TESTIMONIAL EVIDENCE

WEEK 10
MIDTERM
 QUALIFICATIONS OF
WITNESS
ALL PERSONS WHO CAN
PERCEIVE, AND PERCEIVING,
CAN MAKE KNOWN THEIR
PERCEPTION TO OTHERS, MAY
BE WITNESSES.
GENERAL RULE: THE FOLLOWING ARE
NOT GROUNDS FOR DISQUALIFICATION:
 1. RELIGIOUS BELIEF;
2. POLITICAL BELIEF;
3. INTEREST IN THE OUTCOME OF THE
CASE; AND
4. CONVICTION OF A CRIME
 
EXCEPTION: WHEN PROVIDED FOR
BY LAW.
 GROUNDS FOR DISQUALIFICATION
ENUMERATED IN THE RULES ON EVIDENCE:

DISQUALIFICATION BY REASON OF:

1. MENTAL INCAPACITY
2. IMMATURITY
3. MARRIAGE
4. DEATH OR INSANITY OF ADVERSE
PARTY
5. PRIVILEGED COMMUNICATION
 REQUISITES FOR APPLICATION OF
DEAD MAN’S STATUTE [PACO]
•  

THE WITNESS IS A PARTY OR ASSIGNOR OF A

PARTY TO A CASE, OR OF A PERSON ON WHOSE
BEHALF A CASE IS PROSECUTED;

 DEAD MAN STATUTE NOT APPLICABLE TO A

CORPORATION’S OFFICERS AND STOCKHOLDERS
IN A SUIT INSTITUTED BY THE CORPORATION.
THUS, THE OFFICERS AND STOCKHOLDERS MAY
TESTIFY.
B. THE ACTION IS AGAINST AN
EXECUTOR, ADMINISTRATOR OR OTHER
REPRESENTATIVE OF A DECEASED
PERSON, OR AGAINST A PERSON OF
UNSOUND MIND;
 
 HEIRS OF DECEASED PERSON ARE
CONSIDERED “REPRESENTATIVES” OF A
DECEASED PERSON.
C. THE SUBJECT MATTER OF THE ACTION IS A
CLAIM OR DEMAND AGAINST THE ESTATE OF
SUCH DECEASED PERSON, OR AGAINST SUCH
PERSON OF UNSOUND MIND;
 
D. THE TESTIMONY REFERS TO ANY MATTER
OF FACT OCCURRING BEFORE THE DEATH OF
SUCH DECEASED PERSON, OR BEFORE SUCH
PERSON BECAME OF UNSOUND MIND.
 
  NOT COVERED BY THE RULE:
•  

1. COUNTERCLAIM BY DEFENDANT (PLAINTIFF MAY TESTIFY IN HIS DEFENSE)

 
2. DECEASED CONTRACTED WITH PLAINTIFF THRU AN AGENT OF THE
DECEASED/INSANE (IN THE CONTRACT WHICH IS THE SUBJECT OF THE ACTION)
WHO IS STILL ALIVE AND CAN TESTIFY (BUT THE TESTIMONY IS LIMITED TO THE
ACTS PERFORMED BY THE AGENT)
3. IF ADVERSE PARTY IS CALLED AS A WITNESS BY THE REPRESENTATIVE OF THE
DECEASED/INCOMPETENT OR IF REPRESENTATIVE INTRODUCED EVIDENCE AS TO
THE TRANSACTIONS OR COMMUNICATIONS WITH THE DECEASED/INCOMPETENT
 
4. TO CADASTRAL PROCEEDINGS, WHERE THERE IS NO DEFENDANT OR PLAINTIFF
DISTINGUISH BETWEEN THE
MARITAL DISQUALIFICATION RULE
AND THE PRIVILEGED MARITAL
COMMUNICATION RULE.
   Marital Disqualification Privileged Marital
Communication
     
Extent of Total. All testimony, whether Only confidential
prohibition adverse or not, regardless of communication.
source.
     
Should either YES. Not necessarily.
spouse be a party?
     
Marriage subsisting YES. Not necessarily.
at time of
testimony?
     
