THE
HEARSAY
RULE
THE HEARSAY RULE:
Testimonial Knowledge
Definitions:
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.
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.
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 outof-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.
EXCEPTIONS TO THE
HEARSAY
RULE
:
Those which are hearsay
but are considered as
exceptions to the hearsay rule
and are therefore admissible.
EXCEPTIONS TO THE
HEARSAY RULE :
g. Entries
a.
Dying declaration
in the course
(Sec.
of 37)
business (Sec. 43)
b. Entries
h.
Declaration
in official
against
records
interest
(Sec.
(Sec.
44)38)
i.c. Commercial
Act or declaration
lists and
about
the like
pedigree
(Sec. 45)
(Sec. 39)
j.d.Learned
Familytreatises
reputation
(Sec. 46)
or tradition regarding
pedigree
(Sec.
40) made by electronic, optical or
k. Business
records
e. Common
other
similarreputation
means. (Sec.
(Sec.8,41)
Rules on Electronic
Evidence)
f. Part of the res gestae (Sec. 42)
(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.
(Sec. 37)Dying declaration
The determination of consciousness
of impending death may come from:
Important: The admissibility of an ante mortem
1)
Utterances;
declaration is not affected by the fact that the
2)
Circumstances;
and
declarant died hours or several days after making
Actual character
and seriousness
his3)declaration.
It is sufficient
that he believed
of his inwounds.
himself
imminent danger of death at the time of
such declaration. (People vs. Erica, 72 SCRA 199).
(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.
(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.
(Sec. 39)Act or declaration
about pedigree
Definition:
Pedigree – The history of family descent
which is transmitted from one generation
to another by both oral and written
declarations and by traditions.
(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
(Sec. 39)Act or declaration
about pedigree
Birth certificate as evidence of filiation:
It should be one which the father
intervened and which he signed, an
acknowledgement that he is the father of
the child.
(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 parol
evidence that a child has lived with a
person, not his parent, and has been treated
as a child to establish such adoption.
(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.
(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.
(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)
(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.
(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
(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.
(Sec. 42)Part of the res gestae
Classification of Res Gestae
1) Spontaneous exclamations, and
2) Contemporaneous statements or verbal acts
(Sec. 42)Part of the res gestae
Spontaneous Statement;
Definition:
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.
(Sec. 42)Part of the res gestae
Spontaneous Statement;
Requisites:
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.
(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.
(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.
(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.
(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.
(Sec.43)Entries in the
course of business
Requisites:
1)
Entriesmust
musthave
have
been
made
at or in
near
3) Entries
been
made
by entrant
his
the
time ofcapacity
the transaction,
to which of
they
professional
or in the performance
his
refer;
duty;
4)
the ordinary
or regular
2) Entries
Entrantwere
mustmade
havein been
in a position
to
course
of business
or duties;
and
know the
facts stated
in the
entries;
5) Entrant must be deceased or unable to testify.
(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.
(Sec. 45)Commercial lists and the like
Requisites:
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.
(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.
(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.
Business records made by electronic,
optical or other similar means.
(Sec. 8, Rules on Electronic Evidence)
Requisites:
1)
report,
record
or data,
compilation
4) AIt memorandum,
was kept in the
regular
course
or conduct
of a
of
acts, events,
opinions,
or diagnoses
is
business
activity, conditions,
and such was
the regular
practice to
made
by
electronic,
optical
or
other
similar
means;
make the memorandum, report, record, or data
2)
It was made
at or near
time of
or from
compilation
by electronic,
opticalthe
or similar
means;
and
transmission
or supply
of information;
5) All of which
are shown
by the testimony of the
3)
It was made
by aqualified
person with
knowledge thereof;
custodian
or other
witnesses.
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.
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.
THE
END