THEORY OF THE

ISSUES
 1. GENERAL STATEMENT
• Where there is freedom of thought and expression,
there necessarily follow differences of opinions.
One person may assert a certain fact; another may
deny such assertion.

• These differences of opinion- assertions affirmed

by the affirmative and denied by the negative- are
generally called issues.
 1. GENERAL STATEMENT

• In our daily conversation, the word

issues refers to clashes of opinions and
beliefs.
 2. DEFINITION OF ISSUES

• In general argumentation, issues are defined as

“the inherently vital points, elements, or

subpropositions, affirmed by the affirmative and
denied by the negative, upon the establishment
of which depends the establishment of the main
proposition.”
 2. DEFINITION OF ISSUES
• Issues are inherent in the proposition.

• They are also vital in a sense that, unless they are

established, the main proposition cannot be
established.

• To make out a prima facie case, the issues must

be established by competent evidence, proof, or
argument.
 3. THE ISSUES IN LAW
• Starting point of the debate.

ISSUE OF FACT – a point raised by a party who

denies something alleged in his opponent’s
pleading.

ISSUE OF LAW - a point of law upon which the

two parties differ.
 3. THE ISSUES IN LAW

GENERAL ISSUE - refers to a defense which

denies simpliciter the whole declaration of
the affirmative.

SPECIAL ISSUE - does not deny the whole

declaration, but one or more of the allegations
of law or fact.
 3. THE ISSUES IN LAW

To illustrate the treatment of issues in legal procedure:

In Art. 308, Act No. 3815, otherwise known as the

Revised Penal Code, the crime of theft is defined as
follows:
“Theft is committed by any person, with intent of gain
but without violence against or intimidation of person
nor force upon things, shall take personal property of
another without the latter’s consent.”
 3. THE ISSUES IN LAW

In the light of this definition, the elements of

crime of theft are:
1) Intent of gain
2) Unlawful taking
3) Personal property
4) Absence of violence or intimidation against
persons or force upon things
 4. THE ISSUES IN GENERAL ARGUMENTATION

• Issues are inherent in the proposition.

• It is the task of the debaters to discover,

explain, and define the issues through logical
and careful analysis.

• The audience as well as the debaters

themselves will understand the points on
which opinions clash.
 4. THE ISSUES IN GENERAL ARGUMENTATION

“Resolved, That Philippine City mayors be elected by

popular vote”

1) Is the election of city mayors more democratic?

2) Will the election of city mayors be more beneficial to
the people?
3) Will elective city mayors be more efficient in
discharging their duties?
4) Will the election of city mayors be practical?
 4. THE ISSUES IN GENERAL ARGUMENTATION

The negative debater may contend that these

questions are also vital and should, therefore, be
taken up:

• Is there a demand for a change in the present

system?
• Are there evils in the existing order?
 5. OTHER TERMS USED
• Potential issues are simply the inherently vital
points involved in the proposition that the
affirmative should establish to make out a prima
facie case.
• Admitted issues are those potential issues on which
there is no clash of opinion because they are not
controverted by the negative.
• Stock issues refer to the formulas of issues: i.e.,
issues that are considered always involved in a
proposition of policy.
 5. OTHER TERMS USED
• Stock issues refer to the formulas of issues:

For example: In a proposition of policy, the

debater will usually consider the ff. questions:
(1) Is the measure necessary?
(2) Will the measure be beneficial? and
(3) Is the measure practicable?
 6. THE NECESSITY OF KNOWING THE ISSUE
Arguer/Debater
• He may waste his time and energy proving some fact
that will not help in establishing his case.
• He may be surprised by an attack on some vital
point.
• He may fail to appreciate the relevancy of the
evidence and arguments that he may adduce.
• He will likely confuse them.
 6. THE NECESSITY OF KNOWING THE ISSUE
Reader/Hearer
• The reader who does not comprehend precisely
the point in dispute cannot determine the
relevancy or the irrelevancy or the logical
sufficiency or in-sufficiency of the evidences
and arguments that are presented.

• He is likely to get confused and, therefore,

cannot follow the progress of the debate.
7. THE DUTY OF THE AFFIRMATIVE WITH RESPECT TO
THE ISSUES
• The affirmative must establish all the issues,
unless the negative admits one or some of
them.
• If the affirmative fails to prove any one of the
issues, he loses the case.
• As he fails thus to make out a prima facie
case, the negative has no obligation to present
any evidence in his defense.
8. THE DUTY OF THE NEGATIVE WITH RESPECT TO
THE ISSUES

• The negative may choose among the issues

presented by the affirmative what ones to
admit and what ones to deny.

