GENERAL RULE: The reliability of a testimony is based on the personal knowledge of the witness.

Bar 2007
(a) What is the hearsay rule?
(b) In relation to the hearsay rule, what do the following rules of evidence have in common?
1. The rule on statements that are parts of the res gestae;
2. The rule on dying declarations;
3. The rule on admissions against interest.
Suggested answers:
(a) See Sec. 36 of Rule 130. [amended already, refer to latest amendments]
(b) They are exceptions to the rule that hearsay evidence is inadmissible. They are in other words, admissible hearsay.

HEARSAY EVIDENCE – a testimony which would be excluded if a witness testifies on the basis of what others have told him, and not on facts
which he knows of his own personal knowledge (Mallari v. People, 446 SCRA 74)
– Evidence is called hearsay when its probative force depends, in whole or in part, on the competency and credibility of some persons other
than the witness by whom it is sought to produce it (Estrada v. Desierto, 356 SCRA 108).
– In criminal cases, the admission of hearsay evidence would be a violation of the constitutional provision that the accused shall enjoy the
right to confront the witnesses testifying against him and to cross-examine them (People v. Mamalias, 328 SCRA 760).
– a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted (definition of hearsay under Rule 801[c] Federal Rules of Evidence)
– hearsay is defined "as an out of court statement offered for the truth of the matter asserted" (cited in Words and Phrases, Permanent Ed.,
1970, 269). [People v. DeMarco (195 N.E. 2d, 213,216, 44 III. App. 348 EVIDENCE (The Bar Lectures Series) 2d 459)]

Basis for Excluding Hearsay Evidence

 The rule excluding hearsay testimony rests mainly on the ground that there is no opportunity to cross-examine the outside declarant
(Mines v. St. Louis Corp. 129 Mo. A., 705, 716, 162 S.W. 741).

The hearsay rule, bars the admission of evidence that has not been given under oath or solemn affirmation and more important, has not been
subjected to cross-examination by opposing counsel. It is because of the above reason that if the affiants of affidavits do not take the witness stand
to affirm their averments in their affidavits, such affidavits must be excluded from the judicial proceeding, being inadmissible hearsay (People v.
Quidato, Jr., 297 SCRA 1).

Hearsay evidence if not objected to is admissible. However, even if admitted, it has no probative value (Mallari v. People, 446 SCRA 74).

When Evidence is Hearsay [Note: The purpose for which the evidence is offered is a vital element of hearsay evidence.]
 The Supreme Court acknowledged that the ban on hearsay does not include statements which are relevant independently of whether
they are true or not, like statements of a person to show, among others, his state of mind, mental condition, knowledge, belief, intention,
ill-will and other emotions (Estrada v. Desierto, 356 SCRA 108)
 first-hand knowledge rule – This is the rule that a witness is qualified to testify to a fact susceptible of observation, only if it appears that
he had a reasonable opportunity to observe the fact (McCormick, Evidence, 3rd Ed. p. 731).

Statement – [Rule 801(a), Federal Rules of Evidence] is defined as either an oral or written assertion or a nonverbal conduct intended by the person
as an assertion. To constitute hearsay therefore, there must be:
(1) an out-of-court statement, oral, written or non-verbal conduct, made by one other than the one made by the declarant or witness
testifying at the trial; and
(2) the out-of-court statement must be offered to prove the truth of the matter asserted in the out-of-court statement (29 Am Jur 2d, 2nd
Ed. Pp. 704-705; FRE, 801[c]).

Specific Elements of Hearsay Evidence

(a) First, there must be an out-of-court statement.
 may be oral
 may be written
 It may even be a conduct, as long as that conduct is intended by the actor as an assertion.
 What matters is that the statement was not made by the declarant in the hearing or trial.
(b) Second, that statement made out of court, is repeated and offered by the witness in court to prove the truth of the matters asserted by the
statement.

Illustration: Let us have Jose, a witness testifying in court as to what his friend, Juan wrote him. In a letter dated August 5, his friend wrote Jose that
it was a street bum who shot the cop, not Jose's uncle. Jose's friend, Juan, the eyewitness is not in court. It is Jose who is in court but we hear Jose
presenting a statement that is not his own. It is a statement made outside the court by his friend, Juan. His friend's statement is an out-of-court
statement because when it was made, the friend who made it was in Cebu and he is not the witness in court. We clearly have an out-of-court
statement from Jose's friend whom we shall call an outside declarant. We have the first part of our formula: An out-of-court statement from an out-
of-court declarant.
 Is Jose's testimony therefore, hearsay? Answer: We still do not know. We do not know because we do not know the purpose of the
testimony.
 Is it offered to prove that it was indeed a bum who shot the cop? Or is it offered to prove something else? We are not sure. If we are not
sure, then we do not know if it is hearsay.
 How can we then be sure? To be sure we must know what it is the proponent wants to prove. After knowing what he wants to prove,
then we ask whether or not the matter he wants to prove is relevant to an issue in the case. This is basic, a matter of logic, and no rules
of evidence need tell us this.
Suppose the judge asks: "Counsel what is the purpose of Jose's testimony that his friend wrote him that 'it was a street bum who shot the cop and
not Jose's uncle?'" Comes the quick reply: "To prove Your Honor, that Jose's friend was alive on August 5 and not to prove that it was a bum who
shot the cop. Had he been dead on that day, he would not have been able to write Jose."
 Is the testimony of Jose hearsay? Now let us go back to our formula.
 Do we have an out-of-court statement? Yes, we do. The friend's statement is out-of-court and you know the reason for this. We have our
first element, an out-of-court statement. To be hearsay, we must have the second.
 Do we have it this time? Let us repeat what counsel says his purpose is. He says, "To prove Your Honor that Jose's friend was alive on
August 5...etc." There you are. We do not have the second part of our formula. We do not have the second part because we are told
the statement is offered to prove that "Jose's friend was alive on August 5." It is not to prove that it was "a street bum who shot the
cop." The declaration of Juan is not therefore, to prove the truth of the matter asserted in the statement of Juan. We have the first
component but we don't have the second. What then would the judge rule? Clearly it would be, "Objection, overruled. Not hearsay!"
  Will Jose's testimony then be admissible? It would be admissible as long as the fact that Jose's friend was alive on August 5 is relevant to
an issue of the case. If the evidence is not allowed, it is not because of the hearsay rule but because it did not meet the standards of
relevance.
Let us repeat the question of the judge: "Counsel, what is the purpose of Jose's testimony that his friend wrote him that 'it was a street bum who
shot the cop and not Jose's uncle?'" This time counsel emphatically declares: "To prove Your Honor, that it was not Jose's uncle who shot the cop
but a bum!"
o Should the judge sustain a hearsay objection? This time, the judge should sustain the objection. The formula is now complete. Jose's
testimony is hearsay. It is hearsay because the out-of-court statement of Jose's friend that "it was a street bum who shot the cop and not
Jose's uncle" is offered to prove the very matter asserted in the statement: that "it was a street bum who shot the cop... etc... etc...etc..."
The first response is different. It is not hearsay because it was not offered to prove the truth of the assertion in the letter of Jose's friend. It
was offered to prove a different purpose.

