Evidence: Basic Concepts and Principles PDF

Evidence EVIDENCE Basic Concepts and Principles Evidence in General Evidence is the mode and manner of proving competent facts in judicial proceeding. Classification Of Evidence According to Form 1. Object or real or autoptic evidence or physical evidence or tangible evidence- that which...

Evidence EVIDENCE Basic Concepts and Principles Evidence in General Evidence is the mode and manner of proving competent facts in judicial proceeding. Classification Of Evidence According to Form 1. Object or real or autoptic evidence or physical evidence or tangible evidence- that which is directly addressed to the senses of the court and consists of tangible things exhibited in court. Note: Most reliable evidence 2. Testimonial evidence- that which is submitted to the court through the testimony or deposition of a witness. It is that which directly comes out of the witness’s mouth, oral or written, such as depositions and affidavits. 3. Documentary evidence- it consists of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents. Note: Governed by Best Evidence Rule, Parol Evidence Rule and Electronic Evidence Rule Other Classification of Evidence Furnished by the Rules and Other Text Writers 1. Relevant evidence- evidence having any value in reason as tending to prove any matter provable in an action. 2. Material evidence- evidence directed to prove a fact in issue as determined by the rules of substantive law and pleading. 3. Competent evidence- evidence that is not excluded by the rules, statute or the Constitution. 4. Direct evidence- that which proves the fact in dispute without the aid of any inference or presumption. 5. Circumstantial evidence- the proof of fact or facts from which, taken either singly or collectively, the existence of the particular fact in dispute may be inferred as a necessary or provable consequence. 6. Cumulative evidence- evidence of the same kind and to the same state of facts. 7. Corroborative evidence- additional evidence of a different character to the same point. 8. Expert evidence- the testimony of one possessing in regard to a particular subject or department of human activity, knowledge not usually acquired by other persons. 9. Prima Facie - that which, standing alone, unexplained or uncontradicted, is sufficient to maintain the proposition affirmed. 10. Conclusive - the class of evidence which the law does not allow to be contradicted. 11. Primary or Best evidence- that which the law regards as affording the greatest certainty of the fact in question 12. Secondary or Substitutionary Evidence- that which is inferior to the primary evidence and is permitted only when the best evidence is not available. 13. Positive evidence- when a witness affirms that a fact did or did not occur. 14. Negative evidence- when a witness states he did not see or know of the occurrence of a fact. 15. Electronic evidence- document or information received, recorded, transmitted, stored, processed or produced electronically. 16. Forgotten evidence- evidence which was not presented in court because of oversight or forgetfulness of a party or counsel. 17. Exculpatory evidence- that evidence which will excuse a person from an alleged fault or crime. 18. Evidence Aliunde or Extraneous evidence- evidence from outside or another source. 19. Inculpatory evidence- are evidence which has the tendency to implicate or incriminate a person. 20. Self-serving evidence- one made by the party to favor his own interest. It is one made by a party out of court. 21. Opinion evidence – evidence given by an ordinary person regarding of what he thinks. 22. Rebuttal evidence- evidence that will contradict the other party’s evidence Classification of evidence that which is submitted to the court through the testimony or deposition of a witness. It is that which directly comes out of the witness’s mouth, oral or written, such as depositions and affidavits. a. Autoptic b. Testimonial c. Documentary d. Object Classification of evidence that which is submitted to the court through the testimony or deposition of a witness. It is that which directly comes out of the witness’s mouth, oral or written, such as depositions and affidavits. a. Autoptic b. Testimonial c. Documentary d. Object Evidence having any value in reason as tending to prove any matter provable in an action. a. Competent b. Material c. Relevant d. Direct Evidence having any value in reason as tending to prove any matter provable in an action. a. Competent b. Material c. Relevant d. Direct Classification of evidence which refers to additional evidence of a different character to the same point. a. Circumstancial b. Cumulative c. Corroborative d. Expert evidence Classification of evidence which refers to additional evidence of a different character to the same point. a. Circumstancial b. Cumulative c. Corroborative d. Expert evidence Evidence that which, standing alone, unexplained or uncontradicted, is sufficient the proposition affirmed. a. Positive evidence b. Negative evidence c. Prima Facie evidence d. Conclusive evidence Evidence that which, standing alone, unexplained or uncontradicted, is sufficient the proposition affirmed. a. Positive evidence b. Negative evidence c. Prima Facie evidence d. Conclusive evidence Evidence it is that which the law regards as affording the greatest certainty of the fact in question. a. Primary Evidence b. Best Evidence c. Secondary Evidence d. Both a and b Evidence it is that which the law regards as affording the greatest certainty of the fact in question. a. Primary Evidence b. Best Evidence c. Secondary Evidence d. Both a and b Evidence from outside or another source. a. Rebuttal evidence b. Exculpatory evidence c. Evidence Aliunde d. Electronic evidence Evidence from outside or another source. a. Rebuttal evidence b. Exculpatory evidence c. Evidence Aliunde d. Electronic evidence General Provisions (Rule 128) SECTION 1. Evidence defined. — Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. Main Source of the Law on Evidence:  Rules of Court Rules 128-133 (134)  PROOF, defined- the result or the effect of evidence.  FACTUM PROBANDUM- the ultimate fact or the fact sought to be established. It is the fact to be proved.  FACTUM PROBANS- factum probans is the evidentiary fact or the fact by which the factum probans is to be established  FALSUS IN UNO, FALSSUS IN OMNIBUS- literally means” false in one thing, false in everything’-The Sec. 2. Scope. — The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules. Other Laws Governing Evidence - GR: Rules of evidence is governed by the Rules of Court (RoC) - EXC: Application of other laws Examples: - RA 4200 (Anti Wiretapping), - Code of Commerce (weight of entries in merchant books) - Electronic Commerce Act - NCC, RPC - Constitution: Bill of Rights - Art III o Sec 2: The right of people against unreasonable searches and seizures o Sec 3: The privacy of communication and correspondence shall be inviolable (EXC. By order of court or when provided by law for safety and public order) o Evidence obtained in violation of such provisions shall be Sec. 3. Admissibility of evidence. — Evidence is admissible when: it is RELEVANT (Relevancy) to the issue and is NOT EXCLUDED BY THE LAW OR THE RULES OF COURT (Competency). Kinds of Admissibility of evidence 1. Conditional Admissibility of Evidence- Evidence that will be admitted although seemingly not admissible provided that its relevancy would be shown in a later stage of the trial. 2. Curative Admissibility of Evidence- Evidence which will be admitted although normally inadmissible because similar inadmissible evidence has been introduced by the other party. 3. Multiple Admissibility of Evidence- when the According to section 3 Rule 128. What are the requirements for the evidence to be admissible? a. Object and documentary b. Testimonial and Object c. Positive and Negative d. Relevant and Competent According to section 3 Rule 128. What are the requirements for the evidence to be admissible? a. Object and documentary b. Testimonial and Object c. Positive and Negative d. Relevant and Competent PLAIN VIEW RULE- Under this doctrine, unlawful objects within the plain view of an officer who has the right to be in the position to have that view are subject to confiscation and are admissible in evidence. EXCLUSIONARY RULE- A rule of evidence that excludes evidence obtained in violation of one’s constitutional rights or obtained through illegal means, such as those obtained by tortures and the like. FRUIT OF THE POSONOUS TREE- this doctrine states that once the primary source “the tree” is shown to have been obtained unlawfully, any derivative evidence, “the fruit” derived from it (meaning the tree) is likewise not admissible. Thus, evidence illegally obtained by the State should not be used to gain other evidence because the illegally obtained evidence taints all evidence subsequently obtained. SILVER PLATTER RULE- The doctrine, now discredited (no longer followed in the U.S.), that allowed evidence seized by state officers in an illegal search and seizure to be used against the accused in a criminal trial. Sec. 4. Relevancy; collateral matters. — Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. COLLATERAL MATTERS- Are facts and circumstances other than the facts in issue which are being offered in evidence as bases for inference as to the existence or non-existence of a fact in issue. III. What Need Not Be Prove [JUDICIAL NOTICE AND ADMISSIONS] (RULE 129) JUDICIAL NOTICE - the cognizance of certain facts which judges may properly take act on without proof because they already know them. Section 1. Judicial notice, when mandatory. — A court shall take judicial notice, without the introduction of evidence, of: 1. The existence and territorial extent of states, 2. Their political history, 3. Forms of government