Sec. 47. Testimony or deposition at a former proceeding.—The
testimony or deposition of a witness deceased or unable to testify, given in a
former case or proceeding, judicial or administrative, involving the same
parties and subject matter, may be given in evidence against the adverse party
who had the opportunity to cross-examine him.
Requisites for admissibility
In order to be admissible as an exception to the
hearsay evidence rule, this section requires that:
1. The
witness is dead or unable to testify
2. His
testimony or deposition was given in a former case or proceeding,
judicial or administrative, between the same parties or those
representing the same interest
3. The former
case involved the same subject as that in the present case, although on
different causes of action
4. The issue
testified to by the witness in the former trial is the same issue
involved in the present case
5. The adverse
party had the opportunity to cross-examine
the witness in the former case
Cross-reference:
rules on admissions (Rule 130
Secs. 26-33, RC)
interrogatories (Rule 24, RC)
Cases
Tan v. CA, 20 SCRA 54 (1967)
Inability to testify should proceed from a grave cause, almost amounting to
death, as when the witness is old and has lost the power of speech. Absent a
showing that the witness is dead, outside the Philippines, or unable to
testify, their prior testimony is inadmissible. Mere refusal to testify is does
not amount to inability to testify. The party could have urged to court to have
these witnesses summoned, arrested, and punished for contempt in case of
refusal to obey the summons.
People v. Liwanag, 73 SCRA 473 (1976)
Facts: The prosecution moved that the testimony of
the witnesses presented during the preliminary investigation of this case be
adopted as part of the evidence in chief of the prosecution. The trial court
granted the motion subject to the condition that the witnesses be further
cross-examined by counsel for the accused. At the trial, the witnesses for the
prosecution who testified at the preliminary investigation were recalled and
were again cross-examined by counsel for the appellant.
Held: The testimony sought to be made part of the
evidence in chief are not ex-parte affidavits, but testimony of witnesses taken
down by question and answer during the preliminary investigation in the
presence of the accused and his counsel who subjected the said witnesses to a
rigid and close cross-examination. The inclusion of said testimony was made
subject to the right of the defendant to further cross-examine the witnesses
whose testimony are sought to be reproduced and, pursuant to said order, the
witnesses were recalled to the stand during the trial and again examined in the
presence of the appellant. Upon the facts, there was no curtailment of the
constitutional right of the accused to meet the witnesses face to face.
Chantangco vs. Abaroa, 40 Phil 1056.
The admissibility of a prior judgment, and not the previous testimony, in a
criminal action is governed by different rules. A judgment in a criminal
proceeding, and this rule applies with equal, if not greater, force to
administrative proceedings, cannot be read in evidence in a civil action
against a person not a party thereto to establish any fact therein determined.
The matter is res inter alios and cannot be invoked as res judicata. Such
judgment may only be admitted in evidence in a civil case by way of inducement,
or to show a collateral fact relevant to the issue in the civil action. (City
of Manila vs. Meralco, 52 Phil 586)
Ohio v. Roberts, 448 U.S. 56 (1980)
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