Testimonial Knowledge

Sec. 36. Testim ony gen era lly con fin ed to p erson a l kn ow led ge; h earsay excluded. — A w itness can testify

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on ly to those facts w hich he know s o f his personal k n ow led ge; th at is, w hich are derived from his own p ercep tion , except as otherw ise provided in these rules. (30a)

N O T E S

1. This section is known as the hearsay evidence rule.

A n y evidence, w hether oral or docum entary, is h earsay if its probative value is not based on the personal know ledge o f the w itn ess but on the know ledge o f som e other person not on the w itness stand.

2. H earsay evidence is excluded because the party against w hom it is presented is deprived o f his righ t and opportu n ity to cross-exam ine the p erson s to w hom the statem ents or w ritings are attributed. C onsequently, if a p arty does not object to the hearsay evidence, the sam e is adm issible, as a party can waive his right to cross-exam ine (P eople vs. Ola, L-47147, July 3, 1987). The repeated failure o f a party to cross-examine the witness is an im plied w aiver o f such right and the testim ony o f said w itness who died thereafter should not be excluded from the record (S a v o r y L u n c h e o n e tte vs. L a k a s n g M a n g g a g a w a n g P ilipino, et al., L-38964, Jan. 31, 1975).

3. H ea rsa y ev id en ce alone m ay be in s u fficie n t to establish a fact in issue but w hen no objection is interposed thereto, it is, like any other evidence, to be considered and g iven the im p orta n ce it d eserves (M an liclic, et al. vs.

C alaunan, G.R. No. 150157, Jan. 25, 2007). H ow ever, it has also been held that hearsay evidence not objected to m ay be adm issible but, w hether objected to or not, has no probative value and, as opposed to direct prim ary evidence, the latter alw ays prevails (People vs. Valero, L-45283-84, Mar. 19, 1982; P eople vs. Williams, et al., G.R. No. 125985, A p ril 20, 2001; 3 Jones on E vidence, 2nd ed., p. 745).

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4. See Sec. 28 o f the Rule on E xam ination o f a Child W itness, A.M . No. 00-4-07-SC (A ppendix FF) regarding the special exception to the h earsay rule in child abuse cases. H earsay testim ony o f a child d escribin g any act or attem pted act o f sexual abuse m ay now be adm itted in any crim inal proceeding, subject to certain p rerequ isites and the right o f cross-exam in ation by the adverse party.

The ad m issib ility o f such h earsay statem en ts shall be determ ined by the court in light of specified subjective and objective con sideration s w hich provide su fficien t indicia o f reliability o f the child w itness.

5. The eleven exceptions to the hearsay evidence rule are found in Secs. 37 to 47 o f this Rule. L ogically assayed, Sec. 47, regard in g testim on y or deposition at a form er p r o c e e d in g , is n ot an e x ce p tio n to th e h e a rs a y ru le ; actually, it requires for its adm issibility that the party had eith er cross-exam in ed or had the op p ortu n ity to cross- exam in e the w itness at said form er trial.

T hese exception s are w arranted by the n ecessity for su ch e v id e n ce a n d /or on th e a ssu m p tio n th a t, in the ord in ary cou rse o f events, the sam e are trustw orthy.

6. W here the statem ents or w ritin gs attribu ted to a person w ho is not on the w itness stand are b ein g offered not to prove the truth o f the facts stated th erein but only to prove that those statem ents were actually made or those w ritin gs w ere executed, such evidence is not covered by th e h ea rsa y evid en ce rule. The w itn ess w ho te stifie s th ereto is com peten t because he h eard the sam e or saw the execu tion o f the docum ent, as these are m atters of fa ct derived from his ow n perception and the purpose is on ly to prove eith er that the statem ent w as m ade or the ten or th e re o f (P eople vs. Cusi, Jr., etc., et al., L-20986, A u g. 14, 1965; Cornejo, Sr. vs. Sandiganbayan, G.R. No.

58831, July 31, 1987; Sebastian, Sr. vs. G achitorena. et al., G.R. No. 114026, Oct. 18, 2000).

Thus, a w itness m ay testify to the statem ents m ade by a person if, for instance, the fact that such statem ents w ere made by the latter w ould indicate the latter’s m ental state or physical condition. This is know n as the doctrine o f independently relevant statem ents (31 C.J.S. 990-1005), that is, in dependent o f w hether the facts stated are true or not, they are relevant since they are the facts in issue or are circu m stan tial evidence o f the facts in issue.

