Witnesses, their Qualifications and Disqualifications (9) Flashcards
Honesty is the Best Policy
qualification of a witness
GR
all persons who can
(1) Perceive/observe;
(2) Remember/recall the perception;
(3) Relate/communicate/convey/transmit the perception to others; and
(4) Recognize the duty to tell the court, under oath or affirmation
qualification of witness
GR: …
XPN:
- disqualification by reason of marriage (spousal immunity/marital disqualification)
2 disqualification by privilege information
Factors/circumstances NOT considered disqualification of witness
- religious belief
- political affiliation
- interest in the outcome of the case
- conviction of a crime
- party declared in default
- no rule that requires party to present authorization to testify as a witness for a party presenting him
Factors/circumstances NOT considered disqualification of witness > conviction of a crime
effect: even if convicted, you can still testify
XPNs
(1) A person convicted of the crime of falsification of a document, perjury or false testimony cannot be a witness to a will (Article 821, Civil Code)
(2) An accused convicted of a crime involving moral turpitude, whenever made a co-accused in any criminal case, cannot be discharged to become a witness for the government (Rule 119, Section 17, Rules on Criminal Procedure)
note
Discharge means that the person is removed as a co-accused and will not be prosecuted for the crime in exchange for testifying against the remaining accused.
when objection to COMPETENCY must be raised
- BEFORE the witness testifies, or
- as soon as the ground for disqualification becomes apparent
EFFECT of failure to object to competency of a witness
Like any other exclusionary rules, the right to object to the competency/qualification of a witness is not self-executing mechanism. It must be invoked seasonably by the proper party, otherwise the failure to object amounts to a waiver and the witness’ testimony otherwise inadmissible becomes admissible and may be weighed according to its merits
DISQUALIFICATION of a witness
- by reason of marriage (marital disqualification rule or spousal immunity)
- by reason of privilege communication
Disqualification of a witness > Spousal Immunity >
REQUISITES
(a) There must be a valid existing marriage
(b) The spouse against whom the other spouse is called to testify must be a party to a case;
(c) The witness-spouse is called to testify against, not in favor of, the other spouse; and
(d) The spouse against whom the other spouse is called to testify has not given his/her consent.
Disqualification of a witness > Spousal Immunity >
EXCEPTIONS
(a) The case in which the husband or the wife is called to testify is a civil case filed by one spouse against the other spouse;
(b) The case is a criminal case for a crime committed by one spouse against the other spouse, or the other spouse’s direct ascendants or direct descendants.
(c) Where the relationship between the husband and wife is so strained negating the reason for the disqualification (Maximo Alvarez vs. Susan Ramirez, G.R. No.143349, 14 October 2005)
Disqualification of a witness > by reason of privileged communication
a. between H&W -who is the holder of this privilege?
b. duration of the PC between H&W
c. scope of the privilege
The privilege belongs to the spouse against whom the confidential communication is offered in evidence. It cannot be invoked by a third party
[b]
privilege survives death of either spouse [or] dissolution of marriage
[c]
it covers ALL forms of confidential communication (qualified) both in words & conduct communicative in anture
Disqualification of a witness > by reason of privileged communication > between H&W
Requisites of the H&W Privileged Communication
(1) There must be a valid marriage between the husband and the wife;
(2) There is a communication received in confidence by one spouse from the other spouse;
(3) The confidential communication is learned/received during the marriage; and
(4) The spouse against whom the confidential communication is being offered in evidence has not given his/her consent to the disclosure
WHEN to object
Marital Disqualification Rule/Spousal Immunity
Marital Communication Privilege
MDR/SI
- objection must be raised immediately AFTER the formal offer because the ground is deemed apparent.
MCP
- objection must be raise **immediately upon question pertaining to confidential comms between spouses is being asked.
Instance where privilege communication between spouses do no apply
(1) When the testimony of one spouse is sought in a civil case instituted by one spouse against the other spouse;
(2) When the testimony of one spouse is sought in a criminal case for a crime committed by one spouse against the other spouse or the other spouse’s direct ascendants or direct descendants.
(3) Where the communication is not intended to be confidential.
