec. 13. 4 Guevara v. Almario, 56 Phil. 476. Tan y. Court of Appeals, 20 SCRA 54. = 972. The witness gave his testimony in a former case which involves the same parties and subject matter as the case where his testimony is being or will be introduced; !84 3. The witness was cross-examined or could have been cross- examined by the party against whom the testimony is to be 7 given, 185 The best evidence to prove former testimony is, of course, the transcript certified true and correct by the stenographer who took it. And in the case of a deposition, the deposition itself. Contrary to popular belief, the judge’s notes are not an official part of the records, not having been made under the sanction of an oath. They are not evidence of what a witness has said.186 ist Ed. A, Keller & Co. v. Ellerman & Bucknall Steamship Co., 38 Phil. 514. City of Manila v. MERALCO, 53 Phil. 586, 185 U.S. v. Concepcion, 31 Phil. 182. People v. Limanag, 73 SCRA 473. 16 2 Underhill, Criminal Evidence, 1089-1093 (5th ed. , 1957). 98 PWhen the court takes judicial notice ofa fact, evidence becomes unnecessary and is dispensed with. !87 Therefore, taking, judicial notice is a short-cut inestablishing facts that are well known and do not admit of any contradiction. Judicial notice may either be mandatory or discretionary. If mandatory, the introduction ofevidence iscompletely dispensed with — because it pertains to indisputable matters like: z 1. The existence and territorial boundaries of states; their poli tical history, forms of government and symbols of nationa- lity; is 2. The law of nations, admiralty and maritime courts of the world; 3. The constitution and history of the Philippines, official acts of the legislative, executive and judicial branches of the government; and, 4. The laws of nature, measure of time and geographical divi- sions. Prosecutors v. Muro, A.M. No. MTJ 92-876, Sept. 19, 1994.On the other hand, when discretionary, courts may or may not take judicial notice of matters even if they are of public knowledge, are capable of unquestionable demonstration, or ought to be known to judges because of their functions. Especially if the matter is very material to the case, courts may find it prudent to hold a hearing and receive evidence from the parties on such matters. Generally speaking, the discretion to take judicial notice must be exercised with caution. The requisite notoriety must always exists. In case of doubt judicial notice must not be taken.!88 Courts have discretion to take judicial notice of: 1. Matters ofcommonand general knowledge in the community like the major calamities and historical events in the country and the names of towns and barangays in a municipality. In one case, the widespread fear of the NPA by the civilian population was taken judicial notice of.!89 Also considered was the fact that a person under the influence of liquor, even if not to the point of intoxication, is prone to be impulsive, irascible, or combative.1%; 2. Matters that can easily be ascertained and verified from books, encyclopedias, official reports and documents and other authoritative sources like: (a) standards of weight and mathematical formulas; (b) the contagious nature of certain diseases; and, (c) the temperature, humidity and wind velocity on a given day. 188 State Prosecutors v. Muro, A.M. No. RTJ 92-876, Sept. 19, 1994. 189 People v. Andasa, GR No. 101022, Feb. 27, 1992. 199 People v. Aguiluz, GR. No. 91662, March 11, 1992. 1003. Matters which courts should know by reason of their judicial functions like: (a) the enactment, repeal or amendment of laws and their dates; (b) their territorial jurisdiction; and, (c) their own judicial records.!9! However, judicial notice will not be taken of: 1. The laws of a foreign country;!92 2, Local customs;!9° and, 3. The judicial records of other courts or of other cases. 194 Ifa party feels that a court has erred in taking judicial notice of ‘matter, it may request a hearing on the issue during the trial andeven ‘on appeal. One last word. Judicial notice should not be confused with judicial knowledge. What a judge knows or has come to know personally of a fact not commonly or professionally known, is not judicial notice but judicial knowledge. Such knowledge cannot do away with evidence nor can it be used as basis for action.!95 x I 191 People v. Tampus, 88 SCRA 217. De los Angeles v. Cabahug, 106 Phil. 839. 192 Fluemer v. Hix, 54 Phil. 610. ‘Adong v. Cheong. 43 Phil. 43. 