Rules on Electronic Evidence (REE)
Functional equivalence
Non-discrimination
Section 1: scope:
-electronic document (ED)
-electronic data message (EDM)
Section 2: cases covered
Civil actions
Civil proceedings
Quasi-judicial
Administrative
Section 3:
-Supplemented: by rules of court
When it comes to admissibility:
-still Rules of court
When it comes to AUTHENTICATION:
-REE
*but REE also provides rules of admissibility: BER
Functional equivalent doctrine:
Rule 4.1
Rule of non-discriminate: we don't discriminate: deemed to include an electronic document if refers to writing, document….
-still preserve privileged nature even if became electronic
ED vs. EDM
EDM: 4 verb, 3 adverb
ED: 7 verb, 1 adverb (electronically)
Rule 4: BER
R4.1: when regarded as functional equivalent:
*printout
*output readable by sight or other means + it could reflect the data accurately
Can the printout be also readable by sight…?
Oo. Basta dapat it must be something that must be READ = DOCUMENT (WRITTEN expression)
When you say writing, does it have to be in a piece of paper (printout and output)?
VAA: readable by sight or by other means
e.g. laptop screen, brail
…readable by your eyes
COPY equivalent of the original
*SAME IMPRESSION AS THE ORIGINAL
*SAME MATRIX
*BY MECAHNICAL/ELECTRONIC RERECORDING
*BY CHEMICAL REPRODUCTION
*BY OTHER EQUIVALENT TECHNIQUES WHICH ACCURATELY REPRODUCES THE ORIGINAL
Which one is broader:
EDM: Information - BROADER!!!
ED: Information and representation, provided…3 things it creates
e.g. the video of Hayden Kho in USB
-EDM
-is it ED? It can prove and affirm a fact
…that is why ED is interchangeable with EDM
No definition of what is electronic! MCC gives clues to what is electronic
MCC industrial Sales
F: original pro-forma invoices and photocopy of the invoice sent through fax by MCC (not paid by Samyong)
-Samyong had 2 kinds of evidences: the originally faxed invoices and the photocopy - but they did not present both!!!
-when something is faxed to you, there's an "original" from the main source (the person who sent the information)
I: WON the fax copies (the ones received by Sanyong) are electronic documents under REE
(MCC argues that ephemeral electronic messages or communications include a telecopy, and those documents are telecopies)
VAA: Argument on it being ephemeral is out of place: it is not ephemeral!!!
H: FAX COPIES ARE NOT ELECTRONIC DATA MESSAGE NOR ELECTRONIC DOCuMENTS
Congress: wants the REE to cover paperless transactions
1. RA 8792: covers electronic commercial transaction
-this was discussed because the allegation was that this involved a electronic transaction
-discussion of history of the law: law is based on UNCITRAL MODEL LAW
-it was deleted, but was re-included in the IRR: (definition of a fax)
-but this was deleted in the REE!
Facsimile: tele-copy - you send a copy through a telephone line
What's wrong if the IRR included it back?
IRR should not go beyond the law it seeks to implement, therefore, VOID!
2. The law wanted to cover only paperless transactions
-facsimile machine:
*scan the image
*it would be transcoded through the modem
*then it would be sent using the cable
*the receiver would receive a printout
When it was scanned, in effect what did it do?
DIGITIZATION: converting the object scanned into bits and digits
"It works by digitizing an image—dividing it into a grid of dots. Each dot is either on or off, depending on whether it is black or white. Electronically, each dot is represented by a bit that has a value of either 0 (off) or 1 (on). In this way, the fax machine translates a picture into a series of zeros and ones (called a bit map) that can be transmitted like normal computer data. On the receiving side, a fax machine reads the incoming data, translates the zeros and ones back into dots, and reprints the picture. A fax machine is essentially an image scanner, a modem and a computer printer combined into a highly specialized package. "
-uses binary system
-the bits are the one transported through the phone line…
*the thing received in the other side was not ED , even if it became digitized…?
If you use a digital camera, it takes an image and stores it…
If you go through the ultrasound, whether you print the picture of the baby or not…
If you go through the scanner in the airport, nothing is inputted but there's a machine in a software
…all of these are EDs, but why are electronic and fax where not?
These all were created electronically. A fax came from the piece of paper, its contents were converted to digital information.
-it appears that if something from the outside world is recorded and digitized DIRECTLY to something, converted to bits etc, it is ED. But if it uses something like a paper to record the information or contents from the outside world, and then convert the information from the medium, i.e. the paper, it is not ED…
VAA: does not think it's sound
e.g. if there's a tape and you record something from the radio in the tape, then convert it to digital file through wires blah blah…
It appears that this is not an ED since you use a medium to record the information!!! (CONVERSION THEORY)
Strict interpretation of MCC: MCC only applies to pieces of paper because the aim of the law is to exclude paperless transactions from the scope of the law...
Can the pro-forma invoice "copy" (the one received by Sanyong - court said that it was a copy because the original was in the Philippines) be admissible under any other rule aside from REE?
VAA: still the original because it is what Ssanyong received! The issue is WHAT SSANYONG RECEIVED! The contents of what was received!!!
Rule 5: Authentication of ED: "private electronic document" (not defined, so does this mean that if PUBLIC electronic document, no need to authenticate? Why?)
1. Digitally signed: refers to system: ASSYMETRIC or PUBLIC CRYPTOSYSTEM
Is a Digital signature an electronic signature?
YES. Includes an electronic signature
-but sabi to authenticate, DIGITAL SIGNATURE LANG gagamitin!
Assymetric or public cryptosystem: two keys
-the system of DS implies sending: but do you have to send it for digital signature to appear?
Digital signature > applied to an electronic document through a PRIVATE KEY (applied from a certificate of authority)> then it is encrypted, cannot be read WHY ENCRIPT? So that it would be secured when sent!!! How to decrypt it: by applying the PUBLIC KEY (which corresponds to the private key; it is published in the website of the Certificate of Authority together with your name)
Assymetric: uses a key pair (private and public key)
Shell: the most basic computer in the computer network; from which the programs in the network…
2. Evidence that other appropriate security procedures or devices as may be AUTHORIZED BY THE SC
3. Evidence showing integrity and
RULE 8 - exception to hearsay…
What are business records
(b) "Business records" include records of any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit, or for legitimate or illegitimate purposes.
Section 1. Inapplicability of the hearsay rule. – A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses,
made by electronic, optical or other similar means
at or near the time of …
or from transmission or supply of information … (to whom? Interpretation 1: the encoder would provide the information…)
by a person with knowledge thereof, and
e.g. ENCODE
Secretary encoded the transaction between her boss and another businessman after the transaction
-she has personal knowledge of the transaction
-interpretation 1: the information was CREATED when the secretary encoded the document which became the business record. It becomes hearsay because when the business record would be presented before the court, it is hearsay because the secretary is not presented before the court
EMAIL
The sender of the email supplies the information. But the information is just temporarily supplied (when you're online).
So the email (the one online) is the evidence itself, you can present it before the court and it would be an exception to hearsay
e.g. what about the receipt in a department store… pasok sha sa "at…the time of transaction"
- Could it be "near the time of the transaction" but if it is so, the encoder must be the one who was involved or who has knowledge of the transaction…
-the business record should be testified on by the CUSTODIAN or other QUALIFIED WITNESS
WHEN PRESUMPTION OVERCOME (sabi ni ma'am, should not be "presumption" but ADMISSIBILITY):
*source (the encoder/information-provider) is untrustworthy
*method or circumstances of preparation, transmission …
EXAMINATION OF WITNESS:
-possibility of a witness testifying electronically…
REQUIREMENTS OF AN ELECTRONIC TESTIMONY
Is an email document (not the email message)automatically an ED?
