MÉXICO

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

The qualifications of a witness; he can see and can tell others of what he saw, or he can hear and can tell others of what he heard, or can feel and can narrate to others what he felt. Therefore, practically, almost the entire human race is qualified.

Q: Is a blind person qualified to become a witness?

A: Yes, for as long as what is to be asked is not on what he saw. But if he still has the senses of touch, smell -- he may testify on these matters.

One need not be a high school graduate in order to be qualified to be a witness. The requirements are only those that can be found in the law.

Q: Is a deaf-mute qualified to be a witness?

A: Yes. He can still communicate through sign language. In the case People vs. Tomentos, the Supreme Court said that a witness is competent to testify even if she could convey ideas only through signs or body language.

PEOPLE vs. TOMENTOS 211 SCRA 212

Facts: A complaint was filed through the Assistant Prosecutor charging Henry Tomentos with the rape of Salvacion Cabahug.

During the trial, the prosecution presented the testimonial evidence of 10 witnesses which included the victim herself. It was established that the victim is a 21-year-old girl with a mind of an 8 to 10 years old, with an IQ of 55 to 69%; that the victim spent 3 years in Grade One. Being a mental retardate, she was able to pass Grade Five with only a 75% average; that she

is not inclined to verbal communication, and if sent to the store to buy something, a list of the things to buy must be written on a piece of paper clipped together with the money. There were more proofs presented as to the victim’s being mentally retarded which were confirmed by a series of psychological evaluations conducted by a medical expert.

Issue: whether or not the testimony of the victim should be given credit. Is the victim a competent witness despite her being a mental retardate?

Holding: The victim is a competent witness, even if she could convey her ideas only through signs or body language.

The medical expert on mental health has proved that the victim does not have hallucinations, is in touch with reality, does not fantasize but only has the tendency to convey thoughts through some body languages like checking the name of the accused and looking or gazing at the accused for quite a few times when he was seated beside 3 other suspected boys in the locality. These makes the victim a competent witness as she can convey her ideas in many forms like signs, writings and body gestures, aside from words.

Immaterial and insubstantial lapses as to the exact date or dates and minor details in the victim’s testimony should not be taken against the victim. These things are expected from a mental retardate.

Q: How about a person who is interested in the outcome of a case? Can a biased witness testify? For example, A is the plaintiff and he is suing B.

Can B testify for himself? Yes, even if the defendant can testify for himself.

But what if A’s witnesses are his relatives?

A: Witnesses may testify even if they are biased towards a party, or are relatives of a party for whom they are testifying. The only qualification for any witness is that he or she can perceive, and make known to others such perception. Any such witness may testify, but this does not automatically mean that the court will give weight to such testimony. Again, do not confuse admissibility from weight or credibility.

Even if the person is the biggest liar in the world, and he is presented as a witness in court, the court has no choice but to hear what he has to say. Such testimony will be recorded, although later on when the court decides the judge will check on everything that he said. His being a liar may affect the credibility of his testimony, but still he is not disqualified from testifying.

Q: Is an atheist or one who does not believe in a supreme being, or in the afterlife disqualified form being a witness? Is the testimony of such person admissible in court?

A: The law says that religious or political belief shall not be a ground for disqualification. The testimony of such a person is admissible in court.

Q: Is a person convicted of a crime disqualified from testifying in court?

A: No, except when the law provides that the crime the person is convicted with carries with it disqualification from testifying in court. The same rule goes for ex-convicts as well.

EXAMPLE: The next witness is Juan de la Cruz. In his criminal record, it appears that he has been convicted 3 times for false testimony, and 7 times for perjury. Is he still qualified to testify? Yes, for as long as he perceives and make known such perception to other people. The court may say that it does not believe the testimony of Juan de la Cruz. But that is already in the realm of weight or credibility.

The Civil Code also provides for grounds for disqualification:

Article 821. The following are disqualified from being witnesses to a will:

(1) any person not domiciled in the Philippines;

(2) those who have been convicted of falsification of a document, perjury or false testimony

Under this provision, when a person wishes to have the will probated but he is disqualified from being a witness, he cannot act as such witness.

Being disqualified as a witness in a will makes a person disqualified as a witness in court probate.

According to an American writer in Evidence, a prospective witness must show four qualities or abilities:

(1) to observe  the testimonial quality of perception;

(2) to remember  the testimonial quality of memory;

(3) to relate  the testimonial quality of narration; and,

(4) to recognize a duty to tell the truth  the testimonial quality of sincerity

The first three are required in admissibility. Even if a person can see but cannot remember any thing, his testimony would be useless. The fourth is more a requirement of credibility.

The disqualification of witnesses is covered not only by Section 21 but also by Sections 22 to 24. the next four sections deal with disqualification:

(1) by reason of mental incapacity or immaturity;

(2) by reason of marriage;

(3) by reason of death or insanity of the adverse party; and, (4) by reason of privilege communication.

