f. Hearsay Rule; Exceptions

Hearsay evidence may be considered in amparo proceedings

The fair and proper rule is to consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason— i.e., to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test. (Rodriguez v. Macapagal-Arroyo, G.R. no. 191805, 2013)

Though hearsay evidence is generally considered inadmissible under rules of evidence, such may be considered in a writ of amparo proceeding if required by the unique circumstances of the case. It is the totality of the obtaining situation that must be taken into consideration to determine if a petitioner is entitled to a Writ of Amparo. Police surveillance because of the petitioner’s relationship with a suspected member of the NPA, creates a real threat to life, liberty, or security. (Sanchez v. Darroca, G.R. No. 242257, October 15, 2019)

General and Particular Provisions of an Instrument (part 2 of 2)

Section 28. Offer of compromise not admissible. – In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. Neither is evidence of conduct nor statements made in compromise negotiations admissible, except evidence otherwise discoverable or offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. A plea of guilty later withdrawn or an unaccepted offer of a plea of guilty to a lesser offense is not admissible in evidence against the accused who made the plea or offer. Neither is any statement made in the course of plea bargaining with the prosecution, which does not result in a plea of guilty or which results in a plea of guilty later withdrawn, admissible. An offer to pay[,] or the payment of medical, hospital or other expenses occasioned by an injury[,] is not admissible in evidence as proof of civil or criminal liability for the injury. (27a) Section 29. Admission by third party. – The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. (28) Section 30. Admission by co-partner or agent. – The act or declaration of a partner or agent authorized by the party to make a statement concerning the subject, or within the scope of his or her authority[,] and during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. (29a) Section 31. Admission by conspirator. – The act or declaration of a conspirator in furtherance of the conspiracy and during its existence may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act of declaration. (30a) Section 32. Admission by privies. – Where one derives title to property from another, the latter’s act, declaration, or omission, in relation to the property, is evidence against the former [if done] while the latter was holding the title. (31a) Section 33. Admission by silence. – An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him or her to do so, may be given in evidence against him or her. (32a) Section 34. Confession. – The declaration of an accused acknowledging his or her guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him or her. (33a) 4. Previous Conduct [a]s Evidence Section 35. Similar acts as evidence. – Evidence that one did or did not do a certain thing at one time is not admissible to prove that he or she did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like. (34a) Section 36. Unaccepted offer. – An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money, instrument, or property. (35) 5. Hearsay Section 37. Hearsay. – Hearsay is a statement other than one made by the declarant while testifying at a trial or hearing, offered to prove the truth of the facts asserted therein. A statement is (1) an oral or written assertion or (2) a non-verbal conduct of a person, if it is intended by him or her as an assertion. Hearsay evidence is inadmissible except as otherwise provided in these Rules. A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross- examination concerning the statement, and the statement is (a) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition; (b) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; or (c) one of identification of a person made after perceiving him or her. (n) 6. Exceptions [t]o [t]he Hearsay Rule Section 38. Dying declaration. – The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his or her death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. (37a) Section 39. Statement of decedent or person of unsound mind. – In an action against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, where a party or assignor of a party or a person in whose behalf a case is prosecuted testifies on a matter of fact occurring before the death of the deceased person or before the person became of unsound mind, any statement of the deceased or the person of unsound mind, may be received in evidence if the statement was made upon the personal knowledge of the deceased or the person of unsound mind at a time when the matter had been recently perceived by him or her and while his or her recollection was clear. Such statement, however, is inadmissible if made under circumstances indicating its lack of trustworthiness. (23a) Section 40. Declaration against interest. – The declaration made by a person deceased or unable to testify against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to the declarant’s own interest that a reasonable person in his or her position would not have made the declaration unless he or she believed it to be true, may be received in evidence against himself or herself or his or her successors in interest and against third persons. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. (38a) Section 41. Act or declaration about pedigree. – The act or declaration of a person deceased or unable to testify, in respect to the pedigree of another person related to him or her by birth[,] adoption, or marriage or, in the absence thereof, with whose family he or she was so intimately associated as to be likely to have accurate information concerning his or her pedigree, may be received in evidence where it occurred before the controversy, and the relationship between the two [(2)] persons is shown by evidence other than such act or declaration. The word “pedigree” includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. (39a) Section 42. Family reputation or tradition regarding pedigree. – The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity[,] affinity, or adoption. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree. (40a) Section 43. Common reputation. – Common reputation existing previous to the controversy, as to boundaries of or customs affecting lands in the community and reputation as to events of general history important to the community, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputation. (41a) Section 44. Part of the res gestae. – Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto[,] under the stress of excitement caused by the occurrence with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. (42a) Section 45. Records of regularly conducted business activity. – A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by writing, typing, electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule on hearsay evidence. (43a) Section 46. Entries in official records. – Entries in official records made in the performance of his or her duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. (44a) Section 47. Commercial lists and the like. – Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein. (45) Section 48. Learned treatises. – A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his or her profession or calling as expert in the subject. (46a) Section 49. Testimony or deposition at a former proceeding. – The testimony or deposition of a witness deceased or out of the Philippines or who cannot, with due diligence, be found therein, or is unavailable or otherwise unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him or her. (47a) Section 50. Residual exception. – A statement not specifically covered by any of the foregoing exceptions, having equivalent circumstantial guarantees of trustworthiness, is admissible if the court determines that (a) the statement is offered as evidence of a material fact; (b) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (c) the general purposes of these [R]ules and the interests of justice will be best served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent makes known to the adverse party, sufficiently in advance of the hearing, or by the pre-trial stage in the case of a trial of the main case, to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant. (n) 7. Opinion Rule Section 51. General rule. – The opinion of a witness is not admissible, except as indicated in the following sections. (48) Section 52. Opinion of expert witness. – The opinion of a witness on a matter requiring special knowledge, skill, experience, training or education, which he or she is shown to possess, may be received in evidence. (49a) Section 53. Opinion of ordinary witnesses. – The opinion of a witness, for which proper basis is given, may be received in evidence regarding –