199 Patriarca v. Orate, 7 Phil. 390. ita, C_A-G.R. No. 40377-R, July 20, 1973, . Rep. 24 797. Insurance Office, Ltd., 36 Phil. 994. ‘AM. No. MTJ 92-876, Sept. 19, 1994.Admission is any act, declaration or omission of a party as toa relevant fact. It can be used against the party or witness who made it on the ground that no person would say or do anything against his interest if it was not true. To be admissible the admission must be relevant to the issue. If the admission is to establish a fact, then it can be presented like any piece of independent evidence. But if its purpose is to impeach, to show thata party or witness has made previous admission contrary to what he is now saying, then the necessary foundation or predicate must first be laid.!96 Please sce the discussion on this point. As a rule, a party can be affected only by his own acts and omissions. He cannot be prejudiced by what others has said, done or failed to do. !97 For example, an individual who is not a signatory and haS not given consent to acompromise agreement cannot be bound by it, 198 The only instance where a party can be bound by the acts or omissions of others is when they are so related or united to each other that the act of one may be considered the act of the other. In short, when they have joint not merely common interest. Thus, a party may 19% Section 13, Rule 132 197 Belvis v. Ct. of Appeals, ct.al., 167 SCRA 324: 198 Periquet v, Intermediate Appellate Court, GR No. 69996, Dec. 5, 1994. 102be bound by the act or omission of a partner, agent, joint owner. debtor, co-conspirator, and privy. Ifthe admission is made by a partner oragent or joint owner, the existence of the partnership, agency or joint ownership must first be shown by independent evidence. It means by evidence other than by such act, declaration or omission of the person making the admission. Then, a showing that the admission is made within the scope of authority of the partner, agent or joint owner must likewise be made. The same requirement applies to those made by a conspirator. The existence of the conspiracy must first be established by evidence other than by such act or declaration. But note that this requirement applies only to an extra-judicial act or declaration of a co-conspirator and not to the testimony of a conspirator given in court where the accused has an opportunity to cross-examine him.19? Also, admission must be shown to have been made in connection t conspiracy and during its existence.200 ns * Inthe case of privies, the admissions made by the former owner of a property, whether real or personal, are admissible against the present owner provided they are made in relation to the propel while holding title thereto.20! ~3 = 199 People ¥. Serrano, 105 Phil. 131. People v. Niera, 96 SCRA 1. 200 People v. Cabrera, 57 SCRA 715- People v. Sison, 66 SCRA 372. - 201 Leonardo v. Santiago, 7 Phil. 401. Taguinod v. Mun. of Tanay, 9Phil. 396. Gomez Medel v. Avecilla, 15 Phil. 465. ‘Amancio v. Pardo, 20 Phil. 313. 103Admissions may also be the result of silence. The failure of a party to do or say anything when an act or statement is done in his presence which if not true he is expected to refute or deny, may be received in evidence against him. This rule, which applies to both criminal and civil cases, is based on the principle that silence means consent. Thus, in a prosecution for rape, the failure of the accused to deny the charge when the victim complained to the barrio councilmen was construed as an admission by silence. 202 But note that the failure or refusal of an accused to answer an incriminating question, give a statement while under police investigation or testify in court may not be taken against him because of his constitutional right to remain silent. 203 In civil cases, an unreasonable delay in the enforcement of claims is held to be an implied admission of lack of merit.20+ So far our discussion has been on extra-judicial admissions, that is, those made out of court. There is another kind, the judicial admissions, or those made by the parties during a hearing or in the course of a proceeding. Judicial admissions may be oral as when made in the testimony of a witness or when stated in the verbal manifestation of a lawyer. They may also be written when the admission is made in the pleadings, memorandum or brief of a party submitted to the court. 2m US y, Bay, 27 Phil. 495, 203 People y. Alegre, 94 SCRA 109. 