Implied from an out-of-court statement is the fact that the witness has no personal knowledge of the matter testified too. It is someone outside
the court and who at the same time is not in the stand who has personal knowledge of the facts. That someone outside the court cannot be
questioned. His perception cannot be tested. His capacity to remember what he perceived cannot be accurately determined. Neither can his
capacity to communicate his remembered perceptions. Why? Because he is not in court and if he is not in court he cannot be cross-
examined. If he cannot be cross-examined, who in his right mind is willing to take his words at their face value? Who can you find willing to believe
his statements repeated
by the witness inside the courtroom? Remember Sec. 36, Rule 130 of the Rules of Court? Let us have a piece of it once more:
"A witness can testify only to those facts which he knows of his personal knowledge..." And what do the rules say as to what " personal
knowledge" is? Those "which are derived from his own perception..."

Why must a witness testify only to matters of his personal knowledge? A: The witness' credibility, accuracy of perception and recollection, can be
tested before the court through cross-examination. Those of the out-of-court declarant cannot. The latter's statements are therefore, unreliable. In
the high fallutin terminology of the academe, his statements lack the "indicia" of trustworthiness. It is this lack of reliability which is the reason for the
time-honored rule excluding hearsay testimony.
If it is offered to prove the truth of the statement, it is hearsay because it is offered to prove a hearsay purpose. Where a statement is not
offered for the truth of the matter asserted but is offered for an evidentiary purpose not dependent on the truth of the matters asserted, the
statement is non-hearsay.

HEARSAY EVIDENCE OPINION EVIDENCE

one that is not based on one's personal perception but based on the based on the personal knowledge or personal conclusions of the
knowledge of others to prove the truth of the matter asserted in an out- witness based on his skill, training or experience (Sec. 49, Rule 130,
of-court declaration (Sec. 36, Rule 130, Rules of Court) Rules of Court)

Examples of Non-hearsay Evidence

1. Where a statement is not offered for the truth of the contents of the conversation, but only to show that it was made, then the statement is
not hearsay. For example, a statement that is offered to show its patent falsity, so as to suggest the defendant's consciousness of guilt, is
not hearsay" (29 Am Jur 2d, 708).
2. other kinds of out-of-court statements that have been considered admissible because they were offered for a non-hearsay purpose:
a. statements relating to the state of mind of the declarant
b. statements relating to the state of mind of the listener
Words uttered in this regard merely constitute circumstantial evidence of an assertion and where the making of the statement is the
significant fact because it either gives rise to the inference about the declarant's state of mind or indicates its effect on the hearer. The
truth
of the statement is not in issue here. A statement by an out-of-court declarant may be offered not for the veracity of what is asserted
but merely to impeach the declarant's credibility.
A threat against a witness may be offered in evidence to show its impact on the witness and where the reasonableness of a person's
conduct is an issue, an out-of-court declaration may be offered to explain the person's reactions to the declaration (US v. Canieso, 470
F2d 1224 2d Cir. 1972; US v. Monroe, 943 F2d 1007, 9th Cir. 1991; US v. Baird, 29 F.3d 647, D.C. Cir 1994; cited in Charles Wagner,
FRE Case Law Commentary, 533-535).

