evidence part 2.pdf

7/25/2019 Evidence Part 2.pdf

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REMEDIAL LAW (Atty. Ferdinand Tan)

Evidence

Rule 131: Burden of Proof and Presumptions

I.

BURDEN OF PROOF/Onus Probandi (Rule

131, Section 1)

- The duty of the parties

- To present evidence

- Of the facts in issue

- Necessary to establish

- His claims or defenses

- By the amount of evidence

- Required by law.

Burden of Evidence

- The duty of the party

- To go forward with the evidence

-

To overthrow the prima facie evidenceagainst him. (Riano, Evidence, p. 408)

Distinctions between Burden of Proof and

Burden of Evidence:

a. As to whether such burden shifts from one

party to another:

- Burden Of Proof does not shift because it

remains with the party upon whom it is

imposed; Burden Of Evidence shifts from

party to party depending on the exigencies

of the case.

b. As to how it is determined:- Burden of proof is determined by the

pleadings filed by the party; while burden of

evidence is determined by the developments

at the trial, or by the provisions of the

substantive law or procedural rules.

Note: Do not be confused with burden of proof and

quantum of evidence. Quantum of evidence is a

different matter. It is the weight of evidence. While

burden of proof is the duty to present evidence to

prove his case according to the quantum of evidence

required.

Burden of Proof in Different Cases: (Be ready with

definition of terms)

1. In illegal dismissal employer has the burden

of proving that the dismissal is legal.

2. In payment of backwages it is the employee

that has the burden of proving that he is

entitled.

3. In civil cases it is always the the party that

alleges a fact.

4. In a complaint plaintiff

5. Counterclaim defendant

6. Cross-claim defendant against anotherdefendant.

7. Answer defendant8. Reply plaintiff

9. Culpa-contractual cases against a common

carrier the common carrier has the burden

of proving that they observed extraordinary

diligence. Otherwise, their negligence will be

presumed; hence, they are liable.

10.Rule on payment

General Rule: He who pleads payment has

the burden of proving it.

Exception: When the pleader presented

evidence of such payment, the creditor has to

prove that there was non-payment.

11.In disbarment cases complainant

Equiponderance Doctrine/Equipoise Rule

- Where the evidence of the parties are evenly

balanced or there is doubt on which side the

evidence preponderates, the decision shall be

rendered against the person that has the

burden of proving.

- Constitutional Basis is the due process clause

(Article III, Section 1)

II.

PRESUMPTIONS

1.

Definition

- It is an inference of the existence or

inexistence of a fact

- Which courts are permitted to draw from

proof of other facts. (Regalado, p. 775; Riano

p. 427)

2.

Kinds of Presumption

A.

Rules of Court

a.

Conclusive Presumption- A presumption that is irrebuttable upon the

presentation of the evidence.

b.

Rebuttable Presumption

- A presumption that may be contradicted or

overcome by other evidence.

B.

Other kinds of Presumption


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a. Presumption of law

- An assumption which the law requires to be

made from a set of facts.

b. Presumption of fact

- An assumption made from the facts without

any direction or positive requirement of a

law.

Conclusive Presumptions under the Rules of

Court:

(Note: These presumptions are based on the

principle of estoppel under the Civil Code. The 2

presumptions are kinds of estoppel in pais)

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 permittedto falsify it:

B. The tenant is not permitted to deny the title of his

landlord at the time of commencement of the relation

of landlord and tenant between them.

Disputable Presumptions under the Rules of

Court

Notes:

1.

Just substantially memorize the

disputable presumptions under Rule 131,Section 3. There are 37 disputable

presumptions under Section 3.

2.

If you are asked as to what quantum of

evidence is needed to overthrow a

disputable presumption, it is by CLEAR

AND CONVINCING EVIDENCE. The only

exception here is that a person is innocent of

a crime.

RULE 132: Presentation of Evidence

Witness

I. How is he examined?

- It shall be done in open court

- Under oath or affirmation

- Examined orally, unless the witness is

incapacitated to speak or the question calls

for a different answer.

Note: Because of the enactment of the Judicial

Affidavit Rule, there is no more direct examination of

a witness. He will be required, in lieu of a direct

examination, a judicial affidavit.

II.

