rules on presentation of evidence

By Prof. Penny White

Federal Rules of Evidence

The Federal Rules of Evidence govern the introduction of evidence at civil and criminal trials in United States federal trial courts. The current rules were initially passed by Congress in 1975 after several years of drafting by the Supreme Court.  The rules are broken down into 11 articles:

• General Provisions
• Judicial Notice
• Presumptions in Civil Actions and Proceedings
• Relevancy and Its Limits
• Opinions and Expert Testimony
• Authentication and Identification
• Contents of Writings, Recordings and Photographs
• Miscellaneous Rules

This article will focus on Rule 901 — Authenticating or Identifying Evidence — and the judge’s role in the Federal Rules of Evidence.

Establish Evidentiary Foundations

Evidentiary foundations must be established before any type of evidence can be admitted. These predicates to admission apply regardless of whether the evidence is verbal or tangible, but for some types of evidence, the foundation is largely subsumed into the presentation of the evidence itself. For example, the foundation for verbal evidence is generally a requirement that the testifying witness have personal knowledge of the matter in question. This foundation is rarely established by asking the witness specifically whether he or she has personal knowledge. Rather, it is included in the witness’ testimony which discloses that the witness experienced the occurrence. But for all types of evidence, the evidentiary foundation requires authentication before other issues of admissibility are considered.

Tangible Items of Evidence

Scholars at common law recognized that authentication and identification of tangible items of evidence represented a “special aspect of relevancy.” McCormick §§179, 185; Morgan, Basic Problems of Evidence 378 (1962). Wigmore describes the need for authentication as “an inherent logical necessity.” 7 Wigmore §2129, p. 564. The authenticity requirement falls into the category of conditional relevancy – before the item of evidence becomes relevant and admissible, it must be established that the item is what the proponent claims.

Authentication of Tangible Items of Evidence

The basic codified standard for the authentication of tangible items of evidence is “evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed. R. Evid. 901. It is not necessary that the court find that the evidence is what the proponent claims, only that there is sufficient evidence from which the jury might ultimately do so. This is a low threshold standard. The laws of evidence set forth the general standard, followed by illustrations and a list of several types of self-authenticated documents. The proponent of any tangible or documentary evidence has an obligation, or burden of proof, to authenticate the evidence before requesting to admit or publish it to the fact- finder; if the opponent objects to its admissibility, based on any of a collection of rules, then the proponent must address that admissibility objection as well. Thus, all evidence must be both authenticated and admissible.

Determine the Presentation of Evidence

If both authentication and admissibility are established, then the court must determine how the evidence will best be presented to the trier of fact, bearing in mind that the court is obligated to exercise control over the presentation of evidence to accomplish an effective, fair, and efficient proceeding. Under Federal Rules 611, the court’s duty is to “exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

• Make those procedures effective for determining the truth
• Avoid wasting time
• Protect witnesses from harassment or undue embarrassment

Sometimes tangible evidence consists of fungible items that are not identifiable by sight. For tangible evidence that is not unique or distinctive, counsel must authenticate the item by establishing a chain of custody.

Establish a Chain of Custody

A chain of custody is, in essence, a consistent trail showing the path of the item from the time it was acquired until the moment it is presented into evidence. In establishing a chain of custody, each link in the chain should be sufficiently established. However, it is not required that the identity of tangible evidence be proven beyond all possibility of doubt. Most courts hold that “when the facts and circumstances that surround tangible evidence reasonably establish the identity and integrity of the evidence, the trial court should admit the item into evidence [but] the evidence should not be admitted, unless both identity and integrity can be demonstrated by other appropriate means.” See generally State v. Cannon, 254 S.W.3d 287, 296-97 (Tenn. 2008).

Additional Rules of Evidence Considerations for Tangible Evidence

For tangible evidence, in addition to authentication, the court must consider the following.

• Relevance rules
• The hearsay rules
• The original writing rules
• When appropriate, must balance the probative value of the tangible evidence against the dangers that its introduction may cause

The court in a jury trial must also consider what method of producing the evidence to a jury is most conducive to a fair and efficient fact-finding process.

Electronic Evidence

In order to admit electronic evidence, the same rules apply, but the content of electronic electronically stored information (ESI evidence) may implicate other rules such as the opinion rules and the personal knowledge rule. Most scholars and courts agree that the issues related to the authentication and admissibility of electronic evidence simply depend on an application of the existing evidence rules. Although technical challenges may arise, the rules are flexible enough in their approach to address this new kind of evidence.

Checklist for Authenticating Evidence in Court

The Federal Rules of Evidence apply regardless of whether the evidence is submitted in a civil case or criminal trial. To ensure that evidence is authentic and admissible, follow this five-point generic checklist for the authentication of tangible, documentary, or electronic evidence:

1. Is the evidence relevant?

Does it make a fact that is of consequence to the action more or less probable than it would be without the evidence?

2. Has the evidence been authenticated?

Has the proponent produce “evidence sufficient to support a finding that the electronic evidence is what the proponent claims?”

3. Is the evidence hearsay?

Is the evidence offered to prove the truth of what it asserts? If so, does it satisfy a hearsay exception? Are confrontation rights implicated?

4. Is the evidence a writing, recording, or photograph?

Is it offered to prove the content? If so, is it either the original or a duplicate (counterpart produced by the same impression as the original, or from the same matrix, etc.) unless genuine questions of authenticity or fairness exist?

5. Is the probative value of the evidence substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence?

Of course, there are many other tools that a judge may use to rule on tangible and electronic evidence, each with its own benefits and limitations.

Penny White is the Director of the Center for Advocacy and Elvin E. Overton Distinguished Professor of Law at the University of Tennessee College of Law. She teaches in several of NJC’s evidence courses including Fundamentals of Evidence, Advanced Evidence, and Criminal Evidence.

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Federal Rules of Evidence

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The Federal Rules of Evidence is a body of rules which governs evidence law in civil proceedings in United States federal courts . Rule 102 states that the purpose of the rules is to “administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.” Rule 104 places the focus of the rules to three main preliminary inquiries: whether a witness is qualified, a privilege exists, or evidence is admissible . Additionally, among many other topics, the rules govern judicial notice , relevancy , testimony , proving character , and hearsay . 

Throughout history and even today, evidence law has been greatly influenced by and central to the Anglo-American practice of utilizing juries to fact-find . John Langbein, in a Yale Law Journal article, Historical Foundations of the Law of Evidence: A View from the Ryder Sources , depicts Anglo-American law of evidence as driven “to protect against the shortcomings of trial by jury,” as “[j]urors are untrained in the law, they decide without giving reasons, they have no continuing responsibility for the consequences of their decisions, and their verdicts are quite difficult to review.” Given evidence law’s intertwined history with the ancient practice of trial by jury, most Anglo-American courts followed the common law of evidence until the adoption of the Federal Rules of Evidence. 

Federally, the First Congress provided minimal guidance on evidentiary rules to be used in federal courts, relying instead on the common law of the states. The Judiciary Act of 1789 required the federal courts follow state procedure law for actions in courts of law as they existed in 1789, and this largely included evidentiary rules. Constitutional amendments, such as the Sixth Amendment , also provided a degree of guidance for evidentiary law in federal courts. However, evidence law in federal courts remained an amalgamation of the varied state common law procedures through the 18th and 19th century. The Conformity Act of 1872 reinforced this, by requiring that “nothing herein contained shall alter the rules of evidence under the laws of the United States”—i.e. the state laws of evidence as they existed in 1789 (or at the time of admission to the union). 

Through the beginning of the 20 th century, federal courts still treated evidence law predominantly as a matter of common law. For example, Southwest Metals Co. v. Gomez , a 1925 Ninth Circuit case, cited legal encyclopedia and federal case law on whether hypothetical questions must be used in questioning experts after applying state law to privilege issues. 1938, however, provided impetus for federal uniformity in evidence law, as the U.S. Supreme Court promulgated the Federal Rules of Civil Procedure and England overhauled its evidence law in the Evidence Act of 1938 . Furthermore, the Rules Enabling Act of 1934 gave the U.S. Supreme Court the power to promulgate rules of evidence for civil proceedings in federal court, if it chose to do so. 

After years of commentators pushing for uniform federal evidence reform, the U.S. Supreme Court appointed a Special Committee on Evidence, which agreed in 1963 to draft a uniform set of rules for evidence law in federal civil proceedings. The Supreme Court approved the new evidentiary rules in 1972 , but awaited Congressional approval. Questions around government privilege and other evidentiary matters surrounding Watergate , however, in part delayed Congress’s approval of the uniform set of evidentiary rules, and Congress took an increased interest in the rules. Finally, in 1975, Congress, after considerable deliberation, approved the Federal Rules of Evidence in Pub. L. 93–595 .

The biggest reform that the new rules instituted was a uniform set of evidentiary rules for all federal civil proceedings. However, in addition to providing uniformity, the new federal rules also altered or abrogated many common law doctrines. One major provision was Rule 401 , which provides a standard for relevance. Another is Rule 403 , which gives judges discretion to exclude otherwise relevant evidence to avoid undue prejudice, confusion, or time wasting. Rule 803 substantially abrogated the common law exclusion of res gestae witness testimony. Additionally, since its initial adoption, some amendments have been added to the rules. For example, Rule 412 , adopted in 1978, provides evidentiary rules for proceedings on sex-offenses. Most recently, the Advisory Committee made many stylistic changes in 2011, for example by simplifying the language of Rule 401 . 

