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it?

No, that is clear


circumstantial evidence.

PART IV
RULES OF EVIDENCE
RULE 128
General Provisions
SECTION 1.
Evidence defined. Evidence is the means, sanctioned
by these rules, of ascertaining in a judicial proceeding the truth respecting
a matter of fact. (1)
Evidence is a part of a proceeding (i.e. civil, crim, spec pro), NOT a
proceeding
Proof is the result.
Evidence is the means to prove the facts.
Facts + Evidence = Truth (proven)
Court has no choice but to rely on evidence with the hope that truth
shall be ascertained.
There is a need to qualify.
When you handle a case, you always talk of propositions. Then, to
establish your allegations, you always use and say evidence.
So, evidence is the means to prove the facts. If you are able to
connect your fact in relation to the evidence you will present, then you
are able to prove it, you were able to ascertain the truth of it.
So, in all cases there should be a fact or an allegation to fortify
evidence, but that is not as simple as that because under Section 3,
evidence is admissible when (1) it is relevant to the issue and (2) not
excluded by the law or the Rules.
Evidence may be relevant but is excluded all together by the rules.
SO, you are not able to prove anything. You are not able to ascertain
the truth that you would want to ascertain.
Evidence generally are Object, Documentary, Testimonial Evidence.
Under Rule 130, it is object, documentary and testimonial evidence.
Direct evidence is that which tends to establish a fact without any
inference or presumption. Example: I saw Mr. X stab B. That is a direct
evidence. Do you need to infer from it? Do you need to presume from

direct

evidence

as

distinguished

from

Circumstantial evidence is that wherein there is one set of


circumstances and based on those circumstances, you will derive a
conclusion. Although, maybe, you havent seen a person stab B but
because you saw Mr. X in possession of a murder weapon and that his
shirt is bloody and that he came from where Mr. B was found
thereafter, the circumstances would point to that fact that he
assaulted the person. That is direct as distinguished from
circumstantial evidence.
Primary evidence is that would force the greatest certainty of the
fact in question. Example of primary evidence on document is the
original. When the content of the document is the subject of the
inquiry then the original should be presented for the primary evidence
there is the original. If the original document is not available could you
present a copy, a recital of contents of some documents or witnesses
in that order? Yes you could, but not so fast. You will have to establish
first either that it was lost or destroyed without bad faith on the part
of the offeror or number two that it is in the possession of the adverse
party and despite notice he refuses to surrender. So, the rule is
primary is the best evidence that you could present to prove a fact, in
case of a document, the original. But for testimonial evidence like the
witnesses, the primary evidence there is the person who had personal
knowledge. He, first and foremost is competent, he is able to perceive
and in perceiving he could make known his perception to another and
more than his competency is that he has personal knowledge.
As distinguished from secondary evidence on testimonial evidence,
secondary evidence is any of the exemptions under the hearsay
rule like a dying declaration that is really a secondary evidence, why?
The dying person did not sit on the stand, it was the person who
received the information or the recipient who will testify on the
witness stand. So, that it is a requirement that the dying man be
competent if he were alive. If he was brought to the witness stand, he
was able to perceive and in perceiving he could make known his
perception to others. Thats just an example of secondary evidence.
The rest of the exemption on hearsay would fall under that.
Positive evidence is when the witness affirms that the fact did or did
not occur. So, he is quite categorical to say that it did or did not occur.
As distinguished from negative, when the witness states that he did
not see or know the occurrence of the fact. Meaning that he was there
at the place where the crime happened, he wouldnt say that I didnt
see but says that he did not notice anything.

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Corroborative evidence is an evidence of a different kind and


character tending to prove the same fact. Example: To establish the
death of Mr. B, I could present testimonial witnesses of persons who
saw the commission of the death, thats one kind of evidence. Whats
the other kind of evidence under that you would present, the death
certificate. It is of a different kind and nature but it would establish
one and the same fact which is the death. Cumulative is that the
nature of evidence is of the same kind and character. Example: Mr. X
barged into this auditorium and stabbed one of the students. Could
Ms. Aquitaa testify? Could Ms. Saldaa testify? Could Mr. Ong testify?
All those are cumulative because they are of the same nature and
character.
Now, what is the difference between relevant and irrelevant evidence?
Evidence is relevant when it tends to establish the probability or
improbability of the fact in issue. However, some authorities use
relevancy and materiality interchangeably.
What do you mean by competent evidence? Competent means that
it is not excluded by the rules. So, it applies to testimonial,
documentary or object. Sir, how is that? Let us say object, if it was
obtained from an illegal search. Although it is relevant, if it was
obtained from an illegal search could it be presented in evidence? It
could be relevant but it is excluded by the Rules. In testimonial
evidence, it is the same. I may be able to testify. I could testify but I
may not be competent because when I allegedly perceived the
commission I was insane. So, it is excluded by the Rules. The same
way as in documentary. The contents of which are the subject of the
inquiry and you are presenting a photocopy without establishing the
need for presenting the secondary evidence, then even if it is
relevant, it cannot be accepted because it is not competent evidence.
Now, what is rebuttal and sur-rebuttal? When do you do a rebuttal
evidence or a sur-rebuttal? A rebuttal is made after the defendant
closes his presentation of evidence. And who will conduct the
rebuttal? It will be the plaintiff on the new matters presented by the
defendant. So, why is there a need for rebuttal? Because the plaintiff
who has the opportunity to present his evidence on the first instance
cannot now meet the new matter presented by the defendant. For
example, alibi, so he presented different documents, different
witnesses. Of course, the plaintiff wants to meet those new matters in
a rebuttal. Is rebuttal a matter of right? No, it is subject to the
discretion of the court, if the court deems it fit for you to conduct a
rebuttal evidence. Based on experience, judges dont usually allow a
rebuttal so that if you could do a good cross-examination of the
defendants witnesses, do so. Aside from impeaching him, you should
also try to elicit facts during cross examination. Now, what is sur-

rebuttal? If the plaintiff has rebuttal, the defendant will have to meet
the rebuttal of the plaintiff; that is sur-rebuttal.
What is an expert evidence? Expert evidence is the testimony of a
person who has special skill, experience, training, and the like. Now,
does it mean that for a person to be an expert, he should be a
graduate of a school or have reached a masters degree? No. Thats
why the law says that there should be a certain level of expertise
arising from experience, training, or special skill. The law gives
premium on these things.
Documentary evidence are writings or words, numbers, figures,
letters contained in a material. That blank wall, there are writings on
that wall about the activities for next month, let us say, of Mr. Ong. Is
that a documentary evidence? If is intends to establish the contents
thereof or the writings, even if it was in the wall, it is a documentary
evidence. But if it intends to establish that there is a graffiti, the wall
is merely an object evidence.
What about testimonial evidence? If you are to read the Rules, this
starts from section 20 of Rule 130. Although, of course, the previous
provisions would have discussed the concept of testimonial evidence
in the light of evidence. Testimonial evidence is the testimony of a
witness who sits on the stand. Now, should the witness be competent?
Yes. Although if he is competent but he does not have personal
knowledge of the facts that he would testify on, would you object to
his being presented? Yes, because his testimony would be hearsay. So
long as it would not fall under any of the exemption.
What is substantial evidence? Substantial evidence is that amount
of evidence which a reasonable mind would accept. Substantial
evidence applies mostly in administrative cases. Because in criminal
cases, we have proof beyond reasonable doubt. In civil cases, we have
preponderance of evidence. Although in civil cases, the number of
witnesses would not tilt the scale of justice, but it has certain
significance in terms of persuasive effect to the court.
What about disputable evidence as against conclusive evidence?
Disputable is that you will present an evidence to contradict or
controvert while a conclusive evidence is that which you do not have
to contradict or controvert.
Distinguish:
Admissibility of evidence
Pertains to the ability of the
evidence to be allowed and

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Weight of evidence
Pertains to the effect of
evidence admitted

+ did/did not happen; better


- I dont know, I didnt see; use it if it contradicts + evidence

accepted subject to its


relevancy and competence
Substantive essence or
characteristic feature of
evidence as would make it
worthy of consideration by the
court before its admission

The probative value of evidence


which the court may give to
admit after complying with the
rules of relevancy and
competency

Proof
Effect and result of evidence
End Result

Evidence
Medium of proof
Means to the end

Factum probandum the ultimate fact sought to be established;


proposition to be established, hypothetical, and that which one party
affirms and the other denies

Conceived of as hypothetical;
that which one party affirms
and the other denies

Primary is the best; original


Secondary is inferior; substitute; lost or in possession of adverse party
Presumption facts give rise to an inference
e.g. commission of an offense gives rise to the presumption of
innocence

Factum probans the evidentiary fact by which the factum


probandum is to be established; material evidencing the proposition,
existent, and offered for the consideration of the tribunal

Factum probandum
Proposition to be established

Primary v Secondary

Factum Probans
Material evidencing the
proposition
Conceived of for practical
purposes as existent, and is
offered as such for the
consideration of the court

Conclusive incontrovertible; once facts (circumstances


established) are not destroyed, becomes conclusive evidence

are

Corroborative additional evidence of a different kind and character


tending to prove the same point
Cumulative evidence of the same kind and character as that already
given, and tends to prove the same proposition
Fact thing, event, occurrence
Facts in issue disputed; no agreement
Factual issue v Legal issue
e.g. did x stab y? (factual) is he liable for homicide? (legal)
Competent relevant + not excluded by law/Rules; very CORE of
evidence

Notes:
Direct Evidence actual perception
People v Aguinaldo rape case; daughter charged his father with rape
during night time when they slept beside each other; defense: denial,
brothers testimony that sister is 100% liar, medical report from the
PNP that hymen was intact

Material may not be directly related to the fact in issue, but material
e.g. whether x purchased a knife in relation to a case of stabbing

Physical v Testimonial what should prevail? (what is important is the


result) Physical Evidence prevails.