JOINING THE ISSUES

The process of determining what issues are
admitted and what issues are denied.
9. THE ISSUES AND WINNING OR LOSING IN
CONTEST DEBATES

• A contest debate is not decided on the

merits of the case—neither in the
strength of the evidence presented nor
on the strength of the arguments
adduced.
 9. THE ISSUES AND WINNING OR LOSING IN
CONTEST DEBATES
• It is decided on the basis of the ability of the
debaters—i.e., their reasoning, their analysis of the
question, the quality of their language, their
application of the rules of argumentation and debate
as an art, their ability to talk to an audience, and
the measure of preparation they demonstrate.

• The affirmative may fail to establish a prima facie

and yet win the debate.
 10. ISSUES AND PARTITION
Issues Partition
• Are the vital points • Is the term used to
involved in a designate the statement
proposition that the of the main points to
affirmative must taken up in the course of
establish to establish the discussion.
his case. • The points in partition
• Issues are always vital. must be important, but
not necessarily vital.
 10. ISSUES AND PARTITION

“Resolved, That Philippine City mayors be elected

by popular vote”

Issues:
1.That the measure is necessary;
2.That the measure will be beneficial to the people;
3.That the measure is practicable.
 10. ISSUES AND PARTITION
In endeavoring to establish these issues, he proposes to
prove:
1. That there is a demand for the adoption of the
measure;
2. That the system for electing city mayors is more
democratic than the present practice;
3. That an elective city mayor will be more efficient;
4. That under the elective system the city mayor will be
removed from direct control of executive;
5. That the system of electing city mayors will not entail
considerable additional expense.
INVESTIGATION
AND
RESEARCH
 1. GENERAL CONSIDERATION

• Consults the pertinent provisions of law.

• Determines the interpretations of the legal

provisions in light of the opinions expressed by
recognized legal commentators.

• Reads the reports on cases which involve the

application of the law in question.
 1. GENERAL CONSIDERATION
• Consult the dictionary for the definitions of the
terms used in the proposition.

• Read books written by recognized authorities on

the question under discussion.

• Read the newspapers, magazine articles, and

pamphlets for whatever information may be
useful in establishing his case.
 1. GENERAL CONSIDERATION
• Interview important persons to get their
views on the question or to get suggestions
in getting the materials needed.

• From pertinent sources he gathers data,

statistics, and such other information to
make him thoroughly conversant with both
sides of the question and with all its phases
and aspects.
 2. DEFINITION OF RESEARCH

• The process of gathering from all available

sources of information such facts, data,
statistics, and inferences as are necessary to
establish one’s case and to overthrow the
case of the opponent.

• A study of evidence, forms of arguments,

and fallacies is necessary to make the work
of research effective.
 3. TWO METHODS OF NOTE-TAKING

The card-system The note-book system

ADVANTAGES ADVANTAGES
• Easy and convenient to • More handy to carry
remove from or add to around
the pack new cards on • More convenient for
any subject. taking down long
quotations or extracts
• Much more convenient and for preserving
for use on the platform clippings
in actual debate.
 3. TWO METHODS OF NOTE-TAKING

The card-system The note-book system

DISADVANTAGES DISADVANTAGES
• The debater may lose • Not very convenient in
some of the cards. sorting and filing the
• Too small for long materials gathered.
quotations or extracts • Not convenient for
and for preserving platform use.
clippings.
 4. ACCURACY IN DOCUMENTATION

• Is the precision or correctness of noting the

sources of information used in argumentation.

• The researcher must be careful in copying

quotations or extracts from his sources of
information.

• Give credit to whom credit is due.

5. WHAT SHOULD THE RESEARCHER LOOK FOR?

• The researcher should look for all the

available information—facts, data, statistics,
inferences—on both sides of the proposition.

• Get all the information available on every

phase of the question—political, economic,
sociological, aesthetic.
6. WHAT GUIDE SHOULD THE RESEARCHER USE?

• Colleges and Universities have adequate libraries to

meet the needs of their students.
In the Philippines we have the National Library.
These libraries have published bibliographies and
card indexes. These make references handy.

• In some cases, students should consult their professors.