[Last updated in May of 2021 by the Wex Definitions Team ]

• THE LEGAL PROCESS
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10 Steps for Presenting Evidence in Court

When you go to court, you will give information (called “evidence”) to a judge who will decide your case. This evidence may include information you or someone else tells to the judge (“testimony”) as well as items like email and text messages, documents, photos, and objects (“exhibits”). If you don’t have an attorney, you will need to gather and present your evidence in the proper way. Courts have rules about evidence so that judges will make decisions based on good information, not gossip and guesswork.

Although the rules can be confusing, they are designed to protect your rights, and you can use them to help you plan for your court appearance. Even though courts work differently, this publication will introduce you to the nuts and bolts of presenting evidence at a hearing. As you read it, please consider the kind of help you might want as you prepare and present your case.

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ARTICLE V. PRIVILEGES

Rule 501. privilege in general.

The common law—as interpreted by United States courts in the light of reason and experience—governs a claim of privilege unless any of the following provides otherwise:

• the United States Constitution;

• a federal statute; or

• rules prescribed by the Supreme Court.

But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1933 ; amended Apr. 26, 2011, eff. Dec. 1, 2011.)

Notes of Committee on the Judiciary, House Report No. 93–650

Article V as submitted to Congress contained thirteen Rules. Nine of those Rules defined specific non-constitutional privileges which the federal courts must recognize (i.e. required reports, lawyer-client, psychotherapist-patient, husband-wife, communications to clergymen, political vote, trade secrets, secrets of state and other official information, and identity of informer). Another Rule provided that only those privileges set forth in Article V or in some other Act of Congress could be recognized by the federal courts. The three remaining Rules addressed collateral problems as to waiver of privilege by voluntary disclosure, privileged matter disclosed under compulsion or without opportunity to claim privilege, comment upon or inference from a claim of privilege, and jury instruction with regard thereto.

The Committee amended Article V to eliminate all of the Court's specific Rules on privileges. Instead, the Committee, through a single Rule, 501, left the law of privileges in its present state and further provided that privileges shall continue to be developed by the courts of the United States under a uniform standard applicable both in civil and criminal cases. That standard, derived from Rule 26 of the Federal Rules of Criminal Procedure, mandates the application of the principles of the common law as interpreted by the Courts of the United States in the light of reason and experience. The words "person, government, State, or political subdivision thereof" were added by the Committee to the lone term "witness" used in Rule 26 to make clear that, as under present law, not only witnesses may have privileges. The Committee also included in its amendment a proviso modeled after Rule 302 and similar to language added by the Committee to Rule 601 relating to the competency of witnesses. The proviso is designed to require the application of State privilege law in civil actions and proceedings governed by Erie R. Co. v. Tompkins , 304 U.S. 64 (1938), a result in accord with current federal court decisions. See Republic Gear Co. v. Borg-Warner Corp ., 381 F.2d 551, 555–556 n.2 (2nd Cir. 1967). The Committee deemed the proviso to be necessary in the light of the Advisory Committee's view (see its note to Court [proposed] Rule 501) that this result is not mandated under Erie.

The rationale underlying the proviso is that federal law should not supersede that of the States in substantive areas such as privilege absent a compelling reason. The Committee believes that in civil cases in the federal courts where an element of a claim or defense is not grounded upon a federal question, there is no federal interest strong enough to justify departure from State policy. In addition, the Committee considered that the Court's proposed Article V would have promoted forum shopping in some civil actions, depending upon differences in the privilege law applied as among the State and federal courts. The Committee's proviso, on the other hand, under which the federal courts are bound to apply the State's privilege law in actions founded upon a State-created right or defense removes the incentive to "shop".

Notes of Committee on the Judiciary, Senate Report No. 93–1277

Article V as submitted to Congress contained 13 rules. Nine of those rules defined specific nonconstitutional privileges which the Federal courts must recognize (i.e., required reports, lawyer-client, psychotherapist-patient, husband-wife, communications to clergymen, political vote, trade secrets, secrets of state and other official information, and identity of informer). Many of these rules contained controversial modifications or restrictions upon common law privileges. As noted supra, the House amended article V to eliminate all of the Court's specific rules on privileges. Through a single rule, 501, the House provided that privileges shall be governed by the principles of the common law as interpreted by the courts of the United States in the light of reason and experience (a standard derived from rule 26 of the Federal Rules of Criminal Procedure) except in the case of an element of a civil claim or defense as to which State law supplies the rule of decision, in which event state privilege law was to govern.

The committee agrees with the main thrust of the House amendment: that a federally developed common law based on modern reason and experience shall apply except where the State nature of the issues renders deference to State privilege law the wiser course, as in the usual diversity case. The committee understands that thrust of the House amendment to require that State privilege law be applied in "diversity" cases (actions on questions of State law between citizens of different States arising under 28 U.S.C. §1332). The language of the House amendment, however, goes beyond this in some respects, and falls short of it in others: State privilege law applies even in nondiversity. Federal question civil cases, where an issue governed by State substantive law is the object of the evidence (such issues do sometimes arise in such cases); and, in all instances where State privilege law is to be applied, e.g., on proof of a State issue in a diversity case, a close reading reveals that State privilege law is not to be applied unless the matter to be proved is an element of that state claim or defense, as distinguished from a step along the way in the proof of it.

The committee is concerned that the language used in the House amendment could be difficult to apply. It provides that "in civil actions * * * with respect to an element of a claim or defense as to which State law supplies the rule of decision," State law on privilege applies. The question of what is an element of a claim or defense is likely to engender considerable litigation. If the matter in question constitutes an element of a claim, State law supplies the privilege rule; whereas if it is a mere item of proof with respect to a claim, then, even though State law might supply the rule of decision, Federal law on the privilege would apply. Further, disputes will arise as to how the rule should be applied in an antitrust action or in a tax case where the Federal statute is silent as to a particular aspect of the substantive law in question, but Federal cases had incorporated State law by reference to State law. [For a discussion of reference to State substantive law, see note on Federal Incorporation by Reference of State Law, Hart & Wechsler, The Federal Courts and the Federal System, pp. 491–494 (2d ed. 1973).] Is a claim (or defense) based on such a reference a claim or defense as to which federal or State law supplies the rule of decision?

Another problem not entirely avoidable is the complexity or difficulty the rule introduces into the trial of a Federal case containing a combination of Federal and State claims and defenses, e.g. an action involving Federal antitrust and State unfair competition claims. Two different bodies of privilege law would need to be consulted. It may even develop that the same witness-testimony might be relevant on both counts and privileged as to one but not the other. [The problems with the House formulation are discussed in Rothstein, The Proposed Amendments to the Federal Rules of Evidence, 62 Georgetown University Law Journal 125 (1973) at notes 25, 26 and 70–74 and accompanying text.]

The formulation adopted by the House is pregnant with litigious mischief. The committee has, therefore, adopted what we believe will be a clearer and more practical guideline for determining when courts should respect State rules of privilege. Basically, it provides that in criminal and Federal question civil cases, federally evolved rules on privilege should apply since it is Federal policy which is being enforced. [It is also intended that the Federal law of privileges should be applied with respect to pendant State law claims when they arise in a Federal question case.] Conversely, in diversity cases where the litigation in question turns on a substantive question of State law, and is brought in the Federal courts because the parties reside in different States, the committee believes it is clear that State rules of privilege should apply unless the proof is directed at a claim or defense for which Federal law supplies the rule of decision (a situation which would not commonly arise.) [While such a situation might require use of two bodies of privilege law, federal and state, in the same case, nevertheless the occasions on which this would be required are considerably reduced as compared with the House version, and confined to situations where the Federal and State interests are such as to justify application of neither privilege law to the case as a whole. If the rule proposed here results in two conflicting bodies of privilege law applying to the same piece of evidence in the same case, it is contemplated that the rule favoring reception of the evidence should be applied. This policy is based on the present rule 43(a) of the Federal Rules of Civil Procedure which provides:

In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made.] It is intended that the State rules of privilege should apply equally in original diversity actions and diversity actions removed under 28 U.S.C. §1441(b).

Two other comments on the privilege rule should be made. The committee has received a considerable volume of correspondence from psychiatric organizations and psychiatrists concerning the deletion of rule 504 of the rule submitted by the Supreme Court. It should be clearly understood that, in approving this general rule as to privileges, the action of Congress should not be understood as disapproving any recognition of a psychiatrist-patient, or husband-wife, or any other of the enumerated privileges contained in the Supreme Court rules. Rather, our action should be understood as reflecting the view that the recognition of a privilege based on a confidential relationship and other privileges should be determined on a case-by-case basis.

Further, we would understand that the prohibition against spouses testifying against each other is considered a rule of privilege and covered by this rule and not by rule 601 of the competency of witnesses.