Sur-rebuttal usually available when rebuttal is allowed in the courts


discretion

Object Evidence wall, photograph of the wall

Presentation of Evidence:

Documentary Evidence graffiti on the wall since the inquiry is on the


writings

Prosecution
Witnesses:
1. police officer
2. eye witness
3. medico-legal

Positive v Negative

Rebuttal explain, repel, counteract/disprove facts given in evidence


by the adverse party

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Accused
Witnesses:
1. accused
2. person who affirms alibi
that accused stayed at

Since alibi is a new matter,


prosecution asks that it may be
allowed to present rebuttal
evidence.
It is new to the theory of the
prosecution.

his house
SC Circular: Records of PI may be
elevated
(Modes of Discovery)

An offer of compromise does not,


as a general rule, amount to an
admission of liability
Preponderance of evidence

Sur-rebuttal of defense is a matter of right once rebuttal is given.

But sur-rebuttal NOT available if


NOT raised in the pleadings!

Buyer
failed to pay
that there was NO sale,
only a loan

premise: like the car? buy it!

Proof beyond reasonable doubt

offer to pay hospitalization encouraged but NOT admissible


quasi-judicial bodies: Rules of Evidence NOT strictly applied
(HLURB, DARAB, NLRC)
Sec. 3. Admissibility of evidence. Evidence is admissible when it is
relevant to the issue and is not excluded by the law or these rules. (3a)

Remedy?

This is one of the provisions which has been so abused. If it is to be


admissible, it should be relevant and not excluded by the rules. The
fact of relevancy is one, the fact that it is excluded by the rules, you
have to contend with Rule 130 and other pertinent rules like other
Constitutional provisions on searches and arrest on custodial
investigation. If you do not follow the requirements of custodial
investigation on an in-custody procedure, even if it is relevant, if he
admitted that he committed the offense but in the absence of counsel
is it relevant? Yes, it may be relevant but it is excluded by the Rules.

S5 R10 Amend pleadings to


conform with evidence
Object addressed to the senses of the court
Documentary writing, NOT material
Testimonial witness S20 R130
Substantial degree of evidence before quasi-judicial bodies
Expert knowledge, skill, experience, training S48 R130
Sec. 2. Scope. The rules of evidence shall be the same in all courts
and in all trials and hearings, except as otherwise provided by law or these
rules. (2a)
e.g. Best Evidence Rule

Criminal case
Accused attends by compulsion
Presumption of innocence attends
the accused
An offer of compromise is an
implied admission of guilt

Compromise S27 R130


civil case: any stage; quasi-delict can be compromised

Example: civil action: contract of sale of a car @ P1M


-

What varies is the quantum of proof R133


Rules of evidence distinguished
Civil Case
Party attends by accord
No presumption as to either party

It is NOT a matter of right; subject


to the exercise of courts
discretion so you have to
convince it that it is a NEW
matter!

Seller
Theres a new matter presented
as to the absence of sale.

CA original action, new trial (ground: NDE) -> exception: conducts


hearing

Custodial interrogation means questioning initiated by law


enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom in some significant way so if there
is some restriction on his freedom to do, then it is already a custodial
investigation. And if he is invited, will it still fall under custodial
investigation? Take note of Republic Act 7438, an act defining certain
rights of persons arrested, detained or under custodial investigation
as well as the duties of the arresting detainee or arresting officers.
Thus, an accused on board a police vehicle on the way to the police
station is already under custodial investigation and therefore should
be accorded his rights under the constitution. So even in a situation

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that you are inside a police car so long as your freedom to move has
been restricted, you are already in custody. So, what matters here is
your restriction to move. So, if you were invited and the question is
such that it is no longer as to a general questioning on event or
circumstances but is now pointing into a particular person as to his
commission of the offense, then custodial investigation has set in.
RA 7438 has expanded the definition of custodial investigation into
the practice of issuing invitations to a person. What is this invitation?
You get a letter from the police station. Who has been invited by the
police? We have a colonel? Oh, what can you say colonel? What do
you do when you invite? (Colonel: We are no longer allowed to do that,
sir.) How do they do it before? (Colonel: Before, they usually write
letters inviting person. Thats even more decent but for ordinary
criminals what they do is they knock on their door, then magandang
hapon po. I am a police officer. Pwede ho ba namin kayong
maimbitahan sa istasyon? Thats okay, up to that point because you
are only being invited but the problem is, when they are already in the
police station, what happened? The aggrieved party is already there.
What would the policeman, with all due respectI dont know if your
classmate would agree with me, what would they do? Okay. Is he the
one? Yan nga ho. Then they arrest him and charges him. Because
of this practice, they came up with this law.
You can no longer invite. Thats why if you get invited, you could
decline. Hindi ho pwede may lakad ho ako ngayon eh. Siguro, next
time. What if it is an admission of guilt to the baranggay captain in
response to the query of the brgy captain as to why he committed the
offense charged in the presence of the Chief of Police. Is that part of
custodial investigation? Yes. People v. Ochate, GR No. 127154, July 30,
2002. So, class what do I want to drive at at this point in Section 3. An
evidence may be relevant but if it is excluded by the Rules, it is
worthless. Another sample that we would give under this Rule is RA
4200, the anti-wiretapping law. That is another most abused provision
of law. Although it is relevant, they are actually discussing how the
crime will be committed but the manner by which it was secured is
not in accordance with the requirement of RA 4200, then it is excluded
by law. That is what the law wants to remind us.
RA 4200: Wire-tapping
Sec. 1.
It shall be unlawful for any person, not being authorized by all the
parties to any private communication or spoken word, to tap any wire or cable, or by using
any other device or arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly known as a dictaphone or
dictagraph or dectaphone or walkie-talkie or tape recorder, or however otherwise
described:

It shall also be unlawful for any person, be he a participant or not in the act or acts
penalized in the next preceding sentence, to knowingly possess any tape record, wire
record, disc record, or any other such record, or copies thereof, of any communication or
spoken word secured either before or after the effective date of this Act in the manner
prohibited by this law; or to replay the same for any other person or persons; or to
communicate the contents thereof, either verbally or in writing, or to furnish transcriptions
thereof, whether complete or partial, to any other person: Provided, That the use of such
record or any copies thereof as evidence in any civil, criminal investigation or trial of
offenses mentioned in section 3 hereof, shall not be covered by this prohibition.
Unlawful acts:
1) any person, not being authorized by all the parties to any
private communication or spoken word, to tap any wire or
cable, or by using any other device or arrangement, to
secretly overhear, intercept, or record such communication or
spoken word by using a device commonly known as a
dictaphone or dictagraph or dectaphone or walkie-talkie or
tape recorder, or however otherwise described:
2) any person to knowingly possess any tape record, wire record,
disc record, or any other such record, or copies thereof, of any
communication or spoken word secured in the manner
prohibited by this law; or
3) any person to replay the same for any other person or persons
4) any person to communicate the contents thereof, either
verbally or in writing, or
5) any person to furnish transcriptions thereof, whether complete
or partial, to any other person:
The use of such record or any copies thereof as evidence in any civil,
criminal investigation or trial of offenses mentioned in section 3
hereof, shall not be covered by this prohibition.
Sec. 2.
Any person who wilfully or knowingly does or who shall aid, permit, or
cause to be done any of the acts declared to be unlawful in the preceding section or who
violates the provisions of the following section or of any order issued thereunder, or aids,
permits, or causes such violation shall, upon conviction thereof, be punished xxx.
Sec. 3. Nothing contained in this Act, however, shall render it unlawful or punishable
for any peace officer, who is authorized by a written order of the Court, to execute any of
the acts declared to be unlawful in the two preceding sections in cases involving the
crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny
in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to
rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as
defined by the Revised Penal Code, and violations of Commonwealth Act No. 616,
punishing espionage and other offenses against national security: Provided, That such

Page 5 of 87

written order shall only be issued or granted upon written application and the examination
under oath or affirmation of the applicant and the witnesses he may produce and a
showing: (1) that there are reasonable grounds to believe that any of the crimes
enumerated hereinabove has been committed or is being committed or is about to be
committed: Provided, however, That in cases involving the offenses of rebellion,
conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to
commit sedition, and inciting to sedition, such authority shall be granted only upon prior
proof that a rebellion or acts of sedition, as the case may be, have actually been or are
being committed; (2) that there are reasonable grounds to believe that evidence will be
obtained essential to the conviction of any person for, or to the solution of, or to the
prevention of, any of such crimes; and (3) that there are no other means readily available
for obtaining such evidence.

