Section 22.

Disqualification by reason of marriage

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 1. Marriage is valid and existing as of the time of the offer of the testimony; 2. The other spouse is a party to the action.

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. There was a valid marital relation; 2. The privilege is invoked with respect to a confidential communication between the spouses during said marriage; 3. The spouse against whom such evidence is being offered has not given his or her consent to such testimony.

Basis 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. When Rule Applicable The rule applies to any form of testimony; therefore it protects against using the spouse-witnesss admission or against compelling him to produce documents. In order that this will apply, it is necessary that the marriage is valid and existing as of the time of the offer of testimony and that the other spouse is a party to the action. The privilege to object to testimony concerning antimarital facts may be claimed only when the spouse for or against whom the testimony of the other is offered as a party to the case. After the death or the divorce of one spouse, the privilege ceases, for the reason ceases. Reason for the Exception The reason for the exception is that the identity of the interest of person disappears and the consequent danger of perjury based on that identity is nonexistent. And in such a situation, the security and confidence of private life which the law aims at protecting will be nothing but ideals which, through their absence, merely leave a void in the unhappy home. This can be waived just like any other objection to the competency of other witnesses. Can be waived through failure to interpose timely objection or by calling the other spouse as a witness Where the accused husband in his testimony imputed the commission of the crime to his wife, he is deemed to have waived his objection to the latters testimony in rebuttal. In a prosecution of the husband for the rape of their daughter, the wife is not disqualified to testify for the prosecution since the crime may be considered as having been committed against the wife and the conjugal harmony sought to be protected by this rule no longer exists. The exception to the marital disqualification rule was applied where the wife was the complainant in a case against her husband for falsification of her signature in a deed of sale involving their conjugal property. Where the wife is a co-defendant in a suit charging her and her husband with collusive fraud, she cannot be called as an adverse party witness as this will violate the disqualification rule.

Section 24. Disqualification by reason of privileged communication THE FOLLOWING PERSONS CANNOT TESTIFY AS TO MATTERS LEARNED IN CONFIDENCE IN THE FF CASES: 1. The 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 except 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 latters direct descendants or ascendants 2. An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorneys 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. 3. A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any evidence or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient.

4. A minister or priest cannot, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient. 5. A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure.

Objections under the disqualification rules can be invoked only by the persons protected thereunder and may be waived by said persons in the same manner, either expressly or impliedly. Marital Privilege REQUISITES FOR MARITAL PRIVILEGE TO APPLY: 1) there was a valid marital relation 2) the privilege is invoked with respect to a confidential communication between the spouses during said marriage 3) the spouse against whom such evidence is being offered has not given his or her to such testimony NOTE: 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. Marital communications are presumed to be confidential but the presumption may be overcome by proof that they were not intended to be private. Since the confidential nature of the communication is the basis of the privilege, the same cannot be invoked where it was not intended to be kept in confidence by the spouse who received the same, as in the case of a dying declaration of the husband to his wife as to who was his assailant, which communications was obviously intended to be reported to the authorities. The privilege is lost if the communication is overheard or comes into the hands of a third party, whether legally or not, by reason of the fact that while the spouse is covered by the prohibition, such third party is not and, consequently, can testify thereon. It is necessary, however, that there was no collusion with or voluntary disclosure by either spouse to the third person, otherwise the latter becomes an agent of the spouse and would thereby be covered by the prohibition. EXCEPTIONS TO MARITAL PRIVILEGE: 1. that the case in which the husband or the wife is called to be examined is not a civil case instituted by one against the other 2. that it is not a criminal case for a crime committed by one against the other The privilege in principle, belongs to the communicating spouse not to the other one. Even if the communication between the spouse who is a party to the action can still prevent the other spouse from testifying against him under the marital disqualification rule Even if the spouse who is a party to the action does not object to the other testifying therein, thus waiving the marital disqualification, he can still prevent the disclosure by said spouse-witness of confidential communications covered by the privilege. Conspiracy between spouses to commit a crime is not covered by the privilege since it is not the intention of the law to protect the commission of a crime. This does not apply when spouses are living separately and there is an active hostility. But if there is a chance to reconcile, then this privilege will apply. Attorney-Client Privilege 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. Basis: public policy The client owns the privilege and therefore he alone can invoke it. For the privilege to apply, the attorney must have been consulted in his professional capacity, even if no fee has been paid therefore. However, if the communications were not made for the purpose of creating that relationship, they will not be covered by the privilege even if thereafter the lawyer becomes the counsel of the party in a case involving said statements The test is whether the communications are made to an attorney with a view of obtaining professional assistance or advice. Communications to an attorney are not privileged where they are voluntary made after he has refused

