EXCEPTIONS TO THE HEARSAY RULE
12. Form of declaration against interest
• May be oral or written.
• Form is immaterial provided all the essential requisites for its admissibility are present.
Sec. 39 .
Act or Declaration about Pedigree.
The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word
"pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these fast occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree.
Pedigree defined.
- It is the history of the family descent which is transmitted from one generation to another by both oral and written declarations and by traditions.
- May includes relationship, family genealogy, birth, marriage, death, the dates when and places where these facts occurred, the names of the relatives, and the facts of family history intimately connected.
- Includes also paternity and legitimacy.
Reason of Admissibility
To avoid a failure of justice, as greater evils are apprehended from the rejection of such proof than from its admission and that individuals are generally supposed to know and to be interested in those facts of family history about which they converse, and that they are generally under little temptation to state untruths in respect to such matter.
Requisites for Admissibility
a) Declarant is dead or unable to testify
- Declarations will not be received when better evidence is available, in case his alive and able his direct testimony is considered a better evidence.
- The fact that there are living members of the family who could be examined on the same point does not exclude the declaration.
- Declarations are admissible when the declarant is dead, outside of the Philippines, or when his testimony is unobtainable, like when he becomes insane, declarations made before his insanity are admissible.
b) Necessity that pedigree be in issue
- Generally, declarations as to pedigree can be received only where pedigree itself is directly in issue.
- However, in many cases the fact that pedigree is relevant to the issue is sufficient to admit in evidence and as to matters of genealogy or facts incidentally or inferentially connected therewith, such as the dates of genealogical importance, such as births, deaths, and marriage, took places, names, number, residence of a branch of the family, or their ownership of property, regardless of whether pedigree is separately in issue.
c) Declarant must be a relative of the person whose pedigree is in question
- Generally, declarations as to pedigree to be admissible, it must have been made by someone related to the family concerned, it is enough if some relationship is shown, although the declarations of very remote relatives entitled to very little weight.
- Relationship of declarant to the family may be by birth or by affinity. Hence, the declaration of the husband regarding the pedigree of his wife and his wife’s relatives and vice versa, is admissible. But declarations of the husband’s relatives regarding the pedigree of the wife’s relatives, or vice versa, are not admissible.
- If it appears that the evidence offered does not emanate from someone related to the family concerned, the presumption of the reliability of the source of information is rebutted and the evidence becomes inadmissible.
- Courts will not receive declarations as to pedigree made by intimate friends or neighbors, or even by persons living in the family or by servants, however trustworthy or long he has been employed by the family.
d) Declarant must be made before the controversy occurred
- Generally, declarations to be received in proof of pedigree requires that the declarations must have been made ante litem motam (before suit brought), before the controversy, and under such circumstances that the person making them could have no motive to misrepresent the facts. It is necessary that the declarant should have been disinterested to the extent of having no motive which can fairly be assumed to be such as would induce
him to state the facts otherwise than as he understood it.
- Declarations made after a controversy has originated, are excluded, on the ground that the bias under which they were uttered suffices to render them untrustworthy.
- Controversy as used in this provision is not meant mere idle rumors, or doubts of
curious scandalmongers whose
discussions of the family matters of their neighbors are made without reverence for sanctity, morality, privacy or religion.
e) The relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such act or declaration
- Generally, the relationship of declarant to the family concerned must be established by evidence other than the statement of declarant himself.
- Exception, where the subject of the declaration is the declarant’s own relationship to another person it seems absurd to require, as a foundation for the admission of the declaration, proof of the very facts which the declaration is offered to establish.
- Evidence to prove relationship may either direct or circumstantial, such as declarant’s bearing the family name or a name identical with that of the subject of declaration, recognition of declarant by the family, or mention of him in family conveyance and other dispositions of property.
Proof concerning Pedigree a) oral declaration of declarant
- May be proved by the testimony of any person who is a competent witness and who has heard such declarations of the declarant.
b) written acts or declarations of the declarant - May be proved by the statement in writing
relating to pedigree made or recognized by the declarant, or made under his direction.
- Exception, where the writing is in the form of an entry in a family Bible or testament which is produced from the proper custody, in which event the assent of the family is presumed.
c) Acts or conduct of a person deceased or outside of the country or unable to testify
- May consist of proof of acts or conduct of relatives and the mode of treatment in the family of one whose parentage or decent is in question.
