Evidence Notes dated October 6, 2009

 

 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:
1. 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.
2. 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.

Cutoff points
1. 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
2. 300 days after the termination of the former marriage
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
1. PHYSICAL TERMINATION: Death of the other spouse
2. LEGAL TERMINATION
1. Declaration of nullity of marriage
2. Presumptive death of one spouse, judicially declared
3. Annulment: deemed terminated from the point of judgment
4. Foreign divorce
5. 2nd marriage when the spouse presumptively presumed
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:
1. If both were under the age of 15, the older is deemed to have survived;
2. If both were above the age of 60, the younger is deemed to have survived;
3. If one is under 15 and the other is above 60, the former is deemed to have survived;
4. 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;
If one be under 15 or over 60, and the other between those ages, the latter is deemed to have survived
4 factors necessary
1. NO succession issues
2. 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
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
3. WHERE:
1. Wreck
2. Battle
3. Conflagration
4. Any other calamity
4. Infer from strength/age/sex
"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
1. Regularity
2. Good Faith
(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? )
Borje vs. Sandiganbayan
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. SHE DID NOT KNOW that the tree was dead!
(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!
2. Granting that the tree is dead and she knew of it, SHE ALREADY ASSIGNED IT!
--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.

To be admissible, testimony of a witness must be given in open court XCPT that such testimony may be supplanted: 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) Testimony of witness should be elicited by questions of counsel But Court itself may propound questions or may suggest questions to counsel

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:
1. To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor;
2. Not to be detained longer than the interests of justice require;
3. Not to be examined except only as to matters pertinent to the issue;
4. Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or
5. 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 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 He could have refused to testify altogether Therefore, he waived his right >Bermudez: complainant could not refuse to testify without an unfavorable inference being drawn against her 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

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;
1. Direct examination by the proponent;
2. Cross-examination by the opponent;
3. Re-direct examination by the proponent;
4. Re-cross-examination by the opponent.
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.

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 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!

*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.

Recall based on discretion of the court But recall is a matter of right if *the examination of the witness has not been concluded *the recall has been expressly reserved by a party with the approval of the court

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:
1. On cross examination;
2. On preliminary matters;
3. When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant,
or a child of tender years
or is of feeble mind
or a deaf-mute;
4. Of an unwilling or hostile witness; or
5. 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.
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.

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 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 MISLEADING QUESTION – one which assumes facts not in evidence or without sufficient basis or which assumes testimony or proof which has not been given

*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.

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

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: 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

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.

“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

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