and symbols of nationality, 4. The law of nations, 5. The admiralty and maritime courts of the world and their seals, 6. The political constitution and history of the Philippines, 7. The official acts of legislative, executive and judicial departments of the Philippines, the Sec. 2. Judicial notice, when discretionary. — A court may take judicial notice of matters which are: 1. of public knowledge, or 2. are capable to unquestionable demonstration, or 3. ought to be known to judges because of their judicial functions. Judicial Notice are Discretionary When it falls among the following except? a. Of public knowledge b. Are capable to unquestionable demonstration, or c. The existence and territorial extent of states, d. ought to be known to judges because of their judicial functions. Judicial Notice are Discretionary When it falls among the following except? a. Of public knowledge b. Are capable to unquestionable demonstration, or c. The existence and territorial extent of states, d. ought to be known to judges because of their judicial functions. Sec. 3. Judicial notice, when hearing necessary. — During the trial, the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon. After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case. (n) Sec. 4. Judicial admissions. — An admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by: 1. Showing that it was made through palpable mistake or 2. That no such admission was made. Rules of Admissibility (RULE 130) A. Admissibility of Object (Real) Evidence Object evidence (real evidence/autoptic evidence) is tangible thing submitted to the court for inspection, exhibition or demonstration. SECTION 1. Object as evidence. — Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. Requisites for the Admissibility of an Object or Real Evidence: 1. The evidence must be relevant 2. The evidence must be authenticated 3. The authentication must be made by a competent witness 4. The evidence must be formally offered Note: The right against self-incrimination cannot be invoked against object evidence. Chain Of Custody of Evidence - Refers to the chronological documentation of the seizure, custody, control, transfer, analysis and disposition of evidence from the time it was seized up to the time it is offered in evidence in court. Its purpose is to guaranty the integrity of the physical evidence and to prevent the introduction of evidence which is not authentic. DNA Evidence - DNA or DEOXYRIBONUCLEIC ACID- is a molecule that encodes the genetic information in all living organisms. A persons DNA is the same in each cell and it does not change throughout a person’s lifetime; the DNA in a person’s lifetime; the DNA in person’s blood is the same as the DNA in his saliva, sweat, bone, the root and the shaft of hair, earwax, mucus, urine, skin tissue and vaginal rectal cells. Most importantly, because of polymorphisms in human genetics structure, no two individuals have the same DNA, with the NOTABLE Guidelines in Assessing the Probative Value of DNA Evidence 1. How the samples were collected 2. How they were handled 3. The possibility of contamination 4. The procedure followed in analyzing the samples 5. Whether the proper standards and procedure were followed in conducting the test; and 6. The qualification of the analyst who conducted the test Uses of DNA Evidence 1. In criminal actions 2. In civil actions 3. Special proceedings Note: The Rules on DNA evidence (RDE) is governed by A.M. No. 06-11-5-SC, which took effect on October 15, 2007. B. Admissibility of Documentary Evidence Categories of Documents as Evidence 1. Writings, or 2. Any material containing modes of written expressions Requisites for Admissibility of Documentary Evidence 1. The document must be relevant 2. The evidence must be authenticated 3. The document must be authenticated by a competent witness; and 4. The document must be formally offered in evidence Sec. 2. Documentary evidence. — Documents as evidence consist of writing or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents. Written Instruments 1. BEST EVIDENCE RULE Best Evidence Rule, (Primary Evidence) (Original Document Rule) (Contents of Original Writing Rule) defined- it is that rule which states that when the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself.  It is that which affords the greatest certainty of a fact in question.  The opposite of Best Evidence is Secondary Evidence which is that evidence that is inferior to the primary evidence is to prevent fraud.  The purpose of the rule requiring the production of the best evidence is to prevent fraud.  Carbon paper copies are considered DUPLICATE Sec. 3. Original document must be produced; exceptions. — When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be Exceptions To The Best Evidence Rule 1. When the original has been lost or destroyed or cannot be produced in court, without bad faith on the part of the offeror; 2. When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; 3. When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and. 4. When the original is a public record in the custody Sec. 4. Original of document. (a) The original of the document is one the contents of which are the subject of inquiry. (b) When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. (c) When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals.  Document- a deed, instrument or other duly authorized paper by which something is proved, evidenced or set forth.  Secondary evidence (Substitutionary Evidence) (Inferior Evidence)-that which is admissible when the best evidence is not available; or any evidence other than the original document itself; or one which is inferior to the best evidence. 2. SECONDARY EVIDENCE Sec. 5. When original document is unavailable. — When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy(any machine copy), or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. When original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents:  by a copy or  by a recital of its contents in some authentic document or  by the testimony of witnesses in the order stated. Before secondary evidence may be admissible in evidence there must be proof of:  Due execution of the original;  Loss, destruction, or unavailability of all such originals  Reasonable diligence and good faith in search for or attempt produce the original. Sec. 6. When original document is in adverse party's custody or control. — If the document is in the custody or under the control of adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss. Sec. 7. Evidence admissible when original document is a public record. — When the original of document is in the custody of public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. Sec. 8. Party who calls for document not bound to offer it. — A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence. 3. PAROL EVIDENCE RULE Parol Evidence – is any evidence aliunde, whether oral or written, which is intended or tends to vary or contradict a complete and enforceable agreement embodied in a document. It is also defined as any outside or extrinsic evidence introduced to modify or explain or add something to an agreement that was put in writing. Parol Evidence Rule - a rule which states that when the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon, and there can be between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. It means that there can be no evidence of the terms of the written agreement other than the terms of the written agreement. Sec. 9. Evidence of written agreements. — When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. The term "agreement" includes wills. Exceptions To The Parol Evidence Rule A party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading: 1. An intrinsic ambiguity, mistake or imperfection in the written agreement; 2. The failure of the written agreement to express the true intent and agreement of the parties thereto; 3. The validity of the written agreement; or 4. The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. Electronic Documents and Electronic Data Messages 1. Definition of Electronic Documents [A.M. 01- 701-SC- Rules on Electronic Evidence] Section 1(h) Electronic Document- refers to information, or the representation of information, data, figures, symbols or other modes of written expressions, described or however represented, by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents or any print- out, readable by sight or other means, which accurately reflects the electronic data message or electronic document.  For the purpose of the Rules of Evidence “electronic document” may be used interchangely with Section 1- Burden of proving authenticity- The person seeking to introduce an electronic document in any legal proceeding has the burden of proving its authenticity in the manner provided by this Rule. Section 2- Manner of Authentication- Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means: a) By evidence that it had been digitally signed by the person purported to have signed the same; b) By evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or  Section 3- Proof of electronically notarized document- A document electronically notarized in accordance with the rules promulgated by the Supreme Court shall be considered as public document and proved as a notarial document under the Rules of Court. Electronic Evidence may be Used on Any of the Following Purposes: 1. To establish a right 2. To extinguish an obligation 3. To prove or affirm a fact (Sec. 1 [h] Rules on Electronic Evidence) Application of Electronic Evidence 1. Civil Actions; 2. Quasi-Judicial Proceedings; and 3. Administrative Proceedings  ELECTRONIC EVIDENCE IS NOT APPLICABLE TO CRIMINAL CASES The following are the requisites for the Admissibility of an Object and Documentary evidence except? a. The evidence must be irrelevant b. The evidence must be authenticated c. The authentication must be made by a competent witness d. The evidence must be formally offered The following are the requisites for the Admissibility of an Object and Documentary evidence except? a. The evidence must be irrelevant - relevant b. The evidence must be authenticated c. The authentication must be made by a competent witness d. The evidence must be formally offered Admissibility of Testimonial Evidence 1. QUALIFICATION OF WITNESSES Sec. 20. Witnesses; their qualifications. — Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make their known perception to others, may be witnesses. Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification.  Witness defined- a person who makes a statement to a judicial tribunal on a question of fact.  Qualifications of child witness: He must have capacity of observation He must have capacity of recollection He must have capacity of communication  Qualification of a Witness: All persons who can perceive and perceiving, and Can make known their perception to others may be witnesses. Types of Witnesses: 1. Competent Witness- One who has all the qualifications to testify. Thus he can perceive and can make known his perception to others regardless of political or religious belief or interest and conviction of a crime. He/she is not legally disqualified from testifying in courts of justice, by reason of mental incapacity, interests or the commission of crimes, or other cause rendering him excluded from testifying. 2. Credible witness- one whose testimony is worth of credit and belief. One who is not disqualified to testify by mental incapacity, 3. Instrumental witnesses- a witness who attests to the execution of a will or testament and affirms the formalities attendant to said execution. 4. Biased witness- on who because of his relation to the cause or to the parties is such that he has an incentive to exaggerate or give false color to his statements, or to suppress or pervert the truth, or to state what is false. 5. Dishonest witness- a witness who professes to remember things upon which he cannot be readily be contradicted and who declares that he forgets those upon which he would be open to contradiction. He usually takes refuge behind Sec. 21. Disqualification by reason of mental incapacity or immaturity. — The following persons cannot be witnesses: (a) Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; (b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. Deaf and mutes are competent witnesses when: they can understand the nature of an oath, can comprehend facts they are going to testify on, and can communicate their ideas through qualified interpreter. Two Tests to Determine the Insanity of a Person 1. TEST OF COGNITION- when the accused committed the crime while under complete deprivation of intelligence. We follow this rule in determining insanity. 2. TEST OF VOLITION- when the accused committed the crime while there is total deprivation of the freedom of will. What is this tests to Determine the Insanity of a Person when the accused committed the crime while under complete deprivation of intelligence. a. Paraffin test b. Testicles c. Test of Cognition d. Test of Volition What is this tests to Determine the Insanity of a Person when the accused committed the crime while under complete deprivation of intelligence. a. Paraffin test b. Testicles c. Test of Cognition d. Test of Volition PRIVILEGED COMMUNICATION, defined- communications received in confidence by a person from another by reason of trust or intimate relationship may not be revealed to the court. Sec. 22. Disqualification by reason of marriage (Marital Disqualification Rule/Spousal Disqualification Rule)). — During their marriage, neither the husband nor the wife may testify for or 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. This privilege can be lost by consent or failure to object. REASONS FOR THE MARITAL DISQUALIFICATION RULE: 1. The policy of the law is to guard the confidence of private life even at the risk of occasional failure of justice. 2. To preserve harmony between the husband and wife and family. 3. There is identity of interests between the husband and the wife. Sec. 23. Disqualification by reason of death or insanity of adverse party. (Survivorship Disqualification Rule or Dead Man’s Statute) — Parties or assignor of parties to a case, or persons in whose behalf a case is prosecuted, 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, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. This privilege may be waived by cross examining the witness REASON OR BASIS OF THE DEAD MAN STATUTE 1. If one party to the alleged transaction is precluded from testifying by death, insanity or mental disabilities, the other party should not take advantage of it by giving his own uncontradicted account of what transpired. 2. This rule is designed to close the lips of the party plaintiff when death has closed the lips of the other party defendant, in order to remove from the surviving party the temptation to falsehood and the great possibility of fictitious and exaggerated claims against the deceased. Sec. 24. Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases: (a) The husband or the 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; (Marital Communication Rule/Spousal Immunity Rule/Husband and Wife Privilege) (b) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity; (c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in capacity, and which would blacken the reputation of the patient; (d) A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs; (e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. For example, Adrian Berde served as assistant secretary for the Department of National Defense. As assistant secretary, he received communications regarding foreign military activity within Philippine territorial waters and was part of the inter-agency firm that drew tactical plans to address the said activity. During his tenure as assistant secretary, Adrian cannot be made to testify as to the communications he received because the public interest will suffer if the details of the intelligence on foreign milttary activity, as well as the tactical plans, were made public. Grounds For Disqualification Of A Witness 1. Disqualification by reason of mental incapacity or immaturity; 2. Disqualification by reason of marriage; 3. Disqualification by reason of death or insanity of adverse party; 4. Disqualification by reason of privileged communication between: a) husband and wife; b) attorney and client; c) physician and patient; d) priest and penitent; e) public office (privilege of state secrets) Persons who are Disqualified to Become a Witness by Reason of Mental Incapacity or Immaturity 1. Those whose mental condition at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others. 2. Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and relating them truthfully. PRIVILEGED COMMUNICATION, defined- communications received in confidence by a person from another by reason of trust or intimate relationship may not be revealed to the court. DISQUALIFICATION BY REASON OF MARRIAGE, defined- according to this rule, during their marriage, neither the husband or the wife may testify for or against the other without the consent of the affected spouse, except: 1. In a civil case by one against the other; or 2. In a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants Requisites of Marital or Spousal Immunity Rule: 1. There must be a valid marriage; 2. That marriage must be existing at the time of the offer of the testimony; 3. The spouse is a party to the transaction The marital Communication Rule may be waived by: 1. Failure to object to the testimony 2. The spouse calls the other spouse to testify Disqualification by Reason of Death or Insanity of Adverse Party Rule, defined- according to this rule, parties or assignors of parties to a case or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. Requisites of Dead Man’s Statute 1. That the witness offered for examination is a party plaintiff, or the assignor of said party, or a person in whose behalf a case is prosecuted; 2. The case is against the executor or administrator or other representative of a person deceased or of unsound mind; 3. The case is upon a claim or demand against the estate of such deceased or unsound mind; 4. The testimony to be given is on a matter of fact occurring before the death of the deceased person or before such person became of unsound mine. Disqualification by Reason of Privileged Communication, defined- a rule which state that the following person persons cannot testify as to matters learned in confidence in the following cases: 1. Husband or 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. 2. Attorney- cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can the attorney’s secretary, stenographer, or clerk be examined, without the consent of the client and his employer concerning any fact the knowledge of which has been acquired in such capacity; 3. Person authorized to practice medicine, surgery or obstetrics- in a civil case cannot be examined, without the consent of the patient as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient. 4. Minister or priest- without the consent of the person making the confession, cannot be examined as to any confession made or to any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs; (This privileged cannot be waived) 5. Public officer- cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. (This privileged cannot be waived) Requisites of Marital Privilege 1. There was a valid marital relation; 2. The privilege is invoked with respect to confidential communication between the spouses during the marriage; 3. The spouse against whose the testimony is offered has not given his consent. Purpose of the Privileged Communication between a lawyer and client To encourage clients to make full disclosure to his lawyer in matters affecting his rights and obligations. However, in order that communication between a lawyer and his client may be privileged, it must be for a lawful purpose or lawful end. Requisites of Physician and Patient Privilege 1) The privilege is claimed in a civil case 2) The person against whom it is claimed is duly authorized to practice medicine 3) The physician acquired the information while he was attending to the patient in his professional capacity 4) The information was necessary for him to act in that capacity 5) The information must be confidential, that is if disclosed would blacken the reputation of the patient. 