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MARITAL DISQUALIFICATION RULE VS MARITAL PRIVILEGE RULE

Spousal Immunity or Marital Disqualification Rule Can be invoked only if one of the spouses is a party to the action Applies only if the marriage is existing at the time the testimony is offered Constitutes a total prohibition against the spouse of the witness (testimony on any fact) As to Requisites: Spousal Immunity or Marital Disqualification Rule

Marital Privilege Rule

Can be claimed whether or not the spouse is a party to the action Can be claimed even after the marriage has been dissolved Applies only to confidential communications between the spouse

Marital Privilege Rule

1. Marriage is valid and existing as of the 1. There was a valid marital relation; time of the offer of the testimony; 2. The privilege is invoked with respect to 2. The other spouse is a party to the a confidential communication between the action. spouses during said marriage; 3. The spouse against whom such evidence is being offered has not given his or her consent to such testimony.

MARITAL DISQUALIFICATION RULE (Rule 130, Sec. 22) General Rule: During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse. Exceptions: In a civil case by one against the other or, In a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. Reason for the Rule The rule forbidding one spouse to testify for or against the other is based on principles which are deemed important to preserve the marriage relation as one of full confidence and affection. Who Can Invoke the Privilege The right to invoke this disqualification belongs to the spouse-party (Ortiz v. Arambulo, 8 Phil. 98)

This can be waived just like any other objection to the competency of other witnesses. It may be waived: 1) By a failure to interpose timely objection, or 2) By calling the other spouse as witness (People v. Francisco, 78 Phil. 694) Marrying the Witness An accused can effectively seal the lips of a witness by marrying the witness. As long as a valid marriage is in existence at the time of the trial, the witness-spouse cannot be compelled to testify.

MARITAL PRIVILEGE RULE (Rule 130, Sec. 24(a)) General Rule: Husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage Exceptions: In a civil case by one against the other, or In a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants; The privilege cannot be claimed with respect to communications made prior to the marriage of the spouse. The privilege on principle applies to any form of confident disclosure. Usually this will be a communication in words but it may also include conduct. Who Can Invoke the Privilege The privilege is claimable by the spouse not called as witness, so that it its waivable only by him or her; and it is waivable by any act of such spouse which might be considered as an express or implied consent to the disclosure of the communication. (People v. Hayes, 140 N.Y. 484)

ATTORNEY-CLIENT PRIVILEGE RULE (Rule 130, Sec. 24(b)) Reason for the Rule public policy Requisites 1) There is an attorney and client relation; 2) The privilege is invoked with respect to a confidential communication between them in the course of professional employment; 3) The client has not given his consent to the attorneys testimony.

Who Can Invoke the Privilege: Privilege is owned by the client. It is he who can invoke the privilege. For the privilege to apply, the attorney must have been consulted in his professional capacity, even if no fee has been paid therefore. An attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity. The privilege DOES NOT apply when the action was brought by the client against the attorney. Also, when: 1. intended to be made public; 2. intended to be communicated to others; 3. intended for an unlawful purpose; 4. received from third person not acting in behalf or as agent of the client; 5. made in the presence of third parties who are strangers to the attorney-client relationship. The attorney-client privilege may not be invoked to refuse to divulge the identity of the client, EXCEPT: (1) When a strong probability exists that revealing the name would implicate that person in the very same activity for which he sought the lawyers advice; (2) When disclosure would open the client to liability; (3) When the name would furnish the only link that would form the chain of testimony necessary to convict. (Regala vs. Sandiganbayan, 1996)

PHYSICIAN-PATIENT PRIVILEGE (Rule 130, Sec. 24(c)) Reason for the Rule Intended to facilitate and make safe, full and confidential disclosure by patient to physician of all facts, circumstances, and symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand, to the end that the physician may form a correct opinion, and be enabled safely and efficaciously to treat his patient. Requisites 1) The physician is authorized to practice medicine, surgery, or obstetrics; 2) The information was acquired or the advice or treatment was given by him in his professional capacity for the purpose of treating and curing the patient; 3) The information, advice or treatment, if revealed, would blacken the reputation of the patient; 4) The privilege is invoked in a civil case, whether patient is a party or not The privilege does not apply where: 1) The communication was not given in confidence;