Who can invoke The affected spouse The other spouse
     
Operability of the Ceases upon death of either Continues even after the
rule spouse, or termination of the termination of the
Privileged Communications
 
1. Marital Confidential communication
Requisites:
a.spouses are legally married
b.privilege is claims with regard to a
communication, oral or written, made during
the marriage
c.said communication was made
confidentially
d.action or proceeding where the privilege is
claimed is not by one against the other
 
Attorney-Client Privileged Communication
Requisites:
a.legal advice of any kind is sought
b.from a professional legal adviser in his
capacity as such
c.the communications relating to that
purpose
d.made in confidence
e.by the client
f. are at his instance permanently protected
g.from disclosure by himself or by the legal
adviser
h.except that the protection may be waived
  Extends to attorney’s secretary, stenographer
or clerk; requires consent of both employer
and the client to testify as to matters learned
in their professional capacity

 Exceptions:
i. Actions brought by client against his attorney
ii.Communications made in presence of third
persons
iii.Communications regarding an intended crime
 General Rule: Lawyer may invoke the privilege
and refuse to divulge the name of his client

Exception:
1. If there is a probability that revealing the
client’s name would implicate the client to the
activity for which he sought the lawyer’s advice;
2. The disclosure would open the client to civil
liability;
3. Where the identity is intended to be
confidential
 Privilege not confined to verbal or
written communications, but extends
to all information communicated by the
client to the attorney by other means,
such as when the attorney is called to
witness the preparation of a document.
Physicians and clients
Requisites:
a.civil case
b.person against whom the privilege is claimed
is one duly authorized to practice medicine,
surgery or obstetrics
c.such information was acquired while he was
attending to the patient in his professional
capacity
d.the information was necessary to enable him
to act in that capacity, and if disclosed, shall
blacken the reputation of the patient
Priest and penitent
Requisites:
a.clergyman or priest and a penitent
b.confession of a penitential character
c.made to the priest in his professional
character
d.confession is sanctioned by the church to
which the priest or religious officer belongs
 
 A patient’s husband is not prohibited
from testifying on a report prepared by
his wife’s psychiatrist since he is not
the treating physician (although it would
be hearsay)
 A physician is not prohibited from
giving expert testimony in response to a
strictly hypothetical question in a
lawsuit involving the physical or mental
condition of a patient he has treated
professionally.
 
Requisites for Priest-Penitent Privilege
a.Confession was made or advice given
by the priest in his professional
character in the course of the discipline
enjoined by the church to which the
priest or minister belongs;
b.The confession must be confidential
and penitent in character
Public officers
Requisites:
a.confidential communication
b.made to or obtained by a public officer
c.obtained in the exercise of his public
function
d.disclosure of the communication
would be detrimental to the public
interest
 
Parental and Filial privilege - No person
may be compelled to testify against his
parents, other direct ascendants,
children, or other direct descendants.
Notes:
 This provision does not apply to spouses.
 This provision means that you may testify if
you want, but you may not be compelled to
testify.
 This provision is subject to the qualification in
Sec. 215 of the Family Code, i.e. a descendant
may be compelled to testify against parents
and grandparents IF the testimony is
indispensable in a crime against the
descendant or by one parent against the
other.
Newsman’s privilege” – a publisher, editor,
columnist or duly accredited reporter
cannot be compelled to disclose the
source of news report or information
appearing in the publication which is
related in confidence, the disclosure of
which is not demanded by the security of
the state.
 
Admissions and Confessions
Admission and Confession distinguished
ADMISSION CONFESSION
Statement of fact Involves
which does not involve acknowledgment of
an acknowledgment of guilt or liability
guilt or liability
May be express or tacit Must be express
May be made by third Can be made only by
persons, and in certain the party himself, and
cases, are admissible in some cases, are
against a party admissible against his
co-accused
Admission - It is an act, declaration or
omission as to a relevant fact. It may
be given by a party (in which case
Rule 130, Sec. 26 will be applicable)
or by a third-party.
 
