REMEDIAL LAW – EVIDENCE January 18, 2009 After judgment has become final / executory 1. Petition for relief (38) 2.

Annulment of judgment (47) 3. Certiorari (65) Petition for relief -filed in same case and same court GR: execution will still ensue X: portion for injunction or TRO if really urgent Sec5R48 -period: within 60days from knowledge of the judgment and 6months from entry of judgment -same grounds as MNT (just different period) -not an appeal: not because errors of judgment Annulment of judgment 2 grounds: 1. lack of jurisdiction a. subject matter b. person of defendant (but not gad amounting to lack or excess of jurisdiction) 2. extrinsic fraud -will be dismissed if there is an indication of negligence Islamic Dawah Council v. CA -even a TP who was not a party to the judgment could annul it, for as long as he could show how fraud (against him prevent him from participating in the case) adversely affected him -RTC / MTC judgment: file with RTC R47 S10 -Periods to file: depends on ground >extrinsic fraud: within 4 years after the fraud >lack of jurisdiction: before you are under estoppel (circumstances of each case) Springfield Dev’t Corp v. RTC of Misamis Orienta -no action for annulment of judgment of a QJ body. R47

only applies to action to annul judgment of RTC and by analogy MTC. The annulment is subsumed under R43 and filed with the CA. 3. Certiorari -GAD amounting to lack or excess of jurisdiction -ground: no appeal or other plain, speedy, effective remedy available -within 60days from notice of judgment or order of court denying MR / MNT, etc. -Dec 27, 2007: changes in the rules on certiorari ensure: no more appeal -> if there is appeal, appeal and add the GAD as an error of judgment -11 years to be decided normally -to prevent abuse of petition for certiorari: >counsel and petitioner could be slapped with fines 3x and will be subject to disciplinary action under the concept res ipsa loquitor >filing of petition for certiorari does not affect / stay proceedings in lower court (new Sec 7 of R 65) (same as petition for relief = does not stop proceedings) >couple with a prayer for writ of preliminary injunction and TRO so the court below would not move >if none, RTC should continue with the case within 10days for the filing of certiorari. EXECUTION R.39 S.1 -when the judgment has become final and executory, the court is not authorized to motu propio execute the judgment. There must be a motion for execution filed by the winning party. -after judgment becomes final and executory: GR: execution is ministerial, court could be compelled by mandamus X: 1. losing party voluntarily executed judgment (no 2x recovery) 2. parties already compromised; court will respect compromise even if a judgment is already there 4.

(a judgment that has become final and executory can be compromised. Compromise will prevail over the judgment) motion for execution filed after 5years from the entry of judgment -> S.6 after 5years: file an action to revive judgment -> new action with a new COA (which is revival)

Controversial: BAR -an action to revive judgment must be filed with the original court X: File with RTC because an action to revive judgment is a new action, the issue of which is WON a judgment could be revived, therefore its incapable of pecuniary estimation Judgments which are immediately executory: IRAS Injunction Receivership Accounting Support *motion still necessary for issuance of writ / order of execution *even if judgment is not yet final and executory GR: Only final and executory judgments are subject to execution e.g. pending appeal would render a judgment not final and executory X: Discretionary executions – before the judgment is final and executory -motion must be coupled with a good reason -the giving of a bond is just an additional reason. The bond alone is not enough to justify discretionary execution.

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-good reason shall be stated by court in its special order Money judgment: sheriff will go to losing party 1. cash or 2. certified check (cf: creditors may not be compelled to accept certified check) 3. personal property 4. real property 5. judgment debtor: querried about location of his property (S.36) writ of preliminary attachment (S.37) Important Questions: 1. discretionary execution 2. petition for certiorari won’t stay execution 3. terceria 4. action to revive judgment S.9 not as important as S.10: Real property 1. win. Sheriff will go to the property 2. sheriff will give 3 working days to vacate (S10c) 3. sheriff will request help of peace officers to vacate (reasonable force) >no contempt proceedings as a rule, not available to execute a judgment >contempt: R71 S3b: indirect contempt therefore file contempt proceedings >if judgment debtor returns to property S.11 Execution of special judgments: losing party asked to perform / not perform an act >contempt for disobeying judgment (cf: R71 S3b) -no redemption period for personal property only for real property: within 1 year from registration date of sale of real property (S.33) -rents: loser who owns property will still get fruits within

