a. Who may be Witnesses (See also AM 00-4-07-SC)

Witness<br>

A witness is one who, being present, personally sees or perceives a thing, a beholder, spectator or eyewitness. One who testifies to what he has seen or heard, or otherwise observed [Herrera citing Black’s Law Dictionary]

Qualifications of a Witness<br>

All persons who can perceive, and perceiving, can make known their perception to others, may be witnesses.

Religious/political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification [Sec. 21, Rule 130]

Basic Qualifications of a Witness<br>

• He/she can perceive
• Corollary to perception is that the witness must have personal knowledge of the facts surrounding the subject matter of his testimony [Sec. 22, Rule 130]
• He/she can make known his perception
• This means that he/she must have the ability to remember and communicate the remembered perception
• He/she must take an oath or affirmation [Sec. 1, Rule 132]
• He/she must not possess any of the disqualifications

A deaf-mute is competent to be a witness so long as he/she has the faculty to make observations and he/she can make those observations known to others [People v. Aleman y Longhas, G.R. No. 181539 (2013)]

Parties declared in default are not disqualified from taking the witness stand for non- disqualified parties. The law does not provide default as an exception [Marcos v. Heirs of Navarro, G.R. No. 198240 (2013)]

There is no substantive or procedural rule which requires a witness for a party to present some form of authorization to testify as a witness for the party presenting him or her [AFP Retirement and Separation Benefits System v. Republic, G.R. No. 188956 (2013)]

Scope of Rule<br>

The rule also includes utterance as to facts or mere production of documents. It does not only prevent disclosure of matters communicated in nuptial confidence but is an absolute prohibition against the spouse’s testifying to any facts affecting the other however these facts may have been acquired. [Herrera]

As regards an attorney’s secretary, stenographer, clerk, or other persons assisting the attorney

• Without the consent of the client and his/her employer
• Cannot be examined
• Concerning any fact the knowledge of which has been acquired in such capacity [Sec. 24(b), Rule 130]

Autopsical information<br>

If the information was not acquired by the physician in confidence, he may be allowed to testify thereto. But if the physician performing the autopsy was also the deceased’s physician, he cannot be permitted either directly or indirectly to disclose facts that came to his knowledge while treating the living patient [Herrera, citing US Case Travelers’ Insurance Co. v. Bergeron]

Right to inspect writing shown to witness<br>

Whenever a writing is shown to a witness, it may be inspected by the adverse party [Sec. 18, Rule 132]

Examination of a child witness

A.M. No. 00-4-07-SC, secs. 4, 6, 8, 20 and 28

> Section 4. Definitions. - (a) A "child witness" is any person who at the time of giving testimony is below the age of eighteen (18) years. In child abuse cases, a child includes one over eighteen (18) years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition. (b) "Child abuse" means physical, psychological, or sexual abuse, and criminal neglect as defined in Republic Act No. 7610 and other related laws. (c) "Facilitator" means a person appointed by the court to pose questions to a child. (d) "Record regarding a child" or "record" means any photograph, videotape, audiotape, film, handwriting, typewriting, printing, electronic recording, computer data or printout, or other memorialization, including any court document, pleading, or any copy or reproduction of any of the foregoing, that contains the name, description, address, school, or any other personal identifying information about a child or his family and that is produced or maintained by a public agency, private agency, or individual. (e) A "guardian ad litem" is a person appointed by the court where the case is pending for a child who is a victim of, accused of, or a witness to a crime to protect the best interests of the said child. (f) A "support person" is a person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support for him. (g) "Best interests of the child" means the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the child and most encouraging to his physical, psychological, and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child. (h) "Developmental level" refers to the specific growth phase in which most individuals are expected to behave and function in relation to the advancement of their physical, socio-emotional, cognitive, and moral abilities. (i) "In-depth investigative interview" or "disclosure interview" is an inquiry or proceeding conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services for the purpose of determining whether child abuse has been committed. Section 6. Competency. - Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court. (a) Proof of necessity. - A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination. (b) Burden of proof. - To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence. (c) Persons allowed at competency examination. Only the following are allowed to attend a competency examination:

(1) The judge and necessary court personnel; (2) The counsel for the parties; (3) The guardian ad litem; (4) One or more support persons for the child; and (5) The defendant, unless the court determines that competence can be fully evaluated in his absence. (d) Conduct of examination. - Examination of a child as to his competence shall be conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child. (e) Developmentally appropriate questions. - The questions asked at the competency examination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully. (f) Continuing duty to assess competence. - The court has the duty of continuously assessing the competence of the child throughout his testimony. Section 8. Examination of a child witness. - The examination of a child witness presented in a hearing or any proceeding shall be done in open court. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. The party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow him to testify in the manner provided in this Rule. Section 20. Leading questions. - The court may allow leading questions in all stages of examination of a child if the same will further the interests of justice. Section 28. Hearsay exception in child abuse cases. - 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 in any criminal or non-criminal proceeding subject to the following rules: (a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars 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 by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent. (b) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors:

(1) Whether there is a motive to lie;

(2) The general character of the declarant child;

(3) Whether more than one person heard the statement;

(4) Whether the statement was spontaneous;

(5) The timing of the statement and the relationship between the declarant child and witness;

(6) Cross-examination could not show the lack of knowledge of the declarant child;

(7) The possibility of faulty recollection of the declarant child is remote; and

(8) The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused. (c) The child witness shall be considered unavailable under the following situations:

(1) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or

(2) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. (d) When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence.

ADDITIONAL RULES:

QUALIFICATIONS AND DISQUALIFICATIONS OF A WITNESS

General Rule:

All persons who can perceive, and perceiving, can make known their perception to others, may be witnesses (Rule 130, Sec. 21)

Exceptions: Except as provided by law or the Rules, such as:

• Disqualification by reason of marriage (Rule 130, Sec. 23)
• Disqualification by reason of privileged communication (Rule 130, Sec. 24)
• Parental and filial privilege (Rule 130, Sec. 25)
• Privilege relating to trade secrets (Rule 130, Sec. 26)

Note: The 2019 amendments to the Rules of Evidence have deleted the previous Sec. 21 relating to disqualifications by reason of mental incapacity or immaturity since it is deemed superfluous, given that the general rule as to the competency of a witness necessarily covers such disqualification.

Loss of the perceptive senses after the occurrence of the fact does not affect the admissibility of the testimony.

General Rule: Religious or political belief, interest in the outcome of the case, or conviction of a crime shall not be a ground for disqualification. (Rule 130, Sec. 21)

Exception: Unless otherwise provided by law

General Rule: Conviction of a crime is not a ground for disqualification of a witness.

A prospective witness must show that he has the following abilities:

• To Observe, the testimonial quality of perception;
• To Remember the perception;
• To Relate the perception;
• That he has to Recognize a duty to tell the truth, under oath or affirmation. (Herrera, p. 278)

A deaf-mute is competent to be a witness so long as he/she has the faculty to make observations and he/she can make those observations known to others (People v. Aleman y Longhas, G.R. No. 181593, 2012)

Parties declared in default are not disqualified from taking the witness stand for non-disqualified parties. The law does not provide default as an exception. (Marcos v. Heirs of Navarro, G.R. No. 198240, 2013)

There is no substantive or procedural rule which requires a witness for a party to present some form of authorization to testify as a witness for the party presenting him or her. (AFP Retirement and Separation Benefits System v. Republic, G.R. No. 188956, 2013)