Criminal Evidence (CLJ4)

School of Criminology
1st Semester, AY 2020-2021

MODULE 3
Testimonial Evidence

Module Overview: This module is intended to give an overview of testimonial

evidence, its requisites for admissibility, and define and distinguish competence from
credibility.

Module Outcomes:
At the end of the module the students should be able to;

1. Define testimonial evidence;

2. Enumerate the requisites for admissibility of testimonial evidence; and
3. Distinguish competence from credibility.

Module Content:

Testimonial Evidence
1. Requisites for admissibility
 Ability to Perceive
 Capability to Make Known or Communicate his
Perception
 Declaration must be Done in Open Court
 Declaration must be under Oath or Affirmation
 Possesses NONE OF THE DISQUALIFICATIONS as
stated in Secs. 21- 25, Rule 130 of the Rules on
Evidence
2. Competency vs. Credibility
3. Objection to competency of witness
4. Waiver of objection

SJC CLJ4 Page | 1

Discussion

A. Requisites for Admissibility of Testimonial Evidence

Section 20, Rule 130. Witnesses, their qualifications.- Except as provided

in the next succeeding section, all persons who can perceive, and perceiving, can
make known their perception to others, maybe witnesses.

Religious or political belief, interest in the outcome of the case, or

conviction of a crime unless otherwise provided by law, shall not be a ground for
disqualification.

Section 1, Rule 132. Examination to be done in open court. – The

examination of witnesses presented in a trial or hearing shall be done in open
court, and under oath or affirmation. 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.

Requisites:

1. Ability to perceive
2. Capability to make known or communicate his perception
3. Declaration must be Done in Open Court;
4. Declaration must be under Oath or Affirmation; and
5. Possesses none of the disqualifications as stated in Secs. 21- 25,
Rule 130 of the Rules on Evidence

1. Ability to Perceive

“A person is qualified or is competent to be a witness, if (a) he is capable of

perceiving, and (b) he can make his perception known. It should be noted however,
that loss of the perceptive sense after the occurrence of the fact does not affect the
admissibility of the testimony. Hence a blind man can testify to what he prior to his
blindness or a deaf man, to what he heard prior to his deafness. But a
person incapable of perception is incapable of testifying.

“The fact that complainant displayed difficulty in comprehending the questions

propounded on her is undisputed. However, there is no showing that she could not
convey her ideas by words or signs. It appears in the records that complainant gave
sufficiently intelligent answers to the questions propounded by the court and the
counsels. The trial court is satisfied that the complainants can perceive and transmit
in her own way her perceptions to others. She is therefore found to be a competent
witness.”

2. Capability to make known or communicate his perception.

A witness may have been capable of perceiving, yet incapable of narration. He

may have no powers of speech, and have no means of expressing himself by signs. He
may have become insane since the occurrence he is called upon to relate. A
person incapable of narration is incapable of testifying.

3. Declaration must be done in open court

4. Declaration must be under Oath or Affirmation.

“A person is not qualified to be a witness if he is incapable of understanding the

duty to tell the truth. An oath or affirmation is necessary for the witness to recognize
the duty to tell the truth. The oath of a witness signifies that he is swearing to the
Creator “to tell the truth and nothing but the truth” and that if he does not, he will
later on answer for all the lies he is guilty of.” X xx “It is enough that the witness
understands and believes that some earthly evil will occur to him for lying.

Effect of Failure to Swear In a Witness

The defense presented Senior, Junior, and Johnny Palasan (Palasan) as witnesses.
Calib was also presented as a witness but his testimony was deemed inadmissible in
evidence for being hearsay because he was not sworn in when he took the witness
stand. The testimonies of the defense witnesses tended to establish that the Napones
acted in self-defense and in defense of a relative. (Napone v. People, G.R. NO. 193085,
November 29, 2017)

5. Possesses none of the disqualifications as stated in Secs. 21- 25, Rule 130 of
the Rules on Evidence (Discussion in the next module)

COMPETENCY v. CREDIBILITY

While “Religious or political belief, interest in the outcome of the case, or

conviction of a crime”, by themselves, do not render a witness as INCOMPETENT or
DISQUALIFIED to testify, said witness’ CREDIBILITY make be challenged on account
of his BIAS or PREJUDICE on account of his Religious or political belief, interest in
the outcome of the case, or conviction of a crime.

Competence is a matter of law or, in this jurisdiction, also a matter of rule.

Credibility of a witness has nothing to do with the law or rules. It refers to the weight
and trustworthiness or reliability of the testimony. In deciding the competence of a
witness, the court will not inquire into the trustworthiness of a witness.