period of redemption (S.32) -S.16: sheriff will execute judgment; property belongs to third person, third person’s remedies: 1. terceria – third party claims at stage of location (not a third party complaint) -affidavit explaining his right and title to the property (given to sheriff and judgment obligor) -may be defeated by winning party to protect sheriff from liability -file injunction and damages versus sheriff (not against court *no more motion for intervention because there is already a judgment -file injunction and damages versus sheriff of QC RTC branch in QC RTC branches S.13: property exempt from execution EVIDENCE -specific application to judicial proceedings R128S1 -cant compel application in non-judicial proceedings (discretion on Quasi-Judicial agency) -R1S4 CLINE + CMAQ court marshal, admin, QJ -to determine a fact, not a law (ascertain truth of a fact) -foreign law is considered a fact, if not proven, follow doctrine of processual presumption -truth = legal truth (truth in relation to evidence presented before it) -June 10, 2003: Bartolino v. Coke: illegal dismissal in LA NLRC affirmed. CA overturned. Rules of evidence, should have cross-examined. CA->SC (Rule 45: appel by certiorari -> Question of law) -hearsay in judicial proceedings does not apply to QJ proceedings Ong chia case: Judicial petition for naturalization filed with RTC as

court of general jurisdiction. Evidence presented for the first time on appeal in the CA (reversed RTC). Filed Notice of Appeal SC: R132S34 – formal offer required -> should not be made in CA, should be made in trial court -but may not be invoked in naturalization proceedings Factum probandum -proposition you want to establish -elements of COA Factum probans -means -evidence Falsus en uno -false in one, fale in all Falsus en omnibus -assessment in credibility but may be used subject to discretion of court Evidentiary value of alibi -only becomes weak when there’s a positive identification -positive assertion is stronger than a negative assertion -to revive alibi and overcome positive identification: show impossibility of being in scene of crime What is electronic evidence? Admissibility 1. Relevant – reasoning / logic 2. Competent – not excluded by law or the rules -must be specific Leading Misleading Already asked

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Argumentative Hypothetical Not part of the issues Not included in information >Inadmissible evidence not objected to becomes admissible - waived >if not object, implied admission “Incompetent” – if refer to consent of a party Ppl v. Claudio Committing crime in presence of police officer includes “smelling the crime” Though acting suspiciously, no crime – holding one stomach and looking around is not a crime Arrest illegal -> search illegal Fallacy of non sequitor -if you committed a certain crime before it does not follow that you have the propensity to commit such crime Section 34 admissible: evidence of similar conduct could be admissible if the purpose is not to show that he committed the crimes before that is committed now – show similar plan, identity, modus operandi (but not to show propensity to commit such crime) Rule 130 Section 51 character evidence -irrelevant and incompetent because the rule says so as a rule inadmissible -prove that someone committed a crime, not because of his character GR: the prosecution has no right to put in issue the character of the accused

X: 1. accused himself initiates evidence on his character then prosecution presents evidence in rebuttal 2. civil case -evidence is not proof but only the means of establishing proof -proof is the result of evidence -if you want to assert something, you must prove it BOP: duty of a party Rule 131 Section 1 Duty of a party to establish a claim (BOP: plaintiff) or defense (BOP: defendant) Obligation to come forward with evidence BOP shifts during trial Quantum of evidence Proof beyond reasonable doubt – quantum of evidence in criminal case -> moral certainty Preponderance of evidence – civil case -> superior weight of evidence (not depend on number of witness / evidence but on the quality) ->Adequate to support a conclusion GHK Clear and convincing evidence -below proof beyond reasonable doubt but above preponderance of evidence -rebut a disputable presumption disputable presumptions -from substantive law Rule 131 Section 2 2 conclusive presumptions -from the doctrine of estoppel 1. tenant 2. corporation

