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Testimony or deposition at a former trial


Sec. 47Testimony or deposition at a former proceeding. — The testimony or deposition of a witness deceased or 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. (Rule 130, Rules of Court)

Requisites for admissibility

In order to be admissible as an exception to the hearsay evidence rule, this section requires that:

1.  The witness is dead or unable to testify.

2.  His testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interest.

3. The former case involved the same subject as that in the present case, although on different causes of action.

4. The issue testified to by the witness in the former trial is the same issue involved in the present case

5. The adverse party had the opportunity to cross-examine the witness in the former case.


Why is the testimony or deposition taken at a former trial or proceeding admissible?

The reasons for the admissibility of testimony or deposition taken at a former trial or proceeding are the necessity for the testimony and its trustworthiness. Inasmuch as the former witness could no longer testify, his former testimony is admitted to prevent failure of justice.


What is meant by "same parties"?

To render the testimony of a witness admissible at a later trial or action, the parties to the first proceeding must be the same as the parties to the later proceeding. Physical identity, however, is not required; substantial identity or identity of interests suffices, as where the subsequent proceeding is between persons who represent the parties to the prior proceeding by privity in law, in blood, or in estate. The term “privity” denotes mutual or successive relationships to the same rights of property. (Republic vs Sandiganbayan, G.R. No. 152375, December 16, 2011)


May documents from a former case or proceeding be admitted in evidence?

Petitioners contend that the documents in the criminal case should not have been admitted in the instant civil case because Section 47 of Rule 130 refers only to “testimony or deposition.” We find such contention to be untenable. Though said section speaks only of testimony and deposition, it does not mean that documents from a former case or proceeding cannot be admitted. Said documents can be admitted they being part of the testimonies of witnesses that have been admitted. Accordingly, they shall be given the same weight as that to which the testimony may be entitled. (Manliclic vs Calaunan, G.R. No. 150157, January 25, 2007)  


How to prove former testimony

The best evidence to prove former testimony of a witness is the transcript of the official stenographer's notes.

It is a well known fact that stenographic notes taken by one stenographer can not always be read and transcribed by another. However, where stenographers use the same system of stenography, the notes taken by one may be read by another familiar with that system. In the present case, in view of the certificate of Mr. Clark (the stenographer who transcribed the notes of Mr. Barrington) and in the absence of proof to the effect that the transcription is not a correct transcription of the notes taken by the former stenographer, we see no objection in accepting the same as being a true and correct transcription of the notes taken of the evidence adduced during the trial of the cause. (US vs Choa Tong, 22 Phil 562)


Cases:

Samalio v. CA
G.R. No. 140079. March 31, 2005

For Section 47, Rule 130 to apply, the following requisites must be satisfied: (a) the witness is dead or unable to testify; (b) his testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; (c) the former case involved the same subject as that in the present case, although on different causes of action; (d) the issue testified to by the witness in the former trial is the same issue involved in the present case and (e) the adverse party had an opportunity to cross-examine the witness in the former case.

In this case, Weng Sai Qin was unable to testify in the administrative proceedings before the BID because she left the country on February 6, 1993, or even before the administrative complaint against petitioner was instituted. Petitioner does not deny that the testimony of Weng Sai Qin was given in Sandiganbayan Criminal Case No. 18679, a case which sprang from the information filed pursuant to Resolution No. 0-93-0224 dated February 4, 1993 of the City Prosecutor’s Office of Pasay City, the very same resolution used by Commissioner Respicio as basis for filing the administrative complaint. Hence, the issue testified to by Weng Sai Qin in Sandiganbayan Criminal Case No. 18679 was the same issue in the administrative case, that is, whether petitioner extorted money from Weng Sai Qin. Petitioner also had the opportunity to face and cross-examine his accuser Weng Sai Qin, and to defend and vindicate his cause before the Sandiganbayan. Clearly, all the requisites for the proper application of the rule on former testimony, as embodied in Section 47, Rule 130, were satisfied. Thus, the CSC and the Secretary of Justice committed no error when they applied it and took cognizance of the former testimony of Weng Sai Qin in Sandiganbayan Criminal Case No. 18679 where petitioner was convicted.


Ilao-Quinay v. Mapile
G.R. No.  154087, October 25, 2005

None of the circumstances for the admission of the testimony given at a former proceeding obtains in this case. Not only were petitioners not parties to the former proceeding and hence without opportunity to cross-examine the notary public, there was also no proof that the notary public was already deceased or unable to testify.  Hence, the testimony should not have been accorded any probative weight.


Tan v. CA
20 SCRA 54 (1967) 

Inability to testify should proceed from a grave cause, almost amounting to death, as when the witness is old and has lost the power of speech. Absent a showing that the witness is dead, outside the Philippines, or unable to testify, their prior testimony is inadmissible. Mere refusal to testify is does not amount to inability to testify. The party could have urged to court to have these witnesses summoned, arrested, and punished for contempt in case of refusal to obey the summons.