Out-of-Court Statements Offered to Prove Mental State of the Declarant

As long as an out-of-court statement is offered for a non-hearsay purpose (a purpose other than to prove the truth of the matter
asserted), the statement is ADMISSIBLE if it has relevance to the matter in issue.
EXAMPLE:
 state of mind of the speaker or the declarant – the significance of the statement is not whether its assertion is true or false. Its
significance rests on the mere fact that it was uttered and by extension, on the conclusion which may reasonably be drawn from the
statement.
ILLUSTRATION:
In the probate of a testator’s will, some heirs who felt aggrieved by the dispositions in the will have raised the issue of the
testator's sanity. The will was purportedly executed on January 3 of the previous year. A witness for the oppositor is on the stand to
testify on the testator's alleged incapacity.
Q: How long have you known the testator?
A: For twenty (20) years by the time he died, Sir.
Q: How did you come to know him?
A: I was her nurse for twenty (20) years, Sir.
Q: On January 3, 2008, what did you hear the testator say, if any?
Objection, Your Honor! Hearsay! (Opposing counsel objects.)
Court: Not so fast, Panero. Witness may answer!
A: In the morning of January 3, he said, "I am Joseph Stalin." At around twelve high noon, he told me, "I am Theodore
Roosevelt." Right after the subscribing witnesses to his will left, he brushed me aside and said. "They had no idea I am
Saddam Hussein." When I served him supper he said, "Those fools! They didn't realize they just met Alexander the Great!"
Court: Objection, overruled!
Are the statements of the testator offered to prove the truth of the assertions therein? Certainly not. Obviously, the out-of-court
statements of the testator are not offered to prove that he is Joseph Stalin, Theodore Roosevelt, Saddam Hussein and Alexander the
Great rolled into one. They are offered for a non-hearsay purpose i.e., to prove by inference through the statement that the
testator on the day the will was executed, was incapacitated by reason of a mental condition. From experience we know that a
person's state of mind may be revealed by his actions or by what he says. The declarant's words or conduct constitute circumstantial
evidence of his
state of mind. In this case, it is not the truth or falsity of the conduct or words which matter. It is the fact that the statement was made
which is relevant. A testimony by the hearer that such statement was made is not hearsay. Why? The hearer will be testifying as to
his personal knowledge that the statement was uttered. He may therefore, be cross examined as to what he heard, when it was
 heard, how it was said, and the circumstances surrounding the making of the statement. The hearer's veracity and sincerity can well
be tested under a cross-examination because he will not be testifying as to the veracity of the assertion or as to its falsity which are
totally irrrelevant.
Out-of-Court Statement Offered to Prove Its Effect on the Listener/Hearer
An out-of-court statement may be offered to show the state of mind of the hearer or listener.
ILLUSTRATION:
In a prosecution for arbitrary detention, the accused is a police officer who chanced upon the crime scene and arrested the
complaining witness after he was fingered by a witness to the felony. He is on the stand to testify on the circumstances surrounding the
arrest. Let us see whether or not a hearsay objection can be sustained.
Q: Sir, what were you doing on such and such place?
A: I was on a routine patrol.
Q: What happened on such and such date on such and such time?
A- I saw people milling around something in the corner of ABC and XYZ Sts.
Q: What if any did you do?
A: I got out of my patrol car to see what was happening.
Q: What if any did you see?
A: I saw a man lying face downward on the side of the street with blood all over his back.
Q: What happened next?
A: A man whispered to me. "This happened barely two minutes ago and that guy sitting there pretending to be an onlooker is
the culprit."
Counsel: Objection, Your Honor, Hearsay!
Court: Objection overruled!

The testimony, "This happened barely two minutes ago and that guy sitting there pretending to be an onlooker is the culprit," is
not offered to prove that (a) the incident occurred two minutes ago, or (b) that the guy sitting and pretending to be an onlooker was the
culprit. The testimony is to prove that an arrest was made as a consequence of the out of court statement's effect on the hearer. This
effect was the reason for the arrest. This effect is relevant to justify the apprehension of the complaining witness. "Words offered to prove
the effect on the hearer are admissible when they are offered to show their effect on one whose conduct is at issue" (State v. Hernandez
[App] 170 Arizona 301; 29 Am Jur 29, 710). This is an important category of non-hearsay evidence worth remembering. The statement
offered in evidence is not hearsay because it is the hearer's reaction to the statement which is sought to be proved. It is his reaction to
the statement that is relevant, not the truth of the assertion in the statement. Since the hearer is present in court, he can be cross-
examined on whether or not he heard the statement accurately, believed the statement to be true, and whether or not he really acted in
conformity with his belief.

Out-of-Court Statement Offered to Prove that the Statement was Made

Where the statement is not offered for the truth of the matter asserted, but to merely show what was said, the statement is not hearsay
(Ries Biological, Inc. v. The Bank of Santa Fe, 780 F .2d 888 [10th Cir 1986]).
ILLUSTRATION:
In a prosecution for oral defamation, the following exchange took place between the prosecutor and his witness:
Prosecutor: What did you hear the accused say?
Defense: Objection, Your Honor. Question calls for hearsay testimony!
Court: Not so fast! Witness may answer.
Witness : The accused said while pointing to the victim: "You are a thief! You stole my money! You are a liar!"
Court: Objection overruled!

Is the testimony of the witness excludable as hearsay? It is not. The testimony is not hearsay. It is not offered to prove that the
complaining witness is a "thief" or a "liar." It is offered to prove the tenor of the statement, i.e., that the statement was made. What is significant is
the making of the statement. Beyond the mere fact that the words were uttered, the statement proves nothing as to its averments because the out-
of-court declaration's relevance is independent of the truth of its assertions. In a prosecution for defamation, an important issue is WHETHER OR
NOT THE WORDS CONSTITUTING THE OFFENSE WERE UTTERED. There is no other inference required. Once there is proof that the words
were uttered then the legal consequences of the mere making of the statement will follow. The only question remaining which is a subject matter
best for another story is: Does the accused have a defense?

Independently Relevant Statements – refers to a category of a non-hearsay out-of-court statement together with the previously discussed
categories
– They are called as such because the statements are admissible for some relevant reason independent of their truth or falsity.
– They are relevant because the statement itself is either the very fact in issue or a circumstantial evidence of a fact in issue.
– Offering evidence to show the state of mind of the declarant or the reaction of the hearer involve statements which are circumstantial
evidences of the state of mind of the declarant or the state of mind of the listener as an effect of the statement uttered out-of-court.
– Some authorities call independent relevant statements as the 'operative acts' which give rise to legal consequences (29 Am Jur 2d, 709).
– An independently relevant statement is not hearsay and is therefore not banned under the hearsay evidence rule.
– UNIFYING ELEMENT: Their relevance to the matter in issue is not dependent on their truth or falsity. Its relevance lies in its tenor or the
fact that it was said.
– The ban on hearsay evidence does not cover independently relevant statements, i.e., those statements which are relevant
independently of whether they are true or not. If it is relevant, it is admissible as an independent relevant statement (a non-hearsay
declaration).
2 Classes of independently relevant statements [Estrada v. Desierto (356 SCRA. 108)]:
(a) those statements which are the very facts in issue; and
(b) those statements which are circumstantial evidence of the fact in issue – The second class includes the following:
 statements of a person showing his state of mind, that is, his mental condition, knowledge, belief, intention, ill-will and other
emotions;
 statements of a person which shows his physical condition, as illness and the like;
 statements of a person from which an inference may be made as to the state of mind of another, that is knowledge, belief,
motive, good or bad faith, etc. of the latter;
 statements which may identify the date, place and person in question; and
 statements showing the lack of credibility of a witness.

