TESTIMONIAL
EVIDENCE
ETRIII REMEDIAL LAW REVIEW
Lecture Series 2018 Edition
Lecture Series 2018 Edition
Lecture Outline No. 3
(outline No. 4 immediately follows)
PART
1
OUTLINE/
LECTURE ON
TESTIMONIAL
EVIDENCE & DISQUALIFICATIONS
By:
Atty. Eduardo T. Reyes, III
(Prepared
for Law 3-B,
University
of San Agustin Law School,
SY
2017-2018)
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]”
Failure to Swear In a Witness; Effect
The defense presented
Senior, Junior, and Johnny Palasan (Palasan) as witnesses. Calib was also
presented as a witness but his testimony was deemed inadmissible in evidence
for being hearsay because he was not sworn in when he took the witness stand.
The testimonies of the defense witnesses tended to establish that the Napones
acted in self-defense and in defense of a relative.
-
Napone v. People,
G.R. NO. 193085, November 29, 2017
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.
But while competence and credibility
do not mean the same, both are twin requirements that must concur in order to
determine the weight that may be assigned to a
particular testimony.
Twin Requirements of Competence of
Witness and Credibility of Testimony; Direct v. Circumstantial Evidence
Credible witness and
credible testimony are the two essential elements for determining the weight of
a particular testimony. Evidence to be
believed must not only proceed from the mouth of a credible witness but must be
credible in itself, such as the common experience and observation of mankind
can approve as probable under the circumstances. 31
Although Jocelyn was
only twelve years old when the incident happened and when called to the witness
stand, the Court takes note of the truth that she possessed all the
qualification and none of the disqualification to testify in these cases, viz:
Section 20. 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, may be witnesses.
Religious or
political belief, interest in the outcome of the case, or conviction of crime
unless otherwise provided by law, shall not be a ground for disqualification.
Section 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. 32
Jocelyn's young age
had no bearing on her qualification to testify on what happened that night on
19 November 1999. As the rules show, anyone who is sensible and aware of a
relevant event or incident, and can communicate such awareness, experience, or
observation to others can be a witness. Significantly, even under the crucible
of an intense cross examination, Jocelyn never wavered in her narration as to
the incidents that led to the killing of Artemio and the burning of their
house, and in the affirmative identification of Sota and Gadjadli as two of the
five persons who were responsible for these crimes.
In Salvador v.
People,34 the Court laid down the rule that direct evidence is not the only
ground by which the guilt of an accused may be anchored, viz:
Direct evidence of
the crime is not the only matrix wherefrom a trial court may draw its
conclusion and finding of guilt. The rules of evidence allow a trial court to
rely on circumstantial evidence to support its conclusion of guilt.
Circumstantial evidence is that evidence which proves a fact or series of facts
from which the facts in issue may be established by inference. At times, resort
to circumstantial evidence is imperative since to insist on direct testimony
would, in many cases, result in setting felons free and deny proper protection
to the community.35
Jocelyn gave the
credible testimony that on the night of 19 November 1999, Sota, Gadjadli, and
three other unidentified persons lit the torch to burn their house but Artemio
was able to put out the fire. Because the moon was bright, she vividly saw that
it was Sota who acted as the leader of the group while Gadjadli carried a
pistol. She witnessed that the group started to shoot at the house when Artemio
became adamant not to open the door for fear he would be killed. It was with
this burst of gunshots that made her
jump out of the window and run towards the house of her brother Eusebio.
When she looked back, their house was already burning while the group was
shooting at Artemio who ran down the house.36 Plainly, these circumstances as
testified to by Jocelyn produced a conviction beyond reasonable doubt that
Sota, Gadjadli, and the three unidentified persons were responsible for the
killing of Artemio and the burning of their house.
- People v. Golem Sota, G.R. No.
203121, November 29, 2017
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;”
-Is a Craziness
Equivalent to Insanity?
In People v.
Florendo, 24 the Court held that "the prevalent meaning of the word
'crazy' is not synonymous with the legal terms 'insane,' 'non compos mentis,'
'unsound mind,' 'idiot,' or 'lunatic.' The popular conception of the word
'crazy' is being used to describe a person or an act unnatural or out of the
ordinary. A man may behave in a crazy manner but it does not necessarily and
conclusively prove that he is legally so." Not every aberration of the
mind or mental deficiency constitutes insanity.
