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V. Hearsay - Opinion Rule, 5. Family Reputation or Tradition Regarding…

- - - - 1. Dying Declaration (Rule 130, Section 38) - Antemortem statement or, statement in articulo mortis.
        
        2. Statement of Decedent or Person of Unsound Mind (Rule 130, Section 39) .
        
        3. Declaration against Interest (130.40) -
        
        Requisites for Admissibility -
        
        UNABLE - Declarant is dead or unable to testify;
        
        AGAINST INTEREST - Declaration relates to a fact against the interest of the declarant;
        
        AWARE OF INTEREST - At the time he made said declaration, declarant was aware that the same was contrary to the declarant's own interest; and
        
        NO MOTIVE - Declarant had no motive to falsify and believed such declaration to be true
        
        When Inadmissible -
        
        LIABILITY;EXCULPATION - If the statement tends to expose the declarant to criminal liability and is offered to exculpate the accused
        
        XCPN - corroborating circumstances clearly indicate the trustworthiness of the statement
        
        need corroborating for criminal, if not no need corroborating
        
        Inability to Testify (Fuentes v. CA) - the person is dead, mentally incapacitated or physically incompetent. Mere absence from the jurisdiction does not make him ipso facto unavailable.
        
        Admissible Against Third Persons (130.40) - Declaration against interest made by the deceased, or by one unable to testify, is admissible even against the declarant’s successors-in-interest or even against third persons.
        
        Actual or Real Interest - It is essential that at the time of the statement, the declarant’s interest affected thereby should be actual, real or apparent, not merely contingent, future or, conditional; otherwise the declaration would not in reality be against interest.
        
        (a) the declarant must not be available to testify; (b) the declaration must concern a fact cognizable by the declarant; and (c) the circumstances must render it improbable that a motive to falsify existed.
        
        Dead Man's Statute (Deleted, formerly 130.23) - This was formerly a rule for disqualification of witnesses.
        
        If one party to the alleged transaction is precluded from testifying by death, insanity, or other mental disabilities,
        
        the surviving party is not entitled to the undue advantage of giving his own uncontradicted and unexplained account of the transaction.
        
        Admissibility -
        
        GR - Any statement of the deceased or the person of unsound mind may be received in evidence under the following circumstances:
        
        XCPN - The statement is inadmissible if
        made under circumstances indicating its lack of trustworthiness
        
        Requisites for Admissibility -
        
        In an action against:
        1a. an executor, administrator or other representative of a deceased person; OR
        1b. a person of unsound mind
        
        Upon a claim or demand against the estate of such deceased person or against such person of unsound mind
        
        Where party or assignor of a party or a person in whose behalf a case is prosecuted testifies on a matter of fact occurring before the death of the deceased or before the person became of unsound mind
        
        Statement was made by the deceased or person of unsound mind at a time where the matter had been recently perceived by him/her while his/her recollection was clear
        
        Claim or demand against estate/adnistratior/representative of deceaased or person of unsound mound
        
        Statement was where deased/person had recently pereceived
        
        Party/Assignor/person on whose bahlf case was prosecuted tesfidied on a matter of fact
        
        Presumed Trustworthy, thus burden of proof on persond isputing the statement.
        
        Requisties for Admissibility
        
        Declaration of a dying person
        
        Declaration was made under the consciousness of an impending death
        
        Declaration may be received in any case wherein his/her death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death
        
        Rationale for Admissibility (People v. Bacunawa) - When a person is at the point of death, every motive to falsehood is silenced. The law considers the point of death as a situation so solemn and awful as creating an obligation equal to that which is imposed by an oath administered by the court.
        
        Subsequent Death - It is sufficient that he believes himself in imminent danger of death at the time of such declaration, not necessary died immediately after.
        
        Possible Objections -
        
        May be premised on any of the requisites for its admissibility embodied in Sec. 38, Rule 130. [Riano 302, 2016 Ed.]
        
        Dying declarations are admissible in favor of the defendant as well as against him [US v. Antipolo, 37 Phil. 726 (1918)]
      - General principles of Necessity and Trustworthiness
        
        MNEMONIC - DRP- TC
      - Doctrine of Independently Relevant Statements - In effect, this is an exception to the hearsay rule or a scenario when it does not apply.
        
        Rule: Where only the fact that such statements were made is relevant, and the truth or falsity thereof is immaterial the hearsay rule does not apply; hence, the statements are admissible as evidence. [Bedol v. Comelec]
        
        Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact
    - - Section 28. Hearsay exception in child abuse cases. - A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules:
        
        (a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent.
  - - - Hearsay v. Lack of Personal Knowledge - Chismis v. Hula
        
        Hearsay - if relayed by another
        
        May be admissible if no objection
        
        Lack of Personal Knowledge - knows without any inference from anyone else.
        
