Section 40. Tender of excluded evidence. — If documents or things offered in evidence are 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. (n)
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‣ The foregoing rule, called “offer of proof’ in other jurisdictions, embodies the procedure for the “tender of excluded evidence.”
‣ Why make a tender of excluded evidence?
1. To allow the court to know the nature of the testimony or the documentary evidence and convince the trial judge to permit the evidence or testimony.
2. Even if he is not convinced to reverse his earlier ruling, the tender is made to create and preserve a record for appeal.
‣ The rule is that evidence formally offered by a party may be admitted or excluded by the court. If a party’s offered documentary or object evidence is excluded, he may move or request that it be attached to form part of the record of the case. If the excluded evidence is oral, he may state for the record the name and other personal
circumstances of the witness and the substance of the proposed testimony. These procedures are known as offer of proof or tender of excluded evidence and are made for purposes of appeal. If an adverse judgment is eventually rendered against the offeror, he may in his appeal assign as error the rejection of the excluded evidence.
The appellate court will better understand and appreciate the assignment of error if the evidence involved is included in the record of the case. (Cruz-Arevalo v. Layosa 2006)
‣ Example:
‣ Assume that you have called your witness to the stand. He takes his oath and proceeds to testify. You are cer- tain your witness will pull through. He is sharp and respon- sive. His demeanor projects sincerity. Everything is going on as planned. Then from the right end of the table screams the opposing counsel, “Objection, Your Honor!” The objection comes unexpectedly. Before you could say a word the judge rules, “Sustained!” The ruling feels like a laser-guided missile aimed straight at the heart of your client’s case. You spring from your chair and move to reconsider the ruling. “Motion denied,” the judge again rules.
‣ You did not prepare for this scenario. You thought everything has been planned. You came to court with an armload of copies of the latest jurisprudence on your case, bound and carefully tabbed, to reveal to the court the gems of wisdom you will hurl against the “enemy” seated at the other end of the table. Your supposedly well-oiled examination is now sputtering like a badly tuned engine. Your witness has been stopped right on his tracks. But you are not rattled. Instead, you are seething with anger. You want to kick the table in front of you.
You cannot get a critical testimony heard by the judge who just declared with finality that he refuses to hear from your witness. You are certain the judge is in error. You are determined to turn it around in case you cannot save your client from the mistake of the trial court.
‣ A situation like the one just described is not infrequent and does occur when you least expect it. It happens to all of us. This is not a heartbreaking episode in your legal career. It is not a reason to throw in the towel. You do not have to feel the horror of failing to figure out the right remedy. This is not a problem at all. As we usually say,
“This is a piece of cake. Peanuts. Chicken feed. Child’s play.” Indeed it is. Calm down. This is not panic time.
‣ So what do you do if you are the victim of an objection sustained by the trial court or of a motion to strike granted on a testimony that is crucial to your cause of action or defense? You should make a “tender of excluded evidence.”
‣ Assume that you have called your witness to the stand. He takes his oath and proceeds to testify. You are cer- tain your witness will pull through. He is sharp and respon- sive. His demeanor projects sincerity. Everything is going on as planned. Then from the right end of the table screams the opposing counsel, “Objection, Your Honor!” The objection comes unexpectedly. Before you could say a word the judge rules, “Sustained!” The ruling feels like a laser-guided missile aimed straight at the heart of your client’s case. You spring from your chair and move to reconsider the ruling. “Motion denied,” the judge again rules.
‣ You did not prepare for this scenario. You thought everything has been planned. You came to court with an armload of copies of the latest jurisprudence on your case, bound and carefully tabbed, to reveal to the court the gems of wisdom you will hurl against the “enemy” seated at the other end of the table. Your supposedly well-oiled examination is now sputtering like a badly tuned engine. Your witness has been stopped right on his tracks. But you are not rattled. Instead, you are seething with anger. You want to kick the table in front of you.
You cannot get a critical testimony heard by the judge who just declared with finality that he refuses to hear from your witness. You are certain the judge is in error. You are determined to turn it around in case you cannot save your client from the mistake of the trial court.
‣ A situation like the one just described is not infrequent and does occur when you least expect it. It happens to all of us. This is not a heartbreaking episode in your legal career. It is not a reason to throw in the towel. You do not have to feel the horror of failing to figure out the right remedy. This is not a problem at all. As we usually say,
“This is a piece of cake. Peanuts. Chicken feed. Child’s play.” Indeed it is. Calm down. This is not panic time.