Notes of Conference Committee, House Report No. 93–1597

Rule 501 deals with the privilege of a witness not to testify. Both the House and Senate bills provide that federal privilege law applies in criminal cases. In civil actions and proceedings, the House bill provides that state privilege law applies "to an element of a claim or defense as to which State law supplies the rule of decision." The Senate bill provides that "in civil actions and proceedings arising under 28 U.S.C. §1332 or 28 U.S.C. §1335, or between citizens of different States and removed under 28 U.S.C. §1441(b) the privilege of a witness, person, government, State or political subdivision thereof is determined in accordance with State law, unless with respect to the particular claim or defense, Federal law supplies the rule of decision."

The wording of the House and Senate bills differs in the treatment of civil actions and proceedings. The rule in the House bill applies to evidence that relates to "an element of a claim or defense." If an item of proof tends to support or defeat a claim or defense, or an element of a claim or defense, and if state law supplies the rule of decision for that claim or defense, then state privilege law applies to that item of proof.

Under the provision in the House bill, therefore, state privilege law will usually apply in diversity cases. There may be diversity cases, however, where a claim or defense is based upon federal law. In such instances, Federal privilege law will apply to evidence relevant to the federal claim or defense. See Sola Electric Co. v. Jefferson Electric Co ., 317 U.S. 173 (1942).

In nondiversity jurisdiction civil cases, federal privilege law will generally apply. In those situations where a federal court adopts or incorporates state law to fill interstices or gaps in federal statutory phrases, the court generally will apply federal privilege law. As Justice Jackson has said:

A federal court sitting in a non-diversity case such as this does not sit as a local tribunal. In some cases it may see fit for special reasons to give the law of a particular state highly persuasive or even controlling effect, but in the last analysis its decision turns upon the law of the United States, not that of any state.

D'Oench, Duhme & Co. v. Federal Deposit Insurance Corp ., 315 U.S. 447, 471 (1942) (Jackson, J., concurring). When a federal court chooses to absorb state law, it is applying the state law as a matter of federal common law. Thus, state law does not supply the rule of decision (even though the federal court may apply a rule derived from state decisions), and state privilege law would not apply. See C. A. Wright, Federal Courts 251–252 (2d ed. 1970); Holmberg v. Armbrecht , 327 U.S. 392 (1946); DeSylva v. Ballentine , 351 U.S. 570, 581 (1956); 9 Wright & Miller, Federal Rules and Procedure §2408.

In civil actions and proceedings, where the rule of decision as to a claim or defense or as to an element of a claim or defense is supplied by state law, the House provision requires that state privilege law apply.

The Conference adopts the House provision.

Committee Notes on Rules—2011 Amendment

The language of Rule 501 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver

The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.

(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:

(1) the waiver is intentional;

(2) the disclosed and undisclosed communications or information concern the same subject matter; and

(3) they ought in fairness to be considered together.

(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:

(1) the disclosure is inadvertent;

(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and

(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).

(c) Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure:

(1) would not be a waiver under this rule if it had been made in a federal proceeding; or

(2) is not a waiver under the law of the state where the disclosure occurred.

(d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court—in which event the disclosure is also not a waiver in any other federal or state proceeding.

(e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.

(f) Controlling Effect of this Rule. Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision.

(g) Definitions. In this rule:

(1) "attorney-client privilege" means the protection that applicable law provides for confidential attorney-client communications; and

(2) "work-product protection" means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.

Pub. L. 110–322, §1(a), Sept. 19, 2008, 122 Stat. 3537 ; amended Apr. 26, 2011, eff. Dec. 1, 2011.)

Explanatory Note on Evidence Rule 502

The following explanatory note was prepared by the Judicial Conference Advisory Committee on Evidence Rules, revised Nov. 28, 2007:

This new rule has two major purposes:

1) It resolves some longstanding disputes in the courts about the effect of certain disclosures of communications or information protected by the attorney-client privilege or as work product—specifically those disputes involving inadvertent disclosure and subject matter waiver.

2) It responds to the widespread complaint that litigation costs necessary to protect against waiver of attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operate as a subject matter waiver of all protected communications or information. This concern is especially troubling in cases involving electronic discovery. See, e.g., Hopson v. City of Baltimore , 232 F.R.D. 228, 244 (D.Md. 2005) (electronic discovery may encompass "millions of documents" and to insist upon "record-by-record pre-production privilege review, on pain of subject matter waiver, would impose upon parties costs of production that bear no proportionality to what is at stake in the litigation").

The rule seeks to provide a predictable, uniform set of standards under which parties can determine the consequences of a disclosure of a communication or information covered by the attorney-client privilege or work-product protection. Parties to litigation need to know, for example, that if they exchange privileged information pursuant to a confidentiality order, the court's order will be enforceable. Moreover, if a federal court's confidentiality order is not enforceable in a state court then the burdensome costs of privilege review and retention are unlikely to be reduced.

The rule makes no attempt to alter federal or state law on whether a communication or information is protected under the attorney-client privilege or work-product immunity as an initial matter. Moreover, while establishing some exceptions to waiver, the rule does not purport to supplant applicable waiver doctrine generally.

The rule governs only certain waivers by disclosure. Other common-law waiver doctrines may result in a finding of waiver even where there is no disclosure of privileged information or work product. See, e.g., Nguyen v. Excel Corp. , 197 F.3d 200 (5th Cir. 1999) (reliance on an advice of counsel defense waives the privilege with respect to attorney-client communications pertinent to that defense); Ryers v. Burleson , 100 F.R.D. 436 (D.D.C. 1983) (allegation of lawyer malpractice constituted a waiver of confidential communications under the circumstances). The rule is not intended to displace or modify federal common law concerning waiver of privilege or work product where no disclosure has been made.

Subdivision (a) . The rule provides that a voluntary disclosure in a federal proceeding or to a federal office or agency, if a waiver, generally results in a waiver only of the communication or information disclosed; a subject matter waiver (of either privilege or work product) is reserved for those unusual situations in which fairness requires a further disclosure of related, protected information, in order to prevent a selective and misleading presentation of evidence to the disadvantage of the adversary. See, e.g., In re United Mine Workers of America Employee Benefit Plans Litig. , 159 F.R.D. 307, 312 (D.D.C. 1994) (waiver of work product limited to materials actually disclosed, because the party did not deliberately disclose documents in an attempt to gain a tactical advantage). Thus, subject matter waiver is limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner. It follows that an inadvertent disclosure of protected information can never result in a subject matter waiver. See Rule 502(b). The rule rejects the result in In re Sealed Case , 877 F.2d 976 (D.C.Cir. 1989), which held that inadvertent disclosure of documents during discovery automatically constituted a subject matter waiver.

The language concerning subject matter waiver—"ought in fairness"—is taken from Rule 106, because the animating principle is the same. Under both Rules, a party that makes a selective, misleading presentation that is unfair to the adversary opens itself to a more complete and accurate presentation.

To assure protection and predictability, the rule provides that if a disclosure is made at the federal level, the federal rule on subject matter waiver governs subsequent state court determinations on the scope of the waiver by that disclosure.

Subdivision (b) . Courts are in conflict over whether an inadvertent disclosure of a communication or information protected as privileged or work product constitutes a waiver. A few courts find that a disclosure must be intentional to be a waiver. Most courts find a waiver only if the disclosing party acted carelessly in disclosing the communication or information and failed to request its return in a timely manner. And a few courts hold that any inadvertent disclosure of a communication or information protected under the attorney-client privilege or as work product constitutes a waiver without regard to the protections taken to avoid such a disclosure. See generally Hopson v. City of Baltimore , 232 F.R.D. 228 (D.Md. 2005), for a discussion of this case law.

The rule opts for the middle ground: inadvertent disclosure of protected communications or information in connection with a federal proceeding or to a federal office or agency does not constitute a waiver if the holder took reasonable steps to prevent disclosure and also promptly took reasonable steps to rectify the error. This position is in accord with the majority view on whether inadvertent disclosure is a waiver.

Cases such as Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co. , 104 F.R.D. 103, 105 (S.D.N.Y. 1985) and Hartford Fire Ins. Co. v. Garvey , 109 F.R.D. 323, 332 (N.D.Cal. 1985), set out a multifactor test for determining whether inadvertent disclosure is a waiver. The stated factors (none of which is dispositive) are the reasonableness of precautions taken, the time taken to rectify the error, the scope of discovery, the extent of disclosure and the overriding issue of fairness. The rule does not explicitly codify that test, because it is really a set of non-determinative guidelines that vary from case to case. The rule is flexible enough to accommodate any of those listed factors. Other considerations bearing on the reasonableness of a producing party's efforts include the number of documents to be reviewed and the time constraints for production. Depending on the circumstances, a party that uses advanced analytical software applications and linguistic tools in screening for privilege and work product may be found to have taken "reasonable steps" to prevent inadvertent disclosure. The implementation of an efficient system of records management before litigation may also be relevant.

The rule does not require the producing party to engage in a post-production review to determine whether any protected communication or information has been produced by mistake. But the rule does require the producing party to follow up on any obvious indications that a protected communication or information has been produced inadvertently.

The rule applies to inadvertent disclosures made to a federal office or agency, including but not limited to an office or agency that is acting in the course of its regulatory, investigative or enforcement authority. The consequences of waiver, and the concomitant costs of pre-production privilege review, can be as great with respect to disclosures to offices and agencies as they are in litigation.