In Section 21, the people mentioned here are ABSOLUTELY DISQUALIFIED FROM TESTIFYING IN ANY CASE, IN ANY TYPE OF PROCEEDING. Such person is not even allowed to take the witness stand. He is totally disqualified.

Sections 22, 23 and 24 are called PARTIAL or RELATIVE DISQUALIFICATION because the witness is qualified to be a witness, but is disqualified from testifying on certain matters. So, such witness may be asked questions on anything except on certain matters. If he is asked on matters that are not allowed to be asked of him, him answers are inadmissible. He should not have answered.

CAVILI vs. FLORENDO 154 SCRA 610

Facts: Private respondents filed a civil case against Quirino, Primitivo and Perfecta Cavili for partition, accounting and damages. Defendant Perfecta, however, failed to file her answer and was subsequently declared in default.

Atty. Alamillo, in behalf of the other defendants, filed a motion for new trial for lack of jurisdiction over the persons of Primitivo and Quirino Cavili, who were not validly served with summons. The court granted the motion.

Defendants Primitivo and Quirino presented Perfecta as their first witness. Respondents moved for her disqualification as a witness on the ground that, having been declared in default, she had lost her standing in court and thus cannot be allowed to participate in all proceedings therein, even as a witness. the court sustained the respondents’ contention and disqualified Perfecta from testifying.

Issue: whether or not a party in default is a competent witness.

Holding: A party in default may be presented as a witness by his co-defendants, who have the standing and the right to present evidence, to secure the attendance of witnesses and the production of evidence in their behalf. To reject Perfecta’s presentation of testimonial evidence would be to treat Primitivo and Quirino as if they, too, were in default.

The respondents’ contention that to permit a party in default to take the witness stand is to “take part in the trial” is untenable. The loss of standing in court is the consequence of

an order of default. Thus, a party declared in default is considered as out of court and cannot appear therein, adduce evidence, and be heard, and for that reason he is not entitled to notice. However, “loss of standing” must be understood to mean only the forfeiture of one’s rights as a party litigant, contestant or legal adversary.

A party in default losses his right to present his defense, control the proceedings and examine or cross-examine the witnesses. He has no right to expect that his pleadings would be acted upon by the court, nor may be object to or refute evidence or motions filed against him. There is nothing in the Rules, however, which contemplates a disqualification to be a witness or deponent in a case. DEFAULT DOES NOT MAKE HIM AN INCOMPETENT WITNESS.

As opposed to a party litigant, a witness is merely a beholder, spectator, or onlooker called upon to testify as to what he had seen, heard or observed. As such, he takes no active part in the content of rights between the parties. He remains suffering the effects of an order of default.

There is no provision in the Rules disqualifying parties declared in default from taking the witness stand for non-disqualified parties. The generosity with which Rule 30, Sec. 18 allows people to testify is apparent. As a general rule, where there are EXPRESS exceptions (Rule 130, Secs. 21 - 24; Rule 132, Sec. 15), these comprise the only limitations on the operation of a statute and no other exception will be implied.

The Rule should not be interpreted to include an exception not embodied therein.

TAKE NOTE: Again the only qualification for a person to be a witness is that he can perceive and can make known to others such perception.

Disqualified witnesses are enumerated in Secs. 21, 22, 23 and 24; the law does not include default as one of them.

Under the law, where there are two defendants  one files his answer but the other does not, if the defense of the answering defendant succeeds, the defaulting defendant is also benefited. In effect, the answer of the answering defendant is also the answer of the defaulting one.

Q: In the above case, by providing evidence for his co-defendant, will this not benefit the defaulting defendant?

A: That is true, but this INCIDENTAL BENEFIT if of minor consequence.

Of greater concern or importance is the preservation of the right of the answering defendant to secure the attendance of his witnesses and the production of evidence on his behalf. Whatever benefit the defaulting

defendant derives is purely incidental, but definitely one cannot also prejudice the answering defendant.

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.

This is the first disqualification. Take note that the disqualification here is TOTAL. These people are not qualified to be witnesses at any time at any place. Who are these people? For example, insane people. They can communicate, but it will be a useless dialogue. Insane people are disqualified from testifying because of their mental incapacity.

Q: What about the feeble-minded, whose memory is impaired -- are they of the same category as the insane people?

PEOPLE vs. PALMA 144 SCRA 236

Facts: A complaint was filed with the RTC against Pedro Palma, a 64-year-old carpenter, for the rape of Imelda Telada, a 14-year-old mental retardate.

The trial court rendered a decision finding Palma guilty beyond reasonable doubt of rape. However, it concluded that Telada is “mentally deficient enough to be unable to give valid consent to (engage in) sexual intercourse with Palma, and that Palma is aware of this mental deficiency of Imelda and took advantage of it.”

In this appeal, Palma contends, among others, that the trial court erred in giving weight and credence to the testimony of this mentally deficient complaining witness.