Mere fact of pre-marking/identified as an exhibit NOT yet admissible;


theres a need to formally offer it so other party may object then judge
rules on its admissibility
Documentary Evidence
Testimonial Evidence offered when witness is presented; objected to
that instant
Admin Matter Re: Pre-trial and Deposition all evidence should be
marked during pre-trial; identify everything)
Branch Clerk of Court preliminary conference

xxx
Conditions for valid wiretapping

Anti-Wire Tapping Act knowingly possesses tape with information:


prohibited under RA 4200; use of device to tamper a communication
line; intent to tap into the privacy of an individual.

1) Any peace officer


2) Authorized by a written order of the Court
3) In cases involving the crimes of treason, espionage, provoking
war and disloyalty in case of war, piracy, mutiny in the high
seas, rebellion, conspiracy and proposal to commit rebellion,
inciting to rebellion, sedition, conspiracy to commit sedition,
inciting to sedition, kidnapping, espionage and other offenses
against national security:
Sec. 4. Any communication or spoken word, or the existence, contents, substance,
purport, effect, or meaning of the same or any part thereof, or any information therein
contained obtained or secured by any person in violation of the preceding sections of this
Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or
administrative hearing or investigation.

Extension lines NOT a violation


Cellphones covered by wire tapping
Text message electronic evidence
Before a recording of conversation can be given probative value, the
following requisites must first be established:
1) Showing that the recording device was capable of taking
testimony
2) Showing that the operator of the device was competent
3) Establishment of the authenticity and correctness of the
recording
4) Showing that changes, additions, or deletions have not been
made
5) Showing of the manner of preservation of the recording
6) Identification of the speakers
7) Showing that the testimony elicited was voluntarily made

Information obtained in violation of the anti-wiretapping act is


absolutely inadmissible.
Relevancy v Materiality
R: Fact in dispute
M: Fact may shed light to the case
fruit of the poisonous tree

chain of custody; preservation

Admissibility Substance

Weapon even if NOT presented, there may be a conviction; physical


evidence

Look into the manner and process by which it is taken.

Admissibility of a radio broadcast:

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Evidence of a message or a speech by means of radio broadcast is


admissible as evidence when the identity of the speaker is established
either by:

EXC: circumstantial evidence could be enough to identify/convict


(basis: S4 R133 Circumstantial Evidence more than 1 circumstance;
proven)

1) Testimony of a witness who saw him broadcast his message or


speech

RULE 129

2) Witness recognition of the voice of the speaker

What Need Not Be Proved


SECTION 1.
Judicial notice, when mandatory. A court shall take
judicial notice, without the introduction of evidence, of the existence and
territorial extent of states, their political history, forms of government and
symbols of nationality, the law of nations, the admiralty and maritime
courts of the world and their seals, the political constitution and history of
the Philippines, the official acts of legislative, executive and judicial
departments of the Philippines, the laws of nature, the measure of time,
and the geographical divisions. (1a)

Sec. 4. Relevancy; collateral matters. Evidence must have such a


relation to the fact in issue as to induce belief in its existence or nonexistence. Evidence on collateral matters shall not be allowed, except
when it tends in any reasonable degree to establish the probability or
improbability of the fact in issue. (4a)
Relevance relation to the facts in issue as to induce belief in its
existence or non-existence
Evidence on collateral matters allowed only when it tends in any
reasonable degree to establish the probability or improbability of the
fact in issue.

Mandatory Judicial Notice


1) existence and territorial extent of states, their political history,
forms of government and symbols of nationality

Evidence is relevant when it is related to the fact in issue. As a rule,


collateral matters are not allowed unless to a certain extent it would
establish the probability or improbability of the fact in issue. So, an
example of a collateral matter which would be irrelevant would be a
case for murder and the witness on the stand is Mr. Sandoval and he
is being asked of the circumstances based on his personal knowledge
on how the accused killed the victim. The counsel asks Well, 3
months ago you attend the party with the accused and the victim. Can
you tell us what happened in the party? That is irrelevant and not a
collateral matter unless of course you can establish that prior to that
day, you could already establish that there is animosity among them
and that it may result for the offense by reason of such animosity.
Relevancy fact in issue
Collateral matters NOT allowed, EXCEPT when it tends in any
reasonable degree to establish the probability or improbability of a
fact in issue

2) the law of nations


3) the admiralty and maritime courts of the world and their seals
4) the political constitution and history of the Philippines
5) the official acts of the legislative, executive and judicial
departments of the Philippines
6) the laws of nature
7) the measure of time, and
8) the geographical divisions
Sec. 2. Judicial notice, when discretionary. A court may take judicial
notice of matters which are of public knowledge, or are capable to
unquestionable demonstration, or ought to be known to judges because of
their judicial functions. (1a)
Discretionary Judicial Notice matters which are:

Physical Evidence is superior than testimonial evidence.

1) of public knowledge, or
2) are capable of unquestionable demonstration, or
3) ought to be known to judges because of their judicial functions

Alibi is the weakest defense.


Identification:
GR: positive and direct evidence

Page 7 of 87

Sec. 3. Judicial notice, when hearing necessary. During the trial, the
court, on its own initiative, or on request of a party, may announce its
intention to take judicial notice of any matter and allow the parties to be
heard thereon.
After the trial, and before judgment or on appeal, the proper court, on its
own initiative or on request of a party, may take judicial notice of any
matter and allow the parties to be heard thereon if such matter is decisive
of a material issue in the case. (n)

e.g. highlights of Philippine history


2) Discretionary
Judge has discretion and NO hearing is required.
3) Hearing is Required
Court takes judicial notice:
cases within sala: GR: NO
EXC: matters of expediency; in the interest of justice

When court takes judicial notice:


1) During trial, on any matter allow the parties to be heard
thereon

cases with another branch: NO

2) After trial, and before judgment or on appeal any matter and


allow the parties to be heard thereon if such matter is decisive
of a material issue in the case
Hearing is necessary when:

SC as to other cases: NO
SC Circulars: Yes
Judicial notice takes the place of evidence.

1) During the trial, the court


a) motu propio, on request of a party
b) announces its intention to take judicial notice of any
matter
2) After trial
a) before judgment or on appeal
b) motu propio, on request of a party
c) takes judicial notice of any matter, and
d) if such matter is decisive of a material issue in the
case
Hence, the court can take judicial notice of any matter during the trial
as long as there is a hearing. If trial is already over, the court can take
judicial notice only of matters decisive of a material issue in the case
as long as there is a hearing.

Proposition + Judicial Notice = Proof


Resolutions, NOT bills, publicly known: Yes
High tide S1 3rd kind of JN
Judge CANNOT rely on personal knowledge beyond S1
S2 is discretionary; NO hearing required
S3 hearing do NOT be misled; NO presentation of evidence;
hearing is conducted to ventilate information to the court as to the
propriety of JN
Notoriety is a question of fact.
(a) matter of public knowledge

Kinds of Judicial Notice:


1) Mandatory exclusive enumeration; matters already settled; judge
has NO discretion; he has NO choice
These are matters of judicial notice. Laws of nature---gravity, relativity.
All of these can be verified from source materials, like encyclopedia,
almanac, dictionary, etc. and these are matters of judicial notice by
the judges.

It is subject to the discretion of the judge if it is of public knowledge,


meaning it is of common or general knowledge at the standpoint of
the judge.
death of judges schoolmate: NO JN
Espaa, Rotonda, Manila City Hall: Yes
Factors considered as to public knowledge

Page 8 of 87

notoriety
knowledge of the judge

not present it, you would want the courts attention and you would
want for the court to take judicial notice.

If judge refuses to notice, there will be presentation of evidence.


If judge does NOT know, call courts attention under S3 where hearing
is required.

1st ANY matter during trial


2nd matter DECISIVE after trial, before judgment, on appeal (trial
already terminated; you were already given the time; may change
outcome of the case)

Erap is now history under S1 political history


Can judge render decision solely on JN? NO; S1 R36 judgment based
upon facts and law

e.g. of decisive matter

JN is only a rule, a means. Court CANNOT take JN completely and


dispense with evidence.

