Evidence

Evidence SCANNER Normal JOJO 4 5 2002-01-14T03:25:00Z 2002-01-16T23:28:00Z 3 1034 5896 SC 49 11 7240 9.2720 120

III. MODES OF EXCLUDING INADMISSIBLE EVIDENCE

There are two ways of excluding inadmissible evidence. One is by objection and the other is by a motion to strike out.

A. Evidence is objected to at the time it is offered and not before:

1. Oral evidence is objected to after its express formal offer before the witness testifies. 17 When thereafter the witness is allowed to testify, objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent. 18

2. Documentary and object evidence are objected to upon their formal offer after the presentation of a party's testimonial evidence.

Failure to seasonably object to offered evidence amounts to a waiver of the grounds for objection. The rules of exclusion are not self-operating. They must be properly invoked.

The grounds for objection must be specified. 19 Grounds not raised are deemed waived. However, repetition of objection is unnecessary when a continuing objection is properly made . 20 Objection to the purpose for which evidence is offered is not proper.

B. A motion to strike out answer or testimony is proper in the following instances:

1. The witness answers prematurely . 21

2. The answer is incompetent, irrelevant or improper. 22

The incompetency referred to here is limited to the incompetency of the witness to answer the question posed; it does not extend to the general concept of incompetency of evidence for being excluded by law or the Rules.

3. The answer given is unresponsive.

4. The ground for objection was not apparent when the question was asked.

5. Uncompleted testimony – e.g., a witness who gave direct testimony becomes unavailable for cross-examination through no fault of the cross-examiner.

6. Unfulfilled condition in conditionally admitted testimony.

C. Objections and Ruling

Objections to evidence may be formal or substantive.

1. Formal objections are based on the defective form of the question asked. Examples:

(1) leading questions which suggest to the witness the answer desired. 23

a. If counsel finds difficulty in avoiding leading questions, the judge may suggest, to expedite questions, that counsel begin his questions with the proper interrogative pronouns, such as "who", "what", "where", "why", "how", etc.

b. Leading questions are allowed of a witness who cannot be reasonably expected to be led by the examining counsel, as (a) on cross-examinations; 24 (b) when the witness is unwilling or hostile, after it has been demonstrated that the witness had shown unjustified reluctance to testify or has an adverse interest or had misled the party into calling him to the witness stand, and in either case after having been declared by the court to be indeed unwilling or hostile; 25 or (c) when the witness is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association with is an adverse party. 26

c. Leading questions may also be asked when there is difficulty in getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is feeble minded, or a deaf-mute. 27

d. Leading questions may moreover be asked on preliminary matters, i.e., on facts not in controversy, and offered only as basis for more important testimony to follow. For example, " You are Mrs Maria Morales, wife of the plaintiff in this case? "

(2) misleading questions, which assume as true a fact not testified to by the witness ( "question has no basis"), or contrary to that which he has previously stated; 28

(3) double or multiple questions, which are two or more queries in one. For example, Q: "Did you see the defendant enter the plaintiff's house, and was the plaintiff there?"

(4) vague; ambiguous; indefinite or uncertain questions - not allowed because the witness cannot understand from the form of the question just what facts are sought to be elicited.

(5) repetitious questions; or those already answered. However, on cross-examination, the cross-examiner may ask a question already answered to test the credibility of the witness.

(6) argumentative questions, which challenge a witness' testimony by engaging him in an argument, e.g. , Q: "Isn't it a fact Mr Witness that nobody could possibly see all the circumstances you mentioned in a span of merely two seconds, and that either your observations are inaccurate or you are lying?"

2. Substantive objections are those based on the inadmissibility of the offered evidence, e.g.;

(1) irrelevant, immaterial

(2) best evidence rule

(3) parol evidence rule

(4) disqualification of witness

(5) privileged communication

(6) res inter alios acta

(7) hearsay

(8) opinion

(9) evidence illegally obtained

(10)private document not authenticated

The ruling by the court on an objection must be given immediately after an objection is made, unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situations presented by the ruling. 29 Thus, an objection to a question asked of a witness must be at once resolved by the court by either sustaining or overruling the objection. It would be incorrect for a judge to consider the objection "submitted" or "noted". Unless the objection is resolved, the examination of the witness could not be expected to continue since, in all likelihood, the next question would depend on how the objection is resolved. If the issue raised by the objection is a particularly difficult one, it would not be improper for the judge to perhaps declare a brief recess to enable him to quickly study the matter. But certainly, the resolution must be given before the trial resumes.

The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection, or one or some of them, must specify the ground or grounds relied upon. 30

Judges are advised to judiciously consider the validity of the grounds for objections and carefully rule on them. A ruling that all evidence formally offered are "admitted for whatever they may be worth" will not reflect well on the judge, as it implies a hasty and ill-considered resolution of the offer and the objections. Besides, the phrase "for whatever they may be worth" is improper since it refers to the weight or credibility of the evidence; the weight of the evidence shall be considered only after the evidence shall have been admitted. Another ruling that is ludicrous and even nonsensical is "Evidence admitted subject to the objections". This is a non-ruling.

In case of an honest doubt about the admissibility of evidence, it is better policy to rule in favor of its admission. An erroneous rejection of evidence will be unfair to the offeror since the judge cannot validly consider it even if after the trial, the judge realizes his mistake. On the other hand, if the judge had erred in admitting a piece of evidence, he may simply give it little or no weight when deciding the case.

17 Rules of Court, Rule 132, Sec. 35.

18 Ibid, Section 36 .

19 Ibid.

20 Rules of Court, Rule 132, Section 37 .

21 Rules of Court, Rule 132, Sec. 39.

22 Ibid.

23 Rules of Court, Rule 132, Sec 10.

24 Rules of Court, Rule 132, Sec 10.

25 Ibid, Secs. 10 and 12.

26 Ibid .

27 Ibid .

28 Rules of Court, Rule 132.

29 Rules of Court, Rule 132, Sec. 38.

30 Rules of Court, Rule 132, Sec. 38