- Thus, at Waldo’s trial for the murder of Reno, the defense calls Reno’s widow to testify that immediately prior to his death, her husband Reno told her that it was Rando who shot Reno. The testimony of Reno’s widow is not covered since the communication- being a dying declaration is not meant to be confidential
distinction between MDR/SI & MPC?
(a) The marital disqualification rule prohibits the spouses from testifying against each other; while the marital privilege communication rule prohibits the spouse from disclosing confidential communication received from the other.
(b) The marital disqualification rule is co-terminus with the marriage; while the marital privilege communication rule survives death of either spouse or the marriage itself;
(c) The marital disqualification rule applies if the spouse against whom the testimony of the other spouse is offered is a party to a case; while marital privilege communication rule applies regardless of whether the spouses are parties in a case or not;
(d) The marital disqualification rule prohibits the spouses from testifying against each other on any matter; while marital privilege communication rule prohibits the spouses from disclosing confidential communication learned by one from the other during the marriage
Disqualification by reason of PC (privileged communication)
b. lawyer & client
- who holder the privilege?
- duration of privilege
- **it was held that either the client or his lawyer may raise the privilege. ** Republic Gear Co vs. Borg-Warner Corp, 381 F. 2d 551 CA 2 1967
- privilege survives the death of either the lawyer/client or the termination of the lawyer-client relationship
Disqualification by reason of PC (privileged communication) > lawyer & client
persons upon whom the disqualification is imposed:
(1) A licensed lawyer;
(2) Person reasonably believed by the client to be licensed to engage in the practice of law;
(3) Anyone assisting the licensed lawyer or person reasonably believed by the client to be duly licensed to practice law, including:
(a) Secretary;
(b) stenographer, or
(c) Clerk
Disqualification by reason of PC > lawyer & client
REQUISITES for privilege to apply
(1) There must be a communication made by the client to the lawyer, or an advice given by the lawyer to the client. Thus, where the lawyer testifies as an eyewitness to the crime involving his client, he may be cross-examined on matters in his direct testimony.
(2) The communication or advice must be given in confidence;
(3) The communication or advice must be given either:
(a) In the course of professional employment; or
(b) With a view to professional employment.
- This contemplates preliminary consultations, even if later on the attorney-client relationship was not perfected.
Disqualification by reason of PC > lawyer & client
Instances where this privilege does not apply
(1) When there is no lawyer-client relationship;
(2) When the communication was not intended to be confidential
(3) when the communication is made in the presence of third person, which negates confidentiality unless there is collusion
Disqualification by reason of PC > lawyer & client
EXCEPTIONS
- Furtherance of a crime or fraud or when the communication is for an unlawful purpose having for its object the commission of a crime
- claimants through the same deceased client
- Breach of duty by lawyer or client
- document attested by the lawyer
5 Joint clients
Disqualification by reason of PC > lawyer & client
Communication remains privileged even if it reaches a third party.
what condition is required in order that the privilege remain in that scenario?
The original parties took reasonable precautions to protect confidentiality.
Disqualification by reason of PC > lawyer & client
what is the effect when the communication otherwise privilege comes to the hands of a third party due to collusion or voluntary disclosure by the lawyer,
it remains to be privileged
Disqualification by reason of PC > lawyer & client
A, a lawyer, was representing B in a sensitive criminal case. During a casual conversation with C, a friend of A, A voluntarily disclosed confidential information B shared during their consultation. Later, C attempted to testify about the disclosed information in court. B objected, invoking attorney-client privilege. Resolve.
Where the communication otherwise privilege comes to the hands of a third party due to collusion or voluntary disclosure by the lawyer, the communication shall remain privileged
Disqualification by reason of PC > lawyer & client
XYZ Corporation consulted Attorney E regarding a potential merger. As part of the consultation, multiple employees provided confidential information to E to assist him in giving sound legal advice. During litigation, the opposing party sought to compel one of the employees to disclose their communication with E. XYZ Corporation asserted attorney-client privilege. Resolve.
The attorney-client privilege applies if the client is either a natural or juridical person like corporation. Where the client is a corporation, the attorney-client privilege extends to the employees of the company and thus their communication to the lawyer for the purpose of enabling the lawyer to give sound and informed legal advice are considered privilege (Upjohn Co. vs. United States, 449 U.S. 383 (1981)). The “control group test” is no longer controlling.
