Bar Review Pointers Evidence 2015

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Jurists Bar Review Pointers on Evidence 2015. All rights reserved 2015 by Jurists Review Center, Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant Supreme Court.

Bar Review Pointers on Evidence by Prof. Manuel R. Riguera for Jurists Bar Review Center

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JURISTS BAR REVIEW CENTER™

BAR REVIEW POINTERS ON EVIDENCE

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Prof. Manuel Riguera

31 May 2015

EVIDENCE. The means, sanctioned by the Rules of Court, of ascertaining in a judicial proceeding the truth respecting a matter of fact. (S1 R128). Evidence also refers to the medium used to prove the existence or non-existence of a fact in issue.

While administrative or quasi-judicial bodies, such as the Office of the Ombudsman, are not bound by the technical rules of procedure, this rule cannot be taken as a license to disregard fundamental evidentiary rules; the decision of the administrative agencies and the evidence it relies upon must, at the very least be substantial. In an investigation before the OMB for grave misconduct, the SC upheld the inadmissibility of affidavits and NBI report based thereon on the ground of hearsay. (Miro v. Vda de Erederos, 20 November 2013).

SCOPE. The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or by the Rules of Court (S2 R128) or by Supreme Court issuances. For instance under the Rules on Summary Procedure, in criminal cases the direct testimonies of witnesses shall be in affidavit form subject to cross-examination.

ADMISSIBILITY. Evidence is admissible when it is relevant to the issue and is not excluded by the law or by the Rules of Court. (S3 R128).

ADMISSIBILITY = RELEVANCY + COMPETENCY. RELEVANCY

Evidence is relevant when it has a relation to the fact in issue as to induce belief in its existence or non-existence. (iben)

Collateral matters: matters which have no direct connection to the fact in issue. Thus in a suit on a promissory note by P against D, the fact that D did not pay A is a collateral matter.

Is evidence on collateral matters allowed? No except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. (S4 R128) (trepif).

COMPETENCY

Even if the evidence is relevant, but it is excluded by the law or by the Rules of Court, the evidence would be inadmissible.

Exclusionary rules are present in the Rules of Court, for example those relating to the various disqualification rules and privileges. They may also be found in the Constitution such as under Sections 2 and 3, Article III (right v. unreasonable search and seizure, right to privacy of communication and correspondence), Section 12, Article III (rights of person under custodial investigation), Section 17, Article III (right v. self-incrimination), in statutes, such as the bank secrecy law (R.A. No. 1405) and the Anti-Wiretapping Law (R.A. No. 4200).

Q In a disbarment case, introduced in evidence against the respondent was a birth certificate

showing that he had fathered children by his mistress. The respondent invokes Article 7 of P.D. No. 603 which provides that the birth records of a person shall be kept strictly confidential and that no information thereto shall be disclosed except on request of the person himself or of a court or proper government

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Bar Review Pointers on Evidence by Prof. Manuel R. Riguera for Jurists Bar Review Center 2

official and which punishes with imprisonment and/or fine any unauthorized disclosure. Is the birth certificate admissible in evidence?

A Yes. Article 7 of P.D. No. 603 only provides for sanctions against persons violating the rule on

confidentiality of birth records, but nowhere does it state that procurement of birth records in violation of said article would render said records inadmissible in evidence. On the other hand, the Rules of Evidence only provides for the exclusion of evidence if it is obtained as a result of illegal searches and seizures. It should be emphasized, however, that said rule against unreasonable searches and seizures is meant only to protect a person from interference by the government or the state. Consequently, in this case where complainants, as private individuals, obtained the subject birth records as evidence against respondent, the protection against unreasonable searches and seizures does not apply. Since both Article 7 of P.D. No. 603 and the Revised Rules on Evidence do not provide for the exclusion from evidence of the birth certificates in question, said public documents are, therefore, admissible and should be properly taken into consideration in the resolution of this administrative case against respondent. (Tolentino v. Mendoza, 440 SCRA 519 [2004], cited in De Jesus v. Sanchez-Malit, 8 July 2014).

KINDS OF EVIDENCE (DOT)

DOCUMENTARY EVIDENCE. Writings or any material offered as proof of their contents. OBJECT (OR REAL) EVIDENCE. Evidence which is directly addressed to the court’s senses. TESTIMONIAL EVIDENCE. Consists of the statement of a witness offered to the court. Maybe oral/live or written (affidavit).

DOCUMENTARY EVIDENCE. Writings or any material containing letters, words, numbers, symbols, or other modes of written expression offered as proof of their contents. Hence a document can be object evidence if offered not as proof of its contents but of its existence or physical condition or features. BEST EVIDENCE RULE (ORIGINAL DOCUMENTS RULE) S3-7 R130

Presently we have two best evidence rules. One under S3 R130 and another one under R4 REE.

Best evidence rule under S3 R130

When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself. (S3 R130).

BER applies only to documentary evidence not to testimonial/oral or object evidence.

Air France v. Carrascoso, 18 SCRA 155. Testimony on what the purser read to the witness from a notebook not covered by BER.

People v. Tandoy, 192 SCRA 28. Photocopies of buy-bust money admissible in evidence. WHAT IS THE ORIGINAL?

1. Original simply means the document the contents of which are the subject of inquiry. (csi) (S4(a) R130).

2. Duplicate originals.

3. Regularly repeated business entries.

Exceptions to the BER: (CLAP)

C - Custody/Control. Original is in the custody or control of the adverse party and he fails to

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L - Lost/Destroyed/Production cannot be made. (LDP). Note that the law requires from the offeror absence of bad faith not of negligence.

A - Accounts which are numerous and cannot be examined without great loss of time and the fact sought to be established is only the general result of the whole. (NTG grew). A witness need not present the original accounts but can present a summary thereof.

P - Public record or recorded in a public office. May be proved by a certified true copy issued by the public officer in custody thereof.

Trial court’s discretion to dispense with production of original

Estrada v. Desierto, 356 SCRA 108 (2001). The SC adopted Wigmore’s comment that production of the original may be dispensed with, in the trial court’s discretion, if the opponent does not bona fide dispute the contents of the document and no other useful purpose will be served by requiring production. (DBU). Gaw v. Chua, G.R. No. 160855, 16 April 2008, Nachura, J. Production of the original may be dispensed with in the trial court’s discretion whenever the opponent does not bona fide dispute the contents of the documents and no other useful purpose will be served by requiring production.

