TESTIMONIAL EVIDENCE

1. Qualification of Witness
Testimonial or oral evidence is evidence elicited from the mouth of a witness as distinguished
from real and documentary evidence. (Black’s Law Dictionary)
Basic Requirements:
a. He can perceive; and
b. He can make known his perception to others.

To these, may add:

a. He must take either an oath or an affirmation

b. He must not possess any of the disqualifications imposed by law or the rules.

A prevaricating witness or one who has given contradicting testimonies is still a competent
witness. (U.S. v. Cook)

Drug abuse will not render a person incompetent to testify. (U.S. v. Behrens)

Deaf-mutes are not necessarily incompetent as witnesses. They are competent where they
can:

a. Understand and appreciate the sanctity of an oath;

b. Comprehend facts they are going to testify to; and
c. Communicate their ideas through a qualified interpreter (People v. Tuangco, 345 SCRA
429)

Factors that do not affect the competency of a witness (BAR 2011)

Except as provided by the law and the rules, the following factors do not, as a general rule,
constitute a disqualification of a witness:

a. Religious belief;
b. Political belief;
c. Interest in the outcome of the cause; or
d. Conviction of a crime, unless otherwise provided by law. (Sec. 20 Rule 130)

The relationship of a witness with a party does not ipso facto render him a biased witness in
criminal cases where the quantum of evidence is proof beyond reasonable doubt. (Northwest
Airlines, Inc. vs. Chiong, 543 SCRA 308)

1994 BAR Question

 Al was accused of raping Lourdes. Only Lourdes testified on how the crime was perfected. On
the other hand, the defense presented Al’s wife, son and daughter to testify that Al was with
them when the alleged crime took place. The prosecution interposed timely objection to the
testimonies on the ground of obvious bias due to the witnesses’ close relationship with the
accused.

If you were the Judge, how would you rule on the objection?

Suggested Answer (UPLC)

If I were the Judge, I would Overrule the objection. Close relationship to a party is not a ground
to disqualify a witness. (Sec. 20, Rule 130)

Disqualification by Reason of Immaturity

To be disqualified as a witness by reason of immaturity, the following must concur:

a. The mental maturity of the witness must render him incapable of perceiving the facts
respecting which he is examined; and
b. He is incapable of relating his perception truthfully. (Sec. 21[b], Rule 130, Rules of Court)

Survivorship Disqualification Rule or the Dead’s Man Statute (BAR 2001)

The following are the elements for the application of this rule:

a. The suit is upon a claim by the plaintiff against the estate of said deceased or person of
unsound mind;
b. The defendant in the case is the executor or administrator or a representative of the
deceased or the person of unsound mind;
c. The witness is the plaintiff, or an assignor of that party, or a person in whose behalf the
case is prosecuted; and
d. The subject of the testimony is as to any matter of fact occurring before the death of such
deceased person or before such person became of unsound mind. (Sec. 23, Rule 130,
Rules of Court)

The survivorship disqualification rule is intended to benefit the estate of the deceased or the
insane person; hence, this protection may be viewed by (a) failing to object to the testimony,
or (b) cross-examining the witness on the prohibited testimony (Santos v. Santos, 366 SCRA
395), or by (c) offering evidence to rebut the testimony. (BAR 2007)

2. Testimonial Privilege
Marital Disqualification Rule
In order that the husband and wife may claim the privilege, it is essential that they be validly
married. (Moran, comments on the Rules of Court, Vol. 5 p. 176)
The marital disqualification rule is provided for in Sec. 22 of Rule 130, viz.:
“Sec. 22. Disqualification by reason of marriage. During their marriage, neither the
husband nor the wife may testify for or against the other without the consent of the
affected spouse, except in a civil case by one against the other, or in a criminal
case for a crime committed by one against the other or the latter’s direct
descendants or ascendants.”

Exceptions to the Marital Disqualification Rule

In the following instances, a spouse may testify for or against the other even without the
consent of the latter:
a. In a civil case by one against the other; or
b. In a criminal case for a crime committed by one against the other, or the latter’s direct
descendants or ascendants.

Testimony by the Estranged Spouse (BAR 2006)

Sec. 22 of Rule 130 prohibits a testimony by one spouse against the other without the consent
of the latter “during their marriages”. Literally, this prohibition would cover a testimony by the
estranged spouse because a separation “de facto” does not sever the marriage bonds and the
spouses remain legally married to each other. A testimony under such a situation would still
technically be a testimony “during their marriage”.

This literal construction of the rule has, however, been rejected by the Supreme Court.
“It is underscored the fact that the marital and domestic relations between her and the
accused-husband have become so strained that there is no more harmony, peace or
tranquility to be preserved, x x x in such a case, identity is non-existent. In such a situation,
the security and confidences of private life which the law aims to protect are nothing but
ideals which through their absence, merely leave a void in the unhappy home”. Thus, there
is no longer any reason to apply the marital disqualification rule. (Alvarez v. Ramirez, 473
SCRA 72)
Marital Privileged Communications (BAR 1995, 2004, 2010)

The application of the rule requires the presence of the following elements:
a. There must be a valid marriage between the husband and wife;
b. There is a communication received in confidence by one from the other; and
c. The confidential communication was received during the marriage.