Under MCC, it is not: if it was scanned piece of paper or photograph! (as long as no conversion made)
Note: basta 2 theory under MCC
1. Paper-based theory: as long as it is paperbased…plus converted
2. Conversion theory (strict theory): as long as it is converted…
EPHEMERAL EVIDENCE
"Ephemeral electronic communication" refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained.
Sa AUDIO, VIDEO and SIMILAR EVIDENCE:
-are these ELECTRONIC audio, video…
YES. Under REE eh…
• Why was it separately treated eh di naman pala ephemeral ang video and audio (kasi nga pede naman i-record eh)
VAA: Rule 11 gives you a rule with respect only to ephemeral evidence!!!
As long as video or audio are electronic, the rules of electronic document apply!
*technology develops so fast that REE becomes obsolete even before it was enforced!!!
NUEZ vs. APAO
-used text messages as evidence to show extortion
NPC vs. CODILLA
-photocopies are not electronic documents in REE
-photocopies of handwritten documents…
"By no stretch of the imagination can a person’s signature affixed manually be considered as information electronically received, recorded, transmitted, stored, processed, retrieved or produced. "
VAA: when you photocopy, exposure to light lang ng chemicals
RULE On EXAMINATION OF A CHILD WITNESS
-aims for the examination of the child witness to be child-friendly
*aids, courtroom procedure
Example of persons who would help the child
*Facilitator: pose questions to a child
*Interpreter
*Support person (maximum of 2)
*Guardian
Who must testify ahead?
If witness din sila: interpreter and support person
Techniques to help a child
1. Court atmosphere (SEC13)
2. Hearsay statement: basta may application
What form: in depth investigative interview…right after child abuse - not yet during a case...
(i) “In-depth investigative interview” or “disclosure interview” is an inquiry or proceeding conducted by duly trained members of a multi-disciplinary team or representatives of law enforcement or child protective services for the purpose of determining whether child abuse has been committed.
-hearsay…
3. Testimonial aids (SEC16)
4. Iba naman EMOTIONAL SECURITY ITEM
5. Leading questions allowed
6. Child allowed to narrate (narrative)
Sec30: Sexual abuse shield rule
a. Previous sexual behavior: part 2 of RIAA
b. Sexual predisposition: refers to promiscuity, liberated: prevent undue prejudice
DNA EVIDENCE
-establishes:
-IDENTITY
-Kinship
3 rules of Kinship
*If exclude the putative parent from paternity: CONCLUSIVE proof of non-paternity
*If DNA test results' value is less than 99.9%: CORROBORATIVE EVIDENCE of paternity
*If DNA test results' value is 99.9% or greater: DISPUTABLE presumption of paternity
DNA
-it is unique to a person
-biological sample: from an organic source (living part of your body)
DNA TESTING
GR: with court order
X: by government agencies
-post conviction DNA testing: only if it would result in the reversal or modification of the judgment of conviction
EXERCISES: The midterms!!!P was an abusive policeman who was also a wife-batterer. One day while his wife W was talking to Mrs. G on the cellphone he barked his usual orders for an immediate meal. When he heard W murmur; ''O, mare sige na ang aga aga pero may sumpong yata si compare me.' P slid into a fitful rage and pinted his gun at W, who then began to scream in terror. Begging P repeatedly not to hurt her, not t shoot her, saying 'P maawa ka, wagg mo ko saktan, wag mo ko barilin' to which P heatedly responded with recriminatins about her disloyal whistleblowing to G. Unbenknown to P, G was talking to W on her (G's) speakerphone, such that her G's law stydet daughter LS was hearing everything. LS immediately switched on her audio casstte recorder and caught the continuing harange on tape. Unfortunately in her panic W, tried to shield herself with her arms which P misinterpreted as intending to grapple with the gun so he swung at the arms of W. The gun accidentlly went off, killing W instantly. LS shut off the tape at once and she rushed to the residence of P and W.
At the trial against P for murder, the prosecution was trying to present the testimony o G that W repeatedly begged in terror 'wag mo ko saktan' to show P's intent to kill. However
1) The defense objects on the ground of hearsay in that W's words constitute an out of court statement, being offered by the person other than the declarant to prove the truth of such statement. The prosecution replies that thyese are not hearsay in that they are IRS as indicia of a state of mind of W. The defense argues that even if they show W's SOM, it is irrelevant/ Rule on defense objections, prosecution replies, defense arguments
SOM so not hearsay
2) Assume that the facts are modified as follows: W in fact grappled with P for the gun because W thought P would shoot her then W accidentally shot P. At the trial W presents G and LS and the tape to show self-defense, will your answers change
For self-defense: should prove the existence of the gun, the provocation…
-hearsay sha basta, but would fall under RES GESTAE (both part 1 and 2)
3) Defense also objects on the ground of RIAA in that the rights of P may not be prejudiced by the extra-judicial declaration of W
RIAA does not apply because it doesn't involve an admission
2. In the middle of 2008, C semt 18 year old S a demand letter, askin ghte latter to vacate the apartelle unit that he S and his father F had been occupuing for three years before F died in early 2007 for the reasn that F had already sold the same to him C since early 2006. In his reply leteer, S stated that the alleged 2006 deed of sale is a forgery and tha the unit subject thereof was duly inherited by him.
C filed an action to recover possession based on the alleged sale, attaching an alleged copy thereof to the complaint, and presenting the original of said alleged deed of sale during the pre-trial. In his answer, S specifically denied the athenticity and due execution of the said deed under oath, alleging that the same was falsifified and that C is a liar. C died before the could testify.
Would you have any objection/ if at the trial.
a. W the wife if C comes home from abroad and testifies on the signature of C on the deed of sale as well as the payments she made thereon to F
-no objections
-not under Marital privilege (130.22) nor 130.24
b. A notary public testifies, indentifying the signatures of C and F on the deed of sale
-notary public not covered by privileged communication prohibition under R130.24(b)
3. When A died, he left behind three minor legitimate children, W, X, and Y and on e adult illegitimate child Z. Z instituted special proceedgins for the partition of A;s estate and, pendente lite, his appointment as administrator. W X Y opposed in their capacity as legitiamte children.
Upon Z's presentation of evidence at the trial, W X Y objected to--
i. Any and all testimony from Z regarding any alleged extra0judicial act or declaration offered to show that Z was a'S illegitimate child by reason of DMS
-DMS does not apply. Partition is not a "claim or demand" upon the estate of the deceased
ii. Testimony by D, lng time driver of A to the effect that one day in the recent past, during breakfast, A just bowed his head and remained silent when his youngest child Y (whom Z admits in his pleadings is a legitimate child) confronted and asked him (a) whether or not it is true that he A has an illegitimate child by the name of Z, on the ground that Rule 130.39 refers to acts declarations, not omissions, and likewise invoking the requirements of evidence aliunde under the same rule.
-obiter: This rule is actually governed by admissions by silence "who does or says nothing"
-R130.39: does not apply because you must show evidence aliunde to show relationship before showing it…
On new year's eve, congressman V was a visitor in the household C. After downing several drinks, V became so unruly that he ended up smashing the crystal collection of C. It turned out that V had taken shabu earlier such that he was gloriously hihg.
Unfrotunaltely in his glorious rampage, V had cut himself with a 5000$ broken bottle in the neck, such that he was rshed to the hospital. Before the octor would sew his gaping wound, V had to tell the anaestjesiologist A that he had just imbibed drugs & alcohol. (samplex)
-already in the samplex. Would blacken the reputation…
Capt. Marlon Mendoza question… COMELEC Commissioner Virgilio Garcilliano during the 2004 pre-election period…
"Aprub na 'yong budget na P300 M na binigay ni Bong Pineda para siguraduhin ang panalo ni GMA"
If MM were to be presented by the prosecution in crresponding criminal cases agaisnt VG…would you object to its admissibility?
SAGOT!!! It is an admission (the statement itself shows that he received something + act of toasting….)
-it the other officials were also impleaded, RIAA would apply but this would fall under exceptions: acts during the conspiracy!
