Testimonial Knowledge

SECTION 36. Testimony generally confined to personal knowledge;

hearsay excluded.  A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as other wise provided in these rules.

This Section talks about the Hearsay Rule. The testimony of the witness must be based on his personal knowledge -- not what he just heard from other people.

EXAMPLE: The witness is shy; he does not want to appear in court.

Instead, he narrates everything to W, who will deliver the witness’ testimony in court. This is not allowed because the witness is not testifying on what he personally knows, but on what another knows. So it is the eyewitness himself who should testify.

Q: What is the test in order to determine whether or not evidence is hearsay? Is the test based on the fact that one does or does not testify upon his personal knowledge?

A: The real test is: whether or not the adverse party is deprived of the opportunity to confront and examine the witness. The right to cross-examination is an essential part of due process -- that the person who testifies against you will be confronted by you, cross-examined by you.

Thus, a denial of the right to cross-examination is a denial of due process.

Hearsay evidence is actually a denial of the right to cross-examination.

Q: What is an Independent Relevant Statement (bar question)?

A: Independent Relevant Statement is part of the concept of hearsay. An independent relevant statement appears to be hearsay in character, but is not actually legal hearsay. therefore, an independent relevant statement is not covered by hearsay.

EXAMPLE: A witness is asked these questions...

COUNSEL:

Where were you on this date?

WITNESS:

I was in the United States.

COUNSEL:

Did you meet anybody there?

WITNESS:

Of course!

COUNSEL:

Who did you meet?

WITNESS:

I met A.

COUNSEL:

Did you have a conversation with A?

WITNESS:

Yes.

COUNSEL:

What was the conversation about?

WITNESS:

The conversation was about the incident which he witnesses earlier.

COUNSEL:

Please tell the Court what A told you...

TAKE NOTE: If the purpose of the last question propounded by counsel is to prove that the witness had a conversation with A, and that A told him this thing, or that he met A and the latter told him this story, that is NOT COVERED by the hearsay rule. Because the answer is not really hearsay.

The purpose here is actually only to prove the fact that A told the witness something. But if the purpose of the question is to prove that the story told by A to the witness is true, that is COVERED by the hearsay rule.

 If the purpose of the testimony of the witness is to prove that he had a conversation with A and that this was what the conversation was about, that is not covered by the rule.

 If the purpose of the testimony is to prove the truth of the statement of A, which he told the witness, that is covered by the rule.

 If the purpose of the question is to prove the truth of the statement, that is covered by the hearsay rule.

In the first case, the testimony is not really hearsay because the witness is talking about his own perception. That he met A, that they had a conversation, that this was what A said... It is not hearsay if the witness quotes exactly what A said to him.

When the purpose of the question is to prove merely the fact that such a statement was made, this appears to be hearsay in character. But this does not constitute legal hearsay and is, therefore, not covered by the hearsay rule. As a matter of fact, this is not even hearsay. This is what is called an INDEPENDENT RELEVANT STATEMENT.

COUNSEL FOR PLAINTIFF:

What did B tell you when you met him?

COUNSEL FOR DEFENDANT:

Objection, your Honor! The question calls for a hearsay answer.

COUNSEL FOR PLAINTIFF:

Your Honor, we asking this question merely to prove the tenor of the statement.

COURT:

If that is the purpose, then the objection is overruled. The question is allowed.

Meaning, the question is an independent relevant statement.

Counsel for Plaintiff is asking the question only to prove the FACT of the conversation, but not to prove the TRUTH of the conversation. However, take note that such statement must be RELEVANT to the case.

EXAMPLE: The prosecution is trying to prove that C is the killer. A witness is being questioned:

PROSECUTOR:

What did B tell you?

WITNESS:

According to B, C killed the victim.

DEFENSE:

Objection, your Honor! Hearsay.

PROSECUTOR:

Your Honor, we are only asking the question to prove the TENOR of the main statement. It is not being presented to prove that C is the killer.

Q: What does “tenor” mean?