Relationship must be legitimate
- In order to render a declaration as to pedigree admissible it is necessary that the relationship of declarant to the family should be of a legitimate character.
- A bastard’s declarations as to the pedigree of his putative family, or conversely, and vice versa, are not admissible, but in some cases the courts have shown a tendency to relax the rule.
Subject matter of declaration of pedigree
- The facts regarded as those of genealogy or pedigree, take a wide range, and embrace any notable fact in the life of a member of the family or in the family history, or his own relationship to the family.
Age
- Naturally, the testimony of a witness concerning his own age is based upon hearsay, but according to the general rule, this circumstances does not render such testimony inadmissible.
- It is based on statements of his parents, records recognized as family records, reputations in the family, and, according to some authorities, general reputation in the community.
- Testimony of a priest concerning the age of a person, whom he had baptized at the time of baptism based upon statement made at the time by a parent of such person is not admissible where it appears that the parent is available.
Paternity and Legitimacy
- Declarations of deceased members of a family that he was the father or mother of a child are admissible on the question of paternity or parentage of the child, with or without accompanying proof of marriage.
- Declaration of deceased relatives other than the parents are admissible as proof of paternity if made ante litem motam (before the controversy).
- There is authority which permits declarations of persons not related by blood may, under some circumstances, be admissible to establish the parentage of an illegitimate.
Marriage
- Declarations and general repute are admissible as proof of a marriage, whether or not members of the family.
- Reason: The public interest is taken in question of the existence of a marital relation.
- Where a formal marriage is proved, repute is not admissible to establish that there was no marriage.
Death
- The fact of death is a matter of pedigree within the rule which permits the admission of hearsay evidence, such as reputation in proof of matters of pedigree.
- Slight proof of relationship of the declarant is sufficient to warrant admission of the declaration.
- A newspaper announcement of the death of an individual is not admissible to prove the fact of such person’s death.
-Form of Declaration
- Declaration may be in any form capable of conveying thought, provided the authenticity of the vehicle conveying the statement is established to the satisfaction of the court by evidence as by recognition in the family or production from proper custody.
- Must be a statement of fact, and not opinion.
- May be oral or in writing; the oral statement is as competent as written evidence on the same point.
Sec. 40
Family Reputation or Tradition regarding Pedigree.
The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity.
Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree.
Reputation or Tradition in matters of pedigree
- meant such declaration and statements as have come down from generation to generation from deceased relatives in such a way even though it cannot be said or determined which of the deceased relatives originally made them, or was personally cognizant of the facts therein stated.
- It appears that such declarations and statement were made as family history, ante litem motam (before the controversy), by a deceased person
connected by blood or marriage with the person whose pedigree is to be established.
Reason for Admissibility
- Family affairs are constantly talked over in the family, and the members who know what happened tell what they know, with spontaneous sincerity, to those who did not know.
- Declaration as to pedigree made by deceased although based upon hearsay within the family, and that, having been made before any controversy had arisen, there is no motive to speak other than the truth.
Requisites for Admissibility
a) There is controversy in respect to the pedigree of any members of a family
- Reputation in the family gives rise to an inference to the existence of such facts as birth, descent, failure of issue, heirship, identity, marriage, celibacy, parentage, or relationship; or facts incidentally connected with genealogy, such as residence or the dates of events of family history; and evidence of such reputations will be received on an issue of pedigree concerning any member of any branch of the family
- Tradition in the family, being a form of family history or reputation is admissible to prove facts of genealogy
Age –
- Members of the family of the person in question, or others having an intimate acquaintance with the family, may testify as to age, although their testimony is based on family tradition or reputation Death –
- Evidence of reputation in the family or in the community or family tradition, has been held admissible to establish the fact of death, provided there has been a considerable lapse of time.
- Hearsay evidence is inadmissible to prove the manner or cause of death.
b) The reputation or tradition of the pedigree of the person, concerned existed previous to the controversy
- Common reputation or tradition arising after the controversy is supposed to be tainted with bias and therefore unreliable.
c) The witness testifying to the reputation or tradition regarding the pedigree of the person
concerned must be a member of the family of said person, either by consanguinity or affinity.
- Relationship between the witness and the family need not be proved by independent evidence; it may be shown by the witness’
own testimony.
Form of Declaration Relating to Pedigree
- Any form capable of conveying thought, provided the authenticity of the vehicle conveying the statement is established to the satisfaction of the court by evidence as by recognition in the family or production from proper custody.