        Absolutely inadmissible
- - - - XCPN -
        
        Expert Witnesses
        
        Ordinary Witnesses
        
        Expert Witnesses (130.52) - The opinion of a witness on a matter requiring special knowledge, skill, experience, training, or education, which he/she shown to possess
        
        Definition (People v. Dekingco) - one who has made the subject upon which he gives his opinion a matter of particular study, practice or observation and he must have particular and special knowledge on the subject
        
        How Admitted - Must be shown to be competent. This is by showing that they are really an expert. The competence of an expert witness is a matter for the trial court to decide upon in the exercise of its discretion.
        
        Basis for Exclusion - If men of common understanding are capable of comprehending the primary facts and drawing correct conclusions from them, expert testimony may be excluded by the Court [Herrera]
        
        Rationale for Admission - Whether the opinion called for will aid the fact finder in resolving an issue, or whether the judge is as well qualified as the witness to draw its own or his own deductions from the hypothetical facts.
        
        Test for Qualification - Relative test, depending upon the subject matter of the investigation, and the fitness of the expert witness. In our jurisdiction, the criterion remains to be the expert witness' special knowledge, experience and practical training that qualify him/her to explain highly technical medical matters to the Court.
        
        Metric of Knowledge (Casumpang v. Cortejo) - It is the specialist's knowledge of the requisite subject matter, rather than his/her specialty that determines his/her qualification to testify.
        
        Qualification of Experts -
        
        Education
        
        Training
        
        Experience
        
        Examination of an Expert Witness (Camacho-Reyes v. Reyes) - He may base his opinion on the basis of hypothetical questions where the facts are presented to him hypothetically, and on the assumption that they are true, formulates his opinion on this hypothesis. There is no need for personal examination and interview of the opposing witnesses.
        
        How Presented -
        
        Introduce and qualify the witness;
        
        Let him give his factual testimony, if he has knowledge of the facts;
        
        Begin the hypothetical question by asking him to assume certain facts as true;
        
        Conclude the question, by first asking the expert if he has an opinion on a certain point
        
        assuming that these facts are true and secondly, asking him, after he has answered affirmatively, to give his opinion on the point;
        
        After he has stated his opinion, ask him to give his reasons.
        
        Probative Value - Courts are not bound by the findings or opinions of the expert. Their evidence is not conclusive, but merely advisory.
        
        Considerations for the Court (Ilao-Quianay v. Mapile) - In any case where the opinion of an expert witness is received in evidence, the court has a wide latitude of discretion in determining the weight to be given to such opinion, and for that purpose may consider the following:
        
        Whether the opinion is based upon sufficient facts or data;
        
        Whether it is the product of reliable principles and methods;
        
        Whether the witness has applied the principles and methods reliably to the facts of the case; and
        
        Such other factors as the court may deem helpful to make such determination.
        
        Ordinary Witnesses (130.53) - Must comply with the following requisites:
        
        If proper basis is given regarding:
        
        2a. Identity of a person about whom he/she has adequate knowledge
        
        Rationale (US v. Manabat) - Statements of a witness as to identity are not to be rejected because he is unable to describe features of the person in question. Identification by voice is recognized by the courts, especially in a case where it was impossible to see the accused but the witness has known the accused since their childhood
        
        2b. Handwriting with which he/she has sufficient familiarity - Witness may only draw on the knowledge which he already has, and which enables him to recognize the handwriting
        
        Absence of Familiarity - Inadmissible, as Only experts are allowed to give conclusions from the comparison of samples of handwriting of a person whose handwriting he is not familiar with
        
        2c. Mental sanity of a person with whom he/she is sufficiently acquainted - These are allowed where the witness can adequately describe the actions, looks or symptoms of a person's sanity or insanity which is impossible for the court to determine
        
        2d. Impressions of the emotion, behavior, condition, or appearance of a person
        
        Form of Expressions - Inferences that are drawn from minute facts and details which the witness cannot fully and properly describe in court. Such expressions are expressed to the countenance, the eye and the general manner and bearing of the individual; appearance which are plainly enough recognized by a person of good judgment, but which he cannot otherwise communicate by an expression of results in the shape of an opinion
      - Vallejo Standards: In assessing the probative value of DNA evidence, therefore, courts should consider, among other things:
        
        i. how the samples were collected,
        
        ii. how they were handled,
        
        iii. the possibility of contamination of the samples,
        
        iv. the procedure followed in analyzing the samples,
        
        v. whether the proper standards and procedures were followed in conducting the tests, and
        
        vi. the qualification of the analyst who conducted the tests
        
        Procedure for Admission of DNA Evidence -
- - - - 9. Official Records (Rule 130, Section 46)
        
        13. Residual Exception (Rule 130, Section 50)
        
        Requisites for Admissibility -
        
        NOT COVERED - Statement not specifically covered by any of the foregoing exceptions;
        
        TRUSTWORTHY - Has the equivalent circumstantial guarantees of trustworthiness
        
        DETERMINATION - Court determines that
        3a. MATERIAL FACT - the statement is offered as evidence of a material fact;
        3b. MORE PROBATIVE - it is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
        3c. JUSTICE - the general purposes of these rules and the interests of justice will be best served by its admission
        
        NOTICE - Proponent makes known to the adverse party, sufficiently in advance of the hearing or by the pre-trial stage in case of a trial of the main case, to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and its particulars, including the name and address of the declarant
        
        Material Fact - one of the elements of the causes of action.
        
