EVIDENCE: EVIDENCE For more review materials and online examinations for free, visit www.criminologyreviewer.weebly.com CONCEPT OF EVIDENCE : CONCEPT OF EVIDENCE Evidence is the means of determining or discovering the truth of an allegation or event.
The testimony of a witness or objects (document, picture, map, drawing, plans, fingerprints, gun, bullet, etc.) presented before a court or tribunal to prove certain allegations are also called evidence.
All evidence presented in court must be perceived by the judge through any of his or her five (5) senses: sight, hearing, touch, smell, or taste.
Definition : Definition The facts in issue in a case are those pleaded by one and denied by the other. And in judicial trial, the truth as to those facts may be established only by means of evidence.
In other words, EVIDENCE is the means sanctioned by the rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact.
PROOF: PROOF Evidence differs from proof as cause differ from effect.
Proof is that which convince; evidence is that which tends to convince;
Proof is the perfection of evidence, for without evidence there is no proof, though there may be evidence which does not amount to proof. Slide5: Stated otherwise:
Proof is the result of evidence; evidence is the means which leads to it. Proof is the effect of evidence - the establishment of a fact by evidence. ADMISSIBILITY : ADMISSIBILITY Competent : It is not among those excluded by law or prohibited by the rules on evidence.
Relevant : It has a relation to the fact in issue based on logic and the pleadings.
Material : It may establish the truth or falsity of a fact or allegation.
When is evidence relevant?: When is evidence relevant? It must have such a relation to the fact in issue as to induce belief in its existence or non-existence.
Evidence is relevant when it has a tendency in reason to establish the probability of a fact in issue. When is evidence competent?: When is evidence competent? When it is not excluded by any of the rules of evidence such as when it is hearsay or because it is not the best evidence which is within the power of a party to produce.
Evidence must not only be logically relevant, but must be of such character as to be receivable in courts of justice Kinds of Admissibility: Kinds of Admissibility Multiple- where a fact is entirely admissible
Conditional- some facts may be inadmissible when presented but may be relevant in some others
Curative- an inadmissible evidence offered but not objected to KINDS OF EVIDENCE : KINDS OF EVIDENCE Direct -It establishes a fact without the need to refer to inferences or implications
Circumstantial/Indirect -It does not directly prove an allegation but such evidence tends to establish its probability Slide11: Requisites of circumstantial evidence:
1. There is more than one circumstance
2. The facts from which the inference are derived are proven
3. The combination of all the circumstances is such as to produce conviction beyond reasonable doubt.
The rule is that: the circumstances proved should constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused to the exclusion of others as author of the crime. Slide12: Corroborative -This kind strengthens evidence already presented by means of other evidence that proves the allegation
Cumulative -This is an additional evidence of the same kind as those already presented and establishes the same issue. Slide13: Positive -It is positive evidence when a witness states that an event occurred or s/he knows it transpired
Negative -It is negative evidence when an individual declares that s/he did not witness the event or s/he does not know what actually happened. Slide14: Judicial evidence - includes all testimonies given by witnesses in court, all documents produced and read by court, and all things examined by the court.
Prima facie evidence - is such as established a fact and unless rebutted or explained by evidence becomes conclusive and is considered if duly proved. SOURCES OF EVIDENCE : SOURCES OF EVIDENCE Testimonial - refers to declarations or statement of witnesses
Real or object -refers to material or physical things.
Documentary - example: birth certificate RULES ON EVIDENCE : RULES ON EVIDENCE Best Evidence Rule
When is this rule INAPPLICABLE?
-When the original is lost, destroyed or cannot be reproduced in court
-When the original is in the custody or under the control of the other party and the latter fails to produce it after reasonable notice
-When the original is a public record or is recorded in a public office for which a certified copy will be sufficient Secondary evidence may be presented when the original document is unavailable: : Secondary evidence may be presented when the original document is unavailable: How is this secondary evidence presented?
