Criminal Evidence (CLJ4)

School of Criminology
1st Semester, AY 2021-2022

MODULE 4

Disqualification of Witness

Module Outcomes:
At the end of the module the students should be able to:

1. ABSOLUTE DISQUALIFICATION
2. RELATIVE DISQUALIFICATION
3. OTHER PRIVILEGED COMMUNICATIONS OUTSIDE THE RULES OF COURT

Discussion

ABSOLUTE DISQUALIFICATION:

1. Those who cannot perceive (Sec. 21);

2. Those who can perceive but cannot make their perception known (Sec.
21);
3. Marital disqualification – During their marriage, the husband or the wife
cannot testify AGAINST the other without the consent of the affected
spouse, except in a civil case by one against the other, or in a criminal
case for a crime committed by one against the other or the latter’s direct
descendants or ascendants.

Reason for the rule. ―The rule forbidding one spouse to testify for or
against the other is ―based on principles which are deemed important to
preserve the marriage relation as one of full confidence and affection, and
that this is regarded as more important to the public welfare than that
the exigencies of the lawsuits should authorize domestic peace to be

1
CLJ 4 – Criminal Evidence Page
Atty. Scarlette Joy N. Coopera Module 4
 disregarded, for the sake of ferreting out facts within the knowledge of
strangers.

The spouses must be legally married to each other to invoke the benefit of the
rule; it does not cover an illicit relationship (People vs. Francisco, 78 Phil. 694).
When the marriage is dissolved on the grounds provided for by law like
annulment or declaration of nullity, the rule can no longer be invoked. A
spouse can already testify against the other despite an objection being
interposed by the affected spouse. If the testimony for or against the other
spouse is offered during the existence of the marriage, it does not matter if the
facts subject of the testimony occurred before the marriage. It only matters that
the affected spouse objects to the offer of testimony.

Scope of the Rule. – ―The rule forbidding one spouse to testify for or against
the other applies to any form of testimony; therefore it protects against using
the spouse-witness’ admission, or against compelling him (or her) to produce
documents. According to Wharton, ―the prohibition includes the making of an
affidavit by one spouse for the purpose of obtaining a search warrant against
the other, but does not apply when such spouse is merely the prosecuting
witness in a criminal case. The rule of exclusion also applies irrespective of the
kind of testimony given by the witness. Even the declaration of the accused’s
spouse to a third person with reference to the accused’s guilt should not be
received against the accused where it was not made in his or her presence or
by his or her authority, although the rule is different if the declaration was
made in his or her presence. However, res gestae declarations of husband and
wife are admissible for or against each other, even though each is incompetent
to testify.

Waiver of Privilege. ―Wigmore asserts that the privilege of objecting to

testimony concerning anti-marital facts belongs to the spouse who is a party to
the action and not to the spouse who is being used as a witness.

Exception. Strained Marital Relations

4. Parental and filial privilege -- No person may be compelled to testify against

his parents, other direct ascendants, children or other direct descendants (Sec.
25).

The privilege cannot apply between stepmothers and stepchildren because the
rule applies only to direct ascendants and descendants, a family tie connected
by a common ancestry by her stepmother (Lee vs. CA, GR No. 177861 [2010]).

2
CLJ 4 – Criminal Evidence Page
Atty. Scarlette Joy N. Coopera Module 4
A child can waive the filial privilege and choose to testify against his father. The
rule refers to a privilege not to testify, which can be invoked or waived like
other privileges (People vs. Invencion, GR No. 131636 [2003]).

RELATIVE DISQUALIFICATION:

1. Lack of personal knowledge (HEARSAY RULE)

2. Disqualification by reason of privileged communication:

1. The husband or the wife, during or after the marriage, cannot be

examined without the consent of the other as to any communication
received in confidence by one from the other during the marriage
except in a civil case by one against the other, or in a criminal case for
a crime committed by one against the other or the latter's direct
descendants or ascendants;
2. An attorney or person reasonably believed by the client to be licensed
to engage in the practice of law cannot, without the consent of the
client, be examined as to any communication made by the client to
him or her, or his or her advice given thereon in the course of, or with
a view to, professional employment, nor can an attorney's secretary,
stenographer, or clerk, or other persons assisting the attorney be
examined, without the consent of the client and his or her employer,
concerning any fact the knowledge of which has been acquired in
such capacity, except in the following cases:
i. Furtherance of crime or fraud;
ii. Claimants through same deceased client;
iii. Breach of duty by lawyer or client;
iv. Document attested by the lawyer; and
v. Joint clients
3. A physician, psychotherapist or person reasonably believed by the
patient to be authorized to practice medicine or psychotherapy cannot
in a civil case, without the consent of the patient, be examined as to
any confidential communication made for the purpose of diagnosis or
treatment of the patient’s physical, mental or emotional condition,
including alcohol or drug addiction, between the patient and his or
her physician or psychotherapist. This privilege also applies to
persons, including members of the patient’s family, who have
participated in the diagnosis or treatment of the patient under the
direction of the physician

A psychotherapist is:

3
CLJ 4 – Criminal Evidence Page
Atty. Scarlette Joy N. Coopera Module 4
 A person licensed to practice medicine engaged in the diagnosis or
treatment of a mental or emotional condition, or A person licensed as a
psychologist by the government while similarly engaged.

4. A minister, or priest or person reasonably believed to be so cannot,

without the consent of the affected person making the confession, be
examined as to any communication or confession made to or any advice
given by him or her, in his professional character, in the course of discipline
enjoined by the church to which the minister or priest belongs;

The communication must be made pursuant to confessions of sin (Wigmore,

848). Where the penitent discussed business arrangements with the priest,
the privilege does not apply (US vs. Gordon, 493 F. Supp. 822).