2. Testimonial Privilege PARENTAL PRIVILEGE- parents cannot be compelled to testify against his descendants; while FILIAL PRIVILEGE means, witness cannot be compelled to testify against his parents or other direct ascendants Sec. 25. Parental and filial privilege. — No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. 3. Admission and Confession Sec. 26. Admission of a party. — The act, declaration or omission of a party as to a relevant fact may be given in evidence against him.  ADMISSION, defined- any statement of a fact by a party against his interest or unfavorable to the conclusion for which he contends or is inconsistent with the facts alleged by him. It is a statement of fact which does not involve an acknowledgment of guilt or liability (this is the more popular definition)  CONFESSION, defined- the declaration of Admission distinguished from Confession: 1. An admission does not necessarily involve an acknowledgement of guilt as in the case of confession; 2. An admission may be expressed or tacit while a confession is always express; 3. Admission may be made by third persons and in certain cases admissible against a party, while a confession can be made only by the party himself, and in some instances are admissible against his co-accused. Types of Admissions 1. Admission by a party 2. Admission by co partner or agent 3. Admission by co conspirator 4. Admission by privies 5. Admission by silence  Flight from justice is an admission by conduct. “The wicked flees when no man pursueth, but the innocent is as bold as a lion.” Sec. 27. Offer of compromise not admissible. — In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromised 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 lesser offense, is not admissible in evidence against the accused who made the plea or offer. 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. Sec. 28. Admission by third party. — The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. This section is known as the RES INTER ALIOS ACTA ALTERI NOCERE NON DEBET rule, which means “things done between strangers should not injure those who are not parties to them.” Example. Junior Chiu and Henry Beltran were charged for cyberlibel after Junior posted the following message on his social media account: "‘JOHN TOBIAS, PANAGUTAN MO ANG MGA UTANG MO. YUNG 300K NA INUTANG MO KAY HENRY BELTRAN, 5 YEARS NA, DI MO PA RIN BINABAYARAN. NAKIKITA NAMIN MGA POST MO, PURO KA BAGONG CELFON, CAMERA, ATBP GADGETS. WAG KANG TUMATAKAS, WALA KANG PUPUNTAHAN NA HINDI KA NAMIN MAHAHANAP. MAKONSENSYA KA NAMAN!”  During the trial of the case, Junior testified that he posted the message because he felt bad for his friend Henry who did not want to demand payment from John and that Henry probably wanted him to post the message. Henry, who had nothing ‘to do with Junior’s social media post, cannot be prejudiced by Junior’s actions. Junior’s testimony that Henry probably wanted the message published on social media is not admissible because Junior does not have personal knowledge as to Henry’s desire, and Junior’s admission cannot be taken as Henry’s admission. Most importantly, Junior’s admission is not admissible against Henry because it would be unjust to make Henry liable for the social media post, which he was not aware of, and for which he did not give his consent. Sec. 29. Admission by co-partner or agent. — The act or declaration of a partner or agent of the party within the scope of his 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. Requisites of Admission by a Co-partner or Agent 1. The act or declaration was made within the scope of his authority; 2. It was made during the existence of the partnership or agency; 3. The partnership or agency is proved by evidence other than such act or declaration. For example, on 2 August 2017, Addie executed the Special Power of Attorney (SPA) authorizing her father Boying to enter into a-contract of lease with potential tenants of her condominium unit, In the SPA, Addie is the principal, while Boying, her representative, is the agent. A month later, Boying met Hue Xi, who was interested in renting the unit. On 14 September 2017, Boying and Hue Xi signed the Contract of Lease, with monthly rent set at P15,000. Surprised at how low the rental fee was, Addie demanded that Hue Xi pay P25,000 as monthly rent instead. The contents of the SPA can prove that Addie appointed Boying as an agent and authorized him to enter into the contract of lease. The date of the SPA (i.e., 2 August 2017) can show that the agency was existing when Boying entered into the contract of lease. Once these facts are established by Hue Xi, Hue Xi can then offer the Contract of Lease as evidence of Addie’s act of agreeing to the rental fee P15,000 per month, through Boying. Boying’s acts with respect to the contract of the lease are admissions of an agent, which bind Sec. 30. Admission by conspirator. — The act or declaration of a conspirator relating to 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. For instance, Louie and Kris conspire to shoplift alcohol from a mini-mart during a city-wide liquor ban. To effect the shoplifting, Louie borrowed Mai’s car and told Mai, “Kris and I will steal some soju.” Mai lent Louie her car, thinking Louie and Kris will only attempt to bribe the store crew to sell them some alcohol. Once at the store, Louie spoke with and distracted the cashier. Meanwhile, Kris hid behind the aisles, took five bottles of soju, and put them inside his backpack. In court, the prosecution introduced evidence of the conspiracy (i.e, CCTV footages showing Louie and Kris getting out of the car, and Louie distracting the cashier while Kris steals the alcohol), the existence of the conspiracy when the admission was made, and the conspiracy and felony as the substance of the admission. After establishing these facts, the prosecution introduced Louie’s extrajudicial admission to Mai as evidence against both Louie and Kris. If the conspiracy is not established first, the prosecution can only offer Louie’s admission as evidence against Louie, but not against Kris, pursuant to the general rule on res inter alios acta. This Rule is applicable to extrajudicial admissions and not to admissions done in open court. If an admission by a conspirator is made in court, it will be admissible against the co- conspirators, who will have the opportunity to cross-examine the declarant. Sec. 31. Admission by privies. — Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former. Privy- one who derives his title to property from another by purchase, conveyance or some other modes. Illustration: Suppose Pia owned “Malicia Farm,” a parcel of agricultural land. When Pia suddenly passed after being accidentally hit by a speeding tractor, her properties were inherited by her favorite granddaughter Jona. Jona was in the process of having the title to Malicia Farms transferred to her name when she received a notice to vacate from a certain Olivia Zang, who claimed to have bought the land from Pia. Olivia demanded that Jona vacate the property within 30 days, on the strength of a notarized contract of sale signed by Pia in favor of Olivia. Jona contended that she will not honor the In this case, Jona is deemed privy to the sale between Pia and Olivia. As Pia’s heir, she derives her rights from Pia. Since Pia has already transferred the title of the property to Olivia through a valid sale, Pia can no longer transfer any ownership to Jona. The sale, as well as the written contract, is binding upon Jona. The written contract is Pia’s admission, made while she was the owner of the property, that the title to the property had been validly transferred to Olivia. This admission by privy is admissible against Jona.. Sec. 32. Admission by silence (Adoptive Omission). — 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 to do so, may be given in evidence against him. Basis for the Rule on Admission by Silence The instinct of man is to resist an accusation or unfounded claim and defend himself, because it is totally against human nature to remain silent and say nothing in the face of false accusations. For example, Nicky is a member of the housekeeping staff on the cruise ship M/V Beautiful Seas. During the voyage, Vladimir, another member of the housekeeping staff, was found dead in Nicky’s cabin. Capt. Engracio called a crew meeting to discuss the incident. At the meeting, Max, the first mate, volunteered the information that Nicky and Vladimir got into a drunken fight, and Nicky killed Vladimir by stabbing him with an ice pick. Nicky, who was also present at the meeting and who heard Max’s accusations against him, did not give any comment. Nicky’s silence can be construed as an admission. Nicky’s human instincts should have compelled him to speak up and defend himself if Max’s statements were untrue. He understood Max’s statements, he has the interest to object if the statements were false, and he had the opportunity to object. He has knowledge of the facts, and he could have easily denied that he stabbed Vladimir with an ice pick. However, he did not do any of these, and his silence amounts to an agreement with Max’s accusations. Note, however, that persons under custodial investigation are not deemed to have admitted the charges if they do not object or defend themselves during the investigation. Accused persons have the right to remain silent, and their exercise of this right during the custodial investigation cannot be judged as admissions of guilt? Sec. 33. Confession. — The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him.  