-Prove the execution or existence of the document
-Establish that the original document was lost without bad faith on the part of the party presenting it
-Prove the contents of the document by any of the following means:
by a copy
by a recital of its contents in some authentic documents
by the testimony of witnesses
Parol Evidence Rule : Parol Evidence Rule - When the terms of an agreement have been reduced to writing, no evidence shall be admissible other than the contents of the written agreement.
When is this rule INAPPLICABLE?: When is this rule INAPPLICABLE? When there is a mistake in the written agreement, or it fails to express the true intent and agreement of the parties, or the issue is the validity of the written agreement
When there is an intrinsic ambiguity in the written agreement Hearsay Rule: Hearsay Rule An individual may only testify on matters based on his/her personal knowledge. Thus, s/he can only attest to things that s/he actually saw, smelled, tasted, heard, or touched.
When is this rule INAPPLICABLE?: When is this rule INAPPLICABLE? Declaration against interest - A declaration against one’s own interest, which the declaration would not have made if s/he not believe it to be true, may be used against the declarant if made by a person deceased, out of the country, or unable to testify.
Common reputation- This refers to facts, existing previous to the controversy, of pubic or general interest more than thirty (30) years old, or respecting marriage or moral character.
Slide22: Res Gestae - These are statements made by a person while a startling occurrence is taking place. They may also be expressed immediately prior or subsequent to the unexpected incident. In order to be inadmissible, the utterance must refer to the startling even that transpired.
Entries in the course of business-Entries referring to a transaction, if made by a person in the performance of a duty, may be presented as evidence. It is necessary that the person who made the entry must be deceased, out of the country, or unable to testify Slide23: Testimony at a former proceeding- The testimony of a witness given in a former case or proceeding involving the same parties and subject matter may be given in evidence against the adverse party who had the opportunity to cross-examine the witness and the witness is deceased, out of the country, or unable to testify.
Dying declaration- The statement made by a dying person and his/her declaration pertains to the cause and surrounding circumstances of his/her death.
Opinion Rule: Opinion Rule The opinion of a witness is not admissible in evidence.
When is this rule INAPPLICABLE?
-The opinion of an expert witness may be received in evidence
-The opinion of an ordinary witness may be received in evidence IF:
Slide25: It is to identify a handwriting with which s/he can sufficient familiarity;
It is to prove the validity of an agreement to which s/he was an attesting witness; and
It is to testify on the mental sanity of a person with whom s/he is sufficiently acquitted.
Marital Disqualification Rule: Marital Disqualification Rule Neither the husband nor the wife may testify for or against each other without the consent of the affected spouse, except when they are adverse parties to the case. This disqualification shall cease upon the dissolution of marriage brought about by divorce, death, annulment or marriage, or declaration of absolute nullity of marriage.
Marital Privilege Rule: Marital Privilege Rule The husband or wife cannot be examined without the consent of the other as to any communication received in confidence by one from the other. This disqualification exists even after the death of the spouse or dissolution of the marriage.
Character Evidence: Character Evidence
-Is evidence of particular human traits; it is a person’s disposition to act in a certain manner or the quality of the person’s conduct. Types of Character Evidence- which may be offered to prove a particular trait of a person’s character:: Types of Character Evidence- which may be offered to prove a particular trait of a person’s character: Opinion testimony by acquaintance
Testimony as to the person’s reputation in the community; and
Testimony as to past conduct of the person that reflects on the trait involved. Generally…: Generally… Character evidence is inadmissible to prove that accused is a “bad person” or that he had a propensity to commit the crime with which he is presently charged. However, such evidence is allowed to establish some element of the present crime (i.e. to establish identity of common scheme or motive) Slide31:
The rules provide that unless in rebuttal, the prosecution can not prove the bad moral character of the accused. The prosecution can not initially attack the moral character of the accused, unless the same is put in issuer by him. Except also in cases involving violations of RA 9262, sect. 26, p. (c): Except also in cases involving violations of RA 9262, sect. 26, p. (c) Evidence of history of abusive conduct. – The court may allow the introduction of any evidence of history of abusive conduct of a respondent even if the same was not directed against the victim, provided the same is relevant.