(a) [T]he identity of a person about whom he or she has adequate knowledge;

(b) A handwriting with which he or she has sufficient familiarity; and (c) The mental sanity of a person with whom he or she is sufficiently acquainted.

The witness may also testify on his or her impressions of the emotion, behavior, condition or appearance of a person. (50a)

8. Character Evidence

Section 54. Character evidence not generally admissible; exceptions. – Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (a) In Criminal Cases:

• The character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged.
• The accused may prove his or her good moral character[,] pertinent to the moral trait involved in the offense charged. However, the prosecution may not prove his or her bad moral character unless on rebuttal.

(b) In Civil Cases:

Evidence of the moral character of a party in a civil case is admissible only when pertinent to the issue of character involved in the case. (c) In Criminal and Civil Cases:

Evidence of the good character of a witness is not admissible until such character has been impeached. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person’s conduct. (51a; 14, Rule 132)

vii. Hearsay exception in child abuse cases

Applicability: Any criminal and non-criminal proceeding

A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence subject to the following rules:

• Before the hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars
• Reason: to provide him a fair opportunity to object
• if the child is available: the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination
• if the child is unavailable: the fact of unavailability must be proved by the opponent [Sec. 28(a)]
• The court shall consider the time, content and circumstances of the hearsay statement which provide sufficient indicia of reliability
• factors to consider:
• motive to lie
• general character of declarant child
• whether more than one person heard the statement
• whether the statement was spontaneous
• timing of the statement and the relationship between the declarant child and witness
• cross-examination could not show the lack of knowledge of the declarant child
• possibility of faulty recollection of the declarant child is remote
• the circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused [Sec. 28(b)]

Exceptions:

• Diaries, if it is against interest, or if it is in the nature of books of accounts. Letters prepared not in anticipation of litigation are not considered self-serving declarations.
• Part of the res gestae, which covers spontaneous statements and verbal acts.
• When in the form of complaint and exclamations of pain and suffering.
• When part of a confession offered by the prosecution. (such as those favorable to the accused, e.g., I shot him because he was going to stab me.)
• When the credibility of a party has been assailed on the ground that his testimony is a recent fabrication.
• When offered by the opponent.
• When offered without objection or there is waiver.

Reason for exclusion of self-serving declarations

• The inherent untrustworthiness of the declarations.
• Allowance would open the door to fraud and fabrication of testimony.
• If testified by one other than the defendant, such declarations would be hearsay.