CONFESSION- a categorical acknowledgement of guilt made by the accused in a criminal case, without an exculpatory statement or explanation.  JUDICIAL CONFESSION- is one made before a court in which the case is pending and in the course of the legal proceedings therein, and by itself, can sustain a conviction.  EXTRAJUDICIAL CONFESSION- one made outside the court and cannot sustain a conviction unless corroborated by evidence of corpus delicti.  CORPUS DELICTI defined- it may refer to: The body of the crime or; The actual commission of the crime charged; or The fact that a crime has been actually Requisites of Confession: 1. Confession must be express and categorical; 2. Confession must be intelligent; 3. Confession must be voluntarily given; 4. There must be no violation of article III Sec. 12 of the Constitution. INTERLOCKING CONFESSION- is a confession in a criminal case so corroborative of each other as to impose faith that they must have a basis in fact. Where extrajudicial confession have been made by several persons charged with conspiracy and there could have been no collusion with reference to several confessions, the fact that the statements are in all material respects identical is confirmatory of the testimony of the accomplice. 4. Previous Conduct As Evidence (Modus Operandi) Sec. 34. Similar acts as evidence. — Evidence that one did or did not do a certain thing at one time is not admissible to prove that he 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. (Res inter alios act alteri noceri non debet-Part II) Note: This section is known as SIMILAR ACT RULE OR PREVIOUS CONDUCT RULE. Basis of the Rule on Similar Act Rule or Previous Conduct Rule or the Res Inter Alios Acta Alteri Noceri Non Debet Rule Part 2 The fact that a person has committed the same or similar acts at some prior time does not mean that he committed the same act in question. Sec. 35. Unaccepted offer. — 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. 5. Testimonial Knowledge Testimonial Knowledge Rule- means that the testimony of a witness must be based on his personal knowledge as hearsays are excluded. Personal knowledge - means cognizance of a circumstance or fact gained directly through firsthand experience or observation, or through a personal, familial, medical or professional relationship with the person. Sec. 36.Testimony generally confined to personal knowledge; hearsay excluded. — A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. Note: This section is known as the TESTIMONIAL KNOWLEDGE RULE. A witness can testify only to those facts he knows of his personal knowledge that is, which are derived from his own perception, meaning the testimony of the witness must be based on personal knowledge, not on what he heard from others or what other people told him because what he heard or what the others told him is hearsay. Hearsay Evidence- It is evidence not of what the witness knows himself by personal knowledge but of what he has heard from others. Hearsay evidence as a general rule is not allowed. It is also known as SECOND HAND EVIDENCE. An evidence is hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge of some other person not on the witness stand Hearsay Testimony- A testimony offered against a party who had no opportunity to cross-examine the witness. Double Hearsay (multiple hearsay)- The testimony of a person with respect to what was told him by another who was not a witness to a fact but who only obtained knowledge thereof from another. Note:  Hearsay Evidence is excluded because the party against whom it is presented is deprived of the right and opportunity to cross examine the persons to whom the statement is attributed.  Hearsay evidence may be admitted by failure of the party to make timely objections.  Independently relevant Statement- a doctrine which states that regardless of the truth or falsity of a statement, the fact that it has been made or relevant, the hearsay rule does not apply but the statement may be shown. Ex. Two years ago, my friend told me that his life was in danger and that he was going to be killed by a certain person whom he dealt with in his business. After a week, my friend was gunned down. I want to become a witness for my late friend, but I am afraid that the statement he gave me a week before he died may be considered hearsay. DOCTRINE OF INDEPENDENTLY RELEVANT STATEMENT- It states that when the testimony is presented to establish not the truth but only the tenor of the statement or the fact that the statement was made, it is not hearsay and hence admissible. Under this rule, only the fact that such statements were made is relevant and admissible, but the truth or even the falsity thereof is not material.  The test to determine whether an evidence is hearsay is whether the adverse party is deprived of the opportunity to confront or cross examine the witness against him. Rule on the Admissibility of an Affidavit An affidavit is hearsay and hence not admissible unless the affiant (maker) is presented in court. 6. Exceptions To The Hearsay Rule EXCEPTIONS TO THE HEARSAY EVIDENCE RULE 1. Dying Declaration; 2. declaration Against Interest; 3. Act or declaration About Pedigree; 4. Family reputation or Tradition Regarding Pedigree; 5. Common Reputation; 6. Parts of the Res Gestae; 7. Entries in the Course of Business; 8. Entries in Official Record; 9. Commercial Lists and the Like; and 10. Learned treatises. Sec. 37. Dying declaration. — The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. DYING DECLARATION (Ante Mortem Statement Or Staement In Articulo Mortis Or Declaration In Extremis) - is the declaration of a person, made under the consciousness of an impending death, maybe received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of his death Requisites of a Dying Declaration: 1. That death is imminent and the declarant is conscious of that fact; 2. The declaration refers to the cause and surrounding circumstances of such death; 3. The declaration relates to facts which the victim is competent to testify to; 4. The declaration is offered in a case wherein the declarant’s death is the subject of inquiry. 5. The declaration was made under the consciousness of an impending death 6. The declarant thereafter dies Note: Dying Declaration is admissible because when a person is at the point of death, every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth. Truth sits on the lips of dying men. Sec. 38. Declaration against interest. — The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact is asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons. DECLARATION AGAINST INTEREST- is the declaration made by a deceased person, 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 declarant’s own interest that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons. Requisites of Declaration Against Interest: 1. That the declarant is dead or unable to testify; 2. That it relates to a fact against the interest of the declarant; 3. That at the time he made said declaration, the declarant was aware that the same was contrary to his interest; 4. The declarant had no motive to falsify and believed such declaration to be true. Illustration At an office retreat, the new employee was sexually molested by an unidentified man. A group of male friends talked about the incident a week later during an after-work drinking session. Gordon, who was sufficiently drunk, remarked, “Atin-atin lang ‘to... Ako yun, Ako ang nauna, Champion!” Gordon went home that night and got into a heated argument with his neighbor. His neighbor attacked him with a bolo and a baseball bat, and Gordon died from multiple stab wounds. A rape case was eventually filed against Bado, who had been identified as the victim’s most avid suitor in the office. During the trial, the statement that Gordon - made during the drinking session was offered by the defense in an attempt to persuade the court that it was not Bado but Gordon who committed the felony.. Gordon’s statement is a declaration against penal interest. It was offered at’ the rape trial to prove that Bado is not guilty of the charge. If Gordon’s statement is not corroborated by other evidence that clearly indicates its reliability ( e.g., Gordon was seen breaking into the victim’s room), then the statement will be treated as hearsay, and it will not be admissible as evidence. Sec. 39. Act or declaration about pedigree. — The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, 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 and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. Act Or Declaration About Pedigree Requisites 1. The declarant is dead or unable to testify; 2. The declarant is related to the person whose pedigree is subject of inquiry by birth or marriage; 3. There is evidence to prove the relationship other than such declaration; 4. That declaration was made ante litem motam (prior to the controversy) or before the case was filed. Example. Yanna died from giving birth. Before she passed, she held her newborn son John, and she whispered to her brother Edward, “Si Ray ang ama ni John.” Twenty years later, in the probate proceedings for Ray’s Last Will and Testament, John’s filiation was put into issue by Ray’s sister Danica. Edward thus testified on Yanna’s declaration about John’s pedigree. Edward also presented photos of John’s grade school, high school, and college graduations, showing Ray and John together. Yanna’s declaration is hearsay because it was made outside of the probate proceedings. It is admissible, however, because she was John’s mother and, as such, has accurate information about John’s pedigree. In addition, Yanna’s statement is supported by the photos that Edward presented, and it was made before Danica put John’s relationship with Ray into question.. Sec. 40. Family reputation or tradition regarding pedigree. — The reputation or tradition existing in a family previous to the controversy (ante litem motam), 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 or affinity. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree. Family Reputation Or Tradition Regarding Pedigree Requisites 1. There is controversy in respect to the pedigree of any family member; 2. The reputation or tradition of the pedigree of the subject person existed prior to the controversy; 3. The witness testifying to the reputation or tradition regarding the pedigree of the person is also a member of the family of the subject person. Example: During the trial, the age of Shasha at the time when she was raped was raised as an issue. The defense claimed that Shasha was already thirteen years old at the alleged time of the rape and that, therefore, the rape was not statutory. To rebut this, the prosecution offered the testimony of Shasha’s Aunt Lisa. Lisa testified that Shasha was only seven years old at the time and that she was sure of this because, in their family, they send their children to attend Grade 1 classes when they turn seven years old. The family tradition, in this case, is the sending off of children to school when they - turn seven years old. This tradition is already being practiced by Shasha’s family prior to the criminal action for rape, where Shasha’s age was put into issue, and the testimony to prove Shasha’s age was given by a member of her family. Since all the requisites for family tradition regarding pedigree are present, Lisa’s testimony is admissible as an exception to the Hearsay Rule.. Sec. 41. Common reputation. — Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, 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. Common Reputation The Cambridge English Dictionary defines “reputation” as the “opinion that people, in general, have about someone or something.” In the context of hearsay, common reputation refers to the collective opinion of the community regarding a subject. The origin or source of this reputation is unknown, but the information is universally known by the members of the community. Evidence of common reputation is admissible so long as they are about: (1) the boundaries of or customs affecting lands in the community; (2) the events of general history important to the Examples: 1. In a case for kidnapping, a witness living in the locality was presented to prove that the place where the victim was taken was known in the area as an abandoned warehouse. The warehouse has a common reputation that it is abandoned and that nobody is present there. 2. In a case for concubinage, the security guard of the condominium building testified that they knew the accused as the husband of the woman residing in Unit 10G. The accuséd and the concubine have a common reputation that they are married. Sec. 42. Part of res gestae. — Statements made by a person while a starting occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of 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. PARTS OF THE RES GESTAE- these are statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence. So also a statement accompanying an equivocal act material to the issue and giving it legal significance may be received as part of the res gestae. Res Gestae refers to those exclamations or statements made by either the participants, victims, or spectators to a crime immediately before, during or immediately after its commission, when the circumstances are such that the statements were made a spontaneous reaction or utterance inspired by excitement of the occasion and there was no opportunity for the declarant to fabricate a false statement. The statement is one uttered without reflection, involuntarily, perhaps even without the declarants awareness of having uttered the same. Requisites Of Res Gestae 1. The statement must be spontaneous; 2. Made while a startling occurrence is taking place or immediately prior or subsequent thereto; 3. It must relate to the circumstances of the startling occurrence. Example: 1. While on the MRT, Kiko noticed that the man standing in front of him had his hand inside the bag of the woman who was facing the other way. Kiko exclaims, “Mandurukot!” The startling occurrence is the act of pickpocketing, and Kiko’s exclamation is his quick reaction to witnessing the crime. Distinguish Res Gestae from Dying Declaration: 1. Dying declaration are made only after the homicidal attack has been committed; but in res gestae, the statement may precede accompany or be made after the homicidal attack. 2. Dying declaration are made only by the victim; while statements as part of res gestae may be that of the killer himself or that of the third person. 3. The trustworthiness of the dying declaration is based upon its being given under an awareness of impending death, while on res Sec. 43. Entries in the course of business. — Entries made at, or near the time of transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. Entries In The Course Of Business Requisites (Business Entries Rule or Shop Book Rule) 1. The person made an entry; 2. That person is either dead or unable to testify 3. The entries were made at or near the time of the transaction 4. The entrant was in a position to know the facts stated therein 5. The entries were made in his professional capacity or performance of legal, moral or religious duties. Examples: 1. Bella is a graduate school librarian. On 16 September 2019, Jestoni borrowed a book on creating explosives. When Jestoni was checking out the book, Bella wrote Jestoni’s name on the book card and wrote the book information on Jestoni’s library card. The: entries in the book and library cards are entries in the regular course of business, because as a librarian, it was Bella’s job to write them, and she had personal knowledge that Jestoni borrowed the book. Sec. 44. Entries in official records. — Entries in official records made in the performance of his 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. Entries In Official Records Requisites 1. An entry was made by a person; 2. He is a public officer or one enjoined by law to do so; 3. It was made in the performance of duty; 4. The entrant had sufficient knowledge of the facts stated by him Examples: 1. Raya is the evidence custodian of her police precinct. On the night of a big buy-bust ' operation, Raya received the evidence seized and marked by the seizing officers. She recorded the evidence in the logbook by writing down the case number, the markings on the items, and their descriptions. The entries on the evidence that Raya received are entries in official records, because the Evidence Logbook is an official police record, and Raya made the entries in her official capacity as evidence custodian. Raya came to ‘know of the information through the officers who conducted Sec. 45. Commercial lists and the like. — 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 that occupation and is generally used and relied upon by them therein. Commercial Lists and the Like Commercial lists are publications catering to a specific audience belonging to a common industry. They are published to inform and guide the persons belonging to that industry in the conduct of their business. Example Arthur regularly checks the business pages of the newspaper to monitor stock prices. He invested in corporate stocks of fast-food restaurants and technology companies and is thus interested in monitoring the value of the stocks so that-he can sell and buy them as necessary. Like Arthur, other stock investors and brokers rely upon the stock pages of newspapers to monitor their investments. These pages are, therefore, commercial lists that are admissible in evidence. Sec. 46. Learned treatises. — 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 profession or calling as expert in the subject. Examples: Thea is a well-respected museum curator and an art professor. She published the book “Impressionism in the 21st Century.” In a case for copyright infringement, the section of Thea’s work describing a particular painting was admitted by the court as evidence because Thea is considered an expert in her field, and her book is exempt from the Hearsay Rule as a learned treatise. Sec. 47. Testimony or deposition at a former proceeding. — The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. Example: Alon and Ava were married on 28 April 2002. Due to constant fights about their finances, the relationship deteriorated, and they separated. Alon eventually filed for annulment, and in the proceedings, testified and was cross-examined about his marriage to Ava. While the annulment proceedings for Alon and Ava’s marriage were underway, Alos met Lou, fell in love, and got married again on 19 May 2006. Ava eventually learned of Alon’s subsequent marriage to Lou and filed a case for bigamy against Alon. Alon was called to testify in the criminal case for bigamy. Unfortunately, Alon could not attend the hearing because he was confined in the hospital, having caught a viral infection. , Ava’s counsel instead offered in evidence Alon’s testimony in the annulment case to prove that Alon and Ava were married. Alon’s testimony is admissible in evidence because it was given in a former proceeding involving him and Ava, and it concerns the fact of their marriage. Alon was also cross-examined in the annulment proceedings, which means that his testimony had been tested and probed by the adverse party. 