Here there was no dispute as to the terms of either deed; hence the RTC correctly admitted the photocopies in evidence. Concepcion Chua admitted signing the deed of partition and in effect admitted the genuineness and due execution of the deed of sale when she failed to specifically deny it under oath pursuant to S8 R8. The Spouses Gaw did not contest the contents of the deeds but simply alleged that there was a contemporaneous agreement that the transfer of Hagonoy Lumber to Chua Sioc Huan was only temporary.

A certification by an officer of the local assessor’s office that a copy of the deed of sale is a certified true copy is not an acceptable secondary evidence. First the local assessor’s office is not the official repository of original notarized deeds of sale and could not have been the legal custodian contemplated in S24 R132. Second the certification did not state that it is a certified true copy of the original. (Gabatan v. CA, 13 March 2009).

The fact that the articles of incorporation, memorandum of agreement, purchase agreement, confidential memorandum, and letters were collected by the PCGG in the course of its investigation of the alleged ill-gotten wealth of the Marcoses did not make them public records within the purview of S3(c) and S7 R130. Hence they could not be admitted for being in violation of the best evidence rule. As to the copy of the TSN of the proceedings before the PCGG, while it may be considered as a public document since it was taken in the course of the PCGG’s exercise of its mandate, it was not attested to by the legal custodian to be a correct copy of the original. This omission falls short of the requirement of Rule 132, Secs. 24 and 25 of the Rules of Court. (Republic v Marcos-Manotoc, 8 February 2012).

Presentation of photocopy of Gulf Air finance manual permissible in labor proceedings which are non-litigious. (Gulf Air v. NLRC, 24 April 2009).

Best evidence rule does not apply where the contents of a document are not the subject of inquiry, as in the case where neither party disputed the contents of a service contract. (Nissan North EDSA v. United Phil. Scout Agency, 20 April 2010).

Proper foundation for the introduction of secondary evidence

1. Proof of the execution or existence of the document. 2. Proof of the cause of its unavailability.

Secondary evidence (CRT)

1. Copy.

2. Recital in an authentic document. 3. Testimony of a witness.

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Bar Review Pointers on Evidence by Prof. Manuel R. Riguera for Jurists Bar Review Center 4 Proponent must account for non-production of all the originals

Citibank v. Teodoro, G.R. 150905, 23 Sep 03. Suit by the Petitioner against the Respondent for credit card debts, at issue was the admissibility of photocopies of sales invoices/charge slips signed by the Respondent. SC said the proponent must account for the non-production of all the originals.

Where the loss of the marriage certificate has been proven, secondary evidence in the form of testimonies may be adduced to prove the fact of marriage. (Vda. de Avenido v. Avenido, 22 January 2014).

BEST EVIDENCE RULE UNDER THE REE

The Rules on Electronic Evidence (REE) took effect on 1 August 2001. Please take note that its coverage was extended to criminal actions and proceedings effective 14 October 2002. (A.M. No. 01-7-01-SC, dated 24 September 2002). The REE shall apply whenever an electronic document is used or offered in evidence.

Electronic Document: Information or data or representation of information or data which is received, recorded, transmitted, stored, processed, retrieved, or produced (3RP TSP) by electronic, optical, or similar means by which a right is established or an obligation extinguished, or by which fact may be proved. (R2(g)&(h), REE). It includes digitally signed documents and print-outs. (Id.). The REE applies to electronic, not non-electronic, documents.

The term original includes the soft copy and the printouts or outputs (hard copy) readable by sight or other means (S1 R4 REE). Copies or duplicates, that is those reproduced by mechanical, electronic, or chemical means or by other equivalent techniques which accurately reproduces the original, shall be

regarded as the equivalent of the original,

Unless (AU)

 a genuine question is raised as to the authenticity of the original; or

 in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original.

Q Is the Best Evidence Rule under the Rules on Electronic Evidence applicable to non-electronic

documents?

A No. (MCC Industrial Corporation v. Ssangyong Corp., G.R. No. 170633, 17 October 2007).

Hence non-electronic documents (paper-based documents) are covered by the best evidence rule under S3 R130.

Best Evidence Rule (S3 R130) Best Evidence Rule (R4 REE)

Applies to non-electronic & electronic documents

Applies to electronic documents only Copies or duplicates not equivalent of

original

Copies or duplicates equivalent of the original

Photocopies of fax transmissions are not admissible unless the non-production of the original fax transmission is accounted for. Fax transmissions are not electronic documents or electronic evidence. (MCC Industrial Corporation v. Ssangyong Corp., 17 October 2007, Nachura, J.)

If not all the contents of a document are generated or recorded electronically, such as if the document contains a manual signature and handwritten notations, then a photocopy of such document will not be considered as an equivalent of the original. (National Power Corporation v. Codilla, 3 April 2007). Text messages are ephemeral electronic communications. Once saved or recorded however they become electronic documents and are subject to the best evidence rule.

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PAROL EVIDENCE RULE (S9 R130)

Once an agreement has been reduced to writing, parol or extraneous evidence (oral or written) may not be admitted to modify, explain, or add to the terms of the written agreement.

The PER applies only to written contracts. Thus a receipt which is merely proof of payment is not covered by the PER. A will is considered a written agreement for purposes of the PER.

The SC held that the parol evidence rule applies only to the parties to the contract and their successors-in-interest and not to the defendants who are not parties to the deed of sale. (Lechugas v. CA, 143 SCRA 355).

EXCEPTIONS: VISA (These must be put in issue) V – Validity of written agreement put in issue.

I – Intent of parties not expressed in written agreement.

S – Subsequent agreements, i.e, made after the execution of written agreement. A – Ambiguity (latent), imperfection, mistake. (AIM).

Inciong v. CA, 257 SCRA 578 (1996). PER applies to written contracts be they private or public documents. The contract need not be signed by two parties nor need it be bilateral.

Ortañez v. CA, 266 SCRA 561. The SC stated that the existence of an exception to the PER must be “squarely presented as an issue” or otherwise expressly averred. E.g., “failed to express the true agreement of the parties” not merely that “the sale was subject to four conditions.” Implicit

averment not sufficient. The SC also clarified when parol evidence of conditions precedent may be admitted, i.e., when the document mentions such condition or refers to an agreement containing such condition.

