Legres Memorandum # 3

1
MEMORANDUM
TO: Atty. John Doe, Senior Associate, ABAKADA Law Firm
FROM: Ruby Rose Faith G. Moreno, Legal Aid
RE: Application of Philippine Laws and Jurisprudence
concerning Civil Procedure
Kaye vs. Towler
DATE: November 25, 2017
ISSUES
1. Whether the testimony of the surprise witness presented by the
prosecution be admissible in court.
2. Whether the photocopy of an admitting form presented by the
prosecution be admissible as evidence in court provided that there
is a conflict with the substantial information in an original copy of the
same admitting form in possession of the defense.
BRIEF ANSWER
1.
No, the testimony of the surprise witness is inadmissible as
evidence in court. Under the Rules of Court, a mandatory pre-trial
requires the presentation of the limitations of the number of
witnesses.1 Moreover, where the pre-trial brief does not consist of
the names of witnesses and the summaries of their testimonies as
required by the Rules of Court, the trial court, through its pre-trial
order, may bar the witnesses from testifying.2

—
1
Rule 18, Section 2(e).
2
Tiu v. Middleton, G.R. No. 134998. July 19, 1999.
2
2. No, the photocopy of the admitting form is inadmissible as evidence.
Under the Rules of Court, when the subject of inquiry is the contents
of a documents, no evidence shall be admissible other than the
original document itself.3
FACTS
Dr. Towler is being prosecuted for medical malpractice leading
to the permanent brain damage of Deborah Ann Kaye. The defense
avers that there was no negligence on the part of Dr. Towler. Dr. Towler
contend that he proceeded with injection of anesthesia for Kaye’s
admission form provided that her last meal was nine hours prior to the
surgery. Such form was presented as evidence in the court.
Prosecution lawyer Frank Galvin on the other hand, found the
admitting nurse of Kaye, Kaitlin Costello. Costello was made to testify
as a surprise witness.
During trial, Costello testified that Kaye’s last meal was an hour
before the surgery and this was in fact written in the admitting form.
She avers that Dr. Towler ignored the form and hence, proceeded with
the surgery. Subsequently, when Dr. Towler realized his mistake, he
approached Costello and threatened her that she’ll lose her job if she
does not change the information regarding the hour of Kaye’s last meal
prior to the surgery. However, Costello said that before the admission
form was tampered, she made a photocopy of the original form.
—
3
Rule 130, Section 3.
3
DISCUSSION
Testimony of the surprise witness
The Rules of Court mandates pre-trial, considering, among
others, the limitation of the number of the witnesses.4 Where the pre-
trial brief does not consist of the names of witnesses and the
summaries of their testimonies, the witnesses may be barred from
testifying.5 Furthermore, presenting witnesses other than those a party
has specified in the pre-trial brief is barred as allowing such would
defeat the very purpose of the pre-trial brief which is the simplification,
abbreviation and expedition of trial.
Hence, in the instant case, the testimony of Costello as a surprise
witness for the prosecution is inadmissible as evidence.
Photocopy of an evidence substantially in conflict with the
original copy thereof
To assure accuracy in litigation and to prevent hearsay
information, the Philippines court has adopted the “Best Evidence
Rule”. It is a rule of preference that excludes secondary evidence once
the original is available. It applies only when the subject of inquiry is
the contents of the document. This imply that the cause of action or
defense is based on what are contained in the document. In the instant
case, Dr. Towler is seeking non-liability by virtue of the contents of the
admitting form. The prosecution on the other hand summoned the
photocopy of the same document to hold Dr. Towler liable. Since the
subject of inquiry is the substance of the document, the Best Evidence

