This a sample "Comment" to the "Offer of Evidence" in a criminal case prepared by our law office. We are sharing it for legal research purposes of our readers/followers.
COMMENT
(To:
PROSECUTION’S “FORMAL OFFER
OF DOCUMENTARY
EXHIBITS”)
THE ACCUSED x x x by counsel, respectfully states:
1.
Re: Exhibit “A”,
with submarkings, of the Offer, the accused xxx objects to Purposes of the
Offer, for the reason that the said statements or allegations of purposes are
self-serving, that the same are mere conclusions of law, and that the same are
not supported by the evidence on record.
1.1.
To stress:
Allegations in a Complaint are not evidence per
se. There is no proof of harassment, threat and coercion extant in the said
exhibit other than the bare allegation of the private complainant.
2.
Re: Exhibit “B”,
with submarkings, of the Offer, the accused xxx objects to the Purposes of
the Offer, for the reason that the said statements or allegations of purposes
are self-serving, that the same are mere conclusions of law, and that the same
are not supported by the evidence on record.
2.1.
To stress:
Allegations in a Salaysay are not evidence per
se. There is no proof of harassment, threat and coercion extant in the said
exhibit other than the bare allegation of the private complainant, showing that
the accused xxx made threatening calls to and poked a gun at the private
complainant.
2.2.
Neither is such
an allegation (conclusion of law) a proof of the presence of conspiracy between
the two accused xxx2.
3.
The exhibit was marked as PROVISIONAL only. There is no proof that the original was offered to
the Court for the record.
3.
Re: Exhibit “C”,
with submarkings, of the Offer, the accused xxx objects to the Purposes of
the Offer, for the reason that the said statements or allegations of purposes
are self-serving, that the same are mere conclusions of law, and that the same
are not supported by the evidence on record.
3.1.
To stress:
Allegations in a Salaysay are not evidence per
se.
3.2.
There is no proof
of harassment, threat and coercion extant in the said exhibit other than the
bare allegation of the private complainant, showing that the accused xxx poked a gun at the private complainant or that the two accused xxx had conspired.
3.3.
As to the
entrapment conducted by the National Bureau of Investigation (NBI), it should
be noted that the Regional Trial Court,
Branch xxx, of xxx City, under Hon. Judge xxx ACQUITTED
the accused xxx of illegal possession of firearms filed by the NBI against
the accused xxx, per its AMENDED
DECISION, dated January 21, 2016 which in due time shall be presented in
evidence by the accused xxx
4.
Re: Exhibit “D”,
with submarkings, of the Offer, the accused xxx objects to the Purpose of the
Offer, for the reason that the said statements or allegations of purposes are
self-serving, that the same are mere conclusions of law, and that the same are
not supported by the evidence on record.
4.1.
To stress:
Allegations in a Salaysay are not evidence per
se.
4.2.
There is no proof
of harassment, threat and coercion extant in the said exhibit other than the
bare allegation of the affiant thereof, showing that the accused xxx banged
loudly on the gate of the home of the private complainant, that the accused xxx poked a gun at the private complainant and that the two accused xxx had conspired.
4.3.
The affiant xxx did not personally testify
before the Court to affirm her subject Affidavit, dated June 28, 2010, and she
was not subjected to cross examination by the two defense counsel, thus, the
said exhibit is HEARSAY under the Rules of Evidence and violates the constitutional
right of confrontation/cross examination of the accused xxx
5.
Re: Exhibit “E”, with submarkings, of the Offer,
the accused xxx objects to the Purposes of the Offer, for the reason that the
said statements or allegations of purposes are self-serving, that the same are
mere conclusions of law, and that the same are not supported by the evidence on
record.
5.1.
To stress:
Allegations in a Salaysay are not evidence per
se.
5.2.
There is no proof
of harassment, threat and coercion extant in the said exhibit other than the
bare allegation of the affiant thereof, showing that the accused xxx threatened the life of the private complainant and his family, that the private
complainant did not freely mortgaged his car to the accused xxx and that the
accused xxx issued the threatening words quoted in the said Salaysay.
5.3.
The exhibit was marked as PROVISIONAL only. There is no proof that the original was offered to
the Court for the record.
6.
Re: Exhibit “F”, with submarkings, of the
Offer, the accused xxx objects to the Purposes of the Offer, for the reason
that the said statements or allegations of purposes are self-serving, that the
same are mere conclusions of law, and that the same are not supported by the
evidence on record.
6.1.
To stress:
Allegations in a Salaysay are not evidence per
se.
6.2.
There is no proof
of harassment, threat and coercion extant in the said exhibit other than the
bare allegation of the affiant thereof, showing that the accused xxx made
threatening phone calls to the private complainant, that the accused xxx poked a gun at the private complainant, and that the two accused xxx had conspired.
