Saturday, June 29, 2013

3 Alternatives to Objecting | CEB Blog - Your Partner In Practice

read - 3 Alternatives to Objecting | CEB Blog - Your Partner In Practice


"X X X.

When it comes to a jury trial, counsel’s persuasiveness depends to a large degree on his or her credibility, i.e., whether counsel seems to be “playing fair” and not trying to hide the facts. Making too many objections can undermine that credibility, because jurors may believe that an attorney who constantly raises objections is trying to keep them from learning the truth by throwing technical roadblocks in the opponent’s path. When making yet another objection risks the ire of the jury, consider these three alternatives.
1.  Not objecting. An alternative that trial counsel should always consider when the opponent offers evidence that is technically objectionable is to refrain from objecting. In addition to the fear of alienating the jury, one of the principal reasons for not stating an objection, although one is available, is the danger of highlighting harmful evidence. On the other end of the spectrum, experienced trial counsel seldom object to evidence that is unlikely to make a difference in the case, or the evidence threatens only negligible harm.
2.  Combining objections. Sometimes the law relieves counsel from having to continually object. If an objection to a question is overruled and the question is then repeated, the objection need not be renewed, and an objection to one question may preserve the right to claim error even when counsel fails to object to other questions on the same subject.  Similarly, you can use the following tools to combine objections:
  • Adoptive objections. When the objection just stated exactly fits the next question, opposing counsel may make an adoptive objection by stating: “Same objection, Your Honor.”
  • Summary objections. When confronted with opposing counsel asking leading questions during direct examination of their own witnesses even after completing questions on preliminary matters, you can refrain from objecting at first and then, at the point when the questions start probing into damaging matters, assert a summary objection; although the summary objection is technically an objection only to the last question asked, it also refers to the preceding series of questions and thus carries added weight on leading questions.
3.  Impeaching the witness. A tactic sometimes used as an alternative to objecting is to let the witness answer without objection and then demonstrate, through cross-examination or other evidence, that the witness is wrong or lying.
Jurors might regard objections as part of a tedious, time-consuming game played by the attorneys and the judge, with an appalling disregard for getting to the bottom of things. And don’t fool yourself — no matter how emphatically the judge admonishes the jury not to draw adverse inferences from objections, the unfavorable impression can’t be entirely dispelled.
Although trial objections are often necessary and useful, using these alternatives may help keep the jury on your side.
X X X,"

Friday, June 28, 2013

Probative value of DNA test in paternity and filiation action and other cases. - Agustin vs CA : 162571 : June 15, 2005 : J. Corona : Third Division : Decision

Read - Agustin vs CA : 162571 : June 15, 2005 : J. Corona : Third Division : Decision

"x x x.