204 Buenayentura v. David, 37 Phil. 435, Cuay Cong v. Benedicto, 37 Phil. 781. PNB v. De Poli, 44 Phil. 763. La Insular v, Yuso, 45 Phil. 389.may be implied. genuineness and implied admission In whatever form, however, judicial admissions carry more weight than those made out of court. They are oe. of the facts to which they refer, no evidence being required to pr them. Although considered conclusive, judicial admissions can be overturned but only whenshown tohave been made through palpable mistake.206 eo 30s phil. American General Insurance Co. Inc., v. Sweet Lines Inc., GR No. 87434, Aug. 5, 1992. i Insurance Co. Inc. v. Sweet Lines Inc., supra.CONFESSIONS — Rule 130 Sec. 33 Confessions are also admissions but they refer only to admis- sions of guilt. And the acknowledgment of guilt may refer not only to the offense charged but also to any other offense necessarily included in the accusation. Because confessions result in self-convictions, as they admit guilt immediately and has the effect of dispensing with the presentation of evidence, where truth may be known, constitutional safeguards have been provided to insure that they are freely and voluntarily given before being admitted.207 Thus, when an accused wants to enter a plea of guilt, it is the duty of the court to see to it that he fully understands the charge and the consequences of the action he ig about to take. If there should be any sign or hint that he does not understand, the accused must not be allowed to enter his plea and permitted to withdraw itifhe has already done so. In such a case, the withdrawal cannot be used as evidence against him.298 With regards to extra-judicial confessions, those usually made during police investigations, therequirements are stringent. Following the celebrated Miranda ruling, it is necessary to show that the accused Was previously informed of his rights to remain silent, that is, not to 20? Asticle III, Sec. 12 (1), 1987 Constitution. 208 Rule 130, Sec. 27make any statement, and to have acompetent and independent lawyer while being investigated.?°° And in case he waived these rights, that he was assisted by a lawyer in making the waiver which must be in writing. 21° Absent these showings, the confession is inadmissible and cannot be used as basis of any conviction.?!! Also, for an extra-judicial confession to become a sufficient ground for conviction, it must be corroborated by evidence of corpus delicti which means a showing that the crime was committed, 72 Such evidence may consists of facts and circumstances tending to corrobo- rate the confession. 213 This requirement is intended to prevent convictions based on false confessions.?!4 209 People v. Pascual, 109 SCRA 197. People v. Velasco, 110 SCRA 319. 210 Morales v. Ponce Enrile et. al., 121 SCRA 538. People v. Buenaflor GR NO. L- 62805, Jan. 22, 1990. 211 Pegple v. Duero, 104 SCRA 379. 212 People v. Bernales, 94 SCRA 604. 213 People v. Moro Ansareg, GR No. L 4847, May 15, 1953. 216 People v. Bantanga, 54 Phil. 834 \ 107In civil cases, an offer to’ settle a claim is not considered an admission of liability. Therefore, it is inadmissible. But this principle is true only if the offeror does not admit liability or denies the existence of the claim. In other words, if the party making the offer admits being indebted or liable, the offer to compromise is admissible as evidence of liability even if made to buy peace andavoid litigation.2!5 This rule on non-admissibility of an offer is adopted because the compromise of civil cases is encouraged especially among family members.?!6 Indeed, trials can even be suspended to discuss possible amicable settlements except in cases involving the civil status of persons, the validity of marriage, legal separation and future legitime.2!7 But note that when an offer to pay a sum of money or to deliver a written instrument or personal property is rejected without valid cause the rejection is equivalent to their actual production and tender. In this case, the offer must be in writing and must state a particular or specific sum of money or property to be effective. 215 Trans-Pacific Industrial Supplies, Inc., v. Court of Appeals, GR No. 109172, Aug. 19, 1994, 216 Art, 222, Civil Code. 217 Articles 2029, 2030 & 2035, Civil Code. 108But in criminal cases, the rule is reversed. An offer of compro- mise by the accused is considered an implied admission of guilt and therefore admissible. Only in quasi-offenses, or cases involving criminal negligence, and cases allowed by law to be compromised is this rule implying admission of guilt not followed. If a compromise is reached in a criminal case, it is valid only with respect to the civil liability arising from the offense. It cannot extinguish criminal liability so as to exempt the offender from prosecution and imposition of penalty.2!® But in practice after a settlement is reached, the complainant usually manifests disinterest in prosecuting the accused. If the case is dismissed it is not due to the compromise agreement but because of the lack of interestto prosecute on the part of the victim. 