Res inter alios acta rule

This rule refers to the maxim, “res inter alios acta alteri nocere non debet,” which means, “A thing done among some persons ought not to do harm to another.” (Regalado, 2008 ed.)

Additional Exception

Statements made by an employee against his employer are admissible against the latter, where the statements while in employ and where they concerned a matter within the scope of his employment. (Mahlandt v. Wild Canid Survival & Research Center, 588 F.2d 626, 8th Cir. 1978)

Inadmissibility of Extrajudicial Declaration of Accused

As a general rule, the extrajudicial declaration of an accused, although deliberately made, is not admissible and does not have probative value against his co-accused. It is merely hearsay evidence as far as the other accused are concerned. (People v. Alegre, G.R. No. L-30423, 1979)

The rights of an accused cannot be prejudiced by the extra-judicial declarations of another person. (People v. Raquel, G.R. No. 119006, 1996)

Exception:

• Evidence otherwise discoverable;
• Offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay or proving an effort to obstruct a criminal investigation or prosecution. (Rule 130, sec. 28)
• CRIMINAL CASES:

General Rule: an offer of compromise by the accused may be received in evidence as an implied admission of guilt.

Personal Knowledge

Facts derived from his or her own perception. (Rule 130, Section 22)

Thus, while it is true that the testimony of a witness regarding a statement made by another person, if intended to establish the truth of the fact asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement. Regardless of the truth or falsity of a statement, when the fact that it has been made is relevant, the hearsay rule does not apply and the statement may be shown. (Comilang v. Burcena G.R. No. 146853, 2006)

Doctrine of Independently Relevant Statements

Only the fact that such statements were made is relevant, and the truth or falsity thereof is immaterial. The hearsay rule does not apply. The statements are admissible as evidence. (People v. Gumimba G.R. No. 174056, 2007)

Meaning of hearsay

Statement other than one made by the declarant while testifying at a trial or hearing, offered to prove the truth of the facts asserted therein.

A statement is:

• An oral or written assertion or
• A non-verbal conduct of a person, if it is intended by him or her as an assertion

Hearsay evidence is inadmissible except as otherwise provided in these Rules.

A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement, and the statement is:

• Inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition
• Consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; or
• One of identification of a person made after perceiving him or her (Rule 130, Sec. 37)

Any evidence is hearsay if its probative value is not based on the personal knowledge of the witness, but on the knowledge of some other person not on the witness stand. (Regalado 2008 ed.)

The Hearsay Rule renders inadmissible as evidence, out-of-court statements made by persons not presented as witnesses but are offered as proof of the matters stated. This rule proceeds from the basic rationale of fairness, as the party against whom it is presented is unable to cross-examine the person making the statement. (DST Movers Corp. v. People’s General Insurance Corp., G.R. No. 198627, 13 January 2016)

The personal knowledge of a witness is a substantive prerequisite for accepting testimonial evidence that establishes the truth of a disputed fact. The rule excluding hearsay as evidence is based upon serious concerns about the trustworthiness and reliability of hearsay evidence due to its not being given under oath or solemn affirmation and due to its not being subjected to cross-examination by the opposing counsel to test the perception, memory, veracity and articulateness of the out-of-court declarant or actor upon whose reliability the worth of the out-of-court statement depends. (Patula v. People, G.R. No. 164457, 11 April 2012)

The term “hearsay” as used in the law on evidence, signifies evidence which is not founded upon the personal knowledge of the witness from whom it is elicited and which consequently does not depend wholly for its credibility and weight upon the confidence which the court may have in him; its value, if any, is measured by the credit to be given to some third person not sworn as a witness to that fact, and consequently, not subject to crossexamination. If one therefore testifies to facts which he learned from a third person not sworn as a witness to those facts, his testimony is inadmissible as hearsay evidence.

Elements of Hearsay

• There must be an out-of-court statement, whether oral or written, or a conduct intended as an assertion, and
• The statement made out of court is repeated and offered by the witness to prove the truth of the matters asserted in the statement.

Form of Hearsay Evidence

It may be verbal, in writing or even non-verbal conduct.

