INNOVATIVE COLLEGE OF SCIENCE & TECHNOLOGY

Malitbog, Bongabong, Oriental Mindoro

CRIMINOLOGY DEPARTMENT

EVIDENCE
ATTY. PRINCESS JANINE R. SY

I. OBJECTIVES
1. To discuss and explain Testimonial Evidence.
2. To determine the Qualifications of a Witness.
3. To discuss and explain Privilege Communications.

II. TIME FRAME

Week 8

III. DISCUSSION

TESTIMONIAL EVIDENCE

What is testimonial evidence?

Testimonial or oral evidence is evidence elicited from the mouth of a witness as
distinguished from real and documentary evidence (Black's Law Dictionary, 5th Ed... p. 1323). It
consists of the statement of a witness offered to the court. It may be oral/live or by judicial
affidavit (RIGUERA, p. 481).

Who is a witness?
A witness refers to a person who testifies in a case or gives evidence before a judicial
tribunal (FRANCISCO, Basic Evidence, 2017, p.387).

QUALIFICATION OF A WITNESS

Who can be a witness?

All persons who can perceive(observe, maramdaman), and perceiving, can make known
their perception to others, may be witnesses.

May a witness be disqualified on the ground of religious or political belief, or interest in the
outcome of the case, or convicted of a crime?

No. Religious or political belief, interest in the outcome of the case, or conviction of a
crime, unless otherwise provided by law, shall not be a ground for disqualification (RROE, Rule
130, Sec.21).

Note: The phrase "conviction of a crime unless otherwise provided by law" takes into account
Article 821 of the Civil Code which states that persons convicted of falsification of a document,
perjury or false testimony are disqualified from being witnesses to a will (People v. Umali, G.R.
No. 84450, February 4, 1991).

Upon what matters may witnesses be allowed to testify?

A witness can testify only to those facts which he or she knows of his or her personal
knowledge; that is, which are derived from his or her own perception (RROE, Rule 130, Sec.
22).

What are the qualifications of a witness?

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 A witness must show that he has the ability:

1. To observe -the testimonial duty of perception;

2. To remember- the testimonial quality of memory:
3. To relate- the testimonial quality of narration; and
4. To recognize a duty to tell the truth- the testimonial quality of sincerity (5
HERRERA, supra at 278).

What are the disqualifications for witnesses under the Revised Rules on Evidence?

The following are the disqualifications under the Revised Rules on Evidence:

1. Disqualification by reason of marriage (RROE, Rule 130, Sec. 23);

2. Disqualification by reason of privileged communication (RROE, Rule 130, Sec. 24)
a. Between husband and wife;
b. Between and attorney or a person reasonably believed by the client to be
licensed to engage in the practice of law;
c. Between a physician, psychotherapist or person reasonably believed by the
patient to be authorized to practice medicine or psychotherapy in a civil case;
d. Between a minister, priest or person reasonably believed to be so; or
e. Made to a public officer in confidence.

Disqualification by reason of Marriage(Marital Disqualification Rule)

During their marriage, the husband or the wife cannot testify against the other without
the consent of the affected spouse, except in a civil case by one against the other, or in a
criminal case for a crime committed by one against the other or the latter’s direct descendants or
ascendants.

What are the exceptions to the marital disqualification rule?

A spouse may testify against the other in:

1. A civil case by one against the other; or
2. A criminal case by one against the other or the latter's direct descendants or ascendants
(RROE, Rule 130, Sec. 23).

Rule on Confidential Communications between Attorney and Client(Attorney-client

Privilege) (lawyer-client relationship is established once a lawyer is sought, in his professional
capacity, for legal advice and/or assistance.)

For the privilege to apply, the following requisites must be present:

1. There is an attorney and client Relationship:
2. There must be communication by the client to the attorney, or advice given thereon by
the latter to the former in the course of or with a view to professional Employment;
3. The communication or advice must have been made Confidentially; and
4. The client has not given Consent to the attorney's testimony thereon; or if the attorney's
secretary, stenographer clerk, or other persons assisting the attorney, is sought to be
examined, that both the client and the attorney have not given their consent thereto
(RROE, Rule 130, Sec, 24, par. (b)).

Note: The disqualification now includes a person reasonably believed by the client to be licensed
to engage in the practice of law (RROE, Rule 130, Sec. 24, par. (b)).