On the second issue, petitioner posits that DNA is not recognized by this Court as a conclusive means of proving paternity. He also contends that compulsory testing violates his right to privacy and right against self-incrimination as guaranteed under the 1987 Constitution.  These contentions have no merit.
Given that this is the very first time that the admissibility of DNA testing as a means for determining paternity has actually been the focal issue in a controversy, a brief historical sketch of our past decisions featuring or mentioning DNA testing is called for.
In the 1995 case of People v. Teehankee[21] where the appellant was convicted of murder on the testimony of three eyewitnesses, we stated as an obiter dictum that “while eyewitness identification is significant, it is not as accurate and authoritative as the scientific forms of identification evidence such as the fingerprint or the DNA test result (emphasis supplied).”
Our faith in DNA testing, however, was not quite so steadfast in the previous decade. In Pe Lim v. Court of Appeals,[22] promulgated in 1997, we cautioned against the use of DNA because “DNA, being a relatively new science, (had) not as yet been accorded official recognition by our courts.  Paternity (would) still have to be resolved by such conventional evidence as the relevant incriminating acts, verbal and written, by the putative father.”
In 2001, however, we opened the possibility of admitting DNA as evidence of parentage, as enunciated in Tijing v. Court of Appeals:[23]
A final note.  Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available.  Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis.  The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and child are analyzed to establish parentage.  Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge.  Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence.  For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress.
The first real breakthrough of DNA as admissible and authoritative evidence in Philippine jurisprudence came in 2002 with our en banc decision in People v. Vallejo[24]where the rape and murder victim’s DNA samples from the bloodstained clothes of the accused were admitted in evidence. We reasoned that “the purpose of DNA testing (was) to ascertain whether an association exist(ed) between the evidence sample and the reference sample. The samples collected (were) subjected to various chemical processes to establish their profile.”
A year later, in People v. Janson,[25] we acquitted the accused charged with rape for lack of evidence because “doubts persist(ed) in our mind as to who (were) the real malefactors.  Yes, a complex offense (had) been perpetrated but who (were) the perpetrators? How we wish we had DNA or other scientific evidence to still our doubts!”
In 2004, in Tecson, et al. v. COMELEC[26] where the Court en banc was faced with the issue of filiation of then presidential candidate Fernando Poe Jr., we stated:
In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to.  A positive match would clear up filiation or paternity.  In Tijing vs. Court of Appeals, this Court has acknowledged the strong weight of DNA testing…
Moreover, in our en banc decision in People v. Yatar,[27] we affirmed the conviction of the accused for rape with homicide, the principal evidence for which included DNA test results.  We did a lengthy discussion of DNA, the process of DNA testing and the reasons for its admissibility in the context of our own Rules of Evidence:
Deoxyribonucleic Acid, or DNA, is a molecule that encodes the genetic information in all living organisms. A person’s DNA is the same in each cell and it does not change throughout a person’s lifetime; the DNA in a person’s blood is the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus, urine, skin tissue, and vaginal and rectal cells. Most importantly, because of polymorphisms in human genetic structure, no two individuals have the same DNA, with the notable exception of identical twins.
xxx    xxx       xxx
In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests.
In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as an expert witness on DNA print or identification techniques. Based on Dr. de Ungria’s testimony, it was determined that the gene type and DNA profile of appellant are identical to that of the extracts subject of examination.  The blood sample taken from the appellant showed that he was of the following gene types: vWA 15/19, TH01 7/8, DHFRP29/10 and CSF1PO 10/11, which are identical with semen taken from the victim’s vaginal canal. Verily, a DNA match exists between the semen found in the victim and the blood sample given by the appellant in open court during the course of the trial.
Admittedly, we are just beginning to integrate these advances in science and technology in the Philippine criminal justice system, so we must be cautious as we traverse these relatively uncharted waters. Fortunately, we can benefit from the wealth of persuasive jurisprudence that has developed in other jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven instructive.
In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d 469) it was ruled that pertinent evidence based on scientifically valid principles could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed greater discretion over which testimony they would allow at trial, including the introduction of new kinds of scientific techniques. DNA typing is one such novel procedure.
Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief in its existence or non-existence. Applying the Daubert test to the case at bar, the DNA evidence obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a quo is relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and molecular biology.
Significantly, we upheld the constitutionality of compulsory DNA testing and the admissibility of the results thereof as evidence. In that case, DNA samples from semen recovered from a rape victim’s vagina were used to positively identify the accused Joel “Kawit” Yatar as the rapist. Yatar claimed that the compulsory extraction of his blood sample for DNA testing, as well as the testing itself, violated his right against self-incrimination, as embodied in both Sections 12 and 17 of Article III of the Constitution. We addressed this as follows:
The contention is untenable. The kernel of the right is not against all compulsion, but against testimonial compulsion. The right against self-incrimination is simply against the legal process of extracting from the lips of the accused an admission of guilt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence.
Over the years, we have expressly excluded several kinds of object evidence taken from the person of the accused from the realm of self-incrimination. These include photographs,[28] hair,[29] and other bodily substances.[30] We have also declared as constitutional several procedures performed on the accused such as pregnancy tests for women accused of adultery,[31] expulsion of morphine from one’s mouth[32] and the tracing of one’s foot to determine its identity with bloody footprints.[33] In Jimenez v. Cañizares,[34] we even authorized the examination of a woman’s genitalia, in an action for annulment filed by her husband, to verify his claim that she was impotent, her orifice being too small for his penis.  Some of these procedures were, to be sure, rather invasive and involuntary, but all of them were constitutionally sound. DNA testing and its results, per our ruling in Yatar,[35] are now similarly acceptable.
Nor does petitioner’s invocation of his right to privacy persuade us. In Ople v. Torres,[36] where we struck down the proposed national computerized identification system embodied in Administrative Order No. 308, we said:
In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual privacy. The right is not intended to stifle scientific and technological advancements that enhance public service and the common good... Intrusions into the right must be accompanied by proper safeguards that enhance public service and the common good.
Historically, it has mostly been in the areas of legality of searches and seizures,[37]and the infringement of privacy of communication[38] where the constitutional right to privacy has been critically at issue.  Petitioner’s case involves neither and, as already stated, his argument that his right against self-incrimination is in jeopardy holds no water.  His hollow invocation of his constitutional rights elicits no sympathy here for the simple reason that they are not in any way being violated. If, in a criminal case, an accused whose very life is at stake can be compelled to submit to DNA testing, we see no reason why, in this civil case, petitioner herein who does not face such dire consequences cannot be ordered to do the same.