Disqualification by reason of PC > lawyer & client
F, a businessman, sought legal advice from Attorney G about his involvement in a highly publicized smuggling case. During an investigation, the authorities demanded that Attorney G reveal F’s identity, arguing that client identity is not confidential. F objected, arguing that revealing his identity would implicate him in the very activity for which he sought legal advice. Resolve.
General rule: The identity of a client is not confidential. Exception: Where strong probability exists that revealing the client’s identity would implicate the client to the very activity for which he sought the lawyer’s advice (Teodoro Regala, et. al. vs. Sandiganbayan, G.R. No.105938, 20 September 1996)
What is the work-product doctrine?
[1] work-product doctrine is NOT a privilege but a special protective rule which limits discovery of an atty’s work product by immunizing certain information & materials from discovery
Refers to the doctrine that the trial preparation materials of a lawyer or his representative (e.g. paralegal, investigator, etc.) are protected from discovery.
what do trial preparation inclulde in a work-product doctrine?
The trial preparation materials include:
(i) written documents, such as records, notes, memorandums, and tangible things.
(ii) lawyer’s mental impressions, conclusions, opinions, and legal theories.
Work-product doctrine has 2 tiers which are
FIRST TIER
Consists of trial preparation materials which do not constitute the mental impressions, conclusions, opinions, and legal theories of the lawyer. Here, the trial preparation materials are protected from discovery, unless the other party shows:
(1) it has substantial need for the materials to prepare its case; and
(2) it cannot, without undue hardship, obtain their substantial equivalent by other means.
SECOND TIER
consists of trial preparation materials which constitute the mental impressions, conclusions, opinions, and legal theories of the lawyer. Here, the materials are absolutely protected from disclosure and cannot be overridden by showing “substantial need” and “undue hardship”
Legal basis of work-product doctrine
While not expressly recognized in our JD, it is submitted that it may be invoked pursuant to
R23, S16 (Protective Orders)
R 23 S18 (Motion to Terminate or Limit Examination)
Fortune Corp v. CA, sc impliedly acknowledged the applicability of work-product doctrine
Disqualification By Reason of Privileged Communication > Physician/Psychotherapist & Patient
[a] scope
[b] duration
[a]
- communications made by the patient to the physician/psychotherapist
- opinions and diagnosis or prescriptions made by physician.
- patient’s medical records
Unlike the old rule, it is not required that the communication must be one which, if disclosed, would blacken the reputation of the patient. It is enough that the communication is meant to be confidential.
[b]
The privilege survives the death of the patient or the physician-patient relationship.
Disqualification By Reason of Privileged Communication > Physician/Psychotherapist & Patient
requisites to invoke
(1) The privilege is claimed in a CIVIL case;
(2) The person against whom the privilege is claimed is a:
(a) A person authorized to practice medicine, i.e., physician, surgeon, obstetrician;
(b) Psychotherapist; or
(c) Person reasonably believed by the patient to be authorized to practice medicine or psychotherapy
(3) The communication must be acquired while the person authorized to practice medicine or psychotherapy or person reasonably believed by the patient to be duly authorized to practice medicine or psychotherapy;
(4) The information must be necessary to enable the physician or psychotherapist to act in such capacity for preventive or curative treatment;
(5) The information is obtained in confidential character
Disqualification By Reason of Privileged Communication > Physician/Psychotherapist & Patient
who is a psychotherapist?
- licensed to practice medicine engaged in the diagnosis/treatment of mental or emotional condition
- person licensed as a psychologist by the gov’t while engaged in the activities
Disqualification By Reason of Privileged Communication > Physician/Psychotherapist & Patientt
instances where privilege does not apply
(1) When the case is a criminal case
(2) When the testimony refers to information regarding a patient which the person authorized to practice medicine or psychotherapy acquired either before the relation of physician and patient began or after its termination.
