EVIDENCE - APRIL 4

DEAD MAN STATUTE

TAKE NOTE: One important principle in relation to dead man statute,

you recall that the idea of dead man statute is to level the playing field
because the presumption there is had the deceased been alive, he
would have been in the position to defend himself in the sense that he
would have been able to say his piece of the story. He would have been
able to controvert whatever statement that the surviving party made in
the course of the proceeding, so that if the testimony of the witness
involves a fact which the deceased have not nothing to do about in other
words even if the deceased had been alive he would not have been
able to controvert it because in the first place he had no personal
knowledge of that fact dead man statute also does not apply so the
plaintiff who is testifying on that fact maybe allowed to testify even if the
testimony is made in support of a claim against the estate of the
deceased because the obvious reason is the purpose of the law is no
longer present and therefore there is no basis to apply the
disqualification rule.

(You have to learn this by heart because this has been the perennial
question in the BAR examination.You have to understand marital
disqualification rule in relation to privilege communication rule between
spouses. Often times question relating to these rules require the
examiner to apply either or both of the principles in the given set of facts.
In other words, the probable facts situation that may be given here will
require the interplay of both disqualification rule so you must be able to
determine when is the other available and when is the other not
available because it is possible that in a given case one does not apply
but the other is the one applicable so you should be able to delineate
the demarcation line between these two disqualification rule.)
MARITAL DISQUALIFICATION or SPOUSAL IMMUNITY

The reason behind this rule is two-fold:

1. To prevent disharmony, maintain domestic peace or domestic
or marital harmony or tranquility.
That is why because of this reason neither the husband nor the wife
may testify against the other because allowing one to testify against the
other would definitely upset the domestic peace. So even if one spouse
is an eye witness to the commission of the crime by the other, the law
does not allow the witness spouse to testify against the other. Of course
there are exceptions but generally that is not allowed because of this
reason, testifying would promote disharmony and disrupt marital peace
and tranquility.

2. To prevent the witness spouse from committing perjury.

That is why neither spouse may testify for the other. The reasonable
basis for this rule is to prevent perjury because it is premised on the
universal human instinct for a spouse to do everything for the other.
There is a presumption there. That one spouse is willing to go the
farthest even taking bullet for the other. So to prevent one from
committing perjury just to advance the cause of the other, the rule also
finds it proper to disqualify a spouse from testifying in favor of the other
of course subject to the exceptions.

On both counts, neither spouse may testify for or against the other.

REQUISITES FOR THIS DISQUALIFICATION RULE TO APPLY:

1. Existing valid marriage
This does not apply in a common law relationship.
It does not also apply in a situation where the marriage is void because
the law only contemplates of a valid marriage.
Take note: Just because there is an existing valid marriage it does not
necessarily mean that the marital disqualification rule also applies
because even if the marriage is valid and still legally existing, there
might be an instance where marital disqualification rule may not apply
and that is when the marital relation between the spouses are already
strained so that there is no longer marital peace or harmony to preserve.
This is the doctrinal rule enunciated in RAMIREZ v ALVAREZ, this
question has been asked in the BAR a number of times. There was this
couple who have been separated de facto for the last 6months and the
wife left the family home and live together with her sister. Obviously, the
man unable to move on tried to stalk the wife even to the ends of the
world, when he finally found that his wife was living in the house of her
sister, the husband set the house on fire almost killing the occupants of
the house. The husband was prosecuted for arson and the
prosecution's star witness was the wife who testified that he saw the
husband at the time of the fire. The husband objected moved that the
wife be disqualified from the testifying against him on the ground of
marital disqualification. It was in this case that the SC had the occassion
to discuss the purposes of marital disqualification one of which the SC
emphasized the purpose of marital DQ and that is to promote marital
peace and maintain domestic tranquility and harmony between
spouses. The SC said obviously the relationship between the husband
and wife during the commission of the crime was already strained. As
a matte of fact they have been separated de facto for the last 6months,
given that there is no more marital peace, domestic harmony to
preserve and protect, SC said there is no longer reason to apply the
marital DQ rule. And so the wife was allowed against the husband.

What about if the wife testifies on a confidential information that she

may have obtained from the husband during the marriage and at the
time the wife is called to testify the relationship had already been
strained and they have been separated from each other de facto, can
the wife testify and disclose the confidential information that she
acquired from the husband while they were still living together?
TAKE NOTE: The basis for marital DQ rule is different from the reason
behind the privilege communication rule between spouses so that if the
testimony of the wife will involve a disclosure of a confidential
information, you cannot make use of the strained relationship argument
as a basis to allow the testimony of the wife, because if you look at the
reasoning behind the alvarez v ramirez doctrine the SC made mention
only of the one of the purposes of marital DQ and that is the need to
preserve marital harmony. And take note, in so far as privilege
communication rule between spouses it is not anchored on this
reasoning, the purposes for privilege communication rule between
spouses as a rule of DQ is not to preserve marital harmony neither to
maintain domestic peace and tranquility but to encourage free flow
communication between spouses and to protect the confidential nature
of the communication so you cant apply the rationale behind the ramirez
v alvarez doctrine vis a vis privilege communication rule between
spouses. The strain relationship has nothing to do with the application
or non application of the privilege communication rule between
spouses.

2. The marital DQ rule lies in the fact the witness is married to the
other. The testimony of the witness here need not involve
confidential information.
So even if it does not involve any disclosure of a confidential
information, the witness spouse is disqualified under Marital dq
because of the fact that he or she is married to the other for whom or
against whom the testimony is offered so this DQ is attached to the
marriage itself.
This is not true in so far as the privilege communication rule between
spouses because the DQ is not simply attached to the fact of marriage
but this is attached to the communication between spouses that is
confidential in nature, precisely the purpose of the disqualification is to
protect and preserve the confidential nature of the communication.
So privilege communication rule applies only if the testimony of the
witness spouse will entail disclosure of confidential information, so if the
spouse is called to the witness stand you should be able to determine
the nature or the tenor of the testimony of the witness spouse if it will
involve disclosure of a confidential communication between the
spouses the you look at privilege communication rule between spouses.
If it does not involve disclosure of cofidential information, then the
applicable rule is marital DQ.

It is also possible that in a given set of facts both dq rules apply as when
the witness spouse is called to testify and disclose confidential
information, they are two disqualification rules apply. The wife can be
dq under marital dq rule, because in marital dq rule it applies to both, it
applies to a situation where the witness spouse testifies on non
confidential situation and it may also apply to a situation where the
testimony involves disclosure of confidential information.
So this rule do not cancel each other out. It is possible that both may
apply in a given set of facts.