DNA paternity testing first came to prominence in the United States, where it yielded its first official results sometime in 1985. In the decade that followed, DNA rapidly found widespread general acceptance.[39] Several cases decided by various State Supreme Courts reflect the total assimilation of DNA testing into their rules of procedure and evidence.
The case of Wilson v. Lumb[40] shows that DNA testing is so commonly accepted that, in some instances, ordering the procedure has become a ministerial act. The Supreme Court of St. Lawrence County, New York allowed a party who had already acknowledged paternity to subsequently challenge his prior acknowledgment. The Court pointed out that, under the law, specifically Section 516 of the New York Family Court Act, the Family Court examiner had the duty, upon receipt of the challenge, to order DNA tests:[41]
§ 516-a. Acknowledgment of paternity.  (a) An acknowledgment of paternity executed pursuant to section one hundred eleven-k of the social services law or section four thousand one hundred thirty-five-b of the public health law shall establish the paternity of and liability for the support of a child pursuant to this act. Such acknowledgment must be reduced to writing and filed pursuant to section four thousand one hundred thirty-five-b of the public health law with the registrar of the district in which the birth occurred and in which the birth certificate has been filed.  No further judicial or administrative proceedings are required to ratify an unchallenged acknowledgment of paternity.
(b) An acknowledgment of paternity executed pursuant to section one hundred eleven-k of the social services law or section four thousand one hundred thirty-five-b of the public health law may be rescinded by either signator’s filing of a petition with the court to vacate the acknowledgment within the earlier of sixty days of the date of signing the acknowledgment or the date of an administrative or a judicial proceeding (including a proceeding to establish a support order) relating to the child in which either signator is a party.  For purposes of this section, the "date of an administrative or a judicial proceeding" shall be the date by which the respondent is required to answer the petition. After the expiration of sixty days of the execution of the acknowledgment, either signator may challenge the acknowledgment of paternity in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the party challenging the voluntary acknowledgment.  Upon receiving a party’s challenge to an acknowledgment, the court shall order genetic marker tests or DNA tests for the determination of the child’s paternity and shall make a finding of paternity, if appropriate, in accordance with this article.  Neither signator’s legal obligations, including the obligation for child support arising from the acknowledgment, may be suspended during the challenge to the acknowledgment except for good cause as the court may find.  If a party petitions to rescind an acknowledgment and if the court determines that the alleged father is not the father of the child, or if the court finds that an acknowledgment is invalid because it was executed on the basis of fraud, duress, or material mistake of fact, the court shall vacate the acknowledgment of paternity and shall immediately provide a copy of the order to the registrar of the district in which the child’s birth certificate is filed and also to the putative father registry operated by the department of social services pursuant to section three hundred seventy-two-c of the social services law.  In addition, if the mother of the child who is the subject of the acknowledgment is in receipt of child support services pursuant to title six-A of article three of the social services law, the court shall immediately provide a copy of the order to the child support enforcement unit of the social services district that provides the mother with such services.
(c) A determination of paternity made by any other state, whether established through the parents’ acknowledgment of paternity or through an administrative or judicial process, must be accorded full faith and credit, if and only if such acknowledgment meets the requirements set forth in section 452(a)(7) of the social security act.
(emphasis supplied)
DNA testing also appears elsewhere in the New York Family Court Act:[42]
§532. Genetic marker and DNA tests; admissibility of records or reports of test results; costs of tests.
a) The court shall advise the parties of their right to one or more genetic marker tests or DNA tests and, on the court’s own motion or the motion of any party, shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests of a type generally acknowledged as reliable by an accreditation body designated by the secretary of the federal department of health and human services and performed by a laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is not the father of the child.  No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman.  The record or report of the results of any such genetic marker or DNA test ordered pursuant to this section or pursuant to section one hundred eleven-k of the social services law shall be received in evidence by the court pursuant to subdivision (e) of rule forty-five hundred eighteen of the civil practice law and rules where no timely objection in writing has been made thereto and that if such timely objections are not made, they shall be deemed waived and shall not be heard by the court.  If the record or report of the results of any such genetic marker or DNA test or tests indicate at least a ninety-five percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and shall establish, if unrebutted, the paternity of and liability for the support of a child pursuant to this article and article four of this act.
(b) Whenever the court directs a genetic marker or DNA test pursuant to this section, a report made as provided in subdivision (a) of this section may be received in evidence pursuant to rule forty-five hundred eighteen of the civil practice law and rules if offered by any party.
(c) The cost of any test ordered pursuant to subdivision (a) of this section shall be, in the first instance, paid by the moving party. If the moving party is financially unable to pay such cost, the court may direct any qualified public health officer to conduct such test, if practicable; otherwise, the court may direct payment from the funds of the appropriate local social services district. In its order of disposition, however, the court may direct that the cost of any such test be apportioned between the parties according to their respective abilities to pay or be assessed against the party who does not prevail on the issue of paternity, unless such party is financially unable to pay. (emphasis supplied)
In R.E. v. C.E.W.,[43] a decision of the Mississippi Supreme Court, DNA tests were used to prove that H.W., previously thought to be an offspring of the marriage between A.C.W. and C.E.W., was actually the child of R.E. with whom C.E.W. had, at the time of conception, maintained an adulterous relationship.
In Erie County Department of Social Services on behalf of Tiffany M.H. v. Greg G.,[44] the 4th Department of the New York Supreme Court’s Appellate Division allowed G.G., who had been adjudicated as T.M.H.’s father by default, to have the said judgment vacated, even after six years, once he had shown through a genetic marker test that he was not the child’s father.  In this case, G.G. only requested the tests after the Department of Social Services, six years after G.G. had been adjudicated as T.M.H.’s father, sought an increase in his support obligation to her.
In Greco v. Coleman,[45] the Michigan Supreme Court while ruling on the constitutionality of a provision of law allowing non-modifiable support agreements pointed out that it was because of the difficulty of determining paternity before the advent of DNA testing that such support agreements were necessary:
As a result of DNA testing, the accuracy with which paternity can be proven has increased significantly since the parties in this lawsuit entered into their support agreement…(current testing methods can determine the probability of paternity to 99.999999% accuracy). However, at the time the parties before us entered into the disputed agreement, proving paternity was a very significant obstacle to an illegitimate child's access to child support. The first reported results of modern DNA paternity testing did not occur until 1985. ("In fact, since its first reported results in 1985, DNA matching has progressed to 'general acceptance in less than a decade'"). Of course, while prior blood-testing methods could exclude some males from being the possible father of a child, those methods could not affirmatively pinpoint a particular male as being the father. Thus, when the settlement agreement between the present parties was entered in 1980, establishing paternity was a far more difficult ordeal than at present. Contested paternity actions at that time were often no more than credibility contests. Consequently, in every contested paternity action, obtaining child support depended not merely on whether the putative father was, in fact, the child's biological father, but rather on whether the mother could prove to a court of law that she was only sexually involved with one man--the putative father. Allowing parties the option of entering into private agreements in lieu of proving paternity eliminated the risk that the mother would be unable meet her burden of proof.