Failure to object to hearsay evidence

Consequently, if a party does not object to the hearsay evidence, the same is admissible, as a party can waive his right to cross-examine. However, it has also been held that hearsay evidence not objected to may be admissible but, whether objected to or not, has no probative value and, as opposed to direct primary evidence, the latter always prevails. (Regalado 2008 ed. citing People v. Ola, G.R. No. L-47147, 1987)

Elements:

• Declaration concerns the cause and the surrounding circumstances of declarant's death;
• Made when death appears to be imminent and the declarant is under a consciousness of impending death;
• The statement was made declarant would have been competent to testify had he or she survived;
• Dying declaration is offered in a case in which the subject of inquiry involves the declarant's death (People vs. Bautista, G.R. No. 117685, 1999)

Note: A dying declaration is NOT considered confidential communication between spouses (U.S. v. Antipolo, G.R. No. L-13109, 1918).

Examples:

‘Tabangi ko Pre, gipusil ko ni kapitan,’ meaning ‘Help me, Pre, I was shot by the captain.’ –> dying declaration (Marturillas v. People, G.R. No. 163217, 2006).

Dying declarations are Admissible in Both Civil and Criminal Cases

The former rule was that dying declarations were admissible only in criminal prosecutions for homicide, murder, or parricide wherein the declarant is the victim. As amended, the rule now provides for such admissibility in any case as long as requisites concur. (Regalado 2008 ed.)

Purposes for Admitting Dying Declaration:

• To identify the accused or
• To show the cause of death or
• To show the circumstances under which the assault was made upon the victim.

The declaration of the deceased is not admissible as an ante mortem declaration since the deceased was in doubt as to whether he would die or not. The declaration fails to show that the deceased believed himself in extremis, "at the point of death when every hope of recovery is extinct, which is the sole basis for admitting this kind of declarations as an exception to the hearsay rule." It may be admitted, however, as part of the res gestae since the statement was made immediately after the incident and the deceased had no sufficient time to concoct a charge against the accused. (People v. Laquinon, G.R. No. L-45470, 1985)

Dying declarations may be used to corroborate the testimony of a witness. (People v. Brioso, G.R. No. L-28482, 1971)

Thus, while a dying declaration may be admissible in evidence, it must identify with certainty the assailant. Otherwise, it loses its significance. (People v. Ador, G.R. Nos. 140538-39, 2004)

Statement of decedent or person of unsound mind

• In an action:
• Against an executor or administrator or other representative of a deceased person or
• Against a person of unsound mind
• Upon a claim or demand against the estate of such deceased person or against such person of unsound mind,
• Where a:
• Party or
• Assignor of a party or
• A person in whose behalf a case is prosecuted

TESTIFIES on a matter of fact occurring before the death of the deceased or before the person became of unsound mind,

• Any statement of the deceased or the person of unsound mind, may be received in evidence if:
• The statement was made upon the personal knowledge of the deceased or person of unsound mind
• At a time when the matter had been recently perceived by him or her and
• While his or her recollection was clear.

Such statement, however may be inadmissible if made under circumstances indicating its lack of TRUSTWORTHINESS (Rule 130, Sec. 39)

Note: The previous version of this provision was the former Rule 130, Sec. 23 on disqualifications by reason of death or insanity of adverse party (Dead Man’s rule)

The former Dead Man’s rule has now been superseded.

The former Dead Man’s rule prohibited the survivor from testifying against the deceased or person of unsound mind; the Dead Man’s rule put the two parties on equal footing: Where death has sealed the lips of the dead, the law seals the lips of the living.

BUT now, a party, a party’s assignor or a person in whose behalf a case is being prosecuted in an action demanding or claiming against the executor, administrator or other representative of the deceased or the person of unsound mind, can now TESTIFY on a matter of fact occurring before the death of the deceased or before the person became of unsound mind.

To minimize however the danger of injustice to the decedent’s estate or person of unsound mind, the (otherwise hearsay) statement of the deceased or person of unsound mind may be admitted, so long as the statement was made upon the personal knowledge of the deceased or person of unsound mind, at the time when the matter had been recently perceived by him or her and while his or her recollection was clear, and there are no circumstances indicating its lack of trustworthiness.

