T HE H EARSAY R ULE

1. THE HEARSAY RULE

2. THE HEARSAY RULE: Testimonial Knowledge 1. Hearsay Rule: A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception. 2. Hearsay – oral testimony or documentary evidence as to somebody’s words or actions outside of court where they are offered to prove the truth of the very natters they assert; includes all assertions which have not been subject to opportunity for cross-examination by the adversary at the trial in which they are being offered against him. Definitions:

3. Reasons Why Hearsay is Inadmissible: 1. The source of evidence is not before the court to be cross-examined. 2. The statement made was not made under oath or solemn affirmation. 3. The court must consider the personal appearance and behavior of the witness in evaluating his credibility. Underlying this rule are serious concerns about the worth (trustworthiness, reliability) of hearsay evidence.

4. Classification of Out-of-Court Statements 1. Hearsay – those which are considered as hearsay and therefore are inadmissible; this occurs when the purpose for introducing the out-of-court statements is to prove the truth of the acts asserted therein. 2. Non-Hearsay – Those which are not considered legal hearsay are admissible. This occurs when the purpose of introducing the statements is not to prove the truth of the facts asserted therein but only the making of the statement, and are admissible in evidence when the making of the statement is relevant. These are the so-called independently relative statements. The ban on hearsay evidence does not cover independently relevant statements, which tends to prove the tenor and not the truth of the statement.

5. EXCEPTIONS TO THE HEARSAY RULE : Those which are hearsay but are considered as exceptions to the hearsay rule and are therefore admissible.

6. EXCEPTIONS TO THE HEARSAY RULE : a. Dying declaration (Sec. 37) b. Declaration against interest (Sec. 38) c. Act or declaration about pedigree (Sec. 39) d. Family reputation or tradition regarding pedigree (Sec. 40) e. Common reputation (Sec. 41) f. Part of the res gestae (Sec. 42) g. Entries in the course of business (Sec. 43) h. Entries in official records (Sec. 44) i. Commercial lists and the like (Sec. 45) j. Learned treatises (Sec. 46) k. Business records made by electronic, optical or other similar means. (Sec. 8, Rules on Electronic Evidence)

7. (Sec. 37)Dying declaration Requisites for an Admissible of Dying Declaration: a. The statement concerns the crime and surrounding circumstance of the declarant’s death; b. At the time it was made, the declarant was under the consciousness of an impending death; c. The declarant would have been competent as a witness had he survived; and d. The declaration was offered in a criminal case for homicide, murder, or parricide, in which the declarant was the victim.

8. (Sec. 37)Dying declaration The determination of consciousness of impending death may come from: Important: The admissibility of an ante mortem declaration is not affected by the fact that the declarant died hours or several days after making his declaration. It is sufficient that he believed himself in imminent danger of death at the time of such declaration. (People vs. Erica, 72 SCRA 199). 1) Utterances; 2) Circumstances; and 3) Actual character and seriousness of his wounds.

9. (Sec. 37)Dying declaration Reasons for admissibility 1) Necessity – the declarant’s death renders impossible his taking the witness stand. 2) Trustworthiness – The mind is induced by the most powerful consideration to speak the truth.

10. (Sec. 38)Declaration against interest Requisites: 1) the declarant is dead or unable to testify, 2) It relates to a fact against the interest of the declarant, 3) At the time he made the declaration, the declarant was aware that the same was contrary to his aforesaid interest, and 4) The declarant had no motive to falsify and believed such declaration to be true.

11. (Sec. 39)Act or declaration about pedigree Pedigree – The history of family descent which is transmitted from one generation to another by both oral and written declarations and by traditions. Definition:

12. (Sec. 39)Act or declaration about pedigree Requisites: 1) That declarant is dead or unable to testify; 2) That pedigree is in issue; 3) That declarant be related to the person whose pedigree is the subject of inquiry; 4) That such relationship be shown by evidence other than the declaration; and 5) That the declaration was made ante litem motam or before any controversy has arisen thereon

13. (Sec. 39)Act or declaration about pedigree It should be one which the father intervened and which he signed, an acknowledgement that he is the father of the child. Birth certificate as evidence of filiation:

14. (Sec. 39)Act or declaration about pedigree Rule Not Applicable to Adoption: The absence of proof of an order of adoption by the court, as provided by the statute, cannot be substituted by parolevidence that a child has lived with a person, not his parent, and has been treated as a child to establish such adoption.

15. (Sec. 40)Family reputation or tradition regarding pedigree Definition: Family reputation – such declarations and statements as have come down from generation to generation from deceased relatives in such a way that even though it cannot be said or determined which of the deceased relative originally made them or was personally cognizant of the facts stated therein, yet it appears that such declarations and statements were made as family history. Tradition – knowledge, belief or practices, transmitted orally from father to son, or from ancestors to posterity.

16. (Sec. 40)Family reputation or tradition regarding pedigree Requisites: 1) There is controversy in respect to the pedigree of any members of the family; 2) The reputation or tradition of the pedigree of the person concerned existed previous to the controversy; and 3) The witness testifying to the reputation or tradition regarding the pedigree of the person concerned must be a member of the family of said person either by consanguinity or affinity.