218 Art, 2034, Civil Code.BEST EVIDENCE RULE The best evidence rule simply means that if a party wants to : prove the contents of a writing - what the document says - he must present to the court the original of the writing, if available. Therefore, what is stated in the document cannot be proven by a mere copy of the writing or by the oral recollection of a witness, unless the existence and non-production of the original document are explained and accounted for. The original is considered preferred evidence, preferred to a mere copy of the writing. However, the rule is not applicable and the writing need not be produced: 1. If the purpose is not to prove the contents of the writing but only to show that the document exists, has been executed or delivered.226 In such a case, the oral testimony of a witness is enough to prove the existence, execution or delivery of the writing:227 2. If the writing is merely collateral or is connected in some remote way to the issue.??8 226 People v. Tandoy, GR No. 80505, Dec. 4, 1990, 221 McCormick, Evidence 41001954). # 228 Hernaez v. McGratch, 9! Phil. 565 ; McCormic, Evidence 412 (1954). 112Inthe following examples, where the fact to be proved the writing is not closely related to the main issue, oral testimony can be admitted to prove that : (a) a person is married, without producing the marnage certificate;229 (b) a person died, without producing the death certificate ; (c) apersontookatrip, without producing the ticket or travel documents; and, (d) a person owns the land in a forcible entry and detainer case, without producing the title, since possession not ownership and title is the issue.730 3. If the purpose is to prove a fact that has an existence independent of any writing, even though that fact has been reduced to, or is evidenced by a writing.?3! For instance, the payment of money may be proved orally, although a written receipt was given because what is being proved is the fact of payment and not the terms and conditions of the receipt.?32 Similarly, aconversation may be proven by the oral testimony of someone who heard it, although the conversation was recorded.?#3 229Commonwealth y, Phil. 156 Mass. 226, 30 NE. 1016 (1892). But see Lim Tanhu v, Ramoleta, 66 SCRA 425. 230Van Alkenberg v. Venters, 299 Okl. 504, 197 P. 2d 284 (1948), Syl. 2. 231Universal Grain Corp. v. Lamport & Holt Line, 54.N.Y.S. 2d 53 se) Richardson, Evidence 182 (1948) 232Keene v, Meade, 3 Pet. 1, 7 Law Bd., 581 (1830). But see ¥ek Tong Lin Fire & Marine Insurance Co., Inc. v. Gutierrez, CA-GR. No. 19013-R, February 28, 1963, 3.C.A. Rep, 2d 553 (1963). 233McCormick, Evidence 441 (1954). - See also Air France v. Carrascoso, 18 SCRA 155, 169. 113However, even if the purpose is to prove the contents, the original of the writing need not be produced if: 1. The original is lost, destroyed or cannot be produced in court, without bad faith on the part of the offeror ;234 nv . The original is last known to be in the hands of the opposing party who refuses to surrender it after receiving reasonable notice to produce it;235 3. The original is a public record in the custody of a public officer or recorded in a public office, which may be evi- denced by a certified true copy thereof. In this connection, it has been held that the fact that a questioned document does 4 not appear in a notarial register does not make it a non- | existent or spurious document ;236 4. The original consists of numerous accounts or voluminous documents which cannot be examined without great loss of time and where the fact to be proven is only the general result of the whole. When the original writing is not available for one reason or another, the next best evidence to prove its contents will be the following secondary evidence in this order : 1. A copy of the writing ; 2. Another document reciting its contents; 234Paylago v. Jarabe, 22 SCRA 1247, 1255. 235villa Rey Transit, Inc. v. Ferrer, 25 SCRA 845, 236Biak-na-Bato v. Tanco, GR No. 34267-68, Jan. 25, 1991. 1143. The testimony ofa witness who has read or knows about it.237 ‘As discussed elsewhere, it is necessary to lay the proper foundation before secondary evidence is introduced. This means that the due execution, delivery and reason for the non-production of the original writing must first be shown.238 The original ofa document is the one whose contents are the subject of inquiry. If the document nas several copies made at about the same time and with identical, not merely similar, contents, each copy isregarded an original. Likewise considered originals are entries repeated in the regular course of business, copied from one another at about the time of the transaction. Observe that a “copy” may become the “original” in certain cases. A carbon copy, leaving no blanks to be filled up, signed by the person who executed the original documentis considered a “duplicate original.”239 But where several copies are made on the typewriter at the same time, by the use of carbon paper, and only one of them is signed, the signed copy is the original and the others with the missing signature are mere copies.240 237Government v. Martinez, 44 Phil. 817. 