Even if the deed of sale stated that the buyers had paid the consideration, the seller may prove otherwise. This is an exception to the parol evidence rule, that is, the failure of the written agreement to express the true intent of the parties. (Sps. Lequin v. Sps. Vizconde, 12 October 2009).

A beneficiary under a stipulation pour autrui is considered a party to a written contract and is bound by the parol evidence rule. (Pacres v. Heirs of Ygona, 5 May 2010).

Rudlin Corp contends that although the price stated in the contract is P6.9 million, there was an understanding that the price would be reduced to P6 million. They invoke the exception to the PER under S9(a) R130 wherein the written agreement failed to express the true intent of the parties. SC held

that S9(a) R130 available only where written contract is so ambiguous or obscure that the parties’

contractual intention cannot be understood from a mere reading of the instrument. (Financial Building Corp. v. Rudlin International Corp., 4 October 2010, Villarama, J.)

SPECIAL KINDS OF EVIDENCE

EPHEMERAL ELECTRONIC COMMUNICATION. Ephemeral Electronic Communication. Refers to phone talks, text msgs, chatroom sessions, streaming audio and video (PTC SS), and other forms of electronic communication the evidence of which is not recorded or retained. (S2(k) R2, REE). If recorded by audio, photo or video means, becomes audio, photo or video evidence. If recorded as an electronic document, becomes such. A text message which is saved becomes an electronic document. The Supreme Court recently admitted text messages as evidence against a CA personnel who was accepting bribes from a litigant.

Electronic documents as functional equivalent of paper-based document. Whenever a rule of evidence refers to a writing, document, record, etc., such a term is deemed to include an electronic document.

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As to the admissibility of the text messages, the RTC admitted them in conformity with the Court’s earlier

Resolution applying the Rules on Electronic Evidence to criminal actions.1_{Text messages are to be}

proved by the testimony of a person who was a party to the same or has personal knowledge of them. Here, PO3 Cambi, posing as the accused Enojas, exchanged text messages with the other accused in order to identify and entrap them. As the recipient of those messages sent from and to the mobile phone in his possession, PO3 Cambi had personal knowledge of such messages and was competent to testify on them. (Pp v Enojas, 10 March 2014).

DEOXYRIBONUCLEIC ACID/DNA. The chain of molecules found in every nucleated cell of the body. The totality of an individual’s DNA is unique for the individual, except identical twins. DNA testing is conclusive proof of non-paternity. If the value of the Probability of Paternity is less than 99.9%, the results of the DNA testing shall be considered as corroborative evidence; if 99.9% or higher, there shall be a disputable presumption of paternity. (Rule on DNA Evidence).

First application of New Rules on DNA Evidence. Biological samples taken from AAA (rape victim), BBB (17 y.o.), and the accused. Results showed that there is a 99.999% probability that the accused is the father of BBB. (People v. Umanito, 16 April 2009).

While the accused’s DNA profile was not in the vaginal smear, the DNA result was not conclusive since the specimen was contaminated or stained, having undergone a serological analysis. (People v. Pascual, 19 January 2009).

Compliance with the conditions under S4 of the Rule on DNA Evidence does not mean that a DNA testing order will be issued as a matter of right. During the hearing on the motion for DNA testing, the petitioner must present prima facie evidence or establish a reasonable possibility of paternity. (Lucas v. Lucas, 6 June 2011).

QUALIFICATION OF WITNESSES

Any person who can perceive and make known his perception to others is qualified to be a witness. A witness does not need to be qualified beforehand as there is a presumption that the witness is qualified to be such.

There is no law requiring a witness to present authorization to testify from the party presenting him. All that the Rules require is that a witness possess all of the qualification and none of the disqualification provided therein. (AFP-RSBS v Republic, 20 March 2013).

A deaf-mute is not incompetent as a witness. All persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. Deaf-mutes are competent witnesses where they (1) can understand and appreciate the sanctity of an oath; (2) can comprehend facts they are going to testify on; and (3) can communicate their ideas through a qualified interpreter. (Pp v Aleman, 24 July 2013).

Child witness

(S21(b) R130; Sec. 6, Rule of Examination of a Child Witness [RECW]). Every child is presumed qualified to be a witness. However the court may conduct a competency examination if substantial doubts exist as to the child’s competency to testify.

Child witness: One who at the time of giving testimony is below 18. Also those 18 and above but unable to fully take care of himself or protect himself from cruelty, abuse, neglect, exploitation or discrimination (CANED) because of a physical or mental disability or condition. (S4a)

Cavili v. Fernando, 154 S 610. Party declared in default may still testify for non-defaulted party.

1_{This statement puts to rest the doubts created by the SC’s obiter in Ang v. Court of Appeals, G.R. No. 182835, 20 April}

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DISQUALIFICATIONS OF WITNESSES (MIM DIP)

- Mental incapacity or immaturity.

- Marriage (Marital Disqualification Rule)

- Death or Insanity. (Dead Man’s Statute and claim v. insane)

- Privileged Communication (MAP PP)

DEAD MAN’S RULE (S23 R130)

A party having a claim or demand against the estate of a deceased person or against his executor/administrator cannot testify as to fact occurring before the decedent’s death.

- One way street. Works only against person making a claim v. the estate of the deceased.

(Tongco v. Vianzon, 50 P 698).

- Where the estate filed a counterclaim against the survivor-claimant, the latter can testify

on antemortem facts in his defense.

- Witness other than the claimant may testify on antemortem facts.

- Applies only to testimonial evidence, not object or documentary evidence. Hence the

claimant may present, identify, and offer in evidence a promissory note signed by the decedent.

Ong Chua v. Carr, 53 P 975. Survivor may testify against the deceased’s estate where the deceased was guilty of fraud. Fraud should however be established by independent evidence other than survivor’s testimony.

“What the PARAD, DARAB and CA failed to consider and realize is that Amanda’s declaration in her Affidavit covering Pedro’s alleged admission and recognition of the alternate farming scheme is inadmissible for being a violation of the Dead Man’s Statute.” (Garcia v. Vda. De Caparas, 17 April 2013). What the SC in turn overlooked was that Amanda was not the party-claimant or assignor of a party to a case or one in whose behalf a case is prosecuted but only a witness; hence the Dead Man’s Statute does not bar her from testifying.

