TESTIMONIAL EVID (PRIVS, PRIV COMMS & DISQUALIFICATIONS)

Question 1

TESTIMONIAL EVIDENCE

Answer 1

Evidence elicited from the mouth of a witness as distinguished
from real and documentary evidence.

Question 2

Witnesses; their qualifications.

Answer 2

1. ability to observe/perceive
2. ability to recall/remember
3. ability to relate/communicate

Question 3

Witnesses; their DISQUALIFICATIONS

Answer 3

1. mental incapacity or immaturity
2. marital disqualification
3. death or insanity (dead man’s statute)
4. privileged communication

Question 4

is conviction of a crime a ground for diqualification? (GR / XPN)

Answer 4

General Rule:

Conviction of a crime shall not be a ground for disqualification.

Exception/ Qualifications:
Unless otherwise provided by law.

1.Those convicted of falsification of documents, perjury, false testimony.
2. Those accused convicted of a crime involving moral turpitude.

Question 5

MARITAL DISQUALIFICATION (GR)

Answer 5

GR: During their marriage, the husbandor the wife cannot testify against the other without the consent of the affected spouse.

Question 6

MARITAL DISQUALIFICATION (XPN)

Answer 6

1.) In a civil case by one against the other;

2.) In a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants;

3.) Where the testimony was made outside the marriage;

4.) Where the spouse-litigant gives consent to the testimony.

Question 7

MARITAL DISQUALIFICATION (REQ)

Answer 7

REQUISITES:
1.) There must be a valid marriage between the husband and wife;

2.) There is a communication received in confidence by one from the other; and

3.) The confidential communication was received during the marriage.

Question 8

MARITAL DISQ (WAIVER)

Answer 8

1.) by failure of the claimant to object timely to its presentation or
2.) by any conduct that may be construed as implied consent.

Question 9

MARITAL DISQ (OBJECTION)

Answer 9

Only the spouse-party may object to the testimony and NOT the spouse who is offered as a witness.

Question 10

DEAD MAN’S STATUTE (REQ)

Answer 10

Requisites:

1. In an action against an executor/administrator/representative of a deceased person OR a person of
   unsound mind
   2.Upon a claim or demand against the estate of such deceased/unsound

3.Where a party testified on a matter of fact occurring before:

a. the death of the deceased or

b. The deceased or the person became of unsound mind,

4.Any statement of the deceased or person of unsound mind may be received in evidence:

a.If the statement was made upon the personal knowledge of the deceased or person of unsound mind

b.At a time when the matter had been recently perceived by him and while his recollection was clear

Question 11

Disqualification by reason of
privileged communication

Answer 11

A rule of law that, to protect a particular relationship or interest, either permits a witness to refrain from giving testimony he otherwise could be compelled to give, or permits a party to prevent the witness from revealing certain information.

The following are disqualified to be a witness by reason of privileged communication:
1. Husband and Wife
2. Attorney and Client
3. Physician and Patient
4. Minister/Priest and Penitent
5. Public Officers and Third Persons

Question 12

Marital Privilege Rule (gr/xpn)

Answer 12

GENERAL RULE: During or after the marriage, the husband or the wife cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage.

EXCEPTIONS:
1. In a civil case by one against the other;

2. In a criminal case for a crime committed;
   (a) against each other, or
   (b) against the direct descendants or ascendants of the spouse
3. Waiver of the privilege

Question 13

Marital Privilege Rule (req)

Answer 13

R E Q U I S I T E S :
(1) There must be a valid marriage between husband and wife;

(2) There is communication received in confidence by one from the other;

(3) The confidential communication was received during the marriage;

(4) The spouse against whom such evidence is being offered has not given his or her consent to such testimony;

(5) The case is not one of the exceptions provided in the rule.

Question 14

Attorney-Client Privilege (req)

Answer 14

Requisites:
(1) There exists an attorney-client relationship, or a prospective attorney-client relationship, and it is by reason of this relationship that the client made the communication.

(2) The client made the communication in confidence.

(3) The legal advice must be sought from the attorney in his professional capacity.

Question 15

Attorney-Client Privilege (xpn)

Answer 15

Exceptions:
(1) Furtherance of crime or fraud.
(2) Claimants through same deceased client.
(3) Breach of duty by lawyer or client.
(4) Document attested by the lawyer.
(5) Joint clients.

Question 16

Attorney-Client Privilege (GR)

Answer 16

An attorney cannot, without the consent of his client, 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, nor can an attorney’s secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity;

Question 17

Attorney-Client Privilege (DURATION)

Answer 17

the privilege will continue even after the attorney-client relationship, or even after the death of the client.

Question 18

Physician / Psychotherapist Patient Privilege

Answer 18

A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, 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 capacity, and which would blacken the reputation of the patient;

Question 19

what is a psychotherapist ?

Answer 19

(a) A person licensed to practice medicine engaged in the diagnosis or treatment of a mental or emotional condition; or

(b) A person licensed as a psychologist by the government while similarly engaged

Question 20

Physician / Psychotherapist Patient Privilege (REQ)

Answer 20

(1) That the privilege is being claimed in CIVIL CASE;

(2) That the person against whom the privilege is being claimed is a person DULY AUTHORIZED TO PRACTICE medicine, surgery, or obstetrics;

(3) That such person acquired the information while he was attending to the patient in his professional capacity;

(4) That the information is necessary to enable the person to act in that capacity;

(5) That the information is confidential and if disclosed would tend to blacken the reputation of the patient

Question 21

Physician / Psychotherapist Patient Privilege (DURATION)

Answer 21

The privilege will apply not only during and after the existence of physician and patient relationship, but even after the death of the patient.