requirement before extrajudicial confession sufficient for conviction 1. in writing 2. signed by accused 3. with assistance of independent and competent counsel 4. Rule 133 section – corroborated with evidence of corpus delicti (body of a crime) – can convict of homicide even if body not found (corpus delicti does not necessarily mean the actual/physical body of the crime but the fact that the crime was committed) Can convict of circumstantial evidence? YES provided the 3 elements are present: 1. competence to testify does not mean that testimony already believable – affect credibility burden of evidence v. burden of proof 3 major types of evidence: 1. object / real / autoptic proference / profilactic -demonstrative: photograph, map, video -not all object are object evidence -we can be object evidence: presented and identified - photocopy of the money to show that there is money in the transaction, it is not offered to prove what is written on the money -not apply: best evidence rule -must be authenticated (same thing identified in court is the same used in crime) and identified -chain of custody: for objects which has no distinguishing characteristics (ex. powdery substance) show that identity of the object is preserved + police officer has to take photograph and inventory of it (show that there is no substitution) -object evidence cannot talk, thus need the testimony in

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its presentation in court -object and documentary evidence cannot stand alone need aid of testimony (if conflict with testimony, the physical and document evidence prevail) -testimonial evidence can stand alone *no intention of the rule to establish heirarchy of evidence 2. documentary -not all documents are documentary evidence -the content is in issue -Rule 130 Section 2 -document as evidence does only refer to writing but also any other material that contains words of written expressions offered as proof of their contents -if the tattoo in body is offered as evidence (the body/person is a documentary evidence with respect to the tattoo) -private document can be object and documentary evidence depending on the purpose (multiple admissibility) -apply: best evidence rule and parol evidence rule 3. testimonial -always testimonial -apply: hearsay -not apply: best evidence rule if inadmissible: object, otherwise there is waiver of inadmissibility, it becomes admissible Possible questions: Best evidence rule -means that the original document as a rule will prevail over a secondary evidence 1. documentary evidence 2. inquiry on its content -must present original unless original cannot be presented

but justify why the original cannot be presented, then can present secondary evidence (laying the basis/foundation for presentation of secondary evidence) reasons why we cannot present the primary evidence which is the original Rule 130 Section 5, 6, 7, 8 Sec 5. lost, destroyed or not available – prove that original exists, duly executed and lost without bad faith of the person offering the document Copy Recital of content in authentic document Testimony of witness Original – proof of content “duplicate original” – all carbon copies signed libel – each newspaper is deemed original original in possession of adverse party 1. original exist 2. duly executed 3. gave reasonable notice to produce original 4. refused or failed to do so cannot present original – sec 7 and 8 best evidence issue: original or copy to present? Parol evidence rule Issue: what should I use to prove the contents of an agreement? The writing itself. -if you use evidence other than the writing itself to prove the content of the document = parol evidence / evidence aliunde / extraneous (evidence outside the writing = oral or written) apply: only to contractual agreements (include wills) does not apply: oral contracts

*can sell land orally – valid but not enforceable (cannot register) *contract – can be oral and can be implied contract: considered to embody what the parties have agreed upon, no other evidence is admissible to prove that agreement if present evidence that would contradict the writing = parol evidence because the writing is a memorial of the agreement of the parties can still contradict the content but include this as issue in the pleading (imperfection in the writing, not embody the true agreement, mistake in writing, invalid, there has been another agreement) for the court to authorize presentation of new evidence CC1359 Action to reform an instrument Contract = meeting of the minds what is agreed upon Document = tangible evidence of the agreement July 1, 1989 Subsequent agreements - agreements after the original agreement now need to be put in issue in the pleading before you can contradict the writing Ambiguity -intrinsic: can show parol evidence >cannot be seen in instrument >no ambiguity in the instrument itself, only when applied >ex. will says Jose Reyes but there are 2 Jose Reyes with different middle names -extrinsic: cannot show parol evidence >ex. will says to give 1 of the 10 lands (not clear which land) Sec 10 – 18

