RULE 130-REVISED RULES OF EVIDENCE (2)

 

TESTIMONIAL EVIDENCE

According to the Revised Rules on Evidence, the following are the qualifications of  witnesses:

All persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. (Sec. 21)

Religious or political belief, interest in the outcome of the case or conviction of a crime, unless otherwise provided by law, shall not be a ground for disqualification. 

Deleted was the disqualification by reason of mental incapacity or immaturity. 

• A witness can testify only to those facts which he or she knows of his or her personal knowledge; that is which are derived from his or her own perception. (Sec. 22)
• During marriage, the husband and wife cannot testify against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. (Sec. 23)

The following persons cannot testify as to matters learned in confidence in the following cases:

(a) The husband and wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. 

(b) An attorney or person reasonably believed by the client to be licensed to engage in the practice of law cannot, without the consent of the client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of, or with a view to professional employment, nor can an attorney's secretary, stenographer, or clerk, or other persons assisting the attorney be examined without the consent of the client and his or her employer, concerning any face the knowledge of which has been acquired in such capacity, EXCEPT IN THE FOLLOWING CASES:

(i) Furtherance of crime or fraud.

-if the services or advice of the lawyer were sought or obtained to enable or aid anyone to commit  or plan to commit what the client knew or reasonably should have known to be a crime or fraud;

(ii) Claimants through same deceased client.

-As to communication relevant to an issue between parties who claim through the same deceased client regardless of whether the claims are  by testate or intestate or by inter vivos transaction;

(iii) Breach of duty by lawyer or client.

-As to communication relevant to an issue of breach of duty by the lawyer to his or her client, or by the client to his or her lawyer;

(iv) Document attested by the lawyer.

-As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or

(v) Joint clients.

-As to communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients, unless they have expressly agreed otherwise. 

(c) A physician, psychotherapist or person reasonably believed by the patient to be authorized to practice medicine or psychotherapy cannot, in a civil case without the consent of the patient, be examined as to any confidential communication made for the purpose of diagnosis or treatment of the patient's physical, mental or emotional condition, including alcohol or drug addiction, between the patient and his or her psychotherapist. This privilege also applied to persons including members of the patient's family, who have participated in the diagnosis or treatment of the patient under the direction of the physician or psychotherapist. 

A psychotherapist was defined as 

(a) A person licensed to practice medicine engaged in the diagnosis and treatment of a mental or emotional condition, or

(b) A person licensed a s a psychologist by the government while similarly engaged.

(c) A minister, priest or person reasonably believed to be so cannot, without the consent of the affected person, be examined as to any communication or confession made to or any advice given by him or her, in his or her professional character, in the course of discipline enjoined by the church to which the minister or priest belongs. 

(d) A public officer cannot be examined during or after his or her tenure as to communication made to him or her in official confidence when the court finds that the public interest would suffer by the disclosure. 

The communication shall remain privileged, even in the hands of a third person who may have obtained the information, provided that the original parties to the communication took reasonable precaution to protect its confidentiality. 

TESTIMONIAL PRIVILEGE

According to Section 25 on Parental and filial privilege.- No person shall be compelled to testify against his or her parents, other direct ascendants, children or other direct descendants, except when such testimony is indispensable in a crime against that person or by one parent against the other. 

According to Section 26 on Privilege relating to trade secrets.- A person cannot be compelled to testify about any trade secret, unless the non-disclosure will conceal fraud or otherwise work injustice. When disclosure is directed, the court shall take such protective measure as the interest of the owner of the trade secret and of the parties and the furtherance of justice may require. 

ADMISSION AND CONFESSIONS

Section 27 provides that the act, declaration or omission of a party as to a relevant fact may be given in evidence against him or her. 

Section 28 provides that in civil cases, an offer of compromise is not an admission of any liability and is not admissible in evidence against the offeror. Neither is evidence of conduct nor statements made in compromise negotiations admissible, except evidence otherwise discoverable or offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. 

In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. 

A plea of guilty later withdrawn or an unaccepted offer of a plea of guilty to a lesser offense is not admissible in evidence against the accused who made the plea or offer. Neither is any statement made in the course of plea bargaining with the prosecution, which does not result in a plea of guilty or which results in a plea of guilty later withdrawn, admissible. 

An offer to pay, or the payment of medical, hospital or other expenses occasioned by an injury, is not admissible in evidence as proof of civil or criminal liability for the injury. 

Section 29 discusses on the Admission by third party in which the rights of a party cannot be prejudiced by an act, declaration, or omission or another, except as herein after provided. 

Section 30 provides that the Act or declaration of a partner or agent authorized by the party to make a statement concerning the subject, or within the scope of his or her authority, and during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. 