Issue: whether or not a feeble-minded complainant is a competent witness.

Holding: A feeble-minded complainant is a competent witness as long as she can convey her ideas by words or signs and give sufficient intelligent answers to the questions propounded by the court and the counsels (Section 18, Rule 130).

Dr. Anenias, who performed a psychiatric and intellectual assessment of Imelda, stated that she was able to say: “da,

da” for the first time when she was already 3 years old. He noticed that during the examination, Imelda was “functioning not in her normal, intellectual endowment.” While the defense counsel described Imelda as intelligent, the trial court sized her up as “mentally deficient to a point where she is incapable of realizing the moral implications of her sexual relationship with the accused, in the same manner as a girl below 12 years of age can relate her sexual experience without understanding the moral implications of said act.

The record shows that while at times, she would jump ahead of the questions asked her in court, her answers were coherent enough for the trial court to perceive the ideas she wanted to convey. She was, therefore, a competent and credible witness.

PEOPLE vs. SALOMON 229 SCRA 403

Facts: On October 11, 1987, Sylvia Soria, a 20-year-old mental retardate, was weakling along a highway in Gandara, Samar when accused Alejandro Salomon and Feliciano Conge, who were apparently waiting for her, accosted her and forcibly took her to the nearby ricefield where she was raped by Salomon with Conge’s assistance. Subsequently, Soria reported her ordeal to her brother and father. The father then filed a complaint for rape in his daughter’s behalf.

A few days after the filing of the complaint, the 2 accused could not be found. After 4 months, they were finally apprehended. Following a protracted investigation, an information for rape was filed against Salomon and Conge. The principal witness for the prosecution was the victim herself. she recounted in detail the manner of her ravishment by the accused.

Defense suggested that the testimony of Soria is flawed because she is an insane person who was confined at the National Mental Hospital, a few months before the alleged rape incident.

Issue: whether or not Soria is disqualified from being a witness in the rape case in view of her condition as a mental retardate.

Holding: A mental retardate is not, for this reason alone, disqualified from being a witness. As in the case of other witness, acceptance of his testimony depends on its nature and credibility or, otherwise put, the quality of his perceptions and the manner he can make them known to the court. Thus, in

People vs. Gerones (193 SCRA 263), the Court accepted the testimony of a rape victim notwithstanding that she had the mentality of a 9 or 10-year-old because she was able to communicate her ordeal... clearly and consistently.

The Court noted that although Soria’s speech was slurred and it was necessary at times to ask her leading questions, her testimony was positive, clear, plain, coherent, and credible.

Furthermore, a woman will not expose herself to the humiliation of a rape trial, with its attendant publicity and the morbid curiosity it will arouse, unless she has been truly wronged and seeks atonement for her abuse.

NOTE: The assessment of the evidence, especially the credibility of the witnesses, is the primary function of the judge presiding at the trial.

EXAMPLE: A crime was committed and the only witness was an insane person. Later on, the accused was charged and the prosecution learned that their star witness used to be insane. He just got better. So, during the trial, he had recovered and was presented as the prosecution’s first witness. Defense sought to disqualify the witness because at the time the case happened, he was insane -- although now he is normal.

Q: If you were the judge, would you disqualify the witness or not?

A: No, he should not be disqualified. He is qualified because the reckoning point is AT THE TIME OF HIS PRODUCTION, at the time of the testimony, So the witness in the above case is not covered by Sec. 21.

But, can one rely on the memory of the witness? He may be normal now, but he will be testifying on events which happened when he was mentally sick. Will this affect the credibility or weight of his testimony? His credibility may be affected but not the admissibility of his testimony. You cannot disqualify a witness, simply because he is not believable.

The second disqualification. This involves mental immaturity, sometimes called disqualification by reason of infancy .

Q: Are all children disqualified from being witnesses based on the above provision? Suppose a minor is capable of perceiving and relating truthfully what he saw, is he qualified? What is the meaning of “age”?

A: It depends. It is not actually the age of the child that matters but his MENTAL MATURITY. The child must only be capable of relating to the court what he saw or heard. So, there is no minimum age requirement here. What is important is the degree of mental development of the minor.

Q: If an 11-year-old child to testify on a crime which he witnessed 10 years ago, may he validly do so?

A: Yes, for as long as he can remember what took place and can communicate these details before the court. The reckoning point is still the time of his production for examination.

Q: But how can a 1-year-old child possibly remember what he saw?

A: That is now a matter as to credibility of the witness, or the weight of his testimony. But we are not talking about that now.

Q: How do we know that a minor meets the standards?

A: According to books on Trial Technique, the minor must be subjected to PRELIMINARY QUESTIONS either by the judge or counsel. He will be asked innocent questions dealing with everyday life. Much like an IQ test.

A: According to books on Trial Technique, the minor must be subjected to PRELIMINARY QUESTIONS either by the judge or counsel. He will be asked innocent questions dealing with everyday life. Much like an IQ test.