It is worth noting that amendments to Michigan’s Paternity law have included the use of DNA testing:[46]
§722.716 Pretrial proceedings; blood or tissue typing determinations as to mother, child, and alleged father; court order; refusal to submit to typing or identification profiling; qualifications of person conducting typing or identification profiling; compensation of expert; result of typing or identification profiling; filing summary report; objection; admissibility; presumption; burden of proof; summary disposition.
Sec. 6.
(1) In a proceeding under this act before trial, the court, upon application made by or on behalf of either party, or on its own motion, shall order that the mother, child, and alleged father submit to blood or tissue typing determinations, which may include, but are not limited to, determinations of red cell antigens, red cell isoenzymes, human leukocyte antigens, serum proteins, or DNAidentification profiling, to determine whether the alleged father is likely to be, or is not, the father of the child. If the court orders a blood or tissue typing or DNA identification profiling to be conducted and a party refuses to submit to the typing or DNA identification profiling, in addition to any other remedies available, the court may do either of the following:
(a) Enter a default judgment at the request of the appropriate party.
(b) If a trial is held, allow the disclosure of the fact of the refusal unless good cause is shown for not disclosing the fact of refusal.
(2) A blood or tissue typing or DNA identification profiling shall be conducted by a person accredited for paternity determinations by a nationally recognized scientific organization, including, but not limited to, the American association of blood banks.
xxx    xxx       xxx
(5) If the probability of paternity determined by the qualified person described in subsection (2) conducting the blood or tissue typing or DNA identification profiling is 99% or higher, and the DNA identification profile and summary report are admissible as provided in subsection (4), paternity is presumed. If the results of the analysis of genetic testing material from 2 or more persons indicate a probability of paternity greater than 99%, the contracting laboratory shall conduct additional genetic paternity testing until all but 1 of the putative fathers is eliminated, unless the dispute involves 2 or more putative fathers who have identical DNA.
(6) Upon the establishment of the presumption of paternity as provided in subsection (5), either party may move for summary disposition under the court rules. this section does not abrogate the right of either party to child support from the date of birth of the child if applicable under section 7. (emphasis supplied)
In Rafferty v. Perkins,[47] the Supreme Court of Mississippi ruled that DNA test results showing paternity were sufficient to overthrow the presumption of legitimacy of a child born during the course of a marriage:
The presumption of legitimacy having been rebutted by the results of the blood test eliminating Perkins as Justin's father, even considering the evidence in the light most favorable to Perkins, we find that no reasonable jury could find that Easter is not Justin's father based upon the 99.94% probability of paternity concluded by the DNA testing.
In S.J.F. and J.C.F. v. R.C.W.,[48] the North Dakota Supreme Court upheld an order for genetic testing given by the Court of Appeals, even after trial on the merits had concluded without such order being given.  Significantly, when J.C.F., the mother, first filed the case for paternity and support with the District Court, neither party requested genetic testing.  It was only upon appeal from dismissal of the case that the appellate court remanded the case and ordered the testing, which the North Dakota Supreme Court upheld.
The case of Kohl v. Amundson,[49] decided by the Supreme Court of South Dakota, demonstrated that even default judgments of paternity could be vacated after the adjudicated father had, through DNA testing, established non-paternity.  In this case, Kohl, having excluded himself as the father of Amundson’s child through DNA testing, was able to have the default judgment against him vacated.  He then obtained a ruling ordering Amundson to reimburse him for the amounts withheld from his wages for child support. The Court said “(w)hile Amundson may have a remedy against the father of the child, she submit(ted) no authority that require(d) Kohl to support her child. Contrary to Amundson's position, the fact that a default judgment was entered, but subsequently vacated, (did) not foreclose Kohl from obtaining a money judgment for the amount withheld from his wages.”
In M.A.S. v. Mississippi Dept. of Human Services,[50] another case decided by the Supreme Court of Mississippi, it was held that even if paternity was established through an earlier agreed order of filiation, child support and visitation orders could still be vacated once DNA testing established someone other than the named individual to be the biological father. The Mississippi High Court reiterated this doctrine in Williams v. Williams.[51]
The foregoing considered, we find no grave abuse of discretion on the part of the public respondent for upholding the orders of the trial court which both denied the petitioner’s motion to dismiss and ordered him to submit himself for DNA testing.  Under Rule 65 of the 1997 Rules of Civil Procedure, the remedy of certiorari is only available “when any tribunal, board or officer has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law.”[52] In Land Bank of the Philippines v. the Court of Appeals[53] where we dismissed a special civil action for certiorari under Rule 65, we discussed at length the nature of such a petition and just what was meant by “grave abuse of discretion”:
Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, where the power is exercised in an arbitrary manner by reason of passion, prejudice, or personal hostility, and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.
The special civil action for certiorari is a remedy designed for the correction of errors of jurisdiction and not errors of judgment.  Theraison d’etre for the rule is when a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error is committed.  If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment.  In such a scenario, the administration of justice would not survive.  Hence, where the issue or question involved affects the wisdom or legal soundness of the decision—not the jurisdiction of the court to render said decision—the same is beyond the province of a special civil action for certiorari.
The proper recourse of the aggrieved party from a decision of the CA is a petition for review on certiorari under Rule 45 of the Revised Rules of Court. On the other hand, if the error subject of the recourse is one of jurisdiction, or the act complained of was perpetrated by a quasi-judicial officer or agency with grave abuse of discretion amounting to lack or excess of jurisdiction, the proper remedy available to the aggrieved party is a petition for certiorari under Rule 65 of the said Rules.  (emphasis supplied)
In the instant case, the petitioner has in no way shown any arbitrariness, passion, prejudice or personal hostility that would amount to grave abuse of discretion on the part of the Court of Appeals. The respondent court acted entirely within its jurisdiction in promulgating its decision and resolution, and any error made would have only been an error in judgment. As we have discussed, however, the decision of the respondent court, being firmly anchored in law and jurisprudence, was correct.
For too long, illegitimate children have been marginalized by fathers who choose to deny their existence. The growing sophistication of DNA testing technology finally provides a much needed equalizer for such ostracized and abandoned progeny. We have long believed in the merits of DNA testing and have repeatedly expressed as much in the past. This case comes at a perfect time when DNA testing has finally evolved into a dependable and authoritative form of evidence gathering. We therefore take this opportunity to forcefully reiterate our stand that DNA testing is a valid means of determining paternity.
x x x."

