Special Rule Carved Out by Jurisprudence in Treating Affidavits as Hearsay Even if

Notarized.

An affidavit is merely hearsay evidence where its affiant/ maker did not take the witness
stand (Rosit v. Davao Doctor’s Hospital, G.R. No. 210445, December 7, 2015). While
affidavits that have been notarized are public documents if they are acknowledged before a
notary public, these are still considered hearsay unless the affiants themselves are placed in
the witness stand to testify thereon[5].

- Note: Unlike contracts or other documents involving transactions, which embody

the stipulations of the parties, an affidavit is actually an assertion which is akin to testimony
but only in written form. Thus, the wisdom behind the jurisprudence that considers an
affidavit as hearsay unless affirmed and confirmed by the affiant on the witness stand.

b.1.4. Requisites of Hearsay.

a. an out- of- court statement, oral, written or non verbal conduct, made by one other
than the one made by the declarant or witness testifying at the trial;

b. the out-of-court statement must be offered to prove the truth of the matter asserted in
the out-of-court statement[6]

b.1.5. “Purpose Test”. “The testimony of a witness regarding a statement made by another
person, if intended to establish the truth of the facts asserted in the statement, is clearly
hearsay evidence, it is otherwise if the purpose of placing the statement in the record is
merely to establish the fact that the statement was made or the tenor of such statement. For
example, W testified that he heard A call B a thief. W’s testimony would be hearsay if
offered to prove the truth of the fact asserted, that B is a thief. On the other hand, W’s
testimony would not be hearsay if offered only to prove the fact of utterance, that A called B
a thief.[7]”

b.1.6. Independently Relevant Statements. “Where, regardless of the truth or the falsity of a
statement, the fact that it has been made is relevant, the hearsay rule does not apply, but the
statement may be shown. Evidence as to the making of such statement is not secondary but
primary, for the statement itself may constitute a fact in issue, or be circumstantially
relevant as to the existence of such fact”[8].

The independently relevant statements may be grouped into two classes:

(1) Those statements which are the very facts in issue; and

(2) Those statements which are circumstantial evidence of the facts in issue.

b.1.6.1. Statements which are the very facts in issue. “Where the statements, or utterances of
specific words, are the facts in issue, the testimony of witnesses thereto is not hearsay. In
other words, if the fact sought to be established is, that certain words, as, for instance that a
certain statement was made by a party to the action as an admission of fact, or was made to
him as a notice, or under such circumstances as to require action or reply from him, the
testimony of any person who heard the statement is original evidence and not hearsay. Such
evidence is admitted for the purpose of establishing merely the utterance of the words, and
not their truth, but the admission in evidence of the words spoken is not to be used in
determining the issue of their truth.[9]

In a prosecution for slander, a witness may testify that he heard the accused utter the
slanderous words, for the making of the statements is the principal fact in issue and the
witness is called upon to testify as to a matter within his personal knowledge. There is here
no question of hearsay involved.[10]

b.1.6.2. Statements which are circumstantial evidence of the facts in issue. – The statements
from which the facts in issue may be testified to by witnesses without violating the hearsay
rule. Of this kind are:

(1) Statements of a person showing his state of mind, that is his mental condition,
knowledge, belief, intention, ill-will and other emotion.
(2) Statements of a person which show his physical condition, as illness and the like

(3) Statements of a person from which an inference may be made as to the state of mind of
another, that is, knowledge, belief, motive, good or bad faith, etc. of the latter;

(4) Statements which may identify the date, place, and person in question; and

(5) Statements showing the lack of credibility of a witness.

Explanations.

(1)Statements of a person showing his state of mind, that is his mental condition,
knowledge, belief, intention, ill-will and other emotion. – “A man’s state of mind or feeling
can only be manifested to others by countenance, attitude or gesture, or by sounds or words,
spoken or written. The nature of the fact to be proved is the same, and evidence of its proper
tokens is equally competent to prove it, whether expressed by aspect or conduct by voice or
pen. The existence of a particular intention in a certain person at a certain time being a
material fact to be proved, evidence that he expressed that intention at that time is as direct
evidence of the fact, as his own testimony that he then had that intention. After his death,
there can hardly be any other way proving it; and while he is still alive, his own memory of
his state of mind at a former time is no more likely to be clear and true than a bystander’s
recollection of what he then said. If the fact sought to be proved is not truth of the
statement, but the mental condition of the person making it the testimony of a witness
regarding such statement is not hearsay. In such a case, the making of the statement is
relevant irrespective of its truth or falsity.”

(2) Statements showing the speaker’s physical condition.- Statements of a person which may
fairly show his bodily condition at the time he made the statements are admissible as
circumstantial evidence of such condition. Wherever the bodily or mental feelings of an
individual are material to be proved, the usual expression of such feelings are original and
competent evidence. Those expressions are the natural reflexes of what might be impossible
to show by other testimony. If there be such other testimony, this may be necessary to set
the facts thus developed in their true light, and to give them their proper effect. As
independent, explanatory evidence, it is often indispensable to the administration of justice.

(3) Statements of a person from which the state of mind of another may be inferred. –
Statements of a person from which an inference may be drawn as to the state of mind of
another person, that is, knowledge, belief, motive, good or bad faith, etc. of the latter may
be testified to by a witness without violating the hearsay rule.
(4) Statements identifying the time, date, place, or person in question. – Statements which
may identify the time, date, place, and person in question may be testified to by a witness
without any violation of the hearsay rule.

(5) Statements of a witness impeaching his credibility. In some instances, statements made
out of court are admitted for the purpose of contradicting or impeaching a witness. X x x

(6) Evidence of acting upon a statement, not hearsay. – When proof of a statement is
introduced for the purpose of establishing the fact that a party relied and acted thereon, it is
not objectionable on the ground that it is hearsay.

(7) Statements made through interpreter, not hearsay. – While it is true that the
interpretation of the words of a witness testifying in a foreign language by one who is sworn
in court and translates the testimony to the tribunal is not obnoxious to the hearsay rule,
because both the original witness and the interpreter are under oath and subject to cross-
examination, yet where a witness is offered to testify to the statements of another person,
spoken in a language not understood by him, but translated for him by an interpreter, such
witness is not qualified, because he does not speak from personal knowledge. All that he can
know as to testimony which is in fact given in such a case is from the interpretation thereof
which is given by another person.

Note:

ü Objection to hearsay cannot be raised for first time on appeal.

ü “Hearsay evidence whether objected to or not has no probative value”[11].

Source: http://etreyes3law.blogspot.com/2017/02/etriiiremedial-law-review-lecture.html