Chapter 6

B. Exception to Hearsay Rules

The following are the exemption of hearsay rule (11)

1. Dying declaration
2. Declaration against interest
3. Act or declaration about pedigree
4. Family reputation or tradition regarding pedigree
5. Common reputation
6. Part of res gestae
7. Entries in the course of business
8. Entries in official record
9. Commercial list and the like
10. Learned treaties
11. Testimony or deposition at a former proceeding
 they are hearsay evidence but they are deemed admissible hearsay for certain
reason
 2, 3, 7, 8, 9, 10 hearsay evidence where there exist a diminished risk of
untrustworthiness because the motivation to lie is less.
 1 maybe admissible because no other or better evidence is available to prove an
act, such that their admissibility is predicated on a compelling necessity.

DYING DECLARATION

Section 37 Rule 130 – Dying declaration- The declaration of a dying person, made under the
consciousness of an impending death, may be received in any case wherein his death is the subject of
inquiry, as evidence of the cause and surrounding circumstances of such death.

 Highest order
 Entitle to the utmost credence on the premise that no person who know if his impending death
would make a careless and false accusation

Reason for admissibility

1. Necessity- because the declarant death renders it impossible his taking the witness stand, and
no other equally satisfactory proof of the crime.
2. Trustworthiness- when party is at the point of death, when every motive to falsehood is
silenced and the mind is induced by the most powerful consideration to speak the truth

 May now introduced in a criminal or a civil action and the requirement of relevance is satisfied
where the subject of inquiry is the death of the declarant himself.
 The kind of death which a declarant should be conscious of is a death that is impending. The
declarant must be conscious that death is near and certain, that death is near at hand, and what
is said must be spoken in the hush of its impending presence.
  To admit a dying declaration in evidence it must be shown that the declarant believed, at the
time the statement was made, that he was in a dying condition and had given up the hope of
surviving
 The declarant’s belief that he is going to die soon may be shown circumstantially
by the obvious fatal quality of the wound,
by the statements made to the victim by the physician that his condition is hopeless, or
by some other circumstances.
 There is nothing in the rules which prohibits the admission of a dying declaration that is
favorable to the accused.
Example
1. You have wanted to ask him whether or not he had something to do with the death of
Calixto, another neighbor, six month ago, and in weak voice, he whisper “it was not me… it
was Frank Santos. Is the decedent statement admissible in a prosecution against Frank
Santos?
Answer: No, because the declaration was neither about the cause nor the circumstance of
the declarant’s death. It is not admissible because the subject of the inquiry is the death of
someone else.

Elements of a dying declaration

a. The declaration concerns the cause and the surrounding circumstances of the declarants’
death.
b. It is made when death appears to be imminent and the declarant is under a consciousness of an
impending death.
c. The declarant would have been competent to testify had he or she survived.
d. The dying declaration is offered in a case in which the subject of inquiry involves the
declarant’s death

 However, even if the utterances of the victim could not be appreciated as a dying declaration,
his statemets may still be appreciated as part of the res gestae.
Res Gestae- refers to spontaneous statements made immediately prior to, while a startling
occurrence is taking place or immediately after such occurrence.
 Since the statements are contemporaneously with the startling event,
deliberation and fabrication are ruled and, thus, deemed reliable.

Assailing a dying declaration

 Although jurisprudentially considered as evidence of the highest order, it does not create a
conclusive presumption of credibility of the admitted declaration. No evidentiary rule grants a
dying declaration a favored status in the hierarchy of evidence.

Method of impeaching the declarant

1. The objector may show that prior to the admitted declaration, the declarant had previously
made a statement inconsistent with his supposedly dying declaration.
 2. The objecting counsel may also demonstrate that he declarant had no personal knowledge of
the identity of the assailant.
 It would not qualify because the statement is plain and simple hearsay.
3. Demonstrate that the declarant at the time of his declaration, was irrational state because he
was under the influence of large doses of sedatives.

Part of the res gestae

Res gestae- refers to the circumstances, facts and declarations that grow out of the main fact and serve
to illustrate its character and are so spontaneous and contemporaneous with the main fact so as to
exclude the idea of deliberation and fabrication

It encompasses the 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 fabricate a false statement.

Res gestae under the Rules of Court

Section 42 Rule 130- Part of the res gestae

a. Statements made by a person while a startling occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof, may be given in evidence as part
of the res gestae
b. Statements accompanying an equivocal act material to the issue and giving it a legal
significance, may be received as part of the res gestae

2 limited matters of res gestae in the Philippines

1. Spontaneous statements- (the res gestae is the startling occurrence)

2. Verbal acts- (the res gestae are the statements accompanying the equivocal act)

SPONTANEOUS STATEMENTS

 To be admitted as evidence, must have the following characteristics

1. There is startling event or occurrence taking place
2. A statement was made while the event is taking place, or immediately prior to, or
subsequent thereto.
3. The statement was made before the declarant had the time to contrive or devise a
falsehood
4. The statement relates to the circumstances of the startling event or occurrence.

Basis of admissibility

 It is anchored on the theory that statement was uttered under circumstances where the
opportunity to fabricate is absent. Accordingly, the basis for the excited utterance exception to
hearsay rule is that the perceived event produces nervous excitement, making fabrications
about that event unlikely.
  The statement and event cannot be taken separately. The statement alone without the event
will not qualify for admission because the circumstances surrounding the making of the
statement make said statement admissible.

Objection to admissibility

 The event must be of such nature as to cause an excited reaction in an average individual.
 If the event is not sufficient to disturb the emotional and mental equilibrium of the average,
reasonable person, then raise this issue with the court as soon as it becomes apparent that the
event is not as startling as that required by the rules.
 Not every statement made under the influence of the startling event is admissible even if
spontaneous. The only spontaneous statement made under stress of excitement of the startling
event that qualifies for admissibility is one that relates to the circumstances of the event.

Declaration made spontaneously after a starling occurrence is deemed part of the res gestae when:

1. The principal act, the res gestae is the startling occurrence

2. The statements were made before the declarant had time to contrive or device falsehood
3. The statements concern the occurrence in question and it’s immediately attending
circumstances.

B. VERBAL ACTS

 It is the statement contemporaneous with the act that identifies or indicates the character,
purpose or motive of the act.
 The following are the requisites:
1. The principal act to be characterized must be equivocal
2. The equivocal act must be material to the issue
3. The statement must accompany the equivocal act
4. The statement gives a legal significance to the equivocal act

Entries in the course of business (section 43)

 Entries made at, or near the time of the transaction to which they refer, by a person decease or
unable to testify, who was in a position to know the facts therein stated, maybe received as
prima facie evidence if such person made the entries in:
1. in his professional capacity
2. in the performance of duty
3. in the ordinary or regular course of business or duty
 The requisites are the following
1. The person who made the entry must be dead or unable to testify
2. The entries were made at, or near the time of the transaction to which they refer
3. The entrant was in a position to know the facts therein stated
4. Entreies were made in his professional capacity or in the performance of duty whether legal,
contractual, moral or religious
5. The entries are made in the ordinary or regular course of business or duty
 Entries in the payroll enjoys the presumption of regularity’
Declaration against the state