Slide33: The good or bad moral character of the offended person may be proved if it may establish in any reasonable degree the probability or improbability of the offense charged. In rape case, the fact that the offended person had an unchaste character constitute no defense to the charge of rape. Under the rule on examining child witness, there exists a rape shield rule which provides that sexual history of a minor is not admissible as evidence. BURDEN OF PROOF: BURDEN OF PROOF
Is the general duty of a party to ultimately establish the issue or the truth of his claim or defense by the amount of evidence required by law. Burden of proof is a term used loosely to refer to 2 separate concepts:: Burden of proof is a term used loosely to refer to 2 separate concepts: It primarily refers to a party’s obligation upon which he or she relies – i.e. the burden of persuading the judge that the burdened party is entitled to prevail of “burden of persuasion”.
The term is also sometimes used to refer to a party’s obligation of introducing or “going forward” with evidence. (burden of introducing evidence or “the burden of pleading”) Slide36: Burden of persuasion – this burden is sometimes defined to require to win the case – i.e. to present legally sufficient evidence which persuades the judge on all issues which are essential to that party’s cause of action or defense.
Burden of pleading – another approach to defining this burden is that the burden of persuasion follows the burden of pleading, i.e. a party has the burden of proving whatever facts he or she must affirmatively plead in order to recover. Quantum of evidence: Quantum of evidence The preponderance of evidence standard is the most generally applicable burden of persuasion used in the law.
Preponderance of evidence is defined as such evidence as when weighed against those opposed to it, has more convincing force; and thus the greater probability of truth. How the burden is met -: How the burden is met - A party satisfies the burden of going forward with the evidence by introducing legally sufficient evidence on the issue (evidence from which a reasonable person could infer the fact alleged from the circumstances proved). If a party fails to meet its burden of going forward with the evidence on an issue, the trial court will find a judgment against it on that issue. Affirmative Allegations: Affirmative Allegations The burden of proving affirmative defenses is upon the defendant. Where the defendant relies upon a distinct substantive matter to exempt him from punishment and absolve him from liability, he has the burden of proving the same. Negative allegations: Negative allegations As a general rule, evidence need not be given in support of a negative allegation.
However, when such negative allegation is an essential ingredient of the offense charged, it must be proved like an affirmative allegation. Slide41:
The rule is that a party who alleges and relies upon a fact material to his cause of action has the burden of proof thereof, and if the fact thus alleged and relied upon lies peculiarly within the knowledge or control of the adverse party, prima facie proof thereof would be sufficient to cast the burden upon such adverse party. PRESUMPTIONS: PRESUMPTIONS A presumption is an inference as to the existence of a fact not actually known, arising from its usual connection with another which is known.
A presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption. Presumption of Law vs. Presumption of Fact: Presumption of Law vs. Presumption of Fact Presumption of law is described as a particular inference that must be drawn from an ascertained state of facts, while a presumption of fact leaves the court at liberty to infer certain conclusions from a set of circumstances. Estoppel in pais: Estoppel in pais Whenever a party has, by his own admission, conduct, or omission, intentionally and deliberately led another to believe a particular thing true, and not act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it. Elements of estoppel: Elements of estoppel There must have been a representation or concealment of material facts;
The representation must have been made with knowledge of the facts;
The party to whom it was made must have been ignorant of the truth of the matter; and
It must have been made with the intention that the other party would act upon it. Conclusive Presumptions: Conclusive Presumptions - are not really presumptions, but rather are rules of substantive laws. Where a party has a conclusive presumption in its favor, the law permits no contradictory evidence or finding. Hence, a conclusive presumption cannot be rebutted by disputing its logic, or by producing evidence to the contrary. Disputable presumptions -: Disputable presumptions - They are presumptions which are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence.
