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EVIDENCE (REMEDIAL LAW REVIEW 2) Atty. Ferdinand Tan 1. What is evidence?

- It is the means, sanctioned by the Rules, of ascertaining in a judicial proceeding, the truth respecting a matter of fact. 2. Factum Probandum v. Factum Probans Factum Probandum Factum Probans Fact or proposition Fact or material sought to be established. evidencing the fact or proposition sought to be established It is the ultimate facts. It is the intermediate facts. It is hypothetical. It is existent. 3. Evidence v. Proof - Proof is the probative effect of evidence, and is the conviction or persuasion of the mind of the person hearing the case resulting from a consideration of evidence. 4. Nature of Evidence a. It is UNIFORM because under Rule 128, Section 2, the rules of evidence shall be the same in all courts, and in all trials and hearings, except as otherwise provided by the law or by the Rules. b. It gives no vested right because the rules of evidence are subject to change by the Supreme Court pursuant to the rule making powers, but subject to the prohibition on the enactment of an ex post facto law. 5. Rules on the Application of the Rules of Evidence General Rule: it is only applicable in a judicial proceeding. Rule 1, Section 4 provides that the Rules of Court shall not be applicable in the following cases: (CLINE-0) a. Cadastral b. Land registration c. Insolvency d. Naturalization e. Election f. Other cases Exception: - By analogy, or in a suppletory character, whenever practicable and convenient.

Exception to the Exception: Rule 1, Section 2 of the Rules on Electronic Evidence provides that the said rules shall apply to: a. Civil actions and proceedings b. Quasi-judicial proceedings c. Administrative proceedings 6. Is the Rules of Evidence applicable in labor cases? - No. Because under Article 221 of the Labor Code, technical rules of evidence are not binding in labor cases. 7. a. b. c. d. e. f. g. h. i. j. k. l. m. Sources of the Rules of Evidence Rules of Court (Rule 128-134) Jurisprudence Supreme Court Circulars Comprehensive Dangerous Drugs Act of 2002 (RA 9165) regarding the rule on Chain of Custody Anti-Wiretapping Law (RA 4200) Rule on Child Witness Examination Rules on Electronic Evidence Rules on DNA Evidence E-Commerce Law RA 6981 Providing for the Witness Protection Program 1987 Constitution Articles 1370-1378 of the Civil Code Revised Penal Code Provisions - Falsification of public documents - Forgery - Manufacturing, importing, and possession of instruments intended for commission of falsification. - Other falsities

8. Constitutional Provisions Article III, Section 1 No person shall be deprived of life, liberty, or property without due process of the law nor shall any person be denied the equal protection of the laws

Article III, Section 2 The right of the people to be secure in their persons, houses, papers, and effects Against unreasonable searches and seizures of whatever nature And for any purpose shall be inviolable,

And no search warrant or warrant of arrest shall issue Except upon probable cause to be determined personally by the judge After examination under oath or affirmation or the complainant And the witnesses he may produce, And particularly describing the place to be searched And the persons or things to be seized.

by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable. Section 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. Section 17. No person shall be compelled to be a witness against himself. ARTICLE VIII JUDICIAL DEPARTMENT Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

Article III, Section 3 (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. Section 12. 1. Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. 2. No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. 3. Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. 4. The law shall provide for penal and civil sanctions for violations of this Section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families. Section 14. 1. No person shall be held to answer for a criminal offense without due process of law. 2. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard

Section 5. The Supreme Court shall have the following powers: (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain

effective unless disapproved by the Supreme Court. 9. Rules on Right against Self-Incrimination a. Under Rule 132, Section 3 (4), a witness has the right not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law. b. The rule cannot be applied when the witness is given a privilege under an immunity statute. (ex. Section 17 of the Ombudsman Act gives the Ombudsman the right to give any person immunity when the testimony of any person is necessary to prosecute a public officer) c. It applies only to natural persons. d. Right of the Accused v. Right of a Witness Right of the Accused Right of a Witness - The accused - The witness may cannot be be compelled to compelled to answer testify against questions, himself for although his whatever reason, answer may tend even if it involves to establish a only a civil claim against liability. himself. But he cannot be compelled to answer questions which will subject him to a penal liability.