MARRIAGE DISQUALIFICATION RULE (S22 R130)

During the marriage, a spouse cannot testify for or against the other, except in a civil case by one against the other or a criminal case committed by one spouse against the other or the other’s ascendants or descendants. (SAD)

- Marriage must be existing at the time of the offer of the testimony. Even if marriage

occurred after the fact sought to be testified to.

- Husband may bar wife from testifying for or against her.

- Lezama v. Rodriguez, 23 S 1166. Where the husband and wife were charged with having

colluded to defraud the plaintiff, the wife cannot be called as an adverse party witness by the plaintiff over the husband’s objection.

Alvarez v. Ramirez, 14 October 2005: Where the husband had tried to set fire to his sister-in-law’s house knowing fully well that his wife was also inside, the wife could testify against him as he committed a crime against her. The SC also stated that where there is no more harmony to be preserved nor peace and tranquility to be disturbed, the reason for the MDR ceases and a spouse may testify against the other.

PRIVILEGES (MAP PP)

- Marital Communication Privilege

- Attorney-Client Privilege

- Physician-Patient Privilege.

- Priest-Penitent Privilege

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MARITAL COMMUNICATION PRIVILEGE (S24(a) R130)

The husband or wife cannot be examined without the consent of the other as to any confidential communication received from the other during the marriage except in a civil case by one against the other or in a criminal case for a crime committed by one against the other or the latter’s ascendants or descendants.

- Unlike MDR, the MCR still holds even when the marriage has been terminated as S24(a)

R130 states “during or after the marriage.” Privileged matter is limited though, that is, confidential communications received during the marriage. Thus a wife can testify as to a husband’s dying declaration as the same is not confidential. (U.S. v. Antipolo, 37 P 726.

- Where privileged communication comes into hands of third person without collusion,

privilege does not apply.

The ones who can invoke the privilege are the spouses. Others cannot invoke it.

ATTORNEY-CLIENT PRIVILEGE

An attorney cannot, without the client’s consent, be examined as to any communication made by the client to him or his advice given thereon in the course of, or with a view to, professional employment. (CAP)

- Extends to attorney’s secretary, stenographer, or clerk. Paralegal should also be deemed

covered. Cannot be examined without the consent of the client and the employer.

- The rules safeguarding privileged communication between attorney and client shall apply

to similar communications made to or received by the law student, acting for a legal clinic. S3 R138-A (Law Student Practice Rule).

- Lawyer may reveal secrets when necessary to collect fees or to defend (cd) himself, his

associates, or employees. (Rule 21.01(c), Code of Professional Responsibility).

Regala v. Sandiganbayan, 262 SCRA 124 (1996). Client’s identity privileged where it would implicate the client for the very activity which he sought the lawyer’s advice.

People v. Sandiganbayan, 275 SCRA 505 (1997). Privileged information relates only to past crimes not intention to commit future crime. Cut-off point is when the communication was made to the client, not when witness will testify.

Upjohn v. United States, 449 U.S. 383 (1981). In the case of a corporate client, the privilege extends not only to managerial but to rank-and-file employees as well.

PHYSICIAN-PATIENT PRIVILEGE

A person authorized to practice medicine, surgery, or obstetrics cannot in a civil case, without the patient’s consent, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the patient’s reputation. (PCATI PNB)

- Applies only to civil cases. Law and order considerations override the privilege in criminal

cases.

- The information must blacken the patient’s reputation. So information concerning physical

injuries which are not compromising may be inquired into.

- Autopsies conducted by medico-legal officers are not privileged as there is no patient

involved.

Lim v. CA, 214 S 273. Attending psychiatrist could testify and give expert opinion where the same is based only on strictly hypothetical questions and not on information obtained while attending to patient.

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Krohn v. CA, 233 S 146, 14 June 1994: In a marriage annulment case, a husband could testify as to the contents of a confidential psychiatric evaluation of his wife as a schizophrenic. The SC said that the privilege bars only the physician not other persons. The SC said that the testimony may not be considered a circumvention of the privilege since the husband’s testimony cannot have the same force and effect as the testimony of the physician. The respondent’s counsel waived the hearsay objection when he failed to raise this as a ground in his objection.

Chan v Chan, 24 July 2013: In an action for nullification of marriage, Josielene filed a motion for the issuance of a subpoena duces tecum to the hospital where Johnny had undergone rehabilitation for the production of his medical records. The SC treated the motion as one for production of documents under R27 (since trial had not yet started) which does not cover privileged matter. Josielene claimed that the hospital records subject of this case are not privileged since it is the "testimonial" evidence of the physician that may be regarded as privileged. The privilege, says Josielene, does not cover the hospital records, but only the examination of the physician at the trial. The SC held that to allow the disclosure during discovery procedure of the hospital records—the results of tests that the physician ordered, the diagnosis of the patient’s illness, and the advice or treatment he gave him—would be to allow access to evidence that is inadmissible without the patient’s consent. A physician memorializes all these information in the patient’s records. Disclosing them would be the equivalent of compelling the physician to testify on privileged matters he gained while dealing with the patient, without the latter’s prior consent. PRIEST-CONFESSANT PRIVILEGE

A minister or priest cannot, without the confessant’s consent, be examined as to any confession made to or advice given by him in his professional character in the course of the discipline enjoined by the church to which the minister or priest belongs.

- The communication must be made with intent to obtain penance and not merely for

religious and spiritual counseling.

- The confession and the advice must be in the course of the discipline enjoined by the

church to which the confessant and the priest belongs. (2 Regalado 468). A “cross-over” confession is not included in the privilege.

PUBLIC INTEREST PRIVILEGE

A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. (S24(e) R130). Dean Riano opines that this privilege may be invoked as to informers.

Banco Filipino v. Monetary Board, 142 S 523. Tapes and transcripts on MB closure of Banco Filipino not absolutely confidential. No showing that public interest would suffer. Danger of bank run absent since BF already closed.

Executive Privilege

Q What is executive privilege?

