Evidence Handbook

Prof. Victoria Avena, 1st semester, AY 1999-2000

TESTIMONIAL EVIDENCE

DISQUALIFICATIONS

MENTAL INCAPACITY / MARITAL DEAD

IMMATURITY DISQUALI- MAN’S PRIVILEGED COMMUNICATION
FICATION STATUTE

PRIVILEGED ATTORNEY PHYSICIAN MINISTER / PUBLIC

MARITAL OR HIS PRIEST OFFICER
COMM. EMPLOYEE

PERSONS Those whose Children whose Spouses, with Parties, or Spouses Attorney or his A person Minister / priest Public officer
DISQUALIFIED mental condition, mental maturity regard to assignors of secretary, authorized to
at the time of is such as to testimony for or parties to a case, stenographer, or practice
their production render them against the other or persons in clerk medicine,
for examination, incapable of spouse, without whose behalf a surgery or
is such that they perceiving the his / her consent case is obstetrics
are incapable of facts respecting prosecuted,
intelligently which they are against an
making known examined and of executor or
their perception relating them administrator or
truthfully other
representative of
a deceased
person, or
against a person
of unsound mind

REQUISITES (1) Spouses are (1) Attorney- (1) Civil case (1) Communica-
legally married. client relation (2) Physician- tion made to
(2) The com- (2) Communica- patient relation public officer
munication was tion by client to (3) Advice or (2) Communica-
confidential. attorney in the treatment given tion made in
(3) It was made course of or with or information official
during the a view to pro- acquired during confidence
marriage. fessional course of (3) Public
employment professional duty interest would
 Evidence Handbook
Prof. Victoria Avena, 1st semester, AY 1999-2000
(4) Information suffer by the
was necessary disclosure of the
for performance communication
of professional
duty
(5) The disclo-
sure would tend
to blacken the
patient's
reputation

PERIOD OF During the During or after During his term

DISQUALIFI- marriage the marriage of office or
CATION afterwards

SCOPE OF Any matter of Any communica- Any commu- Any advice or Any confession Communications
DISQUALIFI- fact occurring tion received in nication made by treatment given made to or any made to him in
CATION before the death confidence the client to the by him or any advice given by official
of such during the attorney or his information him in his confidence
deceased marriage advice given which he may professional
person, or before thereon in the have acquired in character in the
such person course of, or with attending such course of
become of a view to patient in a discipline
unsound mind professional professional enjoined by his
employment; or capacity, which church
any fact the information was
knowledge of necessary to
which was enable him to act
acquired by the in that capacity
clerk, stenogra-
pher or secretary
in his capacity as
such

EXCEPTIONS (1) Civil case by (1) Civil case by

one against the One against the
other; other;

(2) Criminal (2) Criminal

case for crime Case for crime
committed by committed by
one against the one against the
other, or the other, or the
latter’s direct latter’s direct
 Evidence Handbook
Prof. Victoria Avena, 1st semester, AY 1999-2000
descendants / descendants /
ascendants ascendants

HOW Consent of the Consent of the Consent of the Consent of the Consent of the
DISQUALIFIC- spouse spouse client patient person making
ATION CURED confession

WHO MAY Client Patient

INVOKE /
OBJECT

MAY IT BE Yes, by failure to Yes Yes

WAIVED? make a timely
objection.

WHEN TO BE Before the

OBJECTED TO answer to the
question for its
revelation
 Evidence Handbook
Prof. Victoria Avena, 1st semester, AY 1999-
2000
EXCEPTIONS TO THE HEARSAY RULE:
(1) DYING DECLARATION

Requisites: (1) Death is imminent and declarant is conscious of that fact.

(2) The preliminary facts which bring the declaration within its scope
must be made to appear.
(3) The declaration relates to the facts or circumstances pertaining to the
fatal injury or death.
(4) Declarant would have been competent to testify had he survived.

(2) DECLARATION AGAINST INTEREST

Requisites: (1) Declarant must be deceased or unable to testify.

(2) The declaration must concern a fact cognizable by declarant.
(3) The circumstances must render it improbable that a motive to falsify
existed.

Admissible against: (1) Declarant;

(2) Declarant’s successors-in-interest;
(3) Third persons

(3) ACT OR DECLARATION ABOUT PEDIGREE

PEDIGREE: history of family descent which is transmitted from one generation to

another by both oral and written declarations and by traditions.

 Includes the ff.:

•
Requisites: (1) Declarant is dead or unable to testify.
(2) Necessity that pedigree be in issue.
(3) Declarant must be a relative of the person whose pedigree is in
question.
(4) Declaration must be made before the controversy occurred.
(5) The relationship between the declarant and the person whose
pedigree is in question must be shown by evidence other than such
act or declaration.