People v. Liwanag
73 SCRA 473 (1976)

Facts: The prosecution moved that the testimony of the witnesses presented during the preliminary investigation of this case be adopted as part of the evidence in chief of the prosecution. The trial court granted the motion subject to the condition that the witnesses be further cross-examined by counsel for the accused. At the trial, the witnesses for the prosecution who testified at the preliminary investigation were recalled and were again cross-examined by counsel for the appellant.

Held: The testimony sought to be made part of the evidence in chief are not ex-parte affidavits, but testimony of witnesses taken down by question and answer during the preliminary investigation in the presence of the accused and his counsel who subjected the said witnesses to a rigid and close cross-examination. The inclusion of said testimony was made subject to the right of the defendant to further cross-examine the witnesses whose testimony are sought to be reproduced and, pursuant to said order, the witnesses were recalled to the stand during the trial and again examined in the presence of the appellant. Upon the facts, there was no curtailment of the constitutional right of the accused to meet the witnesses face to face.


City of Manila vs Meralco
52 Phil 586

Facts: On June 8, 1925, a car owned by Meralco and driven by Sixto Eustaquio and a truck belonging to the City of Manila collided. Eustaquio was prosecuted and found guilty of damage to property and slight injuries through reckless imprudence. He was sentenced to pay P1788.27 plus fine of P900 and costs, with subsidiary imprisonment. Not being able to collect from the convict, the City of Manila proceeded against Meralco for subsidiary liability. Meralco set up the defense of a good father of a family. The trial judge thought it unnecessary to present the witnesses offered by the fiscal, and took cognizance of the records of the criminal case.

Issue: May the trial court  rely on the records of the criminal case to render judgment on the civil case?

Held: As a general rule, a record in a criminal action cannot be admitted in evidence in a civil action except by way of inducement or to show a collateral fact. The very obvious reason is that the parties and the issues in a criminal action and a civil action are not the same. It is rudimentary that due process must be followed in the trial of all causes. No man or entity may be condemned without a day in court. Manila Electric Company was not a party at the trial of the criminal case. By a coincidence, Attorney Carrascoso was both counsel for the defendant in the civil action. But there is lacking any proof showing that the Manila Electric Company supplied the lawyer for the accused in the criminal action and so is concluded by the judgment there rendered. It is our ruling that prejudicial error was committed in the admission by the trial court of Exhibits A to F, but that since the plaintiff made the proper offer to present its witnesses, the case should be remanded for a new trial.

The admissibility of a prior judgment, and not the previous testimony, in a criminal action is governed by different rules. A judgment in a criminal proceeding, and this rule applies with equal, if not greater, force to administrative proceedings, cannot be read in evidence in a civil action against a person not a party thereto to establish any fact therein determined. The matter is res inter alios and cannot be invoked as res judicata. Such judgment may only be admitted in evidence in a civil case by way of inducement, or to show a collateral fact relevant to the issue in the civil action.


Manliclic vs Calaunan
G.R. No. 150157, January 25, 2007  

Admittedly, respondent failed to show the concurrence of all the requisites set forth by the Rules for a testimony given in a former case or proceeding to be admissible as an exception to the hearsay rule. Petitioner PRBLI, not being a party in Criminal Case No. 684-M-89, had no opportunity to cross-examine the three witnesses in said case.  The criminal case was filed exclusively against petitioner Manliclic, petitioner PRBLI’s employee.  The cases dealing with the subsidiary liability of employers uniformly declare that, strictly speaking, they are not parties to the criminal cases instituted against their employees.

Notwithstanding the fact that petitioner PRBLI was not a party in said criminal case, the testimonies of the three witnesses are still admissible on the ground that petitioner PRBLI failed to object on their admissibility.

It is elementary that an objection shall be made at the time when an alleged inadmissible document is offered in evidence; otherwise, the objection shall be treated as waived, since the right to object is merely a privilege which the party may waive. Thus, a failure to except to the evidence because it does not conform to the statute is a waiver of the provisions of the law. Even assuming ex gratia argumenti that these documents are inadmissible for being hearsay, but on account of failure to object thereto, the same may be admitted and considered as sufficient to prove the facts therein asserted. Hearsay evidence alone may be insufficient to establish a fact in a suit but, when no objection is made thereto, it is, like any other evidence, to be considered and given the importance it deserves.

In the case at bar, petitioner PRBLI did not object to the TSNs containing the testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case when the same were offered in evidence in the trial court. In fact, the TSNs of the testimonies of Calaunan and Mendoza were admitted by both petitioners.  Moreover, petitioner PRBLI even offered in evidence the TSN containing the testimony of Donato Ganiban in the criminal case.  If petitioner PRBLI argues that the TSNs of the testimonies of plaintiff’s witnesses in the criminal case should not be admitted in the instant case, why then did it offer the TSN of the testimony of Ganiban which was given in the criminal case?  It appears that petitioner PRBLI wants to have its cake and eat it too.  It cannot argue that the TSNs of the testimonies of the witnesses of the adverse party in the criminal case should not be admitted and at the same time insist that the TSN of the testimony of the witness for the accused be admitted in its favor. To disallow admission in evidence of the TSNs of the testimonies of Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case and to admit the TSN of the testimony of Ganiban would be unfair.

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