Rule 1, Section 6 provides that it shall be LIBERALLY CONSTRUED in order to promote their objective of securing a just, speedy, and inexpensive disposition of every action and proceeding. 11. May the rules of evidence be waived? How? - Yes. It may be waived by: a. Not objecting to an evidence otherwise objectionable. b. Stipulation of the parties. Kinds of Evidence: 1. Object Evidence/Real Evidence/Evidence of Autoptic Preference (Rule 130, Section 1) - An evidence which is addressed to the senses of the court. - When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. 2. Documentary Evidence - It consists of writings, or any material containing letters, words, numbers, figures, symbols, or other modes of written expression OFFERED AS PROOF OF THEIR CONTENTS. 3. Testimonial Evidence/Viva-Voce Evidence - A narration or deposition by a person who has observed or has personal knowledge of that to which he is testifying. 4. Best Evidence - When the subject of an inquiry is the contents of the document, no evidence shall be admissible other than the original document itself. - An evidence which affords the greatest certainty of the fact in question. 5. Secondary/Substitutionary Evidence - An evidence which is only admissible AFTER LAYING THE BASIS THAT THE BEST EVIDENCE CANNOT BE PRODUCED IN COURT. 6. Parol Evidence - An evidence, when put to issue in the pleading, which modifies, explains, or adds to the terms of the written agreement.

e. Administrative Cases The right to refuse to take the stand does not generally apply to parties in administrative cases or proceedings. The parties thereto can only refuse to answer if incriminating questions are propounded. This Court applied the exception a party who is not an accused in a criminal case is allowed not to take the witness stand in administrative cases/proceedings that partook of the nature of a criminal proceeding or analogous to a criminal proceeding. (Rosete v. Lim, GR No. 136051, 6/8/2006) f. Senate Inquiries applicable only when the incriminating question is asked. 10. How to Construe the Rules of Evidence

7. Admissible Evidence - An evidence which is relevant and not excluded by the law or by the Rules. 8. Relevant Evidence - An evidence which has a relation to the fact in issue as to induce belief in its existence or non-existence. 9. Competent Evidence - An evidence which is not excluded by the law or by the Rules. 10. Prima Facie Evidence - An evidence which, standing alone, uncontradicted or unrebutted, is sufficient ot maintain the proposition affirmed. 11. Conclusive Evidence - An evidence which the law does not allow to be contradicted. 12. Corroborative Evidence - Additional evidence of a DIFFERENT KIND AND CHARACTER FROM THAT ALREADY GIVEN tending to prove the same point. 13. Cumulative Evidence - Additional evidence of SAME KIND AND CHARACTER AS THAT ALREADY GIVEN tending to prove the same point. 14. Positive Evidence - An evidence that affirms that a fact did or did not happen. 15. Negative Evidence - An evidence that denies the fact did happen or denies of knowing a fact that happened. 16. DNA Evidence - The totality of the DNA profile result, and other genetic information directly generated from the DNA Testing of the biological samples. (DNA= Deoxyribonucleic Acid) 17. Electronic Evidence/Electronic Document - An information or the representation of information, data, figures, symbols, or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted,

stored processed, retrieved, or produced electronically. 18. Evidence-in-chief - Evidence primarily relied upon by the party in asserting his claim or defense. 19. Rebuttal Evidence - An evidence which explains, repels, counteracts, or disproves facts given by the adverse party.

20. Surrebuttal Evidence - An evidence which explains, repels, counteracts, or disproves facts given by the claiming party in his rebuttal. 21. Hearsay Evidence Rule - A witness can testify only to those facts which he knows of his personal knowledge; that is, which is derived from his own perception. 22. Credible Evidence - An evidence which is not only admissible, but also believable and relied upon by the trier of the case. 23. Direct Evidence - An evidence which can prove the fact in issue without inference or presumption. 24. Circumstantial Evidence - An evidence which proves a fact in issue through an inference which the fact finder draws from the evidence established. 25. Demonstrative Evidence - An evidence that merely illustrates a matter of importance in the litigation. 26. Material Evidence - An evidence directed to prove a fact in issue. 27. Proof Beyond Reasonable Doubt - A kind of evidence proving a moral certainty, which is a degree of proof which produces conviction in an unprejudiced mind. 28. Clear and Convincing Evidence - An evidence which produces in the mind of a trier of fact A FIRM BELIEF OR CONVICTION as to the allegations sought to be established.

29. Preponderance of Evidence - Superior weight of evidence on the issue. 30. Substantial Evidence - The amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. RULE ON COLLATERAL MATTERS: General Rule: It is not allowed. Exception: When it tends to establish any reasonable degree the probability or improbability of the fact in issue. Rules on Admissibility 1. An evidence is admissible when it is: a. Relevant, and b. Competent (Not excluded by the law or Rules) 2. Kinds of Admissibility A. Multiple Admissibility an evidence is admitted for two or more persons. Examples of Multiple Admissibility: Declaration of a Dying Person a. Dying Declaration b. Parts of the Res Gestae c. Declaration Against Interest DNA Evidence a. As an object evidence to determine as to whether there was indeed a DNA Test conducted and there is a corresponding DNA Result b. As documentary evidence to determine the contents of the DNA Result as part of the inquiry. Affidavit/Document a. As object evidence to determine following: - What material the paper is made of? - Comparison of the handwriting - Existence of the affidavit/document - To see whether alterations are made - Condition of the affidavit/document the