‣ So what do you do if you are the victim of an objection sustained by the trial court or of a motion to strike granted on a testimony that is crucial to your cause of action or defense? You should make a “tender of excluded evidence.”
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VIDENCE‣ The procedure depends upon the type of evidence excluded.
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HERETHEEVIDENCEINVOLVEDISDOCUMENTARYOROBJECTEVIDENCE‣ The tender is made by having the document or object attached to or made part of the record
‣ Even if the rules do not spell out the details on how this should be done, it is a common practice in almost all jurisdictions, for the offering counsel to produce, describe, identify the object or document, and in case of the latter, to state the contents of the document that is sought to be admitted where the substance of the same is not apparent on its face. Reading the substance of the document is an accepted way of stating its contents for the record in states which recognize a tender. A disclosure of the contents of the document is necessary in order to aid the court in determining its competence and relevance.
‣ The next step is to state the purpose for which the object or document sought to be attached is offered, and to ask that it be marked for identification and have it attached to the record.
‣ Example: Counsel may state after manifesting to make a tender of excluded evidence: “Your Honor, this document is a deed of sale executed between the plaintiff and defendant on such and such date in the presence of both the town mayor and vice-mayor who signed the deed as witnesses, and notarized before Notary Public so and so. The document reads: (Counsel reads the document). With this document, we intend to prove that the defendant bought the parcel of land herein described prior to taking possession of the property as owner on such and such date. We request that this document be marked and attached to and form part of the records of this case.”
2. I
FTHEEVIDENCEEXCLUDEDISORAL/
TESTIMONIAL‣ The offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony.
‣ There are two traditional methods of making the tender:
a. Where the counsel tells the court what the proposed testimony will be. This is the method prescribed in the Rules of Court. After stating for the record the name and other personal circumstances of the witness, counsel b. By using the question and answer form
‣ The first method has the advantage of brevity and efficiency but it does not create as clear a record as the second method. Whichever method is to be used lies in the discretion of the trial court.
‣ The court may prefer the second method which although not described in the rules, is not prohibited. In fact, the use of the first method is not mandatory. This is evident from the use of the word may instead of shall in Sec. 40 of Rule 132.
‣ Whichever method of tender is used, the advocate must see to it that the offer must be specific enough to contain the facts and circumstances of the matter sought to be proved by the excluded evidence.
‣ The tender is not meant to be a mere manifestation to the court in mere general terms.
‣ It must not be in the form of conclusions of fact such as, “If permitted to pursue this line of questioning, Your Honor, the witness will testify that he is not a trespasser.”
‣ The offer must make reference to the details of the excluded testimony or excluded document.
‣ An erroneous way of making an offer of excluded testimony is to make a mere general ‘offer of proof (tender of excluded evidence) without producing the witness or stating the evidence whereby the fact in issue is to be proved
‣ May an objection be interposed to the manner of tender of excluded evidence?
‣ The rules are silent on the issue.
‣ However, there is no cogent reason to disallow the objection. If the document tendered is not described or identified, its sub- stance stated in vague and general terms or when the purpose for which it is offered is not declared, then the evidence has to be objected to.
‣ If the testimony tendered is in the form of a conclusion and thus, fails to disclose sufficient information to enable the court and the other party to determine its admissibility, the same may likewise be the target of an objection.
‣ To have a contrary rule and confer immunity from objection to such type of evidence would be to grant a favored status to evidence initially excluded by the trial court.
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ROOF‣ Formal offer of evidence refers either to the offer of the testimony of a witness prior to the latter’s testimony, or the offer of the documentary and object evidence after a party has presented his testimonial evidence.
‣ Offer of proof is the process by which a proponent of an excluded evidence tenders the same. If what has been excluded is testimonial evidence, the tender is made by stating for the record the name and other personal circumstances of the proposed witness and the substance of his proposed testimony. If the evidence excluded is documentary or of things, the offer of proof is made by having the same attached to or made a part of the record.
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ESTED‣ The Rules of Court does not prohibit a party from requesting the court to allow it to present additional evidence even after it has rested its case (Republic v. Sandiganbayan 2011)