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READ! – statutory construction only Sec 20 Witnesses Qualifications: competent to testify if possesses the qualifications and none of the disqualifications Use objection: “incompetent” Rule 130 and 132 Affect credibility even if not affect competence -religious affiliations R132S1 can perceive perceiving can communicate perception (remember events) -must take an oath or affirmation to be able to testify Can insane testify? Insane at time he witnessed event, qualified? -measure qualification at time he is called to testify -qualified and competent but credibility is affected Maturity -at time of perception of event -under the child witness rule: presumption of competence of a child witness -if you want to object: prove incompetence Can the court require the witness to answer? R132S3 Yes. Cannot invoke right to self-incrimination because it does not involve a penalty for an offense -can refuse to answer if it would subject him to penalty of an offense (right against self-incrimination = testimonial compulsion) villaflor v. summers adultery ordered to submit to physical examination to determine if

pregnant because husband is so far away allowed: right against self-incrimination does not apply to physical examination (not testimonial) physical act: can compel witness to fit a shorts left in crime scene (not testimonial) oj simpson physical injury is the generic term that only includes killing Can you ask witness subject matter not asked in direct? Yes. R132 S6 If related to subject matter in direct or directed to his interest, prejudices or biases (his credibility depends on this. Credibility of the witness is always an issue) If related to the issue of the case. Instances when cannot ask topic not mentioned in direct (examination in chief): 1. if witness becomes hostile (S12 ask court for declaration of hostility, its not you who declares hostility) – if hostile, can ask leading questions already on the subject of his examination in chief 2. if witness is accused – in exercise of right against self-incrimination can refuse to testify altogether (unlike ordinary witness can refuse only to answer question) a. R115 S1d Testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination R132 S14 Do not build up a witness if not destroyed: presumed credible and competent Leading question

-suggests answer to the witness -not allowed: it is the witness who should testify, if leading, it would appear like it’s the lawyer who testifies -allowed in cross-examination REVIEW RECORDING Misleading question -assumes something that is not yet in evidence Can you ask preliminary question in direct examination? Yes. Admissible hearsay due to necessity 1. Pedigree – when and where born 2. How to impeach witness? R132S11 -destroy credibility Master! 1. contradictory evidence 2. bad reputation for HIT (honesty, integrity, truth) 3. prior inconsistent statement -means there are 2 statements (outside court and in court) -S13 laying the predicate for impeaching witness modes of discovery purpose: prevent surprises GR: cannot impeach witness by showing evidence of particular wrongful act he committed X: conviction of a crime (already given due process in trial) Reputation is not necessarily what a person is but what

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the community believes him to be -reputation is the focal point of impeachment (not character) -need to call impeaching witness who knows him so well -must have something to do with HIT Rule 130 Disqualified to testify 1. Privileged communication Sec 24 -word testify does not appear (only examine = spouse need not be a party to the action) -prohibition is all encompassing (lasts during and even after marriage) -confidential information relayed to spouse -if confidential information heard by a third party: allowed to testify (not a spouse) 2. Rule 130 Sec 22 marital disqualification rule Spousal immunity rule -a spouse cannot testify for or against the other spouse without the consent of the latter during the marriage -presupposes that 1 spouse is a party to the action (civil or criminal) -need to object, otherwise waived inadmissibility -important: date when testimony given (prohibited during marriage) X: can testify even if objected 1. civil case – between spouses (they are parties to the action) REVIEW RECORDING 2. criminal case – crime committed need not be against spouse (but can be direct ascendant or descendant)