Gen. Rule: Confessions of a
defendant made to witnesses are
admissible against him, but are
inadmissible against his co-
defendant
Exception:

a.confessions on the stand

b.confessions not objected to
c.adopted confession
d.identical confession
e.corroborated confession
f.confession by conspirator (after
conspiracy has been shown & proven)
Self-serving declaration - a
declaration wherein:
(1)the testimony is favorable to the
declarant;
(2)it is made extrajudicially; and
(3)it is made in anticipation of
litigation.
Self-serving declarations are
not admissible.
Requisites for the admissibility of an
admission:
(1)must involve matters of fact and not
of law;
(2)must be categorical and definite;
(3)must be knowingly and voluntarily
made;
(4)must be adverse to the admitter’s
Interest, otherwise self-serving and
inadmissible as hearsay
Admissions and Declarations
against self-interest distinguished
ADMISSIONS DECLARATION AGAINST
INTEREST
Need not be, though will Must have been made
greatly enhance probativeagainst the proprietary or
weight if made against the
pecuniary interest of the
interest of the declarantparties
Made by the party himselfMust have been made by a
and is a primary evidenceperson who is either
and competent though he deceased or unable to
be present in court and testify
ready to testify
Can be made at any time Must have been made ante
Confession - It is the declaration of
an accused acknowledging his guilt
of the offense charged, or of any
offense necessarily included
therein.
Differentiate an admission from
a confession.
 
   Admission Confession
     
Definition Statement of fact which Declaration
does not involve an acknowledging one’s
acknowledgement of guilt guilt of the offense
or liability charged
     
Form May be express or tacit Must be express
     
Made by Party or 3rd person Party himself
 
     
Cases in which Both criminal and civil Usually criminal
applicable cases cases
Differentiate an admission
and confession in criminal
cases.
   Admission Confession
     
Definition Statement by the Acknowledgment
accused, direct or in express terms
implied, of facts by a party in a
pertinent to the issue criminal case of
and tending, in his guilt of the
connection with proof crime charged
of other facts, to  
prove his guilt  
     
Sufficiency to Insufficient. Tends Sufficient
authorize a only to establish the
Differentiate the effects of
judicial and extrajudicial
confessions.
 
A judicial confession is sufficient in
itself to sustain a conviction, even in
capital offenses. On the other hand, an
extrajudicial confession is insufficient in
itself to sustain a conviction. It must be
corroborated by evidence of the corpus
delicti
Requisites for the admissibility of extrajudicial
confessions?
 
(1)Must involve an express and categorical
acknowledgment of guilt (US v. Corales);
(2)The facts admitted must be constitutive of a
criminal offense (US v. Flores);
(3)Must have been given voluntarily (People v.
Nishishima);
(4)Must have been made intelligently (Bilaan v.
Cusi)
(5)Must have been made with the assistance of
competent and independent counsel (Art III,
Sec. 12, 1987 Constitution)
Rules governing extrajudicial
confessions:

 
General Rule: :The extrajudicial
confession of an accused is binding
only upon himself and is not
admissible against his co-accused.
Exceptions:
 
• Interlocking confessions, i.e. extrajudicial
confessions independently made without
collusion which are identical with each
other in their material respects and
confirmatory of the other (People v.
Encipido);
 
• If the co-accused impliedly acquiesced in or
adopted said confession by not questioning
its truthfulness (People v. Orenciada);
 
• Where the accused admitted the facts
stated by the confessant after being
apprised of such confession (People v.
Narciso);
 
• If the accused are charged as co-
conspirators of the crime which was
confessed by one of the accused and
said confession is used only as
corroborative evidence (People v.
Linde);
• Where the confession is used as
circumstantial evidence to show the
probability of participation by the co-
conspirator (People v. Condemena);

• Where the confessant testified for his co-

defendant (People v. Villanueva);

• Where the co-conspirator’s extrajudicial

confession is corroborated by other
evidence of record (People v. Paz)
 

Rules on offer of compromise

 
Civil cases: Not admission of liability;
not admissible in evidence against
offerror

Criminal cases: Admissible against

accused as implied admission of guilt
 Exceptions:
(1)Quasi-offenses (criminal
negligence)

(2)Those offenses allowed by law to

be compromised (e.g., Sec. 204,
NIRC of 1977) or when made to
avoid risks of criminal actions
against him.
  Also, offer to pay expenses occasioned
by injury not admissible as proof of civil or
criminal liability for the injury.
 A plea of forgiveness made with the
knowledge, consent or acquiescence of
the accused is tantamount to an offer to
compromise by the accused.
 If the purpose of the offer is to buy peace
and avoid litigation, then the offer is
inadmissible.
 