 7. THE WORK OF ASSIMILATION

• Assimilation
- is the process of converting the materials
gathered and determined useful to advance one’s
case into the fibers of one’s finished arguments.

• Demands the constant application of the

processes of thought in the materials gathered
until the ideas expressed in them become a part
of one’s stock of information or knowledge.
EVIDENCE
 1. GENERAL STATEMENT

• Evidence is best treated, analyzed, and

LAW OF EVIDENCE
studied in legal procedure.

• The essential function of courts of law is to

administer justice- to adjudicate
controversies.
 FUNCTIONS OF THE LAW OF EVIDENCE

1. It prescribes the manner of presenting evidence; as

by requiring that it shall be given in open court by
one who personally knows the thing to be true,
appearing in person, subject to cross-examination; or
by allowing it to be given by deposition
2. It fixes the qualifications and privileges of witnesses,
and the mode of examining them
3. It determines, as among probative matters, matters
in their nature evidential, what classes of things
shall not be received.
2. EVIDENCE IN LAW AND IN GENERAL ARGUMENTATION

• First test that should be applied whenever a piece of

evidence is to be used in a court of law:
Is the evidence legally admissible?
Do the rules of court permit its introduction in the
trial?

• Once this test has been met, the next test to be applied
is this:
Is this piece of evidence logically sufficient and
relevant?
 2. EVIDENCE IN LAW AND IN GENERAL ARGUMENTATION

SUFFICIENT RELEVANT
 If it is of such nature that  If it is pertinent or
it satisfies human reason. applicable to the purpose
for which it is presented.

• In general argumentation, the rule of legal

admissibility is not invoked. So that the test that is
applied is that of logical sufficiency and relevancy.
 3. CONVICTION AND PERSUASION IN EVIDENCE

“Nothing can be good evidence that does not qualify

as a sound basis for conviction. Conviction requires
that we understand what it is that constitutes the
inherent strength and argument that will seem to the
minds of others to be logically strong and accurate.”

• Since argumentation has two-fold nature, it is

necessary that the debater should also take into
account the persuasive elements of his evidence.
 4. EVIDENCE AND PROOF
Evidence Proof
• Is the medium or • Is the effect or
means whereby facts conclusion produced by
are established. evidence.
EVIDENCE
“any matter of fact, the effect, tendency or design of
which is to produce in the mind a persuasion,
affirmative or disaffirmative, of the existence of some
other matter of fact.”
 5. ARGUMENT
ARGUMENT
 Is generally used to refer to the process of inferring.
 Is the act of the mind whereby from knowing the
existence or non-existence of one fact, or certain
number of facts, it advances to know other facts.
 It may be used to refer to the entire debate or
discussion, as:
“Pedro is engaged in a long argument with his
professor.”
 5. ARGUMENT

ARGUMENT
it may mean the written-out argumentative
discourse, as:
“How long is your argument?”
 It may indicate a point, or a single process of
reasoning, as:
“Pedro presented only one argument.”
 6. SOURCES OF EVIDENCE

• The sources of evidence are the following:

 Persons
 Document
 Things
 6. SOURCES OF EVIDENCE

• PERSON
- is a human being who possessed of some
measure of intelligence, transmits
information by word of mouth, in
writing, or by voluntary signs.

- he is called a witness.
 6. SOURCES OF EVIDENCE
• DOCUMENTS
- are manuscripts or pieces of printed matter
regarded as conveying information or evidence.
ex.: deed of sale, mortgage contract,
marriage certificate, letter written by
one person to another
- not everything reduced into writing is a
document.
ex.: books, magazines,. pamphlets
 6. SOURCES OF EVIDENCE

• THINGS
- are tangible objects presented to the
senses of those who will judge.

ex.: knife, bullet, watch, hat, person

an object of observation
 6. SOURCES OF EVIDENCE

Example:
When the accused in a homicide case
interposes self-defense and his counsel
presents him in open court so that the
findings of the judge on his physical build, his
stature, his physical frailty, may be entered in
the records, he is a thing as a source of
evidence.
 7. WHAT IS A GOOD WITNESS?

“A good witness is one who is capable and desirous

of finding out or receiving the truth, and capable
and desirous of reporting the truth.”

• A person gets the truth through his senses- sight,

hearing, smell, taste, and touch.
 7. WHAT IS A GOOD WITNESS?

• A person who is in possession of the truth, but

does not tell the truth, or distorts the truth, or
withholds the truth, is a prejudiced witness.

