ETRIII
REMEDIAL LAW REVIEW Lecture Series
Lecture
Outline No. 3
PART 1
OUTLINE/ LECTURE ON
TESTIMONIAL EVIDENCE & DISQUALIFICATIONS
By: Atty. Eduardo T.
Reyes, III
(Prepared for Law 3-A,
University of San
Agustin Law School,
SY 2016-2017)
A. Requisites for
Admissibility of Testimonial Evidence
Section 20,
Rule 130. Witnesses, their qualifications.- Except as provided in the next
succeeding section, all persons who can perceive, and perceiving, can make
known their perception to others, maybe 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 a ground for
disqualification.
Section 1,
Rule 132. Examination to be done in open court. – The examination of witnesses
presented in a trial or hearing shall be done in open court, and under oath or
affirmation. Unless the witness is incapacitated to speak, or the question
calls for a different mode of answer, the answers of the witness shall be given
orally.
Requisites:
A.1. Ability to Perceive
A.2. Capability to Make Known or Communicate
his Perception
A.3. Declaration must be Done in
Open Court; and,
A.4. Declaration must be under Oath
or Affirmation.
A.5. Possesses NONE OF THE
DISQUALIFICATIONS as stated in Secs. 21- 25, Rule 130 of the Rules on Evidence
A.1. Ability to Perceive. “A person is qualified or is competent to be
a witness, if (a) he is capable of perceiving, and (b) he can make his
perception known. It should be noted however, that loss of the perceptive sense
after the occurrence of the fact does not affect the admissibility of the
testimony. Hence a blind man can testify to what he prior to his blindness or a
deaf man, to what he heard prior to his deafness. But a person incapable of
perception is PRO TANTO INCAPABLE OF TESTIFYING.
A witness may have been capable of
perceiving, yet incapable of narration. He may have no powers of speech, and
have no means of expressing himself by signs. He may have become insane since
the occurrence he is called upon to relate. A person incapable of narration
is PRO TANTO INCAPABLE OF TESTIFYING”[1].
A.1.1. What about in cases of
DIFFICULTY of a witness in COMPREHENDING the questions being propounded by the
counsel examining her? Would this render a witness as INCOMPETENT?
“The fact that complainant displayed difficulty
in comprehending the questions propounded on her is undisputed. However,
there is no showing that she could not convey her ideas by words or signs. It
appears in the records that complainant gave sufficiently intelligent answers
to the questions propounded by the court and the counsels. The trial court is
satisfied that the complainants can perceive and transmit in her own way her
perceptions to others. She is therefore found to be a competent witness.[2]”
A.2. Capability
to Make Known or Communicate his Perception.
A.3. Declaration must be Done in
Open Court; and,
A.4. Declaration must be under Oath
or Affirmation. “A person
is not qualified to be a witness if he is incapable of understanding the duty
to tell the truth. An oath or affirmation is necessary for the witness to
recognize the duty to tell the truth. The oath of a witness signifies that
he is swearing to the Creator “to tell the truth and nothing but the truth” and
that if he does not, he will later on answer for all the lies he is guilty of.”
X x x “It is enough that the witness understands and believes that some earthly
evil will occur to him for lying.[3]”
A.5. Possesses NONE OF THE
DISQUALIFICATIONS as stated in Secs. 21- 25, Rule 130 of the Rules on Evidence
a.5.1. NOT
DISQUALIFICATIONS. “Religious or political belief, interest in the outcome of
the case, or conviction of a crime unless otherwise provided by law, shall not
be a ground for disqualification.”
“It is now provided that “interest
in the outcome of the case shall not be a ground for disqualification”. The
testimony of interested witnesses, while rightfully subjected to careful
scrutiny, should not be rejected on the ground of bias alone. If their
testimony is reasonable and consistent and is not contradicted by evidence from
any reliable source, there is no reason, as a general rule, for not accepting
it. [4]
a.5.2. COMPETENCY
v. CREDIBILITY. While “Religious or political belief, interest in
the outcome of the case, or conviction of a crime”, by themselves, do
not render a witness as INCOMPETENT or DISQUALIFIED to testify, said witness’
CREDIBILITY make be challenged on account of his BIAS or PREJUDICE on account
of his Religious or political belief, interest in the outcome of the case, or
conviction of a crime.
