Weaving through the New Rules on Evidence

posted May 22, 2020 at 12:10 am
by  Tranquil G.S. Salvador III
"There are now 13 exceptions to the Hearsay Rule."



One of the most important amendments in the Rules on Evidence is the concept of hearsay evidence. Hearsay evidence, according to Oxford Reference, are “[oral] or written statements made by someone other than during his testimony in court but which the court is asked to accept as evidence for the truth of what is stated.”

For the longest time, hearsay has been understood in this jurisdiction as any evidence outside of the personal knowledge of the declarant or that which was not perceived by him. In fact, the old Rules on Evidence did not define Hearsay, it was personal knowledge that determines what is or what is not hearsay, although an enumeration of the exceptions to the Hearsay Rule was stipulated. It comes at an opportune time that the Supreme Court approved the amendments to include the definition of hearsay. Hearsay is now defined as 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. The statement may be an oral or written assertion, or a non-verbal conduct (like an action) of a person which is intended to be an assertion. It further says that hearsay evidence is inadmissible (not acceptable to the court) except as otherwise provided in the Rules (Section 37, Rule 130 of the Rules on Evidence).

Before the amendment, the practice was for all prior statements of a witness in court to be exempted from hearsay as long as he is subjected to cross-examination. However, the present definition makes the out-of-court statement by a trial witness hearsay, to prove the truth of the facts asserted therein. The Rules provide for certain exceptions to the exclusion of out-of-court statements at the trial or hearing provided it is subject to cross-examination, and these are as paraphrased: (a) a prior inconsistent statement with the declarant’s present testimony; (b) a prior consistent statement with declarant’s present testimony provided it is offered to rebut an express or implied charge against him, or recent fabrication or improper influence or motive; or (c) an identification of a person made after perceiving him or her Section 37, Rule 130 of the Rules on Evidence). Simply stated, the out-of-court statements that will prove the truth of the facts asserted are only limited to the three instances mentioned. It does not mean, however, that the trial judge may not exercise reasonable and judicial determination on whether to admit an out-of-court statement to prove a fact. At the end of the day, the trial judge’s determination on admissibility of evidence may be the subject of review by the appellate courts.

Originally, there were 11 exceptions to the Hearsay Rule but now there are 13. This article will only discuss the three major amendments. First, “declaration against interest” is a concept that remains unchanged, that is, the declaration made by a deceased person or someone unable to testify against his own interest is admissible if the declaration was, at the time it was made, contrary to his own interest, and that a reasonable person in his position would not have made it if it was not true. The amendment codified “declaration against penal interest” declared in the case of People v. Toledo, G.R. No. L-28655, (1928) citing Professor Wigmore which allows a statement tending to expose the declarant to criminal liability and offered to exculpate the accused as long as there are corroborating circumstances that clearly indicate the trustworthiness of the statement (Section 40, Rule 130 of the Rule on Evidence).

Second, “records of regularly conducted business activity” is a new provision which is not too far off from the concept of “entries in the regular course of business” which it replaced. The new provision covers memoranda, reports, records or data compilations of acts, events, conditions, opinions, or diagnoses, made by writing, typing, electronic, optical or other similar means. The important requirement is that the memorandum, report, record, or data compilation was made at or near the time of or from transmission or supply of information by a person with knowledge, and the said record was kept in the regular course or conduct of a business activity, and such was the regular practice (Section 45, Rule 130 of the Rules on Evidence). This amendment relieves the court of the unnecessary burden of resolving too many objections regarding the competency of the witness to testify; and if the person who made the entry is already dead or unavailable to testify, by allowing the custodian or other qualified witnesses to testify.

Residual exception is the most significant exception not because it is new but because of its expected impact on trial practice. This exception is known in the United States by authorities in Evidence as the “catch all exception.” Our present provision was patterned from the same exception appearing in the Federal Rule of Evidence of the United States. While this “catch all exception” was originally intended to be used rarely and only in exceptional circumstances (Lempert, R & Saltzburg S., 502, cited in the Comparative Matrix of the Supreme Court), there is nothing that prevents a liberal application if the declaration passes the circumstantial guarantees of trustworthiness and the court determines that the statement is admissible when it is: (a) offered as evidence of a material fact; (b) more probative on the point for which it is offered than any other evidence to be procured; and (c) the general purposes of these rules and the interest of justice will be best served by the admission of the statement (Section 50, Rule 130 of the Rules on Evidence).

Practitioners should not worry that the use of the exception may be abused since the Rules provide for a safety net. For the statement to be admitted under the “residual exception,” the movant should make known or notify the adverse party in advance of the hearing or by the pre-trial stage that he will use the exception. The notice shall indicate the movant’s intention to offer the statement and its particulars, including the name and address of the declarant. This is to give the adverse party a fair opportunity to prepare or meet the “residual exception” (Section 50, Rule 130 of the Rules on Evidence).

Another interesting topic in Evidence is “character evidence.” The usual question that comes to mind is whether previous good or bad conduct which reflects on the character of the accused be sufficient to hold him liable without proving the elements of the crime for which he was charged. The answer is in the negative, since “evidence of a person’s character is not admissible for the purpose of proving an action on a particular occasion” except if there is a pertinent moral trait involved in the offense charged (Section 54, Rule 130 of the Rules on Evidence). This is a new provision in the Rules on Evidence which has recognized application even before its codification. The same rule applies to civil cases which remain unchanged and says that “moral character is admissible only when pertinent to the issue of character in the case” (Section 54 (b), Rule 130 of the Rules on Evidence).

The inclusion of the provision on “Proof of Character Evidence in Civil and Criminal Cases” is a valuable amendment since lawyers will now be guided on how to prove character or a trait of character of a person involved in the case. It is proven by the: (a) testimony as to his reputation or (b) by testimony in the form of an opinion. However, on cross-examination, inquiry is allowed regarding relevant specific instances of conduct that led to that reputation (Section 54(c), Rules 130 of the Rules on Evidence).

Clearly, evidence is a necessary tool to ascertain the truth of the allegations in the complaints, initiatory and responsive pleadings like an Answer. It is imperative that legal practitioners have a good grasp of the Rules on Evidence to be able to protect the interests of their clients, to prevent confusion, and unfair prejudice.

Topics: Tranquil Salvador , Rules on Evidence , Hearsay evidence
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