Paternity and filiation action can be integrated with support action. - Agustin vs CA : 162571 : June 15, 2005 : J. Corona : Third Division : Decision

Read - Agustin vs CA : 162571 : June 15, 2005 : J. Corona : Third Division : Decision

"x x x.

The assailed resolution and order did not convert the action for support into one for recognition but merely allowed the respondents to prove their cause of action against petitioner who had been denying the authenticity of the documentary evidence of acknowledgement.  But even if the assailed resolution and order effectively integrated an action to compel recognition with an action for support, such was valid and in accordance with jurisprudence. In Tayag v. Court of Appeals,[20] we allowed the integration of an action to compel recognition with an action to claim one’s inheritance:
…In Paulino, we held that an illegitimate child, to be entitled to support and successional rights from the putative or presumed parent, must prove his filiation to the latter.  We also said that it is necessary to allege in the complaint that the putative father had acknowledged and recognized the illegitimate child because such acknowledgment is essential to and is the basis of the right to inherit.  There being no allegation of such acknowledgment, the action becomes one to compel recognition which cannot be brought after the death of the putative father.  The ratio decidendi in Paulino, therefore, is not the absence of a cause of action for failure of the petitioner to allege the fact of acknowledgment in the complaint, but the prescription of the action.
Applying the foregoing principles to the case at bar, although petitioner contends that the complaint filed by herein private respondent merely alleges that the minor Chad Cuyugan is an illegitimate child of the deceased and is actually a claim for inheritance, from the allegations therein the same may be considered as one to compel recognition.  Further, that the two causes of action, one to compel recognition and the other to claim inheritance, may be joined in one complaint is not new in our jurisprudence.
As early as [1922] we had occasion to rule thereon in Briz vs. Briz, et al. (43 Phil. 763 [1922]) wherein we said:
The question whether a person in the position of the present plaintiff can in any event maintain a complex action to compel recognition as a natural child and at the same time to obtain ulterior relief in the character of heir, is one which in the opinion of this court must be answered in the affirmative, provided always that the conditions justifying the joinder of the two distinct causes of action are present in the particular case.  In other words, there is no absolute necessity requiring that the action to compel acknowledgment should have been instituted and prosecuted to a successful conclusion prior to the action in which that same plaintiff seeks additional relief in the character of heir.  Certainly, there is nothing so peculiar to the action to compel acknowledgment as to require that a rule should be here applied different from that generally applicable in other cases. x x x
The conclusion above stated, though not heretofore explicitly formulated by this court, is undoubtedly to some extent supported by our prior decisions. Thus, we have held in numerous cases, and the doctrine must be considered well settled, that a natural child having a right to compel acknowledgment, but who has not been in fact legally acknowledged, may maintain partition proceedings for the division of the inheritance against his coheirs x x x; and the same person may intervene in proceedings for the distribution of the estate of his deceased natural father, or mother x x x.  In neither of these situations has it been thought necessary for the plaintiff to show a prior decree compelling acknowledgment. The obvious reason is that in partition suits and distribution proceedings the other persons who might take by inheritance are before the court; and the declaration of heirship is appropriate to such proceedings. (Underscoring supplied)
Although the instant case deals with support rather than inheritance, as in Tayag, the basis or rationale for integrating them remains the same. Whether or not respondent Martin is entitled to support depends completely on the determination of filiation.  A separate action will only result in a multiplicity of suits, given how intimately related the main issues in both cases are. To paraphrase Tayag, the declaration of filiation is entirely appropriate to these proceedings.
x x x."

DNA tests at UP Diliman; primer and guidelines.

Natural Sciences Research Institute, Miranda Hall
University of the Philippines
Diliman, 1101 Quezon City
Telefax No. 925-2965
Tel. No. 981-8500 local 3605
Mobile No. 0918-9136284 email :


Prior to the collection of biological samples, the following are needed:

a. Presentation of a valid identification card (bearing photograph and signature), by both parties and any witnesses or accompanying persons. If child is of school age, school ID must be presented.

b. Submission of one recent 2” x 2” ID photo of each individual included in sampling. Photos should have white background and should have been taken within the last week.

c. Presentation of the original NSO birth certificate of all parties concerned (for verification) and the couple’s original NSO marriage certificate (when applicable).

d. Signing of the appropriate Agreement and other Forms of the DNA Analysis Laboratory pertaining to the test by both parties concerned.

e. For minors, authorization from legal guardian and proof of legal guardianship are required.


Blood (<1cc analysis="" and="" at="" be="" buccal="" collected="" held="" is="" laboratory.="" mondays="" on="" or="" p="" samples="" sampling="" the="" up-nsri-dna="" will="">Tuesdays, from 10am to 12noon BY APPOINTMENT ONLY. Payment of a Php 500.00 scheduling fee is necessary to secure an
appointment for sampling. This amount is deductible from the final payment, however, for appointments cancelled without
prior notice the scheduling fee becomes both non-refundable and non-deductible. If it is not possible for one or more of
the subjects to come to the laboratory for the sampling, other arrangements may be made (see Section 5).
Biological samples (i.e. blood, muscle tissue) from the alleged parent, other parent and the child are needed for simple
parentage testing. Samples obtained from minors must be accompanied by a letter of authorization signed by the child’s
legal guardian. Documentation must be presented to prove guardianship.
With the exception of buccal samples, unused biological samples will be stored in the laboratory for five years without
additional charge. Samples will only be stored in the laboratory after this five year period upon payment of a storage fee.

Biological samples (i.e. blood, muscle tissue) from the alleged parent, other parent and the child are needed for simple parentage testing. Samples obtained from minors must be accompanied by a letter of authorization signed by the child’s legal guardian. Documentation must be presented to prove guardianship.

With the exception of buccal samples, unused biological samples will be stored in the laboratory for five years without additional charge. Samples will only be stored in the laboratory after this five year period upon payment of a storage fee.


Current rates for routine DNA Profiling and Parentage Testing at 15 STR markers are as follows:

P 5,000.00 Sampling, extraction and storage of a biological sample for 5 years
P 45,000.00 Individual DNA profile
P 45,000.00 Two parents, one child
P 65,000.00 One parent, one child

Full payment must be made at the time that the samples are drawn or submitted. This fee does not include consultations and court appearances of the personnel, if the case is taken to court.

Additional statistical analysis of complex data and consultations with DNA personnel will incur separate fees. Fees for non-routine procedures may vary depending on the gravity of the case or the state of the biological samples submitted for testing.

Payments may be made in cash or via Manager’s or Cashier’s cheque (made out to the UP NSRI). Checks drawn against banks outside Metro Manila are subject to bank charges to be shouldered by the client.


The results shall be released to the parties based on arrangements made at the time of sampling. Results are available after 14 working days from date of sampling and completion of all requirements. All enquiries should be directed to the Manager or her duly authorized representative.