5. A public officer cannot be examined during or after his or her tenure term
of office or afterwards, as to communications made to him or her in official
confidence, when the court finds that the public interest would suffer by the
disclosure.

The disqualification because of privileged communications to public officers

requires that:

1. (a)  It was made to the public officer in official confidence; and
2. (b)  Public interest would suffer by the disclosure of such
communications, as in the case of State secrets. Where no public
interest would be prejudiced, this rule does not apply (Banco Filipino
vs. Monetary Board, GR 70054, 07/08/1986).

The privilege is not intended for the protection of public officers but
for the protection of the public interest. When no public interest
would be prejudiced, this privilege cannot be invoked (Banco Filipino
vs. Monetary Board, GR 70054, 07/08/1986).

Presidential communications privilege

(a) must relate to a ―quintessential and non-delegable presidential power‖;
(b) must be authored or ―solicited and received‖ by a closer advisor of the
President or the President himself; and
(c) privilege may be overcome by a showing of adequate need such that the
information sought ―likely contains important evidence‖ and by the
unavailability of the information elsewhere (Neri vs. Senate, GR No. 180643
[2008]).

Public interest means more than a mere curiosity; it means something in

which the public, the community at large, has some pecuniary interest by
4
CLJ 4 – Criminal Evidence Page
Atty. Scarlette Joy N. Coopera Module 4
 which their legal rights or liabilities are affected (State vs. Crockett, 206 P.
816).

Exceptions to the rule:

1. (a)  What is asked is useful evidence to vindicate the innocence of an

accused person;
2. (b)  Disclosure would lessen the risk of false testimony;
3. (c)  Disclosure is essential to the proper disposition of the case;
4. (d)  The benefit to be gained by a correct disposition of the litigation

was greater than any injury which could inure to the relation by a
disclosure of the information

The communication shall remain privileged, even in the hands of a third

person who may have obtained the information, provided that the original
parties to the communication took reasonable precaution to protect its
confidentiality. (24a)

OTHER PRIVILEGED COMMUNICATIONS OUTSIDE THE RULES OF

COURT

Data Privacy Act - Personal information controllers may invoke the principle
of privileged communication over privileged communication that they
lawfully control or process. Subject to existing laws and regulations, any
evidence gathered on privileged information is inadmissible.

Food and Drug Administration Act - Prohibits the use of a person to his own
advantage, or revealing, other than to the Secretary of Health or officers or
employees of the Department of Health or to the courts when relevant in any
judicial proceeding under this Act, any information acquired under
authority Board of Food Inspection and board of Food and Drugs, or
concerning any method or process which as a trade secret is entitled to
protection.

Newsman’s privilege - Without prejudice to his liability under the civil and
criminal laws, the publisher, editor, columnist or duly accredited reporter of
any newspaper, magazine or periodical of general circulation cannot be
compelled to reveal the source of any news-report or information appearing
in said publication which was related in confidence to such publisher, editor
or reporter unless the court or a House or committee of Congress finds that
such revelation is demanded by the security of the State (RA 1477).

5
CLJ 4 – Criminal Evidence Page
Atty. Scarlette Joy N. Coopera Module 4
 Bank deposits - All deposits of whatever nature with banks or banking
institutions in the Philippines including investments in bonds issued by the
Government of the Philippines, its political subdivisions and its
instrumentalities, are hereby considered as of an absolutely confidential
nature and may not be examined, inquired or looked into by any person,
government official, bureau or office, except upon written permission of the
depositor, or in cases of impeachment, or upon order of a competent court
in cases of bribery or dereliction of duty of public officials, or in cases where
the money deposited or invested is the subject matter of the litigation (RA
1405).

Sanctity of the ballot – voters may not be compelled to disclose for whom
they voted.

Information in Conciliation Proceedings -All information and statements

made at conciliation proceedings shall be treated as privileged
communications.

Trade secrets.
Information contained in tax returns (RA 2070, as amended by RA 2212).

Section 25. Parental and filial privilege. — No person shall may be

compelled to testify against his or her parents, other direct ascendants,
children or other direct descendants, except when such testimony is
indispensable in a crime against that person or by one parent against the
other. (25a)

Section 26. Privilege relating to trade secrets. – A person cannot be

compelled to testify about any trade secret, unless the non-disclosure will
conceal fraud or otherwise work injustice. When disclosure is directed, the
court shall take such protective measures as the interest of the owner of the
trade secret and of the parties and the furtherance of justice may require.
(n)

YES or NO. Explain. (10 Points Each)

1. Mia, due to poverty, was forced to become a drug mule. She swallowed
about one (1) kg of shabu and then board a plane from Manila to Iloilo.
At Iloilo airport, she started to feel sick and lost consciousness.
Thereafter, she was brought to the hospital and a huge and alarming
amount of drug substance was found in her system. The examination
results also shows a big plastic inside her body. The doctors operated on
her and found a plastic of shabu that had a leak on it thereby explaining
the unusual medical results. When Mia woke up, she was placed under
6
CLJ 4 – Criminal Evidence Page
Atty. Scarlette Joy N. Coopera Module 4
 arrest. She then claimed that her physicians cannot testify against her
because their testimony is disqualified by reason of privileged
communication. Is Mia correct? Yes or No? Explain briefly.

2. Rodrigo stabbed his wife Marites because he got sick of her non-stop
gossiping (chismis). Marites then filed a case against Rodrigo and
testified against hom. Rodrigo then objected to testimony of Marites on
the reason that she is disqualified to testify against her husband under
the marital privilege rule. In Rodrigo correct? Yes or No? Explain briefly.

References:

2019 Revised Rules of Evidence

Balane, Elmer. 2019 Remedial Law Reviewer

7
CLJ 4 – Criminal Evidence Page
Atty. Scarlette Joy N. Coopera Module 4