238Republic v. Court of Appeals, 73 SCRA 148. 239People v. Quinones, C,A-G.R. No. 372-R, 44 OG 1520, May, 1948. People v. Mangulabnan, 99 Phil. 992. Mahilum v. Court of Appeals, 17 SCRA 482, People v, Alvarado, C.A.-G.R. No. 372-R (L-908), August 29, 1947, 44 OG 1520 May, 1948. People v. Tan, 105 Phil. 1242. 240 International Harvester Co. v. Elfstrom, 101 Minn. 263, 112. N.W. 252, I2LR.A. (NS) 343 (1907). Liberty Chair Co, v. Crawford, 193 N.C. 531, 137 S.E. 577, 51 ALR. 1496 (1927). 11sDuplicates produced by photostat, fax or xerox machines, or by means of photography, microfilm, or recordak in the absence of special rules or statutes, are considered copies, not originals.24! The best evidence rule applies only to writings and not to things. But if the writing is found on an object, like an inscription on a wedding ring, the court has discretion, considering its importance to the issue, to determine whether the object itself should be produced. 24\see U.S. v. Manton, 107 F (2d) 834 (1938), wherein recordaks were treated as originals. 116,Often, lawyers commit the mistake of invoking the parole evidence rule when what they have in mind is the best evidence rule. Inproving the contents ofa writing - what the document says -the best evidenceruleis the one involved. But when a party contends that what the document says is not what is agreed upon by the parties, it is the parole evidence rule that should be invoked. The parole evidence rule is applicable only when the document orwriting contains an agreement or isa will. Itdoes not cover awriting which merely states or describes the occurrence of a fact or event. Thus, the rule cannot be invoked when a party tries to explain that he has not been paid the money for which he issued a receipt. In this example, the receipt is not considered an agreement but merely the unilateral admission of a party that he got paid.242 When correctly invoked, the rule prohibits any party from presenting any evidence that will change, modify or vary anagreement which has been reduced to writing.243 Even if the change is minor or 242Kemp v. Raymond, 67 N.E. 13. Seeley v. Obsbome, lI6 NE. 97. Ascnsion y. Bautista, 36 Phil. 470. Insular Lumber Co. v. Collector of Internal Revenue, 73 Phil.325. 243 Heirs of Del Rosario y. Santos, 108 SCRA 43. 117slight, the rule still applies the reason being that the agreement contains all that are agreed upon and constitutes the law between the parties. Hence, evidence of what the parties said before or at the time the agreement was made cannot be presented to alter, contradict, diminish or enlarge the agreement. The writing is deemed to embody all the intentions of the parties, entitled to respect as the final and complete Tepository of the agreement.244Hence, the main purpose of the parole evidence rule is to preserve the credibility as well as the value of a written agreement. However, the rule has exceptions. If pleaded as an issue, itis not applicable in the following cases where oral evidence may be introduced: 1. When what appears in the documents not a valid and binding agreement”45 either because of: (a) want of consideration;246 (b) want of valid consent due to lack of capacity, fraud or duress;247 (c) Ilegality of subject matter;248 and, (d) Iegality of consideration.248 24 Yu Tek & Co. v. Gonzales, 29 Phil. 384. Lim Yhi Luya v. Court of Appeals, SCRA 668, 692. 245 Maulini v. Serrano, 28 Phil. 640. 46 Baird v. Baird, 145 N.Y. 659, 40 N.E. 222. Calderon v. Medina, 18 SCRA 583, 247 De la Cruz v. Capinpin, 38 Phil. 492; Blum v. Hoffkins, 155 N.E. 885. 248 Muskogee Land Co. y. Mullins, 165 F179. U,S. v. Constantino Tan Quingco Chua, 39 Phil. 552. “43 Houghton y, Burden, 228 U.S, 161, 33 S.Ct. 491, 57 L. Ed. 780, 1182, Where there is intrinsic ambiguity, mistake or imperfection in the writing as when both parties committed a mistake of fact in expressing their agreement. °° Forinstance, the parties erred in describing the property being sold?5! orin stating that the price was payablein dollars when the agreement was in pesos;252 ~ iy 3. Where the writing does not express the true intent and i} agreement of the parties. Here, the document on its face i perfectly expresses an agreement but it is not the true and actual agreement of the parties. Thus, oral evidence may be presented to prove that a written instrument, purporting to transfer absolute title to property isin truth and in fact executed by the parties for the purpose of securing the payment of a loan;253 Or where the document does not perfectly express the q agreement of the parties as where the lawyer who prepared the document failed to use accurate language to state or describe the agreement;?4 280 Centenera v. Garcia Palicio, 29 Phil. 470. 