Blood samples may be collected by licensed medical personnel from other hospitals/laboratories using an FTA TM Classic Card according to procedures stipulated by the UP-NSRI-DNA Analysis Laboratory. A laboratory sampling form (Form 002) and Chain of Custody form (Form 004) must be properly filled up and sent along with the samples.

Collection Cards and all documents required will be forwarded to the licensed medical personnel upon written request by the client, accompanied by a minimal fee of Php 1,000.00 per sample. This amount is both non-deductible and non-refundable. Staff of the DNA Analysis Laboratory must be informed of the projected arrival details of the samples. This will ensure the immediate processing of samples upon
arrival at UP. Note that the UP-DNA Analysis Laboratory will only accept responsibility for samples after these have reached the laboratory. If the identity of the source of a sample is an issue, the personal appearance of individuals concerned at the UPDNA Laboratory (Section 1) is advised.

To facilitate the complete analysis of the case, clients should also make sure that all documents are properly filled up and payments settled. Results are only released upon completion of all requirements stipulated in this guideline.

Too many condos for the rich but none for the poor - Inquirer Opinion | Inquirer Opinion

Read - Too many condos for the rich but none for the poor - Inquirer Opinion | Inquirer Opinion

"x x x.

Isn’t it ironic that with all the gleaming high-rise condominium buildings mushrooming all over the urban areas, there is no housing for poor squatters? Everything is for the rich.

Isn’t it possible to compel land developers, through legislation or rules, or by appealing to their social conscience, to construct medium-rise, affordable housing for poor squatters for every tall condo building that they build for the rich? Let us say that for every 100 costly condos for the rich, the developer will build 10 to 20 units (that’s only 10-20 percent) for the squatters nearby, not in some faraway, godforsaken place.

Squatters resist relocation because the sites are in some remote province where land is still cheap, where they will have no jobs, no water and electric connections, no schools for their children, etc. They will be so far from their means of livelihood in the cities that most of their daily earnings will be used up only for transport. That is why many of them go back to squatting in the cities. If we continue with this, the government will run out of land to award to the homeless but squatting will never disappear. The relocation sites will be sold by the squatters to land speculators, and the squatters will go back to living in shanties or under bridges in the urban areas.

The host communities also resist accepting the squatters because they add to the municipalities’ expenses. Worse, the crime rate in the host communities usually rises, and sanitation usually deteriorates.

The answer, as I see it, is in-city relocation, to medium-rise housing units that will not be sold to the recipient squatters but only rented to them to keep costs as low as possible. That way, land speculation will also be prevented as the squatters cannot sell their rights to their units.

The house help of the condo owners can then come from these medium-rise housing units so they don’t have to be accommodated in the cramped condos.

Great care should be made, however, to award units only to the true homeless squatters, not to the professional squatters and squatting syndicates and land speculators. The latter should be ejected immediately without relocation and prosecuted if they go back to squatting.

The squatting syndicates prey not only on the landowners but also on the squatters themselves, from whom they demand monthly membership fees. These membership fees are never accounted for and simply disappear—into the pockets of the syndicate officers.

Study any squatter colony and you will see that there are stores and shops from which they derive income but for which they pay no rent to the owner of the land they are squatting on. Neither do they pay business taxes to the local governments or income taxes to the Bureau of Internal Revenue.

Visit any squatter colony at the end of the day and you will find their vehicles double-parked on the streets. You will also see TV antennas shooting out of the rooftops and hear soap operas blaring out of their stereo sets. These squatters own vehicles, TV and stereo sets, and other costly home appliances, and we call them “poor” and the bleeding hearts bleed for them?

No government heart bleeds for the poor lot owner whose property has been squatted upon. Local governments collect higher and higher real estate taxes from them but do not protect their properties from squatters. Ask for their help against the squatters and they will give you the runaround. Most of the time, local officials will side with the squatters because of their votes.

There are many urban poor groups and even party-list groups, but none for the poor property owners victimized by squatters. By “property owner,” I am referring not to the hacienda owners or the corporate owners of estates who can take care of themselves, but to the poor teacher, clerk and other lowly employees who paid for their lots in installments, month after month and year after year, only for these to be stolen by squatters. To make matters worse, City Hall raises the realty tax every few years on these properties that only the squatters profit from.

These property owners obey the law and pay the taxes. Their taxes are used to help squatters who have broken the law and victimized them. Does this mean that it pays to be a lawbreaker than to be a law-abiding, tax-paying citizen?

* * *

x x x.'

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Senate passes historic immigration reform — but will the House follow? - The Week

Read - Senate passes historic immigration reform — but will the House follow? - The Week


"X XX.

he Senate voted on Thursday to approve the most sweeping overhaul of the nation's immigration system in a generation, sending a wide-ranging bill on to the House, where it faces a far less certain future.
By a vote of 68-32, the Senate approved the so-called Gang of Eight's massive reform bill, which would offer undocumented workers living in the U.S. with a pathway to citizenship, and impose tough new border security measures.
The centerpiece of the bill is a provision that would allow the estimated 11 million undocumented immigrants currently living in the U.S. to apply for citizenship after meeting certain benchmarks over a 13-year period. Citizenship applicants would need to pass background checks, pay back taxes and fees and, after 10 years, finally be available to apply for green cards. After three years with green cards, those immigrants could then become citizens.
The bill would also expand the number of temporary visas to high-skilled workers; update the nation's system for verifying workers' legal status; and double the number of border enforcement agents while building 700 miles of additional fencing along the U.S.-Mexico border.
It is the citizenship provision that proved most thorny in Senate discussions, and that could ultimately down the bill in the House. Many conservative members of Congress have balked outright at any bill that contains what they say amounts to amnesty for illegal immigrants.
X X X."

Thursday, June 27, 2013

Same-sex marriage - United States v. Windsor :: Justia US Supreme Court Center

Read - United States v. Windsor :: Justia US Supreme Court Center

Filipino lawyers will find this US article on DOMA useful for future research.