According
to Riano, “competence is a matter of law
or, in this jurisdiction, also a matter of rule. Credibility of a witness has
nothing to do with the law or rules. It refers to the weight and trustworthiness
or reliability of the testimony. In deciding the competence of a witness, the
court will not inquire into the trustworthiness of a witness”[5].
Moreover,
remember in ETRIII Lecture Outline No. 1, that:
“Evidence represents any
KNOWABLE FACT or GROUP OF FACTS, not a legal or a logical principle, considered
with a view to its being offered before a legal tribunal for the purpose of
producing a conviction, positive or negative, on the part of the tribunal, as
to the truth of a proposition, NOT OF LAW OR OF LOGIC, on which the
determination of the tribunal is to be asked”[6].
QUERY: Can a Judge APPLY
HIS OWN BIASES AND PREJUDICES IN DECIDING A CASE?
2.1.- General Rule:
Personal Knowledge of Judge is not Knowledge of Court
-
Thus, a
Judge must BE VERY PATIENT, and not make premature conclusions until after all
of the evidence from both parties is offered before the court lest he be
accused of ACTING IN UNDUE HASTE or worse, of BIAS OR PARTIALITY. The Judge
must first ascertain whether the evidence being presented before him, is
ADMISSIBLE, i.e, RELEVANT and is NOT EXCLUDED by the Rules pursuant to Sec. 3,
Rule 128 which states: “Evidence is admissible when it is relevant to the issue
and is not excluded by the rules”.
-
Only
after an ascertainment is made that evidence being presented is COMPETENT, that
the Judge can apply his own BIASES and PERSONAL EXPERIENCE in ARRIVING at a
CONCLUSION AS TO WHETHER the PROPOSITION BEING FOSTERED BY A PARTY IS TRUE OR
NOT.
-
“The life of the law has not been logic: it has been experience. The felt necessities of the time , the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellowmen, have had a good deal more to do than syllogism in determining the rules by which mean should be governed."
-US
Supreme Court Justice Oliver Wendell Holmes
COMPETENCE V. CREDIBILITY. Thus,
while a Judge cannot inject his own prejudices in determining the COMPETENCE of
a witness, because he has to apply the law or the rules at such stage in the
reception of evidence, when the judge however, after admitting into evidence
the testimony of said witness, is NOT PRECLUDED from applying his own personal
experience, observations and even his own biases and prejudices, in WEIGHING
the CREDIBILITY of the testimonial evidence.
B. Another Role of
TESTIMONIAL EVIDENCE in relation to Documentary & Object Evidence.
“IDENTIFICATION”. “It is a
legal truth that identification precedes
authentication. Without a witness, no evidence can ever be
authenticated. Even the so-called “self-authenticating documents” need a
witness to identify the document. The reason is simple. Being inanimate, a
document or an object cannot speak for itself”[7].
B.1. ADVERSE CONSEQUENCE of LACK OF
IDENTIFICATION. A document which was not identified, cannot be offered in
evidence.
In Heirs
of Pedro Pasag v. Sps. Lorenzo and Florentina Parocha[8],
the Supreme Court instructed on the dire consequence of a party’s
“failure to identify and offer a piece of documentary evidence”, viz:
“The pre-trial guidelines and Sec. 35 of Rule 132 jointly considered, it
is made clear that the party who terminated the presentation of evidence must
make an oral offer of evidence on the very day the party presented the last
witness. Otherwise, the court may consider the partys documentary or
object evidence waived. While Sec. 35 of Rule 132 says that the trial
court may allow the offer to be done in writing, this can only be tolerated in
extreme cases where the object evidence or documents are large in number say
from 100 and above, and only where there is unusual difficulty in preparing the
offer.