to accept employment. There is NO privilege communication in cases where abstract legal opinions are sought and obtained on general questions of law, either civil or criminal, in such cases, no facts are or need be disclosed implicating the client, and so there is nothing of a confidential character to conceal. The communications covered by the privilege include verbal statements and documents or papers entrusted to the attorney, and of facts learned by the attorney through the act or agency of his client. Confidential relations made in reliance upon the supposed relation of attorney and client, whether the party assuming to act as such is an attorney or not, are excluded by the court. Sidewalk advice from attorney upon legal question for which no compensation is asked or expected and none given except a luncheon, should not be regarded as privileged communications NOTE: The privilege is applicable to counsel de oficio. Even in cases where the consent of the client is obtained, it is his duty to ask first to be relieved and have another attorney take his place before testifying so that he may be cross-examined and not leave his client without proper representation. An attorney who becomes a subscribing witness to his clients will, may testify to the attending circumstances of the execution of his clients will for by requesting his attorney to become a subscribing witness to the will, the testator waives privilege as to his attorneys testimony concerning testamentary communications. Communication made by a client to an attorney as a public officer to enable him to act in his capacity is not privilege. The privilege DOES NOT apply when the action was brought by the client against the attorney. THE PRIVILEGE DOES NOT APPLY TO COMMUNICATIONS WHICH ARE: 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 period to be considered is that date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future Professional communications continues even after the relation of client and attorney is terminated Communications regarding a crime already committed made by the offender to an attorney, consulted as such, are privileged communications Contemplated criminal acts are not covered. The privilege DOES NOT attach when the attorney is a conspirator. The privilege DOES NOT apply when all the attorney has to do it to either affirm or deny the secret revealed by the client to the court. Physician-Patient Privilege Purpose This privilege is 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 It is not necessary that the physician-patient relationship was created through the voluntary act of the patient. For example the treatment may have been given at the behest of another, the patient being in extremis The privilege extends to all forms of communications as well as to the professional observations and examinations of the patient 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 The rule does not apply to mere causal information stated by the witness because such information is not necessary for the treatment of the patient. If the physician confined himself merely to the ascertainment of the nature and character of the injury for the purpose of reporting them to the defendant, physician may testify. The burden of proving that such relation does not exist is upon the person objecting it. Death of the patient does not extinguish the relation.

Under Rule 28 of the Rules of Court, the results of the physical and mental examination of a person, when ordered by the court, are intended to be made public, hence they can be divulged in that proceeding and cannot be objected to on the ground of privilege Result of autopsies or post mortem examinations are generally intended to be divulged in court, aside from the fact the doctors services were not for purposes of medical treatment An example of a waiver of the privilege by provision of law is found in Section 4 of said Rule 28 under which if the party examined obtains a report on said examination or takes the deposition of the examiner, he thereby waives any privilege regarding any other examination of said physical or mental condition conducted or to be conducted on him by any other physician. Waiver of the privilege by contract may be found in stipulations in life insurance policies. The disqualification due to privilege communications between ministers or priests and penitents require that the same were made pursuant to a religious duty enjoined in the course of discipline of the sect or denomination to which they belong and must be confidential and penitential in character. Example: under seal of the confessional Privileged communications to Public Officers 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. Voters are cannot be compelled to reveal their bets Trade Secrets will be covered by this privilege Prosecutor is not to be compelled to dispose the identity of the informer unless the informer is already known to the accused and when the identity of the informer is vital. GENERAL RULE: Bank deposits may not be disclosed EXCEPTION: 1. authorized by depositor 2. Impeachment under the Constitution 3. Upon order of the court in case of bribery or deriliction of duty 4. When the subject matter is the deposits 5. Anti-graft cases

2. Testimonial Privilege Section 25. Parental and filial Privilege This section is an expanded amendment of the former provision found in Section 20 (e), a disqualification by reason of relationship which, in turn, was reproduced from Art. 315 of the Civil Code. It was not correctly a rule of disqualification, as the descendant was not incompetent or disqualified to testify against his ascendants, but was actually a privilege to testify, hence it was referred to as filial privilege. However, under the Family Code, the descendant may be compelled to testify against his parents and grandparents, if such testimony is indispensable in prosecuting a crime against the descendant by one parent against the other (Art. 215). Under the present formulation, both parental and filial privileges are granted to any person, which privileges against compulsory testimony he can invoke in any case against any of his parents, direct ascendants, children or direct descendants. Reason for the Rule The reason for the rule is to 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.

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).