[evid] hearsay (notes).docx

8/9/2019 [Evid] Hearsay (notes).docx

http://slidepdf.com/reader/full/evid-hearsay-notesdocx 1/4

HEARSAY

The hearsay rule is the basic rule that testimony or documents which quote persons not incourt are not admissible. Because the person who supposedly knew the facts is not in court tostate his/her exact words, the trier of fact cannot judge the demeanor and credibility of the

alleged first-hand witness, and the other partys lawyer cannot cross-examine !ask questions of"him or her.

Rule 130, Section 26. Testimony generally confined to personal knowledge; hearsay excluded .# $ witness can testify only to those facts which he knows of his personal knowledge% that is,which are deri&ed from his own perception, except as otherwise pro&ided in these rules.

EXCEPTI!S T THE HEARSAY R"#E

'$( In$e%en$ently rele&ant state'ents'B( (yin) $eclarations')( (eclarations a)ainst interest

'*( Pe$i)ree'+( *a'ily tra$ition'( Co''on re%utation'( Res gestae'( Entries in the course o+ usiness'( ++icial recor$s'0( Co''ercial lists'1( #earne$ treatises'2( Prior testi'ony'3( ther e-ce%tions

• The doctrine on in$e%en$ently rele&ant state'ents holds that con&ersations

communicated to a witness by a third person may be admitted as proof that, regardlessof their truth or falsity, they were actually made. +&idence as to the making of suchstatements is not secondary but primary, for in itself it !a" constitutes a fact in issue or !b"is circumstantially rele&ant to the existence of such fact.

• Rule 130, Section 3.. Dying declaration. # The declaration of a dying person, made

under the consciousness of an impending death, may be recei&ed in any case whereinhis death is the subject of inquiry, as e&idence of the cause and surroundingcircumstances of such death. !45a"

• Rule 130, Section 3/ Declaration against interest. # The declaration made by a

person deceased, or unable to testify, against the interest of the declarant, if the fact isasserted in the declaration was at the time it was made so far contrary to declarantsown interest, that a reasonable man in his position would not ha&e made the declaration

unless he belie&ed it to be true, may be recei&ed in e&idence against himself or hissuccessors in interest and against third persons. !46a"

• Rule 130, Section 3 Act or declaration about pedigree. # The act or declaration of a

person deceased, or unable to testify, in respect to the pedigree of another personrelated to him by birth or marriage, may be recei&ed in e&idence where it occurredbefore the contro&ersy, and the relationship between the two persons is shown bye&idence other than such act or declaration. The word 7pedigree7 includes relationship,family genealogy, birth, marriage, death, the dates when and the places where these fast



occurred, and the names of the relati&es. t embraces also facts of family historyintimately connected with pedigree. !44a"

• Rule 130, Section 0 Family reputation or tradition regarding pedigree. # The

reputation or tradition existing in a family pre&ious to the contro&ersy, in respect to thepedigree of any one of its members, may be recei&ed in e&idence if the witness testifyingthereon be also a member of the family, either by consanguinity or affinity. +ntries in

family bibles or other family books or charts, engra&ings on rings, family portraits and thelike, may be recei&ed as e&idence of pedigree. !48a"

• Rule 130, Section 1 Common reputation. # )ommon reputation existing pre&ious to

the contro&ersy, respecting facts of public or general interest more than thirty years old,or respecting marriage or moral character, may be gi&en in e&idence. 3onuments andinscriptions in public places may be recei&ed as e&idence of common reputation. !49"

• Rule 130, Section 2 Part of res gestae. # :tatements made by a person while a

starting occurrence is taking place or immediately prior or subsequent thereto withrespect to the circumstances thereof, may be gi&en in e&idence as part of res gestae.:o, also, statements accompanying an equi&ocal act material to the issue, and gi&ing it alegal significance, may be recei&ed as part of the res gestae. !4;a"

•

Rule 130, Section 3 ntries in the course of business. # +ntries made at, or near thetime of transactions to which they refer, by a person deceased, or unable to testify, whowas in a position to know the facts therein stated, may be recei&ed as prima faciee&idence, if such person made the entries in his professional capacity or in theperformance of duty and in the ordinary or regular course of business or duty. !4<a"

o Rule /, REE

SECTI! 1. !napplicability of the hearsay rule. = $ memorandum, report,

record or data compilation of acts, e&ents, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person withknowledge thereof, and kept in the regular course or conduct of abusiness acti&ity, and such was the regular practice to make the

memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule or hearsay e&idence.

SECTI! 2. "#ercoming the presumption. = The presumption pro&ided

for in :ection 5 of this >ule may be o&ercome by e&idence of theuntrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof.

