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RULE 128. GENERAL CONSIDERATIONS in EVIDENCE

 

Section 1: Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding, the truth respecting a matter of fact.

 

I. Dual Concept of Evidence:

1. As the very materials presented in court consisting of objects, documents or oral narration of witnesses

 2. As a system, process or methodology of proving a fact. Hence it would refer to providing answers to such questions as who may and who may not be witnesses , what may be allowed as proof, how they are to be presented; what requirements are to be observed, what weight and importance is to be given a certain evidence in relation to other pieces of evidence.  

 3. Section1 stresses evidence as a system or methodology. But the rules often use one or the other concept. Thus which concept is followed depends upon the context in which the word “evidence” is used.

 

 II. Definition explained:

 

1. “means sanctioned by these rules”. The procedure for determining the truth is as provided for under Rules 128 to Rule 133, including the amendments there to and their interpretation given by the Courts

2. “of ascertaining in a judicial proceeding”- the rules or procedure is applicable only to controversies tried by the regular courts of law; the procedure or rules of evidence doe not apply in quasi-judicial or administrative tribunals or to courts martial. The latter may adopt the rules in their discretion

 

3.’ The truth”:

 

a). The ultimate objective  of the rules of evidence is to render  justice by arriving at the truth of a matter in dispute i.e by knowing the facts and the meaning of these facts .

b). Factual or moral truth- the truth which the court seeks to know

c). Judicial truth- the truth as found by the courts based on the evidence presented to it

d) Ideal or perfect justice- when the judicial truth is likewise the factual truth.

 

Where the two differ, still there is justice so long as the court observed both substantive and procedural due process

 

4. “ respecting a matter of fact”… the fact to be established or the point in controversy must be capable of being proven or ascertained  by the rules of evidence. The rules do not apply and cannot be used to answer questions or controversies involving religion or faith; dogma, philosophy, literature, fantasy or fiction or those which are purely speculative.  

 

III. Related Concepts: In the following instances the term ”evidence” is understood in the sense of being  the “materials presented in court” and not a methodology or proof.

 

1. Evidence from Proof-Strictly evidence is the medium of proof whereas proof is the result of evidence. Thus the materials consisting of the weapon used, the confession of the accused, the testimony of the complainant and witnesses, the result of the paraffin test, will constitute the evidence of guilt. Their combined effect will be Proof of guilt Beyond Reasonable Doubt.

     The two terms are often used interchangeably.

 

2. “Factum Probandum and “Factum Probans”. All litigations, whether civil or criminal, involve the relationship between these two concepts.

 

a) Factum Probandum refers to the ultimate fact to be proven, or the proposition to be established. That, which a party wants to prove to the court. E.g.: guilt or innocence; existence of a breach of contract; existence of an obligation; the fact of payment; the injury or damage incurred.

b). Factum Probans refers to the evidentiary facts by which the factum probandum will be proved. Examples: the written contract; the promissory note to prove the existence of an unpaid debt.

 

IV. Classification of Evidence (referring to the materials presented in court)  

 

A. Direct and Circumstantial

1. direct- that which proves a fact in issue or dispute without the aid of any inference or presumption. It is evidence to the precise point.

 Example: The eye witness account; the scar to show the wound

2. circumstantial- proof of facts or fact from which taken singly or collectively, the existence of the particular fact in issue maybe inferred or presumed as a necessary or probable consequence

 

3.  Important considerations on circumstantial evidence

 

a) This applies only in criminal cases and is governed under Rule 133(4) which for purposes of supporting a finding of guilt, requires:

i). that there be more than one circumstance

ii).that the facts from which the inference are derived are proven

iii). the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt

 

b) Per the Supreme Court: it is essential that the circumstantial evidence presented must constitute an unbroken chain which leads one to a fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person.

 

c). Guidelines in the appreciation of the probative value of circumstantial evidence

 

i) It should be acted upon with caution

ii). All essential facts must be consistent with the hypothesis of guilt

iii). The facts must exclude every other theory but that of guilt

iv). The facts must establishes such a certainty of guilt as to convince the judgment beyond reasonable doubt that the accused is the one who committed the offense 

 

B.  Positive vs. Negative Evidence

a). positive-evidence that affirms the occurrence of an event or existence of a fact, as when a witness declares that there was no fight which took place

b). negative when the evidence denies the occurrence of an event or existence of a fact, as when the  accused presents witnesses who testify that the accused was at their party when the crime was committed. Denials and alibi are negative evidences.  

c). The general rule is that positive evidence prevails over negative evidence, or that a positive assertion is given more weight over a plain denial.

 

C. Primary (Best) vs. Secondary Evidence

a). primary- that which the law regards as affording the greatest certainty of the fact in question. E.g.: the original of a contract is the best evidence as to its contents; the marriage contract as to the fact of marriage; a receipt as to the fact of payment; the birth certificate as to filiation.

b). secondary- that which is necessarily inferior and shows on its face that a better evidence exists. E.g.: Xerox copies of documents; narration of witnesses as to a written contract.

 

D. Conclusive vs. Prima facie

 

a).conclusive – may either be (i) that which the law does not allow to be contradicted as in judicial admissions or (b) that the effect of which overwhelms any evidence to the contrary as the DNA profile of a person as the natural father over a denial

b). prima facie- that which, standing alone and uncontradicted, is sufficient to maintain the proposition affirmed. In the eyes of the law it is sufficient to establish a fact until it has been disproved, rebutted or contradicted or overcome by contrary proof.

 

E. Cumulative vs. corroborative

 

a). cumulative- additional evidence of the same kind bearing on the same point. E.g.: testimonies of several eyewitnesses to the same incident

b). corroborative-additional evidence of a different kind or character but tending to prove the same point. It is evidence which confirms or supports. Thus: (i) the medico legal certificate describing the injuries to have been caused by a sharp pointed instrument corroborates the statement that the accused used a knife to stab the victim (ii) the positive results of a paraffin test corroborates the allegation that the person fired a gun and (iii) the ballistics examination on the gun of the suspect corroborates the statement that he fired his gun at the victim        

 

F. As to form:

 

a). documentary-

b). object- those consisting of evidence which are addressed to the senses of the court

c). Testimonial- evidence consisting the narration made under oath by a witness

 

G. Relevant, material and competent ( refer to section 3 and 4) 


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