That P/N issued on a Sunday


settled; just look at the calendar to check
Homicide case
eyewitness saw accused because of the light of the full moon;
subject of fact; decisive

Nature of injury: NO JN
That it will injure: Yes
(b) unquestionable demonstration Result; like those in statistical
processes and methods
Methodology: Yes
Variables (questions, people surveyed, subject of inquiry); survey
itself: NO JN

Sec. 4. Judicial admissions. An admission, verbal or written, made by


the party in the course of the proceedings in the same case, does not
require proof. The admission may be contradicted only by showing that it
was made through palpable mistake or that no such admission was made.
(2a)
Requisites for judicial admission:

Census:
Either: Judicial Notice
Presumption of Regularity better option for a reasonable judge
(c) by virtue of judicial functions

1) Made by a party
2) In the course of the proceedings
3) In the same case
If the admission was made in outside the proceedings or in another
case, it is also admissible under admissions of a party (Rule 130, Sec.
26).

JN NO need for declaration that he shall take JN


S3 party knows; at the instance of the court or the party; may happen
even before judgment (through an order certiorari since it is an
interlocutory order) or on judgment ( appeal)
S3 Hearing Necessary
You have completed the trial and you would like the court to take
judicial notice. It should be something that could probably alter the
result or something that is so material or decisive that it might change
the outcome of the case.
You have to convince the court that they have to take judicial notice of
this fact. Is it the same as newly discovered evidence? NO, it is not.
Newly discovered evidence is that there is a document or an evidence
of a witness who was discovered or produced after trial. Here, you will

The admission may be contradicted only by showing that


a) It was made through palpable mistake or
b) NO such admission was made
Instances of Judicial admissions:
i.
genuineness and due execution of an actionable document
copied or attached to a pleading, when the other party fails to
specifically deny under oath (Rule 8 8)
ii.
material allegations in the complaint, when the other party
fails to specifically deny it (Rule 8 11)
iii.
admissions in superseded pleadings, when offered in evidence
(Rule 10 8)
iv.
act, declaration, or omission of a party as to a relevant fact
(Rule 130 26)

Page 9 of 87

v.
vi.

implied admission of guilt in an offer of compromise by the


accused in criminal cases, except quasi-offenses and those
allowed by law to be compromised (Rule 130 27)
admission by silence (Rule 130 32)

Judicial admissions are verbal or written admissions by a party in the


course of the proceedings without proof. If you admit, do you still need
to present evidence? NO more because there is already an admission.
And this is judicial admission as distinguished from extra-judicial
admission. Judicial admission is made at any time in the course of the
proceedings. The fact will be enough because the evidence has
already been admitted. Extrajudicial admission is an admission out of
court, not in the judicial proceedings.
Only similarity with JN: withOUT presentation/introduction of evidence
(NO need for proof)
NOT in issue, either: NOT material or admitted and NOT disputed
Judicial admissions material and relevant fact
When made? Pleadings (complaint, answer, reply), pre-trial
Confession acknowledgment of fault

SECTION 1.
Object as evidence. Objects as evidence are those
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. (1a)
Object addressed to the senses of the court; represented by the
judge
Being subject to the senses of the court, it could be viewed, examined
and inspected by the court.
e.g. articles, persons, inspection, experiment
- extends to real properties
Photographs: Photographs of persons, things, and places, when duly
verified and shown by extrinsic evidence to be faithful representations
of the subjects as of the time in question, are, in the discretion of the
trial court, admissible in evidence as aids to it in arriving at an
understanding of the evidence, the situation or condition of objects or
premises, the circumstances of an accident, or the condition or
identity of a person when any such matter is relevant to the issues
being litigated.
- ideal: photographer
- other people may testify (present during shoot)

- Request for admission under R26


- During trial (witness stand)

first establish and lay foundation/basis:


operator
machine
chain of custody
changes

Mediation confidential; NOT admission


Default Admission
Preliminary Marking during pre-trial Admission
- Motion to Intervene
Nordic Asia case: extended loan to debtor w/c mortgaged is vessel
under the Ship Mortgage Decree; default extrajudicial foreclosure
(while pending, crew of vessel filed an action to recover unpaid
salaries); Nordic intervened; has mortgage lien; SC: intervention
IMPROPER; the intervenor must have own cause of action

Then go to the circumstances of time and place.


* Demonstration show; described in the TSN; action CANNOT be
recorded
Demonstrative Evidence v Demonstration
DE made for visualization purposes (weapon, map)

RULE 130

Map location

Rules of Admissibility

Sketch draw location of parties; may be marked as evidence;


different nature from actual evidence

A. OBJECT (REAL) EVIDENCE

* Casette
1. contents testimonial evidence; witness narrates

Page 10 of 87

2. object evidence; other authorities consider it documentary


* TSN
1. inquiry as to the contents documentary
2. existence of TSN object
* Autopsy Report makes reference to a body
1. findings documentary
2. body as examined (injuries) physical; speaks more eloquently
than a hundred witnesses
* Intact hymen physical (preferred)
What was taken based on examination physical

Demonstrative
map made by experts; presents graphical locations of an
area; locational
sketch NOT as accurate as a map
diagram process/procedure (e.g. civil case procedure for
making a computer chip)
Re-enactment a demonstration; recorded in the TSN by description
(motions are NOT recorded)
Even in the absence of weapon, accused may be convicted if
personally identified and proved as perpetrator beyond reasonable
doubt.

Experiment demonstrative; what would happen


Exhibited viewed by the court and duly marked
Inspect, View scene of the crime; evidence: NO need to exhibit, court
appreciates it as it sees it
Judge must view in the presence of the witnesses so they will be given
the opportunity.
* Autopsy, Medical Report documentary

If body (corpus delicti) NOT recovered, can there be a conviction for


homicide?
NO, body may be recovered so it raises a doubt if truly there was
killing.
But you can charge illegal detention if accused last seen with the
victim.
Death certificate would suffice as to the fact of death.
Paraffin test NOT conclusive according to jurisprudence
(use of gloves, lapse of time, homemade gun/paltik)

* Person dead, Wounds suffered physical


Exhibited to in court: personal property
fruit of the crime
weapons used
item assists in the just resolution of the case
weapons for demonstration (visual purposes) treated
differently with actual object because of weight of evidence

Relative measurements NOT considered in the case of a paltik


because jurisprudence says that there is NO scientific explanation for
its trajectory.
Powder burns may indicate relative distance of the victim and
accused.

Requisites for Competency of Real Evidence:


1. Relevant
2. Authentic who must authenticate? Witness depends:
o last in possession
o anytime in possession
o owner
o sold to him
- authentication NOT required in demonstrative evidence, such as a
map
Is it the actual object presented in court?

Page 11 of 87

relative distance of accused to the victim (if short distance)


relative size of wound
nature of bullet/gun (depending on the distance)
stabbing bolo (hacking); balisong (long cuts)
gravity of the wound physical evidence of the intent to kill;
number of wounds shows the existence of self-defense; SC
case: wounds in the body and 1 in the throat: during trial,
victims brother narrated who the perpetrator was; it was
physical evidence and NOT dying declaration; 1) visual; and 2)
expert testimony (wont speak after suffering; only a mode
can be made)

relative distances near: powder burns on victim; moon; light;


night time; flashlight (accused could be properly identified;
held by witness victim; different is it is the accused who holds
the flashlight because then the court raises doubt since
accused points it on the ground to guide them, NOT on his
face/his companions faces
voice fact of you being able to recognize it will vary
according to case law; so long as you are familiar, lay the
basis; when theres a relative distance (70-100 m), voice
range may vary according to jurisprudence; sound travels
through waves so see distance
physical examination of a child in a rape case; EXCEPTIONS in
a jury system, NOT so much in our system (person presented
demonstrative): prejudice/undue bias, humiliate,
indecent/improper; now, SC came out with a child-sensitive
approach: NO doctor can examine a child by inserting his
finger. The Supreme Court understood that because of
medical technology, there will be NO need to make a physical
insertion of the finger of the doctor inside the organ of a child
victim. Why? They understand that if the child were at the
stage of puberty, a visual examination with good lighting plus
a magnification of the area would be enough to make a
conclusion whether there was sexual contact. Gone were the
days wherein it is required that the doctor has to insert a
finger to the organ of the child.
DNA Testing. In People v. Vallejo, DNA testing has now been
adopted. DNA testing goes into the genes of the individual.
There are tests to be conducted in order ensure that the DNA
testing or the samples are not contaminated. Here, you have a
comparison a comparison of the sample which is taken from
the scene of the crime lets say a sample of a blood and then
a sample from the plaintiff and there will be a comparison of
the sample taken at the scene of the crime and that of the
victim or the accused. In this case, certain rules were laid
down, the samples that were collected were subject to various
chemical processes established so far. The tests may yield
three possible results: 1) exclusion meaning the samples are
different and therefore must have originated from different
sources; 2) inconclusive it is not possible to be sure based on
the results of the test whether the samples have similar DNA
types. This would normally appear in situations wherein DNA
procedure was not followed or there was contamination of the
samples; and 3) samples are similar and could have originated
from the same source this is inclusion. There are three (3)
possible results: exclusion, inconclusive or inclusion. In
assessing the probative value of DNA evidence the court
should consider the following: 1) the collection of the samples

Page 12 of 87

2) how the samples were handled 3) the possibility of


contamination 4) procedure followed in analyzing the samples.
The matter of appreciating the age of the victim, either as an
element of the crime or as a qualifying circumstance, was
settled when the Court, in the case of People vs. Pruna (G.R.
No. 138471. October 10, 2002), laid down the following
guidelines:

1.
The best evidence to prove the age of the
offended party is an original or certified true copy of the
certificate of live birth of such party.
2.
In the absence of a certificate of live birth, similar
authentic documents such as baptismal certificate and
school
records which show the date of birth of the victim
would suffice
to prove age.
3.
If the certificate of live birth or authentic
document is shown to have been lost or destroyed or
otherwise unavailable, the testimony, if clear and
credible, of the victims mother or a member of the family
either by affinity or consanguinity who is qualified to
testify on matters respecting pedigree such as the exact
age or date of birth of the offended party pursuant to
Section 40, Rule 130 of the Rules on Evidence shall be
sufficient under the following circumstances:
a.