The party
asking for such concession should however file a motion, pay the filing fee,
set the date of the hearing not later than 10 days after the filing of the
motion,[16] and
serve it on the address of the party at least three (3) days before the
hearing.[17] In
short, it is a litigated motion and cannot be done ex parte. Counsels for parties should not however rely on the
benevolence of the trial court as they are expected to have thoroughly and
exhaustively prepared for all possible pieces of evidence to be presented and
the purposes for which they will be utilized. As a matter of fact, the
draft of the offer of evidence can already be prepared after the pre-trial order
is issued, for, then, the counsel is already fully aware of the documentary or
object evidence which can be put to use during trial. Remember that under
the pre-trial guidelines, the trial court is ordered to integrate in the
pre-trial order the following directive:
No evidence shall be allowed to be presented
and offered during the trial in support of a partys evidence-in-chief other
than those that had been identified below and pre-marked during the
pre-trial. Any other evidence not indicated or listed below shall be
considered waived by the parties. However, the Court, in its discretion,
may allow introduction of additional evidence in the following cases: (a) those
to be used on cross-examination or re-cross-examination for impeachment
purposes; (b) those presented on re-direct examination to explain or supplement
the answers of a witness during the cross-examination; (c) those to be utilized
for rebuttal or sur-rebuttal purposes; and (d) those not available during
the pre-trial proceedings despite due diligence on the part of the party
offering the same.[18]
It is
apparent from the foregoing provision that both parties should obtain, gather,
collate, and list all their respective pieces of evidence whether testimonial,
documentary, or objecteven prior to the preliminary conference before the clerk
of court or at the latest before the scheduled pre-trial
conference. Otherwise, pieces of evidence not identified or marked during
the pre-trial proceedings are deemed waived and rendered inutile. The
parties should strictly adhere to the principle of laying ones cards on the
table. In the light of these issuances and in order to obviate interminable
delay in case processing, the parties and lawyers should closely conform to the
requirement that the offer of evidence must be done orally on the day scheduled
for the presentation of the last witness.
Thus, the
trial court is bound to consider only the testimonial evidence presented and
exclude the documents not offered. Documents which may have been
identified and marked as exhibits during pre-trial or trial but which were not
formally offered in evidence cannot in any manner be treated as
evidence. Neither can such unrecognized proof be assigned any evidentiary
weight and value. It must be stressed that there is a significant distinction
between identification of documentary evidence and its formal offer. The former
is done in the course of the pre-trial, and trial is accompanied by the marking
of the evidence as an exhibit; while the latter is done only when the party
rests its case.[19] The
mere fact that a particular document is identified and marked as an exhibit
does not mean that it has already been offered as part of the evidence.[20] It
must be emphasized that any evidence which a party desires to submit for the
consideration of the court must formally be offered by the party; otherwise, it
is excluded and rejected.[21]”.
B.2.
OBJECTION TO
COMPETENCY OF WITNESS. “When a witness is produced, it is a right and privilege
accorded to the adverse party to object to his examination on the ground of
incompetency to testify. If a party knows before trial that a witness is
incompetent, objection must be made before he has given any testimony; if the
incompetency appears on the trial, it must be interposed as soon as it becomes
apparent.[9]”
“The objection interposed should
challenge the competency of the witness, and not the competency of the
evidence; the evidence may be competent, but the witness may not.[10]”
B.3. WAIVER OF OBJECTION. “The
acceptance of an incompetent witness to testify as well as the allowance of
improper questions that may be put to him while on the stand is a matter
resting in the discretion of the litigant. He may assert his right by timely
objection or he may waive it, either expressly or by silence. In any case, the
option rests with him. Once admitted, the testimony is in the case for what
it is worth and the judge has no power to disregard it for the sole reason that
it could have been excluded, if it had been objected to, nor to strike it out
on his own motion”[11].
