EVIDENCE: Hand-out #5

HEARSAY RULE
- Hearsay is a statement other than one made by the declarant
while testifying at a trial or hearing, offered to prove the truth
of the facts asserted therein.
- It is inadmissible except as otherwise provided in the Revised
Rules on Evidence.

What is a “statement” under the hearsay rule?

- A statement is:

1. An oral or written assertion; or

2. A non-verbal conduct of a person, if it is intended by him or her
as an assertion.

Why is hearsay NOT accorded any probative value by the court?

- Hearsay evidence is accorded no probative value for the reason
that the original declarant was not placed under oath or
affirmation, nor subjected to cross-examination by the defense.
- The hearsay rule puts in issue the trustworthiness and
reliability of hearsay evidence, since the statement testified to
was not given under oath or solemn affirmation, and more
compellingly, the declarant was not subjected to cross
examination by the opposing party to test his perception,
memory, veracity, and articulateness, on whose reliability the
entire worth of the out-of-court statement depends. (People vs
Calungsag)

Exceptions to the Hearsay Rule

1. Dying declaration
2. Statement of decedent or person of unsound mind
3. Declaration against interest
4. Act or declaration about pedigree
5. Family reputation or tradition regarding pedigree
6. Common reputation
7. Part of res gestae
8. Records of regularly conducted business activity
9. Entries in official records
10. Commercial lists and the like

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 11. Learned treaties
12. Testimony or deposition at a former proceeding
13. Residual exception

Dying declaration
- A dying declaration is a declaration of a dying person, made
under the consciousness of an impending death, of the cause
and surrounding circumstances of such death.

Requisites for a dying declaration to be admissible as evidence

- A dying declaration, although generally inadmissible as
evidence due to its hearsay character, may nonetheless be
admitted when the following requisites concur:

1. The declaration must concern the cause and surrounding

circumstances of the declarant’s death;
2. At the time the declaration is made, the declarant is under a
consciousness of an impending death;
3. The declarant is competent as a witness; and
4. The declaration is offered in a criminal case for homicide,
murder, or parricide, in which the declarant is a victim.

What are factors that can show the imminent death of the
declarant?
- There is ample authority for the view that the declarant’s belief
in the imminence of his death can be shown by the declarant’s
own statements or from circumstantial evidence, such as the
nature of his wounds, statements made in his presence, or by
the opinion of his physician.

Statement of decedent or person of unsound mind

- In an action against an executor or administrator or other
representative of a deceased person, or against a person of
unsound mind, upon a claim or demand against the estate of
such deceased person or against such person of unsound mind,
where a party or assignor of a party or a person in whose behalf
a case is prosecuted testifies on a matter of fact occurring before
the death of the deceased person or before the person became
of unsound mind, may be received in evidence if:

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 1. The statement was made upon the personal knowledge of the
deceased; and
2. It was made at a time when the matter had been recently
perceived by him or her and while his or her recollection was
clear.

Declaration against interest

- A statement may be admissible when it complies with the
following requisites:

1. That the declarant is dead or unable to testify;

2. That it relates to a fact against the interest of the declarant;
3. That at the time he made said declaration, the declarant was
aware that the same was contrary to his aforesaid interest; and
4. That the declarant had no motive to falsify and believed such
declaration to be true.

Act or declaration about pedigree

- The following are the requisites in order for act or declaration
about pedigree be admissible:

1. That the declarant is dead or unable to testify;

2. That the declarant be related to the person whose pedigree is
the subject of inquiry;
3. That such relationship be shown by evidence other than the
declaration;
4. The pedigree of a person must be at issue; and
5. That the declaration was made ante litem motam, that is, not
only before the commencement of the suit involving the subject
matter of the declaration, but before any controversy has arisen
thereon.

Family reputation or tradition regarding pedigree

- The requisites in order for family reputation or tradition
regarding pedigree to be admissible are as follows:

1. The reputation or tradition was formed before the controversy

(ante litem motam);
2. The reputation or tradition is one existing in the family of the
person whose pedigree is in question;

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 3. The witness testifying to the reputation of a person is a member
of the family, either by consanguinity, affinity, or adoption; and
4. There is controversy in respect to the pedigree of a member/s of
a family.

What are the pieces of evidence that can be presented to

establish pedigree?
- Under the present rule, family reputation or tradition may also
be established through entries in:

1. Family bible;
2. Family books or charts;
3. Engravings on rings; and
4. Family portraits and the like.

Common reputation
- Common reputation is the reputation existing previous to the
controversy, as to the:

1. Boundaries of or customs affecting lands in the community and

reputation as to events of general history important to the
community; or
2. Respecting marriage or moral character.