“Prejudice squints when it looks, and lies when

it talks.” - Duches de Abrantes
 7. WHAT IS A GOOD WITNESS?
• The following persons cannot be witnesses:
a) Those who are of unsound mind at the time of
their production for examination, to such a
degree as to be incapable of perceiving and
making known their perceptions to others;
b)Children who appear to the court to be of such
tender age and inferior capacity as to be
incapable of receiving just impressions of the
facts respecting which they are examined, or of
relating them truly.
 7. WHAT IS A GOOD WITNESS?

c) A husband cannot be examined for or against his

wife without her consent; nor a wife for or
against her husband without his consent; nor can
either, during the marriage or afterwards, be,
without the consent of the other, examined as to
any communication made by one to the other
during the marriage; but this exception does not
apply to a civil case by one against the other, or
to a criminal case for a crime committed by one
against the other;
 7. WHAT IS A GOOD WITNESS?

d)An attorney cannot, without the consent of his

client, be examined as to any communication
made by the client to him, or his advice given
thereon in the course of professional
employment; nor can an attorney’s secretary,
stenographer, or clerk be examined, without the
consent of the client and his employer,
concerning any fact the knowledge of which has
been acquired in such capacity;
 7. WHAT IS A GOOD WITNESS?

e)A person authorized to practice medicine,

surgery or obstetrics cannot in civil case, without
the consent of the patient, be examined as to
any information which he may have acquired in
attending such patient in a professional capacity,
which information was necessary to enable him
to act in that capacity, and which would rend to
blacken the character of the patient;
 7. WHAT IS A GOOD WITNESS?

f) A clergyman or priest cannot, without the consent of the

person making the confession, be examined as to any
confession made to him in his professional character in
the course of discipline enjoined by the church to which
he belongs;

g) 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
interests, would suffer by the disclosure.
 8. THE CLASSES OF EVIDENCE
• Evidence is classified into:
1.Direct evidence and indirect or circumstantial
evidence
2.Real evidence and personal evidence
3.Documentary evidence and testimonial evidence
4.Original evidence and hearsay evidence
5.Pre-appointed evidence and casual evidence
6.Positive evidence and negative evidence
7.Ordinary evidence and expert evidence
8.Primary or best evidence and secondary evidence
 8. THE CLASSES OF EVIDENCE
a) Direct evidence and circumstantial evidence
• Direct evidence
- is one from which the principal fact or
factum probandum follows without the
necessity of inferring.
• Circumstantial evidence
- is one from which considered as an
evidentiary fact, the fact to be established
follows through the mediation of inference.
 8. THE CLASSES OF EVIDENCE
• Suppose “A” is found murdered in his bed. The following
pieces of evidence have been discovered:
1. That “B”, the suspect, was a gardener of “A,” whom the
deceased had dismissed one week before the murder;
2. That “B” resented his dismissal;
3. That on the night of the murder the ferocious dogs of the
deceased did not bark;
4. That the foot-marks found beneath the murder room
tallied exactly with the feet of “B”;
5. That a dagger smeared with blood had been found in the
house of “B.”
 8. THE CLASSES OF EVIDENCE
b) Real evidence and personal evidence
REAL EVIDENCE PERSONAL EVIDENCE
- Is one the source which is a - Is one that is afforded
thing. by a human being,
ex.: dagger, wound, bullet, knife either in the form of
- The word thing covers human discourse or by
beings whenever they are voluntary signs, for
presented as tangible objects of the purpose of
observation. communicating
- Also called autoptic preference. thought.
 8. THE CLASSES OF EVIDENCE
b) Real evidence and personal evidence
REAL EVIDENCE PERSONAL EVIDENCE

- It is generally - Depending upon

circumstantial. its essential
nature, may be
direct,
circumstantial, or
hearsay.
 8. THE CLASSES OF EVIDENCE

c) Documentary evidence and testimonial evidence

• Documentary evidence (written evidence)
- Is one the source of which is a document.
Examples: written contract in general, death
certificates, birth certificates, letters
exchanged between persons, lithographs,
photographs, pictures, maps and plans
- Not all pieces of evidence reduced into writing are
documentary.
Examples: books, magazines, newspaper
 8. THE CLASSES OF EVIDENCE