C. DISQUALIFICATIONS.
Section 21, Rule 130. Disqualification by reason of mental incapacity. – The
following persons cannot be witnesses:
C.1. MENTAL INCAPACITY
“(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;”
C.2. IMMATURITY
“(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.”
c.2.1.“child
witness” is any person who, at the time of giving testimony, is below the age
of eighteen (18) years (Sec. 4 [a], Rule on Examination of a Child Witness,
A.M. No. 004-07-SC).
“When
the court finds that substantial doubt exists regarding the ability of the
child to perceive, remember, communicate, distinguish truth from falsehood, or
appreciate the duty to tell the truth in court, the court shall conduct a
competency examination of the child. The court may do so motu propio or on
motion of a party. – (Sec. 6, Rule on Examination of a Child Witness, A.M. No.
004-07-SC).
c.2.2.“Intelligence, not the age, of a child, that
determines his competency to testify. - It has long been the general rule that no
precise minimum age can be fixed at which children shall be excluded from
testifying. The intelligence, not the age, of a young child is the test of its
competency as a witness; that is to say, to be considered competent, a child
must be able to receive accurate impressions of the facts to which its
testimony relates, and to relate truly the impressions received[12].
C.3. Section 22, Rule 130. DISQUALIFICATION
BY REASON OF MARRIAGE. “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.
c.3.1.
Reason for the rule. “The rule
forbidding one spouse to testify for or against the other is “based on
principles which are deemed important to preserve the marriage relation as one
of full confidence and affection, and that this is regarded as more important
to the public welfare than that the
exigencies of the lawsuits should authorize domestic peace to be disregarded,
for the sake of ferreting out facts within the knowledge of strangers”[13].
c.3.2. Must be legally married.
c.3.3. Scope of the Rule. – “The rule
forbidding one spouse to testify for or against the other applies to any form
of testimony; therefore it protects against using the spouse-witness’
admission, or against compelling him (or her) to produce documents. According
to Wharton, “the prohibition includes the making of an affidavit by one spouse
for the purpose of obtaining a search warrant against the other, but does not
apply when such spouse is merely the prosecuting witness in a criminal case. The
rule of exclusion also applies irrespective of the kind of testimony given by
the witness. Even the declaration of the accused’s spouse to a third person
with reference to the accused’s guilt should not be received against the
accused where it was not made in his or her presence or by his or her
authority, although the rule is different if the declaration was made in his or
her presence. However, res gestae declarations of husband and wife are
admissible for or against each other, even though each is incompetent to
testify.”[14]
c.3.4. Waiver of Privilege. “Wigmore
asserts that the privilege of objecting to testimony concerning anti-marital
facts belongs to the spouse who is a party to the action and not to the
spouse who is being used as a witness.[15]”
This seems to be the rule in this jurisdiction, for Section 22 is worded as
follows: “During their marriage, neither the husband nor the wife may testify
for or against the other without the consent of the affected spouse”[16].
c.3.5. Exception. Strained Marital
Relations.
MAXIMO ALVAREZ,
Petitioner,
- versus -
SUSAN RAMIREZ,
Respondent.
|
G.R. No. 143439
Present:
PANGANIBAN, J., Chairman,
SANDOVAL-GUTIERREZ,
CORONA,
CARPIO MORALES, and
GARCIA, JJ.
Promulgated:
October 14, 2005
|
x---------------------------------------------------------------------------------------------x
DECISION
SANDOVAL-GUTIERREZ, J.:
Before us is a petition for review on certiorari[1] assailing the Decision[2] of the Court of Appeals dated May 31,
2000 in CA-G.R. SP No. 56154, entitled SUSAN RAMIREZ, petitioner, versus, HON.
BENJAMIN M. AQUINO, JR., as JUDGE RTC, MALABON, MM, BR. 72, and MAXIMO
ALVAREZ, respondents.
Susan
Ramirez, herein respondent, is the complaining witness in Criminal Case No.
19933-MN for arson[3] pending before the Regional Trial
Court, Branch 72, Malabon City. The accused is Maximo Alvarez, herein petitioner. He
is the husband of Esperanza G. Alvarez, sister of respondent.