A It is the privilege which protects the confidentiality of conversations that take place in the

President’s performance of his official duties. The privilege may be invoked not only by the President but also by his close advisors under the “operational proximity” test. (Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643, 25 March 2008)

The Supreme Court upheld Mr. Neri’s invocation of executive privilege (more specifically the presidential communications privilege) stating that disclosure might impair our diplomatic as well as economic relations with China. The SC distinguished this from U.S. v. Nixon, where there was an on-going criminal investigation into the Watergate break-in. (Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643, 25 March 2008)

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Trade and industrial secrets recognized under our law and exempted from discovery and compulsory disclosure. (Air Philippines Corp. v. Pennswell, Inc., 13 December 2007).

FILIAL PRIVILEGE

A person may not be compelled to testify against his ascendants or descendants. (S25 R130). Note that the privilege belongs to the witness not to the person he is testifying against.

A stepmother may be compelled to testify against her stepdaughter. The filial privilege does not apply since the same covers only direct ascendants and direct descendants, and a stepdaughter is not a direct descendant of the stepmother. (Lee v. Court of Appeals, 13 July 2010).

PARTY ADMISSIONS

Admission. An act, declaration, or omission of a party as to a relevant fact may be given in evidence against him. An admission need not be against the party’s interest.

The admissions under R130 are extrajudicial admissions. This should be distinguished from judicial admissions under R129.

Distinctions:

1. AS TO CONCLUSIVE EFFECT. 2. AS FOR NEED OF PROOF.

Admissions may be made by a party directly or vicariously.

Under the rule of res inter alios acta, the admissions of another person should not be considered as the admissions of a party. Exception is in the case of vicarious admissions. Rationale: Sufficient affinity or close relation of the 3P with the party litigant.

3 FORMS OF PARTY ADMISSION (ASO)

- Act

- Statement or declaration.

- Omission.

Act

- Voluntary participation in the re-enactment of a crime conducted by the police.

- Flight from the scene of a crime.

- Changing one’s appearance or name.

- Transfer of property.

- Attempt to bribe witnesses.

Certain conduct on public-policy grounds not admissible as admission of liability.

- Post-accident repairs.

- Withdrawn or unaccepted offers of plea of guilty.

- Offers to pay or the payment of medical expenses.

- Offers of compromise in civil cases.

In criminal cases, offer of compromise implied admission of guilt. Exceptions: Quasi-offenses and those allowed by law to be compromised. Offer of accused to marry rape victim was held to be an implied admission.

Accused’s silence when his wife’s nephew asked him why he killed his wife is an admission by silence under S32 R130. In addition, accused’s act of pleading for his sister-in-law’s forgiveness may be

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considered as analogous to an attempt to compromise, which can be received as an implied admission of guilt under S27 R130. (Pp v. Español, 13 Feb 09).

The offer of compromise dated 5 December 2000 was made prior to the filing of the criminal complaint against her on 9 March 2001 for a violation of the Bouncing Checks Law. The Offer of Compromise was clearly not made in the context of a criminal proceeding and, therefore, cannot be considered as an implied admission of guilt. (San Miguel Corp. v. Kalalo, 13 June 2012).

Failure to respond to a demand letter is not an implied admission of liability. A person does not make a letter evidence by sending it to a party against whom he wishes to prove the facts stated therein. He can no more impose a duty to answer a charge than he can impose a duty to pay by sending goods. (Phil. First Ins. Co. v. Wallem Phils., 26 March 2009).

Non-flight is not evidence of innocence. (Eduarte v. People, 16 April 2009). VICARIOUS ADMISSIONS (J-CAPP)

AGENT & PARTNER

The act or declaration of a partner or agent of the party within the scope of his authority and during the existence of the partnership or agency may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration.

Estrada v. Desierto. Angara as Ex Sec was the alter-ego of Erap. JOINT OWNER, DEBTOR, INTEREST

The act or declaration of a joint owner, joint debtor, or other person jointly interested with the party within the scope of his authority and during the existence of the joint ownership, debt, or interest may be given in evidence against such party after the joint ownership, debt, or interest is shown by evidence other than such act or declaration.

Joint here should not be confused with joint cf solidary in our law of oblicon. It means community of interest. Thus a co-owner, solidary (not joint) debtor, and sureties/guarantors.

The statements of Ayala Land Inc., (the developer) would be binding upon the Ayala Alabang Village Association (the homeowner’s association) in an action by the latter to enforce the deed of restrictions over a lot in Ayala Alabang. This is because ALI under the deed of restrictions may enforce the same together with AAVA and thus ALI is a person jointly interested under S28 R130. (The Learning Child Inc. v. Ayala Alabang Village Association, 7 July 2010).

Q MBMI a Canadian corporation, entered into a joint venture with corporations A, B, and C.

Redmont Corporation filed a petition to cancel the mining licenses of A, B, and C corporations on the ground that the foreign equity exceeded 40%. The Court of Appeals in finding on appeal that MBMI owned more than 60% of the capital stock of corporations A, B, and C, took into account the statements of MBMI to that effect. Corporations A, B, and C argued that MBMI’s statements are res inter alios acta since MBMI is not a party to the case. Is this argument correct?

A No. The CA correctly applied S29 R130 on joint interest. By entering into a joint venture, MBMI

has a joint interest with Corporations A, B, and C. Hence its statements in relation to such joint venture are an exception to the res inter alios acta rule. (Narra Nickel Mining Corp. v. Redmont Consolidated Mines Corp., 21 April 2014).

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Where one derives title to the property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former.

Privy: Per the rules a person from whom one derives the title to property from. E.g. donor, vendor, decedent, testator.

CO-CONSPIRATORS

Refers only to EJ acts or admissions and not to testimony given in court by the conspirator where there is a right to cross the conspirator.

Take note of the common requirements that (1) the act or declaration must be in connection with the third person’s relation with the party, (2) the act or declaration must be made during the existence of the relation, and (3) the relation must be proved by evidence other than the act or declaration. In the case of admission by privies, however, independent evidence is not required. No. 2 is important and the subject of several bar exam questions.

Confession

An extrajudicial confession is binding only upon the confessant, even if it implicates others in an alleged conspiracy if there is no proof of the conspiracy aside from the extrajudicial confession. (Tamargo v. Awingan, 19 January 2010).