Subdivision (c) . Difficult questions can arise when 1) a disclosure of a communication or information protected by the attorney-client privilege or as work product is made in a state proceeding, 2) the communication or information is offered in a subsequent federal proceeding on the ground that the disclosure waived the privilege or protection, and 3) the state and federal laws are in conflict on the question of waiver. The Committee determined that the proper solution for the federal court is to apply the law that is most protective of privilege and work product. If the state law is more protective (such as where the state law is that an inadvertent disclosure can never be a waiver), the holder of the privilege or protection may well have relied on that law when making the disclosure in the state proceeding. Moreover, applying a more restrictive federal law of waiver could impair the state objective of preserving the privilege or work-product protection for disclosures made in state proceedings. On the other hand, if the federal law is more protective, applying the state law of waiver to determine admissibility in federal court is likely to undermine the federal objective of limiting the costs of production.

The rule does not address the enforceability of a state court confidentiality order in a federal proceeding, as that question is covered both by statutory law and principles of federalism and comity. See 28 U.S.C. §1738 (providing that state judicial proceedings "shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken"). See also Tucker v. Ohtsu Tire & Rubber Co. , 191 F.R.D. 495, 499 (D.Md. 2000) (noting that a federal court considering the enforceability of a state confidentiality order is "constrained by principles of comity, courtesy, and . . . federalism"). Thus, a state court order finding no waiver in connection with a disclosure made in a state court proceeding is enforceable under existing law in subsequent federal proceedings.

Subdivision (d) . Confidentiality orders are becoming increasingly important in limiting the costs of privilege review and retention, especially in cases involving electronic discovery. But the utility of a confidentiality order in reducing discovery costs is substantially diminished if it provides no protection outside the particular litigation in which the order is entered. Parties are unlikely to be able to reduce the costs of pre-production review for privilege and work product if the consequence of disclosure is that the communications or information could be used by non-parties to the litigation.

There is some dispute on whether a confidentiality order entered in one case is enforceable in other proceedings. See generally Hopson v. City of Baltimore , 232 F.R.D. 228 (D.Md. 2005), for a discussion of this case law. The rule provides that when a confidentiality order governing the consequences of disclosure in that case is entered in a federal proceeding, its terms are enforceable against non-parties in any federal or state proceeding. For example, the court order may provide for return of documents without waiver irrespective of the care taken by the disclosing party; the rule contemplates enforcement of "claw-back" and "quick peek" arrangements as a way to avoid the excessive costs of pre-production review for privilege and work product. See Zubulake v. UBS Warburg LLC , 216 F.R.D. 280, 290 (S.D.N.Y. 2003) (noting that parties may enter into "so-called 'claw-back' agreements that allow the parties to forego privilege review altogether in favor of an agreement to return inadvertently produced privilege documents"). The rule provides a party with a predictable protection from a court order—predictability that is needed to allow the party to plan in advance to limit the prohibitive costs of privilege and work product review and retention.

Under the rule, a confidentiality order is enforceable whether or not it memorializes an agreement among the parties to the litigation. Party agreement should not be a condition of enforceability of a federal court's order.

Under subdivision (d), a federal court may order that disclosure of privileged or protected information "in connection with" a federal proceeding does not result in waiver. But subdivision (d) does not allow the federal court to enter an order determining the waiver effects of a separate disclosure of the same information in other proceedings, state or federal. If a disclosure has been made in a state proceeding (and is not the subject of a state-court order on waiver), then subdivision (d) is inapplicable. Subdivision (c) would govern the federal court's determination whether the state-court disclosure waived the privilege or protection in the federal proceeding.

Subdivision (e) . Subdivision (e) codifies the well-established proposition that parties can enter an agreement to limit the effect of waiver by disclosure between or among them. Of course such an agreement can bind only the parties to the agreement. The rule makes clear that if parties want protection against non-parties from a finding of waiver by disclosure, the agreement must be made part of a court order.

Subdivision (f) . The protections against waiver provided by Rule 502 must be applicable when protected communications or information disclosed in federal proceedings are subsequently offered in state proceedings. Otherwise the holders of protected communications and information, and their lawyers, could not rely on the protections provided by the Rule, and the goal of limiting costs in discovery would be substantially undermined. Rule 502(f) is intended to resolve any potential tension between the provisions of Rule 502 that apply to state proceedings and the possible limitations on the applicability of the Federal Rules of Evidence otherwise provided by Rules 101 and 1101.

The rule is intended to apply in all federal court proceedings, including court-annexed and court-ordered arbitrations, without regard to any possible limitations of Rules 101 and 1101. This provision is not intended to raise an inference about the applicability of any other rule of evidence in arbitration proceedings more generally.

The costs of discovery can be equally high for state and federal causes of action, and the rule seeks to limit those costs in all federal proceedings, regardless of whether the claim arises under state or federal law. Accordingly, the rule applies to state law causes of action brought in federal court.

Subdivision (g) . The rule's coverage is limited to attorney-client privilege and work product. The operation of waiver by disclosure, as applied to other evidentiary privileges, remains a question of federal common law. Nor does the rule purport to apply to the Fifth Amendment privilege against compelled self-incrimination.

The definition of work product "materials" is intended to include both tangible and intangible information. See In re Cendant Corp. Sec. Litig. , 343 F.3d 658, 662 (3d Cir. 2003) ("work product protection extends to both tangible and intangible work product").

Pub. L. 110–322, Sept. 19, 2008, 122 Stat. 3537 ), the Judicial Conference agreed to augment its note to the new rule with an addendum that contained a "Statement of Congressional Intent Regarding Rule 502 of the Federal Rules of Evidence." The Congressional statement can be found on pages H7818–H7819 of the Congressional Record, vol. 154 (September 8, 2008).]

Rule 502 has been amended by changing the initial letter of a few words from uppercase to lowercase as part of the restyling of the Evidence Rules to make style and terminology consistent throughout the rules. There is no intent to change any result in any ruling on evidence admissibility.

References in Text

The Federal Rules of Civil Procedure, referred to in subd. (b)(3), are set out in this Appendix.

Effective Date

Pub. L. 110–322, §1(c), Sept. 19, 2008, 122 Stat. 3538 , provided that: "The amendments made by this Act [enacting this rule] shall apply in all proceedings commenced after the date of enactment of this Act [Sept. 19, 2008] and, insofar as is just and practicable, in all proceedings pending on such date of enactment."

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RULE 132 Rules of Court - PRESENTATION OF EVIDENCE

Presentation of evidence.

I. INTRODUCTION.

      1. Rule 132 governs the manner by which Testimonial and Documentary evidences are to be presented in Court.

      2. Principles  in the presentation of evidence by the parties:

a). A case is won or lost depending upon how effective was the presentation of evidence, particularly as to what evidence were presented and how they were presented

b). Parties should be allowed a certain latitude in the presentation of their evidence otherwise they might be so hampered that the ends of justice may eventually be defeated or appear to be defeated. The court should not limit the evidence to be presented.

c). The parties should be allowed to maintain their own way or style of presenting evidence when these can be done without injury to the speedy disposition of the case and to the best interest  of the administration of justice

d) The court should liberally receive all evidence offered in the trial to be able to render its decision with all the possibly relevant proof in the record and to assure the appellate court to have a good judgment and to obviate remanding the case for re-trial or reception of evidence

Section 1. Provides the manner of presenting testimonial evidence to be as follows:

By presenting the witness personally in open court

a). The witness must appear in person so that the court and the opponent may observe him and hear his testimony

b). His personal presence cannot be substituted by the submission of written statements or audio testimony

c) There is also no secret testimony and it must always be in the presence of the adverse party, except when the presentation is allowed to be ex parte, or testimony through interrogatories or depositions in advance of trial before a hearing officer but upon prior approval of the court and with proper notice to the adverse party

d). CHILD WITNESSES: the witness may testify inside a room but the child must be visible and can be heard through the medium of  facilities appropriate for the purpose such as a mirror 

QUESTION:  May the witness testify wearing masks to preserve his identity? 

To be examined under oath or affirmation

a). To answer questions as may be asked by the proponent, the opponent and by the court

(i). Oath: an outward pledge by the witness that his testimony is made under an immediate sense of responsibility to a Supreme Being. An appeal is made to the almighty that he will tell the truth.

(ii.) Affirmation: a solemn and formal declaration that the witness will be truthful

iii). The purpose of an oath or affirmation are : (i) to affect the conscience of the witness and compel him to speak the truth and (ii) to lay him open to punishment for perjury. But it is not essential that he knows what or how he will punished. 

iv). If the opponent believes the witness is not aware of his obligation and responsibility to tell the truth and consequences of telling a lie, the party may ask for  leave to conduct a VOIRE DIRE examination ( PP. vs. Alma Bisda, July 17, 2003)

v). Effect of lack of oath: If the opponent fails to object then the testimony may be given weight as the party would be estopped or, the party may move to disallow the witness from testifying, or move to strike the testimony after he found the lack of oath. The proponent however may ask that the witness be placed under oath. . .  