        More Probative
        
        Interests of Justice -
        
        Here, lay predicate in the judicial affidavit
        
        Requisites -
        
        PUBLIC OFFICER - Entries in official records were made by a public officer in the performance of his/her duties or by a person in the performance of a duty specially enjoined by law [Sec. 46, Rule 130];
        
        PERSONAL KNOWLEDGE - Entrant must have personal knowledge of the facts stated by him or such facts acquired by him from reports made by persons under a legal duty to submit the same [Barcelon, Roxas Securities v. CIR, G.R. 157064 (2006)]; and
        
        REGULAR MANNER - Entries were duly entered in a regular manner in the official records [People v. Mayingque, G.R. No. 179709 (2010)]
        
        Rationale (Herce, Jr. v Municipality of Cabuyao, Laguna,) - Trustworthy, grounded on 4 separate grounds, namely:
        
        the sense of official duty in the preparation of the statement made;
        
        the penalty which is usually affixed to a breach of that duty;
        
        the routine and disinterested origin of most such statements; and
        
        the publicity of record which makes more likely the prior exposure of such errors as might have occurred
        
        Official Information - Security Bank - If public officer, personal knowledge. If third party, acquired information through official information.
        
        Official information is person who had personal knowledge and had duty to make statements.
        
        Probative Value (130.46) - Entries in official records are merely prima facie evidence of the facts therein stated
        
        Official Records - Baptismal certificates or parochial records of baptism are not official records
      - Requisites for Admissibility -
        
        MEMORANDUM - report, record or data compilation, Of acts, events, conditions, opinions, or diagnoses
        
        WRITTEN- made by writing, typing, electronic, optical, or other similar means
        
        TIME - At or near the time of or from transmission or supply of information
        
        KNOWLEDGE - Entrant had knowledge thereof
        
        REGULAR RECORDS - Records are kept in the regular course or conduct of a business activity
        
        REGULAR MAKING - The making of the memorandum, report, record, or data compilation by electronic, optical or similar means is regular practice
        
        WITNESS TESTIMONY - All of the above are shown by the testimony of a custodian or other qualified witness
        
        Rationale (Security Bank v. Gan) - The duty of the employees to communicate facts is of itself a badge of trustworthiness of the entries. Similarly, these entries are accorded unusual reliability because their regularity and continuity are calculated to discipline record keepers in the habit of precision (LBP v. Monet's Export)
        
        Presence of the Person who made the Entry (Cang Yui v. Gardner) - If the entrant is available as a witness, the entries will not be admitted, but they may nevertheless be availed of by said entrant as a memorandum to refresh his memory while testifying on the transactions reflected therein
        
        Payroll Entries - Entries in the payroll, being entries in the course of business, enjoy the presumption of regularity
        
        KNOWLEDGE - Knowledge here need not be personal knowledge.
      - Modification of old rule, in new rule no mo requirement of unable to testify or deceased characte rof hte person who made the entry.
        
        Lay the predicate means that there must be an evidentiary reason to allow the thing you are trying to get admitted, admitted into evidence.
    - - Distinguished from Dying Declaration (People v. Reyes) -
        
        Who makes - A dying declaration can be made only by the victim, while a statement as part of the res gestae may be that of the killer himself after or during the killing.
        
        Context of Declaration - A statement not admissible as dying declaration because it was not made under consciousness of impending death, may still be admissible as part of res gestae if made immediately after the incident
      - Elements of Res Gestae (People v. Wan)
        
        The principal act, the res gestae, is a startling occurrence;
        
        The statement was made before the declarant had time to contrive or devise; and
        
        The statement concerns the occurrence in question and its immediately attending circumstances
  - - - Other Admissible Evidence - Monuments, or inscriptions in public places may also be received as evidence of common reputation.
      - Scope of Admissibility - Reputation has been held admissible as evidence of age, birth, race, or race-ancestry, and on the question of whether a child was born alive [In re: Florencio Mallare, A.M. No. 533 (1974)]
      - Source - Unlike that of matters of pedigree, general reputation of marriage may proceed from persons who are not members of the family — the reason for the distinction is the public interest. [In re: Florencio Mallare, AM No. 533 (1974)]