c) Documentary evidence and testimonial evidence

• Testimonial evidence (unwritten evidence)
- refers to the oral statements of persons sworn
as witnesses.
- sometimes called parol evidence.
- it may fall under the class of direct evidence,
circumstantial evidence, original evidence,
or hearsay evidence.
 8. THE CLASSES OF EVIDENCE
c) Documentary evidence and testimonial evidence
• Example of a strong circumstantial testimonial evidence:
A man was charged with shooting a number of pigeons, property
of a farmer. Counsel for the defense tried to frighten the farmer.
“Now,” he remarked, “are you prepared to swear that this man
shot your pigeons?”
“I didn’t say he shot them,” was the reply. “I said I suspected
him of doing it.”
“Ah! Now we’re coming to it. What made you suspect the man?”
“Well, first, I caught him on my land with a gun. Secondly, I
heard a gun go off and saw some pigeons fall. Thirdly, I found four
of my pigeons in his pocket, and I don’t think the birds flew there
and committed suicide.”
 8. THE CLASSES OF EVIDENCE
d) Original evidence and unoriginal evidence
• Original evidence
- is one which has probative force of its own.
- it does not derive its strength from or through another.

• Unoriginal evidence
- Also called derivative, transmitted, or secondhand
- Is one that the witness declares, not from his own
personal knowledge but from the information given by
another or other persons.
 8. THE CLASSES OF EVIDENCE

d)Original evidence and unoriginal evidence

• Original evidence
- according to its essential nature, be
classified as direct or circumstantial evidence.

• Unoriginal evidence
- In law courts, it is called hearsay evidence.
 8. THE CLASSES OF EVIDENCE
HEARSAY EVIDENCE
• In general argumentation, there is no rule of legal
admissibility.
• But since unoriginal evidence is essentially weak,
the arguer must first apply the following tests:
1. Is the piece of evidence of such a nature that it
can be transmitted from one person to another
without suffering material alteration in the
transmission?
2. Is the medium of transmission reliable?
 8. THE CLASSES OF EVIDENCE
HEARSAY EVIDENCE

• In law courts, the rule of legal admissibility is

invoked.

• Unless a piece of hearsay evidence is included in

the exceptions provided by law, it is ruled out.
 8. THE CLASSES OF EVIDENCE
• Some of the exceptions to the hearsay rule are:

1. An ante-mortem declaration. If “A” had been

stabbed mortally by “B” and, in the consciousness
of impending death, “A” declared to “C” that “B”
had stabbed him (“A”), “C’s” testimony that “B”
killed “A” because “A” told him (“C”) is hearsay
evidence.
It is, however, admitted in law courts.
 8. THE CLASSES OF EVIDENCE
• Some of the exceptions to the hearsay rule are:
2. In pedigree cases, the statement of a deceased member
of the family before litigation was commenced.
Example: The question being whether Pedro Santos is
the son of Juan Santos, a member of the family can
say, “My mother was Juan Santos’ sister. She is now
dead, I often heard her say that her brother Juan
married, and had a son he called Pedro after my
grandfather.”
This testimony is hearsay, but it is legally
admissible.
 8. THE CLASSES OF EVIDENCE
e) Pre appointed evidence and casual evidence
• Pre appointed evidence
- Is one created or preserved in anticipation of an
assertion or defense of a right.
Ex.: promissory notes, receipts, mortgages, deeds of
sale, etc.
• Casual evidence
- is one that is neither created nor preserved to enforce
an obligation or to defend a right.
Ex.: testimony of an eye-witness testifying as to what
she has seen
 8. THE CLASSES OF EVIDENCE

f) Positive evidence and negative evidence

• Positive evidence
- refers to actual evidence.

• Negative evidence
- refers to the significant absence of evidence.
 8. THE CLASSES OF EVIDENCE
g) Expert evidence and ordinary evidence
• Expert evidence
- is one that, in the interpretation of the fact in dispute,
requires special training, knowledge, experience, and skill
on the part of the witness.
- in law, it is also called opinion evidence
Ex.: opinion of a mental alienist, a calligraphic expert, a
Bertillon expert
• Ordinary evidence
- is one that attests to the truth or falsity of a fact in
dispute without the necessity of special training,
knowledge, or skill.
 8. THE CLASSES OF EVIDENCE
h) Primary or best evidence and secondary evidence
• Primary or best evidence
- is one which “affords the best certainty of the fact
in question.
- a deed or any other written instrument is primary
evidence of its contents.
• Secondary evidence
- is one which is inferior to primary evidence and
which upon its face shows that better evidence
exists.
- a copy of a written instrument or the recollection of
a witness as to its contents
 9. OTHER TERMS USED IN LAW
a. Demonstrative evidence
- it is one that excludes all possibility of error.
b. Moral evidence
- It is one that attests to the reasonable probability
of the truth of the fact in controversy.
- also called as preponderating evidence.
c. Competent evidence
- it is that evidence which the very nature of the
thing to be proved requires, as the fit and
appropriate proof in the particular case.
 9. OTHER TERMS USED IN LAW
c. Competent evidence
- an example is the production of a writing or
document, where its contents are the subject of inquiry.