Som e exam ples o f the second class o f statem ents are those m ade by a person (a) show ing his state o f m ind, that is, his m ental condition, know ledge, belief, intention, ill w ill, and other em otion; (b) w hich show his physical co n d itio n , as illn e ss and th e lik e ; (c) from w h ich an inference m ay be m ade as to the state o f m ind o f another, that is, the know ledge, belief, m otive, good or bad faith, etc., o f the latter; (d) w hich m ay identify the date, place an d p e rs o n in q u e stio n ; and (e) sh o w in g th e la ck o f c r e d i b i l i t y o f a w it n e s s ( R e s o l u t io n on M o tio n fo r R econ sid era tion , E strada vs. D esierto, etc., et al., G.R.

Nos. 146710-15, A p ril 3, 2001).

7. N ew sp ap er clip p in g s or fa cts p u b lish ed in the new spapers are hearsay and have no evidentiary value unless substantiated by persons with personal knowledge of said facts (People vs. Aguel, et al., L-36554, M ay 19, 1980).

6. Exceptions to the H earsay Evidence Rule (1) D ying D eclaration

Sec. 37. D yin g declaration. — The d eclaration o f a dying person, m ade under the con sciou sn ess o f an im p en d in g death, m ay be received in any case w h e r e in h is d e a th is the su b je c t o f in q u ir y , as e v id e n c e o f the cau se and su r ro u n d in g c ir c u m ­ stances o f such death. (31a)

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N O T E S

1. A dying declaration, also known as an ante m ortem statem ent or a statem ent in articulo mortis, is adm issible under the follow ing requisites: (1) That death is im m inent and the declarant is conscious o f the fact; (2) T hat the declaration refers to the cause and surrou n din g circu m ­ stances o f such death; (3) T hat the declaration relates to facts w hich the victim is com petent to testify to; and (4) That the declaration is offered in a case w herein the declaran t’s death is the subject o f the inquiry.

2. A d e cla ra tio n w ill be d eem ed as h a v in g b een m ade u n d er the co n scio u sn e ss o f im m in en t d eath , in con sideration o f —

(a) The w ords or statem ents o f the declaran t on the sam e occasion;

(b) His conduct at the tim e the declaration was made (U.S. vs. Virrey, 37 Phil. 618); or

(c) T h e s e rio u s n a tu re o f h is w o u n d s as w o u ld n ecessarily engender a b e lie f on his part that he w ould not su rvive th erefrom (P eop le vs. A vila , 92 Phil. 805;

P e o p le vs. S a ra b ia , et a l., L -2 7 4 2 2 , J an . 30, 1984), especially w here he died an hour th ereafter (P eople vs.

B rioso, et al., L-28482, Jan. 30, 1971; P eople vs. Garcia, L-44364, A p ril 27, 1979; P eople vs. A raja, et al., L-24780, J u n e 21, 1981).

3. The in te rv e n in g tim e from the m a k in g o f the d ecla ra tion up to the actu al death o f the d ecla ra n t is im m aterial, as long as the declaration w as m ade under, the con sciousness o f im pending death (U.S. vs. M allari, 29 Phil. 14) w hich is a question o f fact for the tria l court to determ ine (People vs. Extra, L-29205, July 30, 1976), and as long as no retraction w as m ade by the declarant u n til his dem ise. W here the gravity o f the w ound did not

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dim inish, the adm issibility o f the dying declaration is not affected by the fact that the declarant died hours or days la ter (P eople vs. D evaras, et al., L-25165, Feb. 27, 1971) or even 14 days later (People vs. Jacinto, G.R. No. 51908, Nov. 29, 1984). It is the b e lie f in im pending death at the tim e the statem ent was made, and not the rapid succession o f death, that renders the dying declaration adm issible (P eople vs. Sabio, L-26193, Jan. 27, 1981).

4. H o w e v e r , th e in t e r v a l o f tim e b e t w e e n th e declaration and the death o f the declarant m ay be taken in to account w here the d eclaration is am biguous as to w h e th e r th e d e c la r a n t b e lie v e d th a t h is d e a th w as im m in en t w hen he made such declaration. Thus, w here the declarant stated that he w ould not die if treated, such statem ent indicates an aw areness o f death and the nature o f his w ound and his death an hour later qu alifies such statem ent into a dying declaration, or, at least, as part o f th e res g es ta e (P eop le vs. A n to n io , et al., L -2 58 4 5, A ug. 25, 1970). W here, shortly after he was w ounded, the victim w as asked as to w hether he b elieved he w ould die and to w hich he replied “I cannot ascertain ” and he died the follow ing day, his statem ent is adm issible both as part o f the res g esta e and as a dying d eclaration (People vs. Gueron, et al., L-29356, M ar. 25, 1983). B ut w here the victim , w hen asked as to w hether he thought he w ould die, replied “I don’t know ,” his declaration w as not m ade u n der the consciou sn ess o f his im m inent death and does not qualify as an ante m ortem statem ent, alth ough the sam e w as adm itted as part o f the res gesta e since it was m ade im m ediately after the incident (People vs. Laquinon, L -45470, Feb. 28, 1985). On the other hand, w here the victim , w hen asked as to w h eth er he b elieved he w ould die from his in ju ries, rep lied “It all dep en d s,” and his co n d itio n h ad p ro g re ssiv e ly im proved, his sta tem en ts th ereafter cannot be con sidered as a dying declaration (P eople vs. Lanza, L-31782, D ec. 14, 1979).