 As held in the case of Daggett v.
Atchinson, etc. (48 Cal.2d 655), it is the
general rule that evidence of
precautions taken and repairs made
after the happening of the accident is
not admissible to show a negligent
condition at the time of the accident.
The following are not admissions of
liability or guilt and are therefore not
admissible in evidence:
 
(1)Plea of guilty later withdrawn;
(2)Unaccepted offer of plea of guilty
to a lesser offense;
(3)Offer to pay or payment of
medical, hospital or other expenses
occasioned by an injury
Requisites for Admission by Silence
(Adaptive Admissions)
a.The party heard the declaration or
observed the act of the other person
b.He must have understood the
statement or act
c.He was at liberty to interpose a denial
d.Statement was with respect to some
matter affecting his rights or in which he
was then interested, and calling, naturally,
for an answer
 e. Facts were within his knowledge
f. Facts admitted or inference to be drawn from
his silence is material to the issue
g. The party has no right to remain silent (as
held in Commonwealth v. Dravecz, 424 Pa. 582
or 227 A-2d 904)
 If private complainant in a rape case fails to
rebut testimonies of defense witnesses that
she and accused were sweethearts and that
they had previous sexual encounters, she is
deemed to have impliedly admitted the truth of
the facts asserted by said witnesses.
res inter alios acta rule - the
rights of a party cannot be
prejudiced by an act, declaration
or omission of another (i.e. a non-
party), except in the following
instances:
1.by partner, agent or other person jointly
interested with the party
Requisites:
a.the partnership, agency or joint interest
is proven by evidence other than the act
or declaration sought to be admitted
b.the admission is within the scope of the
partnership, agency or joint interest
c.admission was made while the agency,
p’ship or joint interest was in existence
 
2. by conspirator

Requisites:
a.conspiracy is first proved by evidence
other than the admission itself
b.admission relates to the common object
c.that it has been made while the
declarant was engaged in carrying out
the conspiracy
3. by privies

Requisites:
1. Relation of privity between party and
declarant;
2. Admission was made by the declarant as
predecessor-in-interest, while holding title to
the property;
3. The admission was in relation to said
property.  HOWEVER, such evidence is still
not admissible to contradict the terms of the
written instrument
 RES INTER ALIOS ACTA ALTERI
NOCERO NON DEBET

 SEC. 34, EVIDENCE THAT ONE DID OR DID NOT DO A

CERTAIN THING AT ONE TIME NOT ADMISSIBLE TO
PROVE THAT HE DID OR DID NOT DO THE
SAME/SIMILAR THING AT ANOTHER TIME
 EXCEPTIONS: [KISSHICUP] IT MAY BE RECEIVED
TO PROVE A SPECIFIC INTENT OR KNOWLEDGE,
IDENTITY, PLAN, SYSTEM, SCHEME, HABIT, CUSTOM,
OR USAGE
 
Requisites for admission by silence:
1. Hearing and understanding of the
statement by the party;
2. Opportunity and necessity of denying
the statements;
3. Statement must refer to a matter
affecting his right;
4. Facts were within the knowledge of the
party;
5. Facts admitted or the inference to be
drawn from his silence would be
material to the issue (Regalado)
 OPINION OF A WITNESS