Kinds of Witnesses

a. Expert witness a witness on a matterrequiring special knowledge, skill, experience

or training, which he is shown to possess.

b. Ordinary witness (see Section 50, Rule 130)

c. Competent Witness a witness that can

testify that is not excluded by the law or by

the Rules.

d. Credible Witness a witness whose

testimony is given weight by the court worthy

of belief.

e. Honest Witness a witness who tells the

truth to the questions being propounded to

him.f. Perjured Witness a witness who is guilty of

swearing a false oath or of falsifying an

affirmation to tell the truth, whether spoken

or in writing.

g. Relevant Witness a witness testifying on amatter that has a relation to the fact in issue

as to induce belief in its existence or non-

existence.

h. Hostile Witness a witness found by the

court of his adverse interest, unjustified

reluctance to testify, or his having misled the

party into calling him to the witness stand.

III.

Obligation of a Witness (Rule 132, Section

3)

- He must answer questions, although his

answer may tend to establish a claim against

him.

- Note: the claim must be limited to a civil

claim. If criminal, Rule 132, Section 3 (4) may

be invoked.

IV.

Rights of a Witness (Rule 132, Section 3

(1) to (5)

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 o

justice require;

3. Not to be examined except only as to matters

pertinent to the issue;


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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

V.

Order of Examination of a Witness:

1. Direct Examination

- The examination-in-chief by the party

presenting him on the facts relevant to the

issue.

- Note again that you should refer to the

Judicial Affidavit Rule. There is no more direct

examination.

2.

Cross-Examination

- An examination conducted by the adverse

party

- as to any 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 an important acts bearing upon

the issue.

3.

Re-Direct Examination- A re-examination by the party calling him

- To explain or supplement his answers given

during cross.

- The court MAY ALLOW questions on matters

not dealt with during the cross.

- Note:This is optional on the party calling him.

4. Re-Cross

- An examination after re-direct on matters

stated in his re-direct, and also on other

matters as may be allowed by the court in its

discretion.

VI. Rule on Recalling Witness

- It can only be done after both parties have

examined the witness.

- It can only be done with leave of court.

- The party must make a motion to recall the

witness. The partys recalling of a witness is

subject to the discretion of the court, as the

interest of justice may require.

VII.

Leading Question (Rule 132, Section 10)

- It is a question which suggests to the witness

the answer which the examining party

desires.

Example: questions answerable by yes or no.

General Rule:

- It is not allowed.

Exceptions:

(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.

Misleading Question

- A question that 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.

VIII.

Impeachment of a Witness

Notes:

1. Determine whether you are impeaching as an

adverse party or as a party who presented the

witness.

2. Distinguish the concept of laying the basisand laying the predicate. Laying the

basis is a principle followed to present

secondary evidence in order for such kind of

evidence to be admitted by the court, as anexception to the Best Evidence Rule. On the

other hand, laying the predicate is a

principle followed in impeaching a witness by

evidence of inconsistent statements, as per

Rule 130, Section 13.

A. Impeachment of an Adverse PartysWitness


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a.

Contradictory evidence

b. Evidence that his general reputation for

truth, honesty, and integrity is bad

c.

Evidence that he has made at other times

statements inconsistent with his present

testimony. (Inconsistent statements)

Notes:

1.

The bad reputation, in impeaching a witness,

should refer only to the truth, honesty, or

integrity of his reputation. Example is that he

was once guilty of perjury.

2.

There is no impeachment by evidence of bad

character; only bad reputation. (Rule 132,

Sections 12 and 14, in relation to Rule 130,

Section 51 c)

3. Doctrine of Laying the Predicate; How

made: (Rule 132, Section 13)

a.

The statement must be related to himb. The circumstances of the times and places

and the persons present must also be

related to him.

c. Ask the witness whether he made such

statement.

d. If so, allow the witness to explain them.

e. If the statements be in writing, they must

be shown to the witness before any

question is put to him concerning them.

4. A witness cannot be impeached by evidence

of particular wrongful acts except evidence of

his final conviction of an offense as disclosedby his examination or by the record of

judgment. (Riano, p. 324)

B.

Impeachment of Own Witness

General Rule:it is not allowed.

Exceptions:

1. Unwilling or hostile witness

2.

A witness who is an adverse party.

DOCUMENTS

I.

Classes of Documents

A. Public documents

a) The written official acts, or records of the official

acts of the sovereign authority, official bodies and

tribunals, and public officers, whether of the

Philippines, or of a foreign country;

b) Documents acknowledge before a notary public

except last wills and testaments; and

c) Public records, kept in the Philippines, of private

documents required by law to the entered therein.