17. (Sec. 40)Family reputation or tradition regarding pedigree Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree. • Note: The reputation is the one known in the family circles and not in the community, except the reputation with respect to marriage, which may proceed from persons who are not members of the family. (In Re Florencio Mallari, 59 SCRA 45)

18. (Sec. 41)Common reputation Definition: Reputation – the common report which others make about him, the talk about him that shows the opinion in which he is held in the community; the sum or composite of the impressions spontaneously made by him from time to time, and in one way or another, upon his neighbors and acquaintances. Common Reputation – the prevailing belief in the community as to the existence of a certain fact or aggregation of facts. Rumor – a loose talk which the community has not had an opportunity to evaluate and accept or reject.

19. (Sec. 41)Common reputation Matters which May be Established by Common Reputation: 1) Facts of public or general interest more than 30 years old, 2) Marriage and related facts, and 3) Individual’s moral character

20. (Sec. 42)Part of the res gestae Definition: Res Gestae – literally means “transactions” or “things done”; refers to those exclamations and statements made by either the participants, victims, or spectators to a crime immediately before, during or immediately after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement.

21. (Sec. 42)Part of the res gestae Classification of Res Gestae 1) Spontaneous exclamations, and 2) Contemporaneous statements or verbal acts

22. (Sec. 42)Part of the res gestae Spontaneous Statement; A statement or exclamation made immediately after some exciting occasion by a participant or spectator and asserting the circumstances of that occasion as it is observed by him. Definition:

23. (Sec. 42)Part of the res gestae Spontaneous Statement; a) There must be a startling occurrence; b) The statement is spontaneous, made immediately before, during or after a startling occurrence; and c) It relates to the circumstances of such occurrence. • The rule of res gestae applies • when the declarant himself did • not testify; hence, it does not • apply where the declarant took • the witness stand to testify. Requisites:

24. (Sec. 42)Part of the res gestae Factors to consider in determining whether the statement is spontaneous or not: a) The time that has elapsed between the occurrence of the act or transaction and the making of the statement. b) The place where the statement was made. c) The condition of the declarant when he made the statement. d) The presence or absence of intervening occurrences between the occurrence and the statement relative thereto. e) The nature and circumstances of the statement itself.

25. (Sec. 42)Part of the res gestae Verbal Acts; Definition/Requisites: Utterances which accompany some act or conduct to which it is desired to give a legal effect. a) Act or occurrence characterized must be equivocal; b) Verbal acts must characterize or explain the equivocal act; c) Equivocal act must be relevant to the issue; and d) Verbal acts must be contemporaneous with equivocal act.

26. (Sec. 42)Part of the res gestae Equivocal Act – An act that is ambiguous. Dying Declaration may be Regarded as Part of the Res Gestae: Even if a statement is not admissible as a dying declaration, the same may still be admitted as part of the res gestae where it was made immediately after the startling occurrence.

27. (Sec.43)Entries in the course of business In the Ordinary Course of Business – means that the entries have been made regularly in the management of the business. Reason: To afford sufficient probability that the facts are as stated in the memorandum and necessity, the entries being the best available evidence.

28. (Sec.43)Entries in the course of business 1) Entries must have been made at or near the time of the transaction, to which they refer; 2) Entrant must have been in a position to know the facts stated in the entries; Requisites: 3) Entries must have been made by entrant in his professional capacity or in the performance of his duty; 4) Entries were made in the ordinary or regular course of business or duties; and 5) Entrant must be deceased or unable to testify.

29. (Sec. 44)Entries in official records Requisites: 1) That the entry was made by a public officer or by another person specially enjoined by law to do so; 2) That it was made by the public officer in the performance of his duties, or by such other person in the performance of a duty specially enjoined by law; and 3) That the public officer or other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information.

30. (Sec. 45)Commercial lists and the likeRequisites: 1) Statements of matters of interest to persons engaged in an occupation; 2) Statements must be contained in a list, register, periodical or other published compilation; 3) Compilation is published for use by persons engaged in that occupation; 4) Is generally relied upon by them therein. • A report in a newspaper account is not a commercial list. At most, it is an analysis or opinion which carries no persuasive weight.

31. (Sec. 46)Learned treatises Basis: The Alabama Rule –standard medical treatises and works are admissible in so far as they are relevant to the issues in the particular case.

32. (Sec. 46)Learned treatises Requisites: a. That the court take judicial notice that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject, or b. A witness, expert in the subject, testifies that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject.

33. Business records made by electronic,optical or other similar means. (Sec. 8, Rules on Electronic Evidence) 1) A memorandum, report, record or data, compilation of acts, events, conditions, opinions, or diagnoses is made by electronic, optical or other similar means; 2) It was made at or near the time of or from transmission or supply of information; 3) It was made by a person with knowledge thereof; Requisites: 4) It was kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means; and 5) All of which are shown by the testimony of the custodian or other qualified witnesses.

34. Sec. 47: Testimony or deposition at a former proceeding. Former Testimony – testimony which has been adduced at an earlier proceeding; may be classified as an exception to the hearsay prohibition, or it may be considered as non-hearsay under the theory that the requirements of the hearsay concept have been met.

35. Sec. 47: Testimony or deposition at a former proceeding. Rules: a. The witness whose testimony is offered in evidence is dead or unable to testify; b. Identity of parties; c. Identity of issues; and d. Opportunity of cross-examination of witnesses. 1) This rule embraces judicial or administrative proceedings.

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