Zuce example:
a. Hearsay but falls under exemption: R130.38 (declaration against interest - he would be liable for bribery) - In the case of Bernal, the victim was the person whose interest was declared against!
-the testimony (declaration) is simply the mode by which you declare something against interest
VAA: hearsay under R130.38 also includes actions and documents, not only declarations
Accused A, B and C were detained at the city jail during their PI for illegal recruitment. While there, police got B and C to point to A as the illegal recruier-employer, on which occasion, A just bowed his head and kept silent. At the trial, the prosecution will present B and C to relate to the foregoing. Admissible?
Since PI, pede shang di magsalita because the accused has rights to remain silent during PI.
1.a. Right before one hearing during the trial itself, outside the courtroom, B and C again expressly pointed to A in front of media personnel, A simply turned away and avoided the cameras. Admissible?
Is this admission by silence? No. He is not bound to give a statement!
Accused A B and C were accused of murder. During trial, A sought and successfully got to be discharged as state witness, after executing an affidavit… basta B and C who were impleaded in an affidavit
Affidavit was already done DURING TRIAL. You only need counsel during custodial investigation.
-hearsay ung affidavit, made out of court.
-RIAA: but conspiracy if proven should be an exception
#3: not valid, thus incompetent thus inadmissible
Note; only victim can invoke it
On ZONA:
-if search NOT in plain view: incompetent
If in plain view: fruit of the poisonous tree
If you were asked to sign the sachet, you are pinpointed so custodial investigation na.
On H and W carnival…C was made sisi…W had "confessed" that C killed H.
-not RIAA. W did not admit anything.
-if the affidavit presented, not W. Inadmissible. Hearsay.
Basta pag tinanong if admissible yung evidence:
check out palagi if relevant and competent!!!
(not on rebuttal, not on cross...)
on pager: on time: is it admissible against defense?
YES
A farmer was killed in themountains, rebel B, leading C D E and 20 other armed men visited the small police station in the poblacion bordering the mountains and delivered a written manifasto ....
RIAA
-verbally delivered: not RIAA. Admissions/R130.33 confession
-verbally made statement while dringking...on invitation of police: RIAA
-hot pursuit: RIAA...
-relates to cousin: ...
Direct evidence stronger than circumstantial?
not necessarily...?
Thursday, October 15, 2009
Monday, October 12, 2009
TIPS NI SIR AUTEA ON HOW TO MAKE PLEADINGS FOR INTERNATIONAL ARBITRATION
Should present statements with clarity
substance
-claim
-law
as to form: adjust to the international arena
1. No need for "explanation"
example: if you're going to arbitrate before an international tribunal wearing a barong tagalog, your opponents and the panel might think you're poor.
...packaging is part of the practice
...BOTTOMLINE: Don't include local procedure if not necessary
2. Use language of the rules applicable
example: if the UNCITRAL provides for "points at issue" don't put "Points in issue"
...it would show your competence to interact in the international arena
example: if the people around you pronounce competence like "kom-pe - tans", then say it like so. Pronouncing it like "com-pe-tens" would make you look like a promdi.
3. don't put thank you, blah blah at the end of your pleading
history lesson: do you know that only filipinos bow when they pass in front of persons? so as not to block view?
this was carried on from our colonial masters! before, indios (native filipinos) were not allowed to be at par with their white masters so they need to bow down so as not to obstruct the view of the masters. By repeating it, we are implicitly saying that we are inferior to them.
...so in international arbitration, by thanking the panel and by making them feel superior, they might think you're not that aggressive in making your claim...
4. better to have table of contents, especially in pleadings which consists of numerous pages.
-this would not only help the panel of arbitrators but also you
5. as much as possible, make your statements concise and brief
para di nakakalito
6. better to have a preliminary statement saying the basis for availing arbitration and governing law (example: governed by uncitral rules, etc.)
7. double spaced, bigger font
-most of the arbitrators are old...
8. better to put subheadings
-it would help you and the arbitrators would know what is the topic of the part that they are reading
9. relief sought should be "approximated", not exact
-to give room for adjustments
10. better if you say "at least"... or "not less than" ... when stating a claim. this would entitle you to more award
11. list of attached documents: better if something like this placed before the attachments
-as to table of contents, not sure if this should also be in the table of contents
12. better if put in the relief the arbitration fees
13. "relevant" facts
-so that you won't be accused of not including all the facts and omitting facts.
14. Add a "reservation" to add more facts or supplement more facts if ever it is deemed not sufficient
15. if detailed, dapat malaki space and font (para mas madali mabasa)
substance
-claim
-law
as to form: adjust to the international arena
1. No need for "explanation"
example: if you're going to arbitrate before an international tribunal wearing a barong tagalog, your opponents and the panel might think you're poor.
...packaging is part of the practice
...BOTTOMLINE: Don't include local procedure if not necessary
2. Use language of the rules applicable
example: if the UNCITRAL provides for "points at issue" don't put "Points in issue"
...it would show your competence to interact in the international arena
example: if the people around you pronounce competence like "kom-pe - tans", then say it like so. Pronouncing it like "com-pe-tens" would make you look like a promdi.
3. don't put thank you, blah blah at the end of your pleading
history lesson: do you know that only filipinos bow when they pass in front of persons? so as not to block view?
this was carried on from our colonial masters! before, indios (native filipinos) were not allowed to be at par with their white masters so they need to bow down so as not to obstruct the view of the masters. By repeating it, we are implicitly saying that we are inferior to them.
...so in international arbitration, by thanking the panel and by making them feel superior, they might think you're not that aggressive in making your claim...
4. better to have table of contents, especially in pleadings which consists of numerous pages.
-this would not only help the panel of arbitrators but also you
5. as much as possible, make your statements concise and brief
para di nakakalito
6. better to have a preliminary statement saying the basis for availing arbitration and governing law (example: governed by uncitral rules, etc.)
7. double spaced, bigger font
-most of the arbitrators are old...
8. better to put subheadings
-it would help you and the arbitrators would know what is the topic of the part that they are reading
9. relief sought should be "approximated", not exact
-to give room for adjustments
10. better if you say "at least"... or "not less than" ... when stating a claim. this would entitle you to more award
11. list of attached documents: better if something like this placed before the attachments
-as to table of contents, not sure if this should also be in the table of contents
12. better if put in the relief the arbitration fees
13. "relevant" facts
-so that you won't be accused of not including all the facts and omitting facts.
14. Add a "reservation" to add more facts or supplement more facts if ever it is deemed not sufficient
15. if detailed, dapat malaki space and font (para mas madali mabasa)
Thursday, October 8, 2009
OCTOBER 8 EVIDENCE
CORRECTIONS: ZULUETA CASE SHOULD HAVE BEEN SALAMEYA??? (BASTA DI ZULUETA)
CARAPEN: dapat daw probative value of testimony of relatives; ma'am was referring to Buduhan
Arcilla vs. Teodoro was in the bar last Sunday
Presumptions: review
CONCLUSIVE: child born during wedlock is legitimate: even mother could not declare that the child is not legitimate, UNLESS impossibility of access between husband and wife
(but you don't have to resort to this presumption with DNA Evidence)
REFER TO THE DOCUMENTS:
*presumption: duly dated presumption
*sent…does not apply to electronic evidence, messages: it doesn't follow that when a person sent you a message, you have received it? NO.
CLARIFICATION
Sec7, last sentence
Re-direct: supplement or explain
BUT you go beyond this with the court's discretion.
WHAT DOES THIS MEAN? It's the call of the court?
Ma'am tells something about impartiality of the court. Court asks questions to determine facts, not to help another party.