7. Opinion Rule Sec. 48. General rule. — The opinion of witness is not admissible, except as indicated in the following sections. Sec. 49. Opinion of expert witness. — The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he shown to posses, may be received in evidence. Sec. 50. Opinion of ordinary witnesses. — The opinion of a witness for which proper basis is given, may be received in evidence regarding — (a) The identity of a person about whom he has adequate knowledge; (b) A handwriting with which he has sufficient familiarity; and (c) The mental sanity of a person with whom he is sufficiently acquainted. The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person.  Unlike experts, ordinary witnesses are not required to have scholarly or technical familiarity on a technical subject. They are, however, expected to possess sufficient familiarity with the identity of a person, the handwriting of a person, or the mental sanity of a person, because these are the subjects of their testimony. Their exposure to the subject makes them qualified. witnesses, and their opinions on these matters can be relied on by the court even when they are based on their interpretation of the facts. Examples: 1. The mental lucidity of 70-year old Lara was put into question after she donates her house to Gelo, a 40-year old man she met through a common ffiend. Lara’s nurse Elaine testified in a suit for Lara’s guardianship and stated that in her opinion, Lara is no longer of sound mind. Elaine explained that Lara would misplace things, like the. TV remote that Elaine found in the freezer, and that Lara would sometimes forget who she is even though she had been taking care of Lara for six years. 2. Dr. Javier had been charged with medical malpractice for allegedly prescribing restricted drugs to a patient who doés not need them. Dr. Javier’s secretary of 20 years, Linda, has a deep familiarity with Dr. Javier’s handwriting since she keeps the Character evidence is evidence on an individual's personality traits, propensities, or moral standing. 8. Character Evidence Sec. 51. Character evidence not generally admissible; exceptions: — (a) In Criminal Cases: (1) The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. (2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged. (3) The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the (b) In Civil Cases: Evidence of the moral character of a party in civil case is admissible only when pertinent to the issue of character involved in the case. (c) In the case provided for in Rule 132, Section 14 Sec. 14. Evidence of good character of witness. Evidence of the good character of a witness is not admissible UNTIL such character has been impeached. (17) Character and Reputation, Distinguished: Character is what a man really is, reputation is what other people a man say he is. As a general rule the prosecution cannot prove the bad moral character of the accused. However, if the accused in his defense attempts to prove his good moral character, then the prosecution can introduce evidence of his bad moral character at the rebuttal stage. V. Burden of Proof and Presumptions (RULE 131) 1. Burden of Proof Burden of Proof (ONUS PROBANDI)- is defined as the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense. SECTION 1. Burden of proof. — Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. PREPONDERANCE OF EVIDENCE- it means that the testimony adduced by one side is more credible and conclusive than that of the other, or the evidence as a whole, adduced by one side is superior to the other. It is not meant the mere numerical array of witnesses, but it means the weight, credit and value of the aggregate evidence on either side. Preponderance of evidence means evidence which is of greater weight or more convincing than the other. SUBSTANTIAL EVIDENCE- such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Presumptions Presumption is an inference of the existence or non-existence of a fact which courts are permitted to draw from the proof of other facts. Classification of Presumptions 1. Presumption of Law (praesumptiones juris)- law requires to be made from a set of facts. a) Conclusive/Absolute presumption is an inference which the law makes so peremptory that it will not allow such inference to be overturned by any contrary proof however strong. Conclusive presumption is also known as presumption juris et de jure; b) Disputable/Rebuttable presumption is a presumption which stands as true unless rebuttedby contrary evidence. This is also known as presumption juris tantum. 2. Presumption of fact (praesumptiones hominis)- made from the facts without any direction of positive Sec. 2. Conclusive presumptions. — The following are instances of conclusive presumptions: (a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led to another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it. [ESTOPPEL IN PAIS] (b) The tenant is not permitted to deny the title of his landlord at the time of commencement of the relation of landlord and tenant between Example A : A creditor unofficially informs a debtor that the creditor forgives the debt between them. Even if such forgiveness is not formally documented, the creditor may be estopped from changing its mind and seeking to collect the debt, because that change would be unfair. Example B: A landlord informs a tenant that rent has been reduced, for example, because there was construction or a lapse in utility services. If the tenant relies on this statement in choosing to remain in the premises, the landlord could be estopped from collecting the full rent. Defined as "failure or neglect for an unreasonable and unexplained length of time, to do that which, by exercising due diligence, could or should have been done earlier." a. Estoppel in pais b. Estoppel by deed c. Estoppel by laches d. NOTA Defined as "failure or neglect for an unreasonable and unexplained length of time, to do that which, by exercising due diligence, could or should have been done earlier." a. Estoppel in pais b. Estoppel by deed c. Estoppel by laches d. NOTA The tenant is not permitted to deny the title of his landlord at the time of commencement of the relation of landlord and tenant between them. a. Estoppel in pais b. Estoppel by deed c. Estoppel by laches d. NOTA The tenant is not permitted to deny the title of his landlord at the time of commencement of the relation of landlord and tenant between them. a. Estoppel in pais b. Estoppel by deed c. Estoppel by laches d. NOTA Sec. 3. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: (a) That a person is innocent of crime or wrong; (b) That an unlawful act was done with an unlawful intent; (c) That a person intends the ordinary consequences of his voluntary act; (d) That a person takes ordinary care of his concerns; (e) That evidence willfully suppressed would be adverse if produced; (f) That money paid by one to another was due to the latter; (g) That a thing delivered by one to another belonged to the latter; (h) That an obligation delivered up to the debtor has been paid; (i) That prior rents or installments had been paid when a receipt for the later one is produced; (j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possess, or exercises acts of ownership over, are owned by him; (k) That a person in possession of an order on himself for the payment of money, or the delivery of anything, has paid the money or delivered the thing accordingly; (l) That a person acting in public office was regularly appointed or elected to it; (m) That official duty has been regularly performed; [presumption of regularity] (n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; (o) That all the matters within an issue raised in a case were laid before the court and passed upon by it; and in the like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them; (q) That the ordinary course of business has been followed; ® That there were sufficient consideration for a contract; (s) That a negotiable instrument was given or indorsed for a sufficient consideration; (t) That an indorsement of a negotiable instrument was made before the instrument was made before the instrument was overdue and at the place where the instrument is dated; (u) That a writing is truly dated; (v) That a letter duly directed and mailed was received in the regular course of mail; (w) That after an absence of seven years, (7) it being unknown whether or not the absentee still lives, he is considered dead for all purposes, except for those of succession. [presumptive death] The absentee shall not be considered dead for the purpose of opening his succession till after an absence of ten years (10). If he disappeared after the age of seventy-five years, an absence of five years (5) shall be sufficient in order that The following shall be considered dead for all purposes including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aircraft with is missing, who has not been heard of for four years since the loss of the vessel or aircraft; (2) A member of the armed forces who has taken part in armed hostilities, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and whose existence (4) If a married person has been absent for four consecutive years, the spouse present may contract a subsequent marriage if he or she has well-founded belief that the absent spouse is already dead. In case of disappearance, where there is a danger of death the circumstances hereinabove provided, an absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage. However, in any case, before marrying again, the spouse present must institute summary proceedings as provided in the Family Code and in the rules for declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (x) That acquiescence resulted from the belief that the thing