The communication shall remain privileged, even in the hands of a third person who may have obtained the information, provided that the original parties to the communication took reasonable precaution to protect its confidentiality.

Question 22

Physician / Psychotherapist Patient Privilege (WHEN NOT APPLICABLE)

Answer 22

(1) Communication was not given in confidence

(2) Communication was irrelevant to the professional employment

(3) Communication was made for an unlawful purpose

(4) Communication was intended for the commission/concealment of a crime

(5) Communication was intended to be made public/divulged in court

(6) When there was a waiver

(7) When the doctor was presented as an expert witness and only hypothetical problems were presented to him

Question 23

Priest–Penitent Privilege

Answer 23

A minister, priest or person reasonably believed to be so cannot, without the consent of the affected person, be examined as to any communication or confession made to or any advice given by him or her, in his or her professional character, in the course of discipline enjoined by the church to which the minister or priest belongs;

Question 24

Priest–Penitent Privilege (REQ)

Answer 24

a) The confession must have been to the minister or Priest or person reasonably believed to be so, in his professional character;

(b) The communication or confession must be made in the course of discipline enjoined by the church to which her belongs; and

(c) The communication or confession made must be confidential and must be in penitential character.

Question 25

Priest–Penitent Privilege (WHEN NOT APPLICABLE)

Answer 25

Covers only confession of a penitential character that is a confession of sins with the end view of obtaining a pardon and spiritual advice and assistance When not applicable (a) When the penitent consents (b) When third person overhearing the confession (c) The communication is not privileged in character or made to a priest in a professional character

Question 26

Priest–Penitent Privilege (DURATION)

Answer 26

The communication shall remain privileged, even in the hands of a third person who may have obtained the information, provided that the original parties to the communication took reasonable precaution to protect its confidentiality.

Question 27

Public Officers and Third Person Privilege

Answer 27

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.

Question 28

Public Officers and Third Person Privilege (REQ)

Answer 28

Requisites: (1) The communication must have been made to a public officer in confidence; (2) Public interest would suffer by the disclosure of the communication.

Question 29

PRESIDENTIAL COMMUNICATION PRIVILEGE

Answer 29

secrets involving military, diplomatic, and national security matters, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused were exempted from the right to information. The right to information does not also extend to presidential conversations, correspondences, and discussions in closed-door cabinet meetings

Question 30

PRESIDENTIAL COMMUNICATION PRIVILEGE (REQ)

Answer 30

(1) Must relate to a “quintessential and non- delegable presidential power;” (2) Must be authored or “solicited and received” by a close advisor of the President or the President himself; and (3) Privilege may be overcome by a showing of adequate need such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere.

Question 31

RULE ON THIRD PARTIES

Answer 31

This is a significant new provision in the 2020 Rules which overrides previous rulings that the communication shall lose its privileged character if it falls into the hands of a third person. The communication shall also remain privileged if there was collusion between one of the parties to the privileged communication and the third party. For documents of communication coming into the possession of a third person, a distinction should obtain, analogous to that already indicated for a client's communications;

Question 32

Testimonial Privilege

Answer 32

t is a privilege which consist of exempting a witness, having attended the court where his testimony is desired, from disclosing a certain part of his knowledge. It is applicable in all types of cases. 1. Parental 2. Filial 3. Trade Secrets

Question 33

Parental and Filial Priv (gr/xpn)

Answer 33

No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. Exceptions: Defendant may be compelled to give testimony: (1) In criminal case; and such testimony is indispensable in a crime committed against said defendant; or (2) In crime committed by one parent against the other (Art. 215, Family Code)

Question 34

parental and Filial Priv (can someone voluntarily testify against parent/offsping)

Answer 34

A person, however, may testify against his parents or children voluntarily but if he refuses to do so, the rule protects him from any compulsion. Said rule applies to both criminal and civil cases since the rule makes no distinction. (Sec. 25, Rule 130, ROC, as amended)

Question 35

Parent Privilege Rule

Answer 35

Parent cannot be compelled to testify against his child or direct descenfants.

Question 36

Filial Privilege Rule

Answer 36

a child may not be compelled to testify against his parents, or other direct descendants. The filial privilege rule applies only to “direct” ascendants and descendants, a family tie connected by a common ancestry – thus, a stepmother can be compelled to testify against stepdaughter considering that they have no common ancestry.

Question 37

Parental/Filial Priv (WHO CAN INVOKE?)

Answer 37

Here, the witness is the holder of the privilege and has the power to invoke or waive the privilege. The relative against whom he is testifying cannot invoke nor waive the privilege.

Question 38

TRADE SECRETS PRIV

Answer 38

A person cannot be compelled to testify about any trade secret, unless the non-disclosure will conceal fraud or otherwise work injustice. When disclosure is directed, the court shall take such protective measure as the interest of the owner of the trade secret and of the parties and the furtherance of justice may require

Question 39

WHAT IS A TRADE SECRET

Answer 39

is a plan or process, tool, mechanism or compound known only to its owner and those of his employees to whom it is necessary to confide.” The definition was held to extend to “a secret formula or process not patented, but known only to certain individuals using it in compounding some article of trade having a commercial value.”

Question 40

Executive Privilege

Answer 40

It is the privilege which protects the confidentiality of conversations that take place in the President's performance of his official duties….NOT ABSOLUTE

Question 41

Executive Privilege (WHO CAN INVOKE)

Answer 41

The privilege may be invoked not only by the President but also by his close advisors (operational proximity test).