Example
Collection suit: A vs. B
A presented IOU, testified…
Prove:
-execution
-receipt of B
-nonpayment and other damages and costs
B denied under oath
-never executed the IOU presented by A (FALSIFICATION): He made an IOU BUT FOR P1M NOT FOR P5M
-AFFIRMATIVE DEFENSE: PRESCRIPTION
ON CROSS of A: subject matter would be the
*statements made on the direct examination, or connected therewith, with sufficient fullness
*freedom to test his accuracy and truthfulness
Freedom from interest or bias, or reverse
*elicit all important facts bearing upon the issue
…may include impeachment of witness…e.g. black witness in The Verdict
it the aim is to trap, the only limitations is:
*BILL OF RIGHTS OF THE WITNESS
*can't ask misleading questions: why not allowed: It is unfair! It would not contribute to the ferreting out of the truth
-you should build your case through the witness, not the counsel. Establish facts through your witness, not the lawyer.
-why bawal misleading: the witness must have made mistakes just because he was confused, not because he was not telling the truth. And the judge may also be confused!
WHEN YOU RE-DIRECT: limit to those taken up during the cross. But if you do not, it is subject to the discretion of the court
*sample cross
"portable safe"
"The technique of cross is to trap. If you don't know what the witness would say, don't cross" - VAA
*leading questions does not depend on WON the question is answerable by yes or no. It depends on WON the fact already was established.
*in Re-direct, can ask other matters you forgot to ask to ask the witness during her DIRECT EXAMINATION! But is should be explained to the court because you're wasting the court's time! Possible reasons: inadvertent negligence, full unavailability of the witness
When you rehabilitate a witness impeached during cross exam, how do you rehabilitate the credibility of the witness? (on GR, THI)
Present other witnesses to contradict the evidence presented to impeach the adverse party's witness
EVIDENCE IN CHIEF Direct Cross Re-direct Re-cross | DEFENSE EVIDenCE Direct Cross Re-direct Re-cross |
REBUTTAL Direct Cross Re-direct Re-cross | SURREBUTTAL Direct Cross Re-direct Re-cross |
Section 11: only refers to ADVERSE PARTY's WITNESS, not to the adverse party
- CE
- GR
BC: THI
- PIS
X: PWA
-can you use the same method to impeach the ADVERSE PARTY HIMSELF?
YES, but limited by Section 51
-plus take note if it involves a natural or juridical person
*THE ONLY MODE TO IMPEACH THE ONE WHO impeached your witness is through CONTRADICTORY EVIDENCE (CE)!
-can one show the plaques, awards, etc….to establish good character?
VAA: YES
R130.47: testimony in a former proceeding
-former proceeding, same parties, same subject matter
-basta may chance to cross
Vs. RULE 23.4(c)
-can present the deponent as a witness for any purpose which was stated therein
-is this an exception to the hearsay rule
-conditions only when use the deposition for your benefit, not to attack another
Vs. RULE 132.11 (PIS)
If the PIS happens to be a deposition, even if it is in the present case, it can be used to impeach the deponent himself.
If under Rule 23.4, can use the deposition against the adverse party.
?What if the deponent is not a party, how can you say that it is an admission that can be used against a party?
If it is an exception to RIAA > co-conspirator, shared interest…
SECTION 12, R132
Last paragraph: limited conduct of cross, NO COURT DISCRETION so this is ABSOLUTe!!!! Only on matters touched upon the direct.
DI ba sabi sa cross, kahit ano pede itanong sa ADVERSE PARTY on the witness stand?
It would be unfair to establish a claim from the adverse party. Limited ang "cross" kuno kasi naging adverse party na yung kala mo witness mo. And during cross, you can ask leading questions so unfair na. mas madali to build your case!!!
-if the lawyer of the adverse party still ask questions aside from those covered during the direct:
GR: Not objectionable under the general rule: SECTION 6
X: if became a hostile witness, under last paragraph under SECTION 12
If you are cross examining a person regarding a contract whose original you didn't bring to court, can you do that or is it objectionable?
( You can ask anything on cross except those violating the bill of rights of the witness and misleading)
-is the photocopy misleading????
YES: It assumes the fact that the original document exists when it has not yet proven to exist
…next day, you bring the original…BER applies? NO. You are not presenting it!
-MISLEADING pa rin, should first offer the evidence for it to be part of the records…?
OFFER:
*on Witness: offer even before start of testimony…
*after everything, saka palang offer evidence
*When you confront somebody on cross, your only goal is to impeach the witness of the other party! You're not presenting your witness yet, kinocross mo nga eh!!!
(try reading P v. MOLO where there are examples of cross…)
OCTOBER 8 EVIDENCE
CORRECTIONS: ZULUETA CASE SHOULD HAVE BEEN SALAMEYA??? (BASTA DI ZULUETA)
CARAPEN: dapat daw probative value of testimony of relatives; ma'am was referring to Buduhan
Arcilla vs. Teodoro was in the bar last Sunday
Presumptions: review
CONCLUSIVE: child born during wedlock is legitimate: even mother could not declare that the child is not legitimate, UNLESS impossibility of access between husband and wife
(but you don't have to resort to this presumption with DNA Evidence)
REFER TO THE DOCUMENTS:
*presumption: duly dated presumption
*sent…does not apply to electronic evidence, messages: it doesn't follow that when a person sent you a message, you have received it? NO.
CLARIFICATION
Sec7, last sentence
Re-direct: supplement or explain
BUT you go beyond this with the court's discretion.
WHAT DOES THIS MEAN? It's the call of the court?
Ma'am tells something about impartiality of the court. Court asks questions to determine facts, not to help another party.
Example
Collection suit: A vs. B
A presented IOU, testified…
Prove:
-execution
-receipt of B
-nonpayment and other damages and costs
B denied under oath
-never executed the IOU presented by A (FALSIFICATION): He made an IOU BUT FOR P1M NOT FOR P5M
-AFFIRMATIVE DEFENSE: PRESCRIPTION
ON CROSS of A: subject matter would be the
*statements made on the direct examination, or connected therewith, with sufficient fullness
*freedom to test his accuracy and truthfulness
Freedom from interest or bias, or reverse
*elicit all important facts bearing upon the issue
…may include impeachment of witness…e.g. black witness in The Verdict
it the aim is to trap, the only limitations is:
*BILL OF RIGHTS OF THE WITNESS
*can't ask misleading questions: why not allowed: It is unfair! It would not contribute to the ferreting out of the truth
-you should build your case through the witness, not the counsel. Establish facts through your witness, not the lawyer.
-why bawal misleading: the witness must have made mistakes just because he was confused, not because he was not telling the truth. And the judge may also be confused!
WHEN YOU RE-DIRECT: limit to those taken up during the cross. But if you do not, it is subject to the discretion of the court
*sample cross
"portable safe"
"The technique of cross is to trap. If you don't know what the witness would say, don't cross" - VAA
*leading questions does not depend on WON the question is answerable by yes or no. It depends on WON the fact already was established.
*in Re-direct, can ask other matters you forgot to ask to ask the witness during her DIRECT EXAMINATION! But is should be explained to the court because you're wasting the court's time! Possible reasons: inadvertent negligence, full unavailability of the witness
When you rehabilitate a witness impeached during cross exam, how do you rehabilitate the credibility of the witness? (on GR, THI)
Present other witnesses to contradict the evidence presented to impeach the adverse party's witness
EVIDENCE IN CHIEF Direct Cross Re-direct Re-cross | DEFENSE EVIDenCE Direct Cross Re-direct Re-cross |
REBUTTAL Direct Cross Re-direct Re-cross | SURREBUTTAL Direct Cross Re-direct Re-cross |
Section 11: only refers to ADVERSE PARTY's WITNESS, not to the adverse party
- CE
- GR
BC: THI
- PIS
X: PWA
-can you use the same method to impeach the ADVERSE PARTY HIMSELF?
YES, but limited by Section 51
-plus take note if it involves a natural or juridical person
*THE ONLY MODE TO IMPEACH THE ONE WHO impeached your witness is through CONTRADICTORY EVIDENCE (CE)!
-can one show the plaques, awards, etc….to establish good character?