The form of testimony must be :

a). Oral answers to questions unless (i) the question calls for a different form of answer such as by bodily movements or demonstrable actions, (ii) or the witness is a deaf mute (iii) in case of a child witness

b) Not in a narrative (i) in order to prevent the witness from testifying and narrating facts which are irrelevant and thus he will testify straight to the point in issue, as well as (ii) to give the opponent an opportunity to raise an objection. 

Sec. 2.  The Proceedings must be recorded.

Courts of the Philippines are courts of record. Anything not recorded is deemed not to have transpired or taken-up and will not be considered in the resolution of the case. The matter to be recorded include:

a). Questions by the proponent, opponent and the court, which are propounded to the witness

b). The answers of the witness to the questions

c). Manifestations, arguments, and statements of counsel

d). Statements of the court to the counsel

e). Instructions or statements of the court to the court personnel

f). Demonstrable actions, movements, gestures or observations asked to be described and recorded

g). Observations during the conduct of ocular inspections 

Matters not recorded:

Off-the-records statements

Statements which were ordered or requested to be stricken from the record such as those which are improper, irrelevant or objectionable. Example: hearsay direct testimony 

Sec. 3.  Rights and Obligations of Witnesses

The obligation of a witness is to answers all questions which are asked of him. He cannot choose which questions to answer and to answering others.

The witness however has the right to be protected against tactics from the opponent which are intended to “brow beat, badger, insult, intimidate, or harass him”.

He has the right not to be detained longer that is necessary.

He may refuse to answer the following questions:

a). Those which are not pertinent to the issue

b). Those which are self-incriminatory except in the following cases:

(i) where the accused is testifying as a witness in his own behalf, as to questions  relating only to the offense upon which  he is testifying

(ii) where the witness was granted immunity  from prosecution  as when he is under the Witness Protection Program or was discharged to be used a s a state witness, or he is a government witness in Anti-Graft Cases.

c). Those which are self-degrading, unless it is to discredit the witness by impeaching his moral character

EXAMINATION OF A WITNESS

A. INTRODUCTION: Meaning of terms:

1. “Examination” – to find out facts from the witness or to test his memory, truthfulness or credibility by directing him to answer appropriate questions.  

2. Proponent - the party who owns or who called the witness to testify in his favor.     Opponent- the party against whom the witness was called.

3. Friendly Witness- one who is expected to give testimony favorable to the party who called for him. Hostile Witness, one whose testimony is not favorable to the cause of the party who called him as a witness. Party witness and accused-witness refer to the plaintiff, defendant or the accused, testifying as witness for themselves, as opposed to ordinary witnesses

B. ORDER OF EXAMINATION

Direct examination by the proponent

Cross-examination by the opponent

Re-direct examination by the proponent

Re-cross examination by the opponent

C. ORDER OF PRESENTATION OF EVIDENCE

Presentation of Evidence in Chief by the Plaintiff

Presentation of Evidence in Chief by the Defendant

Presentation of Rebuttal Evidence by the Plaintiff

Presentation of Sur rebuttal Evidence by the Defendant

Section 5. Direct Examination. Direct examination is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue.

A. Procedural Requirement

Offer of Testimony- the proponent shall state the substance of the intended testimony of the witness (  an outline of the major points)  and the purpose of said testimony ( what the proponent intends to prove by said testimony)

a). Importance of the Offer- (i) The direct examination may be objected to by the opponent (ii) Matters not included in the offer may not be allowed to be testified on upon proper objection and (iii) to shorten the proceedings as the opponent may admit or stipulate on the matters to be testified on.

In cases under the Rules on Summary Procedure, the sworn statement of the witness must have been submitted to the court before hand

B. Importance of the Direct Examination

This is the only opportunity for the proponent to elicit from the witness all the facts which are important and favorable to him. The witness should be considered as a sponge heavy with facts. By the time the direct examination is over, all favorable facts should have been squeezed from the witness. The examination must be clear, forceful, comprehensive, and must efficiently present the facts of the case.

Effective Direct Examination

a). KEEP IT SIMPLE. Avoid these two pitfalls (i) too little time on critical points and (ii) too much time on unimportant points

 b). ORGANIZE LOGICALLY. Determine the key points and organize them in a logical order. If possible resort to a chronological presentation of testimony.

c). INTRODUCE THE WITNESS AND DEVELOP HIS BACKGROUND

d). USE PRELIMINARY QUESTIONS WHICH ARE INTRODUCTORY, TRANSITION OR ORIENTING QUESTIONS

e). ELICIT SCENE DESCRIPTION

f). ELICIT GENERAL FLOWING DESCRIPTION. Let the witness paint a picture. Avoid excessive detail.

g). USE PACE IN DESCRIBING ACTION. Control the speed of the examination by eliciting testimony in small segments at the most advantageous rate. SLOW DOWN THE ACTION.

h). USE SIMPLE LANGUAGE. Choose simple words and phrases. Word choice affects answers. Avoid jargons, idioms and technical words. WHAT MATTERS AND WHAT WILL BE REMEMBERED IS NOT HOW BEAUTIFUL AND IMPRESSIVE THE LAWYER PHRASED HIS QUESTIONS BUT WHAT THE WITNESS NARRATED.

i). HAVE THE WITNESS EXPLAIN.

j). USE NONLEADING OPEN-ENDED QUESTIONS

k). USE EXHIBITS TO HIGHLIGH AND SUMMARIZE

l). PRACTICE WITH THE WITNESS.

Sec. 6. Cross Examination.

A. Concept: The examination of the witness by the opponent after the direct examination.

1.  An essential part of the right to procedural due process i.e. the right of a party to confront witnesses against him face-to-face. The essence however is not actual cross examination but that a party be given the opportunity to cross examine. Hence the consequences are as follows:

a). If the opponent was never given the opportunity to cross examine a witness, the direct testimony may, on motion of the opponent,  be stricken off as hearsay.

b). All assertions of facts not based on the personal knowledge of the witness may also be stricken off as hearsay since the source cannot be subjected to the opportunity of cross-examination

2. :Limitations:

a). The right may however be waived expressly

b). It may be lost through the fault or negligence of the opponent.

c). After a witness has been cross-examined and discharged, further cross-examination is no longer a right but must  be addressed to the sound discretion of the court

d). The Court may limit the cross-examination if its needlessly protracted, or is being conducted in a manner which is unfair to the witness or is inconsistent with the decorum of the court,  as when it degenerates into a shouting match with  the witness

3. Effect of the Loss or non-completion of the cross examination

a). If the loss, in whole or in part, was due to the fault of the adverse party, the testimony of the witness is to be taken into consideration

b). If the cross-examination cannot be done or completed due to causes attributable to the party offering the witness, the testimony is rendered incompetent

c). If the loss or –non-completion was due to the death or unavailability of the witness then that part of the testimony which was subjected to cross-examination remains admissible.

4. Character of Cross Examination: It is both an Art and a Science

a). It is an Art because it requires consummate skill which is acquired and developed. There is no standard method as it is highly personalized, subjective and be adaptive to who the witness is and to the subject of the cross examination. The length, style of questioning or approach to a witness requires intuition and understanding of human nature; of the habits, weaknesses, bias and prejudices of people; their reactions to situations, their perception of matters, and such other factors that vary  according to circumstances of time, place, people and occasions.

It requires the ability to think quickly, read quickly and to know when to quit. The lawyer’s antennae must ever be tuned in to the witness: his character, personality; mannerism, and all traits which will give a favorable clue; to the adverse counsel and to the Court.     

b). Should a party cross examine or not depends on a full understanding of what to expect. The following must be considered before a party attempts to cross-examine:

i). Whether the witness has hurt the case or the impact of his testimony on the case

ii). Whether the witness is important, as for example an eye witness, or a party witness

iii). Whether the testimony is credible

iv). The risks that the party undertakes

2. It is a science. It requires a thorough preparation and mastery of certain rules/jurisprudence on procedure in the presentation of evidence.

C. Importance and Purpose of Cross Examination

Cross examination is both a weapon to destroy or weaken the testimony of the opponent’s witness and a tool to build up or strengthen a party’s case. The conduct of cross-examination must always be directed towards achieving a specific purpose or purposes.

Constructive Cross-Examination, where the purposes are: (a) to amplify or expand the story of the witness so as to place the facts in a different light which is favorable to the party. Note that the witness of the opponent seldom  volunteer facts favorable to the cross-examiner, hence the manner of questioning should be “insinuating”, and (b) To obtain favorable or establish additional facts favorable to the cross-examining party.

Destructive Cross-Examination The purposes are: (a) to discredit the testimony of the witness by showing its absurdity, or that it is unbelievable or contrary to the evidence (b) To discredit the witness by showing his bias, interest, lapse of or selective memory, incorrect or incomplete observation of event, and similar situations.

D. Scope of Cross Examination

1. Under section 6 the witness may be examined: (a) As to any matter stated in the direct examination (b) or any matter connected therewith (c) as to the accuracy and truthfulness and freedom of the witness from interest or bias, or the reverse and (d) upon all important facts bearing upon the issue.