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5. A fter a dying declaration is proved and adm itted as Much, its credibility and w eight should be determ ined by the cou rts under the sam e rules used in testin g the w eight and cred ibility o f any oth er testim on ial evidence (P eople vs. A niel, et al., L -34416, Feb. 21, 1980; P eople vs. Ola, L-47147, July 3, 1987). Thus, it has been held th a t su ch fa cto rs as w h ere th e fa cts n a rra te d by the declaran t have occurred un der circum stances o f surprise, rapidity and confusion, should not be lost by oversight, because the accu racy o f his observation o f the occurrences before him could be blu rred by such disorder and rapidity o f even ts and, th erefore, he cou ld be m ista k en in his id en tification o f his assailant. T aking into consideration, too, th at the source, accu racy and com pleten ess o f the declarant’s knowledge as to the facts by him asserted could not be te ste d by m eans o f cro ss-e x a m in a tio n , a dyin g declaration has to be accepted w ith utm ost care and should be con sidered in light o f all the facts proved in the case (P eople vs. M allare, [CA], 61 O.G. 1370).

6. A dying declaration is adm issible on ly in sofa r as it refers to facts regard in g the cause and su rrou n din g circu m stan ces o f the declaran t’s death, hence statem ents referrin g to the antecedents o f the fatal en cou n ter (People vs. B u s to s , 45 P h il. 9) o r o p in io n s , im p r e s s io n s or con clu sion s o f the declarant (S tate vs. Horn, 204 M o. 528, 103 S. VP. 69) are not adm issible; but all facts relatin g to the cause o f such death are adm issible w h eth er the sam e are in favor o f or against the accused (U.S. vs. Clem ente, 22 Phil. 277; U.S. vs. A ntipolo, 37 Phil. 726; P eop le vs.

M artinez, et al., 42 Phil. 85).

7. The form er rule was that dying declarations w ere adm issible on ly in crim in al p rosecu tion s for h om icide, m urder or parricid e w herein the declarant is the victim (People vs. Lara, 54 Phil. 96). A s am ended, the R ule now provides for such adm issibility in any case as lon g as the

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requisites concur.

8. A dying declaration may be oral or w ritten or made by signs w hich could be interpreted and testified to by a w itness thereto. The w ife o f the declarant m ay testify to the sam e, either for the prosecution or as a w itness for the defense, and this does not violate the m arital p rivilege as a d y in g d e cla ra tio n is not co n s id e r e d a co n fid e n tia l com m u n ication betw een the spouses (U.S. vs. A ntipolo, supra). I f the ante m ortem statem ent w as m ade orally, the w itn ess who heard it m ay testify th ereto, w ith ou t necessarily reproducing the exact w ords as lon g as he can give the substance thereof, and if the deceased had an u n sign ed dying declaration, the same m ay be used as a m em orandum by the w itness w ho took it dow n (P eople vs.

Odencio, et al., L -3 1 961, Jan. 9, 1979).

9. A d y in g d e c la r a tio n m ay be a tta c k e d on th e ground that any o f the requ isites for its adm issibility are n ot p resen t, and the sam e m ay be im p ea ch ed in the sam e m anner as the testim ony o f any other w itness on the stand (see U.S. vs. Castellon, 12 Phil. 160; P eop le vs.

M a la con , [C A ], 67 O.G. 9024; P eo p le vs. A n iel, et al., L-34416, Feb. 21, 1980). A m erican ju risp ru d en ce is to the effect that dying declarations are on the sam e footin g as testim ony o f a w itness on the stand and w hatever would disqualify such w itness w ould also make such declarations in com p eten t eviden ce (P eople vs. Sanchez, 24 Cal. 17;

D onnelly vs. State, 26 N .J.L. 601).