2) The communication is irrelevant to the professional employment; 3) The communication was made for an unlawful purpose, as when it is intended for the commission or concealment of a crime; 4) The information was intended to be made public; 5) There was a waiver of the privilege either by provisions of contract or law. PRIEST-PENITENT PRIVILEGE (Rule 130, Sec. 24(d)) A minister or priest cannot, without the consent of the person making the confession, be examined as to: Any confession made to or Any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs PUBLIC OFFICER PRIVILEGE (RULE 130, Sec. 24(e)) Requisites 1) That it was made to the public officer in official confidence; 2) That public interest would suffer by the disclosure of such communication, as in the case of State secrets. Where no public interest will be prejudiced, this rule will not apply. PUBLIC INTEREST something in which the community at large has some pecuniary interest by which their legal rights or liabilities are affected. Other instances of Privilege Under RA 53 as amended by RA 1477, the publisher, editor or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news report or information appearing in said publication which was related in confidence to him unless the court or a House or committee of Congress finds that such revelation is demanded by the Security of the State. Art. 233 of the Labor Code provides that all information and statements made at conciliation proceedings shall be treated as privileged communications and shall not be used as evidence in the National Labor Relations Commission, and conciliators and similar officials shall not testify in any court or body regarding any matter taken up at the conciliation proceedings conducted by them.

2. Testimonial Privilege Section 25. Parental and filial privilege. No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. Reason for the Rule

Preserve family cohesion deploring the lack of this provision under former laws as doing violence to the most sacred sentiments between members of the same family. NOTE: The privilege may now be invoked in both civil and criminal cases. Parental and filial testimony does not prohibit voluntary testimony or compelled testimony against relatives by affinity or collateral relatives. Who are NOT covered and may be compelled to testify: 1) Relatives by affinity. 2) Brothers and sisters. 3) Aunts, uncles, nephews, nieces. 4) Cousins of whatever degree. 5) Other collateral relatives.

SOME BAR QUESTIONS AND SUGGESTED ANSWERS Privilege Communication (1998) C is the child of the spouses H and W. H sued his wife W for judicial declaration of nullity of marriage under Article 36 of the Family Code. In the trial, the following testified over the objection of W: C, H and D, a doctor of medicine who used to treat W. Rule on W's objections which are the following: 1. H cannot testify against her because of the rule on marital privilege; [1%] 2. C cannot testify against her because of the doctrine on parental privilege; and [2%] 3. D cannot testify against her because of the doctrine of privileged communication between patient and physician. [2%] SUGGESTED ANSWER: 1. The rule of marital privilege cannot be invoked in the annulment case under Rule 36 of the Family Code because it is a civil case filed by one against the other, (Sec. 22 , Rule 130. Rules of Court.) 2. The doctrine of parental privilege cannot likewise be invoked by W as against the testimony of C, their child. C may not be compelled to testify but is free to testify against her. (Sec. 25. Rule 130. Rules of Court; Art. 215, Family Code.) 3. D, as a doctor who used to treat W, is disqualified to testify against W over her objection as to any advice or treatment given by him or any information which he may have acquired in his professional capacity. (Sec. 24 [c], Rule 130. Rules of Court.) ALTERNATIVE ANSWER: If the doctor's testimony is pursuant to the requirement of establishing the psychological incapacity of W, and he is the expert called upon to testify for the purpose, then it should be allowed. (Republic vs. Court of Appeals and Molina, 26S SCRA 198.)