2. The English Rule is followed in the Philippines: the cross examination is not confined to matters subject of the direct examination but extends to other maters, even if not inquired in the direct examination but are material to the issues. This is distinguished from the American Rule which holds that the scope of the cross-examination is confined to the facts and circumstances brought out, or connected with, matters stated in the direct examination

D.  Questioning by the Court:

1. The Court may ask questions : 1.  To clarify itself on certain points 2. To call the attention of counsel to points at issue that are overlooked and 3.To direct counsel to questions on matters to elicit facts and clarify ambiguous answers

2. However, the questioning by the court should not be confrontational, probing and insinuating. It should not be partisan and not over extensive. The court is not to assume the role of an advocate or prosecutor.

BASIC RULES ON CROSS EXAMINATION

1. PREPARE. Know what the witness has testified on and its relation to the case and how it affects your own evidence

2. KNOW YOUR OBJECTIVE. What are the points in the testimony of the witness which are critical and are these points to be brought out and emphasized

3. OBSERVE PACING AND PATIENCE . Do not rush the witness and avoid being  over eager in bringing out an important point.

4. LEAD THE WITNESS. State the facts and let the witness ratify. Know how to lead. Use variation in the phraseology of the questions.

5. HAVE A STYLE AND ADAPT IT TO THE OCCASION. Be true to yourself and develop an approach or style suited to your personality and character. Be able to vary your style and know when is it effective to use either a booming or soft voice; to move around or to stay put; to be conversational or confrontational or tough and confident..

6. KNOW WHEN TO QUIT. Stop when (1) the witness has been discredited or made a monumental concession. There is no need for an over kill. or when the witness is killing the case or the counsel.

7. KNOW WHAT MATERIALS TO TAKE TO CONFRONT THE WITNESS. Have them be ready and easily accessible.

8. KNOW THE JUDGE. Are you making an impact or are you boring, antagonizing or confusing the Judge?  

9. KNOW THE RULES OF EVIDENCE

ADDITIONAL PRACTICAL TIPS

1. BE BRIEF. Confine to the strongest points.

2. SHORT QUESTIONS. Use plain words and avoid fancy words or elaborate syntax.

3. NEVER ASK A QUESTION to which you do not already  know the answer.

4. LISTEN TO THE WITNESS. Tune in if he was contradicted by another witness or prior testimony; is the testimony contrary to human experience or completely inconsistent with nature.  

5. DO NOT QUARREL WITH THE WITNESS.

6. DO NOT PERMIT THE WITNESS TO EXPLAIN

7. DO NOT REPEAT HIS TESTIMONY ON DIRECT.

8. AVOID QUESTIONS TOO MANY

9. SAVE THE EXPLANATION FOR THE MEMORANDUM. Questions should not be explanations of your position.

Sec. 7. Redirect Examination by the proponent

A. Purpose and Scope:

To afford the party calling the witness to explain or amplify the testimony given on cross-examination; to explain apparent contradictions, or inconsistencies, and to rehabilitate the testimony.

The scope is confined to matters taken up in the cross-examination, not those outside, which may be objected to on the ground that it is improper for redirect.

But, new matter may be inquired into provide the prior approval of the court was obtained and the testimony on the new matter must be subject to cross-examination by the opponent.   

Sec. 8. Re-cross examination by the opponent.

  A  This is confined to matters subject of the re-direct examination.

Sec. 9. Recalling Witnesses.

A. On Motion By a party: This is not a right but the recall must be addressed to the discretion of the court and  the recall must be on justifiable grounds. 

B.  By the Court: If there be matter it wishes to clarify

Sec. 10. Leading and Misleading Questions.

A. Introduction. The examination of a witness is by asking questions the answers to which will bring out facts from the witnesses. However a lawyer is subject to certain rules such as to what questions he is allowed to ask, how they are to be phrased or worded so that facts known only to the witness through his own perception are revealed, or so that facts which are suppressed or forgotten may be forced out from the witness.

       Some of these limitations consist of the prohibition on leading and misleading  questions.   

B. Leading Questions. Section 10 defines it as a “A question which suggest to the witness the answer which the examining party desires”. It is also known as “Suggestive Question”.

1. Witnesses are to give data spontaneously from there own memory, according to their own perception and interpretation. The role of the lawyer is simply to ask questions which will help the witness recall events. The question should be framed in such a manner that the lawyer does not in any way suggest or influence the answer to be given, otherwise the fact or answer becomes merely the product of the suggestion, and not what the witness personally knows.

2. If the witness is asked simply to confirm or deny, then in effect it is the lawyer who is supplying the facts through the mouth of the witness who is reduced to being merely the echo and mouthpiece of the lawyer.

3. Test : The form or phraseology and the contents of the question in that whether it contains a statement of a fact which the witness is asked to affirm or agree to. In such case the witness contributes no substantial data. The lawyer is coaxing. 

          The tone, inflection, mannerism or body language of counsel, may also indicate if the counsel is leading his witness.  

C. General Rule On Direct:  The witness being a friendly witness and having been called by the proponent, he is naturally expected to be sympathetic to the cause of the proponent. Thus there is great danger that he would just confirm any and all facts suggested to him by the proponent. Hence leading questions are not allowed. 

    The following instances are the exceptions when leading questions are allowed to be asked during direct:

On preliminary matters

a. those pertaining to the personal circumstances of the witness and which are asked at the start of the cross-examination

b. those which are intended to bring the witness directly to the point in issue; they are referred to as “orienting, introductory or transitory questions”

When there is difficulty in getting direct and intelligible answers from the  witness who by reason of the any of the following:” is immature; aged and infirm; in bad physical condition; ignorant of, or unaccustomed to, court proceedings; inexperienced; unsophisticated; feebleminded; confused and agitated; terrified; timid  or embarrassed while on the  stand; lacking in comprehension of questions or slow to understand; deaf and dumb; or unable to speak or understand the English language or only imperfectly familiar therewith” ( PP. vs. Dela Cruz, July 11, 2002)

is suffering from some mental deficiency, or where  the intelligence of the witnesses is impaired, thereby making necessary the making of  suggestions:

For example: witnesses who are ignorant, feeble minded deaf-mutes, minors or uneducated

In case of unwilling or hostile witnesses: they are uncooperative and will not readily supply the facts desired by the examiner. The approach to these witnesses is to conduct a direct examination as if it were a cross-examination

a. unwilling witnesses include (i) those who have to be compelled to testify by the coercive processes of the court (ii) or those who, at the time of their presentation at the witness stand, become evasive, reluctant or unfriendly

b. hostile-may refer to (i) a witness who manifest so much hostility and prejudice during the direct examination that the party who called him is allowed to cross-examine, i.e to treat him as if he had been called by the opposite party or (ii) one who surprises the party and unexpectedly turns against him

    In either case, the party calling the witness must present proof of either adverse interest on the part of the witness, his unjustified reluctance, or of his misleading the party into calling him a witness, and on the basis of which the court shall declare the witness to be a hostile witness. Thereafter leading questions are asked.

In case the witness is the adverse party, or representative or officer of a juridical entity which is the adverse party. Said witnesses is expected to resist any attempt to obtain favorable data, hence the direct examination is in the nature of a cross-examination and the most effective manner of forcing favorable data, or of destroying his credibility, would be through leading questions

When the witness is not voluntarily offered but is required by law to be presented by the proponent, as in the case of subscribing witnesses to a will.

When the witness lacks the power of recollection a leading question is allowed in order to refresh the memory. 

To identify persons or things.

In case of an expert witness as to his opinion.

D. Leading and Misleading Misleading Questions on Cross.

A. Rule on Leading Questions:  During cross-examinations leading questions are allowed for the reason that the witness is not expected to be sympathetic to the cause of the opponent and would not volunteer important facts favorable  to the opponent, or that he would resists to testify on facts adverse to the party who called him. Thus it becomes necessary that the opposing counsel has to force the facts from the witness thru leading questions.

          The opponent states a fact favorable to him and forces the witness to confirm it.

       B. Misleading Questions are not allowed. They are of two kinds:

1. A question which assumes a fact not yet testified to by a witness or still unproven or by putting words into the mouth of the witness

2. A question premised on a fact which is contrary to that testified to or proven or those which distort or do not accurately state the true facts. This is akin to twisting the words of the witness

IMPEACHMENT

A. Concept: The process of showing that a witness is not credible or that his testimony is not worthy of belief, i.e. casting doubt as to the credibility of the witness or credibility of his testimony. Note that credibility of the witness is different from credibility of testimony

B. Impeachment of the witness of the adverse party

Generally the witness may be impeached during his cross-examination or during the presentation of evidence by the party. Thus the witness of the plaintiff may be impeached at the time he is cross-examined by the defendant and/or during the presentation of evidence in chief by the defendant. On the other hand, the witness of the defendant may be impeached by the plaintiff during the cross examination of said witness and/or during the presentation of evidence during the rebuttal stage.

C. Specific Modes pursuant to section 11 and jurisprudence

1. By presenting evidence or facts which contradict the version of the witness

2. By proving the bad general reputation of the witness for truth or honesty or integrity.

a).  He cannot be impeached by the direct testimony of witnesses of the adverse party as to particular instances of immoral acts, improper conduct, or other evidence of misconduct.

b). The person who is called by the adverse party to testify to the bad general reputation of the witness of the opponent is called the “Impeaching witness” who himself may also be impeached.    

3. By proof of prior inconsistent statements in that a truthful person will be consistent with his statement even on different occasions and to different persons

4. By introducing evidence of his bias or interest, such as his relationship to a party, or financial gain as well as of his motive or intent.