acquiesced in was conformable to the law or fact; (y) That things have happened according to the ordinary course of nature and the ordinary habits of life; (z) That person acting as co-partners have entered into a contract of co-partnership; (aa) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; (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; (cc) That in case 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 (dd) That if the marriage is terminated and the mother contracted another marriage within three hundred 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 one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former (ee) That a thing once proved the exist continues as long as is usual with things of that nature; (ff) That the law has been obeyed; (jj) That except for purposes of succession, when two 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 the age of the sexes, according to the following rules: 1. If both were under the age of fifteen years, the older is deemed to have survived; 2. If both were above the age sixty, the younger is deemed to have survived; 3. If one is under fifteen and the other above sixty, the former is deemed to have survived; 4. If both be over fifteen and under sixty and the sex be different, the male is deemed to have survived, if the sex be the same, the older; 5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have (kk) That if there is a doubt, as between two 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. (5a) Some Common and Well- Recognized Presumptions by Jurisprudence. 1. That a man and a woman living together are married. 2. That every person is of sound mind as sanity is presumed and not insanity. 3. That good faith is always presumed and not bad faith. 4. That a person is potent because impotency being an abnormality is not presumed. DOCTRINE OF STALE DEMANDS- It is the failure or neglect for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier, thus giving rise to a presumption that the party entitled to assert it has abandoned or declined to assert it. The doctrine of stale demands is also known as LACHES. VI. PRESENTATION OF EVIDENCE (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 questions call for a different mode of answer, the answers of the witness shall be given orally. Oath- A form of attestation by which a person signifies that he is bound in conscience and that in case he does not tell the truth divine retribution would follow against him. Affirmation- A declaration instead of an oath that a person will tell the truth. Sec. 2. Proceedings to be recorded. — The entire proceedings of a trial or hearing, including the questions propounded to a witness and his answers 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, steno typist or recorder and certified as correct by him shall be deemed prima facie a correct statement of such proceedings. B. Rights and Obligations of Witnesses Sec. 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. Note: This is the right of the person against self- incrimination. But it is not self-executing or automatically operational. It must be claimed. Otherwise it is considered waived, as by failure to claim it at the appropriate time. Hence, the accused must actively invoke it. The proper time to invoke it is when a question calling for incriminating answer is asked. Note also that it applies to testimonial compulsion only. C. Order of Examinations of Witnesses Proper Order In The Examination Of A Witness 1. Direct examination by the proponent- the examination in chief of a witness by the party presenting him on the facts relevant to the issue. 2. Cross examination- a mode of procedure to test the truth of the statements made by a witness under direct examination by testing the recollection, veracity, accuracy, honesty and bias or prejudice of a witness, and exhibit the improbabilities of his testimonies. 3. Re-direct examination- a procedure to meet and answer the cross examination, to explain or supplement statements made on cross examination which tend to create doubts and to contradict matters drawn forth on direct examination. 4. Re-cross examination- a procedure by which a party re-examines the witness on matter stated in his re-direct Sec. 4. Order in the examination of an individual witness. — The order in which the individual witness may be examined is as follows; (a) Direct examination by the proponent; (Also known as EXAMINATION IN CHIEF) (b) Cross-examination by the opponent; (c) Re-direct examination by the proponent; (d) Re-cross-examination by the opponent. Sec. 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. Sec. 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, and to elicit all important facts bearing upon the issue. Laying the Predicate- A process of cross examining the witness by first laying a ground upon cross examination, and if denied by the witness, then by introducing evidence of contradictory statements to impeach him. English Rule on Cross Examination- Under this rule, a witness maybe examined not only upon matters testified to by him on his direct examination, but also upon on all matters relevant to the issue. We follow this style of cross examination. Sec. 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. Sec. 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. [Rebuttal Evidence and Sur Rebuttal Evidence] Sec. 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. D. Kinds of Questions Propounded to a Witnesses LEADING QUESTIONS, defined- it is a question which suggests to the witness the answer which the examining party desires to hear. It is one by which the answer of a witness may be rather an echo to the question than a genuine recollection of events. As a general rule leading questions are NOT ALLOWED. Exceptions to the rule that leading questions are not allowed (In the following cases leading questions are now allowed) 1. On cross examination; 2. On preliminary matters; 3. When there is difficulty in getting from ignorant or child witness, or deaf mute witness a direct and intelligible answer. 4. Unwilling or hostile witness 5. Witness who is an adverse party MISLEADING QUESTION defined- it is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. Misleading questions are not allowed. Sec. 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: (a) On cross examination; (b) On preliminary matters; (c) 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; (d) Of an unwilling or hostile witness; or (e) 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. E. Impeachment of Witnesses Impeachment of a Witness- means discrediting a witness or browbeating with the witness. Ways of Impeaching an Adverse Party Witness: 1. By contradictory evidence; 2. By evidence of prior inconsistent statement; 3. By evidence of his bad character. Sec. 11. Impeachment of adverse party's witness. — A witness may be impeached by the party against whom he was called, by: 1. contradictory evidence, 2. by evidence that his general reputation for truth, honestly, or integrity is bad, or 3. by evidence that he has made at other times statements inconsistent with his present, testimony, but not by evidence of particular wrongful acts, 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 Sec. 12. Party may not impeach his own witness. — Except with respect to witnesses referred to in paragraphs d (unwilling or hostile witness) and e (witness who is adverse party) of Section 10, the party producing a witness is not allowed to impeach his credibility. 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- Sec. 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, 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] LAYING THE PREDICATE -is a rule of evidence which ordains that before a witness can be impeached by evidence that he has made at other times statement inconsistent with his present testimony, the statement must be related to him, with the circumstances of the times and the places and the persons present, and he must be asked whether he made such statements and if so, allowed to explain them. If the statement is in writing, they must be shown to him before any question is put to him concerning them. Steps in Impeaching Witness by Prior Inconsistent Statements 1. SHOW to the witness the statement in writing. 2. RELATE to the witness the statement with the circumstances of time, persons and places. 3. ASK the witness if he made those statements. 4. EXPLANATION is demanded of the witness regarding the alleged inconsistencies. Sec. 14. Evidence of good character of witness. — Evidence of the good character of a witness is not admissible until such character has been impeached. F. Necessity of Exclusion and Separation of Witnesses Sec. 15. Exclusion and separation of witnesses. — On any trial or hearing, the judge may exclude from the court any witness not at the time under examination, so that he may not hear the testimony of other witnesses. The judge may also cause witnesses to be kept separate and to be prevented from conversing with one another until all shall have been examined. Sec. 16. When witness may refer to memorandum. — 1. A witness may be allowed to refresh his memory respecting a fact, by anything written or recorded by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and knew that the same was correctly written or recorded [Revival of Present Memory, e.g. diary- testimonial]; but in such case the writing or record must be produced and may be inspected by the adverse party, who may, if he chooses, cross examine the witness upon it, and may read it in evidence. 2. A witness may testify from such writing or record, though he retain no recollection of the particular facts, if he is able to swear that the writing or record correctly stated the transaction when made; but such evidence must be received with caution [Revival of Past Rec