If the victim is alleged to be below 3 years


of age and what is sought to be proved is
that she is less than 7 years old;

b.

If the victim is alleged to be below 7 years


of age and what is sought to be proved is
that she is less than 12 years old;

c.

If the victim is alleged to be below 12


years of age and what is sought to be
proved is that she is less than 18 years
old.

4.
In the absence of a certificate of live birth,
authentic document, or the testimony of the victims mother
or relatives concerning the victims age, the complainants
testimony will suffice provided that it is expressly and clearly
admitted by the accused.
5.
It is the prosecution that has the burden of
proving the age of the offended party. The failure of the
accused to object to the testimonial evidence regarding age

shall not be taken against him.

2) is in the custody or under the control of the party against


whom the evidence is offered, and the latter fails to produce it
after reasonable notice;
3) consists of numerous accounts or other documents which
cannot be examined in court without great loss of time and
the fact sought to be established from them is only the
general result of the whole; and
4) the original is a public record in the custody of a public officer
or is recorded in a public office

The trial court should always make a categorical finding as to the


age of the victim.
B. DOCUMENTARY EVIDENCE
Sec. 2. Documentary evidence. Documents as evidence consist of
writing or any material containing letters, words, numbers, figures,
symbols or other modes of written expression offered as proof of their
contents. (n)
Ultimate test: material on which these are written
Photograph of writing subject of inquiry documentary (Francisco);
in actuality, treated as an object, this is the GR. So read the contents
to highlight the same.
1. BEST EVIDENCE RULE
Sec. 3. Original document must be produced; exceptions. When the
subject of inquiry is the contents of a document, no evidence shall be
admissible other than the original document itself, except in the following
cases:
Theres only a requirement of presenting the original if the contents of
the document is subject of the inquiry. If it is not subject of the inquiry,
there is no need to present the original. So, only when the contents
thereof are subject of the inquiry do you need to present the original.
There are exceptions to this rule on presenting the original. First, when
it has been lost, destroyed without bad faith on the part of the offeror,
Second, it is in the possession of the adverse party and third that
there are long accounts and that there is great waste of time to
present it and the only thing to establish is a general fact or that the
documents are in the custody of a public officer and it is recorded.
Original document may either be private or public. There is difference
in authentication, S19-33 R132
Best Evidence Rule When the subject of inquiry is the contents of a
document, no evidence shall be admissible other than the original
document itself

(a)
When the original has been lost or destroyed, or cannot be
produced in court, without bad faith on the part of the offeror;
Now, lets take note of loss or destruction. In terms of showing to the
court that it was actually lost, would you need to present another
witness? If that is necessary then you could present another witness.
If you could establish and convince the court that it was lost without
presenting other witnesses then it is acceptable. Then on the order of
presenting authentic documents where the contents of the subject
document are being recited, take note what are the examples of this?
There could be a memorandum of agreement or there could be an
exchange of correspondence wherein portions of the terms and
conditions have been recited. This normally happens when lawyers
draft voluminous contracts and there is an exchange of
correspondence between the lawyers. At some point they could agree
on this particular provision and this could be a recital of some
authentic document. It is also possible that there is a memorandum of
agreement or a written agreement for that matter. A simple piece of
paper reciting the general structure of an agreement may be a basis
to establish that this is truly the terms and conditions agreed upon by
the parties.
Let us take this one at a time. In a scenario under the first exception
that it has been destroyed or lost, you see here a situation wherein
you cannot present the original. Because you cannot present the
original, could you immediately present a copy or a recital of its
contents in some authentic document or present a witness in that
order? No. Even if, lets say it is lost, you just dont say, Your Honor, it
is lost. You will have to lay a basis first of the following: that it
actually existed and second that it has been lost or destroyed. And
third that there is no bad faith on the part of the person offering the
same. So if you could lay those bases then you could present not the
original because the original could no longer be presented but you will
present a copy, a recital of the same in some authentic record or
document and third presentation of a witness or testimonial evidence.

Exceptions: When the original


1) has been lost or destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;

Page 13 of 87

2) NOT excluded by law/Rules


3) Authenticated identified

(b)
When the original is in the custody or under the control of the
party against whom the evidence is offered, and the latter fails to produce
it after reasonable notice;
The second exception is when the same is in the possession of the
adverse party. Just like the other exceptions, you have to establish
existence but I think the most important thing that you have to
establish here is that there was notice, that there was notice given to
the adverse party to produce the same and that despite notice there
was failure to surrender or deliver or despite notice there was refusal
to surrender the document. The notice is that which initiates this
secondary evidence. Without such notice even if you believe the fact
that it is in the possession of the other party, you dont give the
notice, then its useless. However do not confuse the notice here with
the notice under Rule 27. Under Rule 27 if you want to avail of the
mode of discovery, you give a notice for production or even motion for
production or inspection of paper, books and documents.
(c)
When the original consists of numerous accounts or other
documents which cannot be examined in court without great loss of time
and the fact sought to be established from them is only the general result
of the whole; and
The third is long accounts. What are examples of long accounts?
Balance sheets, ledgers, voluminous invoices, voluminous delivery
receipts. These are examples of long accounts. And when did you first
meet long accounts as a provision of law? On the rule on
commissioners under Rule 32, Section 2 when the parties could not
agree, when they do not consent or the court says that the matter
should be referred to the commissioners, this is one of the grounds.
(d)
When the original is a public record in the custody of a public
officer or is recorded in a public office. (2a)
The court is in possession of a public document. When it comes to
this, all you need to present is a certified true copy. If the same is in
the possession of a public officer there is this rule on Rule 132 on
irremovability of a public record. Considering that you cannot remove
a public record except upon order, then it would be enough for you to
present a certified true copy of the document. But when do I need to
present an original which is recorded in the public office? When its
authenticity is being disputed. When the entries therein are being
disputed but of course there should be a court order. Without the court
order, the person in custody of the document will not present the
original.

Drugs - Rule: it should be presented; that it was the same drug/s taken
when apprehended
Best Evidence opportunity to examine it: where right depends;
reason why original is presented
Prudent lawyer keeps the original of an actionable document and
present it when called for during examination.
Admission that photocopy is a faithful representation proceed after
comparison
You could initiate an action in the absence of an original S7 R8
(original/copy is attached) and you could present secondary evidence
during trial.
BER to prevent fraud and avoid inaccuracy and falsification
S8 R8 How to contest such document (genuineness and due
execution)
S2 R32 (Commissioners for long accounts)
Present originals:
Misappropriation case of public funds
BP 22 (several counts)
Irremovability of public record S26 R132
Rationale for Originals:
1. copies and oral testimony more prone to inaccuracy and
subject to fraud
2. appearance furnishes information: authenticity
Private document S20 onwards
Sec. 4. Original of document.
(a)
The original of the document is one the contents of which are the
subject of inquiry.
(b)
When a document is in two or more copies executed at or about
the same time, with identical contents, all such copies are equally
regarded as originals.

