If I am the examiner, I am sure that I will give you something about the provisional dismissal of criminal action, you know the rule on provisional dismissal of criminal action. You don't remember? In the case of Ping Lacson, that's the simplest way I can put it. You know what provisional dismissal is? It's not suppose to be a real ousting, final or permanent dismissal, sometimes they just order a provisional dismissal because of the initial failure of the prosecution to continue presenting evidence, postponement. So perhaps the judge may himself xxx I'll have this provisionally dismissed. Which means, generally, without prejudice to its re-filing kasi it's provisional, correct? But what is the rule there in provisional dismissal of criminal actions? The rule is, a case maybe provisionally dismissed with the express consent of the prosecution and the accused and notice to the offended party. So if there is provisional dismissal without the express consent of the accused, double jeopardy will lie. It will lie because he did not consent to it. Remember the rule on double jeopardy. When an accused has been convicted or acquitted or the complaint against him is dismissed without his express consent by a court of competent jurisdiction to where the accused has been arraigned, he can no longer be prosecuted for the same offense or for an attempt or frustration thereof for an offense which is necessarily or that which includes that which is xxx. Remember the rule on double jeopardy because there will always be a question about double jeopardy. You better concentrate on that but the topic on provisional dismissal is one good question. But if the case has been provisionally dismissed with the express consent of the accused, double jeopardy will not lie because he agrees to it. However, it cannot be provisional forever. At a certain point, it has to be permanent. And that is a question which actually bugged the judges. I repeat, if the accused expressly consented to the dismissal, there is no double jeopardy. But it can become permanent at a certain point. When is that? If, one year or two years, depending on the penalty. The case must be re-filed within one year if the imposable penalty does not exceed six years. If it exceeds six years, then it must be re-filed within 2 years. From when? That's the point. When do you count the 1 year or 2-year period? From notice to the prosecution not from the date of the decision of the action. And the express consent, when do you get the express consent? From mere silence. In other words, the accused must consent to it. There is no objection. You must put it in writing that there is no objection. Or, if he himself moved for provisional dismissal, no question, he gives his express consent. So 1 year, 2-year, if not re-filed from notice to the prosecution, then it becomes permanent which means that it can never be re-filed. Double jeopardy will certainly set in.
Now if it is without the express consent, it will be subject to double jeopardy if it is re-filed; it may be re-filed beyond the 1 year or 2-year period. But the defense of double jeopardy or prescription may be invoked by the accused. That's the rule in provisional dismissal.
Okay, what are we going to do this morning? What are you planning to do because I assume that you are already well grounded on the fundamentals. If you were here during the pre-bar and I lectured on evidence, I had a heart on the fundamentals, always the fundamentals, the basic. Because once you know the basics, pwede mo nang paglaruan. And the two basic principles that I am trying to impress upon you is first, the multiple admissibility of evidence rule. A piece of evidence must be offered and offered for a particular purpose and it is the purpose which will determine what rule of admissibility will apply. A piece of evidence offered for one purpose may be admissible, but offered to another purpose may be inadmissible. And the other principle is that evidence is all a matter of laying the proper foundation. xxx and procedural foundation. You remember that, don't you?
Now, if you look at the rules of admissibility, each of them has requisites which must be established by way of foundation. You failed to prove one of those requisites, the rule will not apply. You remember for example the exception to the res inter alios acta rule. When is the statement of a conspirator be a statement also to his co-conspirators? There is an exception to the res inter alios acta rule but what are its requisites? The declaration must be made in relation to the conspiracy, during the xxx of the conspiracy, after conspiracy is proved by independent evidence. If any of these requisites is not obtained, then you don't apply the exception, you apply the general rule, res inter alios acta. In other words his statements will only lie as to him, the conspirator not to his co-conspirators. So that's what I mean by laying foundation.
Sometimes the foundation is procedural. For example, when you only have a xerox copy of a document, you don't have the original anymore. Then you have to lay the procedural foundation. You prove that the original does not already existed, you prove that it has been lost or destroyed and that it can no longer be produced in court. If you failed to do that, the xerox copy or the second evidence may not be admitted. It is all a question of technique.
So, knowing all these basic principles, what you have to do is to commit to memory the various rules and requisites the same as how you solve problems. Now I assume that you are already familiar with the basic and the rules on admissibility. Now what I plan to do today is to try some confidence building on your part. What I'm going to do is to review with you questions of evidence plus other questions and find out whether you can answer them and how you will answer them. Okay? Is that okay with you because if it's not, I am going home. Joke only, I think that is a good thing to do otherwise I am not going to do it.
