TESTIMONIAL EVIDENCE
NATURE OF TESTIMONIAL OR
ORAL EVIDENCE
1. Testimonial or oral evidence is
evidence elicited from the mouth of a
witness as distinguished from real and
documentary evidence. It is sometimes
called viva voce evidence which literally
means “living voice” or by word of
mouth. In this kind of evidence, a
human being is called to the stand, is
asked questions, and answers the
questions asked for him. The person
who gives the testimony is called a
“witnessed.”
2. Recall that competent evidence means evidence
that is not excluded by the law or rules. It,
therefore, means the eligibility of an evidence to
be admitted by the court. When applied to a
witnessed, competence means that the witness is
qualified to take the stand and testified. It means
that he is fit or eligible to testify on a particular
matter in a judicial proceeding.
If a witness cannot perceive or even he can
perceive but he cannot remember what he has
perceived, he is incompetent to testify. If he has no
personal knowledge of an event the truth of which
he wants to prove, he is also incompetent to testify.
3. Experience and plain observation will tell us
that the presentation and introduction of every
kind of evidence, whether it be object,
demonstrative or documentary evidence, need the
intervention of a witness. The admission of any
evidence requires its identification by a witness.
It is a legal truth that identification precedes
authentication. Without a witness, no evidence
can ever be authenticated. Even the so-called
“self-authenticated documents” need a witness to
identify the document. The reason is simple.
Being inanimate, a document or an object cannot
speak for itself.
 PRESUMPTION IN FAVOR OF COMPETENCE OF
A WITNESS

As a general rule, a person who takes the stand as a witness is presumed to be

qualified to testify. A party who desires to question the competence of a witness
must do so by making an object as soon as the facts tending to show
incompetency are apparent.
 QUALIFICATION OF A WITNESS

1. As to the qualifications of a witness, 2. The above provision supplies the

Sec. 21, Rule 130 of the Rules of Court, basic qualification, namely:
as amended, provides: a. He can perceive; and
b. He can make known his perception to
others
To these, we may add the following;
a. he must take either an oath or an
affirmation
b. He must not possess any of the
disqualifications imposed by the law or
the rules.
 OATH OR AFFIRMATION
1. While the taking of an oath or of an
affirmation is either rarely mentioned
and merely glossed over by
commentators in discussing the
qualifications of a witness to take the
stand, the rule clearly requires that the
examination of witness in a trial or
hearing shall be done x x x under oath
or affirmation. The willingness to take
an oath or affirmation is essential
qualification of a witness. No court
would and should allow the testimony
of someone who desires to testify but
refuse to swear or make an affirmation.
2. A person is not qualified to be a witness if he
is incapable of understanding the duty to tell
the truth. An oath or affirmation is necessary for
the witness to recognize the duty to tell the
truth. The oath of a witness signifies that he is
swearing to the creator “to tell the truth and
nothing but the truth” and that if he has not, he
will later on answer for all the lies he is guilty of.
Of course, in the early stage of legal history,
this was concededly the underlying reason for
requiring an oath before a witness testifies. In
modern times, this reason may have been
obscured by universal shift in moral values but
the oath is, nevertheless, required, as a rule,
even if, to many, the oath appears merely to be a
pious incantation or a meaningless ritual which
must simply be done to be allowed to be testify.
3. The issue which a judge must
resolve before a witness is allowed to
the stand is whether the witness
understands the nature of an oath,
realize the moral duty to tell the truth,
and understands the prospects of
being punished for a falsehood. This
understanding is not necessarily
inferred from the age of the witness.
4. Not all may want to take an oath for
reason of religion or the lack of it.
Thus, the rule in this jurisdiction
affords the courts the flexibility to deal
with those who refuses to being sworn
by requiring the witness to make an
affirmation instead.
 ABILITY TO PERCEIVE

A witness must be able to perceive an event. Thus, it would be absurd to ask a

blind man what he saw, or a deaf person what he heard. Corollary to this
capacity to perceive is the requirement that the witness must have a personal
knowledge of the facts surrounding the subject matter of his testimony.
Sec. 22 of Rule 130 explicitly requires that a witness testify only to those facts
which he or she knows of his or her personal knowledge, i.e., those which are
derived from his or her own perception.
When the witness takes an oath or an affirmation to tell the truth, he cannot
live up to that oath or affirmation without his ability to show that his testimony
is based on his personal knowledge. Without this personal knowledge, the
witness lacks the competence to testify.
 ABILITY TO MAKE KNOWN THE
PERCEPTION TO OTHERS
1. The ability of the witness to make
known his perception to the court
involves two factors:
(a) ability to remember what has been
perceived; and
(b) ability to communicate the
remembered perception.
Consider a witness who has taken the
oath and has personal knowledge of
the event on which he is going to
testify.
2. Deaf-mutes are not necessarily
incompetent as witnesses. They are
competent where they can:
(a) understand and appreciate the
sanctity of an oath
(b) comprehend facts they are going to
testify to;
(c) communicate their ideas through a
qualified interpreter.
 COMPETENCY AND CREDIBILITY (BAR
2004)
1. Competence is a matter of a law or, in
this jurisdiction, also a matter of rule.
Credibility of a witness has nothing to do
with the law or the rules. It refers to the
weight and trustworthiness or reliability of
the testimony in deciding the competence of
a witness, the court will not inquire into the
trustworthiness of a witness
2. Accordingly, a prevaricating witness or
one who has given contradicting testimonies
is still a competent witness. Although he
may be competent as a witness, his
testimony may not be give much wake by
the court or no weight at all if the court
deems him not worthy of beliefs.
3. Competency of a witness has
reference to basic qualifications of a
witness as his capacity to perceive and
communicate his perception to others.
It also includes the absent of any of
the disqualification imposed upon a
witness. Credibility of a witness refers
to the believability of a witness and
has nothing to do with the law or the
rules. It refers to the weight and
trustworthiness or reliability of the
testimony. In deciding the competence
of a witness, the court will not inquire
into the trustworthiness of a witness.
4. Drug abuse will not render a person
incompetent to testify. Drug abuse
become relevant only if the witness
was under the influence of drugs at
the time he is testifying or at the time
the events in question were observed .
While bias and drug abuse may not be
grounds for barring a witness from
testifying, they may serve as grounds
for attacking the credibility of a
witness.
5. Questions concerning the credibility
of a witness are best addressed to the
sound direction of the trial court as it
is in the best position to observe his
demeanor and bodily movements. The
supreme court generally defers to the
trial court’s assessment because it has
the singular opportunity to observe
the demeanor of witnesses and their
manner of testifying.
6. Finding of the trial court, its calibration of the
testimony of the witnesses and its assessment of
the probative weight thereof, as well as its
conclusions anchored on said finding are
accorded respect if not conclusive.
 FACTORS THAT DO NOT AFFECT THE COMPETENCY OF A WITNESS
(BAR 2011)