B. Conditional Admissibility Where evidence appears to be immaterial unless it is connected with the other facts to be subsequently proved, such may be received on the condition that the facts be afterwards proved. C. Curative Admissibility Where improper evidence is admitted over the objection of the opposing party, the said party must be allowed by the court to contradict it with similar improper evidence. Example: hearsay v. hearsay

3. When is an Electronic Document Admissible? a. When it complies with the rules on admissibility prescribed in the Rules of Court, and b. Authenticated in the manner prescribed by the Rules on Electronic Evidence 4. Rules on Summary Procedure a. In Civil Cases - The Rules on Testimonial Evidence are not applicable because there is no trial and no testimonies are taken on the witness stand, however, the rest of the Rules are applicable. b. In Criminal Cases - Rule on testimonial evidence is applicable. JUDICIAL NOTICE 1. Definition - The cognizance of certain facts which judges may properly take and act upon without proof. 2. Matters need not be proved: a. Immaterial allegations b. Failure to specifically deny material averment in the complaint, other than those as to the amount of unliquidated damages. (Rule 8, Section 11) c. Allegations of usury in a complaint to recover usurious interest, not specifically denied UNDER OATH. d. Failure to specifically deny under oath the genuineness and due execution of the written instrument. e. Presumptions under Rule 131 f. Facts subject to Judicial Notice g. Agreed and admitted facts (Rule 129, Section 4)

b. As documentary evidence to determine the contents of which it is the subject of an inquiry.

3. a. b. c. d. e. f. g. h. i. j.

Mandatory Judicial Notice, when required: Existence and territorial extent of the state, Political history Forms of government and symbols of nationality Laws of the nations The admiralty and maritime courts of the world including their seals Political constitution and history of the Philippines Official acts of the legislative, executive and the judiciary departments of the Philippines. Laws of nature Measure of time Geographical divisions.

b. Where the foreign law is within the actual knowledge of the court such as when the law is generally well known, had been ruled upon in previous cases before it and none of the parties claim otherwise. c. Rule 130, Section 46. A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice. 8. Rule on Municipal Ordinances - It is mandatory judicial notice if the case is still in the MTC where the ordinance is applicable - It is mandatory in judicial notice in the RTC if: a. Required by the law or ordinance b. When the ordinance is the subject of an appeal c. Rule 130, Section 46. A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice. Judicial Notice of Records of Another Case Previously Tried General Rule: Courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court and pending before the same judge. Exceptions: 1. When, at the initiative of the judge or of the parties, and without objection of any party, the records of the previous action are read and adopted into the present action, or attached to the records of the present action by court order; 2. When the present action is closely interrelated to another case pending between the same parties; 3. Where the interest of the public in ascertaining the truth are of paramount importance; 4. In cases seeking to determine what is reasonable exercise of discretion or whether or not the previous ruling is applicable in a case under consideration; 5. Where there is finality of a judgment in another case that was previously pending determination and therefore, res judicata.

Note: The list of mandatory judicial notice is not exclusive. a. Post office practices b. Banking practices c. Municipal ordinances d. Financial condition of the government e. General increase in rentals of real estate f. Persons have killed or committed serious offenses for no reason at all. g. Filipinos inbred modesty and shyness and 4. Discretionary Judicial Notice (Rule 129, Section 2) a. Matters of public knowledge b. Capable of unquestionable demonstration c. Ought to be known to judges because of their judicial functions. 5. Judicial Notice, When Hearing Required a. During trial - The court may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon. b. After trial, and Before Judgment If such matter is decisive of a material issue in the case, the court may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon.

6. Doctrine of Processual Presumption - Foreign laws must be alleged and proved. In the absence of proof, the foreign law will be presumed to be the same as the laws of the jurisdiction hearing the case. 7. Rule on Foreign Laws; Judicial Notice a. Apply the Doctrine of Processual Presumption

ADMISSION Definition: - It is an act, declaration, or omission of a party as to a relevant fact. Kinds of Admission: 1. Judicial Admission An admission, verbal or written, made by a party in the course of the proceedings in the same case. 2. Extra-Judicial Admission An admission made by a party not in the same case.

How to Contradict a Judicial Admission a. By showing that it was made through palpable mistake, or b. No such admission was made. Distinctions between Judicial Admission and Judicial Confession a. as to the manner of making: Judicial Admission act, declaration, or omission. Judicial Confession- declaration b. As to the fact admitted: Judicial Admission admit as to any relevant fact. Judicial Confession admit by acknowledging his guilt in the offense charged or of any offense necessarily included therein. c. As to Scope Judicial Admission broader in scope. Judicial Confession a kind of admission. d. Express or Implied Judicial Admission Yes. It may be express or implied. Judicial Confession - it must be express. There is no instance of an implied confession. e. As to the Nature of the Proceedings Judicial Admission applicable in all cases, whether civil or criminal. Judicial Confession applicable only in criminal.