Okay, first question: May a private document be offered and admitted in evidence as documentary evidence or object evidence? It was asked last year but again, it's a good question. It can be asked anytime. May a private document be offered and admitted both as documentary evidence and object evidence? When is a writing considered as documentary evidence for purposes of this rule? If it is offered as proof of its content. That is the magic phrase there. A documentary evidence is any writing on any material offered as proof of its content. If you are not offering the writing to prove its content, you are only offering it to prove its existence, or if it is a xerox copy to prove that it exists, of if what you want to prove is the type of paper on which the document has been made, not inquiring into the contents of the paper, then that is not a documentary evidence for purposes of the best evidence rule but is merely object evidence. And if it is merely object evidence, you don't apply the best evidence rule. And what is the significance of that? If it is object evidence, you don't use the best evidence rule, meaning, you don't insist on the presentation of the original because the best evidence rule insist on the presentation of the original writing. Do you follow?
Remember the case of People vs. Tandoy? He was charged of selling marijuana which is a violation of the law and it was a buy bust operation -a police officer pretending to be a buyer approached him and told him he wanted to buy marijuana.The consideration was P10.00 and the police officer gave him P10.00 and he gave the police officer the marijuana. At that point, there was an arrest through the buy bust operation. During the trial, the prosecution wanted to prove that Tandoy was xxx and that there was no need for him to present evidence - the money, the P10.00 bill. But what the prosecution presented was merely a xerox copy of the P10.00 bill not the original P10.00 bill. And it was the contention of Tandoy that that xerox copy of the bill should not be admitted as evidence because it was only secondary evidence, the original P10.00 was not offered as evidence. Was it admissible? What is the purpose? When you are asked what is the purpose, always ask, what is the purpose of the offer? Now the purpose of that offer was simply to prove that the P10.00 was xxx not to prove the content of the P10.00 bill. In that case, for that particular purpose, the P10.00 bill was simply object evidence. But if it was offered to prove writings on the P10.00 bill, supposing that is something special there, then it becomes a document then you will insist on presenting the original not just the xerox copy.
It may also be best to remind you about the collateral fact rule. Do you remember that? The collateral fact rule in connection with the best evidence rule. The Air France vs. Carrascoso case, a passenger in the flight of Air France going to Europe. He bought himself a first class ticket. Carrascoso bought a first class ticket via Air France in going to Europe. In Manila, he boarded the plane and he was given a first class seat. But in a stop-over in Bangkok, he was asked to transfer to the economy class. Because ang sabi nung member ng crew of Air France, there was a mistake because this is reserve for a caucasian, the white man. "But I have a first class ticket", sabi niya, sabi naman nung crew, "I'm sorry sir, but there was a mistake but we have a seat for you in the economy section." Well, of course, he was fuming mad that he has to continue with his flight in the economy class. And when he came back, he sued for damages. Now during the trial, he was asked, among other things whether during the flight, he had any occasion to talk to any member of the crew and his reply was, "yes, I had a conversation with the porter of the plane." And the question to Carrascoso was this, what was your conversation about? He narrated what they talked about and among others he said that, well, incidentally, the porter told me that it was his job to keep a log book and in that log book, he noted the incident involving me. And what he noted in his logbook was in French and when translated to English is somewhat like this: A first class passenger, with confirmed reservation was forced to transfer to the economy class against his will and the captain of the aircraft did not bother to intervene. Eventually, Air France lost and Carrascoso got an award for damages so Air France appealed. And in the appeal, one of the errors assigned by Air France was that the court made a mistake in entertaining the testimony of Carrascoso with regards the content of the logbook as noted by the porter and of course, the best evidence would have been the logbook. Sabi ng Supreme Court, mali. Why? Because the contents of the logbook were not the subject of the inquiry. Remember the best evidence rule, when the contents of the documents are the subject of the inquiry, only the original is admissible. In the case of Carrascoso, the contents of the logbook were not the subject of the inquiry. What was the question asked of him? - What was your conversation all about? Malayo eh. The contents of the logbook was to mention only incidentally or collaterally, it was not really the subject of inquiry. Therefore, the best evidence rule would not apply. The logbook and the testimony would be admissible.
Under Republic Act 8353, you may be found guilty of qualified rape if you knew on or before the commission of the crime that he is inflicted with Human Immunodeficiency Virus (HIV). You're all familiar with that noh? Not from experience but I mean, theoretically - acquired immune deficiency syndrome or any other sexually transmitted disease and the virus or disease is transmitted to the victim. Under Section 17(a) of Republic Act 8504, the court may compel the accused to submit himself to a blood test or a blood sample should be extracted from his veins, to determine whether he has HIV. Question: Are the rights of the accused to be presumed innocent of the crime charged and to his right to privacy and against self-incrimination violated by that policy of compulsory testing? I think you know the answer to that.
