Monthly Archives: June 2005

Blog Lecture No. 18: Original Evidence

Ok class! Lets tackle this wonderful thing called original evidence. But we have to tackle several topics along, before and beyond it…

What are the basic types of evidence?
Basically, there are now three kinds of evidence:
1. Object or real evidence
2. Documentary Evidence
3. Electronic Evidence

What is object evidence?
Section 1 of Rule 130 defines what it object evidence. It says:

Section 1. Object as evidence. — Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court.

Examples of these are murder weapons, drugs confiscated from the bust, undies, pubes and rubber in a rape case. Strands fiber, etc.

What is documentary evidence?

Section 2 of the same Rules defines this as evidence consist of writing or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents.

What is original evidence?

Traditionally, original evidence refer only to documents, though taken loosely now in Congress.

They are defined under section 4 of the same rule as any one of the following:

(a) The original of the document is one the contents of which are the subject of inquiry (or the one in issue).

(b) When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. (These are called “duplicate originals.”)

(c) When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. (“Business records” such as receipts…)

Why is the original important? Can’t we just present copies, anyway they are the same?

As they say, the original is still the best. According to the “best evidence rule” (Section 3 of the same Rules):

Section 3. Original document must be produced; exceptions. — When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases:

(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;

(b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice;

(c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and

(d) When the original is a public record in the custody of a public officer or is recorded in a public office.

This rule simply says, if the original evidence is available, you have to present it. Otherwise, the contents of a document can still be contested by the one producing the original document.

When, then, can you use copies (or technically, when can you resort to secondary evidence)?

You can use secondary evidence when:

1. When original document is unavailable.
2.When original document is in adverse party’s custody or control
3. Voluminous business records
4. When original document is a public record, in which case, you can present a certified true copy

What about electronic evidence?

Electronic evidence basically fall into these categories:
1. Electronic Documents
2. Digital Audio, Photographic, Video and
3. Ephemeral Electronic Communications

What are ephemeral eletronic communications?

These are communications of a fleeting, temporary nature (unrecorded) such as cel phone conversations (Hello, Garci?) and text messages (eow grci?)

What is the basic principles in electronic evidence?

First, electronic documents and evidence can already be admissible because of the E-commerce Act. (Republic Act No. 8792). You can get this from Atty. JJ Disini’s site here.

Basically, the new rules of electronic evidence (but I would defer to my former boss, Atty. JJ Disini, the specialist on this topic) simply ensures the authenticity and integrity of what such evidence proves before it can be admitted as evidence.

The more interesting and relevant item for our blog lecture is Rule 11. It says:

RULE 11
AUDIO, PHOTOGRAPHIC, VIDEO, AND EPHEMERAL EVIDENCE

Section 1. Audio, video and similar evidence.– Audio, photographic and video evidence of events, acts or transaction shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof .

Section 2. Ephemeral electronic communications. – Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted.

A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section. If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 shall apply. (Emphasis supplied.)

What does this mean?

Her “sorry” truly admitted it…but which did she admit?

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There’s that D-O-G again…

Again in some stroke of pure genius, the D-O-G of a department will again see if charges could be filed against “that griping widow.” Utterly in bad taste, chauvinist and downright insensitive of it… And you know what they say about people who pick fights with women…

They also need to be remided that the last “griping widow” managed to topple a 20 year old dictatorship that allowed them to be in power now… Never underestimate what these “griping widows” can do. What this last “griping widow” achieved, this D-O-G can never hope to match even in their multiple lifetimes. They better just go back to tooting their own horns (or “huwang-huwangs,” as one of my classmates from law school used to say) because that’s the only thing they’re good at…

In some other news, the First Gentleman and the Eldest Son shall make the “sacrifice” and go to some undisclosed foreign land.

Where can I sign up to make the same “sacrifice”? Going to a foreign land, and probably not work for a living, living like royalty and instead engage in endless socializing. It’s going to be hard, but I’m also willing to sacrifice like this for the good of the country.

Finally, I thought Congress will “send home” their teachers for giving the “wrong” answers for their questions…

Only in the Philippines! Oh well…

Sorry guys. I’m too tired to make a blog lecture today…perhaps tomorrow…anyway, four “legal luminaries” already made lectures yesterday about things I have already said…here, here in relation to this.

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Blog Lecture No. 17: Impugning a Witness’ Testimony

Ok class! We are now going to more advanced lessons…but these are not “trade secrets.” Most, if not all of what I teach you can even get from the internet.

A friend of mine once remarked, “If I buy all the lawbooks you use, I wouldn’t need a lawyer anymore. That might be a better one-time investment than hiring one on a per need basis…”

“There’s one problem with that,” I said. “We lawyers know what page it’s on…”

Anyway, let’s begin…

What does impugning a witness’ testimony mean?

