Friday, August 30, 2013

Complex Questions and Cross- examination

One of my dilemmas in law school is finding the connection between my pre-law course and the study of law itself. I tried to embrace the study of law in a philosophical perspective but this attempt ceased when I cannot find a connection between Philosophy and Law [the former is verbose and the latter brief and precise].  Perhaps, it is the novelty of law subjects and the traditional way of teaching and studying law, i.e. memorizing provisions in verbatim and cramming to read several cases that made me feel this way [Of course! You have no time to ask philosophical questions such as “is it a good law?” or “why such a law?” if the only thing demanded from you is to recite legal provisions in verbatim or have to read and recite at least 5 cases per subjects a day, even without delving into the reasons why the plaintiff or defendant lost the case- perhaps it is better to ask the propriety of the remedy accorded by the counsel of the losing party and not just ask the student to narrate the development of the case up to the Supreme Court]. However, as my legal education continues I am slowly seeing a connection between Philosophy and law.  

Tuesday, May 7, 2013

What does "jurisdiction is determined by the allegations in the complaint or information" mean?

As a rule, jurisdiction is conferred by law.

Thus, "jurisdicition is determined by the allegations in the complaint or infornmation" does not mean that allegations confer jurisdiction. It is the law that confers jurisdiction, thus without the law there is no jurisdiction.

Rather the phrase means that jurisdictional facts must be alleged in the complaint or information

Friday, May 3, 2013

Evidence: Can previous acts be used as evidence to prove present or future acts?

Rule 130, Sec. 34 . Similar acts as evidence. — Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like. (48a)

General Rule: Previous conduct cannot be admitted as evidence. It cannot be used to prove presents act or future acts.

Exceptions: Previous conduct may be used to prove the following:
  1. to prove specific intent or knowledge;
  2. to prove identity;
  3. to prove a plan, system, design, modus operandi; and
  4. to prove habit, custom, usage or practice.

Thursday, May 2, 2013

How to destroy the competency of a child witness.

The Rule on the examination of a Child Witness provides:

Section 6- every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when if finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court.

       (a) Proof of  necessity- a party seeking a competency  examination must present proof of necessity of competency examination. The age of the child by itself  is not a sufficient basis for a competency examination.


Wednesday, May 1, 2013

How to avoid crossing swords with high profile lawyers/ lawfirms.

 Rule 130, Section 24 of the Rules of Court
                 The following persons cannot testify as to matters learned in confidence in the following cases:
               b) 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 attorney's 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.


The Witnessing Empiricist

Evidence is purely epistemology. Thus, Santiago asserts that he saw Pedro killed Juan; he opens himself to plethora of questions. Of course, reason dictates that any responsible person who makes a claim guarantees that he is prepared to advance what is acceptable as proof of the claim he makes. If he fails to do so not only is his claim compromised; his credibility suffers a dent-and sometimes an irreparable one- as well. Therefore, in so doing, a person making a claim, guarantees that his senses are not questionable or he is in his right mind when he saw the incident. The school of thought on empiricism is very instructive on this. 

Empiricism is a school of thought which teaches that knowledge came from the senses [as oppose to rationalism, which asserts that knowledge is innate]. Thus, at one point Locke pronounced that the human mind is tabu la rasa or an empty slate, which can be filled by one’s experiences and perceptions, i.e. one knows that an ember is extremely hot because at point of his life he had experienced its hotness either by accidental or intentional contact.
This school of thought was championed by John Locke, George Berkeley, and David Hume. But for this endeavour, Hume will be given great consideration.

Monday, April 29, 2013

Anxiety as the Disclosement of Care

         The experience of moods or attunements speaks of Dasein’s being-in-the-world. Although Heidegger had examined various moods such as fear, he focused on the analysis of anxiety. This is to pave the ground for his analysis of Dasein’s being, which he baptizes with the name Sorge [Care]. Heidegger believes that anxiety is the key mood for the total disclosure of human existence. More specifically, anxiety reveals that man’s very being is primarily characterized by what Heidegger calls Care.

In Heideggerian analysis of anxiety, fear was lucidly distinguished from anxiety. Fear has an object, thus fear is always a fear of something. “Fear is directed toward something definite, it focuses on detail” (Safranski, p.152). In other words, fear is marked by specifity, wherein one is afraid of being harmed in some specific respect by something that approaches in some specific way, from some specific sector of its environment. Hence one can readily point to the thing that provokes fear, identify why it fears it, and locate its point of origin.