A. EXPERT – SPECIAL KNOWLEDGE,

SKILL EXPERIENCE OR TRAINING
-THE MATTER TO BE TESTIFIED TO IS
ONE THAT REQUIRES EXPERTISE
-THE WITNESS HAS BEEN QUALIFIED
AS AN EXPERT
*It is not enough that a witness who is
being presented as an expert belongs to
the profession or calling to which the
subject matter of the inquiry relates.
He must further show that he possesses
special knowledge to the question on
which he proposes to express an
opinion.
HEARSAY RULE
1. Exceptions to hearsay rule
a. Dying declaration – ante mortem or in
articulo mortis
b. Declaration against interest
c. Act or declaration against pedigree
d. Family reputation or traditions
regarding pedigree
e. Common reputation
 f. Res gestae
g. Entries in course of business
h. Entries in official records
i. Commercial lists and the like
j. Learned treatises
i. Court takes judicial notice; or
ii. Testified to by an expert
k. Testimony or deposition at a former
proceeding
 Newspaper clippings are hearsay and
have no evidentiary value unless
substantiated by persons with personal
knowledge of the facts.
2. Doctrine of independently relevant
statements
 Independent of whether the facts stated
are true, they are relevant since they are the
facts in issue or are circumstantial evidence
of the facts in issue
 Not covered by the hearsay rule
Example: The statements or writings
attributed to a person who is not on the
witness stand are being offered, not to
prove the truth of the facts stated therein,
but only to prove that such statements were
actually made or such writings were
executed, or to prove the tenor thereof.
3. Requisites of Declaration Against Interest
a. Declarant dead or unable to testify
 Mere absence from jurisdiction does not make
declarant “unable to testify.” Exception
contemplates that the declarant is dead, mentally
incompetent or physically incapacitated
b. Declaration was against his own interest
c. Reasonable man in declarant’s position would
not have made the declaration unless he believed it
to be true
 Declarations by accused against his interest are
inadmissible if done in violation of his
constitutional rights
4. Requisites of Act or Declaration about
Pedigree
a.Declarant dead or unable to testify
b.Declarant is related to the person whose
pedigree is in question
c.Made ante litem motam
d.Relationship between declarant and
person whose pedigree is in question
showed by evidence other than the
declaration
5. Requisites of Family Reputation/Tradition
regarding Pedigree
a.Reputation or tradition exists in family of
person whose pedigree is in question
b.Reputation or tradition existed previous to
the controversy
c.Witness testifying thereon is a surviving
member of that family, by either affinity or
consanguinity
 A person’s statement as to the date of his birth
and age, as he learned of these from his parents
or relatives, is an ante litem motam declaration
of family reputation.
6. Requisites of Common Reputation
a.Facts to which the reputation refers are of public or
general interest
b.Reputation is ancient (or more than 30 years old)
c.Reputation must have been formed among a class
of persons who were in a position to have some
sources of information and to contribute
intelligently to the formation of the opinion
d.Reputation must exist ante litem motam
 HOWEVER, if the reputation concerns marriage or
moral character, the requisite that the reputation
must be ancient does NOT apply
7. Requisites of Dying Declarations
a. Declaration must concern cause and surrounding
circumstances of declarant’s death
 Cannot be admitted to establish fact of robbery;
strictly limited to criminal prosecutions for
homicide/murder as evidence of the cause and
surrounding circumstances of the death
b. Declaration was made under consciousness of
impending death
c. Declaration was freely and voluntarily made
d. Declarant’s testimony, if alive, would have been
competent (eg: dying declaration would not be
admissible if it consisted of hearsay, or of the
declarant’s opinion)
8. Res gestae
2 kinds/classes:
a. Spontaneous statements;
 Requisites:
i.There is a startling occurrence
ii.Statement must relate to the
circumstances of the occurrence
iii.Statement is unconscious and
unpremeditated
 Factors to be considered in determining
spontaneity of statement:
i. Time that elapsed between occurrence
and the making of the statement
ii. Place where statement was made
iii. Condition of the declarant when he
made the statement
iv. Presence or absence of intervening
occurrences between the occurrence and
the statement
v. Nature and circumstances of the
statement itself
 b. Verbal acts:
 Requisites:
i. Res gestae or principal act must be equivocal
ii. Act material to issue
iii. Statements must accompany equivocal act
iv. Statements must give legal significance to
equivocal act
9. Res gestae
distinguished
RES GESTAE
Statement of the killer
himself after or during
the killing, or that of a
third person (e.g., victim)
Statement may precede,
accompany or be made
after the homicidal act
was committed
Justified by the
spontaneity of the
statement
and Dying Declarations
DYING DECLARATION
Can be made only by the
victim
Made only after the
homicidal attack has
been committed