On June
21, 1999, the private prosecutor called Esperanza Alvarez to the witness stand
as the first witness against petitioner, her husband. Petitioner and his
counsel raised no objection.
Esperanza
testified as follows:
ATTY. ALCANTARA:
We are calling Mrs. Esperanza Alvarez, the
wife of the accused, Your Honor.
COURT:
Swear in the witness.
x x x
ATTY. MESIAH: (sic)
Your Honor, we are offering the testimony of this witness for the purpose
of proving that the accused Maximo Alvarez committed all the elements of the
crime being charged particularly that accused Maximo Alvarez pour on May 29,
1998 gasoline in the house located at Blk. 5, Lot 9, Phase 1-C, Dagat-dagatan,
Navotas, Metro Manila, the house owned by his sister-in-law Susan Ramirez; that
accused Maximo Alvarez after pouring the gasoline on the door of the house of
Susan Ramirez ignited and set it on fire; that the accused at the time he
successfully set the house on fire (sic) of Susan Ramirez knew that it was
occupied by Susan Ramirez, the members of the family as well as Esperanza Alvarez, the estranged
wife of the accused; that as a consequence of the accused in successfully
setting the fire to the house of Susan Ramirez, the door of said house was
burned and together with several articles of the house, including shoes, chairs
and others.
COURT:
You may proceed.
x x x
DIRECT EXAMINATION
ATTY. ALCANTARA:
x x x
Q: When you were able to find the source, incidentally what was the
source of that scent?
A: When I stand by the window, sir, I saw a man pouring the gasoline in
the house of my sister (and witness pointing to the person of the accused
inside the court room).
Q: For the record, Mrs. Witness, can you state the name of that person,
if you know?
A: He is my husband,
sir, Maximo Alvarez.
Q: If that Maximo Alvarez you were able to see, can you identify him?
A: Yes, sir.
Q: If you can see him inside the Court room, can you please point him?
A: Witness pointing to a person and when asked to stand and asked his
name, he gave his name as Maximo Alvarez.[4]
In the course of Esperanzas direct testimony against petitioner, the
latter showed uncontrolled emotions, prompting the trial judge to suspend the
proceedings.
On June
30, 1999, petitioner, through counsel, filed a motion[5] to disqualify Esperanza from
testifying against him pursuant to Rule 130 of the Revised Rules of Court on
marital disqualification.
Respondent
filed an opposition[6] to the motion. Pending resolution of
the motion, the trial court directed the prosecution to proceed with the
presentation of the other witnesses.
On
September 2, 1999, the trial court issued the questioned Order disqualifying
Esperanza Alvarez from further testifying and deleting her testimony from the
records.[7]The prosecution
filed a motion for reconsideration but was denied in the other assailed Order
dated October 19, 1999.[8]
This prompted respondent Susan Ramirez, the complaining witness in
Criminal Case No. 19933-MN, to file with the Court of Appeals a petition for certiorari[9]with
application for preliminary injunction and temporary restraining order.[10]
On May
31, 2000, the Appellate Court rendered a Decision nullifying and setting aside
the assailed Orders issued by the trial court.
Hence, this petition for review
on certiorari.
The issue
for our resolution is whether Esperanza Alvarez can testify against her husband
in Criminal Case No. 19933-MN.
Section 22, Rule 130 of the Revised Rules of Court provides:
Sec. 22.
Disqualification by reason of marriage. 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 latters
direct descendants or ascendants.