5. By showing his social connections, occupations and manner of living in that he voluntarily associates with those who are engaged in disreputable activities, or if he is addicted to disgraceful or vicious practices, or follows an occupation which is loathsome and vile, even if not criminal, as all these affects his credibility. 

6.  By proof of prior conviction: the moral integrity of a person is placed in doubt by reason of a conviction for violation of the law, but not by the fact that  there are pending cases against  him 

7. By showing the improbability of his testimony or that it is not in accordance with ordinary human experience. Example: (i) the claim of an accidental firing of a caliber gun is not believable because the mechanism of the gun which requires that pressure be applied on the trigger for the gun to fire (ii) the claim of four big able men having been attacked and mauled by one person who is who is much smaller in height and heft     

8. By showing defects in his observation, or that he has a faulty or selective memory

9. By  showing that this actions or conduct  is inconsistent with his testimony.

Example: A rape victim was shown to have been partying with the alleged rapist after the rape  

10. By engaging the witness in contradictions and discrepancies as to the material facts testified by him.

D. Impeachment of one’s own witness.

1. General Rule: It is not allowed pursuant to section 12. The reason is that a party calling a witness is supposed to vouch for the truthfulness of the witness and of his testimony, which he is assumed to know before hand, and is therefore bound by whatever the witness testifies to in court. A party is not permitted to let the witness be believed as to facts favorable to him, but to impeach him as to facts not favorable.

2. Exceptions: If the witness presented is any of the following:

a). An unwilling witness

b). He turns out to be a hostile witness or a treacherous witness and the party was mislead into calling him as a witness

c). An adverse party witness

E. Impeachment by Prior Inconsistent Statement.

1. The procedure or Laying the Foundations is outlined by section 13. To be effective the steps should follow the following sequence:

a). Recommit: Confront the witness with his prior statements narrating the circumstances of time, place, persons or occasion, or by showing him the prior written statement. Get the witness to affirm he made the statements   

b). Build-Up. Let the witness affirm he made the prior statements freely, knowingly and that he stood by the accuracy and truthfulness of said statements

c). Contrast: Confront the witness by the fact that his prior statement contradicts or deviates or is materially different from his present statement

d). Demand an explanation why he made a different statement from his previous statements 

2. Reason for the Procedure:

a). Fairness to the witness and avoid surprising him, so that he may recollect the facts, and to give him the opportunity to explain the reason, nature, circumstances, or meaning, of his statements. Example: He might have been too emotional then, or was improperly influenced, or wanted to avoid embarrassment, and similar reasons.

b).   To save time if he admits his prior statements

3. Exceptions when there is no need to lay the foundation:

a). In case of statements made by a deceased which contradicts his dying declarations         

b). If the contradictory statements are testified to by another person as an admission

Section 14. Exclusion and separation of witness.

A. Concept: The act of excluding a future witness from the court room at the time another witness is testifying or, of ordering that witnesses be kept separate from one another to prevent them from conversing with one another. 

1. This is upon the court’s own motion or on motion of the adverse party.

2. A disobedient witness may be testify but his (a) testimony may be excluded or (b). his disobedience may be considered to affect his credibility and (c) he maybe punished for contempt of court   

B. Purpose: To ensure the witnesses testify to the truth by preventing them from being influenced by the testimony of others; to prevent connivance or collusion among witnesses 

(Note: the practical purpose of this rule is defeated by the reservations for cross examination or resetting to present another witness, such that the counsel and other witness have the opportunity to go over the testimony of the witnesses).

C. Who may not be excluded.

1. Parties to an action even if they are numerous.

a) In criminal cases, the presence of the accused is indispensable and he may not be excluded.

b). The private offended party should not also be excluded even if he will be a witness. As such he has a right to be present because it is his interest which is involved and also to assure that the proceedings are conducted properly. Besides he is party to the civil aspect of the case.  

2. Expert witnesses as they testify to their opinions based on facts of their own knowledge, or on hypothetical facts

3. Witnesses on rebuttal

4. Character witnesses

5. Spectators unless they behave in a manner which is against the proper decorum of the court or when the evidence to be presented are sensitive

REVIVING THE MEMORY OF WITNESSES

 A. Introduction: A witness may suffer from lapses of memory or loss of recollection as to material facts so that there is a need for him to recollect the facts. The remedy of reviving applies more appropriately to the adverse party conducting a cross-examination rather than to the proponent. The reasons are: (i) because a party presenting a witness is presumed to know what the witness is to testify on and is expected to have prepared him for the direct examination and (ii). matters favorable to the cross-examiner may have been forgotten by the witness.

B. Modes of reviving

1. By asking leading questions

2. By the Process of Association i.e. calling the attention of a person to a material connected with a certain event so it would trigger the brain to associate the material with the event and thereby enable the person to remember the event.

       Examples:

a). Presenting a pictorial representation of  a person, thing, place, object or person

b). Playing the record of a conversation

c). Presenting physical objects such as trinkets, or other “memorabilia”

d). By allowing the witness to refer to a memorandum under section 16     

Section 16. When witness may refer to a memorandum.

A. Two Methods of Revival under Section 16. (These are useful methods to the opposing counsel when conducting his cross examination. The proponent is supposed to have already gone over the testimony of his witness and briefed him hence, resorting to these methods reflect badly on the proponent).

1. Present Recollection Revived: the witness is presented the memorandum or record with the expectation that it will pull a switch in the brain and enable the witness to put aside the memorandum and testify on what he now recalls.

Thus the evidence is not the memorandum or writing but what the testify remembers as now testified  

a). The written record/memorandum was written by him or by someone under his direction ( who wrote it?)

b). It was written at the time the fact/event occurred or immediately thereafter or at any time when the facts was still fresh in his mind ( when was it written?)

c). The record/memorandum is presented to the adverse party who may cross-examine on it, and it may be read into the evidence. 

2. Past Recollection Recorded. The same procedure is followed but the witness is still unable to recollect the event but he can assert that the facts therein narrated are true. The evidence therefore is the writing itself.

3. Examples: (a). Filing clerks who record conversations then forget all about it (b) Diaries (c) Letters

Section 17.  The Rule of Completeness.

A. Concept: When a part of an act, declaration or conversation, writing or record, is given in evidence by one party, the adverse party may : (i) ask or inquire into the whole  or (b) introduce evidence on the remainder, and in case of writing he may have the other portion or even the entire writing be read in evidence.

As a matter of procedure, in case of documents already in court, a party merely underscores only those portions which are material to his case. It is for the opposing party to inquire as to the rest.

The other portions is limited to those which tend to qualify or explain the part first given and which were given at the same time.

B. Examples:

1.  As the issue is the nature of the transaction between the parties, where plaintiff presented his letter, it was proper for defendant to introduce all the other letters which passed between them

2. Where a letter is presented on direct examination, it is proper on cross to ask if there be any reply to  it

3. Where a witness testified to the occurrence of a fight, it is proper to inquire on the antecedents and details thereof, past altercations between those involved or any bad blood between them

4. Where the Prosecution presented only a part of the records of the Preliminary Investigation, the defense may introduce the whole record

C. Need for Precision of Statements:

1. The general rule is that verbal accuracy is not required but the substance or effect of the actual words spoken will be sufficient so that the witness may testify to the substance as best as he can from his recollection

2.  However, in case of oral defamation, there is a need for verbal accuracy

RULE ON EXAMINATION OF CHILD WITNESS

I. INTRODUCTION: The Supreme Court, in an en banc Resolution adopted the so called-Rule on Examination of a Child Witness which became effective on December 15, 2000. The rule applies to child witnesses who are victims of crimes, accused of a crime, and witnesses to a crime.  It shall apply to criminal proceedings and non-criminal proceedings involving child witnesses.

   A. Child Witness- any person who, at the time of giving testimony, is below the age of 18 years. In child abuse cases, a child includes one over 18 years but is found by the court as unable to fully take car of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition.  

SALIENT FEATURES

I. Creates a Presumption of Competency in favor of a child-witness subject to a Competency Test.

A. “Every child is presumed qualified to be a witness. However the court shall conduct  a competency examination o a child moto proprio or on motion of a party, when it finds that substantial doubt exist regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court”. ( Sec. 6).

B.  A party seeking a competency examination must present proof of necessity of competency examination. The age of a child shall not by itself is not a sufficient basis for a competency examination. 

II. Allows the Court to, motu proprio or on motion, appoint certain persons to help in the testimony of the child-witness:

A. Guardian Ad Litem- a person to protect the best interest of the child whose appointment took into consideration his familiarity with the judicial process, social service programs, and child development. The parent if preferred, if qualified. Has the right to be present in all proceedings, to obtain copies of documents, interview witnesses, make recommendations to the court, and to do all to protect the child.  

B. Interpreter- one, other than the regular court interpreter, whom the child can understands and who understands the child. 

C. Facilitator- one who poses the questions to the child who may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent or relative. Counsels shall pose questions only through the facilitator.

