Evidence Lecture: September 24

Evidence Lecture: September 24

Thursday, September 24, 2009

6:07 PM

Section 45 and 46: Review

*both published

*both Multiple hearsay

*should include industries, trades

Are journals included under Section 45?

-Section 46:

*it's treatise

*plus subject includes SCIENCE (scholarly: plus only History, law, science or art)

-Sectuib 45: commercial

*very volatile because it is used in trade

*What about electronic data banks shared by banks:

VAA: it is used by the industry of banking, but is it published under section 45?

VAA ulit: REE should not apply to Section 45, as REE specially applies to certain sections.

Testimony or Deposition at a Former Proceeding

Section 47 - TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING

The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him.

• Requisites:
1. Witness is dead or unable to testify
2. His testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests
3. The former case involved the same subject as that in the present case, although on different causes of action
4. The issues testified to by the witness in the former trial is the same issue involved in the present case
5. The adverse party had an opportunity to cross-examine the witness in the former case

• Subsequent failure or refusal to appear at the second trial, or hostility since testifying at the first trial ≠ inability to testify
• Inability should proceed from a grave cause almost amounting to death

Formerly presented: idea of separateness, no requirement that the previous proceeding already ended

On appeal: continuing

Is R23 (deposition in perpetuam): separate or same proceeding?

Separate!

Contempt: separate: special civil action!

Opinion Rule

GR: opinion of a witness not admissible

--why: R128.1: only matters of fact are admissible!

X:

1. Expert witness
2. Ordinary witness, under exceptional circumstances (4)

*identity of a person

*Handwriting

*Mental sanity of a person

(impression on EBCA)

If handwriting: what should the proponent make W show? That the W is familiar with the handwriting (show facts why W is familiar with the handwriting)

e.g. W is familiar with the handwriting because he has seen the handwriting many times

What if the NBI agent = W?

*if expertise used: under 49

*if personal knowledge used: under 50

QUALIFICATION:

-the process of establishing the expertise of the witness to be able to present him as an expert

Is it true that medical conditions always require expert witness under Sec49?

No. Res Ipsa Loquitur.

What about mental condition? Why also under Section 50?

Section 50 talks about the general kind of insanity which is observable by other persons

Section 49: if medical condition that is not readily observable by ordinary persons (e.g. ADHD, dementia, psychosis…)

If W presented to show emotional ties, would mental insanity be relavant?

NO. MENTAL, not psychological, not emotional sanity.

EBCA: why opinion allowed in this situations?

e.g. if a person is under the influence of alcohol, and you're asked about his appearance or behavior?

His speech is blurred, he walks in swaying, he smells of alcohol, he's red in the face…

---but these details are not explained that the person is under alcohol, the W maybe just describing a person under stupor of drugs…

BUT you can only give your opinion if you're competent to give it

e.g. A vs. B. Doctor examined A, found that he was cuckoo. Doctor left, cannot be found. Could B testify on what Doctor found?

---NO. hearsay. B doesnot have personal knowledge of the findings of the doctor + it's an out of court declaration presented for the truth (irrelevant if it's an opinion or a fact)

Character evidence

Section 51. Character evidence not generally admissible; exceptions: —

(a) In Criminal Cases:

(1) The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged.

(2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged.

(3) The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged.

(b) In Civil Cases:

Evidence of the moral character of a party in civil case is admissible only when pertinent to the issue of character involved in the case.

(c) In the case provided for in Rule 132, Section 14, (46a, 47a)

If witness presented Good Morale Character, would it boomerang against him?

NO. Baligtad. Only present Good Morale Character if his character as a witness is impeached. (R132,14)

On presentation of character evidence of the victim (criminal case)

e.g. rape

Defense present that the woman raped was lascivious. Would it prove that she consented?

e.g. libel

If the defense shows that the offended party has a loose mouth. The accused was only provoked to say the libelous statement

MORAL CHARACTER

-presumption: to do good or bad

-VAA: not philosophy, characterbeing moral or not, depending on the situation

…there are some offenses which do not refer to moral traits (because when we understand it in the general sense, all offenses are bad!)

-refer to R132.11 (it has to do with honesty, truth, integrity)

Back to slander: does it have something to do with moral character? If the slander or libel contains falsity, it would reflect on your character

e.g. sa libel

A says, "malandi si B, sumasama sa kung sino-sinong lalaki!"

B, knowing that it was not true, would say, "Chismosa ka! (blahblahblah, which would be slanderous)"

A sued B

B would show that A was the one who started it! She said something which is not true.

VAA: B's testimony/evidence is admissible as it would prove the probability or probability that B really committed slander/libel

Examples of offenses which does NOT involve a moral trait:

*offenses mala prohibita

*rape: no

*physical injuries

*VAWC: depends

*rebellion: no

*plunder: yes

---wherein character evidence not admissible

PRESUMPTIONS

RULE 131

Burden of Proof and Presumptions

RULE 131

Burden of Proof and Presumptions

Section 1. Burden of proof. — Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. (1a, 2a)

Burden of proof	Burden of evidence
Does not shift, remains throughout the trial (on COA)	Shifts from party to party depending upon the exigencies of the case
Generally determined by the pleading filed by the party	Determined *by the developments at the trial *by the provisions of the substantive law or procedural rules: admissions, presumptions, judicial notice
e.g. CRIMINAL: guilt beyond reasonable doubt CIVIL: preponderance of evidence ADMIN: substantial evidence

WHY there's burden of proof: for the court to determine WON the person who has the burden establishing the burden of proof has done so.

e.g. defense filed demurrer to evidence. Denied. Who has burden of evidence?