I.e. Presumption of innocence; official duty has been regularly performed; or that the ordinary course of business has been followed. Presentation of Evidence: Presentation of Evidence The examination of witness shall be done in open court, under oath or affirmation, the answers of which shall be given orally.
It is a legal duty of every citizen to attend in court and to testify to all facts which he knows and are pertinent to the issues on a case. Slide49: A witness is not only bound to attend the court when required, but he must also tell what he knows in answer to questions framed for the purpose of bringing out the truth of the matter under inquiry.
The exception to this rule is where his answer will have a tendency to subject him to punishment for an offense. Privilege against self-incrimination: Privilege against self-incrimination The privilege is a personal one. It may be invoked both in criminal, civil and administrative cases. Witness cannot refuse to answer questions simply because it will subject him to civil liability. Slide51: The privilege of a witness self-incrimination only covers testimonial incrimination and the production by him of incriminating documents and articles. It does not include the examination of his body and the production by others of incriminating documents and articles seized from him legally or illegally.
The privilege may be waived by any one entitled to invoke it. Order of examination of witness: Order of examination of witness Four stages:
1. Direct examination by the proponent, witness testifying to all facts that may support the case of the party calling him;
2. Cross-examination by the opponent, wherein the matters disclosed in the direct are tested; Slide53: 3. Re-direct examination by the proponent with a view to refuting the cross-examination;
4. Re-cross examination by the opponent to retest the matters disclosed in the direct examination. Direct Examination: Direct Examination The direct original or chief examination is one in which the actor seeks about an equilibrium in a civil case, or reasonable doubt in a criminal case.
When the testimony is within the allegations of complaint, there are no limitations to the direct examination. Form of questioning: Form of questioning In general, the examiner is usually limited to questions calling for specific responses by witness, typically: who? where? when? what? why? how?
Questions which call for opinion or conclusion of the witness are not allowed.
Slide56: Another prohibition on direct examination is against repetitive questioning designed to bolster or emphasize what has already been established;
Questions which allow the witness to tell a narrative are not permitted by many courts.
Questions suggesting a fact to the witness not yet in evidence in the case are not permitted. Cross-examination: Cross-examination Upon termination of the direct examination, the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, to test his accuracy and truthfulness and to elicit all important facts bearing upon the issue. Slide58: The cross-examination must be confined to the matters inquired about in the direct examination.
Counsel should avail cross-examining witness before he leaves the stand.
The extent of cross-examination with respect to an appropriate subject rests in the discretion of the court.
Repetition of questions are allowed. Redirect examination: Redirect examination The purpose of re-direct examination is to meet and answer the cross-examination; to explain or supplement statements made on cross-examination which tend to create doubts and contradict matters forth on the direct examination. To rebut adverse testimony or inference developed on cross-examination, and to rehabilitate a witness whose credibility has been impeached on cross-examination. Re-cross examination: Re-cross examination The purpose is to overcome the other party’s attempts to rehabilitate a witness or to rebut damaging evidence brought out on re-direct examination. It is limited to matters gone into re-direct. Leading questions: Leading questions Those which suggest to the witness the answer which the examining party desires.
E.g. Is it not your name is so and so?
Are you not an employee of such and
such person? Forms of leading questions-: Forms of leading questions- Questions assuming a controverted fact. Such where it assumes any fact which is in controversy, so that the answer may really or apparently admit the fact.
E.g. What were you doing when the accused struck you? (The controversy being whether or not the accused did.) Slide63: Questions calling for simple affirmative or negative answer.
E.g. Do you know whether A was ever prosecuted for stealing?
Alternative form –a question in the form “whether or not,” “did you or did you not” involving a material fact may be leading and should be avoided.