B. Private Documents those that are notconsidered public.

How to prove Private Documents

1. When offered as authentic, its due execution

and authenticity is proved either:

a. By anyone who saw the document

executed or written; or,

b. By evidence of genuineness of the

signature or handwriting of the maker.

2. Not offered as authentic, it need only be

identified as that which it is claimed to be.

II. Ancient Document Rule the effect is thatno other evidence of its authenticity need

be given.

a. A private document is more than 30 years old

b. Produced from a custody in which it would

naturally be found if genuine

c. It is unblemished by any alterations or

circumstances of suspicion

What is the principle of Irremovability of a

Public Record? (Rule 132, Section 26)- Any public record, an official copy of which is

admissible in evidence,

- must not be removed from the office in which

it is kept,

- except upon order of a court where the

inspection of the record is essential to the just

determination of a pending case.

How to Impeach Judicial Records:

- Present evidence of:

a. Want of jurisdiction in the court or judicia

officerb. Collusion between parties

c. Fraud in the party offering the record, in

respect to the proceedings.

Notes:


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1.

Documentary evidence not written in our

official language is inadmissible if there is no

English or Filipino translation. (Rule 132,

Section 33)

2. In proving notarial documents, the certificate

of acknowledgment is a prima facie evidence

of the execution of the instrument or

document involved. (Section 30)

3.

The party producing a document as genuine

which has been altered and appears to have

been altered after its execution, in a part

material to the question in dispute, must

account for the alteration. He may show that

the alteration was made by another, without

his concurrence, or was made with the

consent of the parties affected by it, or was

otherwise properly or innocent made, or that

the alteration did not change the meaning or

language of the instrument. If he fails to dothat, the document shall not be admissible in

evidence. (Section 31)

OFFER AND OBJECTION

Offer

- The court shall consider no evidence which

has not been formally offered. The purpose

for which the evidence is offered must be

specified. Hence, the offer shall be made

during trial.

When to Make an Offer:

A. Judicial Affidavit Rule

1. Under Section 6 of the JAR, instead of offering

the oral testimony of the witness, the party

using the judicial affidavit of his witness in

place of a direct testimony shall present such

affidavit and state the purpose of the

testimony contained therein at the start of the

presentation of the witness. (Riano)

2. Under Section 8 of the JAR, a party shall

immediately make an ORAL OFFER of

evidence of his documentary or objectexhibits, piece by piece, in their chronological

order, stating the purpose for which he offers

the particular exhibit. Such offer shall be

made upon the termination of the testimony

of his last witness. (Riano)

B. Under the Rules of Court

1. As regards the testimony of a witness, the

offer must be made at the time the witness is

called to testify.

2. As regards documentary and object evidence

they shall be offered after the presentation of

the testimonial evidence. Such offer shall be

done orally unless allowed by the court to be

done in writing.

Note:Notice the difference between the provisions o

the Judicial Affidavit Rule and the Rules of Court with

regard to offer of documentary and object evidence

The JAR only allows oral offer; while the Rules of

Court allows either oral or written offer.

Objections

Kinds:

1. General Objection It does not go beyonddeclaring the evidence as immaterial, incompetent

irrelevant or inadmissible. In other words, it does not

specify the grounds for objection. (Also known as a

Broadside Objection)

2. Specific Objection It states why or how the

evidence is irrelevant or incompetent. Example

Objection to the question for being leading.

3. Noted Objection an objection which shall bemarked by the court as notedand will be placed in

the stenographic notes for further consideration.

4. Continuing Objection when it becomes

reasonably apparent in the course of the examinationof a witness that the questions being asked are of the

same class as those to which objection has been

made, regardless of whether such objection was

sustained or overruled.

5. Sustained Objection an objection given merit

by the judge.

6. Overruled Objection an objection not given

merit by the judge.

7. Formal Objection an objection directed against

the alleged defect in the formulation of the question

(Riano, p. 465)

8. Substantive Objection an objection made anddirected against the very nature of the evidence

(Riano, p. 465)

9. Belated Objection - it is an objection not raised

on time. It is considered a waiver of the objectionable

ground.

When to Make an Objection:

A. Judicial Affidavit Rule


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1. The presentation of the judicial affidavit and

the statement of the purpose of the testimony

contained therein will give the adverse party

the opportunity to object to the testimony.