Requisites for declarations against interest:

• Declarant must not be available to testify due to death, mental incapacity, or physical incompetence, or his being outside the territorial jurisdiction of the country if exact whereabouts are unknown
• The declaration must concern a fact cognizable by the declarant.
• The circumstances must render it improbable that a motive to falsify existed. (Fuentes vs. CA, G.R. No. 111692, 1996)

Scope: The declaration against interest includes all kinds of interests such as pecuniary, proprietary, or penal interests.

Declaration Against Interest and Self-serving Declaration Distinguished

The testimony of the accused that he was married to the deceased was an admission against his penal interest. It was a confirmation of the maxim semper praesumitur matrimonio and the presumption “that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage.” He and the deceased had five children. He alluded in his testimony to his father-in-law. That implies that the deceased was his lawful wife. The fact that he bitterly resented her infidelity, her failure to visit him in prison and her neglect of their children are other circumstances confirmatory of their marital status. (People v. Majuri, G.R. No. L-38833, 1980)

But more importantly, the far weightier reason why the admission against penal interest cannot be accepted in the instant case is that the declarant is not “unable to testify.” There is no showing that the declarant is either dead, mentally incapacitated or physically incompetent which Sec. 38 [now Sec. 40] obviously contemplates. His mere absence from the jurisdiction does not make him ipso facto unavailable under this rule. (Fuentes vs. CA, G.R. No. 111692, 1996)

A statement of fact in a verified petition and an accompanying silence about any contrary fact may be appreciated in more than one context—a declaration against interest and a judicial admission combined. A declaration against interest is the best evidence which affords the greatest certainty of the facts in dispute. A judicial admission binds the person who makes the same, and absent any showing that this was made through palpable mistake, no amount of rationalization can offset it. (Heirs of Miguel Franco v. CA, G.R. No. 123924, 2003)

Reasons for Admissibility

Declarations in regard to pedigree, although hearsay, are admitted on the principle that they are natural expressions of persons who must know the truth. Pedigree testimony is admitted because it is the best that the nature of the case admits and because greater evil might arise from the rejection of such proof than from its admission. (People v. Alegado, G.R. No. 93030-31, 1991)

Rule on Proving Evidence of Relationship for Establishing Pedigree

General Rule: Where the party claiming seeks recovery against a relative common to both claimant and declarant, but not from the declarant himself or the declarant's estate:

The relationship of the declarant to the common relative may not be proved by the declaration itself. There must be some independent proof of this fact.

Exception: [Where the party seeks] to reach the estate of the declarant himself and not merely to establish a right through his declarations to the property of some other family member:

The declaration itself will suffice. (Tison v. CA, G.R. No 121027, 1997)

In a marriage nullity case, the lack of personal interview of the respondent does not render hearsay the psychological report (Camacho-Reyes v. Reyes, G.R. No. 185286, 2010).

Part of the res gestae

Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto, under the stress of excitement caused by the occurrence with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae (Rule 130, Sec. 44)

RES GESTAE is from the Latin phrase meaning “things done”.

Res gestae, as an exception to the hearsay rule, refers to those exclamations and statements made by either the participants, victims, or spectators to a crime immediately before, during, or after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement. (DBP Pool of Accredited Insurance Companies v. Radio Mindanao Network, Inc., G.R. No. 147039 January 27, 2006)

There are two types of res gestae utterances:

• Spontaneous Statements - statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof. The spontaneous or excited utterance is part of the “things done”, the startling occurrence.

Example: A heard a gunshot and saw B holding a gun pointed at C who was slumped on the ground. C shouted, “Please don't kill me.” A’s testimony regarding the statement made by C may be deemed part of the res gestae.

• Verbal Acts – utterances which accompany some equivocal act or conduct to which the utterances give a legal effect.

A verbal act presupposes conduct that is equivocal or ambiguous, one which, in itself, does not signify anything when taken separately. It only acquires a meaning, specifically what the rules call a legal significance, only because of the statements that accompany the act. (Riano, 2019 ed.)

Example: A gives B, a public officer, P1 Million. As he gives the money to B, A says that the P1 Million is the loan he is extending to B. In a case for corruption of public officer, A’s statement can be given as part of the res gestae.

Rationale:

Statements made instinctively at the time of some startling event or incident without the opportunity for formulation of statements favorable to one’s own cause cast important light upon the matter in issue and are presumed truthful. This is the first type of res gestae statement. The event is “speaking through” the witness and not the witness talking about the event.