Privilege Communication; Marital Privilege (1989) Ody sued spouses Cesar and Baby for a sum of money and damages. At the trial, Ody called Baby as his first witness. Baby objected, joined by Cesar, on the ground that she may not be compelled to testify against her husband. Ody insisted and contended that after all, she would just be questioned about a conference they had with the barangay captain, a matter which is not confidential in nature. The trial court ruled in favor of Ody. Was the ruling proper? Will your answer be the same if the matters to be testified on were known to Baby or acquired by her prior to her marriage to Cesar? Explain. SUGGESTED ANSWER: No. Under the Rules on Evidence, a wife cannot be examined for or against her husband without his consent, except in civil cases by one against the other, or in a criminal case for a crime committed by one against the other. Since the case was filed by Ody against the spouses Cesar and Baby, Baby cannot be compelled to testify for or against Cesar without his consent. (Lezama vs. Rodriguez, 23 SCRA 1166). The answer would be the same if the matters to be testified on were known to Baby or acquired by her prior to her marriage to Cesar, because the marital disqualification rule may be invoked with respect to testimony on any fact. It is immaterial whether such matters were known to Baby before or after her marriage to Cesar. Privilege Communication; Marital Privilege (2000) Vida and Romeo are legally married. Romeo is charged to court with the crime of serious physical injuries committed against Selmo, son of Vida, stepson of Romeo. Vida witnessed the infliction of the injuries on Selmo by Romeo. The public prosecutor called Vida to the witness stand and offered her testimony as an eyewitness. Counsel for Romeo objected on the ground of the marital disqualification rule under the Rules of Court. a) Is the objection valid? (3%) b) Will your answer be the same if Vidas testimony is offered in a civil case for recovery of personal property filed by Selmo against Romeo? (2%) SUGGESTED ANSWER: (a) No. While neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, one exception is if the testimony of the spouse is in a criminal case for a crime committed by one against the other or the latters direct descendants or ascendants. (Sec, 22, Rule 130). The case falls under this exception because Selma is the direct descendant of the spouse Vida. (b) No. The marital disqualification rule applies this time. The exception provided by the rules is in a civil case by one spouse against the other. The case here involves a case by Selmo for the recovery of personal property against Vidas spouse, Romeo. Privilege Communication; Marital Privilege (2004) XYZ, an alien, was criminally charged of promoting and facilitating child prostitution and other sexual abuses under Rep. Act No. 7610. The principal witness against him was

his Filipina wife, ABC. Earlier, she had complained that XYZ's hotel was being used as a center for sex tourism and child trafficking. The defense counsel for XYZ objected to the testimony of ABC at the trial of the child prostitution case and the introduction of the affidavits she executed against her husband as a violation of espousal confidentiality and marital privilege rule. It turned out that DEF, the minor daughter of ABC by her first husband who was a Filipino, was molested by XYZ earlier. Thus, ABC had filed for legal separation from XYZ since last year. May the court admit the testimony and affidavits of the wife, ABC, against her husband, XYZ, in the criminal case involving child prostitution? Reason. (5%) SUGGESTED ANSWER: Yes. The court may admit the testimony and affidavits of the wife against her husband in the criminal case where it involves child prostitution of the wife's daughter. It is not covered by the marital privilege rule. One exception thereof is where the crime is committed by one against the other or the latter's direct descendants or ascendants. (Sec. 22, Rule 130). A crime by the husband against the daughter is a crime against the wife and directly attacks or vitally impairs the conjugal relation. (Ordono v. Daquigan, 62 SCRA 270 [1975]). Privilege Communication; Marital Privilege (2006) Leticia was estranged from her husband Paul for more than a year due to his suspicion that she was having an affair with Manuel their neighbor. She was temporarily living with her sister in Pasig City. For unknown reasons, the house of Leticia's sister was burned, killing the latter. Leticia survived. She saw her husband in the vicinity during the incident. Later he was charged with arson in an Information filed with the Regional Trial Court, Pasig City. During the trial, the prosecutor called Leticia to the witness stand and offered her testimony to prove that her husband committed arson. Can Leticia testify over the objection of her husband on the ground of marital privilege? (5%) ALTERNATIVE ANSWER: No, Leticia cannot testify over the objection of her husband, not under marital privilege which is inapplicable and which can be waived, but she would be barred under Sec. 22 of Rule 130, which prohibits her from testifying and which cannot be waived (Alvarez v. Ramirez, G.R. No. 143439, October 14, 2005). ALTERNATIVE ANSWER: Yes, Leticia may testify over the objection of her husband. The disqualification of a witness by reason of marriage under Sec. 22, Rule 130 of the Revised Rules of Court has its exceptions as where the marital relations are so strained that there is no more harmony to be preserved. The acts of Paul eradicate all major aspects of marital life. On the other hand, the State has an interest in punishing the guilty and exonerating the innocent, and must have the right to offer the testimony of Leticia over the objection of her husband (Alvarez v. Ramirez, G.R. No. 143439, October 14, 2005).