VAA: YES
R130.47: testimony in a former proceeding
-former proceeding, same parties, same subject matter
-basta may chance to cross
Vs. RULE 23.4(c)
-can present the deponent as a witness for any purpose which was stated therein
-is this an exception to the hearsay rule
-conditions only when use the deposition for your benefit, not to attack another
Vs. RULE 132.11 (PIS)
If the PIS happens to be a deposition, even if it is in the present case, it can be used to impeach the deponent himself.
If under Rule 23.4, can use the deposition against the adverse party.
?What if the deponent is not a party, how can you say that it is an admission that can be used against a party?
If it is an exception to RIAA > co-conspirator, shared interest…
SECTION 12, R132
Last paragraph: limited conduct of cross, NO COURT DISCRETION so this is ABSOLUTe!!!! Only on matters touched upon the direct.
DI ba sabi sa cross, kahit ano pede itanong sa ADVERSE PARTY on the witness stand?
It would be unfair to establish a claim from the adverse party. Limited ang "cross" kuno kasi naging adverse party na yung kala mo witness mo. And during cross, you can ask leading questions so unfair na. mas madali to build your case!!!
-if the lawyer of the adverse party still ask questions aside from those covered during the direct:
GR: Not objectionable under the general rule: SECTION 6
X: if became a hostile witness, under last paragraph under SECTION 12
If you are cross examining a person regarding a contract whose original you didn't bring to court, can you do that or is it objectionable?
( You can ask anything on cross except those violating the bill of rights of the witness and misleading)
-is the photocopy misleading????
YES: It assumes the fact that the original document exists when it has not yet proven to exist
…next day, you bring the original…BER applies? NO. You are not presenting it!
-MISLEADING pa rin, should first offer the evidence for it to be part of the records…?
OFFER:
*on Witness: offer even before start of testimony…
*after everything, saka palang offer evidence
*When you confront somebody on cross, your only goal is to impeach the witness of the other party! You're not presenting your witness yet, kinocross mo nga eh!!!
(try reading P v. MOLO where there are examples of cross…)
Evidence Notes dated October 6, 2009
- A child born before 180 days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within 300 days after the termination of the former marriage.
- A child born after 180 days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within 300 days after the termination of the former marriage.
- 180 days after the solemnization of the 2nd marriage: relevant: pertains to the date of conception, as it takes at least 6 months for a baby to live outside mom's womb
- 300 days after the termination of the former marriage
- PHYSICAL TERMINATION: Death of the other spouse
- LEGAL TERMINATION
- Declaration of nullity of marriage
- Presumptive death of one spouse, judicially declared
- Annulment: deemed terminated from the point of judgment
- Foreign divorce
- 2nd marriage when the spouse presumptively presumed
- If both were under the age of 15, the older is deemed to have survived;
- If both were above the age of 60, the younger is deemed to have survived;
- If one is under 15 and the other is above 60, the former is deemed to have survived;
- If both be over 15 and under 60, and the sex is different, the male is deemed to have survived; if the sex is the same, the older;
- NO succession issues
- No particular circumstances from which one can refer as to who died first: Absolutely no way to determine: if there's another way, don't use the presumption
- WHERE:
- Wreck
- Battle
- Conflagration
- Any other calamity
- Infer from strength/age/sex
- Regularity
- Good Faith
- SHE DID NOT KNOW that the tree was dead!
- Granting that the tree is dead and she knew of it, SHE ALREADY ASSIGNED IT!
- To be admissible, testimony of a witness must be given in open court
- XCPT that such testimony may be supplanted:
- Testimony of witness should be elicited by questions of counsel
- But Court itself may propound questions or may suggest questions to counsel
- To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor;
- Not to be detained longer than the interests of justice require;
- Not to be examined except only as to matters pertinent to the issue;
- Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or
- Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. (3a, 19a)
- Witness cannot refuse to answer questions material to the inquiry even if it may tend to establish a claim against him
- But may refuse if:
- Under the right against self-degradation unless:
- Such question is directed to the very fact in issue
- Refers to his previous final conviction or offense
- Under the right against self-incrimination
- Criminal cases – Rule 115 Section 1(e): accused may refuse to take the stand altogether
- Accused: may be with reference to the offense involved in the same case wherein he is charged or to an offense for which he may be charged and tried in another case
- Witness: offense involved is one for which he may be tried in another case
- Right should be seasonably invoked and may be waived
- Other cases/proceedings – a party may be compelled to take the stand but he may object to incriminating questions
- He could have refused to testify altogether
- Therefore, he waived his right
- Also, issue was raised during cross-exam, hence she did not waive the right
- “unless otherwise provided by law” – refers to immunity statutes wherein the witness is granted immunity from criminal prosecution
- Direct examination by the proponent;
- Cross-examination by the opponent;
- Re-direct examination by the proponent;
- Re-cross-examination by the opponent.
- A witness may be cross examined by the adverse party not only as to matters stated in the direct examination but also as to matters connected therewith, and this should be allowed to do with sufficient fullness and freedom to test the witness’ accuracy, truthfulness and freedom from interest or bias, and also to elicit from him any important fact bearing upon the issue
- American rule: cross-exam must be confined to matters inquired about in direct
- English rule: witness may be cross-examined not only upon matters relevant to the issue
- This jurisdiction – more on English rule
- Unwilling/hostile/adverse party witness – cross examination shall only be on the subject of his examination-in-chief
- Same as accused testifying on his own behalf
- Question which assumes facts not on the record:
- If on cross examination – objectionable for bring misleading
- If on direct examination – objectionable for lack of basis
- Recall based on discretion of the court
- But recall is a matter of right if
- On cross examination;
- On preliminary matters;
- When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant,
- Of an unwilling or hostile witness; or
- Of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.
- LEADING QUESTION – one which suggests to the witness the answer desired
- May cause the witness, by reacting to an inference in his mind, to testify in accordance with the suggestion by the question
- Answer may be “rather an echo of the question than a genuine recollection
- Testimony on direct examination elicited through leading questions has little probative value
- MISLEADING QUESTION – one which assumes facts not in evidence or without sufficient basis or which assumes testimony or proof which has not been given
- Party can impeach adverse party’s witness by:
- Contradictory evidence – other testimony of the same witness, or other evidence presented by him in the same case, but not the testimony of another witness (VAA: Pede naman kahit ibang testimony)
- Evidence of prior inconsistent statements –statements, oral or documentary, made by the witness sought to be impeached on occasions other than the trial in which he is testifying
- “Laying the predicate”
- By confronting him with such statements, with the circumstances under which they were made
- By asking him whether he made such statement
- By giving him a chance to explain the inconsistency
- Impeachment is incomplete if witness is not given the chance to explain the discrepancy
- But defect is waived if no objection on that ground is raised when the document involved is offered for admission
- No need to lay the predicate if the prior inconsistent statement appears in a deposition of the adverse party and not a mere witness
- Statements are in the nature of an admission
- Juan Ysmael & Co., Inc. vs. Hashim (50 Phil 132): Where previous statements of a witness are offered as evidence of an admission, and not merely to impeach him, the rule on laying the predicate does not apply
- Evidence of bad character
- evidence of bias, interest, prejudice or incompetence
- In case of a hostile witness
- Where the witness is the adverse party or the representative of a judicial person which is the adverse party
- When the witness is not voluntarily offered but is required by law to be presented by the proponent, as in the case of a subscribing witness to a will
- Party can impeach his own witness only by:
- evidence contradictory to his testimony
- Evidence of prior inconsistent statements
- In case of hostile/adverse party/involuntary witnesses – can also be impeached by other modes of impeachment
- “Laying the predicate”
- By confronting him with such statements, with the circumstances under which they were made
- By asking him whether he made such statement
- By giving him a chance to explain the inconsistency
- Impeachment is incomplete if witness is not given the chance to explain the discrepancy
- But defect is waived if no objection on that ground is raised when the document involved is offered for admission
- No need to lay the predicate if the prior inconsistent statement appears in a deposition of the adverse party and not a mere witness
- Statements are in the nature of an admission
- Juan Ysmael & Co., Inc. vs. Hashim (50 Phil 132): Where previous statements of a witness are offered as evidence of an admission, and not merely to impeach him, the rule on laying the predicate does not apply
That things have happened according to the ordinary course of nature and the ordinary habits of life;
Example: ORDINARY HABITS OF LIFE
…that you sleep at night
…that you'll have ridges on your nose when you use glasses regularly
"aa. That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage;"
ROC | Civil Code |
No time period provided | 5 year period |
Rule of procedure | Rule of substantive law |
Disputable presumption | Just provides for a ground where no marriage license is necessary; does not provide for a presumption |
bb. That property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, has been obtained by their joint efforts, work, or industry;
(compare with the following)
NCC
Art. 144. When a man and a woman live together as husband and wife, but they are not married, or their marriage is void from the beginning, the property acquired by either or both of them through their work or industry or their wages and salaries shall be governed by the rules on co-ownership.