1) relevant

Page 14 of 87

(c)
When an entry is repeated in the regular course of business, one
being copied from another at or near the time of the transaction, all the
entries are likewise equally regarded as originals. (3a)
Original documents
1) One the contents of which are the subject of inquiry.
2) When a document is in two or more copies executed at or
about the same time, with identical contents, all such copies
are equally regarded as originals.
3) When an entry is repeated in the regular course of business,
one being copied from another at or near the time of the
transaction, all the entries are likewise equally regarded as
originals
When the contents are the subject of the inquiry, it is an original. Does
it mean that even if it is a photocopy but the contents thereof are
subject of an inquiry, it becomes an original? No. An original should be
an original. It is not the fact of an agreement or that the contents of
which are subject of an inquiry that makes it the original. Now aside
from that on Rule 130 there is also another definition of an original,
item b: when a document is in two or more copies executed at or
about the same time, with identical contents, take note at or about
the same time with identical contents. It may be executed at or about
the same time but does not have identical contents, then the other
one cannot be considered as an original. How about a duplicate copy
or a duplicate original? In the past or even today, courts still use
typewriters and they too use carbon paper. They insert in between the
papers carbon papers to produce 3 or 4 or 5 copies. Are these
duplicate originals? Yes, they are duplicate originals. What the law
says is that it should be executed at or about the same time and that
its contents are the same. Now let us not strain our imagination in
pushing it that let us say because of so many copies, around 12 copies
of a document, I signed 6 at this time and because I had a meeting I
forgot all about it and I signed the rest the following day. Will it still be
regarded as an original? Yes. It is still regarded as an original. But then
sir, it doesnt appear that it was executed at or about the same time?
But it has identical contents and I tell you, it will still carry the same
date. If you do not put in the same date, thats your problem because
your opponent would say, how come there are two sets of documents
executed with identical contents? So that is an example of item b.
Now you have item c: when an entry is repeated in the regular course
of business, one being copied at or near the time of the transaction.
Take note of entry. What is important here is entry. That entry was
made at or near the time of the transaction. To give you an example of
this let us say I am a trader. Of course there are delivery receipts to
my warehouse, there are releases to the customers and there will be

official receipts or invoices. All these will be imputed at or near the


time of the transaction. What is the reason for this? Why is this
regarded as an original? Because there is no room for you to fabricate,
that is the concession. But could it be fabricated, yes, could it be
tampered with, yes, that is why in exception to hearsay rule is entries
made in the ordinary course of business. And why is it an exception?
The person who made the entry is either dead or unavailable such
that reliance is made on the document because it was made in the
regular course of business. But there is apparently no rule in that way.
Could it be disputed? Yes. All of those exceptions under the hearsay
rule are not absolute. It could be disputed, it could be subjected to
cross examination. The witness may be subjected to crossexamination.
1.
2.
3.

Original is best evidence - by the very nature and NOT inquiry


which makes it original
Document is in 2/more copies executed at/about the same
time, with identical contents executed more or less at the
same time
Entry repeated in the regular course of business at/near the
time of the transaction fairly contemporaneous with the
transaction

Court orders stamped with original signed NOT originals


Secure a certified true copy or duplicate copy; act of execution
includes signing; near time as it was executed.
Counterparts
Phils. A peace and order problem
HK B sars
document executed in counterparts NOT originals from the
definition but authorities consider them as originals (Wigmore,
Warton)
How? Clause that this agreement could be signed in counterparts.
Entries are repeatedly copied, NOT executed at/near the time of the
transaction attained a certain level of trustworthiness; less room for
error; NOT doubtful but could still be disputed; even without
signatures, but there must be entries
If NOT logged in (dispatch and receive) NO longer in the regular
course of business
2. SECONDARY EVIDENCE

Page 15 of 87

Sec. 5. When original document is unavailable. When the original


document has been lost or destroyed, or cannot be produced in court, the
offeror, upon proof of its execution or existence and the cause of its
unavailability without bad faith on his part, may prove its contents by a
copy, or by a recital of its contents in some authentic document, or by the
testimony of witnesses in the order stated. (4a)

If original was produced, NO need for SE.


Once notice is given, there is a duty to comply.
What if original contradicts SE?
Court weighs evidence, judge appreciates

Requisites:

copy reproduction of original

(1) loss, destruction, unavailability


- reasonable probability of loss is sufficient; dispensed
with
by admission

K photocopy before signing original


K photocopy after signing copy

(2) existence
- proven by documentary, object or testimonial
evidence (any form acceptable under the law);
otherwise, it will breed fraud, falsification and
inaccuracy
- separate and apart from secondary evidence (copy,
recital, testimony) contents, the subject of inquiry
(3) withOUT bad faith; EXC: destruction in the ordinary course
of business, by mistake, NO reasonable suspicion of fraud
- cause of loss of destruction; presumption under R131
on suppression of evidence
Sec. 6. When original document is in adverse party's custody or control.
If the document is in the custody or under the control of adverse party,
he must have reasonable notice to produce it. If after such notice and after
satisfactory proof of its existence, he fails to produce the document,
secondary evidence may be presented as in the case of its loss. (5a)
Adverse Party may be the plaintiff or defendant in custody/control
Requisites:
(1) custody/control of AP
(2) reasonable notice to produce it
- unlike an actionable document where the court gives
order of inspection S8 R8
(3) failure to produce
(4) existence (satisfactory proof)

some authentic document either private or public


Proponent must know that he has done all in his power to secure the
best evidence by giving to the adversary notice to produce it.
To be later expounded on by the lawyer:
Memorandum of Agreement skeleton
REM on loan obligation
testimony signed, read or heard it read (verbal accuracy NOT
required; sufficient to state it in substance)
Theres a hierarchy of SE because memory may betray you.
Instant demand sufficient where document is at hand in the court
room; NO need for previous notice
Title to land: a) owners
b) original at the RD
- encumbrance NOT found in owners copy; attack the original but it
CANNOT be removed under S26 R132
Sec. 7. Evidence admissible when original document is a public record.
When the original of document is in the custody of public officer or is
recorded in a public office, its contents may be proved by a certified copy
issued by the public officer in custody thereof. (2a)
Certification in substance is all that is required; that:

If original was NOT produced, the fact that the original document is
later produced does NOT render erroneous the previous admission of
SE.

Page 16 of 87

correct copy
under official seal
with authority to certify
duly signed
NO need to employ certify or certificate

cf Rule 132 25-27


Sec. 25. What attestation of copy must state. - Whenever a copy of a document or record is
attested for the purpose of evidence, the attestation must state, in substance, that the copy
is a correct copy of the original, or a specific part thereof, as the case may be. The
attestation must be under the official seal of the attesting officer, if there be any, or if he be
the clerk of a court having a seal, under the seal of such court. (26 a)

c.

Adverse party fails to produce the original

d.

Proof of contents in the following order

Copy
Recital of its contents some authentic document, or
Testimony of witnesses

Sec. 26. Irremovability of public record. - Any public record, an official copy of which is
admissible in evidence, must not be removed from the office in which it is kept, except upon
order of a court where the inspection of the record is essential to the just determination of a
pending case. (27 a)

3) Original consists of numerous accounts or other documents which


cannot be examined in court without great loss of time and the
fact sought to be established from them is only the general result
of the whole; and

Sec. 27. Public record of a private document. - An authorized public record of a private
document may be proved by the original record, or by a copy thereof, attested by the legal
custodian of the record, with an appropriate certificate that such officer has the custody.
(28a)

4) Original is a public record in the custody of a public officer or is


recorded in a public office contents may be proved by a certified
copy issued by the public officer in custody thereof

To prove loss, get affidavits of loss from all the people who possibly
has a copy of the original, e.g. Notarized Deed of Sale
1) Vendor

a.

Rule 132 25: What attestation of copy must state

Copy is a correct copy of the original, or a specific part thereof


Under the official seal of the attesting officer, if there be any, or if he
be the clerk of a court having a seal, under the seal of such court

2) Vendee

b.

3) Notary public
4) Clerk of the court which gave the notary public commission

Rule 132 27: Public record of a private document - may be


proved by

Original record, or

5) Bureau of Archives

By a copy thereof
a)

Requisites for admission of secondary evidence, according to grounds:

b)

1) Original has been lost or destroyed, or cannot be produced in


court
a.

Prove execution or existence

b.

Prove cause of unavailability without bad faith of the offeror

c.

Proof of contents in the following order

Attested by the legal custodian of the record


With an appropriate certificate that such officer
has the custody

Sec. 8. Party who calls for document not bound to offer it. A party who
calls for the production of a document and inspects the same is not
obliged to offer it as evidence. (6a)
Similar rule under R23 Depositions (Written Interrogatories)

Copy

Documentary evidence or the Best evidence. It must be the original.


Only when the contents is the subject of the inquiry. To use Secondary
evidence, loss or destruction of the original must be established first.

Recital of its contents in some authentic document, or


Testimony of witnesses
2) Original is in the custody or under the control of the adverse party
a.

Adverse party had reasonable notice to produce the original


(Subpoena duces tecum)

b.

Proof of the originals existence

Possession of adverse party - Notice to the said adverse party is very


important.
If copy is available, present the copy; if not, recital by witness.

