THE WIRE TAPPED MATERIAL MAY BE USED AND IS ADMITTED IN A

JUDICIAL PROCEEDING FOR PROSECUTION OF VIOLATION OF RA4200. Do you follow? The wire tapped llegally obtained information can be presented in a judicial proceeding, where a person is prosecuted for violation of RA4200;

2. in a legislative investigation in aid of legislation whose purpose is precisely TO ADDRESS ILLEGAL WIRE TAPPING. Although class in this case, it could be used to aid Congress in its legislative investigation. It cannot be used in the prosecution of electoral fraud. Do you follow? Yes, you can use it in aid of legislation. Alam na alam mo narinig ng bayan yan na talagang may kalokohan but it is inadmissible for purposes of prosecution in connection with electoral fraud.

Let us proceed to another item. What is that another item? PAROL EVIDENCE RULE. What

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about the parol evidence rule? The basic rule is, THE DOCUMENT IS THE MONUMENT OF WHAT THE PARTIES HAVE AGREED UPON. Everything that you have agreed upon is in the document that you have executed, you cannot go outside of it. If you go outside of what is in the document you will be in violation of the parol evidence rule.

HOW CAN YOU PRESENT EVIDENCE OUTSIDE OF WHAT IS IN THE DOCUMENT? That is the question answered in the case of ACI vs. Coquia yun ang tanong. Papaano? And this is very important class it is in the code but it is cited in the case. YOU HAVE TO PUT IT IN ISSUE IN THE PLEADINGS – you could modify, explain or add for as long as you put it in issue in the pleadings. If you did not put it in issue in the pleadings, you cannot present the exceptions to the parol evidence rule. Ok! And class if I can give you a few of the exceptions, you have:

1. when the document is not reflective of the true agreement of the parties;

2. as to matters of validity; 3. mistake of fact;

4. intrinsic ambiguity; 5. imperfection.

Now,let us look at this case of Chua-Gao vs. Chua a 2008 case that explains to us whether or not you need to present an original, in a case. WHERE THE ISSUE IS ONLY AS TO WHETHER THE DOCUMENT WAS ACTUALLY EXECUTED OR EXIST OR THE CIRCUMSTANCES RELEVANT TO OR SORROUNDING ITS EXECUTION, the best evidence rule DOES NOT APPLY. Are we clear? The best evidence rule will not apply when it is a question of execution, its existence or the circumstances surrounding its existence, you do

not need to present the original. In fact the court said here that, the presentation of copies of the transfer certificate of title and the deeds are enough, you do not need to present the original.

The next question that I would like to touch on would be in the case of Sansan vs. NLRC. I think the pertinent provision here is RULE 128 §2, what is that? The RULES ON EVIDENCE APPLIES IN ALL COURTS IN THE PHILIPPINES EXCEPT AS OTHERWISE PROVIDED FOR BY LAW. Do you follow? NLRC is not a court, it is a quasi-judicial agency. The question presented before the Supreme Court was CAN THERE BE PRESENTATION OF NEW EVIDENCE ON APPEAL IN THE NLRC AND NOT WITH THE LABOR ARBITER. So the documents were not presented at at the labor arbiter but at the NLRC on appeal. What did the Supreme Court say? The submission of additional evidence before the NLRC is not prohibited by its new rules of procedure, after all rules of evidence prevailing in courts of law or equity are not controlling in labor cases. The NLRC and labor arbiters are directed to use every and reasonable means to ascertain the facts, the submission of additional evidenc on appeal does not prejudice the other party for the latter could submit counter- evidence.

You know class that is the difficulty later on, if you will note in the NLRC. You could present just anything. You photocopy, you fold it your pocket, then you attach it to the pleading it is ok because technical rules of evidence do not apply. As they say, even if you present it there, there is an opportunity to present counter- evidence.

The next question presented in that case is this PRESENTATION OF PHOTOCOPIES. Sabi niya bakit naman photocopy lang presenta mo, hindi naman original, considering the best evidence rule, correct?! the court said, even assuming that petitioners were given mere photocopies

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again we stress that proceedings before the NLRC are not vovered with technical rules of procedure, as observed by regular courts. Do you follow? That is why if you recall your administrative law. What does the Supreme Court usually do in adapting decisions of quasi- judicial agencies, they have special skills, knowledge and expertise therefore the Supreme Court sees no reason to disturb the findings of facts by quasi-judicial agency.