Section 31- Admission by conspirator states that the act or declaration of a conspirator in furtherance of the conspiracy and during its existence may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act of declaration. 

Section 32 is on Admission by privies.- where one derives title to property from another, the latter's act, declaration, or omission, in relation to the property is evidence against the former if done while the latter was holding the title. 

Section 33 provides on Admission by silence that an act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him or her to do so, may be given in evidence against him or her.

Section 34 on Confession says- The declaration of an accused acknowledging his or her guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him or her. 

PREVIOUS CONDUCT AS EVIDENCE

Similar Acts as Evidence (Section 35)

Evidence that one did or did not do a certain thing at one time is not admissible to prove that he or she did or did not do a certain thing at one time is not admissible to prove that he or she did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage and the like. 

Unaccepted Offer (Section 36)- an offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money, instrument, or property. 

Testimony generally confined to personal knowledge, hearsay was excluded (transposed to Sec.. 22. Testimony confined to personal knowledge)

HEARSAY

Hearsay (Section 37)

Hearsay is a statement other than one made by the declarant while testifying at a trial or hearing, offered to prove the truth of the facts asserted therein.  A statement is (1) an oral or written assertion or (2) a non-verbal conduct of a person, if it is intended by him or or as an assertion. Hearsay evidence is inadmissible except as otherwise provided in these Rules.

A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (a) inconsistent with the declarant's testimony, and was given under oath subject to the penalty or perjury at a trial, hearing, or other proceeding, or in a deposition; (b) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; or (c) one of identification of a person made after perceiving him or her. 

EXCEPTIONS TO THE HEARSAY RULE

Dying Declaration (Section 38) 

The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his or her death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. 

Statement of decedent or person of unsound mind. (Section 39)

In an action against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, where a party or assignor of a party or a person in whose behalf a case is prosecuted testifies on a matter of fact occurring before the death of the deceased person or before the person becomes of unsound mind, any statement of the deceased or the person of unsound mind, may be received in evidence if the statement was made upon the personal knowledge of the deceased or the person of unsound mind at the time when the matter had been recently perceived by him or her and while his or her recollection was clear. Such statement, however, is inadmissible if made under circumstance indicating its lack of trustworthiness. 

Declaration against interest. (Section 40)

The declaration made by a person deceased or unable to testify against the interest of the declarant, if the fact asserted in the declaration was at the time it was made, so far contrary to the declarant's own interest that a reasonable person in his or her position would not have made the declaration unless he or she believed it to be true, may be received in evidence against himself or herself or his or her successors in interest against third persons. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. 

Act or declaration about pedigree (Section 41)

The act or declaration of a person deceased or unable to testify, in respect to the pedigree of another person related to him or her by birth, adoption, or marriage or, in the absence thereof, with whose family he or she was so intimately associated as to likely to have accurate information concerning his or her pedigree, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. 

Family reputation or tradition regarding pedigree is provided in Section 42 which says-

The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity, affinity, or adoption. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree. 

Common reputation (Section 43)

Common reputation existing previous to the controversy, as to boundaries of or customs affecting lands in the community and reputations as to event of general history important to the community, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputation. 

Part of the res gestae.- (Section 44)

Statements made by a person while startling occurrence is taking place or immediately prior or subsequent thereto, under the stress or excitement caused by the occurrence with respect to the circumstance thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. 

Records of regularly conducted business activity (Section 45)

A memorandum, report record or data compilation of acts, events, conditions, opinions or diagnoses, made by writing, typing, electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum, report, record or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted "from the rule on hearsay evidence".

Entries in Official records (Section 46)

Entries in official records made in the performance of his or her duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. 

Commercial lists and the like (Section 47)-

Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in an occupation contained in a list,  register, periodical or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein. 

Learned treatises (Section 48)

A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his or her profession or calling as expert in the subject. 

Testimony or deposition at a former proceeding (Section 49)

The testimony or deposition of a witness deceased or out of the Philippines or who cannot, with due diligence, be found therein, or is unavailable or otherwise unable to testify, given in a former case of proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him or her.

Residual exception (Section 50)-

A statement not specifically covered by any of the foregoing exceptions, having equivalent circumstantial guarantees of trustworthiness, is admissible if the court determines that

(a) the statement is offered as evidence of a material fact;

(b) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and 

(c) the general purposes of these rules and the interests of justice will be best served by admission of the statement in evidence. 

However, a statement may not be admitted under this exception unless the proponent makes known to the adverse party, sufficiently in advance of the hearing or by the pre-trial stage in the case of a trial of the main case, to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.