Page 17 of 87

Secondary Evidence first show that the primary evidence is NOT


obtainable
Requisites: LAYING THE BASIS
1) Proof of Existence/Execution
Reason: if NO original, NO secondary; execution is the
accomplishment of a thing
State events and circumstances surrounding execution to
prove existence.
Docs > 30 yrs. old NO need for proof of execution
2) Lost, destroyed/CANNOT be produced
lost CANNOT be discovered; destroyed NO longer exists;
cannot be produced unavailable
3) Cause of unavailability withOUT bad faith - NO bf, NO intention
to suppress document; presumption:
detrimental
to
his
cause
4) Diligent search bona fide; fruitlessly made in the place
where it is most likely to be found; exhausted all sources of
information and means of discovery
Reasonable certainty is sufficient.
Reasonable suspicion is NOT enough.
e.g. house burned down some reasonable certainty that
the document is in such house so the court may be
convinced for the presentation of secondary evidence;
need NOT be proved beyond the possibility of
error/mistake
Lay the basis then present secondary evidence:

Copy

Recital (authentic genuine, need NOT be a


public document)

Testimony
Laying the basis/foundation When made? During trial (witness on the
stand)

in a place from which it cannot be removed for the purpose of being


produced in court, or that it is not in the possession or under the
control of the party seeking to show the facts and that he is unable to
produce it within a reasonable time after the exercise of reasonable
diligence.
3. PAROL EVIDENCE RULE
Sec. 9. Evidence of written agreements. When the terms of an
agreement have been reduced to writing, it is considered as containing all
the terms agreed upon and there can be, between the parties and their
successors in interest, no evidence of such terms other than the contents
of the written agreement.
However, a party may present evidence to modify, explain or add to the
terms of written agreement if he puts in issue in his pleading:
(a)
An intrinsic ambiguity, mistake or imperfection in the written
agreement;
(b)
The failure of the written agreement to express the true intent and
agreement of the parties thereto;
(c)
The validity of the written agreement; or
(d)
The existence of other terms agreed to by the parties or their
successors in interest after the execution of the written agreement.
The term "agreement" includes wills. (7a)
Parol Evidence Rule: When the terms of an, agreement have been
reduced to writing, it is considered as containing all the terms agreed
upon and there can be, between the parties and their successors in
interest, no evidence of such terms other than the contents of the
written agreement.
Exceptions: a party may present evidence to modify, explain or add to
the terms of the written agreement if he puts in issue in his pleading
1) An intrinsic ambiguity, mistake or imperfection in the written
agreement
2) failure of the written agreement to express the true intent and
agreement of the parties
3) validity of the written agreement; or
4) The existence of other terms agreed to by the parties or their
successors in interest after the execution of the written
agreement
If the ground is subsequently-agreed terms, the subsequently-agreed
terms must also be put in issue in the pleadings. The rule applies only
to the terms of an agreement.

Proof of non-production in court: In order to introduce secondary


evidence of a writing, it is not necessary to show that the original has
been lost or destroyed, but it is sufficient to show that it is deposited

Page 18 of 87

If the evidence sought to be admitted refers to matters other than the


terms of the agreement (e.g. statement of facts), then the PER does
not apply, such evidence is admissible.
PER applies only to the parties to the agreement. It does not apply
where PER is invoked against a litigant who is a stranger to the
agreement.
Requisites for mistake as exception to PER:
a) mutual between the parties
b) of fact, not of law
c) alleged and put in issue in the pleadings
d) proved by clear and convincing, not merely preponderance of,
evidence
The rule on self-defense also requires that the circumstances of selfdefense be proven by clear and convincing evidence.
Statute of Frauds: If the following agreements are not in writing and
subscribed, it is unenforceable and evidence thereof is inadmissible
i.
not to be performed within a year from the making thereof
ii.
special promise to answer for the debt, default, or miscarriage
of another;
iii.
agreement made in consideration of marriage, other than a
mutual promise to marry;
iv.
agreement for the sale of goods, chattels or things in action,
at a price not less than P500, unless the buyer accept and
receive part of such goods and chattels, or the evidences, or
some of them, of such things in action or pay at the time
some part of the purchase money;
v.
lease for more than 1 year, or sale of real property or of an
interest therein;
vi.
representation as to the credit of a 3rd person.
Exceptions
i.
failure to object to the presentation of oral evidence, or
ii.
acceptance of benefit under the agreement

Invoked only if the controversy


is between parties to the
agreement
Applies only to agreements and
wills

Effect is can not present any


evidence on the contents other
than the original
Invoked by anybody, whether a
party to the instrument or not
Applies to all kinds of writing

In the best evidence rule, you have to present the original because
the contents thereof are the subject of the inquiry, there is already a
dispute.
In parole evidence rule, it only states that the agreement is the
repository of what the parties had agreed upon. So if you try to
introduce extrinsic evidence or parole evidence, as a rule, could you
do it? NO, because that will be in violation of the parole evidence rule,
which says that the agreement will be the repository of what the
parties and their successors-in-interest have agreed upon.
Parties bound by the written agreement, it being the
repository/memorial of what has been agreed upon; NO substitute,
change NOR alteration allowed. One CANNOT produce extraneous
evidence.
Under the second paragraph, if you introduce extrinsic evidence, if
you are allowed to introduce extrinsic evidence, according to the
provisions of the second paragraph, that is termed parole evidence
and NOT the parole evidence rule.
The first paragraph is the parole evidence rule. The second paragraph
provides the instances when you could present parole evidence.
Could you just present at any given time? NO. You have to put it in
issue in the pleadings. What do you mean by that? If you are the
complainant, put it as an issue in the complaint. If you are the
defendant and you would want to raise it as one of your defenses, put
it in issue in the answer. Or the plaintiff after receiving the answer
might want to introduce a new matter in a reply, then put it there, put
it in issue in the pleadings. If you dont put it in issue in the pleadings,
could you introduce parole evidence? Not the parole evidence rule but
could you introduce parole or extrinsic evidence? No, you cannot.

Distinguish
Parole Evidence Rule
No original involved
No issue as to the contents of a
writing
Parol evidence is offered
Presupposes that original is in
court

Effect is can not add, subtract,


or explain the contents

Best Evidence Rule


Look at the original
Issue is contents of a writing
Secondary evidence is offered
Applies when the original is not
available

Is there a remedy if by chance I did not put it in issue?

Page 19 of 87

Yes, you amend the pleadings to conform with the evidence under S5
R10 because under that category of Rule 10, if the other party doesnt
object, you can amend the pleadings or if the other party objects, you
can still amend, you file a motion to amend your pleadings to conform
with the evidence already presented. Let us say you were successful
in presenting it and no other objection, amend it in accordance with
evidence presented.

e.g. I am giving my 1987 Mitsubishi Lancer


color yellow to Mr. Ong. And there are two Mr.
Ongs in my class. On the face of the
document, there appears to be no ambiguity.
But if you start to implement or enforce the
same then apparently there is an ambiguity.
On the face of the agreement or document,
there is already a problem. And therefore let
us say, I am giving my 1987 Mitsubishi Lancer
to ___. It was left blank. Is it something that
could be subject to a modification, an
explanation? Could we present parole
evidence? NO because we are going into the
intent of a person which we CANNOT do.

You can only amend it, if you were able to present the evidence. What
if you were not able to present the evidence because the other party
objected it, can you still amend it? Yes, with leave of court. Because
you can amend as a matter of right before an answer is filed and after
an answer is filed with leave of court. So it is very important that you
put it in issue, unless you put it in issue, you cannot modify, explain or
add.

Parol admissible on collateral matter/s


However, court can still render valid judgment even if NOT amended
so long as it is proven by evidence.

ii.

2002 case in PER

a.
b.
c.

Bank Manager approached by Spouses for a P800,000 loan for 6


months with 6% interest
default
sued for recovery of amount
debtor now says that loan is for 5 yrs. with 3% interest
SC: NO PER; effect: changes agreement
The document is the embodiment of the agreement and those NOT
written are considered waived and abandoned. It is the expositor of
the parties intentions and the only instrument of evidence in respect
of that agreement.
PER gives certainty to a transaction which has been reduced to
writing, more certain and accurate than fleeting memory.
Put in issue is to allege and make an issue; put forth such issue.
PER Exceptions: conditions for presentation of parole evidence:
a.

intrinsic ambiguity, mistake or imperfection in the written


agreement.
i.

intrinsic/latent ambiguity discoverable only when


applied to the circumstances; already existing; you do
NOT create; clear words but doubtful application

Page 20 of 87

mistake of fact
mistake of fact
mutual
alleged and proven by clear and convincing
evidence

There was a previous agreement which was NOT


reflected in the instrument and it was a common
agreement. Reformation may be had.
iii.

imperfection
- There was an agreement embodied but was
imperfectly worded; due to poor drafting; includes an
inaccurate statement
e.g. The same example could be given. Let us
say I am giving my property in Bulacan, is it
clear? No, I need to give the details of the
same. Now, take note that there are 3 kinds of
ambiguities: extrinsic, intermediate, intrinsic.
Intrinsic ambiguity falls under this. Extrinsic
ambiguity doesnt fall under parole evidence.
Intermediate ambiguity would also fall under
parole evidence. What is that? Sir, there is an
issue as to how you describe a particular
subject matter or item. I was referring to an
equipment or machine. I was referring to
16,000 capacity. On the face it appears to be
clear however, my wording is equivocal, not

to establish, NOT validate the agreement

unequivocal but equivocal which gives two


meanings, it could be capacity in terms of
working capacity or capacity in terms of
production. In which case, that is an
intermediate ambiguity.
b.

d.

failure of written agreement to express the true intent and


agreement of the parties

- tangible evidence:
supplement

e.g. written: sale but the intent: truly a mortgage

So take note that it goes to the intent of the parties. Even if


there is an agreement but that is not the intent of the parties,
then you could present parole evidence.

c.

memorandum,

amendment,

It only means that let us say an agreement has been executed


today between Mr. Ong and me but lets say tomorrow Mr. Ong
said that was not really his intention, the agreement was for
me to deliver on a weekly basis 400 dozens of eggs and he
said that its too much for my production of eggs so I think the
general intention was only for 200 dozens of eggs. So could
we execute another agreement? Yes. But it was a simple
correspondence? Could we enter into a separate agreement?
Yes. And could you prove it? Yes. So long as it is after the
execution of the agreement. So you see here an agreement
executed at some particular date and there maybe
subsequent agreement between the parties and their
successors-in-interest after the agreement. Take note that the
agreement here would include wills.