Now, let us try to answer this question – CAN AN EVIDENCE BE CONSIDERED AFTER THE DECISION AND NOT FORMALLY OFFERED? Ok! Basic rule this has been asked repeatedly in bar exams, no formal offer. The answer is NO and that is the GENERAL RULE. However class, let me call your attention to another case involving the same matter. The case of Rafael Dizon vs. Court of Appeals citing the long standing rule of Vda. De Oñate. What is this case of Vda. De Oñate? This particular case only declare together with some other cases, that EVEN IF IT IS NOT FORMALLY OFFERED BUT IT IS MADE PART OF THE RECORD, THE COURT CAN CONSIDER THE SAME. However class these are what? According to the case of Rafael Dizon MERELY EXCEPTIONS TO THE GENERAL RULE. WHAT IS THE GENERAL RULE? No evidence will be considered by the court UNLESS FORMALLY OFFERED the Vda. De Oñate case is just an exception.

Now, let us look at POSITIVE IDENTIFICATION vis-à-vis ALIBI, People vs. Bayot. Settled jurisprudence is that, CATEGORICAL AND CONSISTENT POSITIVE IDENTIFICATION ABSENT ANY SHOWING OF ILL-MOTIVE ON THE PART OF THE EYE WITNESS PREVAILS OVER DEFENSES OF DENIAL AND ALIBI.

Let us look at ADVERSE PARTY WITNESS. Ok! I have mentioned that a while ago. Adverse party witness that is found in RULE 132 §13. It is in

the same paragraph as a hostile witness. Tingnan natin to class. What does it say? WHO IS AN ADVERSE PARTY WITNESS? The adverse party witness is the other party who you want to call on the witness stand, that is an adverse party witness. When you say ADVERSE PARTY’S WITNESSES those are the witnesses of the other party but when you say ADVERSE PARTY WITNESS I am the plaintiff he is the defendant, he is the adverse party witness. CAN I CALL THE OTHER PARTY ON THE STAND? Yes! But I should have served written interrogatories consistent with RULE 25.

WHO IS A HOSTILE WITNESS? May nagkonsulta sa akin hirap na hirap akong magdiscuss, kasi sabi niya o…sabi niya sa akin eh papaano yang hostile na yan eh gusto niya ganito raw yung ano ginawa ng kalaban niya, his opponent even before presenting his witness said, your honor I will be presenting a hostile witness…(the class chuckles) Oh! Marunong kayo, marunong kayo! Tama yun! A HOSTILE WITNESS ONLY BECOMES ONE ONLY AFTER THE COURT DECLARES HIM TO BE A HOSTILE WITNESS because he has misled you, his position is adverse. Do you follow?! All of these things makes him a hostile witness but the mere fact that you feel that he may be hostile will not make him as a hostile witness. What did the court say on Chua-Gao vs. Chua? Unlike an ordinary witness, the calling party may impeach an adverse witness in all respects as if he had been called by the adverse party, except by evidence of his bad character. Are we clear?! So if I call on an adverse party witness, meaning my opponent I could impeach him, I could destroy his testimony but I cannot present his bad character. Are we clear?! He is as if on cross-examination because obviously his interest is adverse to my interest. So again, unlike an ordinary witness, the calling party may impeach an adverse witness in all respects as if he had been called by the adverse party, except by evidence of his bad character.

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Ok! Now, let us look at the case involving GOVERNMENT PRIVILEGE, Neri vs. Senate Committee on Accountability.

WHAT IS A GOVERNMENT PRIVILEGE? A government privilege is invoked against public disclosure of state secrets covering military, diplomatic and other national security matters. In the Reynolds case it was held that there must be a formal claim, THERE SHOULD BE A FORMAL CLAIM FOR A GOVERNMENT PRIVILEGE of privilege lodge by the head of the department. WHO SHOULD LODGE THE CLAIM? The head of the department. Ok! For the government privilege and has control over the matter after actual consideration by that officer, the court must thereafter determine whether the circumstances are appropriate for the claim of the privilege.

Again, a governmental privilege is a privilege to prevent disclosure of state secrets covering military, diplomatic or other national security matters and based on the old Reynolds case, the requirement is to lodge a formal claim by the head of the department to be able to invoke.

HOW ABOUT AN EXECUTIVE PRIVILEGE? WHO CAN INVOKE AN EXECUTIVE PRIVILEGE? Only the president or the executive secretary can invoke the executive privilege according to this case.