Defendant. He has now to present evidence to prove that he is not guilty.

Section 2. Conclusive presumptions. — The following are instances of conclusive presumptions:

(a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led to another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it:

(b) The tenant is not permitted to deny the title of his landlord at the time of commencement of the relation of landlord and tenant between them. (3a)

Conclusive presumption:

-the law does not allow to be contradicted

-if the other party presents evidence to contradict it, the evidence would be inadmissible!!!

On (b)

e.g. A (landlord) files a collection suit against B (tenant). B presents as defense that A is not his landlord, it's C, so he does not have to pay A.

His defense is not admissible...

Estopped!

Section 3. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:

(a) That a person is innocent of crime or wrong;

-presumption of innocents

(b) That an unlawful act was done with an unlawful intent;

-baligtad ng (a): pag may ginawa kang masama, intended un

(c) That a person intends the ordinary consequences of his voluntary act;

(d) That a person takes ordinary care of his concerns;

(e) That evidence willfully suppressed would be adverse if produced;

Requisites:

1. Material: not merely

*corroborative

*cumulative

*unnecessary

2. Party had opportunity to produce it
3. Party who had opportunity to produce it is the only party who has access to it: not available to both parties
4. Privilege not to produce it

(f) That money paid by one to another was due to the latter;

(g) That a thing delivered by one to another belonged to the latter;

(h) That an obligation delivered up to the debtor has been paid;

Obligation: it's the evidence of the obligation

e.g. PN, IOU

…debtor usually makes the PN, and the creditor keeps it as proof of the obligation of the debtor to him (so that he would be authorized to collect/demand action). If the PN is with the debtor na, it is presumed that the debtor already paid or completed the obligation for the creditor not be able to demand once again

(i) That prior rents or installments had been paid when a receipt for the later one is produced;

-VAA: presumption is that you're not dyslexic. Pay chronologically. It is normal that you don't want to be confused, so pay chronologically! You don't want to pay for December then September…

(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possess, or exercises acts of ownership over, are owned by him;

e.g. Robbery with homicide. Took wallet. Then A found to have the wallet. A is presumed to be the thief and the killer.

(k) That a person in possession of an order on himself for the payment of the money, or the delivery of anything, has paid the money or delivered the thing accordingly;

e.g. Negotiable Instrument, Bill of lading

Somebody drawn the instrument, you are the drawee. When the thing has already been presented to the drawee, it is presumed that the drawee complied with it

(l) That a person acting in a public office was regularly appointed or elected to it;

(m) That official duty has been regularly performed;

(regular performance of duties)

(n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction;

(presumption of proper jurisdiction)

(o) That all the matters within an issue raised in a case were laid before the court and passed upon by it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them;

(p) That private transactions have been fair and regular;

(q) That the ordinary course of business has been followed;

(r) That there was a sufficient consideration for a contract;

(s) That a negotiable instrument was given or indorsed for a sufficient consideration;

(t) That an endorsement of negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated;

(u) That a writing is truly dated;

(v) That a letter duly directed and mailed was received in the regular course of the mail;

(w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes, except for those of succession.

e.g. For insurance purposes.

For marriage: applicable - maximum!

The absentee shall not be considered dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.

The following shall be considered dead for all purposes including the division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aircraft with is missing, who has not been heard of for four years since the loss of the vessel or aircraft;

(2) A member of the armed forces who has taken part in armed hostilities, and has been missing for four years;

(3) A person who has been in danger of death under other circumstances and whose existence has not been known for four years;

(4) If a married person has been absent for four consecutive years, the spouse present may contract a subsequent marriage if he or she has well-founded belief that the absent spouse is already death. In case of disappearance, where there is a danger of death the circumstances hereinabove provided, an absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage. However, in any case, before marrying again, the spouse present must institute a summary proceedings as provided in the Family Code and in the rules for declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

E.g. there is a small tugboat which has to deliver some persons to Batangas during a storm. Only found tugboat afterwards, without the passengers. 4 years already passed.

Not under (1) because the vessel is not lost. But may be presumed under (3): show that the waves would be 20ft high and the tugboat found upturned

E.g. what about journalists and medical staff who are also in armed hostilities. Under (2)?

No. Under (3). There's a danger of death here!

In respect of marriage, the spouse present MUST HAVE A WELL-FOUNDED BELIEF, not a well-founded desire.

*the rules were old. Examples: entries in the course of business and the definition of the original of the document. During that time, there was no photocopier nor printer.

(x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact;

(y) That things have happened according to the ordinary course of nature and ordinary nature habits of life;

VAA: but laws of nature are also subject to judicial notice. Pano ngayon yan?

e.g. laws of nature that the court could take JN:

*gravity

*when there's smoke, there's fire

*when you boil water, it would evaporate

e.g. presumption: that when a land widens