(4) FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE

Requisites: (1) There is controversy in respect to the pedigree of any members of a

family.
(2) The reputation or tradition of the pedigree of the person concerned
existed previous to the controversy.
(3) The witness testifying to the reputation or tradition regarding the
pedigree of the person concerned must be a member of the family of
said person, either by consanguinity or affinity.
 Evidence Handbook
Prof. Victoria Avena, 1st semester, AY 1999-
2000

(5) COMMON REPUTATION

Matters that may be established by common reputation:

(1) Facts of public or general interest more than 30 years old;

(2) Marriage and related facts;
(3) Individual moral character.

Requisites: (1) The facts must be of public or general interest and more than 30
years old.
(2) The common reputation must have been ancient, i.e. 30 years or one
generation old.
(3) The reputation must have been one 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.
(4) The common reputation must have been existing prior to the
controversy.

(6) PART OF THE RES GESTAE

(a) Spontaneous statements - statements or exclamations made immediately after

some exciting occasion by a participant or
spectator and asserting the circumstances of that
occasion as it is observed by him.

Requisites: (1) There must be a startling occurrence.

(2) The statement must relate to the circumstances of the startling
occurrence.
(3) The statement must be spontaneous.

(b) Verbal Acts - utterances which accompany some act or conduct to which it is
desired to give a legal effect.

Requisites: (1) The act or occurrence must be equivocal.

(2) Verbal acts characterize or explain the equivocal act.
(3) Equivocal act must be relevant to the issue.
(4) Verbal acts must be contemporaneous with equivocal act.

(7) ENTRIES IN THE COURSE OF BUSINESS

Requisites: (1) Entries must have been made at or near the time of the transaction to
which they refer.
(2) Entrant must have been in a position to know the facts stated in the
entries.
(3) Entries must have been made by entrant in his professional capacity
or in the performance of his duty.
(4) Entries were made in the ordinary or regular course of business or
duties.
(5) Entrant must be deceased or unable to testify.
 Evidence Handbook
Prof. Victoria Avena, 1st semester, AY 1999-
2000

(8) ENTRIES IN OFFICIAL RECORDS

(9) COMMERCIAL LISTS AND THE LIKE

(10)LEARNED TREATISES

TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING

AUTHENTICATION AND PROOF OF DOCUMENTS

When is evidence of the authenticity of a private document not necessary?

When the document is:

(1) more than 30 years old,

(2) produced from a custody in which it would naturally be found if genuine, and
(3) unblemished by any alterations or circumstances of suspicion. (Rule 132, Sec.
21)

How may the genuineness of handwriting be proved?

(1) It may be proved by any witness who believes it to be the handwriting of such
person because:

(a) he has seen the person write, or

(b) he has seen writing purporting to be his upon which the witness has acted or
been charged

and has thus acquired knowledge of the handwriting of such person.

(2) It may also be proved by way of comparison, made by:

(a) the witness; or

(b) the court
 Evidence Handbook
Prof. Victoria Avena, 1st semester, AY 1999-
2000
with writings admitted or treated as genuine by the party against whom the
evidence is offered, or proved to be genuine to the satisfaction of the judge.
(Rule 132, Sec. 22)

How may official records be proved?

(1) By an official publication thereof; or

(2) By a copy attested by the officer having the legal custody of the record, or by his
deputy.

Note: If the record is not kept in the Philippines, the attestation must be
accompanied with a certificate that such officer has the custody.

If the office in which the record is kept is in a foreign country, the certificate may
be made by:

(1) secretary of the embassy or legation;

(2) consul-general;
(3) consul;
(4) vice-consul;
(5) consular agent; or
(6) any officer of the foreign service of the Philippines stationed in the
foreign country in which the record is kept.

In all these cases, the certification must be authenticated by the seal of his office.
(Rule 132, Sec. 24)

How may a judicial record be impeached?

By evidence of:

(1) want of jurisdiction in the court or judicial officer;

(2) collusion between the parties; or
(3) fraud in the party offering the record, in respect to the proceedings.
(Rule 132, Sec. 29)

How must alterations be accounted for?

The party producing a document as genuine may show that the alteration:

(1) was made by another without his concurrence; or

(2) was made with the consent of the parties affected by it; or
(3) was otherwise properly or innocently made, or
(4) did not change the meaning or language of the instrument.

What is the effect of failure to explain alterations in a document?

The document shall not be admissible in evidence.