– ILLUSTRATION:
a. A witness may be asked questions concerning what the accused told him that other persons were involved in the conspiracy if the
purpose of the testimony is not to prove that such persons were really involved in the conspiracy but only to prove what the
accused had mentioned (People v. Cusi, Jr, 14 SCRA 944).
 b. Newspaper accounts of an incident are hearsay if offered to prove the truth of the accounts but are not hearsay if offered for a purpose
other than the truth of the matter asserted. The newspaper account is admissible only to prove that there was a publication and
merely the tenor of the news, but not its truth (Feria v. Court of Appeals, 325 SCRA 525).
c. Let us say, a prosecution witness in the stand testified: "I saw with my own eyes when the accused drew a pistol from his waist and aimed
it at the victim. I was there when he fired. I was there when the victim fell to the ground. I was there when blood flowed out of his blasted
chest. I was there when the victim gasped his last breath! I was there. I saw it all!" The witness, whom we shall call Mr. A, is testifying not
on the basis of what another person saw. He is testifying on facts which he knows of his own knowledge just what the Rules of Court say
he should. This is not hearsay and an objection on that ground will have to be overruled.

However, without the witness knowing it, someone he didn't expect to be in the audience heard everything he said. That
someone couldn't believe what he just heard straight from the witness's mouth! Let us call him Mr. B. Tugging at the shirt of the guy next
to him he exclaimed, "I know the witness. He is a homegrown kid like me. We grew up together in the same block. What he just told the
court was not what he told me a day after the killing!"
Our next scene is of Mr. B now sitting on the witness stand. In the previous cross-examination of Mr. A, he denied ever talking
to Mr. B who takes his oath and after all those predicates for the questions were laid, come the questions from the defense counsel:
"Did you hear what Mr. A tell this court about what he said he saw on the day the victim was killed?"
"Yes, sir," comes the confident reply.
"What can you say about his testimony?"
"The things he said in court were not what he told me about the incident!"
"What did he tell you?"
"Objection. Hearsay," barks the prosecutor.

If the judge is awake, and judges are always awake even if sometimes you think they aren't, he will ask before ruling on the
objection, "What is the purpose of your question, counsel?"

"To show that Mr. A's testimony is inconsistent with what he told Mr. B one day after the incident, Your Honor."
"Objection overruled. Witness may answer."
"Sir he told me: I did not see with my own eyes when the accused drew a pistol from his waist and aimed it at the victim. I was
not there when he fired. I was not there when the victim fell to the ground. I was not there... I was not there. I was somewhere."

Of course, Mr. A's supposedly eyewitness account is important in the lawsuit. But there is something more important than the
credibility of the testimony. It is the credibility of the witness himself. From the moment the witness takes his oath on the stand,
even before he utters his first words on the stand, his credibility is automatically put in issue. That the credibility of a witness is always an
issue in every litigation is a given. It is basic. Of course, a testimony that attacks the credibility of the witness is equally relevant especially
when that witness claims to have personal knowledge of the facts testified to. Prior out-of-court declarations of that same witness
inconsistent with his testimony on the stand are admissible, not to prove the truth of what was said. In our example, the
testimony of Mr. B on the declarations of Mr. A was not introduced to prove that Mr. A did not indeed witness the killing of the victim by the
accused. Whether or not the statement of Mr. A is true is irrelevant. What is important is that the statements were uttered. Because
they were uttered, Mr. A had made inconsistent statements and because he did, it is not now easy to believe Mr. A's testimony. He may
have witnessed the incident. He may have not. We do not know. We know one thing for sure: Mr. A's credibility has been impaired. In
the language of the rules, Mr. A has been "impeached."

Exceptions to the Hearsay Rule [Rules of Court]:

(a) Dying declarations (Sec. 37, Rule 130)
(b) Declaration against interest (Sec. 38, Rule 130)
(c) Act or declaration against pedigree (Sec. 39, Rule 130)
(d) Family reputation or tradition regarding pedigree (Sec. 40, Rule 130)
(e) Common reputation (Sec. 41, Rule 130)
(f) Part of the res gestae (Sec. 42, Rule 130)
(g) Entries in the course of business (Sec. 43, Rule 130)
(h) Entries in official records (Sec. 44, Rule 130)
(i) Commercial lists and the like (Sec. 45, Rule 130)
(j) Learned treatises (Sec. 46, Rule 130
(k) Testimony or deposition at a former trial (Sec. 47, Rule 130).
It is not correct to assert that the exceptions to the hearsay rule are not hearsay. They are hearsay evidence but they are deemed
admissible hearsay for certain reasons.
Declaration against interest, act or declaration about pedigree, entries in the course of business, entries in official records, commercial
lists, and learned treatises are examples of hearsay evidence where there exist a diminished risk of untrustworthiness because the motivation to lie
is less.