The right against self incrimination refers only to testimonial compulsion. It does not include the body of the accused if the it is material. Only against testimonial compulsion. Since the rights of the accused are not violated considering that the compulsory testing is authorized by law, the result of the testing cannot be considered fruit to the poisonous tree and can be offered in evidence to prove the qualifying circumstance under the information for qualified rape.
Okay, now this one involves hearsay evidence. Dencio entered into the house of Marcela, tied her into a chair and robbed her of assorted pieces of jewelry and money. Dencio then brought Candida, Marcela's maid, to a bedroom where he raped her. Marcela could hear Candida, crying and pleading, "Wag! Maawa ka saken!" Sounds like a soap opera noh? After raping Candida, Dencio fled from the house with the loot. Candida then untied Marcela and rushed her to the police station about a kilometer away and told Police Officer Roberto that Dencio had barged into the house of Marcela, tied the latter to a chair and robbed her of her jewelry and money. Candida also related to the Police Officer that despite her pleas, Dencio had raped her. The policeman had noticed that Candida was hysterical, and at the verge to collapse. Dencio was charged of robbery with rape. During the trial, Candida could no longer be located. Question: If the prosecution present Police Officer Roberto, to testify on what Candida had told him, would such testimony of the policeman be hearsay? Answer: No, the testimony of the policeman is not hearsay. It is part of the res gestae. Being that so, it is an independently relevant statement. The police officer testified in his own personal knowledge that the complainant had told him that despite her plea, Dencio had raped her. He did not testify to the truth of the statement, only to what he heard. If the Police Officer will testify that Candida was hysterical and at the verged to collapse, would that testimony be considered as opinion, hence inadmissible? The answer: No, it cannot be considered as opinion because he was testifying on what he had observed. A witness may testify on his impression of the emotion, behavior, condition or appearance of the person. That is an exception to the Opinion Rule. You remember the Opinion Rule?
Generally, opinions are not admissible, right? Why? Because one's opinion, can be as good or as bad as the other person's opinion. What the courts are interested in are facts proved by evidence; not opinions otherwise there will be no end to trial. Now, the very exceptions though. What is the first exception? Expert witness may give their opinion after they are qualified as experts. How do you qualify an expert? Prove his expertise. You let him testify on his background, his experience, his educational attainment, etc. Give his testimony in court and how the court will regard his testimony. No problem about qualifying an expert, they are expert in qualifying themselves. Just ask them one simple question, tell us your education, background and experience and he'll give you his autobiography. But you can also dispense the qualification of an expert witness. How? By asking the adverse party to stipulate with you that he is an expert. If the other lawyer knows that indeed this witness is an expert, you simply stipulate, then you have a judicial admission which would dispense with proof of his expertise. And of course the third one is if the court takes judicial notice of the expertise of the witness. There is no need if the Judge would say that on account of my judicial prowess, I know he is an expert, you go straight to the point.
By the way, when a witness is asked by a question and he gives his opinion, his valued expert opinion, he must not be stopped there. He must be asked, what is your reason for your opinion? He must give his justification or reason for his opinion. That is required.
Now, ordinary witnesses may give their opinions on very limited matters. What? Identity of persons whom they know, handwriting of a person whom whose handwriting they are acquainted, or the mental sanity of a person of whom they are acquainted or have known very well. But basis must be laid and what is the basis? If you ask, whose handwriting is this? Well that is the handwriting of Mr. X. Hindi naman nya nakita eh, so he's giving an opinion. Is that enough? No. Why do you say that that is his handwriting? How do you know? That is the basis. The acquaintance, the familiarity, the knowledge must be established otherwise, the opinion will not be admissible.
Impression of a person, behavior, appearance, emotions, etc. - exception to the Opinion Rule.
By the way, going to the hearsay, we all know what hearsay evidence is, noh? You connect hearsay with qualification of witnesses. Because witnesses can testify only as to matters within their personal knowledge. If he testified on what other people had say, and the intention and the purpose is to prove the truth, that is hearsay. But if the purpose is simply to prove what he heard, that is admissible evidence because that is personal knowledge of what he heard and not the truth of what he heard. There are many exceptions to the Hearsay Rule. I suggest you take note of them because a question may be asked what are the exceptions to the Hearsay Rule? It's best that you'll be prepared for them - Dying declaration, Res Gestae, etc., Deposition of testimony for trial or pleading. Just take note of what they are and also the elements which would qualify them as exception to the Hearsay Rule.
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