6.3.
As to the
entrapment conducted by the National Bureau of Investigation (NBI), it should
be noted that the Regional Trial Court,
Branch xxx, of xxx City, under Hon. Judge xxx ACQUITTED
the accused xxx of illegal possession of firearms filed by the NBI against
the accused xxx, per its AMENDED
DECISION, dated January 21, 2016 which in due time shall be presented in
evidence by the accused xxx
6.4.
The affiant xxx did not personally testify
before the Court to affirm his subject Affidavit, dated July 8, 2010, and he
was not subjected to cross examination
by the two defense counsel, thus, the said exhibit is HEARSAY under the Rules of Evidence and violates the constitutional right of confrontation/cross
examination of the two accused.
6.5.
The exhibit was marked as PROVISIONAL only. There is no proof that the original was offered to
the Court for the record.
7.
Re: Exhibit “G”, with submarkings, of the
Offer, the accused xxx objects to the Purposes of the Offer, for the reason
that the said statements or allegations of purposes are self-serving, that the
same are mere conclusions of law, and that the same are not supported by the
evidence on record.
7.1.
To stress:
Allegations in a Salaysay are not evidence per
se.
7.2.
There is no proof
of harassment, threat and coercion extant in the said exhibit other than the
bare allegation of the affiant thereof, showing that the accused xxx made
threatening phone calls to the private complainant, that the accused xxx poked a gun at the private complainant, and that the two accused xxx had conspired.
7.3.
As to the
entrapment conducted by the National Bureau of Investigation (NBI), it should
be noted that the Regional Trial Court,
Branch xxx, of xxx City, under Hon. xxx ACQUITTED
the accused xxx of illegal possession of firearms filed by the NBI against
the accused xxx, per its AMENDED
DECISION, dated January 21, 2016 which in due time shall be presented in
evidence by the accused xxx
7.4.
The three affiants,
who are NBI agents, namely, xxx, xxx, xxx, did not personally
testify before the Court to affirm their subject Joint Affidavit, dated
July 8, 2010, and they were not
subjected to cross examination by the two defense counsel, thus, the said
exhibit is HEARSAY under the Rules
of Evidence and violates the constitutional
right of confrontation/cross examination of the two accused.
8.
Re: Exhibit “H”, with submarkings, of the
Offer, the accused xxx objects to the Purposes of the Offer, for the reason
that the said statements or allegations of purposes are self-serving, that the
same are mere conclusions of law, and that the same are not supported by the
evidence on record.
8.1.
To stress: Allegations
in a Salaysay are not evidence per se.
8.2.
There is no proof
of harassment, threat and coercion extant in the said exhibit other than the
bare allegation of the affiants thereof or that the accused xxx poked a
gun on the private complainant.
8.3.
As to the
entrapment conducted by the National Bureau of Investigation (NBI), it should
be noted that the Regional Trial Court,
Branch xxx, of xxxCity, under Hon. Judge xxx ACQUITTED
the accused xxx of illegal possession of firearms filed by the NBI against
the accused xxx, per its AMENDED
DECISION, dated January 21, 2016 which in due time shall be presented in
evidence by the accused xxx.
8.4.
The affiant,
who an NBI agent, namely, xxx , did not personally testify before the Court to affirm their subject
Joint Affidavit, dated July 8, 2010, and he was not subjected to cross examination by the two defense counsel,
thus, the said exhibit is HEARSAY
under the Rules of Evidence and violates the constitutional right of confrontation/cross examination of the two
accused.
9.
Re: Exhibit “I”, with submarkings, of the
Offer, the accused xxx objects to the Purposes of the Offer, for the reason
that the said statements or allegations of purposes are self-serving, that the same
are mere conclusions of law, and that the same are not supported by the
evidence on record.
9.1.
To stress:
Allegations in the Memorandum of Agreement, dated February 16, 2010, are not
evidence per se of threat and
coercion. It is merely an evidence of
a business transaction.
9.2.
There is no proof
of harassment, threat and coercion extant in the said exhibit other than the
bare allegation of the affiant-private complainant. There is no proof that the
private complainant was forced to sign the MOA and to mortgage his car or that
he was forced, threatened and coerced by the accused xxx to pay the debt
subject matter thereof. The MOA with a Deed of Chattel Mortgage was a
regular business loan transaction duly executed by the parties, including the
private complainant.
10.
Re: Exhibits “J”, “K”, and “L”, with
submarkings, of the Offer, which are Cash Vouchers and Bank Deposit Slips, the
accused xxx opez objects to the purposes for which they are being offered, for the
reason that the said statements or allegations of purposes are self-serving,
that the same are mere conclusions of law, that the same are not supported by
the evidence on record, and that the purposes stated are irrelevant and
immaterial to the allegation of threat and coercion allegedly committed by the
accused xxx
10.1.