Dying Declarations (ante mortem statement) – is evidence of the highest order and is entitled to utmost credence since no person aware of his
impending death would make a careless and false accusation
– It is thus admissible, to provide the identity of the accused and the deceased, to show the cause of death of the deceased, and the
circumstances under which the assault was made upon him.
– Reasons for its Admissibility:
a. Necessity – because the declarant's death renders it impossible his taking the witness stand, and it often happens that there is no
other equally satisfactory proof of the crime; allowing it, therefore, prevents a failure of justice.
b. Trustworthiness – because the declaration is made in extremity, when the party is at the point of death and when every motive to
falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth
– Available now in both criminal and civil cases
– Any objection to a dying declaration may be premised on any of the requisites for its admissibility embodied in Sec. 37 of Rule 130. Thus,
counsel who wants a dying declaration excluded must have to deal with the primary question of whether or not the evidentiary
foundations for the introduction of a dying declaration where met. EXAMPLE:
a. "Objection, Your Honor. There is no foundation for the declaration."
b. "Objection, no basis."
c. "Objection, predicate not laid."
The objecting counsel must however, specify the reason for the lack of a foundation requirement. Thus, counsel would say,
"Objection. No foundation. Declarant was not under consciousness of an impending death.”
– When the prosecutor attempts to introduce a dying declaration, the very first question that the defense should ask is whether or not
the declarant, at the time the statement was made, knew or believed that he was going to die. When? Not next week. Not next month.
Not next year. But very soon or now! This constitutes the objector's first line of defense. Sec. 37 of Rule 130 has an eye-catching name
for this knowledge or belief. It calls it, "consciousness of an impending death." The kind of death of which the 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 have been spoken in the hush of its impending presence." 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 (People v. Silang Cruz, 53 Phil. 636; People v. Chan Lin Watt, 50 Phil. 182).
– That knowledge that death is at hand need not come from the statements of the declarant and that it may be deduced from the
surrounding circumstances may be demonstrated by a simple hypothetical.
– If the declarant's statement is made under consciousness of an impending death, a subsequent belief in recovery before his actual
death does not bar admissibility of his statement (People v. Black, 1979, 96 CA3d 846,158 CR 449).
– The circumstance that he thereafter recovered sufficiently to engender the belief that he was going to live, does not render the declaration
inadmissible, where death in fact resulted from the same injury (People v. Lara, 54 Phil. 96).
– There is nothing in the rules which prohibits the admission of a dying declaration that is favorable to the accused. A dying declaration
which avers that the firearm that injured the declarant was not discharged on purpose but only accidentally, is admissible to prove the
innocence of the accused (U.S. v. Clemente, 22 Phil. 277).
– Elements of a Dying Declaration:
(1) That the declaration is one made by a dying person;
(2) That the declaration was made by said dying person under a consciousness of his imminent death;
(3) That the declaration refers to the cause and circumstances surrounding the death of the declarant and not of anyone else;
(4) That the declaration is offered in a case where the declarant's death is the subject of inquiry (People v. Matito, 423 SCRA 617;
Geraldo v. People, G.R. No. 173608, November 20, 2008).
(5) The declarant is competent as a witness had he survived (People v. Cerilla, 539 SCRA 251; Geraldo v. People, G.R. No. 173608,
November 20, 2008).
(6) The declarant should have died.
Impliedly therefore, the death of the declarant, although always neglected to be mentioned, should be an element of a dying declaration.
If the declarant survives, his declaration may be admissible as part of the res gestae.

Bar 1985
Fallen by a bullet upon being fired at, Santos before expiring told Romero, a passerby who came to his rescue, "I was shot by Pablo, our neighbor."
May Romero's testimony on what was told him by Santos be offered and admitted in evidence in the separate civil action for damages brought by
the heirs against Pablo Cruz? Discuss.
Suggested answer:
The statement is admissible. A dying declaration, as in the facts in the case at bar, may be offered in a civil case provided that the cause and
circumstances of the death of the declarant are the subjects of inquiry.
Note: in 1985, when the question was asked, a dying declaration cannot be offered in a civil case. However, since the statement was made after a
startling occurrence, the same could be admitted under a different rule, i.e. as part of the res gestae.

Rationale for the Admissibility of a Dying Declaration

Remember that the central element of a dying declaration is the declarant's consciousness of an impending DEATH. It has been ruled
that as a general rule, when a person is at the point of death, every motive to falsehood is silenced, and the mind is induced by the most powerful
consideration to speak the truth, and therefore, the statements under such circumstances deserve weight (People v. Bacunawa, 356 SCRA 482).
No person who knows of his impending death would make a careless or false accusation. A dying declaration is entitled to the highest respect
(People v. Lamasan, 403 SCRA 243). Accordingly, it is evidence of the highest order and is entitled to utmost credence since no person aware of his
impending
death would make a careless and false accusation. It is thus, admissible to provide the identity of the accused and the deceased, to show the cause
of death of the deceased, and the circumstances under which the assault was caused upon him (People v. Cerilla, 539 SCRA 251).

Assailing a Dying Declaration

Although jurisprudentially considered as evidence of the highest order, it is submitted that the admissibility of a dying declaration, like
any admissible evidence, does not create a conclusive presumption of credibility of the admitted declaration. Like any other evidence, the
declaration may be attacked in the same manner as one would do to a testimony in open court. The declarant himself may be impeached through
the normal methods provided for under the rules. For instance, the objector may show that prior to the admitted declaration, the declarant had
previously made a statement inconsistent with his supposedly 'dying declaration.'
When the declarant for example, stated that he was attacked while he was lying on the bed but on another occasion declared that he was
attacked while lying on the bench, a disturbing conflict exists between the two statements specially when the alleged dying declarations are not
in accordance with the actual physical facts (People v. Bingaan, 48 Phil. 926).
The objecting counsel may also demonstrate that the declarant has no personal knowledge as to the identity of the assailant.
Hence, a declarant's statement that another person told him who hacked him in the back with a bolo would not qualify for the dying declaration
exception. It would not qualify because the statement is plain and simple hearsay.
It may also be pointed out that the declarant would not have been a competent witness even if he had survived. Competence is
affected where the declarant had no opportunity to see the assailant.
The declaration must identify the assailant; otherwise it loses its significance (People v. Ador, 432 SCRA 1; Geraldo v. People, G.R.
No. 173608, November 20, 2008).