The word “impugn” means to attack as false or questionable. Hence, impugning a witness’ testimony means to attack the truth of the witness’ testimony.

How does one go about it?

This is achieved by lawyers through years of practice and experience. However, there are portions of the law itself that lend a glimpse in the practical ways one can go about it.

What is cross-examination?

During trial, a party presents a witness to conduct what is called a direct examination. This is the initial questioning of such witness on such fact the lawyer wants to present.

After that comes cross-examination. Section 6, Rule 132 of the Revised Rules of Evidence characterizes cross-examination succinctly (perfectly). It states:

Sec. 6. Cross-examination; its purpose and extent. – Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue.

So what can we learn from this nature of cross-examination?

Here we can see how we can test the testimony of the witness.

We can test the accuracy and/or truthfulness of his testimony. Are there inconsistencies in his testimony? Or is his testimony too perfect? When we ask for details, do these details conflict? Does the witness engage in flip-flopping?

Remember what the police general in the juetengate hearings said (as if he understood it, he was just reading it): Falsus in uno, falsus in omnibus?

For your benefit (and his), it means false in one, false in all. When a witness has made a deliberate falsehood in one material aspect, he must have done so as to the rest.

Also, did the witness just assume certain things in the course of his testimony? Those assumptions may have been mistaken…

Finally, how does his present statement fit with his past statements/actions/documents? Any inconsistencies between those?

What else can we get from this definition of cross-examination?

We can likewise look out for a witness’ interest or bias, or the lack of it when he is testifying.

Does the witness have an axe to grind against the one he is testifying against? Is that agenda sufficient reason or motivation for him to lie (and believe me some can lie very well, even fool experienced judges).

One the other hand, does the witness have something to gain from such testimony? Again, is the gain sufficient reason for him to lie in court, or in sworn statements?

Anything else?

Also, we can elicit other facts from a witness and turn him into a witness for our own purposes– a legal jujitsu of sorts.

Does he know certain facts actually favorable to us? Is his testimony edited, re-edited and re-formatted to suit whoever is presenting him. Impugning this witness can also be done for this purpose.

That’s all for now class. Be sure to look out for these matters when people try to discredit witnesses and impugn their testimonies during the next few days.

For further study, you could read The Art of Cross Examination, by Francis L. Wellman. I sure did, more than a few times already…

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Non sequitur?

(Warning, another opinion!!!)
Later on today on ANC, I heard Congressman TeddyBoy Locsin spell out this argument, initially propounded by Sec. Mike Defensor:

GMA admitted that it was her voice.

Hence, it now admitted as wiretapped.

Hence, it’s now illegal to play, distribute the tape and its transcript, including ringtones and car horns.

With all due respect, I would like to disagree. I thought an admission to an improprierty is supposed to bring you penance (or punishment) for the sins you admit. Only in the Philippines can one admit to an impropriety and then benefit from it.

WOW! What kind of a country has this country become?

Also with all due respect (and this is the more legal argument), you want technicalities? I’ll give you technicalities…

Wiretapping is again in the nature of a private crime. Hence, it is not enough, as the Honorable Congressman says, to have the NBI make a preliminary declaration that all versions of the Gloriagate tape, be it the mother, the sons, the ringtones or the horns are contraband materials and mere possession thereof makes one liable under Republic Act No. 4200. She has to file a complaint (or sue) EACH and EVERYONE to be liable under this law. As this is in the nature of a private crime, no complaint, no complainant, no crime.

Also, to successfully prosecute, she has to appear as complaining witness EACH and EVERY time anyone is prosecuted for it. And if she occupies all her time doing just that, she may just as well be impeached for it.

Sorry to say, a preliminary declaration of illegality is just that. I don’t even think it amounts to probable cause since there is still no complainant. What more of guilt beyond reasonable doubt?

And if she indeed endeavors to do this, where will the “moving on” declaration be in all of this?

I say let the tapes be played. Pursue the wiretappers to the fullest extent of the law, if she must, but LET THE TAPES BE PLAYED. Let the people judge for themselves if she committed an improper act. Only then can she (and we) even attempt to move on…

Again, my two cents on the matter…

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Another personal opinion

Atty. Luis Sison of Bangon Pilipinas had it right with his comparisons in last night’s Talkback with Tina Palma.

He said (and of course this is paraphrased):

It’s like a La Salle student caught cheating in his exams. Can he just argue that he can pass without cheating, anyway? So if he just says sorry and asks that the school administration forget about it and leave it behind, would he get away scott free?

(Of course, I’m using a La Salle student as an example for obvious reasons. Ateneans don’t cheat (*joke*). Hey! I’m just trying to put some humor in an otherwise serious matter…)

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It’s me. So what?

Let’s go to something that’s really interesting and direct to Gloriagate.