"x x x.

Windsor and Spyer, two women, married in Canada in 2007. Their home state, New York, recognized the marriage. Spyer died in 2009 and left her estate to Windsor, who sought to claim the federal estate tax exemption for surviving spouses. Her claim was barred by section 3 of the Defense of Marriage Act (DOMA), 28 U.S.C. 1738C, which defined “marriage” and “spouse” to exclude same-sex partners for purposes of federal law. Windsor paid $363,053 in taxes and sought a refund, which the IRS denied. Windsor sued, challenging DOMA. The Department of Justice declined to defend section 3’s constitutionality. The district court ordered a refund, finding section 3 unconstitutional. The Second Circuit affirmed. The Supreme Court affirmed, 5-4, first holding that the government retained a stake, sufficient to support Article III jurisdiction, because the unpaid refund is “a real and immediate economic injury.” There was sufficient argument for section 3’s constitutionality to satisfy prudential concerns. DOMA is unconstitutional as a deprivation of the equal liberty of persons under the Fifth Amendment. Regulation of marriage has traditionally been within the authority of the states. DOMA, applicable to more than 1,000 federal statues and all federal regulations, was directed to a class of persons that the laws of New York and 11 other states have sought to protect. DOMA is inconsistent with the principle that marriage laws may vary from state to state, but are consistent within each state. A state’s decision to give a class of persons the right to marry confers a dignity and status of immense import. New York’s decision was a proper exercise of its sovereign authority. By seeking to injure the class New York seeks to protect, DOMA violated basic due process and equal protection principles applicable to the federal government. Constitutional guarantees of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of the group. DOMA’s history and text indicate a purpose and practical effect to impose a disadvantage, a separate status, and a stigma upon those entering into same-sex marriages made lawful by the states. The law deprived some couples married under the laws of their states, but not others, of rights and responsibilities, creating two contradictory marriage regimes within the same state; it diminished the stability and predictability of basic personal relations.

x x x."

Law prohibiting same-sex marriage is unconstitutional. - FindLaw | Cases and Codes

Read - FindLaw | Cases and Codes


"x x x.

After the California Supreme Court held that limiting marriage to opposite-sex couples violated the California Constitution, state voters passed a ballot initiative known as Proposition 8, amending the State Constitution to define marriage as a union between a man and a womanRespondents, same-sex couples who wish to marry, filed suit in federal court, challenging Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and naming as defendants California's Governor and other state and local officials responsible for enforcing California's marriage laws. The officials refused to defend the law, so the District Court allowed petitioners--the initiative's official proponents--to intervene to defend it. After a bench trial, the court declared Proposition 8 unconstitutional and enjoined the public officials named as defendants from enforcing the law. Those officials elected not to appeal, but petitioners did. The Ninth Circuit certified a question to the California Supreme Court: whether official proponents of a ballot initiative have authority to assert the State's interest in defending the constitutionality of the initiative when public officials refuse to do so. After the California Supreme Court answered in the affirmative, the Ninth Circuit concluded that petitioners had standing under federal law to defend Proposition 8's constitutionality. On the merits, the court affirmed the District Court's order.

x x x."

Wednesday, June 26, 2013

Mandatory publication of laws -

Read -

Publication of laws mandatory -
"We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation."
Read -

Timetable to decide cases -

Read -

"x x x.

Section 15(1), Article VIII of the 1987 Constitution, mandates that cases or matters filed with the lower courts must be decided or resolved within three months from the date they are submitted for decision or resolution. With respect to cases falling under the 1991 Revised Rule on Summary Procedure, first level courts are only allowed 30 days following the receipt of the last affidavit and position paper, or the expiration of the period for filing the same, within which to render judgment. Section 6 of the said Rule also requires first level courts to render judgment motu proprio or
upon motion of the plaintiff if the defendant fails to file an answer to the
complaint within the allowable period.

x x x."

50 simple ways you can market your practice - ABA Journal

Read - 50 simple ways you can market your practice - ABA Journal


"X X X.