Ways by which the Credibility of the Declaration and the declarant may be assailed [a matter of logic and not necessarily of law]:
1. Counsel may, for example, demonstrate that the declarant at the time of his declaration was in an irrational state because he was under
the influence of large doses of sedatives administered in the hospital.
2. Where the objector succeeds in showing that there are incontrovertible facts that tend to prove that the declarant could not have been
influenced by the desire to tell the truth, such as when his words show that his motive was vengeance or revenge, the declaration loses
weight.
3. Courts have to apply to dying declarations the same rules applied in testing the credibility of testimony of a witness in court. If the
declarant is incompetent under the rules if he were to appear in court and in person, he would also be incompetent as a dying declarant.
Thus, if a court would adjudge him incompetent because of his insanity if he were alive, there is no reason to consider him sane as a
dying declarant. Thus, if a court would adjudge him incompetent because of his insanity if he were alive, there is no reason to consider
him sane as a dying declarant.

Res Gestae – means “things done”; was originally used by the courts in the other side of the world in the early 1800's to create hearsay exceptions
whenever it was difficult to justify the admission of a piece of hearsay evidence at a time when the hearsay theory was far from being a developed
concept in the law of evidence.
EXAMPLE:
Suppose, a guy casually strolling in a park was suddenly clubbed by a man from behind. The hapless guy's head was split open by the
blow. He died almost instantly. He didn't have the chance to speak. An elderly lady, the witness to the event, let out a high-pitched shriek and while
pointing at a man in a white shirt, screamed, "He did it... he did it... he hit him!" Let us assume that that elderly lady is nowhere to be found but
someone heard her utter those words, her statement may nevertheless be admissible under the res gestae doctrine as a description of the event
itself speaking through the words of the lady.
Parts of the Res Gestae:
 Loosely used, it was then common practice to designate a part of an event as res gestae. This part of the event could be the utterances
of a person in connection with an event such utterance being the evidence of facts to which they refer. Used in this context, res gestae is said to
have reference to events speaking by themselves through the instinctive words and acts of participants , rather than the words and acts of
participants when narrating the events. The rationale behind the concept is that it is the event that speaks for itself through the spontaneous
words or instinctive words or conduct of the witness and not the witness speaking for and about the event.
The use of the term has fallen out of favor and acts formerly called parts of the res gestae are now designated by specific names.
EXAMPLE: 1. The Federal Rules of Evidence – recognizes as exceptions to the hearsay rule in Rule 803 thereof, certain evidentiary rules
like 'excited utterances,' 'present sense impression,' 'statements of then existing mental or emotional physical condition,' and 'statements
made for purposes of medical diagnosis or treatment.'
2. The Evidence Code of the State of California – makes no mention either of the term, and uses instead, phrases like 'spontaneous
statements' and 'contemporaneous statements' (Sees. 1240-1241).
Res Gestae Under the Rules of Court [Sec. 42, Rule 130 of the Rules of Court] – limited to two matters:
1. Spontaneous Statements (spontaneous exclamations or excited utterances) – the res gestae is the startling event or occurrence and
the statement is a part of that res gestae.; it must have the following characteristics:
(a) that there is a startling event or occurrence taking place;
(b) that while the event is taking place or immediately prior to or subsequent thereto, a statement has been made;
(c) the statements were made before the declarant had the time to contrive or devise a falsehood (Talidano v. Falcom Maritime &
Allied Services, Inc., ibid.). – the statement is a REFLEX ACTION rather than a deliberate act, instinctive rather than deliberate.
(d) that the statement relates to the circumstances of the startling event or occurrence (Sec. 42, Rule 130, Rules of Court), or that the
statements must concern the occurrence in question and its immediate attending circumstances (Talidano v. Falcom Maritime &
Allied Services, Inc., supra). When all these conditions are met, we have a spontaneous statement constituting an exception to the rule
barring hearsay statements. Even if the declarant is unavailable and thus, cannot be cross-examined, the evidence may be received in
evidence.

 Our earlier example of the elderly lady who screamed while pointing at the man who clubbed the guy in the park from behind,
illustrates a spontaneous statement clearly well. First, the clubbing of the guy from behind by the culprit would obviously qualify
as a startling event or occurrence. Second, a statement was made immediately before, during or immediately subsequent to
the startling event or occurrence. In fact, the lady made a screaming statement at the time the guy was being clubbed. Third,
the statement made must refer to the circumstances of the event. The lady's cry as she pointed to the culprit fits this element
squarely..
 The statement alone without the event will not qualify for admission, because it is the circumstances surrounding the making of
the statement which makes said statement admissible.
 The proponent of the evidence must sustain the burden of proving the preliminary facts that would support the foundational
elements for the admissibility of the alleged spontaneous statement. It is the duty of counsel to subject each foundational
element to a very rigid scrutiny.