- People v. Jonas
Pantoja Y Astorga, G.R NO. 223114, November 29, 2017
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]
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).
[12] 58 Am. Jur.. 97,
cited on p. 242, Francisco, The Revised Rules of Court in the Philippines,
EVIDENCE Rulesd 128-130, Volume VII Part I, 1997 Edition
Disqualification of
Witnesses
ETRIII REMEDIAL LAW
REVIEW Lecture Series
Lecture Outline No. 4
CONTINUATION ON
DISQUALIFICATION OF
WITNESSES
By: Atty. Eduardo T.
Reyes, III
(Prepared for Law 3-A,
Univ. of San Agustin Law School,
SY 2016-2017)
A. Continuation on
Disqualification of Witnesses
A.1.
Physician-Patient Privilege(Sec. 24, Rule 130)
X x x
( 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 that capacity, which would blacken the reputation of the patient;
x x x
- “This privilege,
embodied in Sec. 24 ( c ) of Rule 130, applies to a civil case, whether
the patient is a party or not. The phraseology of the rule implies that the
privilege cannot be claimed in a criminal case presumably because the interest
of the public in criminal prosecution should be deemed more important than the
secrecy of the communication.”[1]
- “In criminal cases,
the privilege does not apply for the maintenance of public order and the life
and liberty of the citizens are deemed more important than the purpose for
which the privilege was created. ‘The statutory privilege was not conferred to
shield a person charged with the murder of another’ and it certainly was not
intended to be used as a weapon against one charged with crime.”[2]
- “The person against
whom the privilege is claimed is a person duly authorized to practice medicine,
surgery, or obstetrics.
- “Communication
made to dentists, pharmacists, or nurses. – The persons against whim
the privilege may be claimed are those duly authorized to practice medicine,
surgery or obstetrics. The privilege cannot be extended by construction to
persons employing other curative processes not coming within the ordinary
meaning of the term ‘practice of medicine’, surgery or obstetrics. Accordingly,
communications made by a patient to dentists, pharmacists and nurses who
are not acting as agents of physicians, surgeons or
obstetricians, are not privileged”[3].
The information which
cannot be disclosed refers to:
a) Any advice given to
the client;
b) Any treatment given
to the client;
c) Any information
acquired in attending such patient provided that the advice, treatment or
information was made or acquired in a professional capacity and was necessary
to enable him to act in that capacity; and
d) The information
sought to be disclosed would tend to blacken the reputation of the patient (
Sec. 24[c] Ru;e 130, Rules of Court). The word “reputation” is used
instead of the previous word, “character”.
A.2. Attorney-Client
Privilege(Sec. 24, Rule 130)
X x x
( c ) 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 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”.
“Requisites for
the rule. – The following requisites must be present in order that the
privilege may be claimed: (a) there must be a relation of attorney and client;
(b) there must be communication by the client to the attorney; and ( c ) such
communication has been made in the course of, or with a view to,
professional employment.
It is not essential
to create the privilege that any proceedings , criminal or civil, should be
pending or even in contemplation.
NOT COVERED IS
DISCLOSURE OF FUTURE OR CONTINUING CRIME-While a person accused of crime may
claim a privilege for any information communicated by him to his attorney after
the date of the crime, communications to an attorney by a client who
contemplates the future commission of a crime, and advice given by
the attorney as to how the client may escape the consequences of a future infraction
of the criminal laws, are not privileged,
The rule is
that the prostitution of the honorable relation of attorney and client
will not be permitted under the guise of privilege, and every communication made
to an attorney by a client for a criminal purpose is a conspiracy or
attempt at a conspiracy which is not only lawful to divulge, but which
the attorney under certain circumstances may be bound to disclose at once in
the interest of justice.[4]”
A.3. Priest/
minister-Penitent Privilege(Sec. 24, Rule 130)
X x x
( 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 priest or minister or priest belongs; x x x
- “Not every
communication made to a minister or priest is privileged. The communication
must be made pursuant to confessions of sins. (Wigmore on Evidence,
&848). As clearly provided in the rule, the advice given as a result of the
confession must be made in the minister’s “professional character” (Sec. 24[d],
Rule 130, Rules 130, Rules of Court), or in his “spiritual” capacity.