1. Under sec. 21 of rule 130, as amended, except 2. The relationship of a witness with a
as provided by the law and the rules, the following
factors do not, as a general rule, constitute a party does not ipso facto render him a
disqualification of a witness: biased witness in criminal cases where
(a) Religious belief;
the quantum of evidence is proof
beyond reasonable doubt. There is no
(b) political belief ; reason why the same principle should
(c) interest in the outcome of the case; or not apply to a civil case where the
(d) conviction of a crime, unless otherwise quantum of evidence is only
provided by law (example: those who have been preponderance of evidence.
convicted of falsification of a document, perjury or
false testimony are disqualified from being
witnesses to a will) As a consequence, these
persons may not also testify as witnesses in the
probate of a will where the subject of the
testimony is the very fact of execution of the will
in their presence.
 FINDINGS OF CREDIBILITY OF A WITNESS
BY THE TRIAL COURT
The general rule is that the trial court’s calibration of the testimony of the
witnesses, its assessment and the probative weight thereof, as well as its
conclusions on the credibility of the witnesses on which said findings were
anchored, are accorded with great respect.
This Great respect rests in the trial court’s first-hand access to the evidence
presented during the trial, and in it’s direct observation of the witnesses and
their demeanor while they testify on the occurrences and the events attested to.
From its vintage point, the trial court is in the best position to determine the
truthfulness of witnesses.
 CHILD WITNESS; MEANING (BAR 2012)
1. A “child witness” is any person who, at the time of giving testimony, is below
the age of 18 years (Sec. 4[a], Rule on Examination of a Child Witness , A.m.
004-07-SC).
2. May a person over 18 years old be considered as a child? In child abuse
cases, a child includes one over 18 years but is found by the court as unable to
fully take care of himself or protect himself from abuse, neglect, cruelty,
exploitation, or discrimination because of a physical or mental disability or
condition.
 COMPETENCY OF A CHILD WITNESS;
PRESUMTION; COMPETENCY EXAMINATION
1. Every child is presumed qualified to
be a witness. This is the presumption
establish by Sec. 6 of the Rule on
Examination of a Child Witness and to
rebut the presumption of competence
enjoyed by a child, the burden of proof
lies on the party challenging his
competence. In fact, jurisprudence
has consistently given full weight and
credence to a child’s testimony. Youth
and maturity are badges of truth and
sincerity.
2. When the court finds that substantial
doubt exists regarding the ability of the
child to perceive, remember, communicate,
distinguish truth from falsehood, or
appreciate the duty to tell the truth in
court, the court shall conduct a competency
examination of the child. The court may do
so motu proprio or on motion of a party.
A party who seeks a competency
examination must present proof of necessity
of a competency examination. Proof of such
necessity must be grounded on reasons
other than the age of the child because
such age, in itself, is not a sufficient basis
for a competency examination
3. The competency examination of a 4. The competency examination of the
child witness is not open to the public. child shall be conducted only by the
Only the following are allowed to attend judge. If the counsels of the parties
the examination: desire to asks questions, they cannot do
(a) The judge and necessary court so directly. Instead, they are allowed to
personnel; submit questions to the judge which he
(b) The counsel for the parties; may ask the child in his direction.
(c) The guardian ad litem;
(d) One or more support persons for the
child; and
(e) The defendant, unless the court
determines that competence can be fully
evaluated in his absence.
5. The questions asked at the
competency examination shall be
appropriate to the age and
developmental level of the child. The
questions shall not be related to the
issues at the trial but shall focus on
the ability of the child to remember,
communicate, distinguish between
truth and falsehood and appreciate
the duty to testify truthfully.
6. Assessment of the competency of the
child is designed to be a continuing one.
The court has duty of continuously
assessing the competence of the child
throughout his testimony.
7. The court ay order that the testimony
of the child be taken by live-link television
if there is a substantial likelihood that the
child would suffer trauma from testifying
in presence accused, his counsel or the
prosecutor as the case may be. The
trauma must be of a kind which would
impair the completeness or truthfulness
of the testimony of the child.
THANK YOU!