• Rule 130, Section ntries in official records. # +ntries in official records made in

the performance of his duty by a public officer of the ?hilippines, or by a person in theperformance of a duty specially enjoined by law, are prima facie e&idence of the factstherein stated. !4@"

o Rule 132, Section 2 Proof of official record . # The record of public documents

referred to in paragraph !a" of :ection 5A, when admissible for any purpose, maybe e&idenced by an official publication thereof or by a copy attested by the officer ha&ing the legal custody of the record, or by his deputy, and accompanied, if therecord is not kept in the ?hilippines, with a certificate that such officer has thecustody. f the office in which the record is kept is in foreign country, thecertificate may be made by a secretary of the embassy or legation, consulgeneral, consul, &ice consul, or consular agent or by any officer in the foreignser&ice of the ?hilippines stationed in the foreign country in which the record iskept, and authenticated by the seal of his office. !69a"



o Rule 132, Section 24 $hat attestation of copy must state. # hene&er a copy

of a document or record is attested for the purpose of e&idence, the attestationmust state, in substance, that the copy is a correct copy of the original, or aspecific part thereof, as the case may be. The attestation must be under theofficial seal of the attesting officer, if there be any, or if he be the clerk of a courtha&ing a seal, under the seal of such court. !6;a"

• Rule 130, Section 4 Commercial lists and the like. # +&idence of statements of matters of interest to persons engaged in an occupation contained in a list, register,periodical, or other published compilation is admissible as tending to pro&e the truth of any rele&ant matter so stated if that compilation is published for use by persons engagedin that occupation and is generally used and relied upon by them therein. !4A"

• Rule 130, Section 6 %earned treatises. # $ published treatise, periodical or pamphlet

on a subject of history, law, science, or art is admissible as tending to pro&e the truth of amatter stated therein if the court takes judicial notice, or a witness expert in the subjecttestifies, that the writer of the statement in the treatise, periodical or pamphlet isrecogniCed in his profession or calling as expert in the subject. !8Da"

• Rule 130, Section . Testimony or deposition at a former proceeding. # The testimony

or deposition of a witness deceased or unable to testify, gi&en in a former case or proceeding, judicial or administrati&e, in&ol&ing the same parties and subject matter, maybe gi&en in e&idence against the ad&erse party who had the opportunity to cross-examine him. !85a"

o Rule 23, Section &se of depositions. # $t the trial or upon the hearing of a

motion or an interlocutory proceeding, any part or all of a deposition, so far asadmissible under the rules of e&idence, may be used against any party who waspresent or represented at the taking of the deposition or who had due noticethereof, in accordance with any one of the following pro&isions%

!a" $ny deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness%

!b" The deposition of a party or of any one who at the time of taking

the deposition was an officer, director, or managing agent of a public or pri&ate corporation, partnership, or association which is a party may beused by an ad&erse party for any purpose%

!c" The deposition of a witness, whether or not a party, may be usedby any party for any purpose if the court findsE !5" that the witness isdead, or !6" that the witness resides at a distance more than onehundred !5DD" kilometers from the place of trial or hearing, or is out of the ?hilippines, unless it appears that his absence was procured by theparty offering the deposition, or !4" that the witness is unable to attendor testify because of age, sickness, infirmity, or imprisonment, or !8"that the party offering the deposition has been unable to procure theattendance of the witness by subpoena% or !9" upon application andnotice, that such exceptional circumstances exist as to make itdesirable, in the interest of justice and with due regard to theimportance of presenting the testimony of witnesses orally in opencourt, to allow the deposition to be used% and

!d" f only part of a deposition is offered in e&idence by a party, thead&erse party may require him to introduce all of it which is rele&ant tothe part introduced, and any party may introduce any other parts. !8a,>68"



• Rule on E-a'ination o+ a Chil$ 5itness, Section 2/. 'earsay exception in child

abuse cases. #$ statement made by a child describing any act or attempted act of childabuse, not otherwise admissible under the hearsay rule, may be admitted in e&idence inany criminal or non-criminal proceeding subject to the following rulesE!a" Before such hearsay statement may be admitted, its proponent shall make

known to the ad&erse party the intention to offer such statement and its

particulars to pro&ide him a fair opportunity to object. f the child is a&ailable,the court shall, upon motion of the ad&erse party, require the child to be presentat the presentation of the hearsay statement for cross-examination by thead&erse party. hen the child is una&ailable, the fact of such circumstancemust be pro&ed by the proponent.

!b" n ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which pro&ide sufficient indicia of reliability. t shall consider the following factorsE

!5" hether there is a moti&e to lie%!6" The general character of the declarant child%!4" hether more than one person heard the statement%!8" hether the statement was spontaneous%

!9" The timing of the statement and the relationship between the declarantchild and witness%

!;" )ross-examination could not show the lack of knowledge of thedeclarant child%

!<" The possibility of faulty recollection of the declarant child is remote% and!@" The circumstances surrounding the statement are such that there is no

reason to suppose the declarant child misrepresented the in&ol&ementof the accused.

!c" The child witness shall be considered una&ailable under the following situationsE!5" s deceased, suffers from physical infirmity, lack of memory, mental

illness, or will be exposed to se&ere psychological injury% or !6" s absent from the hearing and the proponent of his statement has been

unable to procure his attendance by process or other reasonablemeans.

(d) hen the child witness is una&ailable, his hearsay testimony shall be admittedonly if corroborated by other admissible e&idence.

[evid] hearsay (notes).docx

Documents