251 Medina v. Imaz & Warner Barnes & Co... 27 Phil. 314. 252 Cabahug v. Cinco, GR No, 6042, February 3, 1941, 40 0.G. $50 (Feb., 1940). Manila Engineering Co. v. Cranston, 45 Phil. 128, ‘ 253 Cuyugan v. Santos, 34 Phil. 100. Tolentino v. Sy Chiam, 50 Phil. 558. Manalo v. Gueco, 42 Phil. 925. ‘Wood House v. Hal Enriquez v. Ramos, I16 Phil. 525, 6 SCRA 219. Lasadeco v. Garcia Plantation Co., Inc., 17 Phil. 761, 7 SCRA 750. 254 Cuenca v. De Guia, CA-GR No. 3900-R, September 6, 1950. Heirs of Del Rosario v. Santos, 108 SCRA 43. San Mauricio Mining Co. v. Anchcta,108 SCRA 695 1194, Where there are otherterms and conditions which the parties may have agreed upon after execution of the agreement. These additional and subsequent terms may be proven even if entered into by the successors-in-interest of the parties. Inthis regard, only the parties to the agreement and their successors-in-interest can prove, strangers to the agreement cannot,255 255 Victoria Lechugas v. CA, GR Nos. L 39972, 90300, August 6, 1986. 120 2Classified as public documents are the following : 1. The written official acts, or records of official acts of sovereign authority, official bodies and tribunals, and public officers of ff the Philippines and other countries ; Examples are legislative acts and resolutions, court decisions and orders, official receipts?5, birth certificates, driver’s license and burial permit?57. 2. Documents acknowledged before a notary public except last wills and testaments; and , 3. Philippine public records of private documents which are required by law to be entered therein. Those not included above are private documents. 286 US y. Leyson, 5 Phil. 447. US v. Uy Guico, 12 Phil 209. 257 US v. Mateo, 5 Phil. 462. a 121 ‘ : . aie) eee eeeUnlike private documents, the authenticity and due execution of public documents need not be proven.58 To prove an official record of the documents mentioned in no. 1 above, what is required is : 1, An official publication or copy of the official acts or records of official acts, attested by the officer who has legal custody of the record. The attestation must state that it is a correct copy of the original or a specific part thereof. 2. If itis a foreign record, the publication or copy must also be accompanied by a certificate that such officer is its legal custodian. The consular officials of the Philippines in the country where the record is kept shall make tlie certificate which must be authenticated by the seal of their office. To prove an authorized public record of a private document, what is needed is : 1. The original record or copy attested by the legal custodian of the record, with a certificate that such officer has the custody. Note that the keeping of the public record must be authorized by law. In the case of notarial documents, no further proof is necessary to prove them. This is because the certificate of acknowledgment which is required by law and accomplished by the notary public at the bottom of the instrumentconstitutes prima facie evidence of its execution.29 Note that the rule refers to an acknowledgment and not to a jurat found in an affidavit. 258 Antillon v. Barcelon, 37 Phil. 148. 259 Rule 132, Sec. 30. 122a 5 . : = Also, the failure to record in the notarial register does not make the document fake or non-existent. But a notarized deed which would otherwise be a public document can become a private instru- ment due to the incompetence of the notary publics! or defective acknowledgement.26? ; Once admitted, public documents acquire evidentiary value. But only those containing entries in public regords made by a public officer in the performance of a duty are considered prima facie evidence of the facts stated therein. All others are evidence only of the fact which gave rise to their execution and of their dates, and even as against third persons.6? If a public document cannot be found by its custodian despite diligent search, a certification to that effect an be issued.264 Such certification enjoys probative value. Thus, acertification by the Civil Registrar that he could not find any application for marriage license in his books means that no marriage license was issued to the parties.265 200 Biak-na- Bato v. Tanco, GR Nos. 34267-68, Jan. 25, 1991. 261 Bareto v. Cabreza, 33 Phil. 112. 262 Blumbaring v. Elumbaring, 12 Phil. 384, | 263 Rule 132, Sec. 23. ' 264 Rule 132, Sec, 28. 265 Republic v. Court of Appeals, GR No. 103 047, Sept. 2, 1994. 