1.) Some lawyers believe that if you do good work, people will automatically come to you. They are wrong. People need reminders.
2.) Contact three to five potential referral sources a week—every week, regardless of how busy you are—and arrange to meet for coffee, drinks or a meal. That works much better than reaching out only when business is slow.
3.) At business receptions, ask organizers whether you can be a greeter. This gives you a great reason to introduce yourself to people.
4.) If you have a practice-related blog, write posts with information that’s truly useful to business targets. More often than not, that doesn’t include descriptions of how competent you or your firm are.
5.) Your firm’s holiday card is probably one of many that clients or potential clients receive. Find another holiday (or make one up) that you enjoy and that complements your practice. Separating yourself from other, similar messages is of real value.
Lucian Pera, at Graceland, sends clients and potential clients cards for Elvis' birthday. "For a number of people I do business with, my connection to Memphis is important. I want them to think about Memphis and think about me, and I don't want there to be more than a half second between those two thoughts." Pera, who is also ABA treasurer, offers tip No. 5. Photo by Dero Sanford.
6.) Think hard about who your target market is, and where the decision-makers are in that market.
7.) When you meet a potential client, focus on his or her immediate needs. It may have nothing to do with your practice. Maybe that person’s immediate need is to find a dentist. If you know one and can connect them, there’s a better chance the person will think of you when services you offer are needed.
8.) Organize a monthly dinner group of law school classmates, varying the practice areas so attendees have greater referral opportunities.
9.) Develop a marketing plan around activities you enjoy. If you like to write, think about an electronic newsletter. If you connect better with people one on one, consider volunteer work with an activity that complements your practice.
10.) Focus on good lawyers who are your contemporaries when thinking about potential referral sources. More experienced lawyers already have people to whom they refer cases.
Tip No. 10—Steve Hurley: Focus on good lawyers who are your contemporaries when getting in touch with potential referral sources. More experienced lawyers already have people to whom they refer cases. Photo by Sara Stathas.
11.) Don’t adopt a false marketing persona. Be yourself, and figure out the best way to present yourself in a way you find appealing.
12.) You don’t need to hand a business card to everyone you meet at a reception if it feels forced and desperate. Instead, get other people’s cards, and email your contact information afterward. There’s a better chance they will remember you.
13.) Providing they label it attorney advertising, personal injury lawyers may send ad letters to accident victims. And arrest reports can offer good leads for criminal defense lawyers. Family law attorneys may send advertising letters to pro se defendants in divorce cases, determining who to contact based on parties’ ZIP codes.
14.) If you hope to be hired for an appeal, read all the briefs as well as related cases, and figure out the case’s arguments. Be prepared to speak with the party about the case—without notes—for one hour.
15.) Posting tweets between 1 p.m. and 3 p.m. Eastern time gets the highest click rate, according to Mashable. You can schedule tweets to be posted by services like HootSuite. But be careful if you have work during those scheduled times. You don’t want a client to think you are tweeting while you’re defending a deposition.
Tip No.15—Molly DiBianca: Posting tweets between 1 p.m. and 3 p.m. Eastern time gets the highest click rate, and you can schedule tweets to be posted for you by services like HootSuite. But be careful if you have work during scheduled times. You don't want a client to think you're tweeting while you're defending a deposition. Photo by Michael Branscom.
16.) Criminal defense lawyers: If an attorney in a different practice area has been a great referral source and their kid gets into trouble, think about handling the case for free.
17.) People sometimes need to be convinced that their legal problem is severe enough to hire you, and it’s up to you to persuade them. That said, turning someone away when they really don’t need a lawyer is good for business, too. It’s a good way to build trust.
18.) Attend bar association events. Lawyers only refer cases to people they know; and if they don’t see you, they won’t think of you.
19.) Install Google Analytics on your website. It details what search terms got people to your site and how long they stayed there. You can also use it to determine popular search terms, and put the terms that relate to your practice on your website.
20.) Volunteer with various legal and community groups. Do the volunteer work to the best of your ability, even if you don’t like it.
21.) End a conversation with someone at a networking event after you finish a statement, rather than when they finish one, so they won’t think you’re cutting them off.
22.) If you want to represent a business with a legal department, your job is to make in-house counsel’s job easier.
23.) The best elevator speech? “Hi, I’m a lawyer. What do you do?”
24.) Speak at a continuing legal education seminar only when you think it’s an interesting one that will be well-attended.
25.) Don’t buy a table at an event. Instead, buy seats at different tables so you can spread out and meet more people.
26.) If you are out consistently, meeting with people and doing outreach, you can be successful. There may be days you don’t feel like doing it, but consistency is key.
27.) If you have a website (and you should), have a blog, too. Add new content daily, because Google algorithms give more prominence to sites with fresh, original content. The content doesn’t have to be in the form of a long, researched post. A paragraph or two, with a recent link to something interesting and relevant to your practice, will get you the same amount of traffic—if not more—than longer posts.
28.) Don’t limit networking to in-house counsel, especially at bar events. You never know who someone in private practice knows—or when they will go in-house.
29.) Take time once a week to write LinkedIn endorsements for people you’ve worked with and respect. Don’t wait for them to ask for one; do it on your own.
30.) A reputation as a stand-up person is the best marketing tool. It takes a whole lifetime to build up that reputation and only one negative incident to destroy it.
31.) Join bar associations that welcome you, not those that are closed clubs. 32.) Before meeting someone you’d like to have as a client, research their business on the federal case site Pacer to get a better sense of potential legal needs. Also, read quarterly reports, check out websites and do a Google News search to see what stories have been published about the business.
Tip No. 32—Emery Harlan: Before meeting someone you'd like to have as a client, research their business on the federal case site PACER to get a better sense of potential legal needs. Also read quarterly reports, check out websites and do a Google News search to see what stories have been published about the business. Photo by Sara Stathas.
33.) Never criticize a company by name in a blog post. You never know when that company might be in a position to hire you.
34.) Market the work you’d like to be doing, not the work you have to do to pay the bills.
35.) Have an office that’s convenient to reach. Being near the courthouse may not be the best place because there’s rarely free parking.
36.) Read your city’s business publications to get a better sense of legal needs that are not being met, as well as future areas for which people will need counsel.
37.) Go to events to give, rather than to get.
38.) If your community offers free classes, think about volunteering to teach one in an area that complements your practice.
39.) Join groups that have few lawyer members.
40.) Handing out items with your business logo at a trade show? Make sure they’re easy to pack and meet TSA carry-on standards.
Tip No. 2—Janice Brown: Contact three to five potential referral sources a week—every week, regardless of how busy you are—and arrange to meet for coffee, drinks or a meal. That works much better than only reaching out when business is slow. Photo by Nick Nacca.
41.) If you represent consumers, think about a storefront office. People with legal needs probably are not riding up and down office building elevators, unless they already have an attorney.
42.) Ask for a guest list before you attenda business event, and identify individuals you’d like to meet.
43.) Do adjunct professor work. It adds to your expertise, and former students can be great referral sources.
44.) A few good questions to ask people you meet in networking situations: What got you started in this line of work? What are you working on? How are things going with your business in this economy?
45.) Ask the staff of the association that hosts an event to introduce you to people who you think you should know at bar or trade association events.
46.) If you send other lawyers potential clients, let them know. They’ll appreciate that you referred the clients, and it will help them to remember that you did so. If they don’t remember, you need to move on to lawyers who will.
47.) Talking to reporters can be a good thing. To gain their respect, you’ve got to show them you have genuine expertise in a subject and can give pithy answers to their questions.
48.) Multiple people can go with you to a beauty contest, but only one person should do the talking. Clients hire lawyers rather than firms.
49.) Give people you meet a brief description of what you do, rather than stating your title.
50.) Don’t brag about yourself because people won’t take you seriously. No one hires lawyers they don’t take seriously.

X X X."