A. Determine first whether the event is a startling one. – One initial point which counsel needs to consider is whether or not
the event or occurrence is indeed a startling one. Since the declarant is supposed to have made a statement under the
influence of the occurrence, the event must be of such a nature as to cause an excited reaction in an average individual. If
the event in itself 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.
B. If it is accepted by the court as a startling event after raising it as an issue, determine if the excited utterance was made
immediately before or while the startling event was taking place.
C. What if the court however, rules the statement to have been made while under the influence of the startling event? What if
after the occurrence, the evidence show the declarant to be obviously still in a state of excitement and perhaps, shock? –
The fight would no longer be on the ground of admissibility of the declaration.
Answer: The matter of credibility! The court of course knows, as everyone does, that one does not have to be a
psychiatrist or a psychologist to know that perceptions, observations and statements are clouded by strong emotions.
Argue that there is a reason to distrust a statement made under emotional stress.
D. Let us say that the court ruled that there was a startling occurrence or event, for instance, a car collision. The court ruled
that the statement was made simultaneously with the event and such statement was made spontaneously. The declarant
made the statement at that precise moment when the accident happened. She was very excited and evidently under the
spell of the event. What then? Is the statement now admissible as an exception to the hearsay rule?
Answer: NOT YET.
Why? The statement is not yet admissible because we still do not know the tenor and the content of the
statement! Not every statement made under the influence of the startling event is admissible even if it be spontaneous.
The statement must describe the event perceived.
Suppose the declarant was said to have uttered when the collision occurred; "My Lord, that one looks like
my son's car!" The statement is not a description of the event. If it is not, it does not qualify as part of the res gestae. If
it does not, it is not admissible as exception to the hearsay rule. Sec. 42 of Rule 130 requires that the statement be with
respect to the circumstances of the startling occurrence.
 Bar 2005
Dencio barged into the house of Marcela, tied her to a chair and robbed her of assorted pieces of jewelry and money. Dencio
then brought Candida, Marcela's maid, to a bedroom where he raped her. Marcela could hear Candida crying and leading:
"Huwag! Maawa ka sa akin!" After raping Candida, Dencio fled from the house with the loot. Candida then untied Marcela and
rushed to the police station about a kilometer away and told Police Officer Roberto Maawa that Dencio had barged into the
house of Marcela, tied the latter to a chair and robbed her of jewelry and money. Candida also related to the police officer that
despite her pleas, Dencio had raped her. The policeman noticed that Candida was hysterical and on the verge of collapse.
Dencio was charged with robbery with rape. During the trial, Candida can no longer be located.
(a) If the prosecution presents Police Officer Roberto Maawa to testify on what Candida had told him, would such
testimony of the policeman be hearsay?
(b) xxx .
Suggested answer:
(a) The testimony would be hearsay if offered to prove the truth of the statement of Candida, but an admissible hearsay
as an exception to the hearsay rule. Under the Rules of Court, 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 (Sec. 42, Rule 130, Rules of Court). The statements made by Candida to the police officer fall within the
res gestae rule.
If the statement of Candida is offered merely to prove the tenor of the statement, i.e., what Candida told the Police
Officer without regard to whether the statement is true or not, it may be considered as an independently relevant statement and
thus, not hearsay.
(b) xx x
 2. Verbal Acts – the res gestae are the statements “accompanying the equivocal act material to the issue, and giving it a legal significance
[Sec. 42 of Rule 130]" (Talidano v. Falcom Maritime & Allied Services, Inc., G.R. No. 172031, July 14, 2008); REQUISITES:
(a) the principal act to be characterized must be equivocal;
(b) the equivocal act must be material to the issue;
(c) the statement must accompany the equivocal act; and
(d) the statement gives a legal significance to the equivocal act (Talidano v. Falcom Maritime & Allied Services, Inc., G.R. No.
172031, July 14, 2008).
 Materiality is necessary for relevance.

Entries in the Course of Business (Business Records Rule)

 The exception is commonly encountered in breach of contract suits and suits for collection of a sum of money.
 The necessity for the admissibility of such evidence arises from the absence of the person who has personal knowledge of the facts. He
is absent because:
1. he is dead,
2. outside of the jurisdiction of the court, or
3. is unable to testify
 ELEMENTS of this exception [Sec. 43 of Rule 130]:
(a) entries were made at, or near the time of the transactions referred to;
(b) such entries were made in the regular course of business;
(c) the person making the entries was in a position to know the facts stated in the entries;
(d) the person making the entries did so in his professional capacity, or in the performance of duty and in the regular course of business;
and
(e) the person making the entry is now dead or unable to testify (Northwest Airlines, Inc. v. Chiong, G.R. No. 155550, January 31, 2008).
 The Rules on Electronic Evidence also expressly exempt business records from the hearsay rule (Sec. 1, Rule 8, Rules on Electronic
Evidence).
 EXAMPLE:
The plaintiff, let us say, is Technics Corporation. The complaint alleges that it delivered one hundred (100) television sets to MS
Tronics Store, the defendant, and that the latter failed to pay for the sets delivered. Assume that the defendant filed an answer denying
the plaintiffs allegations. The plaintiff now wants to introduce a delivery receipt signed by the manager of the defendant acknowledging
the receipt of the sets delivered. The plaintiff also wants to introduce the company's accounting records prepared by a clerk who
personally knows of the fact of delivery. The witnesses are the delivery man and the clerk, all employees of the plaintiff. The witnesses
would be testifying on the basis of their first-hand knowledge of the events that transpired. Since their perception and memory of the
events may be tested by cross-examination, our fact situation would not require an exception to the hearsay rule. But if the delivery man
and the clerk are now dead and all that the plaintiff has is the delivery receipt and the accounting records showing defendant's debt, the
problem starts. This exception allows the presentation of the delivery receipt and accounting records even if the delivery man and
the clerk are no longer available to testify.
 It has been held that entries in the payroll, being entries in the ordinary course of business enjoy the presumption of regularity under
Sec. 43 of Rule 130 of the Rules of Court (Sapio v. Undaloc Construction, G.R. No. 155634, May 22, 2008).

Declarations Against Interest (of the person making the statement) – founded on necessity on account of the impossibility of obtaining other
evidence
from the same source, the declarant being unavailable in person to testify on the stand on account of death, absence from the
jurisdiction or serious illness (5 Wigmore on Evidence, Sec. 1456).
– This exception refers to a declaration made by a person who at the time his declaration is presented in evidence is already
dead or is unable to testify [e.g. a) being outside the territorial jurisdiction of the country and his exact whereabouts abroad
are unknown (If known, his deposition may be taken and the exception will not apply.); b) Serious physical or mental
impairments]. This exception will not apply where the declarant is available as a witness.
– It is necessary that the declarant knew that the statement was against his interest and which he would not have made
had it not been true.
– The declaration against interest made by the deceased, or by one unable to testify, is admissible even against the declarant's
successors in interest or even against third persons (Sec. 38, Rule 130, Rules of Court).
– If the declaration is favorable to the interest of the declaration, it is a mere self-serving statement and does not fall as an
exception to the hearsay rule.
– EXAMPLES:
1. A statement by the debtor before he died, that he owes the creditor a sum of money.
2. An oral acknowledgment by the principal that he received the money previously entrusted to his agent.