In a press statement tonight, she admitted it was her on the wiretapped conversation.

What is the answer to the question in the title of your entry?

Following is her possible liability:

1. An Election Offense.

She maybe liable for violating Section 261 (f) of the Omnibus Election Code which states:

Section 261. Prohibited Acts.- The following shall be guilty of an election offense:

(f) Coercion of election officials and employees. – Any person who, directly or indirectly, threatens, intimidates, terrorizes or coerces any election official or employee in the performance of his election functions or duties.

2. A Graft and Corruption Case

Contrary to public perception, the term “graft and corruption” is not merely limited to looting and enriching one’s self from government coffers. That term covers many acts, as defined in Republic Act No. 3019, otherwise known as the “Anti Graft and Corruption Act,” specifically Section 3 (a) that says:

(a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense.

3. An Impeachable Offense

From a previous blog lecture, she may be liable for graft and corruption (as stated above) and betrayal of public trust, which involves any violation of her oath of office involving loss of public support even if it does not amount to a punishable offense (these are Hector De Leon’s words, cited in my post).

Incidentally, her oath of office says:

“I do solemnly swear that I will faithfully and conscientiously fulfill my duties as President of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Nation. So help me God.” (Section 5, Article VII, 1987 Constitution)

Both of these are grounds for impeachment.

What are the penalties?

For an election offense, the prizes are:

1. A non-probationable prison sentence, from one year to six years;
2. Disqualification from public office; and
3. Deprivation of the right to vote.

For the graft and corruption offense, the prizes are:

1. Imprisonment for one to ten years;
2. Perpetual disqualification from public office;
3. Confiscation/forfeiture of the fruits of the “crime” (this may not be relevant for this issue)

For impeachment, as stated before:

1. Removal from office;
2. Disqualification for holding any other public office.

Anything else to add?

The election offense and the anti-graft offenses are mala prohibita, meaning, malice or bad intent need not be proved (unlike crimes in the Revised Penal Code that are mala in se, meaning, malice or bad intent needs to be proven before being liable).

Again, it’s one thing to say she may be liable. It’s another thing to see if she actually will be due to the numerous technicalities involved here…

But one thing’s for sure. This will not be the end of this…

Again, may God (or again, whatever Supreme Being you believe, or don’t believe) have mercy on us all…

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Heads or Tails: Atenista questions

For this Heads or Tails post, Tiborcee posited the following questions:

1. What’s your student number?
870627(College)/91-134(Law School)

2. Did you pass Ateneo or was waitlisted?
passed (and even got a merit scholarship)

3. How did you know your ACET (Ateneo College Entrance Exam) result?
Our ADMHS guidance councilors released all our letter all at the same time. I could still hear the collective screams (of agony or joy) that day…

4. Is Ateneo your first choice?
Of course. I came from its high school also.

5. What is your ACET score?
I was merit scholar so I guess it was high.

6. What course was your first choice?
Legal Management

7. Second choice?
Political Science, I think.

8. Are you chinito?
Dark, short and fat chinito

9. From Ateneo high?
Yes.

10. Did you enjoy you orsem (orientation seminar)?
Yes, a younger, unretouched and more down-to-earth Regine Velasquez sang during our ORSEM night.

I participated in future orsems as an ORCOM member all my college years hence. Even met my first gf there.

11. What gate did you use on your first day?
During high school, gate 2
During college, gate 3.
During Law School, back door.

12. Did you live in a dorm?
My house is near…

13. Did you ever get an “F”?
No grade lower than C+. And only two of them.

14. How about an “A”?
More A’s than any other letter grade.

15. Highest grade?
full house/four-of-a-kind. Four A’s (or was it three?) and a couple of B+s, but I could not remember the QPI.

16. Lowest?
C+ in English and Philo… One sem out of the dean’s list (the first Sem of my life).

17. Worst experience in admu:
Also baking under the sun for rotc/cmt.

18. Did you always attend your classes?
Except for CMT (ROTC) where I used all my cuts, you can count with one hand all my cuts for my whole college stay.

19. On scholarship?
No.

20. Did you dream of being “laude?”
Yes. Did not come close, but I medalled.

21. When did you graduate?
March 1991/March 1995 (law school). From there, you can calculate my age (oops, you can do that too from my profile…)

22. Fave teacher?
Fr. Bartholomew Lahiff, S.J.(+). Dra. Christina Astorga, Fr. Adolfo Dacanay, S.J., Fr. Luis Candelaria, S.J. (we hated him when he was HS principal because he resectioned our classes and imposed a dress code, but loved him during College), Dr. Ramon Reyes, Dra. Soledad Reyes, Atty. Maningat, Fr. Jose Arcilla, S.J., Dr. Policarpio Peregrino.