2010 BAR Examination

On march 12, 2008, Mabini was charged with Murder for fatally stabbing Emilio. To prove the
qualifying circumstance of evident premeditation, the prosecution introduced on December 11,
2009 a text message, which Mabini’s estranged wife Gregoria had sent to Emilio on the eve of
his death, reading: “Honey, papatayin u ni Mabini. Matagl n nyang plano i2. Magingat u bka ma
tsugi k.”
A subpoena ad testificandum was served on Gregoria for her to be presented for the purpose
of identifying her cellphone and the text message. Mabini objected to her presentation on the
ground of marital priviledge. Resolve.

Suggested Answer: (UPLC)

The objection should be sustained on the ground of marital disqualification rule (Rule 130,
Sec.22), not on the ground of the “marital privilege” communication rule (Rule 130, Sec.24).
The marriage between Mabini and Gregoria is still subsisting and the situation at bar does not
come under the exceptions to the disqualification by reason of marriage.

Attorney-Client Privilege (BAR 2008)

The following must be present for the privilege to arise:

a. There must be a communication made by the client to the attorney, or an advice given by
the attorney to his client;
b. The communication or advice must be given in confidence; and
c. The communication or advice must be given either in the course of the professional
employment or with a view to professional employment.

It is commonly acknowledged that the privilege does not extend to communications where the
client’s purpose is the furtherance of a future intended crime or fraud.

The reason for the prohibition is found in the relation of attorney and client, which is one of trust
and confidence of the highest degree. Such knowledge must be considered sacred and
guarded with care. (Samala v. Valencia, 512, SCRA 1)

Physician-Patient Privilege (BAR 1998)

The information which cannot be disclosed refers to:

a. Any advice given to the client;

b. Any treatment given to the client;
c. Any information acquired in attending such patient provided that the advice,
treatment or information was made or acquired in a professional capacity
and was necessary to enable him to act in that capacity; and
d. The information sought to be disclosed would tend to blacken the reputation
of the patient. (Sec. 24[c], Rule 130, Rules of Court)
It is opined that the rule does not require the relationship between the physician
and the patient be a result of a contractual relationship. It could be the result of
a quasi-contractual relationship as when the patient is seriously ill and the
physician treats him even if he is not in a condition to give his consent.

The privilege survives the death of the patient. Thus, in Gonzales v. Court of
Appeals (298 SCRA 322), the Supreme Court, prevented the disclosure of
medical findings that would tend to blacken the reputation of the patient even
after his death.

The privilege does not apply to shield the commission of a crime or when the
purpose is an unlawful one as to obtain narcotics or prohibited drugs in violation
of law.

Priest/Minister-Penitent Privilege

The privilege also extends not only to a confession made by the penitent but
also to any advice given by the minister or priest. The confession and the advice
must made or given pursuant to the course of discipline of the denomination or
sect to which the minister or priest belong. (Sec 24[d], Rule 130, Rules of
Court). Thus, the minister or priest must be duly ordained or consecrated by
his sect.

Where the penitent discussed business arrangements with priest, the privilege
does not apply (U.S. v. Gordon, 493 F. Supp. 822 [7 th Cir. 1987]).

Privileged Communications to Public Officers

“A public officer cannot be examined during his term of office or afterwards, as

to communications made to him in official confidence, when the court finds that
the public interest would suffer by the disclosure”. (Sec. 24[e], Rule 130, Rules
of Court).

The privilege may be invoked not only during the term of office of the public
officer but also afterwards.
Executive privilege; Presidential Communication Privilege
It has been described as “the power of the government to withhold information
from the public, the courts, and the Congress”, (Senate of the Phils. v. Ermita,
488 SCRA 1).
Chaves v. PCGG (299 SCRA 744), ruled that there is privilege against
disclosure on certain matters involving state secrets regarding the following:
a. Military;
b. Diplomatic;
c. Other national security matters.

Privileged Communications under the Rules on Electronic Evidence

Under Sec. 3, Rule 3 of the Rules on Electronic Evidence, the confident

character of a privilege communication is not lost solely on the ground that it is
in the form of an electronic document.

Parental and Filial Privilege (BAR 1998)

Under the Parental Privilege Rule, a parent cannot be compelled to testify

against his child or other direct descendants.

Under the Filial Privilege Rule, a child cannot be compelled to testify against
his parents or other direct ascendants.

However, a person may testify against his parents or children voluntarily but if
he refuses to do so, the rule protects him from any compulsion. Said rule
applies to both criminal and civil cases since the rule makes no distinction.
(Sec. 25, Rule 130, Rules of Court).