CAN PRESIDENTIAL COMMUNICATIONS UNDER THE SO-CALLED EXECUTIVE PRIVILEGE BE PIERCED? The presidential communication privilege can be pirced by showing of specific need of the party seeking presidential information in order to perform its functions mandated by the constitution. So you would note that what could pierce the executive or the presidential privilege communication is the

need to perform the functions under the constitution.

Let us look at class the 2 TYPES OF POSITIVE IDENTIFICATION. What are the 2 types of positive idenfication?

1. as DIRECT EVIDENCE, meaning you were there and you were able to see how it was committed;

2. as CIRCUMSTANTIAL EVIDENCE. Let us look at EXTRA-JUDICIAL CONFESSION. As a rule extra-judicial confession can only be used against the person making it, that is the rule. WHAT ARE THE EXCEPTIONS?

1. where there are EXTRA-JUDICIAL STATEMENTS HAD BEEN MADE BY SEVERAL PERSON charged with an offense and THERE COULD HAVE BEEN NO COLLUSION with reference to said several confession;

2. this is also admissible as circumstantial evidence against the person implicated to show the probability of the latter’s actual participation;

3. may also serve as corroborative evidence, if it is clear from other facts and circumstances that other person had participated in the commission of the crime.

These are known as INTERLOCKING CONFESSIONS.

Let us now look at WHEN JUDICIAL ADMISSION TO BE MADE? Cuenco vs. Talisay.

1. it could be made in the pleadings, according to this case;

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2. during the trial whether verbal or written;

3. in other stages of the proceedings. Now, let us touch on OFFER OF COMPROMISE. Under RULE 130 §27. In CIVIL CASES at ANY STAGE of the proceedings you could offer compromise. Right?! However, in a CRIMINAL CASE an offer of compromise of an accused is an IMPLIED ADMISSION OF LIABILITY. Now, this case of People vs. Ergueza is informative. Ok! Why? An offer of COMPROMISE FROM AN UNAUTHORIZED PERSON CANNOT AMOUNT TO THE ADMISSION OF THE PARTY HIMSELF. So at times the party has a representative, if the person in unauthorized it cannot amount to the admission of the party himself. THE ACCUSED SHOULD HAVE BEEN PRESENT OR AT LEAST AUTHORIZED THE PROPOSED COMPROMISE. So what you find here is some sort of agency. The accused was not there, someone else offers a compromise so called for him but if he is unauthorized the compromise or the offer of compromise cannot be taken against the accused.

Let us now proceed on a few more items, video recoding of evidence. Before I go to the video recording let us take note of the DNA RULE which was passed by the Supreme Court in 2008. Do you still remember that? Sir, meron ba nun? OO! Meron yun(chuckles). I will highlight the points that I feel necessary for your study. Under that rule there is what you call POST CONVICTION DNA EXAMINATION. Sir, ano yun post conviction DNA examination? You have already been CONVICTED, you are rendered GUILTY, you are ALREADY SERVING SENTENCE, COULD YOU ASK FOR DNA EXAMINATION? YES! COOULD SOMEONE ELSE ASK THE EXAMINATION FOR YOU? YES!

CAN YOU BE RELEASED if after the DNA Examination it is found that you are not the

perpetrator of the offense? YES! But you have to FILE something – what do you need to file? A PETITION FOR HABEAS CORPUS in the COURT THAT ORIGINALLY RENDERED THE JUDGMENT. Take note of that hindi pa lumalabas yan! Baka biglang i-multiple choice kayo dyan. What else? ON MATTERS OF FILIATION – WHAT ABOUT MATTERS OF FILIATION? That rule said that if it is:

1. 99.9% and above it is CORROBORATIVE EVIDENCE;

2. Below 99.9% it is a DISPUTABLE PRESUMPTION.

WHAT FIGURES AM I TELLING YOU? After your examination, your relationship to the child is established to be 99.9% that is corroborative evidence, below 99.9% that is only disputable presumption.

Let us look at VIDEO RECORDING as evidence. Torralba vs. People. CAN YOU USE VIDEO RECORDING? a while ago we discuss this in the light of the recent decision of the court in the Mangundadatu case.

WHAT ARE THE REQUIREMENTS FOR YOU TO PRESENT A VIDEO RECORDING?