What are the exceptions to the attorney and client privilege? (FC-JAB)

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 The exceptions are the following:

1. Furtherance of crime or fraud - If the services or advice of the lawyer were sought
or obtained to enable or aid anyone to commit or plan to commit what the client knew or
reasonably should have known to be a crime or fraud;

A public officer was charged with corruption. He consulted a lawyer and they
came up with the plan of forging a certificate of arraignment and dismissal purportedly
coming from the court in order to support their claim of double jeopardy. The
communications relating to this plan are not privileged. (People v. Sandiganbayan, 275
SCRA 505 [1997])

2. Claimants through the same deceased client - As to a communication relevant to an

issue between parties who claim through the same deceased client, regardless of whether
the claims are by testate or intestate or by inter vivos transaction;

Illustration: A and B are brothers. Their father hired Atty L to draft the will. Father died.
B wants to show that their father intended Lot B to belong to B. Atty. L can testify that
the Father intended to devise Lot B to B as shown by the will

3. Breach of any duty by lawyer or client - As to a communication relevant to an issue

of breach of duty by the lawyer to his or her client, or by the client to his or her lawyer;

llustration: Where the client alleges that the lawyer’s fees were excessive, the lawyer
can disclose relevant communication to show that the case was complex and difficult
thus justifying higher fees.

4. Document Attested by the lawyer - As to a communication relevant to an issue

concerning an attested document to which the lawyer is an attesting witness; and

5. Joint clients- As to a communication relevant to a matter of common interest between

two [(2)] or more clients if the communication was made by any of them to a lawyer
retained or consulted in common, when offered in an action between any of the clients,
unless they have expressly agreed otherwise

Illustration: The lawyer was hired by lender and borrower to draft their loan and
mortgage agreement. A dispute arose between lender and borrower on whether applying
for government financial aid is an event of default. Lender can present lawyer to testify
that the parties’ intention was that such application is an event of default thus justifying
the lender into calling in the loan.

What are the requisites in order that the physician-patient privilege may be successfully
claimed?

They are the following:

1. The privilege is claimed in a Civil case;

2. The person against whom the privilege is claimed is a Physician or psychotherapist;

Note: The privilege may also be claimed against persons, including members of the
patient's family, who have participated in the diagnosis or treatment of the patient under
the direction of the physician or psychotherapist.

3. Information was acquired for the purpose of diagnosis or treatment of the patient's
physical, mental or emotional condition, including alcohol or drug addiction (RROE.
Rule 130, Sec. 24).

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 Note. The disqualification now includes a person reasonably believed by the patient
to be authorized to practice medicine or psychotherapy (RROE, Rule 130. Sec. 24,
par. (b)).

Who is a psychotherapist?

A psychotherapist is:
1. A person licensed to practice medicine engaged in the diagnosis or treatment of a
mental or emotional condition, or
2. A person licensed as a psychologist by the government while similarly engaged
(RROE, Rule 130, Sec 24 c).

What are the requisites for the rule on privileged communication between priest and
penitent?

The requisites are the following:

1. The person against whom the privilege is claimed is a minister, priest or person
reasonably believed to be so:
2. There must be a communication or confession made to or any advice given by him or
her;
3. The affected person has not given his consent; and
Note: The 1989 Revised Rules of Evidence required the consent of the person making
the confession.
4. The communication or advice was given in his or her professional capacity. in the
course of discipline enjoined by the church to which the he or she belongs (RROE, Rule
130, Sec. 2, par. d).

What are the requisites of the rule protecting communications made to public officers in
official confidence? (GOTI)
The requisites are the following:
1. The holder of the privilege is the Government, acting through a public officer;
2. The communication was given to the public Officer in confidence;
3. The communication was given during the Term of office of the public officer but the
privilege may be invoked not only during the term of office of the public officer but also
after; and
4. The court finds that the public Interest would suffer by the disclosure of the
communication (RROE, Rule 130. Sec. 24, par. (e)).

Privileged communication obtained by third persons

May privileged communication obtained by third persons remain privileged under the
Revised Rules on Evidence?
Yes. Such 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 (RROE, Rule 130, Sec. 24).

Parental privilege and filial privilege

What are the parental privilege and filial privilege rules?

The parental privilege and filial privilege rules state that no person shall be compelled to
testify against his or her parents, other direct ascendants, children or other direct descendants,
except when such testimony is indispensable in a crime against that person or by one parent
against the other (RROE, Rule 130, Sec 25).

Note: Under the Family Code, the exception as to when a person may be compelled to give
testimony is when such testimony is indispensable in a crime against the descendant or by one

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 parent against the other (FAMILY CODE, Art. 215). Under the RROE, a person may be
compelled to testify against his or her parents, other direct ascendants, children or other direct
descendants, when the testimony is indispensable in a crime against that person or by one
parent against the other (RROE, Rule 130. Sec. 25).

What is the privilege relating to trade secrets?

A person cannot be compelled to testify about any trade secret, unless the non disclosure
will conceal fraud or otherwise work injustice.

Note: 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 (RROE,
Rufe 130, Sec 26)

What is a trade secret?

A trade secret is a process or device intended for continuous use in the operation of the
business, for example, a machine or formula, but can be a price list or catalogue or specialized
customer list.

IV. Comprehensive check – up

1. What is Testimonial Evidence?

2. What are the qualifications to be a witness?
3. Can a wife testify in a case in favor of his husband?
Checked by:

Mrs. Melody Comia- Dimapilis

Department Head

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