Such party may, on the ground of

admissibility, move to:

a. Disqualify a witness

b. Strike out his affidavit

c. Strike out any of the answers found in the

judicial affidavit. (Section 6, JAR, from the

Riano annotations)

2. As regards documentary and object evidence,

after each piece of evidence is offered, the

adverse party shall state the legal ground for

his objection, if any, to its admission, and the

court shall immediately make its ruling

respecting that exhibit. (Section 8, from theRiano annotations)

B.

Under the Rules of Court

1.

Evidence offered orally

- It must be made immediately after the offer

is made.

2. A question propounded in the course of

the oral examination of a witness

- Object as soon as the grounds therefor shall

become reasonably apparent.

3.

Evidence in writing

- Objected to within 3 days after notice of the

offer unless a different period is allowed by

the court.

Ruling on the Objections:

- As a rule, the court must rule immediately

after the objection has been made. However,

the court may take a reasonable time to study

the questions raised by the objection, but a

ruling should always be made during the trial.

If no ruling is made during the course of thetrial, counsel would have no means of

knowing whether or not he would be

compelled to meet any evidence at all, hence

it would prejudice the substantial rights of his

client.

- The reason for sustaining or overruling an

objection need not be stated. However, if the

objection is based on 2 or more grounds, a

ruling sustaining the objection on one or

some of them must specify the ground relied

upon.

Motion to Strike Out; When Available:

(Riano, p. 467)

a. The answer is premature.

b. The answer of the witness is irrelevant

incompetent or otherwise improper.

c. The answer is unresponsive.

d. The witness becomes unavailable for cross-

examination through no fault of the cross

examining party

e. The testimony was allowed conditionally and

the condition for its admissibility was not

fulfilled.

Motion to Strike Out; When to Make (Rule 132,Section 39)

- Should a witness answer the question before

the adverse party had the opportunity to

voice fully its objection to the same, and such

objection is found to be meritorious, the court

shall sustain the objection and order the

answer to be stricken out of the record.

Tender of Excluded Evidence/Proffer of

Evidence/Offer of Proof (Rule 132, Section 40)

- If documents or things offered in evidenceare excluded by the court, the offeror may

have the same attached to or made part of the

record. If the evidence excluded is oral, the

offeror may state for the record the name and

other personal circumstances of the witness

and the substance of the proposed testimony.

Rule 133: Weight and Sufficiency of Evidence

(Quantum of Evidence)

Evidence on motion (Rule 133, Section 7)

-When a motion is based on facts not appearing of

record, the court may hear the matter on affidavits or

depositions presented by the respective parties, but

the court may direct that the matter be heard wholly

or partly on oral testimony or depositions.

Proof Beyond Reasonable Doubt


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- A kind of evidence proving a moral certainty,

which is a degree of proof which produces

conviction in an unprejudiced mind.

Clear and Convincing Evidence

- An evidence which produces in the mind of a

trier of factA FIRM BELIEF OR CONVICTION

as to the allegations sought to be

established.

Preponderance of Evidence

- Superior weight of evidence on the issue.

Substantial Evidence

- An amount of relevant evidence which a

reasonable mind might accept as adequate to

justify a conclusion.

Circumstantial Evidence

- An evidence which proves a fact in issuethrough an inference which the fact finder

draws from the evidence established.

How to Prove Conviction using Circumstantial

Evidence: (People v. Valiong)

a.

There is more than one circumstance.

b.

The facts from which the inferences are

derived are proven

c. The combination of all the circumstances is

such as to produce a conviction beyond

reasonable doubt.

Notes:

1. If asked whether there is an instance of a

court proceeding that merely requires

substantial evidence: WRIT OF AMPARO, as

it is expressly provided under the rules on the

Writ of Amparo.

2. If asked whether there are instances in

crimpro that do not require proof beyond

reasonable doubt:

a.

In a petition for bail, the quantum is

preumption great, meaning CLEAR

AND CONVINCING EVIDENCE.b.

Under the Rules of Environmental

Procedure, if you file a motion to

dismiss based on Strategic Lawsuit

Against Public Participation, the

movant shall prove the existence of

SLAPP by substantial evidence. The

person filing the action assailed as SLAPP

shall prove by preponderance of

evidence that the action is not a SLAPP.