d. Satisfactory evidence or sufficient evidence

- it is one that ordinarily produces moral certainty or
conviction in an unprejudiced mind.

e. Cumulative evidence
- refers to the additional evidence of the same kind to
the same point.
 9. OTHER TERMS USED IN LAW
• Example of a cumulative evidence and corroborative
evidence:
In a defense of alibi the accused testified that he
was not in the town of “X” but in the town of “Y” on the
day and at the exact time the crime was alleged to have
been committed. If Pedro Reyes, a witness, testifies that
he saw the accused in the town of “Y” on the day and at
the exact time the crime is alleged to have been
committed, the testimony of Pedro Reyes is
corroborative evidence. But if Juan Santos, another
witness, also testifies to the same effect, this testimony
is cumulative evidence.
 9. OTHER TERMS USED IN LAW
f. Corroborative evidence
- this evidence is an additional evidence of a different
character to the same point.
g. Conclusive evidence
- this type of evidence refers to that which the law does
not allow to be contradicted
- example: a record of a court of competent jurisdiction
h. Prima facie evidence
- an evidence that is sufficient to maintain the
proposition affirmed until and unless overcome by contrary
evidence.
10. TESTS APPLIED TO DETERMINE THE PROBATIVE VALUE
OF EVIDENCE

• Three sets of tests that are applied:

1. The tests of the quality of ordinary evidence;

2. The tests of the sources of ordinary evidence;

3. The tests to determine the use of expert

evidence.
10. TESTS APPLIED TO DETERMINE THE PROBATIVE VALUE
OF EVIDENCE

a. The tests of the quality of ordinary evidence.

1. Is the evidence consistent with human nature?

There are certain natural impulses that a
normal human being possesses; and man reacts
to circumstances according to certain definite
patterns of human behavior.
10. TESTS APPLIED TO DETERMINE THE PROBATIVE VALUE
OF EVIDENCE

a. The tests of the quality of ordinary evidence.

2. Is the evidence consistent with human experience?

• Man’s belief is based on his observations of the
operations of the law of nature.
• He observes the operation of the law of gravitation,
of the law of decay, etc.
• He, therefore, refuses to accept as true declarations
or statements that contravene the natural laws.
 10. TESTS APPLIED TO DETERMINE THE PROBATIVE VALUE OF
EVIDENCE
a. The tests of the quality of ordinary evidence.

3. Is the evidence consistent with known facts?

Any testimony that contradicts a fact generally
accepted to be true is essentially false.

4. Is the evidence consistent with itself?

Whenever a piece of evidence has an inconsistency
within itself.
Self-contradiction is one of the surest signs that
prevarication is being committed.
 10. TESTS APPLIED TO DETERMINE THE PROBATIVE VALUE OF
EVIDENCE
a. The tests of the quality of ordinary evidence.

5. Can the evidence pass the hearsay test?

• Hearsay evidence is not admissible in courts of law,
unless it be one of the exceptions prescribed by legal
rules.

• In general argumentation, however, the rule of legal

admissibility does not apply. But, since, it is inherently
weak, it must be regarded with great caution.
 10. TESTS APPLIED TO DETERMINE THE PROBATIVE VALUE OF
EVIDENCE
a. The tests of the quality of ordinary evidence.

5. Can the evidence pass the hearsay test?

• Unless it passes two tests, it should not be used.
These tests are:
1. Is the piece of evidence of such a nature
that it can be transmitted from one
person to another without suffering
material alteration in the transmission?
2. Is the medium of transmission reliable?
 10. TESTS APPLIED TO DETERMINE THE PROBATIVE VALUE OF
EVIDENCE
a. The tests of the quality of ordinary evidence.

