In the typical bar exam essay question, the issue may be gleaned with facility from the text. For example, a question states that the adverse party objected to the offered document for being hearsay, while the proponent argued that the document was admissible as a business-entry exception to the hearsay rule. The examinee is then asked to rule on the objection. The question expressly states the issue: whether the offered evidence is covered by the business-entry exception to the hearsay rule and thus admissible in evidence. I would call this kind of question an issue-poser.
A more difficult type of question is the issue-spotter. Here, the issue is not expressly stated in the text of the question but will have to be unearthed by the examinee. For instance, the question may ask the examinee to interpose a valid objection to offered evidence.
An example of an issue-spotter is found in the 1995 Bar Examination in Remedial Law.
“Allan and Narita were married on 1 August 1989. After 2 months, Narita told Allan in confidence that the 10-year-old Liza whom she claimed to be her niece was actually her daughter by a certain Basilio, a married man.
“In 1992, Narita obtained a judicial decree of nullity of her marriage with Allan on the latter’s psychological incapacity to fulfill his marital obligations. When the decree became final, Liza, assisted by Narita, filed 10 cases of rape against Allan purportedly committed in 1991. During the trial, Narita was called to the witness stand to testify as a witness against Allan who objected thereto on the ground of marital disqualification.
“1. As public prosecutor, how would you meet the objection?
“2. Suppose Narita’s testimony was offered while the decision nullifying her marriage to Allan was pending appeal, would your answer be different?
“3. Suppose Narita died during the pendency of the appeal, and soon after, the legal wife of Basilio sued for legal separation on the ground of sexual infidelity in view of Basilio’s love affair with Narita. At the trial Allan was called by Basilio’s wife to testify that Narita confided to him (Allan) during their marriage that Liza was her love child by Basilio. As counsel for Basilio, can you validly object to the presentation of Allan as witness for the plaintiff? Explain.”
Subquestions 1 and 2 are examples of issue-posers. The issue, that is, the applicability of the marital disqualification rule, was expressly stated in the text of the question.
Subquestion 3 on the other hand is an issue-spotter. The subquestion is broadly phrased: whether Basilio’s counsel can validly object to the presentation of Allan as a witness. The examinee then must spot what are the plausible objections and the proper rulings thereon. This is not that easy as there is a plethora of possible objections to evidence.
Issue-spotters are more challenging than issue-posers. The art of tackling such questions is to spot the core issue using pattern-recognition and theoretical knowledge. The challenging nature of issue-spotters is shown by the fact that even law professors and experts may differ as to the core issues and how to tackle them. Below are the suggested answers of the UP Law Center Committee and Dean Willard Riano to subquestion 3.
UP Law Center Committee suggested answer
“Yes, I could validly object to the presentation of Allan as a witness on the ground that the communication of Narita was a privileged communication which could be invoked during or after the marriage. Moreover, the testimony of Allan would be hearsay.”
Dean Willard B. Riano’s comment on UPLC’s suggested answer
“It is submitted that the testimony could not be validly objected upon by Basilio’s counsel on the basis of the marital privileged communication rule. Basilio does not own the privilege. The prerogative to object to a confidential communication between spouses is vested upon the spouses themselves, particularly the communicating spouse, not a third person. This is clear from the provision: “… cannot be examined without the consent of the other …” (Section 24, Rule 130, Rules of Court). The proper objection should be based on hearsay grounds, not on privileged communication.” (WILLARD B. RIANO, EVIDENCE: THE BAR LECTURE SERIES 279-80 [2009]).
Both suggested answers state that Allan’s testimony may be validly objected on the ground of hearsay. I have a different opinion.
Author’s suggested answer
“No, as counsel for Basilio I cannot validly object on the ground of the marital disqualification rule since the marriage had already been terminated by Narita’s death. Nor may I object on the ground that Narita’s statement is covered by the marital communication privilege. The one who may invoke the privilege is Allan, the party to the marriage, and not Basilio. Finally, I cannot validly object on the ground of hearsay since Narita’s statement is a declaration against interest and hence, excepted from the hearsay rule.”
The case of the unapt injunction
Another example of an issue-spotter is Question No. 11 of the 2003 Remedial Law bar examination. While quite short, it is a devilishly tricky question.
“Can a suit for injunction be aptly filed with the Supreme Court to stop the President of the Philippines from entering into a peace agreement with the National Democratic Front?”
UPLC Committee suggested answer
“No, a suit for injunction cannot aptly be filed with the Supreme Court to stop the President of the Philippines from entering into a peace agreement with the National Democratic Front, which is a purely political question. The President of the Philippines is immune from suit.”
The suggested answer tackles the question from a substantive, political law perspective. On the other hand, I chose to tackle the question from a remedial law point of view.
Author’s suggested answer
“No, a suit for injunction cannot be aptly filed with the Supreme Court.
“Under B.P. Blg. 129, an action which is incapable of pecuniary estimation is within the exclusive jurisdiction of and should be filed with the Regional Trial Court (RTC).
“Here, the action is for injunction which is incapable of pecuniary estimation. Hence, the exclusive jurisdiction of such action is with the RTC and thus the suit cannot be aptly filed with the Supreme Court.”
The fishy levy
Professor Antonio R. Bautista taught evidence at the Ateneo de Manila Law School. He gave open-book midterm and final examinations and to make these questions challenging he usually couched them in the form of issue-spotters. An example taken from Prof. Bautista’s book Remedial Law Quizzer is given below:
“The sheriff, levying a writ of execution, harvested bangus from the judgment defendant’s fishpond. Is this levy proper?”
Prof. Bautista’s suggested answer:
“No. Levy on execution should have been by merely filing with the proper register of deeds the notice of levy because fish in a fishpond is real property. (Civil Code, Art. 415[6]; Rule 39, Sec. 9[b] last par. in relation to Rule 57, Sec. 7)”
I have a different take from the composer of the problem:
“Yes, the levy on execution on the bangus from the defendant’s fishpond is proper.
“Under the Rules of Civil Procedure, the sheriff may levy on execution upon personal property by taking the same and keeping it in his custody preparatory to the execution sale. [S9(b) R39]
“Here, the bangus is considered as personal property because the same will be mobilized in anticipation of the forthcoming execution sale. Hence, the levy is proper.”
These examples show us that issue-spotters are quite tricky and that even law professors and writers differ as to what the core issues are and how to resolve them. The bar examinee who is confronted with an issue-spotter should remember that more important than coming up with the correct conclusion is unearthing the core issue or issues from the problem using fact-pattern recognition and one’s theoretical or substantive knowledge and then resolving these issues in a logical and organized manner.
-oOo-
Thank you!