(2) D eclaration A gainst Interest

Sec. 38. D e c l a r a t io n a g a in s t i n t e r e s t . — T h e declaration m ade by a person deceased, or unable to testify , again st the interest o f the declaran t, if the fact asserted in the declaration w as at the time it w as m ad e so fa r c o n tra r y to d e c la r a n t’s ow n

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in te r e s t, th a t a r e a so n a b le m a n in h is p o s itio n w ould not have m ad e the d e c la r a tio n u n le ss he believed it to be tru e, m ay be received in evidence again st h im se lf or his su ccessors in in terest and against third persons. (32a)

N O T E S

1. T here is a vital distin ction betw een adm issions a g a in s t in t e r e s t a n d d e c la r a t io n s a g a in s t in t e r e s t . A dm issions against interest are those m ade by a party to a litig ation or by one in privity w ith or iden tified in legal in terest w ith such party, and are adm issible w h eth er or not the declarant is available as a w itness. D eclarations a g a in s t in te re s t are th ose m ade by a p e rs o n w h o is n either a party nor in privity w ith a party to the suit, are secon d ary evid en ce but con stitu te an ex cep tion to the hearsay rule, and are adm issible only w hen the declarant is u n a v a ila b le as a w itn ess (N eely us. K a n sa s P u b lic Seruice Co., 252 S.VK. 2d 88; see also N ote 6 under Sec. 26 o f this Rule).

2. In order that a statem ent m ay be adm issible as a declaration against interest, it is requ ired th at (a) the declaran t is dead or unable to testify; (b) it relates to a fact against the interest o f the declarant; (c) at the tim e he m ade said declaration the declarant was aw are that th e sam e w as con tra ry to h is a fo re sa id in te re s t; and (d) the declarant had no m otive to falsify and believed such declaration to be true (see Ong us. CA, et al., L-47674, Oct. 30, 1980).

3. A declaration against interest is the opposite o f a s e lf serving declaration w hich is a statem ent favorable to or in ten ded to advance the interests o f the declarant.

C onsequently, a self-servin g declaration is inadm issible as b ein g h ea rsa y i f the d ecla ra n t is u n a v a ila b le as a witness.

4. In People vs. Toledo and H olgado (51 Phil. 825), it was opined by three justices that a declaration adm itting th a t he w as the one w ho killed the victim , m ade by a declarant w ho died shortly thereafter, is adm issible w here another person was subsequently charged as the killer of the sam e victim , under the theory that said declaration w as one against the pen a l interest o f the declarant. This w ould be a ju stifia ble theory since under our pen al laws a p e rs o n c r im in a lly lia b le is also civ illy lia b le , a n d is sustained under the present am ended rule w hich does not delim it or distinguish as to the interest against w hich the d eclaration is made.

(3) A ct or D eclaration A bout P edigree

Sec. 39. A ct or d eclaration about p ed igree. — The act or d eclaration o f a person d eceased, or unable to te s tify in r e sp e c t to th e p e d ig re e o f a n o th e r person related to him by birth or m arriage, m ay be received in evidence w here it occurred before the con trov ersy, and the relation sh ip b etw een the two persons is show n by evidence other than such act or d e c la r a t io n . T h e w o rd “ p e d ig r e e ” in c lu d e s r e la tio n s h ip , fa m ily g e n e a lo g y , b ir th , m a r ria g e , death , the dates w hen and the places w here these facts occu rred , and the nam es o f the relatives. It em b ra ces also facts o f fa m ily h isto ry in tim a te ly connected w ith pedigree. (33a)

(4) Fam ily R eputation or T radition R egarding Pedigree

Sec. 40. Fam ily reputation or tradition regard in g p ed ig ree . — The r e p u ta tio n or tr a d itio n e x is tin g in a fa m ily previous to the con trov ersy, in respect

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to the p ed ig ree o f an y one o f its m em b e rs, m ay be received in evid en ce if the w itn ess te s tify in g th e r e o n be a lso a m e m b e r o f th e fa m ily , e ith e r by c o n s a n g u in ity or a ffin ity . E n tr ie s in fa m ily bib les or o th er fam ily books or ch arts, en gravin gs on r in g s , fa m ily p o r tr a its and th e lik e , m a y be received as evidence o f pedigree. (34a)

N O TES

1. Under these sections, the pedigree of a person may be proved by the act or declaration of a relative (Sec. 39), by the reputation or tradition existing in his family (Sec. 40), or by entries in family bibles, etc. (Sec. 40) and with respect to marriage, also by common reputation in the community (Sec. 41). Of course, pedigree may be proved by other species of direct primary evidence, instead of the foregoing exceptions to the hearsay evidence rule.

2. In order that pedigree may be proved by acts or declarations of relatives under Sec. 39, it is necessary that (a) the actor or declarant is dead or unable to testify;

(b) the act or declaration is made by a person related to the subject by birth or marriage; (c) the relationship between the declarant or the actor and the subject is shown by evidence other than such act or declaration;

and (d) the act or declaration was made a n te litem m otam , or prior to the controversy.

3. The relationship must preliminarily be proved by direct or circumstantial evidence. The rules do not require any specific degree of relationship, but the weight to which such act or declaration is entitled may be affected by the degree of relationship.

4. With respect to reputation or tradition under

4. With respect to reputation or tradition under