Part of res gestae

- Res gestae is a Latin phrase which literally means “things done”.
- As an exception to the hearsay rule, it refers to statements made
by a person while a startling occurrence is taking place or
immediately prior or subsequent thereto, under the stress of
excitement caused by the occurrence with respect to the
circumstances thereof.

Requisites of Res Gestae

- For the admission of the res gestae in evidence, the following
requisites must be met:
1. That the principal act or the res gestae be a startling
occurrence;
2. The statement is spontaneous or was made before the declarant
had time to contrive or devise; and

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 3. The statement made must concern the occurrence in question
and its immediately attending circumstances.

What factors may be considered in determining whether a

statement is “spontaneous”?
- A number of factors have been considered including, but not
confined to:

1. The time that lapsed between the occurrence of the act or

transaction and the making of the statement;
2. The place where the statement is made;
3. The condition of the declarant when the utterance is given;
4. The presence or absence of intervening events between the
occurrence and the statement relative thereto; and
5. The nature and the circumstances of the statement itself.

Records of regularly conducted business activity

- The business record (memorandum, report, record or data
compilation of acts, events, conditions, opinions, or diagnoses)
must be:

1. Made by writing, typing, electronic, optical or other similar

means;
2. Made at or near the time of the transaction;
3. Made by, or from transmission or supply of information by, a
person with personal knowledge of the transaction;
4. Kept in the regular course or conduct of a business activity; and
5. It was the regular practice to make the business record by
electronic, optical, or similar means.

Entries in official records

- The requisites for admission of entries in official records are:

1. That it was made by a public officer or by another person

specially enjoined by law to do so;
2. That it was made by a public officer in the performance of his
duty, or by another person in the performance of a duty
specially enjoined by law; and

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 3. The public officer or the other person had sufficient knowledge
of the facts by him stated which must have been acquired by
him personally or through official information.

When should entries in official records be authenticated?

- Official entries are admissible in evidence regardless of whether
the officer or person who made them was presented and testified
in court, since these entries are considered prima facie evidence
of the facts stated therein.

Commercial lists and the like

- For commercial lists and the like to be admissible as tending to
prove the truth of any relevant matter so stated therein, the
following must be present:

1. Statements of matters of interest to persons engaged in an

occupation;
2. The statements must be contained in a list, register, periodical
or other published compilation;
3. That compilation is published for use by persons engaged in
that occupation; and
4. It is generally used and relied upon by them.

Learned treaties
- A published treatise, periodical or pamphlet on a subject of law,
history, science, or art may be admissible as tending to prove
the truth of a matter stated therein if:

1. The court takes judicial notice; or

2. A witness, expert in the subject testifies that the writer of the
statement in the treatise, periodical, or pamphlet is recognized
in his profession or calling as expert in the subject.

Testimony or deposition at a former proceeding

- To be admissible, the following requisites must be present:

1. The testimony or deposition was given in a former case or

proceeding, judicial or administrative;
2. The former case or proceeding was between the same parties;

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 3. The former testimony relates to the same subject matter or
issues;
4. The adverse party had an opportunity to cross-examine the
witness; and
5. The witness is deceased or out of the Philippines or who cannot,
with due diligence, be found therein, or is unavailable or
otherwise unable to testify.

Residual exception
- A statement not specifically covered by any of the foregoing
exceptions, having equivalent circumstantial guarantees of
trustworthiness, is admissible if the court determines that:

1. The statement is offered as evidence of a material fact;

2. The statement is more probative on the point for which it is
offered than any ither evidence which the proponent can
procure through reasonable efforts; and
3. The general purposes of these Rules and the interests of justice
will be best served by admission of the statement into evidence.

Is the proponent of a residual exception required to give advance

notice of his intention to propose the same?
- Yes. A statement may not be admitted under this exception
unless the proponent makes known to the adverse party,
sufficiently in advance of the hearing, or by the pre-trial stage
in the case of a trial of the main case, to provide the adverse
party with a fair opportunity to prepare to meet it, the
proponent’s intention to offer the statement and the particulars
of it, including the name and address of the declarant.

Doctrine of Independently Relevant Statement

- The doctrine of independently relevant statement provides that
regardless of the truth or falsity of a statement, when what is
relevant is the fact that such statement has been made, the
hearsay rule does not apply and the statement may be shown.

Is an independently relevant statement a hearsay statement?

- No. An independently relevant statement is not hearsay and is,
therefore, not banned under the hearsay rule. Evidence as to
the making of such statement is not secondary but primary, for

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 the statement itself may constitute a fact in issue or be
circumstantially relevant as to the existence of such a fact.

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