(3) When there is waiver as when the patient consents to the disclosure
(4) If the person authorized to practice medicine or psychotherapy acted for purposes other than to administer preventive or curative treatment to the patient
(5) When the information was not necessary for the proper treatment of the patient
(6) Where an action for damages is brought by the patient against his/her own physician
(7) When the physician is presented as an expert witness and the facts testified to are merely hypothetical
(8) When the information was intended to be public, such as results of physical and mental examinations ordered by the court and results of autopsies (Sec 4, Rule 28)
Disqualification By Reason of Privileged Communication > Physician/Psychotherapist & Patient
RA 10029 “Philippine Psychology Act of 2009”
psychologist/-metrician cannot be examined on any communication disclosed or acquired [in the course] of giving psych service to such client without their consent
protection extends to
- all pertinent record
- secretaries, clerk, or other staff of the licensed psychologist/-metrician
any evidence obtained violation of this provision shall be INADMISSIBLE for ANY purpose in ANY proceeding
Disqualification By Reason of Privileged Communication > Physician/Psychotherapist & Patient
difference of RA 10029 & RoC
The privilege under R.A. 10029 applies in any proceeding, civil, criminal or administrative, unlike physician-patient privilege under the Rules of Court.
Disqualification by Reason of PC > Priest & Penitent PC
REQUISITES
- The confession or communication must be made to the minister or priest in his professional character, and in the course of discipline enjoined by the rules of practice or the denomination to which the priest or minister belongs; and
- The confession or communication must be of a confidential character.
Disqualification by Reason of PC > Priest & Penitent PC
Instances where the privilege does not apply
- Where a priest or minister is consulted not as such, as when he is consulted as a friend;
- When the confession or communication is not made in the course of religious discipline enjoined by the church or religious denomination to which the priest or minister belongs.
- When there is waiver as when the penitent or person consents to the disclosure.
Disqualification by Reason of PC > official secrets > Public Interest Privilege (Confidential communication involving public officers)
REQUISITES
- The communication must have been made to a public officer;
- The communication was made in official confidence;
- Public interest would suffer by the disclosure of the information
Disqualification by Reason of PC > official secrets > Public Interest Privilege (Confidential communication involving public officers)
how does this privilege work ?
The rule that a public officer cannot be examined as to communications made to him in official confidence as long as the public interest would suffer by the disclosure in question.
absent public interest, the privilege does not apply
Disqualification by Reason of PC > official secrets > Public Interest Privilege (Confidential communication involving public officers)
what is public interest insofar as disqualification of a witness is concerned?
Public interest means more than a mere curiosity, it means something in which the public, the community at large, has some pecuniary (financial stake) interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as to interest the particular localities which may be affected by the matters in question.
Disqualification by Reason of PC > official secrets > Public Interest Privilege (Confidential communication involving public officers)
EXCEPTIONS
- If what is asked is useful evidence to vindicate (clear) the innocence of an accused person;
- If the benefit to be gained by a correct disposition of the litigation is greater than any injury which could inure to the relation by a disclosure of the information.
Disqualification by reason of PC > Official Secrets > Executive/Presidential Privilege Communications Privilege
what is the privilege
and who can invoke
It is the privilege that protects the confidentiality of conversations that take place in the President’s performance of official functions/duties.
This maybe invoked not only by the President but also by his close advisors under the “operational proximity” test (Neri vs. Senate, G.R. No.180643, 25 March 2008)
Disqualification by reason of PC > Official Secrets > Executive/Presidential Privilege Communications Privilege
requisites
- It must relate to a “quintessential and non-delegable presidential power”;
- It must be authored or “solicited and received” by a close advisor of the President or the President himself;
- 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;
- It must be invoked upon a specific claim of the need to protect military, diplomatic, or sensitive national security secrets.
Disqualification by reason of PC > Official Secrets >Deliberate Process Privilege/Judicial Privilege
what is this privilege?
members of the court & court officials may not be compelled to testify on matters that are part of the internal deliberations and actions of the Court in the exercise of their adjudicatory functions and duties, while testimony on matters external to their adjudicatory functions and duties may be compelled by compulsory processes.
Disqualification by PC > Trade Secret Privilege
meaning of trade secret
A “trade secret” has been defined in this case as a “plan or process, tool or mechanism or compound known only to its owner and those of his employees to whom it is necessary to confide.”