6. Is the evidence exceptionally valuable?

• There are some pieces of evidence of exceptional value.
These are the following:

i. Admissions and declarations against one’s own

interest.
- Man is by nature selfish.
- A statement, therefore, that runs counter to one’s
own interest is usually true.
 10. TESTS APPLIED TO DETERMINE THE PROBATIVE VALUE
OF EVIDENCE
a.The tests of the quality of ordinary evidence.
6. Is the evidence exceptionally valuable?
• There are some pieces of evidence of exceptional
value. These are the following:

ii. Casual evidence and undersigned evidence

- This kind of evidence being spontaneous
declarations is more likely to convince, as it is
generally free from cunning.
 10. TESTS APPLIED TO DETERMINE THE PROBATIVE VALUE
OF EVIDENCE

a.The tests of the quality of ordinary evidence.

6. Is the evidence exceptionally valuable?
• There are some pieces of evidence of exceptional
value. These are the following:

iii. Negative evidence

- The strength of this kind of evidence lies in
its freedom from being doctored. It speaks for itself.
10. TESTS APPLIED TO DETERMINE THE PROBATIVE VALUE
OF EVIDENCE

b. The tests of the sources of ordinary evidence.

- The word “sources” of ordinary evidence is
used to refer to ordinary witnesses.

1. Is the witness physically qualified?

- A person should be in possession of the
particular sense or faculty necessary to
get the information needed.
 10. TESTS APPLIED TO DETERMINE THE PROBATIVE VALUE
OF EVIDENCE
b. The tests of the sources of ordinary evidence.
2. Is the witness mentally qualified?
- A person whose memory is weak is generally not
trustworthy with respect to matters requiring memory.
3. Is the witness morally qualified?
- In considering the moral qualification of the witness,
it is necessary to determine his general reputation for
probity and integrity.
• Is he a habitual liar?
• What is his general reputation in the community?
O’Connel: “By virtue of your oath, are you positive that this is the same hat?”
Witness: “I am.”
O’Connel: “Did you examine it carefully before you swore in your information
that it was the property of the prisoner?”
Witness: “I did.”
O’Connel: (taking up the hat and examining the inside carefully, at the same
time spelling aloud the name JAMES). “Now let me see- J-A-M-E-S’ –
do you mean those letters were in that hat when you found it?”
Witness: “I do.”
O’Connel: “Did you see them there?”
Witness: “I did.”
O’Connel: “And you are sure this is the same hat?”
Witness: “I am.”
O’Connel: (holding up the hat to the bench). “Now, my Lord, I submit this is an
end of the case. There is no name whatever inscribed in this hat.”
 10. TESTS APPLIED TO DETERMINE THE PROBATIVE VALUE
OF EVIDENCE
b. The tests of the sources of ordinary evidence.

4. Did the witness have the opportunity for getting the

truth?
- It is very obvious that a person who has had no
opportunity for getting the truth is not worthy of
belief.
- If a person has had no chance to observe closely and
carefully the existence of facts to which he
testifies, his statements are clearly not free from
doubt.
 10. TESTS APPLIED TO DETERMINE THE PROBATIVE VALUE
OF EVIDENCE

c. The tests to determine the use of expert evidence.

The following tests are applied with reference to the use of
expert evidence:

1. Is the case of such a nature as to warrant the

introduction of expert evidence?
- there are cases in which the introduction of expert
evidence is imperative.
 10. TESTS APPLIED TO DETERMINE THE PROBATIVE VALUE
OF EVIDENCE

c. The tests to determine the use of expert evidence.

1. Is the case of such a nature as to warrant the
introduction of expert evidence?
• The following are representative examples:
i. Cases where the genuineness of the signature of a
person is in question
ii. Cases where the sanity of the accused is in issue
iii.Cases where the finger-print of a person is in
question.
 10. TESTS APPLIED TO DETERMINE THE PROBATIVE VALUE
OF EVIDENCE

c. The tests to determine the use of expert evidence.

2. Is the witness presented as an expert possessed of

the qualifications to justify his acceptance as an
expert on the matter in question?
- To qualify as expert, the witness must be
possessed of training, knowledge, experience, or skill
demanded by the matter in question.
 10. TESTS APPLIED TO DETERMINE THE PROBATIVE VALUE
OF EVIDENCE

c. The tests to determine the use of expert

evidence.

3. Is the witness recognized by the judge, by the

reader, or by the hearer as an expert?
-It is necessary that such witness be accepted
by the judge, by the readers, or by the
audience as an expert.