1. a showing that the recording device is capable of taking the testimony; 2. that the operator of the device was

competent, not only the device must be capable but also the operator;

3. establishment of the aunthenticity or correctness of the recording – is it authentic or correct;

4. showing of changes, additions or deletions or either splicing;

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5. showing of the manner of preservation of the recording or in the manner as we call, chain of custody;

6. identification of the speakers; 7. showing the testimony was

voluntarily made without any kind of inducement.

Is PARAFFIN TEST, still a reliable test today? NOT ANYMORE. Ok! Because there are ways that you could acquire nitrate burns not necessarily by firing a gun. There are also ways today of removing it so the nitrates can no longer be detected.

Let us look at the child witness examination rule. Remember that?! Before we discuss the child witness examination rule let me set the rule that you have to take note when it comes to testimony of witnesses. OK! Parang mga antok na antok na kayo ah! What time is it?! 6…Ayan 5:40 na bumilis ah! Ok! Gusto nang umuwi…

Now, class WHAT IS THE RULE WHEN IT COMES TO TESTIMONIAL EVIDENCE? Class I tell you, do not go to the bar exams na hindi niyo kabisado ang RULE 130 at RULE 132. Yung 131, kapag minalas ka at tinanong talagang malas ka because that was asked in the bar exams of 2003, the presumptions. Ok! So RULE 130 and 132, you have to know that by heart. Ok! I am not saying that you do not read the rest, you also study the rest but you have to know by heart RULE 130 and 132.

WHAT IS THE RULE WHEN IT COMES TO TESTIMONIAL EVIDENCE? the rule is this, that the witness is ABLE TO PERCEIVE AND PERCEIVING COULD MAKE KNOW HIS PERCEPTION TO ANOTHER. The rule does not require you to be a college degree holder, to be a higschool graduate all that it requires is that

you are able to perceive and perceiving you could make known your perception to another, the rest are what? Disqualifications. Do you follow?! Yun ang rule, qualification. The succeeding provisions are disqualifications. WHAT ARE THE DISQUALIFICATIONS?

1. mental immaturity and mental sanity – dyan papasok yung child witness examination rule. When you talk of mental maturity class, again the provision of the law did not provide for an age, if you would note that is why it used maturity and that leads me to CHILD WITNESS EXAMINATION RULE – applies to CIVIL. CRIMINAL AND EVEN ADMINISTRATIVE cases. CAN YOU ASK LEADING QUESTIONS ON A CHILD WITNESS UNDER THE CHILD WITNESS EXAMINATION RULE? YES but you have to inform the other party that you will be asking leading questions.

CAN DEPOSITIONS BE TAKEN UNDER THE CHILD WITNESS EXAMINATION RULE? YES depositions can be taken.

SHOULD THE COURT DETERMINE THE ABILITY OF THE CHILD TO TESTIFY AND TO KNOW WHAT IS RIGHT AND WHAT IS WRONG? YES that has to be determined under the child witness examination rule. There is what you call COMFORT OBJECTS! Ano yung mga comfort objects? Dapat alam niyo yan baka i-multiplt choice kayo dyan. Those objects where the child witness is comfortable, that she could hold on to in the course of the proceedings.

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WHO ARE COMFORT PERSONS? Comfort persons could be a nanny, a yaya or ANY PERSON TO WHOM SHE FEELS THE TRUST AS SHE TESTIFIES.

SHOULD THE EXAMINATION OF A CHILD WITNESS BE FACE-TO-FACE IN COURT OR COULD IT BE ON A TV LIVE LINK PROCEEDINGS? YES. Take note, the proceedings here could also be treated confidential.

CAN A PERSON BE IDENTIFIED BY HIS PHYSICAL BUILT, VOICE AND PECULIAR SMELL? In this particular case…kayo naman oh! Para kayong niloloko! Hindi ko kayo niloloko!(chuckles). Can an accused be identified by reason of his physical built, voice and peculiar smell? People vs. Cañete, while it may be true that it was dark when the appellant ravished the private complainant or raped her in his house, the physical built of the appellant but also with his voice and peculiar smell, the victim was able to identify. Alam niyo naman siguro yun, yung smell! Meron nga ibang tao yun at yun ang amoy eh!(chuckles)

2. by REASON OF MARRIAGE – this not a privilege, this is a disqualification by reason of marriage and class please take note that the INFORMATION HERE IS NOT CONFIDENTIAL, it is the marriage that disqualifies you to testify. BUT AFTER THE MARRIAGE CAN YOU TESTIFY? YES, unlike privileged communication by reason of