—
4
Id., p. 1.
5
Id., p. 1.
4
Rule shall apply. With the incongruity of the contents of the
photocopied admitting form and the original copy, the original copy of
the admitting form shall prevail. Hence, the photocopy of the admitting
form presented by the prosecution is inadmissible as evidence.
Furthermore, the Best Evidence Rule is not without exceptions.
However, the only exceptions to the Best Evidence Rule are: (a) when
the original has been lost or destroyed, or cannot be produced in court,
without bad faith on the part of the offeror; (b) when the original is in
the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable
notice; (c) when the original consists of numerous accounts or other
documents which cannot be examined in court without great loss of
time and the fact sought to be established from them is only the general
result of the whole; and (d) when the original is a public record in the
custody of a public officer or is recorded in a public office.6 Since the
instant case does not present any of the abovementioned exceptions,
the Best Evidence Rule still applies.
CONCLUSION
From the instant case, the following are deduced. First, that a
testimony from a surprise witness is inadmissible as evidence as the
Rules of Court requires a pre-trial wherein the list of the witnesses is
presented. Lastly, only an original copy of a document is admissible as
evidence where substantial information is the subject of inquiry.
—
6
Id., p. 2.

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1

TO: Atty. John Doe, Senior Associate, ABAKADA Law Firm

FROM: Ruby Rose Faith G. Moreno, Legal Aid

RE: Application of Philippine Laws and Jurisprudence

concerning Civil Procedure

Kaye vs. Towler

DATE: November 25, 2017

1. Whether the testimony of the surprise witness presented by the

prosecution be admissible in court.

2. Whether the photocopy of an admitting form presented by the

prosecution be admissible as evidence in court provided that there

is a conflict with the substantial information in an original copy of the

same admitting form in possession of the defense.

evidence in court. Under the Rules of Court, a mandatory pre-trial

requires the presentation of the limitations of the number of

witnesses.1 Moreover, where the pre-trial brief does not consist of

the names of witnesses and the summaries of their testimonies as

order, may bar the witnesses from testifying.2

2. No, the photocopy of the admitting form is inadmissible as evidence.

of a documents, no evidence shall be admissible other than the

original document itself.3

Dr. Towler is being prosecuted for medical malpractice leading

to the permanent brain damage of Deborah Ann Kaye. The defense

contend that he proceeded with injection of anesthesia for Kaye’s

surgery. Such form was presented as evidence in the court.

Prosecution lawyer Frank Galvin on the other hand, found the

admitting nurse of Kaye, Kaitlin Costello. Costello was made to testify

the surgery. Subsequently, when Dr. Towler realized his mistake, he

form was tampered, she made a photocopy of the original form.

Testimony of the surprise witness

The Rules of Court mandates pre-trial, considering, among

summaries of their testimonies, the witnesses may be barred from

testifying.5 Furthermore, presenting witnesses other than those a party

has specified in the pre-trial brief is barred as allowing such would

abbreviation and expedition of trial.

Hence, in the instant case, the testimony of Costello as a surprise

witness for the prosecution is inadmissible as evidence.

Photocopy of an evidence substantially in conflict with the

original copy thereof

To assure accuracy in litigation and to prevent hearsay

information, the Philippines court has adopted the “Best Evidence

Rule”. It is a rule of preference that excludes secondary evidence once

the original is available. It applies only when the subject of inquiry is

defense is based on what are contained in the document. In the instant

case, Dr. Towler is seeking non-liability by virtue of the contents of the

admitting form. The prosecution on the other hand summoned the

subject of inquiry is the substance of the document, the Best Evidence

Rule shall apply. With the incongruity of the contents of the

form presented by the prosecution is inadmissible as evidence.

Furthermore, the Best Evidence Rule is not without exceptions.

the original has been lost or destroyed, or cannot be produced in court,

evidence is offered, and the latter fails to produce it after reasonable

notice; (c) when the original consists of numerous accounts or other

documents which cannot be examined in court without great loss of

custody of a public officer or is recorded in a public office.6 Since the

instant case does not present any of the abovementioned exceptions,

the Best Evidence Rule still applies.

testimony from a surprise witness is inadmissible as evidence as the

Rules of Court requires a pre-trial wherein the list of the witnesses is