Leading questions are not allowed -: Leading questions are not allowed - On direct examination
Those merely leading the witness to a desired answer;
Questions which strongly suggest a large volume of facts, permitting the witness to affirm with a simple “yes” or “no”. Leading questions are permitted -: Leading questions are permitted - On cross-examinations
On preliminary matters
Of an unwilling or hostile witness
Of a witness who is an adverse party
Child witnesses Misleading questions -: Misleading questions - A question which assumes as true a fact not yet testified to by a witness, or contrary to that which he has previously stated, is misleading and should not be allowed. It irritates, confuses and misleads the witness, and embarrass the administration of justice. Weight and Sufficiency of Evidence: Weight and Sufficiency of Evidence Preponderance of evidence - is that evidence as a whole adduced by one side is superior to that of the other.
Equiponderance of evidence – when the scale shall stand upon an equipoise and there is nothing in the evidence which shall include it to one side of the other, the court will find for the defendant.
Complainant must rely on the strength of his own evidence and not upon the weakness of the defendant’s evidence.
Proof beyond reasonable doubt -: Proof beyond reasonable doubt - Such degree of proof as, excluding possibility of error, produces absolute certainty. Absolute certainty is not demanded, only moral certainty.
Moral certainty is that degree of proof which produces conviction in an unprejudiced mind. Falsus in uno, falsus in omnibus -: Falsus in uno, falsus in omnibus - A witness wilfully falsifying the truth in one particular, when upon oath, ought never to be believed upon the strength of his own testimony, whatever he may assert.
Where a witness has wilfully falsified tge truth in one point, his testimony in some points may be disregarded unless corroborated. Elements -: Elements - That the witness deliberately or intentionally falsified the truth. It is not enough that the witness disregarded the truth innocently or through mistake.
That the other portions of the testimony to be discredited are not corroborated by circumstances or other unimpeached evidence.
Contradictions of witnesses -: Contradictions of witnesses - Contradictions of a witness on minor details do not destroy the effectiveness of his testimony because they are generally due to an innocent mistake and not to a deliberate falsehood. Contradiction between witnesses -: Contradiction between witnesses - Not all persons who witness an incident are impressed in the same manner, and it is but natural that, in relating their impressions, they disagree on the minor details and that there are contradictions in their testimony. Contradiction between testimony and affidavits -: Contradiction between testimony and affidavits - Such contradictions do not materially impair the intrinsic veracity of said witnesses, particularly when they have been satisfactorily explained. If the contradiction between the testimony and affidavit is not satisfactorily explained, affidavit should prevail. Inherent improbabilities -: Inherent improbabilities - Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be credible by itself. Positive and negative testimony -: Positive and negative testimony - Affirmative testimony is stronger than negative testimony.
Demeanor of witness –
The emphasis, gesture and inflection of his voice are potent aids in ascertaining his credibility.
Sufficiency of evidence: Sufficiency of evidence Number of witnesses – testimony of one witness if credible and positive and if it satisfies the court beyond reasonable doubt is sufficient to convict.
Corroborative evidence when necessary – depends on the nature of the case. Testimony of a single witness even if uncorroborated is sufficient provided it is clear and convincing. Slide77: Testimony of accomplices – is admissible and competent. If not corroborated, it is not sufficient to support conviction.
Testimony of decoyed witness – testimony of an officer is no proof at all in order to find out whether the accused committed the crime and he induced him to commit it. Slide78: Testimony of instructed witness – the testimony of any witness who may have been previously instructed and who admits having obeyed such instruction, cannot be relied upon.
Degree of proof of alibi – alibi must be established by positive, clear and satisfactory evidence, the reason being that it is easily manufactured and usually so unreliable that it can rarely be given credence. Slide79: Evidence not formally offered will not be considered by the court in deciding case.
Under the Rule on Summary Procedure, where no full blown trial is held in the interest of speed administration of justice.
In summary judgments where judge bases his decisions on pleadings, depositions, admissions, affidavits and documents filed in court. Slide80: Documents whose contents are taken judicial notice.
Documents whose contents are judicially admitted.
Object evidence which could not be formally offered because they have disappeared or have become lost after they have been marked, identified and testified on and described in record and became the subject of cross-examination of the witnesses who testified on them during trial. Thank you…..: Thank you….. For more review materials and online examinations for free, visit www.criminologyreviewer.weebly.com