The reasons given for the rule are:
1. There is identity of interests between
husband and wife;
2. If one were to testify for or against
the other, there is consequent danger of perjury;
3. The policy of the law is to guard the
security and confidences of private life, even at the risk of an occasional
failure of justice, and to prevent domestic disunion and unhappiness; and
4. Where there is want of domestic
tranquility there is danger of punishing one spouse through the hostile
testimony of the other.[11]
But like all other general rules, the marital disqualification rule has
its own exceptions, both in civil actions between the spouses and in criminal
cases for offenses committed by one against the other. Like the rule itself,
the exceptions are backed by sound reasons which, in the excepted cases,
outweigh those in support of the general rule. For instance, where the marital
and domestic relations are so strained that there is no more harmony to be
preserved nor peace and tranquility which may be disturbed, the reason based
upon such harmony and tranquility fails. In such a case, identity of interests
disappears and the consequent danger of perjury based on that identity is
non-existent. Likewise, in such a situation, the security and confidences of
private life, which the law aims at protecting, will be nothing but ideals,
which through their absence, merely leave a void in the unhappy home.[12]
In Ordoo vs. Daquigan,[13] this Court held:
We think that the correct rule, which may be adopted in this
jurisdiction, is that laid down in Cargil
vs. State, 35 ALR 133, 220 Pac. 64, 25 Okl. 314, wherein the court said:
The rule that the injury must amount to a physical wrong upon the person
is too narrow; and the rule that any offense remotely or indirectly affecting
domestic harmony comes within the exception is too broad. The better rule is
that, when an offense directly
attacks, or directly and vitally impairs, the conjugal relation, it comes
within the exception to the
statute that one shall not be a witness against the other except in a criminal
prosecution for a crime committee (by) one against the other.
Obviously, the offense of arson attributed to petitioner, directly
impairs the conjugal relation between him and his wife Esperanza. His act, as
embodied in the Information for arson filed against him, eradicates all the
major aspects of marital life such as trust, confidence, respect and love by
which virtues the conjugal relationship survives and flourishes.
As correctly observed by the Court of Appeals:
The act of private respondent in setting fire to the house of his
sister-in-law Susan Ramirez, knowing fully well that his wife was there, and in
fact with the alleged intent of injuring the latter, is an act totally alien to
the harmony and confidences of marital relation which the disqualification
primarily seeks to protect. The criminal act complained of had the effect of
directly and vitally impairing the conjugal relation. It underscored the fact
that the marital and domestic relations between her and the accused-husband
have become so strained that there is no more harmony, peace or tranquility to
be preserved. The Supreme Court has held that in such a case, identity is
non-existent. In such a situation, the security and confidences of private life
which the law aims to protect are nothing but ideals which through their
absence, merely leave a void in the unhappy home. (People v. Castaeda,
271 SCRA 504). Thus, there is no longer any reason to apply the Marital
Disqualification Rule.
It should be stressed that as shown by the records, prior to the
commission of the offense, the relationship between petitioner and his wife was
already strained. In fact, they were separated de facto almost six months before the incident.
Indeed, the evidence and facts presented reveal that the preservation of the
marriage between petitioner and Esperanza is no longer an interest the State
aims to protect.
At this point, it bears emphasis that the State, being interested in
laying the truth before the courts so that the guilty may be punished and the
innocent exonerated, must have the right to offer the direct testimony of
Esperanza, even against the objection of the accused, because (as stated by this
Court in Francisco[14]), it was the
latter himself who gave rise to its necessity.
C.4. MARITAL PRIVILEGE COMMUNICATION
RULE
Sec. 24, Rule 130.
Disqualification by reason of privileged communication rule. 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; x x x”
-Applies
to disqualification on account of privileged communication because the
information was divulged by one spouse to the other DURING THE MARRIAGE.
-For
as long as the confidential information was disclosed DURING THE MARRIAGE, the
prohibition applies in perpetuity.
-Suppose, PRIOR TO THE MARRIAGE, X
learns that her fiancé, Y, was a serial killer because this was divulged by the
latter to her. X marries him nonetheless. DURING THE MARRIAGE, may X be
compelled to testify as to the admission of her husband, Y, that he is a serial
killer?
-
Suppose, we have the same facts, except that,
subsequently, X and Y’s marriage is terminated. Would the answer still be the
same?
-
Supposing further, that it was not Y, but Z, Y’s brother,
who discloses the information to X, how would that change things?
-
Study the distinctions between Section 22 and Section 24
(a).
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