23. Worst teacher?
Atty. Martinez. A lawyer teaching marketing? C’mon!

24. Fave subject?
Theo 131- Marriage including Family Planning (got an A there but miserably failed in OJT…)

25. Worst subject?
CMT (ROTC)

26. Favorite landmark in admu?
Gate 3 Waiting Shed (memories…)

27. Building?
Faura, where all the beauties used to be…

28. fave eating place?
Used to called the “country club” (near the tennis courts) and Pampanguena

29. Did you pay student rates in jeepneys?
Did not have those discounts during my time. But it was only P1.50 minimum fare then…

30. Are you always at the Rizal lib?
Somebody told me to have my nameplate nailed to my usual desk there…

31. Ever gone to the infirmary?
Yes. Had a blood pressure of 160/120 so the nurse gave me calcibloc had my “mommy” fetch me…

32. Any crush on campus?
So many! From the “girl mountain” to the “nice booty twitch”! And who could forget “GT FOREVER!!!”

33. Girlfriend?
My first, after college while in law school.

34. Any plans to get a master’s or a Ph. D.?
Probably, but not here.

35. What were your PE subjects?
foundations (pe101), table tennis, lawn tennis at swimming (during second sem… it was cold!)

36. How was your block ?
Also close in general, but of course there were individual groups. Still in touch with some of them.

37. Ever watched a graduation?
Yes. My cousin, Prof. Sereno’s, of UP Law. She graduated valedictorian. She’s the reason I studied law…Bea’s prep graduation also.

38. Memorized “Song for Mary?”
Since high school (I can even play it.)

BTW. I was surprised that younger Ateneans don’t know that our alma mater song was knocked off by the late Raul Manglapuz from “Oh, Canada,” the Canadian National Anthem…

39. Memorized “Fabilioh?”
Yes.

(The spelling could be wrong, though…)
Ho! Fabilioh!
Fabilioh!
Fabilioh!
Fabilioh!
Ready, 1, 2..

Fabilioh Fee!
Fablioh Aei!
Eeneecadeemah,
Eenaweena,
Eeneecadeemah,
Eenawa!
Hurrah, hurrah
Hurrah Rah
Ateneo, Ateneo
Rah! Rah! Rah!

40. How about “Halikinu?”
Of course.

Ho! Halikinu!

Halikinu!
Halikinu!
Halikinu!
Ready, 1, 2…

Halikinu Kinikina
Halikinu Kinikina
Yea bo, yea bo, Ateneo rah!
Halikinu Kinikina
Halikinu Kinikina
Yea bo, yea bo, Ateneo rah!

Halikinu hu!
Halikinu rah!
Halikinu kinikina
Rah rah rah!
(Do you want the X-rated version?)

41. How about “Blue Eagle Spelling?”
Easy.

Blue Eagle spelling!
Ready? 1,2…
B L U E…
E A G L E
Blue Eagle! Blue Eagle!
Blue Eagle! The King!

(How about UP spelling….? Easier but boring…)

42. Are you a member of Team Ateneo?
Only in spirit.

43. Who were your favorite UAAP basketball players?
Of the ones who played during my stay, my HS classmate Danny Francisco, Eric and Jun Reyes
Of the ones who played after my stay, Rich Alvarez, Richie Ticzon, L.A. Tenorio, Wesley Gonzalez…

44. Ever got “perfect” in an exam?
I can’t remember, probably. But I got a “100” quarterly grade twice in high school…

45. What do you hate most about hell week?
What’s hell week?

46. Did you learn how to smoke and drink there?
I didn’t learn how to smoke. I learned to drink when I got married… way after my school days…

47. What did you like about our school?
Also the people, the scenery, the two latin diplomas, and the distance from my house and oh, the “Jesuit” education.

48. What didn’t you like?
The 7:30 classes at 2nd floor, Gonzaga Hall, followed by an 8:30 class at 2nd floor, Belarmine Hall. The teacher in Gonzaga (Prof. Eric Torres) insisted on extending our class while our 8:30 (Fr. Bart Lahiff, S.J.) was so particular about tardiness… Got my thrice a week exercise from it, though.

49. Bought anything in the A-shop?
Before grad, my mother liked buying tshirts at jackets. after grad, I bought mostly planners…

50. Did you look good in your ID pic?
No. In college, I had my picture taken after a grueling registration process, hence the harrassed look. In law school, my ID pic was my college grad pic taken by Toch…

51. Did anything illegal inside the campus?
I was a saint during college.

52. Bought anything in National katips?
During my college days, there was no National katips, but I bought something there recently.

53. Have you been to Starbucks katips?
Yes. Even if it replaced Tia Maria’s, the “view” there is spectacular…

54. Want to study again?
Someday, in the states…

His answers to the same questions can be found here.

(PS. stepping on poop also answered the same questions here.)

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