Accused’s confession to a radio broadcaster was admissible in evidence. He was not entitled to the Miranda rights as he was not under custodial investigation. (People v. Hipona, 18 February 2010). Accused’s confession to a Bantay Bayan made without the assistance of counsel is inadmissible in evidence. Inquiry made by a bantay bayan has the color of a state-related function and entitles the

suspect to his Miranda rights. (People v. Lauga, 15 March 2010). On the other hand, the accused’s

admissions before barangay tanod and barangay officials made in public with other persons present were held admissible notwithstanding that the accused was not afforded his Miranda rights. (People v. Sace, 5 April 2010).

ADOPTIVE ADMISSION: Adoptive admission is where a party, by his words or conduct, voluntarily adopts or ratifies another’s statement. Evidence of the statement would then be admissible against the party. Here the Respondent adopted its counsel’s statement that he had transmitted the draft of the answer to the Respondent, but did not sign the answer which was filed. (Republic of the Philippines v. Kenrick Dev’t Corp., G.R. 149576, 8 August 2006).

SIMILAR ACTS RULE (RIAA 2nd_branch)

Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time; but it may be received to prove PIKICHUS.

Exception: PIKICHUS Plan, identity, knowledge, intent, custom, habit, usage, system, and the like. The 3 contracts to sell were not sufficient to prove a habit or custom on the part of XEI to grant the 120-month term to all its lot buyers. There was no adequacy of sampling and uniformity of response. (Boston Bank v. Manalo, 9 Feb 06).

Sexual abuse shield rule

In criminal cases involving child abuse, evidence of the alleged child victim’s other sexual behavior and sexual predisposition (osb) is inadmissible. (S30 RECW).

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Exc: To prove that a person other than the accused was the source of the semen, physical injury or other physical evidence (hair, blood). (SPie) The proponent must file a pretrial motion stating that he intends to offer such kind of evidence, in order to prevent unfair surprise upon the other.

Rape shield rule under S6 of RA 8505 (Rape Victim Protection & Assistance Act)

Evidence of victim’s past sexual conduct, opinion thereof, or of his/her reputation (PaSCOR) inadmissible unless court finds that such evidence is relevant to the case.

HEARSAY RULE AND ITS EXCEPTIONS

HEARSAY: An out-of-court statement which is relevant for the truth of a matter asserted therein. (See Federal Rules of Evidence).

Self-serving statements are those made by a party out of court advocating his own interest. They do not include a party’s testimony in court as a witness. The proper ground for objecting to self-serving statements is not that they are self-serving but that they are hearsay. Statements made by a party in court favoring his interest may not be objected to as self-serving since the party may be cross-examined. (People v. Omictin, 26 July 2010).

DETECTING HEARSAY AND DETERMINING ITS ADMISSIBILITY

1. The first step is to look out for the declarant. A declarant is a person who makes or writes an out-of-court statement. Easier to spot is oral hearsay where a witness will testify about what another person (the declarant) said out-of-court. But what should also be on the look out for written hearsay. If the witness will present or identify a document or letter written not by the witness himself but by another person who is not presented in court, a hearsay situation arises. The third class of possible hearsay is reputation. Reputation is hearsay since it is the collective statement of a community or group of persons who themselves are not presented in court.

RATIONALE: (COD)

- The lack of opportunity to cross-examine the out-of-court declarant.

- The declarant’s statement is not under oath.

- No opportunity to observe the demeanor of the declarant.

2. The next step is to determine the purpose for which the declaration or statement is offered. If it is offered not to prove the truth of a matter asserted therein, then the declaration or statement is not hearsay and is admissible.

INDEPEDENTLY RELEVANT STATEMENT. An out-of-court statement which is relevant not for the truth of a matter asserted therein but for something else, e.g., legal effect, mere fact of utterance, belief, intent, or state of mind. (LUBIS)

A declaration by the deceased testator that there were Martians in his backyard is admissible in the probate of the testator’s will in order to prove that the testator was not of sound and disposing mind.

In an action for recovery of land in which there were improvements constructed by the defendant’s

deceased father, the father’s declaration that he owned the land is relevant not for its truth but to show that the father was a builder in good faith. Note that the statement cannot be treated as a vicarious admission by a privy since it is not against the father’s interest.

State Of Mind

Statements regarding the declarant’s then state of mind or intention are admissible as an exception to the hearsay rule. (FRE 803[3]). Statements of a declarant from which an inference may be made as to the state of mind of another, that is, the knowledge, belief, motive, good or bad faith, etc. of the latter, are

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also not covered by the hearsay rule. (Estrada v. Desierto). The state of mind rule was recognized by the Supreme Court in the case of Estrada v. Desierto, where the court held that Angara’s diary containing statements regarding Erap’s intent to resign was admissible. The SC’s approach was to treat statements on state of mind as non-hearsay rather than an exception to the hearsay rule.

Estrada v. Desierto, G.R. 146710-15, 3 April 2001: The Angara Diary contains statements of Erap which reflect his state of mind and are circumstantial evidence of his intent to resign. It also contains statements of Secretary Angara from which one can reasonably infer Erap’s intent to resign. Such statements are independently relevant and are excluded from the hearsay rule.

3. The last step is to determine if the hearsay statement or declaration falls within any of the exceptions to the hearsay rule, in which case the statement or declaration although hearsay is admissible.

The newspaper clipping of a report is hearsay since the reporter who wrote the news account was not presented in court and hence could not be cross-examined by the accused as to the accuracy or veracity of his report.

In an action to recover necessary and useful expenses, statement by decedent that he was the owner of the land admissible to prove his belief, that he was the owner and thus a possessor in good faith.

In a marriage nullity case, the lack of personal interview of the respondent does not render hearsay the psychologist’s report. (Camacho-Reyes v. Reyes, G.R. No. 185286, 18 August 2010).

Even hearsay evidence can be admitted if it satisfies the basic minimum test of relevance and

consistency with other evidence.The courts shouldexercise of flexibility in the consideration of evidence,

including hearsay evidence, in extrajudicial killings and enforced disappearance cases. (Razon v. Tagitis, 3 December 2009, Brion, J.)