A: That the question is being asked only to prove that B said something, but not to prove the truth of what B said. That is not considered violative of the hearsay rule, because in reality that is not hearsay. That is not hearsay, because, really, the witness had a talk with B. It is based on his (witness’) own perception.

The basic distinction is: to prove only the statement, but not to prove the truth of his statement. That is what is called an “Independent Relevant Statement”. The statement, by itself, presented independently is relevant.

But that cannot be done in all cases. That can be done only in certain cases, where the fact that the statement was made is relevant to the case.

According to the Supreme Court: the theory of the hearsay rule is that when a human utterance is offered as evidence of the truth of the fact asserted to it, the credit of the asserter becomes the basis of inference, and therefore, the assertion can be received in evidence only when made on the witness stand and subject to cross-examination. However, if an extrajudicial utterance is offered not as an assertion to the evidence in the matter asserted, but without reference to the truth of the matter asserted, the hearsay rule will not apply.

In other words, one must distinguish between:

(1) the fact that the statement was made; and, (2) the truth of the fact asserted in the statement.

One must prove that a statement was made:

(1) to prove the purpose of that statement;

(2) if his purpose is only to prove the fact that a statement was made, that is not hearsay.

But to prove the truth of that statement -- that is hearsay.

Q: When may an utterance be considered an independent relevant statement?

(1) when the utterance or statement constitutes the issue or parts of the issue of the case;

(2) when the utterance or statement is circumstantial evidence of the issue or issues in the case.

EXAMPLE of the first instance: When the statement constitutes the issue in the case. That you made a statement is the issue in the case.

How is slander committed? This is a crime against honor. Slander is committed by making a public statement which is derogatory. The offender imputes a crime, vice or defect which causes dishonor, discredit or contempt upon another person. For example, the statement is: “You are a thief.” That is slanderous. When one is called a thief in the presence of other people that is embarrassing.

Q: What is the main issue in a case or slander?

A: Did the accused make or not make the statement? If he did, then there is a crime. If he did not, then there is no crime.

So, it has to be proven that the accused made such a statement.

Definitely, there must be a witness, because the statement is made publicly.

Many people must have heard him say it. The star witness testifies that during a particular occasion, D was delivering a speech:

PROSECUTOR:

What was the speech about?

WITNESS:

D was talking about E, the complainant.

PROSECUTOR:

What did D exactly say about E in that speech?

WITNESS:

D said that E is a thief.

Q: Can the defense object to that kind of questioning?

A: No. The purpose is to prove that the accused made the statement.

That is not the issue in slander. The issue is not to prove that E is a thief.

The witness is being presented and questioned not to prove that the complainant is a thief, but to prove that the accused did call him a thief.

This is an independent relevant statement and is not covered by the hearsay rule.

The above testimony is not hearsay because the witness was present in the occasion in which the speech was delivered. He himself heard the accused calling the complainant a thief.

EXAMPLE of the second instance: When the statement is circumstantial evidence of the issue in the case. Circumstantial evidence refers to evidence tending to prove the probability of the issue.

For example, the issue in the case is whether or not the defendant was mentally insane when he signed a contract. He invokes such defense in order to prove that he is not bound by such contract. Plaintiff claims that defendant was perfectly normal when he signed the contract.

A witness is presented who testifies as to the state as to the state of mind of the defendant during that particular period. The witness says that he was introduced to the defendant for the first time in that occasion only.

COUNSEL FOR DEFENDANT:

When you met the defendant, how did he introduced himself to you?

WITNESS:

He introduced himself to me as the President of the Philippines.

The purpose of Counsel here is to prove that there was “something wrong” with the defendant during that period, at least. Counsel is trying to prove the state of mind of the defendant and the mere fact that he made that statement is circumstantial evidence that he was insane. The purpose of Counsel in his question is not to prove the truth that defendant is the President of the Philippines. The purpose is to prove that because of what he said to the witness, there is circumstantial evidence that “something was wrong with him”. The statement of the witness is admissible being an independent relevant statement.

Section 36 tells us what hearsay is all about, what it covers, what it does not cover, the philosophy behind it, the test to determine it. However, there are exceptions to the hearsay rule. They can be found in Sections 37 to 47.