123See ae “ee "F; Ve bi i he PROOF OF PRIVATE DOCUMENT Before any private document can be received in evidence, indeed even before a question can be asked on what it contains, its due execution and authenticity must first be established. This means that the document must be shown not to be fake or spurious, that it was really executed and signed by those whose names appear in the document or by those who claim to have executed it.266 Due execution and authenticity can be proven by: 1. Anyone who saw the document while being written or executed. Usually, this refers to the signatories and their instrumental witnesses. But anyone in whose presence the document was signed and executed may also testify; 2. Evidence of the genuineness of the signature or handwriting of the maker which may consists of the testimony of: (a) an ordinary witness who believes that the handwriting belongs to a person because he has seen that person write or is familiar with his handwriting;267 266 General Enterprises Inc. v. Lianga Bay Logging Co., 11 SCRA 733. 267 see also Rule 130, Sec. 50. 124Risa : (b) an expert witness “who has compared the disputed handwriting with writings admitted or treated as genuine by the adverse party or the court. Itis possible for a genuine document to show alterations on its face which could have been made during or after its execution. The alterations may appear as handwritten phrases or notes on a typed page, or as missing pages.68 In such cases, the document will not be admitted unless the alterations are explained satisfactorily during its presentation.26 The explanation may show: 1, That the alteration was made by another person without his consent; 2. That it was made with the consent of all parties affected by it; 3. That it was properly or innocently made; or, 4. That the alteration did not change the meaning or language of the instrument. 268 Bartolome y. Intermediate Appellate Coust, GR No. 76792, March 12, 1990. 26 Rule 132, Sec. 31. ‘Vda. de Bonifacio. BLT Bus Co. Inc., 34 SCRA 618. 125a bt ond ANCIENT DOCUMENT So-called ancient documents can be received in evidence without having to prove their authenticity. Their age and the fact that they are produced from reliable sources insure their trastworthiness. A certificate of baptism issued long ago by a Spanish friar and kept by the family is an example. ‘ But to be admitted without evidence of due execution, ancient documents must meet the following requirements : 1, The document must be over, not at least, thirty years old; 2. It is found and kept in a place where it would naturally be found if genuine; and, 3. On its face, the document is not marred or blemished by any alteration or suspicious circumstance.a." = IRREMOVABILITY OF PUBLIC RECORD Public records, especially those where entries of acts and transactions are made daily, cannot be removed from the offices where they are kept. This is to prevent their loss and mutilation. Also, it is to spare the transacting public from inconvenience that will result if the records are taken out and brought to court to form part of the records of a case.27° Instead of the original record, what should be presented is a certified true copy thereof signed by, and issued under the seal of the office of, its legal custodian. Ofcourse, when the record itself is the questioned document or its inspection becomes necessary to resolve an issue, the judge can order its production and inspection in court. 200 Legaspi v. Padett, 41 Phil. 87, 90-91. 7All documents, whether public or private, must be written in English or Filipino. Those written in another language or dialect must be accompanied with an English or Filipino translation. Tagalog is considered the basis of the Filipino language. So as not to waste the time of the court, the parties are advised to prepare the translation before the hearing.EVIDENCE ON MOTION Only when a motion is based on facts that are not of record may evidence be submitted to support it. Otherwise, motions are simply submitted for the court's resolution. When necessary, the evidence may take the form of an affida- vit, deposition or the testimony of a witness. The choice on what kind of evidence to present depends on the complexity of the issue raised 4 in the motion. ' For example, a motion to postpone hearing because a witness issick may be supported by an affidavit of the doctor. A motion to lift * an order of default on the ground that summons was not received or = was misdelivered may need the testimony of a witness. Apart from the parties, the court itself may direct that the motion be heard wholly or in part on oral testimony or deposition so “that it can properly resolve the factual issue. 129