D. Support Person- person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support to the child     

III. Contains Child Centered Provisions during the actual testimony such as :

A. A separate waiting area furnished to make the child comfortable

B. To create a more comfortable courtroom environment, the court may direct and supervise the location, movement, deportment of all person in the court room;

C. The child may testify from a place other than the witness chair; child is not required  to look at the accused

D. To testify during the time of day that the child is well rested

E. Reasonable periods of relief is allowed as often as is necessary

F. The child is allowed to use testimonial aids, such as dolls, puppets, drawings, mannequins or any other appropriate devise  to assist in the testimony of the child.

G. Child is allowed to have an Emotional Security Item of his own choosing as a blanket, toy, doll.

IV. Manner of Questioning and Objections

     1. Leading Questions are allowed

specially des for Child-Directs

AUTHENTICATIONS AND PROOF OF DOCUMENTS

I. INTRODUCTION. Per section 2 of Rule 130, documents are writings or any material containing letters, words, symbols, numbers, figures, or other modes of written expressions offered as proof of their contents. They are either paper based or other solid surfaced based documents. These are what are referred to by Rule 132.

As to Electronic documents, the manner of their authentication is as provided for by the Electronics Evidence Law.

II. CLASSIFICATION OF DOCUMENTS.

A.. Section 19 provides that for purposes of their presentation in court they are either (i) public or (ii) private

Importance of the classification:

     a) As to the need for authentication: public documents are admissible without further proof of their due execution whereas private documents must be authenticated

     b). As to the persons bound: public documents are evidence even as against third persons as to the fact which gave rise to their execution whereas private documents bind only the parties thereto and their privies

     c) As to the validity of certain transactions: certain transactions are required by law to be public documents in order to be valid and/or enforceable. E.g.: the law on donations of real properties, Statute of Frauds

     B. Classification into Domestic and Foreign Public Documents

      The following are public domestic documents:

a). Written Official acts of sovereign authority, official bodies, tribunals and public officers: such as decisions or courts or quasi-judicial bodies, legislative enactments, executive orders, directive from superior officers or memoranda, written appointments, warrants issued by court, subpoenae, ship’s log book

b). Record of the official acts of said bodies or officers: e.g: the marriage contract embodies the act of solemnizing a marriage; records of birth and death; written oaths; returns and reports, congressional records of the deliberations in congress

c). Acknowledged documents such as contracts and conveyances

d). Public record (i) kept in the Philippines of private writings (ii) or required by law to be kept therein. Example of the first would be documents affecting registered lands which are submitted to the Register of Deeds, Assessors Office, Letters of  acknowledgement submitted to the Local Civil Registrar. Example of the second: Personal Bio Data or Information Sheets submitted to form part of the 201 File of government officials   

III. AUTHENTICATION.

A. Concept: As to documents, it is the process of proving that the document presented in court is not spurious, falsified, or questionable, or that it is not a different document. As to objects, it is the process of proving that the object presented in court is the very object involved in the case without any alteration or substitution.

B. Rule as to private documents: Section 20 provides that in order for a private document to be admissible, it is necessary to prove the “ due execution and authenticity of the document” in that it  is not spurious, counterfeit or a different document. This is because private documents are not self-authenticating.

IV. How to prove a private document is authentic or genuine

A.. By direct evidence consisting of the testimony of witness such as (i) the parties to the document (ii) by an attesting /subscribing witness (iii) by a person who was present and saw its execution and (iv) by the person before whom it was executed and acknowledged

B. By proof or evidence of the genuiness  of the handwriting or signature of the maker or of the parties thereto. It may be by any of the following:

1. Direct evidence consisting of the testimony of the maker or party affirming his own handwriting or signature

2. By the testimony of the attesting/subscribing witnesses or of witnesses to the execution thereof

3. By the use of “Opinion Evidence” pursuant to the Section 22 of Rule 131 such as (a) by one who has obtained sufficient familiarity (b) by an expert (c) based on a comparison with a genuine handwriting

4. By the contents of the document

5. By the style of writing

V. When Authentication Not Necessary

A. In case of ancient documents: referring to private document which are more than 30 years old, produced from a custody in which it would naturally be found in genuine and unblemished by nay alteration or circumstance of suspicion

 1. The reason is the possible unavailability of witness due to the passage of time. Age is to be reckoned from the execution to the date it is offered

2. Requirements for “Ancient Documents”

(a) Proof of age: to be counted backwards from the time of offer to its date of execution

(b) Proof that  on its face it is free from any circumstance of suspicion, as when it bears signatures which are not counter-signed, deletions, insertions, a missing page, a page which is new or recent, use of different inks, or it bears different handwritings, or suspicious tears

© Proof of proper custody: this removes the suspicion of fraud and suggest the document is genuine. Proper custodian/depository includes one who is entitled to the possession such as a party and his successors in interest, privies or agents; as well as one who is connected to the document that he may reasonably be inferred to be in [possession thereof, such as a common witness.

B. When the due execution and genuiness has been admitted either expressly or by provision of law, as in failure to deny under oath

C. When the due execution and authentication is immaterial , as in documents which arte used as annexes or attachments

D. When the document need only to be identified

E. In case of public documents

V. PROBATIVE VALUE AND PRESENTATION OF PUBLIC DOCUMENTS

A. Requirement of authentication does not apply because of (a) necessity in that it is difficult and inconvenient to require the attendance of the public officer to appear in court  (b) trustworthiness of the documents

B. Probative Value Under Section 23.

1.  Written Official Acts are conclusive because it is the act which is recorded

2. Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts stated therein

        This does not include those made in excess of official duty and they are limited to those facts which the public.     

(i) Entries in the Records of Birth, Marriage, or Death of a person, as entered by the Local Civil Registrar

(ii) Data in the Police Blotter

(iii) Return of Search Warrants

(iv). Entries in the time record 

(v) Entries in the Community Tax Certificate or Tax Declaration of Property   

(vi) The terms, conditions or consideration in a contract  

3. The recitals in a public instrument, executed with all the legal formalities are evidence against the parties thereto and their successors in interest, and a high degree of proof is necessary to overcome the presumption that such recitals are true. 

4. In order to overcome the documentary evidence, the oral testimony must be “clear, strong and convincing”     

c)  All other public documents are evidence of the act which gave rise to their execution and date of execution. They are proof why they were executed and the date thereof.

5. Examples: Certifications issued by a public officer. Recommendations and endorsements by a public official.

C. How to Prove a Public Document (Section 24)

1. In case of written official acts or records of official act  of public or sovereign bodies 

(i). By presenting the Official Publication thereof

(ii) By presenting a certified true copy i.e. attested by the proper custodian and bearing the certification by him, his signature, and the seal of his office.  A certified copy is allowed by reason of the principle of Irremovability of Public records under Section 26.

Example: Laws of national application are proved by a certified copy thereof or a copy appearing in the official publication. In case of publication other than the Official Gazette, the copy must be accompanied by the Certificate of the Publication by the publisher 

2.  As to written foreign public documents

(i) By  an Official Publication thereof

(ii) By a Copy  attested by the official custodian and accompanied by a certificate by the proper officer of the Philippine foreign service stationed in the country where such foreign document is kept

Thus a Special Power of Attorney executed abroad, must be bear the “Red Ribbon” coming from the Phil. Embassy or Consul 

QUESTION: How is a foreign law proven in the Philippines?

Ans. If it is written it is proved by: (i) the Official Publication thereof (ii) An official copy issued by the custodian (iii) certified true copy accompanied by the certification of the Phil. Foreign official and (iii) By the testimony of an expert   .

D). In case of the public record of a private writing

(i) By the original record i.e. the very private document kept in official custody

(ii) By a copy duly certified by the custodian

d). Summary of Rules in presenting proof of the existence and contents of documentary evidence

(i) The Original of public record can not be presented by reason of the Rule on the Irremovability of  Public Records under section 26. Hence secondary evidence is allowed which consist either of the Official Publication, if so published, or a certified true copy thereof, unless if is extremely necessary that the original of the public record be produced in court,  but only upon lawful order of the court.

(ii).If the documents be in a non-official language, i.e not in English or Pilipino, it must be accompanied by a translation in either r said language

(iii). In case of notarized documents . the acknowledgment suffices to authenticate the document and there is no need to present the notary public 

(iv). Private documents need not be sealed

(v). If the documents contain alterations, the party offering the document must explain the alteration was: made by another without his concurrence; as consented by all the parties, was innocently made, or that it does not change the meaning, or any other valid reason. Said explanation must be made a the time of the presentation of the document.

(vi) If the document presented consist of judicial record, such as decisions or orders, they are conclusive and the only grounds to impeach said records are (a) want of jurisdiction of the court which issue them (b) there was collusion between the court and the prevailing party and (c) extrinsic fraud was practiced by the winning party

e). If what is sought to be proven is the lack of records in a certain public office, there must be a certificate to that effect   

Examples: 1. Certifications from the National Statistics Office that no marriage ever took place between two people; or (2) from the POEA in illegal recruitment cases and the (3) FEU in prosecutions for illegal possession of firearms.

NEED FOR FORMAL OFFER:

The purpose for which evidence is offered must be specified because such evidence maybe admissible for several purposes under the doctrine of multiple admissibility, or may be admissible for one purpose and not for another, otherwise the adverse party cannot interpose the proper objection ( Uniwide  vs. Titan-Ikeda 511 SCA 335)

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