Trustworthiness is based
upon its being given
under awareness of
impending death
10.Requisites of Entries in the course of business
Entrant is deceased or unable to testify
a. Entries made at or near the time of the
transaction to which they relate
b. Entries made by entrant in his professional
capacity or in the performance of a duty
c. Entries were made in the ordinary or regular
course of business
d. Entrant must have been in a position to know
the facts therein stated
 Heirs of Conti vs. CA - baptismal certificates
are admissible as entries in the ordinary course
of business, even absent the testimony of the
officiating priest or official recorder
11.Requisites of Entries in official records
a.Entry was made by public officer of the Philippines
or by a person especially enjoined by law to make
such entry
b. Entry was made in the performance of entrant’s
duty
c. Entrant must have been in a position to know the
facts therein stated
 Baptismal certificates or parochial records are
not public or official records and are not proof of
relationship or filiation of the child baptized.
12. Entries in the course of business and Entries in
official records distinguished
ENTRIES IN THE COURSE ENTRIES IN OFFICIAL
OF BUSINESS RECORDS
Sufficient that entrant entrant is a public officer
made the entries in performance of duty, or
pursuant to a duty either if a private individual,
legal, contractual, moral must have acted pursuant
or religious, or in the to a specific legal duty
regular course of (specially enjoined by
business
The person or duty
who made law)there is no such
such entries must be requirement for
dead or unable to testify admissibility
13. Requisites of Testimony or Deposition in former
proceeding
a.Witness whose testimony is offered is dead or unable
to testify
b.Party against whom the evidence is offered, or his
privy, was a party to the former case or proceeding,
judicial or administrative
c.Testimony or deposition relates to the same subject
matter
d.Adverse party had opportunity to cross-examine
 Testimony given during preliminary investigation
where the defense had the opportunity to cross-examine
the unavailable witness is admissible in the criminal
case
14. Modes of Extra-judicial Identification of
Accused
a.Show-ups – where accused alone is brought
face-to-face with the witness for
identification
b.Mug shots – where photographs are shown to
the witness for identification
c.Line-ups – where a witness identifies the
suspect from a group of persons lined up for
the purpose
 Identification will be admissible if it passes the
totality of circumstances test which considers
the following factors:
i.The witness’ opportunity to view the criminal
at the time of the crime
ii.Witness’ degree of attention at that time
iii.Accuracy of any prior description by the
witness
iv.The level of certainty demonstrated by the
witness at the identification
v.Length of time between the crime and
identification
vi.Suggestiveness of the identification
procedure
15.The SC approved an additional exception to
the hearsay rule in its A.M. no. 00-4-07-SC approving
the Proposed Rule on Examination of a Child
Witness.*
 A statement made by a child describing
any act or attempted act of child abuse NOT
otherwise admissible under the hearsay rule, may be
admitted in evidence in any criminal or non-criminal
proceeding subject to the following rules:
a.Before such statement may be admitted, its
proponent shall make known to the adverse party
the intention to offer such statement and its
particulars to allow him an opportunity to object.
*
The resolution came out last November 21, 2000.
The rule took effect last December 15, 2000.
ii.If the child is available
 The court shall require the child to be
present at the presentation of the hearsay
statement for cross-examination by the
adverse party.
ii.If the child is unavailable
 The fact of such circumstance must be
Proved by the proponent.
 a.In ruling on the admissibility of such
hearsay
statement, the court shall consider the
time,
content and circumstances thereof which
provide sufficient indicia of reliability. It
shall consider the following factors:
i. Whether there is a motive to lie
ii. The general character of the declarant
child
iii. Whether more than one person heard the
statement
iv. Whether the statement was spontaneous
• The timing of the statement and the relationship
between the declarant child and witness.
• Cross-examination could not show the lack of
knowledge of the declarant child.
• The possibility of faulty recollection of the
declarant child;
• The circumstances surrounding the statement are
such that there is no reason to suppose the
declarant child misrepresented the involvement of
the accused.
 a.The child witness shall be considered
unavailable in the following situations:
i. Is deceased, suffers from physical infirmity,
lack of memory, mental illness or will be
exposed to severe psychological injury;
ii. Is absent from the hearing and the proponent of
his statement has been unable to procure his
attendance by process or other reasonable means.
d. When the child witness is unavailable, his
hearsay testimony shall be admitted only if
corroborated by other admissible evidence.