Sec. 41
Common reputation
Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputation.
Matters of public interest vs. matters of general interest
- Matters of public interest are common to all the citizens of the state or to the entire people, - matters of general interest are common only to a
single community or to a considerable number of persons forming part of the community.
Matters which may be established by common reputation
a) Facts of public or general interest more than 30 years old;
b) Marriage and related facts; and c) Individual moral character.
Common Reputation Respecting Facts of Public or General Interest more than Thirty Years Old
- Reputation must have been formed among a class of people of persons who were in a position to have sound sources of information and to contribute intelligently to the formation of the opinion.
Common Reputation vs. Rumor
- Rumor is a story current without known authority for its truth, and, therefore, by its nature, does not yet represent the prevailing belief in the community
- Common Reputation presupposes the existence of a general or undivided belief already formed on which the general opinion is founded.
Common Reputation Respecting Marriage
a) The common reputation must have been formed previous to the controversy.
b) The common reputation must have been formed in the community or among the class of persons who are in a position to have sources of information and to contribute intelligently to the formation of the opinion.
Sec. 42
Part of res gestae
Statements made by a person while a starting occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of res gestae.
So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae.
Res Gestae Defined
- Comprehends a situation which presents a startling or unusual occurrence sufficient to produce a spontaneous and instinctive reaction, during which interval, certain statements are made under such circumstance as to show lack of forethought or deliberate design in the formulation of their contents.
Res Gestae vs. Dying Declaration
- In dying declaration there is a sense of impending death which takes the place of an oath and the law regards the declarant as testifying .
- While in res gestae it is the event itself which speaks, the actual facts expressing themselves through the mouth of a witness, which may precede, or accompany, or follow, as events occurring as a part of the principal act.
Reason of Admissibility
- It is a well-founded belief that statements made instinctively at the time of a specific transaction or events, without opportunity for formulation of statements favorable to one’s own cause, are likely to cast important light upon the matter in issue; as to such statements, the law creates a presumption of their truthfulness.
Test of Admissibility
- Whether the act, declaration, or exclamation is so intimately interwoven or connected with the principal factor event which it characterizes as to be regarded as a part of the transaction itself, and also whether it clearly negatives any premeditation or purpose to manufacture testimony.
Statements and Acts Constituting Part of Res Gestae
a) Statement made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof.
b) Acts and circumstances which are incidents of a particular litigated act and which are illustrative of such act;
c) Statement accompanying an equivocal act material to the issue, and giving it a legal significance, and are called by writers as
“verbal facts” or “verbal acts”
Examples:
- Declaration of the parties made with regard to matters of business, if contemporaneous with the acts they tend to explain and qualify, are admissible
- Declarations by a party relating to ownership of property made by a person in possession thereof, may be admitted when uttered under such circumstances as satisfy the requirements applicable to other statements sought to be admitted under this exception to hearsay rule.
- Declaration made at the time of a transaction which are pertinent to the question of fraud are generally viewed as admissible.
- Statements made by an injured person relating to present pain and suffering or at the time of an accident or so shortly thereafter as to form part of one event or transaction are viewed in some decisions as part of the res gestae.
Spontaneous Statement Defined
- A statement or exclamation made immediately after some exciting occasion by a participant or spectator and asserting the circumstances of that occasion as it is observed by him.
Reason for Admissibility
a) Trustworthiness – the statements are made instinctively, while the declarant’s mental powers for deliberation in concocting matters are controlled and stilled by the shocking influence of a startling occurrence, they are but pure emanation of the occurrence itself.
b) Necessity – said natural and spontaneous utterances are more convincing than the testimony of the same person on the stand.
Elements of the statement or declaration to be admissible as part of res gestae – Corpus Juris Secumdum
a) must relate to the main event and must explain, elucidate, or in some manner characterize that event
b) must be a natural declaration or statement growing out of the event, and not a mere narrative of a past, completed affair
c) must be a statement of fact, and not the mere expression of an opinion
d) must be a spontaneous or instinctive utterance of thought, dominated or evoked by the transaction or occurrence itself, and not the product of premeditation, reflection, or design e) the declaration or statement need not be
coincident or contemporaneous with the occurrence of the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation
f) must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which the declaration or statement was made.
Startling Occurrence Necessary
- it is essential that the spontaneous exclamation should have been caused by something “ startling enough to produce nervous excitement”
and “to keep the will dormant so far as any
and “to keep the will dormant so far as any