NBI agent’s testimony that Zaldy had identified in a police line-up the accused as the perpetrators of the robbery and killing was held unreliable where Zaldy did not testify in court and the NBI agent did not state when the line-up took place; how this line-up had been conducted; who were the persons in the line-up with the accused (if there were indeed other persons included in the line-up); and whether the line-up was confined to persons of the same height and built as the accused. (Pp v Cachuela, 10 June 2013). It should also be noted that the NBI agent’s testimony on Zaldy’s out-of-court identification is hearsay. The affiant’s failure to identify their affidavits in the preliminary investigation before the OMB and the grave nature of the charges (grave misconduct) led the SC to treat their affidavits as inadmissible under the hearsay rule. (Miro v. Vda de Erederos, 20 Nov 2013).

Medical certificate that plaintiff suffered whiplash is hearsay where the physician who executed it not presented in court. (Dela Llana v Biong, 4 Dec 2013).

Q Prosecution for rape. Dr. Mijares examined the victim AAA and executed a medical report on his

findings. At the scheduled hearing, Dr. Mijares appeared, after several subpoenas and warnings from the court, but instead of presenting him to be examined on his medical report on the alleged rape of AAA, the prosecutor manifested that she was dispensing with his testimony provided the defense agreed to the prosecution’s offer of stipulation that AAA submitted herself to medical examination one week after the alleged rape, to which the defense acceded. Is the medical report hearsay?

A Yes, since Dr. Mijares did not testify in court regarding the same. In fact his testimony was

dispensed with. (People v. Rondina, 30 June 2014). (Note that the stipulation was not on the authenticity of the medical report but on the fact simply that AAA submitted herself to medical examination one week after the alleged rape).

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Exceptions may be grouped into two: Those where there is a requirement that the declarant is dead or unavailable to testify (DU requirement) and those where there is no such requirement.

Unavailability. Means that the declarant cannot be produced in court by a party despite diligent efforts, as when he could no longer be located. Mere refusal to testify is not equivalent to unavailability as declarant can be subpoenaed, unless declarant is invoking a privilege.

DEATH/UNAVAILABILITY OF DECLARANT REQUIRED (D BF PDC)

DYING DECLARATION

- Requirements: DICC

- Applies to both civil and criminal cases

- Declarant should die

- Death is the subject of inquiry in the case

- Declarant conscious of impending death

- Declaration relates to cause and circumstances sorrounding declarant’s death.

- Declarant must otherwise be competent. Thus if the declarant said “Juan said it was

Pedro who shot me,” the declaration is inadmissible for being hearsay.

- It does not matter whether the DD is against or in favor of the accused or adverse party.

- A statement which is not admissible as a dying declaration may be admitted as part of the

res gestae. (Multiple admissibility).

- The dying declaration may be reduced into writing by a witness, in which case the writing

is subject to the best evidence rule. If the one who wrote down the declaration is a police officer and the recording was made in a police investigation report, two levels of hearsay are involved: official entries and dying declaration/res gestae. The police investigation report may be presented even without presenting the police officer who made it. Under the Rules on Evidence, a dying declaration is an exception to the hearsay rule and admissible in evidence. Emong gave the statement under a consciousness of an impending death. Even if he did not make an explicit statement of that realization, the degree and seriousness of his wounds and his death shortly after sustaining the wounds is sufficient to show that Emong was conscious of his dying condition. (Marturillas v. People, G.R. 163217, 18 Apr 06).

The fact that the victim had nine stab wounds which caused his death within the next 48 hours indicates that the victim was conscious of his impending death. (People v. Tabarnero, 24 February 2010). Bloodied condition of a stab victim indicates that victim must have been fully aware that he was on the brink of death. (People v. Serenas, 29 June 2010).

It is of no moment that the victim died seven days from the stabbing incident and after receiving adequate care and treatment, because the apparent proximate cause of his death, the punctures in his

lungs, was a consequence of appellant’s stabbing him in the chest. At the time the victim made his

declaration, his breathing labored, he realized that he could die after having been stabbed twice in the chest. (People v. Rarugal, 16 January 2013).

BUSINESS ENTRIES (S43 R130)

- Requirements: TDK PO

- Entries made at, or near the time of the transactions to which they refer, by a person

deceased, or unable to testify, who was in a position to know the facts stated therein. The entrant must have made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. (PDOR)

- The use of the word “business” is somewhat misleading. Not limited to “business” in the

ordinary sense of the word but extends to all cases were the entries were made in a professional capacity or in the performance of a duty. Even a housewife’s budget journal is a business record. Maybe legal or illegal. Thus the diary of a jueteng bookie where he

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kept records of bets and winnings is a business record and admissible to prove the contents thereof.

- Examples: Books of account, invoices, statements of account, bills of lading, log-book of

a security guard, medical charts by nurses, interns or resident physicians in a hospital.

- The entrant should have personal knowledge of the information he is entering.

- Canque v. CA, 305 SCRA 579. Entries made by a bookkeeper in her book of collectible

accounts hearsay since she did not have personal knowledge thereof.

- Compare with the electronic business records exception under S1 R8 REE.

- With respect to the identification of the sales invoices, Haw’s testimony was hearsay

because he was not present during its preparation and the secretaries who prepared them were not presented to identify them in court. Further, these sales invoices do not fall within the exceptions to the hearsay rule even under the “entries in the course of business” because the petitioners failed to show that the entrant was deceased or was unable to testify. (Advance Paper Corp. v. Arma Traders Corp., 11 Dec 2013).

ELECTRONIC BUSINESS RECORD (S1 R8 REE)

- Requirements: MEAT KKR

- A memorandum, report, record or data compilation (MR RD) of acts, conditions, events,

diagnoses, or opinions (ACEDO)

- made by electronic, optical or other similar means

- at or near the time

- by, or from transmission or supply of information by, a person with knowledge thereof,

- kept in the regular course or conduct of a business activity, (rc-cba)

- and such was the regular practice to make the MR RD by electronic, optical or similar

means

is excepted from the rule on hearsay evidence. (S1 R8 REE). The above matters should be shown by the testimony of the custodian or other qualified witness. Such testimony may be in affidavit form as per S1 R9 REE.

Sec. 2(b) R2 of REE defines “business records” as including records of any business, profession, occupation, and calling of every kind, whether or not conducted for profit or for legitimate purposes.

Distinctions Between Business Entries Exception (BEE) & The Electronic Business Record Exception (EBRE)

Under BEE, it is required that the entrant be dead or unavailable to testify, while there is no such requirement under the EBRE.