It extends 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.”
It may consist of any “formula, pattern, device or compilation of information that
(1) is used in one’s business, and
(2) gives the employer an opportunity to obtain an advantage over competitors who do not possess the information.”
Disqualification by PC > Trade Secret Privilege
factors determining if information is a trade secret
- The extent to which the information is known outside of the employer’s business;
- The extent to which the information is known by employees and other involved in the business;
- The extent of measures taken by the employer to guard the secrecy of the information;
- The value of the information to the employer and to competitors;
- The amount of effort or money expended by the company in developing the information; and
- The extent to which the information could be easily or readily obtained through an independent source.
Disqualification by PC > Trade Secret Privilege
XPNs to Trade secret
if it conceals FRAUD or WORK INJUSTICE, then trade secret does not apply
Disqualification by reason of PC > Media Practitioner’s Privilege/ Newsman’s Privilege
what is the privilege about
Protects against compulsion to disclosure of the source of any news or information appearing or being reported or disseminated through said media, which was related in confidence to the media practitioner/s.
Disqualification by reason of PC > Media Practitioner’s Privilege/ Newsman’s Privilege
GR
Publisher cannot be compelled to eveal the source of any news-report/information appearing related in confidence to such publisher
without prejudice to his liability to civil & criminal laws
Disqualification by reason of PC > Media Practitioner’s Privilege/ Newsman’s Privilege
XPN
Unless the court or a House Committee of Congress finds that such revelation is demanded by the security of the State
TESTIMONIAL PRIVILEGE > Parental or Filial Privilege
GR:
No person may be compelled to testify against his/her parents, other direct ascendants, children, and other direct descendants.
TESTIMONIAL PRIVILEGE > Parental or Filial Privilege
there are 2 privileges embodied in this rule
(1) Parental privilege rule under which a parent cannot be compelled to testify against his/her child or other direct descendants
(2) Filial privilege rule under which a child may not be compelled to testify against his/her parents or other direct ascendants
TESTIMONIAL PRIVILEGE > Parental or Filial Privilege
XPN
When the parent or child voluntary testifies/waiver
Thus, a person may voluntary testify against his parents or children, but if he/she refuses to do so, the rule protects him/her from any compulsion.
TESTIMONIAL PRIVILEGE > Parental or Filial Privilege
Compare with Art. 215 of the Family Code:
GR: No DEScendant shall be compelled in a criminal case to testify against his parents & grandparents
XPN
When such testimony is indispensable in a crime committed against the descendant or committed by one parent against the other
what is the FIRST-HAND KNOWLEDGE RULE
A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his/her own perception, except as otherwise provided in these rules (Section 22, Rule 130)
Meaning of Hearsay
Hearsay is a statement other than one made by the declarant while testifying at a trial or hearing, offered to prove the truth of the facts asserted therein.
A statement is (1) an oral or written assertion or (2) a non-verbal conduct of a person, if it is intended by him or her as an assertion. Hearsay evidence is inadmissible except as otherwise provided in these Rules. (Section 37, Rule 130)
DISTINCTION between lack of first-hand knowledge rule & hearsay evidence rule
Lack of first-hand knowledge = Witness testifies about something they did not personally perceive, but they are not necessarily repeating someone else’s words.
- “I think the defendant was at the crime scene because he always hangs out there.” (No first-hand knowledge; just speculation.)
Hearsay evidence = Witness testifies about what someone else said outside of court, and the statement is being offered to prove the truth of the matter asserted.
- “John told me that he saw the defendant at the crime scene.” (Hearsay, because the actual person who saw the defendant—John—is not testifying.)
Example of an Out-of-Court Statement That is NOT Hearsay
Scenario:
A police officer is testifying in a robbery case.
Prosecutor: “Why did you go to the crime scene?”
Officer: “A witness called 911 and said, ‘There’s a man with a gun robbing the store!’”
Analysis:
This is an out-of-court statement (because the 911 caller made it outside of court).
However, it is not hearsay because it is not being introduced to prove that there was actually a man with a gun robbing the store.
Instead, it is being used to explain why the officer responded to the scene (i.e., it shows the officer’s state of mind or course of action).