Declaration About Pedigree – To be admissible as an exception to the hearsay rule, it must be shown that:
(a) the declarant is dead, or unable to testify;
(b) that the declarant is related by birth or marriage to the person whose pedigree is in issue;
(c) the declaration was made before the controversy; and
(d) the relationship between the two persons is shown by evidence other than such act or declaration (Sec. 39, Rule 130, Rules of Court).
– The declaration about pedigree may be received in evidence if the relationship is shown by evidence other than the declaration
(Sec. 39, Rule 130, Rules of Court).
– EXAMPLE:
1. The declaration of Jose, already dead, PRIOR to his death and PRIOR to any controversy, that Juan is his illegitimate
son, is a declaration about pedigree.
2. A statement from a mother while living, that her daughters Maria and Petra were sired by the same father, is admissible.
PEDIGREE – includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the
names of the relatives. It also embraces facts of family history intimately connected with pedigree (Sec. 39, Rule 130, Rules of Court)

Family Reputation or Tradition Regarding Pedigree – this exception involves:

(a) a statement by a member of the family either by consanguinity or affinity;
(b) the statement is about the reputation or tradition of the family in respect to the pedigree of any member of the family; and
(c) the reputation or tradition is one existing previous to the controversy (Sec. 40, Rule 130, Rules of Court).
Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence
of pedigree aside from family tradition or reputation (Sec. 40, Rule 130, Rules of Court).

Common Reputation – is admissible in evidence where the reputation refers to a matter of public or general interest, or respecting marriage or
moral
character and said matter is more than thirty years old. The common reputation must likewise be one existing prior to the controversy.
This common reputation may, on the other hand, be established by monuments and inscriptions (Sec. 41, Rule 130, Rules of Court)
 – is hearsay like any other exception to the hearsay rule, but is admissible because of trustworthiness (Reg. v. Bedforshire,
4E.&B. 535, 82 E.C.L. 535, 542).
– While common reputation in the community may establish a matter of public or general interest, marriage or moral character, it
cannot establish pedigree. This is established by reputation in the family and not in the community (Sees. 40 and 41, Rule
130, Rules of Court).

Entries in Official Records – The entries are admissible in evidence if they are made in official records by a public officer in the Philippines or in the
performance of a legal duty. The entries are admissible as prima facie evidence of the facts stated in the entries (Sec. 44, Rule 130, Rules of Court).
– REQUISITES: [(Barcelon Roxas Security, Inc. v. Commisioner of Internal Revenue, G.R. No. 157064, August 7, 2006)]
(a) that the entry was made by a public officer, or by another person specially enjoined by law to do so;
(b) 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
(c) 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 x x x."
ILLUSTRATION:
In a case, petitioner denies receiving the assessment notice sent by respondent BIR. The respondent presented the BIR record book
where the name of the taxpayer, the kind of tax assessed, the registry receipt number and the date of mailing were noted. The BIR records
custodian, also testified that she made the entries therein. Respondent offered the entry in the BIR record book and the testimony of its record
custodian as entries in official records in accordance with Section 44, Rule 130 of the Rules of Court.

Commercial Lists and the Like – Certain commercial lists and reports of matters of interest to persons engaged in a particular occupation, are
admissible in evidence as exceptions to the hearsay rule, provided, they are made by persons engaged in that occupation and are generally used
and relied upon by them and those lists and reports are published (Sec. 45, Rule 130, Rules of Court).

Learned Treatises 395/571

Testimony or Deposition at a Former Proceeding [Section 47, Rule 130) – The testimony contemplated is one given in a former case or
proceeding, judicial or administrative, involving the same parties and subject matter.
– The testimony was given by one who is now deceased or unable to testify.
– Said testimony may be given in evidence against the adverse party provided the latter had the opportunity to cross-examine the witness
who gave the previous testimony (Sec. 47, Rule 130, Rules of Court; See also Samalio v. Court of Appeals, 454 SCRA 462, March 31,
2005).
– REQUISITES:
(a) the witness is dead or unable to testify;
(b) his testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those
representing the same interests;
(c) the former case involved the same subject as that in the present case, although on different causes of action;
(d) the issue testified to by the witness in the former trial is the same issue involved in the present case; and
(e) the adverse party had an opportunity to cross-examine the witness in the former case (Manliclic v. Calaunan, G.R. No. 150157,
January 25, 2007).

Exception to the Hearsay Rule Under the Rule on Examination of a Child Witness – REQUISITES:
(a) the proponent shall make known to the adverse party the intention to offer such statement and its particularsto provide him a fair
opportunity to object;
(b) if the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the
hearsay statement for cross-examination by the adverse party;
(c) when the child is unavailable (as when the child is deceased, suffers from physical infirmity, mental illness, loss of memory, or because
the child will be exposed to severe psychological injury), the fact of such circumstance must be proved by the proponent and the hearsay
testimony shall be admitted only if corroborated by other admissible evidence (Sec. 28, Rule on Examination of a Child Witness).
– The Court is allowed to admit videotape and audiotape in-depth or disclosure interviews as evidence, provided it is shown that:
(a) the child witness is unable to testify as defined in Sec 28(c) of the Rule On Examination of a Child Witness; and
(b) the interview was conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or
child protective services, in situations where child abuse is suspected, so as to determine whether child abuse occurred.
– Aside from the above requirements, the following foundational matters must be established:
(a) that the party offering the videotape or audiotape, must disclose the identity of the individuals present, and at all times, include their
images and voices;
(b) that the statements of the child were not made in response to a questioning calculated to lead the child to make a particular statement;
(c) that the videotape or audiotape or device is shown to be capable of recording the testimony;
(d) that the person operating the device was competent to operate it;
(e) the videotape or audiotape is authentic and correct; and
(f) that the recording has been duly preserved (Sec. 29, Rule on Examination of a Child Witness).