Under BEE, the entrant should be in a position to know the facts stated therein, while in EBRE, the entrant or recorder need not personally know the facts entered, it being sufficient that the records were made “from transmission or supply of information by a person with knowledge thereof.”

FORMER TESTIMONY OR DEPOSITION (S47) Requirements: PSC

The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine the witness. (PSC)

Not only the testimony or deposition, but the documents which are part of the testimony or deposition, are admissible under this exception. (Manliclic v. Calaunan, 25 January 2007).

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Statements made during preliminary investigation are not covered by this exception since there is no right to cross-examine. (S3(e) R112). But depositions are covered under this exception because the deponents may be cross-examined. (S3 R23, S4 R24).

S47 R130 refers to a deposition taken in a former case or proceeding. If the deposition is taken in the

same case or proceeding, it is S4(c) R23 (DOSUE) which governs.

Francisco v. People, GR 146584, 12 July 2004, Callejo, J.: Jovita’s testimony in Case 1 (qualified theft) that Pacita confessed to her that she had sold the jewelry to Francisco is inadmissible against Francisco in Case 2 (fencing) to prove the truth of said admission. It bears stressing that Francisco was not a party (accused) in Case 1. Jovita did not reiterate her testimony in Case 2 nor was Pacita presented as a witness therein to testify on the admission she purportedly made to Jovita. Thus there was no opportunity to cross-examine Pacita. Pacita’s testimony in the preliminary investigation of Case 2 as well as her affidavit are inadmissible against Francisco since the latter did not have the opportunity to cross-examine Pacita.

The testimony of witnesses in a prior criminal case for reckless imprudence against the employee (bus driver) cannot be introduced in a subsequent civil case for tort filed by the offended party against the employer (bus company) to enforce the latter’s vicarious liability under Article 2180 of the Civil Code. This is because the employer is not a party in the criminal case and thus had no opportunity to cross-examine the witnesses. However where the employer failed to object to the TSNs when they were offered in evidence, the same are admissible. The driver’s acquittal is of no moment since the tort case is an independent civil action. (Manliclic v. Calaunan, 25 January 2007). A judgment of conviction of the employee is however conclusive upon the employer in a motion or action to enforce the employer’s subsidiary liability under Article 103 of the Revised Penal Code and said judgment is admissible in evidence in the proceedings brought to enforce the employer’s subsidiary liability.

ACT OR DECLARATION ABOUT PEDIGREE

- Requirements: DRAPE

- The act or declaration of a person deceased or unable to testify in respect of the pedigree

of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy (ante litem motam), and the relationship between the two persons is shown by evidence other than such act or declaration.

- The declaration must be about the pedigree of a relative, that is, a person related to the

declarant by birth or marriage. E.g., Declarant says that R (his relative) has an illegitimate son named Boris.

- The declarant’s relation by birth or marriage to the relative must be preliminarily proved by

independent evidence other than the declaration. Thus in the prior example, the proponent must first show the relationship between declarant and R before the declarant’s statement can be admitted in court.

- However if the declarant’s statement is about his relationship to R, then preliminary proof

of relationship is no longer required. Thus if the declarant’s statement was that he is the illegitimate son of R, then preliminary proof is no longer required. (See Tison v. CA, 31 July 1997).

DECLARATION AGAINST INTEREST (S38)

- Requirements: D ITC

- The declaration made by a person deceased or unable to testify, against the interest of

the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to the declarant’s own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons.

- Against interest means against the declarant’s pecuniary, moral, and penal interest. A

declaration which would render invalid a claim by the declarant against another person is considered as against the declarant’s interest. (FRE 804[b][3]).

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- People v. Toledo, 51 Phil 285: The deceased declarant had stated that he alone was the

one responsible for the death of the victim and that the accused was free from blame. While statement not admissible as dying declaration, it was admissible as a declaration against interest.

- Fuentes v. CA, 253 SCRA 430 involved a similar declaration but the accused did not exert

diligent efforts to locate the declarant who was not shown to be dead. SC held that the declarant was not unavailable to testify and thus the exception did not apply.

There is no declaration against interest where the affidavit was executed not by the seller himself but by his father. (Dantis v. Maghinang, 10 April 2013).

CHILD-DECLARANT RE CHILD ABUSE (S28 RECW)

- REQUIREMENTS: DN CCC

- Where the declarant is a child-witness, who is dead or unavailable to testify, and the

declaration relates to act or attempted act of child abuse.

- Proponent must give advance notice to adverse party and give the particulars of the

declaration.

- “Unavailable” includes cases where the child is suffering from physical infirmity, lack of

memory, mental illness, or will be exposed to severe psychological injury.

- The declaration is corroborated by other admissible evidence.

DEATH/UNAVAILABILITY OF DECLARANT NOT REQUIRED (RFC COLES)

RES GESTAE, PART OF THE (S42)

- Actually consists of two exceptions, excited utterances and verbal acts.

- Excited utterance/spontaneous exclamation

- Statements made by a person while a startling occurrence is taking place or immediately

prior or subsequent thereto with respect to the circumstances thereof (STIC) may be given in evidence as part of the res gestae.

- Excited utterance must be made while under the influence of a startling occurrence and at

or about the time of the startling occurrence, and regarding the circumstances thereof.

- Rationale: A high level of reliability on statements made under the influence of a startling

occurrence.

- The statement becomes part of the res gestae. It is the event speaking through the

person rather than a person speaking about an event. Air France v. Carrascoso, 18 SCRA 155: airplane purser’s notation in his notebook re the commotion involving the forcible transfer of Carrascoso from first class to tourist class.

- In an American case, a woman was gravely injured after a mugging and lapsed into coma.

She was brought into the hospital where she later regained consciousness. A police investigator brought pictures of suspects to her. When one picture was shown to her, the woman became extremely agitated and said, “He’s the one who mugged me.” The woman later died of her injuries. The court held that the testimony of the police investigator on what the woman said was admissible as an excited utterance. The showing of the picture to her was a startling occurrence.

Statement made as part of the res gestae admissible even if made eleven hours after the incident, provided the declarant was still under the influence of the startling event. (Zarate v. People, 3 July 2009).

Verbal acts.

- Requirement: MEL

- Statements accompanying an equivocal act material to the issue and giving it a legal