Accordingly, where the penitent discussed business arrangements with the
priest, the privilege does not apply (U.S. v. Gordon, 493 F. Supp. 822 [7th Cir.
1987])”[5].
- “Communications
made not in the course of religious discipline but in
contemplation of a crime, are not privileged.
A.4. Public
Officer(Sec. 24, Rule 130)
X x x
( 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.”
-“Reason for the
rule.- It is the duty of every citizen to communicate to his government any
information which he has of the commission of an offense against its law; and a
court of justice will not compel or allow such information to be disclosed,
either by the subordinate officer to whom it is given, by the informer himself,
or by any other person without the permission of the government, the evidence
being excluded not for the protection of the witness or of the party in
the particular case, but upon general grounds of public policy, because of the
confidential nature of such communications”.[6]
-Concept of EXECUTIVE
PRIVILEGE; PRESIDENTIAL COMMUNICATIONS PRIVILEGE
In “Chavez v.
PCGG (299 SCRA 744) ruled that there is a privilege against the
disclosure on certain matters involving state secrets regarding the following:
(a) Military;
(b) diplomatic; and
( c ) other national
security matters.
“Again in Chavez
v. Public Estates Authority (384 SCRA 152), it was similarly held that
secrets involving military, diplomatic, and national security matters, and
information on investigations of crimes by law enforcement agencies before the
prosecution of the accused were exempted from the right to information. The
right to information does not also extend to presidential conversations,
correspondences, and discussions in closed-door cabinet meetings.[7]”
-The invocation
involves a delicate “balancing-act” with the Constitutional right of the“people
to information on matters of public concern and guarantees access to official
records, documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy development,
subject to such limitations as may be provided by law[8]”.
“Chavez v. PCGG (299 SCRA 744) , the Constitutional right
to information includes official information on ongoing negotiations before
a final contract, such information does not cover recognized exceptions
like privileged information, military and diplomatic secrets and similar
matters affecting national interest. The matters falling under these
exceptions, according to the Court, cannot be disclosed even if they constitute
definite propositions. Since diplomatic negotiations enjoy a presumptive
privilege against disclosure, petitioners need to sufficiently show the
existence of a public interest sufficient to overcome the privilege. The court
concluded with a finding that the petitioners have failed to present a
“sufficient showing of need” in their arguments”[9].
A.5. Parental and
Filial Privilege(Sec. 25, Rule 130)- No person may be compelled to testify
against his parents, other direct ascendants, children or other direct
descendants”.
-Article 215 Family
Code. No descendant shall be compelled, in a criminal case, to testify against
his parents and grandparents, except when such testimony is indispensable in a
crime, against the descendant or by one parent against the other.
-Reason for the
Rule- The reason of the rule is to preserve
“family cohesion”, deploring the lack of this provision under the former laws
as doing violence to the most sacred sentiments between members of the same
family.
[1] See p. 211
EVIDENCE (The Bar Lectures Series) Williard B. Riano , 2016 Edition
[2] P. 283,
EVIDENCE Volume VII Part I 1997 Edition, Francisco, citing People v. Harris,
136 N.Y. 423, 448, 33 N.E. 65; People v. Lane, 101 Cal. 36 P. 16
[3] Francisco on
Evidence, Ibid, citing Laurie Co. v. McCullough, 174 Ind. 477,
90 N.E. 1014; People v. De Vrance, 104 Mich. 563, 62 N.W. 709
[4] Francisco on
Evidence, pp.271-276, Ibid.
[5] P. 213 Riano on
Evidence, 2016 Edition
[6] P. 294
Francisco, Ibid.
[7] Pp. 214, Riano,
Evidence, 2016 Edition
[8] Sec. 7, Art.
III [Bill of Rights], Constitution of the Philippines.
[9] P. 217, Riano
on Evidence, 2016 Edition
[10] See Francisco
on Evidence, p. 300, Ibid.
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