FC
Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife *without the benefit of marriage or *under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.
In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation.
When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. (144a)
Art. 148. In cases of cohabitation not falling under the preceding Article (meaning: they are not capacitated to marry each other), only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit.
If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her shall be forfeited in the manner provided in the last paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.
***
Why presumed to have been obtained through joint EWI:
-even if wife did not contribute financially (as it is usually the wife who stays at home), wife presumed to have taken care of the household chores - so may contribution (see FC provisions, it explains a lot)
e.g. What if the man and a woman, capacitated to marry each other and lives exclusively with each other, it's just that they are not married or their marriage is void, jointly contribute financially to the acquisition of a house and lot. The man declares that he owns 90% of the property. Is the presumption relevant?
CHA: YES. The woman could claim that it is presumed that they have obtained the house and lot through their joint efforts, as presumed by law, and it is on the man to prove otherwise (i.e. that he owns 90% of the property as he contributed that proportion). (Ma'am didn't give any answer so I tried to do so)
JOINT: is this not equivalent to EQUAL shares?
VAA: contemplate equal shares, or else they are worse off than men and women who are not capacitated to marry but enjoy the presumption that they equally share their properties
cc. That in cases of cohabitation by a man and a woman who are *not capacitated to marry each other and who have acquired property through their actual joint contribution of money, property, or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal;
CHA: similar to Family code provision
"NOT CAPACITATED to marry each other"
-does not involve a situation where the other person is married (that's why they are not capacitated to marry each other)
-if the other person is married, in accordance with the family code, the share of the guilty person from the co-ownership shall accrue to the ACO of the valid marriage
"ACTUAL JOINT CONTRIBUTION"
-should prove the fact that actual contribution of money, property or industry was provided for the presumption to apply that their contributions and shares are equal (unless they prove that they possess more than just 50% of the share)
dd. That if the marriage is terminated and the mother contracted another marriage within 300 days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary:
Cutoff points
If born BEFORE 180 days (6 months) after 2nd marriage + born WITHIN 300 days (10 months) after end of 1st marriage = child conceived during 1st marriage
If born AFTER 180 days (6 months) after 2nd marriage + born WITHIN 300 days (10 months) after end of 1st marriage = child conceived during 2nd marriage
e.g. In civil code:
Art. 269. Only natural children can be legitimated. Children born outside wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other, are natural.
Does this apply to presumptions?
NO. IRRELEVANT AND DIFFERENT. ROC provision refers to the termination of 1st marriage while in CIVIL CODE, there's a subsequent marriage which legitimizes a child born when there's no marriage yet. (so if sa ROC, terminate marriage, sa NCC, start pa lang)
When marriage may be TERMINATED
VAA: if the child was born after 180 days after 2nd marriage but born after 300 days after the 1st marriage, is the child presumed a legitimate child of the second marriage?
NO. NO PRESUMPTION AS TO LEGITIMACY OR ILLEGITIMACY. (R131.4)
Sec.4 No presumption of legitimacy or illegitimacy. There is no presumption of legitimacy or illegitimacy of a child born after three hundred days following the dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation.
(compare with CC and FC)
CC
Art. 261. There is no presumption of legitimacy or illegitimacy of a child born after three hundred days following the dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or the illegitimacy of such child must prove his allegation.
FC
Art. 169. The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy.
"(ee) That a thing once proved to exist continues as long as is usual with the things of that nature;"
-refers to longetivity
"USUAL"
-there must be a basis, a track record
VAA: does this cover human life?
No. You have to die at some point. It falls under (y) [that things happen according to the ordinary course of nature…]
"(gg)That a printed or published book, purporting to be printed or published by public authority, was so printed or published;"
PUBLIC AUTHORITY- institution which has authority to publish BOOKS (note: not just anything, it must be in book form, which would include manuals, etc)
e.g. National Law Register published by the Law Center
Official Gazette
VAA: does this apply to foreign books?
NO. (hh) implicitly include foreign books.
(hh) That a printed or published book, purporting to contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases;
-refers to "country", does implying that it is another country aside from the Philippines…a foreign country
-reports of cases: not just digests of cases, should contain the complete report of the cases
e.g. US Reports, Atlantic Reporter
Amjur not included as it only contains the digest of cases decided
(jj) That except for purposes of succession, when 2 persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and age of the sexes, according to the following rules:
If one be under 15 or over 60, and the other between those ages, the latter is deemed to have survived
4 factors necessary
e.g. One can swim, the other cannot, then possibly the one who can't swim died ahead
One is sick, the other is healthy, it can be inferred that the healthy person lived longer
"DISKARTE. That's the Filipino word for DISCRETION." - VAA
(kk) That if there is doubt, as between 2 or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall be considered to have died at the same time.
-this is the provision applicable to succession
GR: died at the same time
X: unless death of one first proven by the person who alleges
WHY there's such a provision: this is for succession. To be fair, the two persons are presumed to have died at the same time so that no one succeeds from the other. But if one wants to prove that one succeeds from the other (through the earlier death of the latter), he has the burden of proving that it is the case, as after proving such, he could win the case (sorry medyo mahaba. Di ko ma-explain nang mas maganda eh)
e.g. X, a wealthy business man, went on a trip abroad with one of his child, A. They boarded a plane which crashed. Only X's body was found. B was the only one left in the family. Would B apply the presumption/s?
YES. It would be beneficial for X to apply (w) presumption, i.e. presumption of death of his sibling A. If he proves that A is presumed to be dead, then he could inherit both from his dad X and from his sibling A, provided A does not have compulsory heirs. If A still presumed to be alive, he would have someone who would be sharing the estate of his dad X, aside from their mom if alive and other heirs.
Presumptions are divided into 2 parts
(VAA did not tell the difference between the two though. It is for us to determine which provision belongs to which)
Basis of presumptions: human experience
CAN YOU STIPULATE BURDEN OF PROOF REQUIRED?
NO.
WHY: (CHA) It is provided by law. Parties cannot amend the law by stipulation, only the Congress can amend the law.
CAN YOU STIPULATE ON THE BURDEN OF EVIDENCE?