-if as a lawyer friend, not covered -future crime: no privilege -crime committed: privilege applies -the privilege belongs to the client -prohibition extends to the employees of the lawyer without the consent of the lawyer and the client -for lawyer to divulge information must be with consent of client priest and penitent privilege doctor and patient privilege -applies to civil case -no privileged communication if criminal case is in issue privilege of public officers: Sec 23 Survivorship disqualification rule Deadman’s statute Application: 1. claim against the estate (defendant: executor or administrator) a. implied not a criminal case (civil or sca) 2. lips of survivor are sealed because they are the ones who can be tempted to lie when the deceased can no longer answer (lesson: when you lend money, put in writing and with witness) 3. purpose: so the estate will not be a victim of fraud Sec 25 Can you compel a person to testify against his parents or children? No. he can testify but he can not be compelled. X: Child can testify if covered by child abuse law

Res inter alios acta rule (RIAA) 2 branches: 1. Sec 26 and 28 -my admissions, declarations, omissions are admissible against me -but my ADO should not prejudice third persons -coverage: extrajudicial statements -not covered: judicial statements (admissible even against TP -> there is an oath, moral compulsion to tell the truth) -conspirators: only before the crime, no more statement of conspiracy after the crime was committed (so its no longer a declaration of conspirator because there is no more conspiracy) 1. conspiracy 2. say something about the conspiracy 3. said at time conspiracy still existing (admissible) to be admissible: 1. conspiracy should still exist 2. state it judicially 2. Sec 34 – evidence of similar conduct / acts Sec 27 offer of compromise not an admission of liability offer of compromise the criminal liability is an implied admission of guilt unless criminal negligence (can compromise) can compromise 1. civil liability arising from offense – not prevent state from pursuing the criminal aspect CC 2034 2. offense resulting from criminal negligence effect of Affidavit of Desistance -cannot compel court to dismiss case -dismiss because there is no more evidence for the

client – lawyer privilege -relationship exists -honest to goodness consultation

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prosecution -dismiss not because of the compromise good samaritan rule payment of medical expense not an admission of liability is evidence of subsequent repairs an admission of liability? NO. otherwise no one will remedy a defect Adoptive admission Is there an admission by silence? YES. Ex. Estrada (Angara diary) Adopted the statement of another person. Did not contradict so its like you adopted it as your own. Sec 32 Admission by silence: If accused of a crime but did not object unless there is a reason for the silence (ex. inside church or under custodial investigation) Hearsay -you say based on what you heard -not based on own perception but on perception of another -personal knowledge rule -in the Philippines: your testimony does not refer only to the knowledge of another ex. Pedro: Armando hacked victorio in the neck. I saw it close up with my 2 eyes. Personal knowledge – pedro Who should testify – pedro (can be effectively crossexamined) But when he was about to testify, Pedro died, but before he died, Pedro told wilfredo exactly the same words. Hearsay: repeating a declaration of another person outside court. To prove the truth.

Not hearsay: to relay to court what one heard. Independently relevant statement. Objection will be won it is relevant to resolution of case. Only to prove what was said (thus, heard). Statement is relevant as to the fact it was said.

of another person 8. Proper time to object – oral / testimonial evidence: When offered in evidence Mere marking of exhibit is not yet an offer

An outside declaration is hearsay if repeated in court to prove the truth (hearsay) if presented to prove not the truth (not hearsay) Why hearsay not admissible? The one testifying cannot be effectively cross-examined because he has no personal knowledge Exceptions to hearsay: Still hearsay but admissible due to necessity 1. Declaration about Pedigree 2. Common reputation 3. Regular entry in the course of business 4. Dying declaration Sec 37 a. Conscious of impending death: gives motive to tell the truth b. Prove from the circumstances of the case c. Use when: any case: provided the focal point is the cause and circumstances of the death d. Relevant with respect to the death of the declarant only 5. Res gestae a. Death of another person b. If declarant survived c. Statement immediately before, during or right after event: no chance to fabricate or invent d. Statement of startling event 6. Declaration against interest 7. Opinion on identity, mental set up, handwriting

If not object and cross-examined, accepted. If witness already answered before you object: Motion to strike out testimony If evidence not allowed, how can you have the substance of testimony appear in the record of the case? Sec 40 Rule 132 Tender of excluded evidence = Offer of Proof Offer of evidence: offer of exhibit

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