General Rule: Personal knowledge of judge is not knowledge of court.

Thus, a judge must be very patient, and not make premature conclusions until
after all of the evidence from both parties is offered before the court lest he be accused
of acting in undue haste or worse, of bias or partiality. The judge must first ascertain
whether the evidence being presented before him, is admissible, i.e, relevant and is not
excluded by the rules pursuant to Sec. 3, Rule 128 which states: “evidence is
admissible when it is relevant to the issue and is not excluded by the rules”.

Only after an ascertainment is made that evidence being presented is

COMPETENT, that the Judge can apply his own BIASES and PERSONAL
EXPERIENCE in ARRIVING at a CONCLUSION AS TO WHETHER the PROPOSITION
BEING FOSTERED BY A PARTY IS TRUE OR NOT.

“The life of the law has not been logic: it has been experience. The felt
necessities of the time, the prevalent moral and political theories, intuitions of public
policy, avowed or unconscious, even the prejudices which judges share with their
fellowmen, have had a good deal more to do than syllogism in determining the rules by
which mean should be governed." (US Supreme Court Justice Oliver Wendell Holmes)

Thus, while a Judge cannot inject his own prejudices in determining the
COMPETENCE of a witness, because he has to apply the law or the rules at such stage
in the reception of evidence, when the judge however, after admitting into evidence
the testimony of said witness, is NOT PRECLUDED from applying his own personal
experience, observations and even his own biases and prejudices, in WEIGHING the
CREDIBILITY of the testimonial evidence.

But while competence and credibility do not mean the same, both are twin
requirements that must concur in order to determine the weight that may be assigned
to a particular testimony.

Twin Requirements of Competence of Witness and Credibility of Testimony

(Relate to Direct v. Circumstantial Evidence)

Credible witness and credible testimony are the two essential elements for
determining the weight of a particular testimony.

Section 20. Witnesses; their qualifications. - Except as provided in the next

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

Religious or political belief, interest in the outcome of the case, or conviction of crime
unless otherwise provided by law, shall not be a ground for disqualification.

Section 21. Disqualification by reason of mental incapacity or immaturity.

The following persons cannot be witnesses:

(a) Those whose mental condition, at the time of their production for examination, is
such that they are incapable of intelligently making known their perception to others;

(b) Children whose mental maturity is such as to render them incapable of perceiving
the facts respecting which they are examined and of relating them truthfully.

Direct evidence of the crime is not the only matrix wherefrom a trial court may draw
its conclusion and finding of guilt. The rules of evidence allow a trial court to rely on
circumstantial evidence to support its conclusion of guilt. Circumstantial evidence is
that evidence which proves a fact or series of facts from which the facts in issue may
be established by inference. At times, resort to circumstantial evidence is imperative
since to insist on direct testimony would, in many cases, result in setting felons free
and deny proper protection to the community.

TESTIMONIAL EVIDENCE for identification in relation to Documentary & Object

Evidence.

“It is a legal truth that identification precedes authentication. Without a

witness, no evidence can ever be authenticated. Even the so-called “self-authenticating
documents” need a witness to identify the document. The reason is simple. Being
inanimate, a document or an object cannot speak for itself”

A document which was not identified, cannot be offered in evidence.

OBJECTION TO COMPETENCY OF WITNESS

“When a witness is produced, it is a right and privilege accorded to the adverse

party to object to his examination on the ground of incompetency to testify. If a party
knows before trial that a witness is incompetent, objection must be made before he
has given any testimony; if the incompetency appears on the trial, it must be
interposed as soon as it becomes apparent.”

“The objection interposed should challenge the competency of the witness,

and not the competency of the evidence; the evidence may be competent, but the
witness may not.”

WAIVER OF OBJECTION

“The acceptance of an incompetent witness to testify as well as the allowance of

improper questions that may be put to him while on the stand is a matter resting in
the discretion of the litigant. He may assert his right by timely objection or he may
waive it, either expressly or by silence. In any case, the option rests with him. Once
admitted, the testimony is in the case for what it is worth and the judge has no power
to disregard it for the sole reason that it could have been excluded, if it had been
objected to, nor to strike it out on his own motion”

ESSAY

Would the DIFFICULTY of a witness in COMPREHENDING the questions being

propounded by the counsel examining her render a witness as INCOMPETENT?
 Can a Judge APPLY HIS OWN BIASES AND PREJUDICES IN DECIDING A
CASE?

Prepared by:

Atty. Scarlette Joy N. Coopera