VAA: yes you can! Burden of evidence only refers to the order of presentation of evidence, and in each stage, one of the parties either the claimant or defendant has the burden of evidence
Burden of Proof | Burden of Evidence |
Civil cases - on the party who would be defeated if no evidence were given on either side Criminal cases – always on the prosecution | Both civil and criminal cases – lies with party who asserts an affirmative allegation |
Does not shift as it remains throughout the trial with the party upon whom it is imposed | Shifts from party to party depending upon the exigencies of the case in the course of the trial |
Generally determined by the pleading filed by the party | Generally determined by the developments at the trial or by provisions of law |
REVERSE TRIAL:
-case where the defendant presents his evidence first, when the usual practice is that the prosecution or the plaintiff presents evidence first
-here, only the BURDEN OF EVIDENCE CHANGES.
e.g. CIV: when the defendant presents an AFFIRMATIVE DEFENSE
…in a complaint for collection of money, the defendant could claim that he has already paid money so he can prove first that he DID pay so as to speed things up. So the defendant has the burden of evidence first. But the plaintiff still has the burden of proving that the defendant did not pay, or else his claim would be defeated, same with the defendant who has the burden of proving that he did pay, or he was not liable to pay
e.g. CRIM: when the defendant presents a JUSTIFYING CIRCUMSTANCE (usually when he alleges that he only acted in SELF-DEFENSE)
-only the burden of evidence affected, i.e. the defense would be presenting its evidence first. The burden of proof still remains with the prosecution to prove the guilt of the accused beyond reasonable doubt
ZULUETA v. CA (? - not sure)
-here, the airlines allege as a defense that under US laws, overbooking is allowed, i.e. give out tickets to more passengers as there are seats on the plane.
…is there any presumption applicable in this case?
YES. Processual presumption [note: processual presumption is not among those enumerated in R131.3. It is found in jurisprudence: In Re: Testate Estate of Suntay, CIR v. Fisher…)
Processual presumption: Absent any evidence of foreign law, the foreign law is presumed to be the same as that in the Philippines.
-applying this in the case, OVERBOOKING IS NOT ALLOWED IN THE PHILIPPINES. SO absent any proof that it is allowed in the US, it cannot be made as an excuse for bumping off a passenger in the Philippines.
(ff question: would US law be applicable at all? )
F: Borje, the Provincial Plant Industry Officer, was alleged to have falsified several public documents (Timebook, Payroll, Daily Time Record, Certification) in order to receive P225.00 which was supposed to have been received by one of his subordinates, Ducosin
-here, Borje was earlier convicted based on the presumption "(j) that a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and thedoer of the whole act; otherwise, that things which a person possesses, or exercises acts of ownership over, are owned by him"
HELD
Borje’s guilt has NOT been established beyond reasonable doubt.
Sandiganbayan’s reliance on the presumption that as possessor of the document, the accused is presumed to be the author of the falsification is misplaced and unwarranted, there being no sufficient reason to apply the same.
(1) Testimony of the Regional Disbursing Officer and Cashier, to the effect that she delivered payroll and checks to Borje, is impeached by her orig testimony at Tanodbayan reinvestigation where she said she delivered the payroll and checks to complainant Ducusin, even identifying the genuine signature of Ducusin on the payroll. To use this doubtful testimony as factual basis is unwarranted.
(2) Timebook and payroll was also signed by 10 other production technicians. It is initialled by 3 personnel in Accounting Services Unit and further signed by Regional Accountant and for the Regional Director. All of these persons were at one time or another in possession of the document, all of them had the same opportunity impliedly imputed to the accused. Payroll must have been carried and passed by messengers & other employees from one office to another, from one desk to another for purposes of typing, funding, initialling, verification, certification, accounting, recording, drawing of the check and finally, issuing of the check.
- On the whole, the evidence presented against the accused is not clear, competent and convincing.
VAA discussion (CHA's interpretation): Mali daw doctrine ng Borje (and the doctrine is?)
For the presumption to attach, the following should concur
(1) there was a taking
(2) taking was done in the doing of a recent wrongful act
Here, the wrongful act is falsification. What could be taken during the falsification are the documents, as the presumption would presume that if Borje possesses the falsified documents, he took it and was also the one who falsified it. The thing allegedly taken here is the check, which was not falsified and was not proven to be in the possession of Borje. Therefore, the presumption does not apply
BARCELON V. ROXAS
-wrong doctrine rin! Inulit ang Africa v. Caltex!
F: BIR issued an assessment for deficiency of tax. Taxpayer alleged that he didn't receive any assessment, protested. Even with the protest, BIR levied on the properties of the taxpayer.
-during trial, the BIR was only able to present a record containing the fact that a notice was sent to the taxpayer on this date through this sender.
H: "To qualify their statements as "official information" acquired by the officers who prepared the reports, the persons who made the statements not only must have personal knowledge of the facts stated but must have the duty to give such statements for record." - kaya di naniwala sa BIR. Most probably (as di naman 'to assigned, binanggit lang ni ma'am so di ko alam facts) the one who made the entry was deemed not to have personal knowledge that the assessments were indeed received by the taxpayer.
CAPILI V CARDAÑA
(eto yung case na hinahanap ko buong summer!!!!)
F: young 12 year old girl, while walking OUTSIDE the school premises, was killed when an old caimito tree, located inside the school grounds, but on the perimeter wall, fell on her. Action for damages filed against school principal!
-School principal presented the following defense:
(1) the tree does not look dead so she would not know that it is dead. If she did, she might have ordered it removed
(2) someone offered to buy the tree (*ehem* to make it as firewood). Why would anyone buy a tree if it's dead (e kasi nga gagawing panggatong!)
(3) when a meeting was held (to discuss WON they would sell the tree), no one told her that the tree is dead!
--here Res Ipsa Loquitur was used to make the principal liable
ELEMENTS of RES IPSA LOQUITUR: 3 elements must concur
(1) the accident was of such character as to warrant an inference that it would not have happened except for the defendant's negligence;
(2) the accident must have been caused by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of; and
(3) the accident must not have been due to any voluntary action or contribution on the part of the person injured.
---there's a PRESUMPTION: THE DEFENDANT IS PRESUMED TO BE NEGLIGENT granting the requisites concur
VAA: how do we use the doctrine if the principal uses the defense that SHE DIDN'T KNOW? Why would anyone be liable if she did not even know the fact?
The mere fact that she did not know of the dead tree means she is negligent. As the principal, it is her duty to oversee what happens inside the school and her admission that she did not know only means she failed to observe of the due diligence required of her as the principal of the school
RULE 132
A. EXAMINATION OF WITNESSES
Section 1 – EXAMINATION TO BE DONE IN OPEN COURT
The examination of witnesses presented in a trial or hearing
shall be done in open court,
and under oath or affirmation.
Unless the witness is incapacitated to speak,
or the question calls for a different mode of answer,
the answers of a witness shall be given orally.
Section 2 – PROCEEDINGS TO BE RECORDED
The entire proceedings of a trial or hearing,
including the questions to be propounded to a witness
and his answer thereto,
the statements made by the judge or any of the parties, counsel, or witnesses
with reference to the case,
shall be recorded by means of
shorthand
or stenotype
or by other means of recording found suitable by the court.
A transcript of the record of the proceedings
made by the official stenographer, stenotypist or recorder
and certified as correct by him
shall be deemed prima facie a correct statement of such proceedings.
1. in civil cases: by depositions (Rules 23-24ff)
2. in criminal cases: by depositions
conditional examinations (R119.12-15 // R123.1)
records of the preliminary investigation (R115.1(f)
GenRule: Mere presentation of affidavits of prosecution witnesses subject to cross-examination is not allowed by the Rules
BUT under BP 129, summary procedures may be authorized by SC in special cases
SC may also adopt simplified procedures which may provide that affidavits and counter-affidavits be admitted in lieu of oral testimony (Sec. 36)
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Can a statement made during the trial be "off the record"?
VAA: Pwede, if both parties agree. If one of the parties invoke R132.2 and the statement refers to the case, the judge has no choice but to order the recording of the statement
Steno vs. Shorthand
Steno: uses a machine
Shorthand: it is handwritten
How should the witness answer
GR: ORALLY
X: when other modes are allowed
Video recording: is it allowed?
YES. SEC2: if found suitable by the court. It is the court which chooses the means how the proceedings are to be recorded. He determines what is the official record of the case
FF UP: what if the judge leans toward one of the parties, make statements for the other party, and orders the stenographer not to record it in the transcript BUT you have a tape or video recording of the proceedings. Can you insist that the statement made by the judge be included in the transcript?
