b. Child Witness (AM 00-4-07-SC)

When determined<br>

Qualification of a witness is determined at the time the said witness is produced for examination or at the taking of their depositions.

With respect to children of tender years, competence at the time of the occurrence is also taken into account.

i. Applicability of the rule<br>

Unless otherwise provided, this rule shall govern the examination of a child witness who are:

• victims of a crime;
• accused of a crime; and
• witnesses to a crime

Where applicable: all criminal and non-criminal proceedings involving child witnesses [Sec. 1, Rule on Examination of a Child Witness]

ii. Meaning of “child witness"<br>

Child witness—any person who at the time of giving testimony is:

• below the age of 18 years; or
• in child abuse cases, may be over 18 but is found by the court 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 [Sec. 4 (a), Rule on Examination of a Child Witness]

iii. Competency of a child witness<br>

General Rule: Every child is presumed qualified to be a witness.

Exception: 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 child’s ability to:

• Perceive
• Remember
• Communicate
• Distinguish from falsehood, or
• Appreciate the duty to tell the truth in court [Sec. 6]

Conduct of examination<br>

• Conducted only by the judge
• Counsel for the parties may submit questions to the judge
• It is discretionary upon the judge if he will ask the child the submitted questions [Sec. 6(d)]

Developmentally appropriate questions<br>

The questions asked shall:

• be appropriate to the age and developmental level of the child;
• not be related to the issues at trial; and
• focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully. [Sec. 69(d)]

Continuing duty to assess competence<br>

The court has the duty of continuously assessing the competence of the child throughout his testimony [Sec. 6(f)]

iv. Examination of a child witness<br>

Done in open court

General Rule: Given orally

Exception: If the witness is incapacitated to speak or the question calls for a different mode of answer [Sec. 8]

v. Live-link TV testimony of a child witness

The prosecutor, counsel or guardian ad litem may apply for an order that the testimony of the child be taken in a room outside the courtroom and be televised to the courtroom by live-link television.

Prerequisite for applying: the guardian ad litem shall consult the prosecutor or counsel and defer to their judgment regarding the necessity of applying for an order.

If the guardian is convinced that the decision of the prosecutor or counsel not to apply will cause the child serious emotional trauma, he himself may apply for the order. [Sec. 25(a)]

When applied for: at least 5 days before the trial date UNLESS the court finds on the record that the need for such an order was not reasonably foreseeable [Sec. 25(a)]

The court shall issue an order granting or denying the use of live-link television and stating the reasons therefor. [Sec. 25(e)]

When granted: if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor

• the trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child [Sec. 25(f)]

The testimony of the child shall be preserved on videotape, digital disc, or other similar devices which shall be made part of the court record and shall be subject to a protective order as provided in Sec. 31(b). [Sec. 25(h)]

vi. Videotaped deposition of a child witness

The prosecutor, counsel or guardian ad litem may apply for an order that a deposition be taken of the testimony of the child and that it be recorded and preserved on videotape.

Prerequisite for applying: Same as application for live-link TV testimony in Sec. 25(a)

When granted: If the court finds that the child will not be able to testify in open court at trial

The judge shall preside at the videotaped deposition of the child.

Objection to deposition testimony or evidence, or parts thereof, and the grounds of objection shall be stated and ruled upon at the time of the taking of the deposition.

When a child is considered unavailable:

• He/she is deceased, suffers from mental infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or
• He/she is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means [Sec. 28(c)]

Condition for admissibility if child is unavailable: His/her hearsay testimony must be corroborated by other admissible evidence [Sec. 28(d)]

Hearing necessary<br>

Before admitting such evidence, the court must conduct a hearing in chambers and afford the child, his/her guardian ad litem, the parties, and their counsel a right to attend and be heard.

The motion and the record of the hearing must be sealed and remain under seal and protected by a protective order.

The child shall not be required to testify at the hearing in chambers EXCEPT if he consents. [Sec. 30]

Additional protective order<br>

The court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of the child. [Sec. 31(c)]

Authentication and Proof; Public and Private Documents

Sections 19-33

> AUTHENTICATION AND PROOF OF DOCUMENTS Section 19. Classes of documents. – For the purpose of their presentation in evidence, documents are either public or private. Public documents are:

(a) The written official acts, or records of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; (b) Documents acknowledged before a notary public except last wills and testaments; (c) Documents that are considered public documents under treaties and conventions which are in force between the Philippines and the country of source; and (d) Public records, kept in the Philippines, of private documents required by law to be entered therein. All other writings are private. (19a) Section 20. Proof of private document[s]. – Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved by any of the following means:

(a) By anyone who saw the document executed or written; (b) By evidence of the genuineness of the signature or handwriting of the maker[;] or (c) By other evidence showing its due execution and authenticity. Any other private document need only be identified as that which it is claimed to be. (20) Section 21. When evidence of authenticity of private document not necessary. – Where a private document is more than thirty (30) years old, is produced from a custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given. (21) Section 22. How genuineness of handwriting proved. – The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he or she has seen the person write, or has seen writing purporting to be his or hers upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. (22) Section 23. Public documents as evidence. – 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 therein stated. All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter. (23) Section 24. Proof of official record. – The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his or her deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, which is a contracting party to a treaty or convention to which the Philippines is also a party, or considered a public document under such treaty or convention pursuant to paragraph (c) of Section 19 hereof, the certificate or its equivalent shall be in the form prescribed by such treaty or convention subject to reciprocity granted to public documents originating from the Philippines. For documents originating from a foreign country which is not a contracting party to a treaty or convention referred to in the next preceding sentence, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice-consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his [or her] office. A document that is accompanied by a certificate or its equivalent may be presented in evidence without further proof, the certificate or its equivalent being prima facie evidence of the due execution and genuineness of the document involved. The certificate shall not be required when a treaty or convention between a foreign country and the Philippines has abolished the requirement, or has exempted the document itself from this formality. (24a) Section 25. What attestation of copy must state. – Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he or she be the clerk of a court having a seal, under the seal of such court. (25a) Section 26. Irremovability of public record. – Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of a pending case. (26) Section 27. Public record of a private document. – An authorized public record of a private document may be proved by the original record, or by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. (27) Section 28. Proof of lack of record. – A written statement signed by an officer having the custody of an official record or by his or her deputy that[,] after diligent search[,] no record or entry of a specified tenor is found to exist in the records of his or her office, accompanied by a certificate as above provided, is admissible as evidence that the records of his or her office contain no such record or entry. (28a) Section 29. How judicial record impeached. – Any judicial record may be impeached by evidence of:

(a) want of jurisdiction in the court or judicial officer[;] (b) collusion between the parties[;] or (c) fraud in the party offering the record, in respect to the proceedings. (29) Section 30. Proof of notarial documents. – Every instrument duly acknowledged or proved and certified as provided by law, may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved. (30) Section 31. Alteration in document, how to explain. – The party producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration. He or she may show that the alteration was made by another, without his or her concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he or she fails to do that, the document shall not be admissible in evidence. (31a) Section 32. Seal. – There shall be no difference between sealed and unsealed private documents insofar as their admissibility as evidence is concerned. (32) Section 33. Documentary evidence in an unofficial language. – Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial. (33)