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Pronove on Evidence

(Article published in the Jun 18, 2008 issue of Manila Standard Today)  

Justice Ricardo L. Pronove Jr. recently revised his opus on evidence, first written in 1987 as a benchbook, now a companion volume to his just as recent work on the art of cross-examination; both are indispensable manuals in a law practitioner’s tool box.

Readers will find Pronove’s “Evidence in Action” as off-the beaten track.  First, it is not voluminous as most law books go; it consists only of 130 pages of compacted wisdom.  Second, in contrast to many legal reference books, it is so down-to-earth that it even goes to the extent of  suggesting useful expressions a new practitioner could pick up. This is particularly helpful to a fledging lawyer who understandably wants to avoid being classed as a “baguito” by the hardened trial lawyers behind him slightly smiling at his bookish language, a hateful hangover from law school style of “thinking like a lawyer.”

Third, the presentation style is shorn, to the extent possible, of all lawyer-speak.  Pronove deliberately simplifies his exposition, seeking to crack open, for lawyers, the many difficult-to-understand legal concepts as well as to enable their clients and the witnesses to understand what is going on in the course of the argumentation.  Finally, the material is organized according to the structure of existing rule of court, primarily, Rule 130, in order to ensure its ability  easily accommodate changes in the rules that the Supreme Court may institute from time to time, the very feature that made it easy for Justice Pronove to incorporate in his 1987 initial edition recent jurisprudence as well as amendatory rules adopted at the suggestion of the Rules of Court Revision Committee of the Supreme Court.










     


          As suggested by the Best Evidence Rule, the proof of what a document contains is the document itself.  Hence, there is no better way for me to demonstrate the merits of Pronove’s “Evidence in Action” than by providing some excerpts from the book itself.  By his leave, therefore, I will single out some, of the very many, points that are most practical to lawyers and litigants in the course of combat at the trial court. 

Under the old law on evidence, the testimony of a witness may be objected to only when a question is propounded.  Under rules that presently require the party to inform the court, prior to asking any question, what the testimony of the witness is going to be, Pronove observes out that objection may at this time be immediately made even before the witness is asked the first question.  If, from the summary of the expected testimony, it appears that what will be said is immaterial or, irrelevant, or incompetent, as when the admission is prohibited by law (e.g. oral evidence to prove an express trust over land) or when the witness is not qualified to give the expected testimony (e.g. privileged communication between lawyer and client), opposing counsel may object to the offered testimony. The objection, if sustained, saves the court’s time and expedites the disposition of the case.

Pronove, were he presiding over a trial today, would undoubtedly take that opportunity to ensure that nothing extraneous enters the record. Known to be a strict judge, vestiges of that well-deserved reputation are evident in Pronove’s stance on motions to strike out testimony.  When testimony that appears objectionable only in the answer but not in the question (as when the witness admits he was simply told of an event the occurrence of which he is testifying to), Pronove takes the position that the answer should be expunged from the record.  Other lower court judges, the lenient ones loved by many trial lawyers, opt to let such testimony remain in the record on the justification that doing so permits review of the correctness of the trial court’s ruling on appeal and that, anyway, admission of the improper testimony does not necessarily mean that it will be taken it into consideration come decision time.

Personally, with due respects to the lenient judges, I find such justification just as comforting to a writhing boxer as the point deduction made against his unworthy opponent  for having delivered a very low blow below the belt.

Pronove frowns upon the common practice of objecting to a question and, when specifying his reasons, lumping all together the separate grounds of relevancy, materiality and incompetence.  “They,” says Pronove, “are invoked when counsel cannot think of an appropriate or specific reason for objecting.”  He warns that if relevancy, materiality and incompetence are “grouped together as an objection, they can be overruled or denied on the ground of vagueness.”

Also disfavored by the justice is the tendency of many trial practitioners, particularly the young ones or those whose clients are in court watching their lawyers perform, of objecting to all leading questions asked when a party is presenting his own witness.  “Not all leading questions,” says Pronove, “are objectionable…only when the leading question refers to a fact in issue or is soliciting the main point a witness is intending to prove, is the question prohibited….But when the query is directed to preliminary mattes – those that will bring the witness to testify at once on a fact in issue, thereby saving the time of everybody in gathering of evidence -- leading questions are allowed.”

Years in the judiciary prompt Pronove to stress the basics.  For instance, he observes that “often, lawyers commit the mistake of invoking the parol evidence rule when what they have in mind is the best evidence rule.” Thus, he advises, “In proving the contents of a writing – what the document says – the best evidence rule is the one involved.  But when a party contends that what the document says is not what is agreed upon by the parties, it is the parol evidence rule that should be invoked.”

Beyond basics, Pronove also highlights the finer points. Thus, he says, the privileged communication between priest and penitent is limited to that which is “penitential in character, that is, with a view of obtaining pardon for one’s sins.  Statements made by a person while merely seeking spiritual advice or help from a priest or minister are not included in the privilege.”

On the other end of the spectrum, he points out that “business entries”, as exception to the exclusionary rule against hearsay evidence, “is not limited to entries in books of accounts kept by merchants.  Even entries made by lawyers, physicians and other engaged in similar callings or professions are included.”

           It is this easy mix of expertise and experience as well as of basic reminders and nuance pointers that commends “Evidence in Action” to any one, lawyer or layman, who is or may be involved in litigation. “Evidence in Action” is a permanent item in my trial armory; the marginal impact of its weight in my brief case is inversely proportional to the value of its contribution to the quality of my trial performance.

 

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