YES. File a MOTION FOR CORRECTION OF THE TSN. The video recording can be used as evidence to support a motion in R133
RIGHTS OF A WITNESS
Section 3 - RIGHTS AND OBLIGATIONS OF A WITNESS
A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness:
Beltran v Samson (53 Phil 570): Where in a prosecution for falsification, the accused took the stand and testified denying his authorship of the alleged falsified signature, on cross-examination he can be compelled to give a sample of his handwriting and it was not a denial of his right against self-incrimination
Bermudez vs. Castillo (64 Phil 483): Where, in a disbarment case, the complainant on cross-examination denied authorship of certain handwritten letters, she could not be compelled to give samples of her handwriting as it would amount to a denial of her right against self-incrimination in a possible charge for perjury
Conflict can be reconciled:
>Beltran: it was the accused himself who opened the issue on his direct examination
>Bermudez: complainant could not refuse to testify without an unfavorable inference being drawn against her
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Why allowed to be asked questions even if it may tend to establish a claim against him, but not when the question would subject the witness to a penalty for an offense?
VAA: It would not help the cause of truth if the evidence used to convict the accused came from the accused himself. (remember "Goya's Ghost", where the accused was tortured so that she would admit the offense charged against her.
Section 4 - ORDER IN THE EXAMINATION OF AN INDIVIDUAL WITNESS
The order in which the individual witness may be examined is as follows;
Section 5 - DIRECT EXAMINATION
Direct examination is the examination-in-chief of a witness
by the party presenting him on the facts relevant to the issue.
Section 6 - CROSS-EXAMINATION; ITS PURPOSE AND EXTENT
Upon the termination of the direct examination,
the witness may be cross-examined by the adverse party
as to many matters stated in the direct examination,
or connected therewith,
with sufficient fullness and freedom to test his accuracy and truthfulness and
freedom from interest or bias, or the reverse, (impt daw to sabi ni ma'am)
and to elicit all important facts bearing upon the issue.
Section 7 - RE-DIRECT EXAMINATION; ITS PURPOSE AND EXTENT
After the cross-examination of the witness has been concluded,
he may be re-examined by the party calling him,
to explain
or supplement
his answers given during the cross-examination.
On re-direct-examination,
questions on matters not dealt with during the cross-examination,
may be allowed by the court in its discretion.
Section 8 - RE-CROSS-EXAMINATION
Upon the conclusion of the re-direct examination,
the adverse party may re-cross-examine the witness
on matters stated in his re-direct examination, and
also on such other matters as may be allowed by the court in its discretion.
Bachrach Motor Co., Inc. vs. CIR (1978): When cross examination is not and cannot be done or completed due to causes attributable to the party who offered the witness, the uncompleted testimony is thereby rendered incomplete and should be stricken from the record.
People vs. Seneris (1980): Where in a criminal case the prosecution witness was extensively cross examined on the essential elements of the crime and what remained for further cross-examination was the matter of the prize or reward which was treated therein as merely an aggravating circumstance, his failure to appear for further cross-examination thereon will not warrant the striking out of his direct examination, especially since further cross-examination could not be conducted due to the subsequent death of the said witness, a circumstance not attributable to the prosecution
*note: basta if the witness was already extensively cross-examined on material points and failed to appear, don't strike his testimony!
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*EXAMINATION: only refers to TESTIMONIAL EVIDENCE, not to other forms of evidence.
*After re-cross, no more re-re-cross…no more re-redirect
Section 9 - RECALLING WITNESS
After the examination of a witness by both sides has been concluded,
the witness cannot be recalled without leave of the court.
The court will grant or withhold leave in its discretion,
as the interests of justice may require.
*the examination of the witness has not been concluded
*the recall has been expressly reserved by a party with the approval of the court
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If new witness discovered after end of period for examination of witnesses: RE-OPEN TRIAL
If witness already presented wants to add something else - RECALL witness
Section 10 - LEADING AND MISLEADING QUESTIONS
A question which suggests to the witness the answer which the examining party desires is a LEADING QUESTION. It is not allowed, except:
or a child of tender years
or is of feeble mind
or a deaf-mute;
A MISLEADING QUESTION is one
which assumes as true a fact not yet testified to by the witness,
or contrary to that which he has previously stated.
It is not allowed.
People vs. Dela Cruz (2002): Leading questions may be permitted in the examination of a witness who is immature; aged and infirm; an bad physical condition; uneducated; ignorant of, or unaccustomed to, court proceedings; inexperienced; unsophisticated; feeble-minded; confused and agitated; terrified, timid or embarrassed while on stand; lacking in comprehension of questions or slow to understand; deaf and dumb; or unable to speak or understand the English language or only imperfectly familiar therewith
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*Leading questions are only prohibited when it is asked of the witness of the party conducting the direct (i.e. kakampi nung lawyer yung witness)
Illustrations: in a collection suit
Example of leading question: "Is this not the signature of the debtor-defendant?"
Example of misleading question (where a fact not yet established is assumed): "When did you say the defendant was supposed to pay?" - obligation to pay not yet established
Section 11 - IMPEACHMENT OF ADVERSE PARTY'S WITNESS
A witness may be impeached by the party against whom he was called,
by contradictory evidence, (CE)
by evidence that his general reputation for truth, honestly, or integrity is bad,or (THI)
by evidence that he has made at other times statements inconsistent with his present testimony, (PSI)
but not by evidence of particular wrongful acts, (not PWA)
EXCEPT that it may be shown by the examination of the witness, or
the record of the judgment,
that he has been convicted of an offense.
THI: you can't prove this through a particular wrongful act
WHY: Res Inter Alios Acta part 2
Section 12 - PARTY MAY NOT IMPEACH HIS OWN WITNESS
Except with respect to witnesses referred to in par. (d) and (e) of Section 10,
the party producing a witness is not allowed to impeach his credibility.
(MOTION TO DECLARE A WITNESS AS A HOSTILE WITNESS)
A witness may be considered as unwilling or hostile
only if so declared by the court upon adequate showing of
his adverse interest,
unjustified reluctance to testify, or
his having misled the party into calling him to the witness stand.
The unwilling or hostile witness so declared,
or the witness who is an adverse party,
may be impeached by the party presenting him IN ALL RESPECTS
as if he had been called by the adverse party,
except by evidence of his bad character.
He may also be impeached and cross-examined by the adverse party, BUT
such cross-examination must only be on the subject matter of his exam-in-chief.
Fernandez vs. Tantoco (49 Phil 380): A party who voluntarily offers the testimony of a witness in the case is, as a rule, bound by the testimony of the said witness.
EXCEPTIONS:
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WHY CAN'T you impeach your own witness?
It's just a waste of time! This may be a good delaying tactic though (uh-oh)
IMPEACHMENT
-you attack the witness of the adverse party so that the court would not give any weight or probative value to the testimony of a witness
-you only impeach the witness ALREADY PRESENTED!
Refer to last paragraph: Why can't a party presenting a hostile witness/adverse party impeach the party by giving evidence of his bad character?
Prevent prejudice to the accused
IF THE WITNESS ALREADY HOSTILE BEFORE YOU CALL HIM TO THE WITNESS STAND, CAN YOU DECLARE HIM A HOSTILE WITNESS?
YES. Para sure, under unjustified reluctance to testify!
Section 13 - HOW WITNESS IMPEACHED BY EVIDENCE OF INCONSISTENT STATEMENTS
Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony,
(eto na: LAYING THE PREDICATE)
the statements must be related to him,
with the circumstances of the times and places and the persons present, and
he must be asked whether he made such statements, and
if so, allowed to explain them.
If the statements be in writing they must be shown to the witness
before any question is put to him concerning them.
WHY LAY THE PREDICATE IN PIS, not in CE? So that the witness must be given an opportunity to explain
CARAPEN v. PPL (?):
If a person made A, then now B, it's possible that A was made through a mistake. If the reason for the inconsistency is reasonable (thus W explains), the judge could still give weight to his statement
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