A voucher and a bank deposit slip are not proofs of
threat, coercion, harassment, and compulsion. They are merely proofs of payment
by the debtor and proofs of receipt of such payment by the creditor.
11.
Re: Exhibits “M”, “O”, and “P”, with
submarkings, of the Offer, the accused xxx objects to the Purposes of the
Offer, for the reason that the said statements or allegations of purposes are
self-serving, that the same are mere conclusions of law, that the same are not
supported by the evidence on record, and that the alleged threat and coercion
are not shown in and by said documents.
11.1.
The author of
Exh. “P” (NBI transmittal letter to the Chief Prosecutor of xxx City), i.e.,
NBI Dep. Dir. xxx was not
presented in court to authenticate the said document and he was not
cross examined. He had no personal
knowledge of the crimes charged in the instant cases. He merely relied on the
hearsay statement of NBI agent xxx as part of his transmittal letter to
the Chief Prosecutor of xxx City.
12.
Re: Exhibit “Q”,
with submarkings, of the Offer, the accused xxx objects to the Purposes of th
Offer, for the reason that the said statements or allegations of purposes are
self-serving, that the same are mere conclusions of law, that the same are not
supported by the evidence on record, that
the stated purposes are irrelevant and immaterial to the nature and contents of
the Certificate of Incorporation of the subject Corporation issued by the
Securities and Exchange Commission (SEC), and that the attached
document thereto, entitled “Extraction/Hustlings/Stockpiling/Hauling and
Loading Contract” is not part of the
said exhibit and was not issued by the SEC and was not marked as a submarkings
of the said exhibit. It was merely
inserted in the Offer for unfair reasons.
13.
Re: Exhibit “R” (Letter of Understanding), with
submarkings, of the Offer, the accused xxx objects to Purposes of the Offer, for
the reason that the said statements or allegations of purposes are
self-serving, that the same are mere conclusions of law, that the same are not
supported by the evidence on record, and, most of all, that the said exhibit
does not prove the crimes of threat and coercion, and that the said exhibit is
simply a proof of a regular business transaction.
13.1.
The said exhibit is PROVISIONAL only. There is no
proof that the original thereof had been submitted to the court for the record.
It is not the best evidence for the purposes for which it is now being offered.
14.
Re: Exhibit “S”, with
submarkings, of the Offer, the accused xxx objects to the Purpose of said
Offer, for the reason that the said statements or allegations of purposes do
not prove the crimes of threats and coercion. It merely proves probable cause (a duty of the Office of
the Prosecutor to establish after a preliminary investigation).
14.1.
Further, the said exhibit is PROVISIONAL only. There
is no proof that the original thereof had been submitted to the court for the
record. It is not the best evidence for the purposes for which it is now being
offered.
15.
Re: Exhibit “U”, ”V”, and “W”, with
submarkings, of the Offer, the accused xxx objects to the Purposes of the
Offer, for the reason that the said statements or allegations of purposes are
self-serving, that the same are mere conclusions of law, that the same are not
supported by the evidence on record, and
that the subject matters of the said documents and contracts is extraneous,
irrelevant and immaterial to the crimes of threat and coercion charged in the
instant cases.
16.
Re: Exhibit “X”
(judicial affidavit of xxx with submarkings, of the Offer, the accused xxx objects to the Purposes of the Offer, for the reason that the said
statements or allegations of purposes are self-serving, that the same are mere
conclusions of law, that the same are not supported by the evidence on record,
that the same does not prove beyond
reasonable doubt the crimes of threat and coercion charged in the instant
cases, and that it does not corroborate the testimony of the private
complainant as allege din the Purpose Column.
WHEREFORE, in the interest of justice, it is respectfully
prayed that the foregoing comments/objections be considered by the Court in
resolving the prosecution’s “Formal Offer
of Documentary Exhibits”.
Las
Pinas City, November 3, 2016.
LASERNA CUEVA-MERCADER
LAW OFFICES
Counsel for Accused xxx
Unit 15, Star Arcade, CV
Starr Ave.
Philamlife Village, Las
Pinas City 1740
Tel. Nos. 8725443 &
8462539
X x x.
Cc:
OFFICE OF THE CITY PROSECUTOR
Hall of Justice
X X X
Reg. Rec. No.
Date PO
Atty. x x x.
Private Prosecutor
X x x x .
Reg. Rec. No.
Date PO
EXPLANATION
Copies
hereof are served on the Court, the opposing counsel and the public prosecutor via
LBC Express Corp./registered mail due to the lack of field staff of undersigned
counsel at this time and due to the urgency of filing the same.
x x x