Let us say that there was really no contract, could you present
parole evidence? There was this written contract presented
with all the formalities and showing that I signed it but I never
signed it. Could parole evidence be presented? Yes. If I was
induced, if there was misrepresentation, if there was fraud,
could parole evidence be presented? Yes. Could parole
evidence be presented to legalize an otherwise illegal
contract? No. Could parole evidence validate an otherwise
void agreement? No.

If there is this agreement and because I am not schooled, the


agreement was titled deed of sale. My intention only was to
place a mortgage but because I do not know the legal
implications, I only placed deed of sale. What was the true
intent of the parties? To execute a mortgage. Could parole
evidence be presented? Yes. Does it mean that if we are to
present parole evidence it is only limited to written
documents? No. You could also present testimonies of
witnesses. Its not limited to paper. On introduction of parole
evidence in the second paragraph, you could present
witnesses who saw how the document was executed,
witnesses who heard how the agreement was negotiated, they
could sit on the stand.

existence of other terms agreed upon by the parties


subsequent to the agreement or after the execution of the
document

e.g. Lease agreement but with option to purchase


made by oral discussion this can be presented as
there is subsequent agreement
In the presentation of parole evidence, you may add or modify based
on any of the grounds.
4. INTERPRETATION OF DOCUMENTS
Sec. 10. Interpretation of a writing according to its legal meaning. The
language of a writing is to be interpreted according to the legal meaning it
bears in the place of its execution, unless the parties intended otherwise.
(8)

validity of the written agreement

Interpret give meaning


Construe ascertain intent (go beyond)

- An illegal contract could not be validated by parole evidence.


A void contract cannot be validated by parole evidence;
whether valid/NOT; in questioning, parole evidence may be
presented

Matters of substance you can agree


Matters of form you CANNOT agree (solemnities)
Matters of procedure you CANNOT agree (law of the forum)

inducement, incapacity, fraud, illegality, misrepresentation

Sec. 11. Instrument construed so as to give effect to all provisions. In


the construction of an instrument, where there are several provisions or

Page 21 of 87

particulars, such a construction is, if possible, to be adopted as will give


effect to all. (9)

other understood it, and when different constructions of a provision are


otherwise equally proper, that is to be taken which is the most favorable to
the party in whose favor the provision was made. (15)

- give effect; harmonize; separability clause

e.g. a stipulation provides:


payment of the monthly amortization shall be made by the
other party once the mortgaged property is taken out from I
Bank
who is the other party?
MoA executed November 2003
Takeout December 2004
- if parties CANNOT agree, the court shall decide

Sec. 12. Interpretation according to intention; general and particular


provisions. In the construction of an instrument, the intention of the
parties is to be pursued; and when a general and a particular provision are
inconsistent, the latter is paramount to the former. So a particular intent
will control a general one that is inconsistent with it. (10)
-

intention pursued as to unclear provisions (equivocal);


particular provision prevails

Sec. 13. Interpretation according to circumstances. For the proper


construction of an instrument, the circumstances under which it was
made, including the situation of the subject thereof and of the parties to it,
may be shown, so that the judge may be placed in the position of those
whose language he is to interpret. (11)
-

situation of the subject and parties; to be able to interpret it


better

Sec. 14. Peculiar signification of terms. The terms of a writing are


presumed to have been used in their primary and general acceptation, but
evidence is admissible to show that they have a local, technical, or
otherwise peculiar signification, and were so used and understood in the
particular instance, in which case the agreement must be construed
accordingly. (12)
-

Sec. 18. Construction in favor of natural right. When an instrument is


equally susceptible of two interpretations, one in favor of natural right and
the other against it, the former is to be adopted. (16)
Sec. 19. Interpretation according to usage. An instrument may be
construed according to usage, in order to determine its true character. (17)
- instrument is construed; e.g. kristo in cockfights (accuracy
of bets)
Rules of interpretation of documents:

word has a general and technical meaning; e.g. labor


dispute, demand, mouse

Sec. 15. Written words control printed. When an instrument consists


partly of written words and partly of a printed form, and the two are
inconsistent, the former controls the latter. (13)
Sec. 16. Experts and interpreters to be used in explaining certain writings.
When the characters in which an instrument is written are difficult to be
deciphered, or the language is not understood by the court, the evidence
of persons skilled in deciphering the characters, or who understand the
language, is admissible to declare the characters or the meaning of the
language. (14)
Sec. 17. Of Two constructions, which preferred. When the terms of an
agreement have been intended in a different sense by the different parties
to it, that sense is to prevail against either party in which he supposed the

Page 22 of 87

Interpretation of a writing according to its legal


meaning in the place of execution
Instrument construed so as to give effect to more
provisions
Interpretation according to intention of the parties
particular over general
Interpretation according to circumstances of the
parties and the subject
Terms presumed to be used in primary and general
acceptation, evidence of local, technical, or peculiar
signification use admissible
Written words control printed
When the characters are difficult to decipher, or the
language is foreign, the evidence of experts and
interpreters is admissible
When the terms of an agreement have been intended
in a different sense by the different parties to it, that
sense is to prevail against either party in which he
supposed the other understood it
When different constructions of a provision are
otherwise equally proper, that is to be taken which is

the most favorable to the party in whose favor the


provision was made
preference for natural right
usage may be considered

Statutory rules of interpretation


If the terms are clear, the literal meaning shall control.
If the words appear to be contrary to the evident
intention of the parties, the intention shall prevail
In order to judge the intention of the contracting
parties, their contemporaneous and subsequent acts
shall be principally considered.
terms of a contract shall not be understood to
comprehend things that are distinct and cases that
are different from those upon which the parties
intended to agree
If some stipulation of any contract should admit of
several meanings, it shall be understood as bearing
that import which is most adequate to render it
effectual.
The various stipulations of a contract shall be
interpreted together, attributing to the doubtful ones
that sense which may result from all of them taken
jointly.
Words which may have different significations shall be
understood in that which is most in keeping with the
nature and object of the contract.
The usage or custom of the place shall be borne in
mind in the interpretation of the ambiguities of a
contract, and shall fill the omission of stipulations
which are ordinarily established.
The interpretation of obscure words or stipulations in a
contract shall not favor the party who caused the
obscurity.
When it is absolutely impossible to settle doubts by
the rules established in the preceding articles
o
the doubts refer to incidental circumstances of
a gratuitous contract, the least transmission
of rights and interests shall prevail
an onerous contract, the doubt shall be
settled in favor of the greatest reciprocity of
interests
o
If the doubts are cast upon the principal object of
the contract in such a way that it cannot be known

what may have been the intention or will of the


parties, the contract shall be null and void.
The principles of interpretation stated in the Rules of
Court shall likewise be observed

ELECTRONIC EVIDENCE

applies to administrative, civil and criminal cases


electronic document may either be public or private
electronic signature
R3 electronic evidence
R4 best evidence
R5 authentication
R8 exception to the hearsay rule
Digital signature
R9 method of proof

Highlights:

Page 23 of 87

Admissibility go back to S3 R128 (relevant and NOT


excluded, authenticated)
BER original electronic data/information; include printouts
and outputs readable by sight and other means; subject to
question
Definition of electronic signature and digital signature; public
and private key
Electronic ID each computer as its own ID; signature is NOT
used as much
Presumptions relate with R131
Authenticity reliance on source and preparation,
transmission & storage; who? person with personal knowledge
or person of competence; judge weighs evidence (through
resolution)
Hearsay exception entries made in the regular course of
business because of a certain level of regularity and
repetition observing the regular course of business, data may
be expected to be reliable; e.g. printout of a physical exam at
NKI
Ephemeral communication NOT stored (nature of
information); but by its very nature, it could be stored (i.e.
email, text)
Photographs audio and video recording; need to lay the
basis; who testifies? a person with personal knowledge or a
competent individual who knows the facts and circumstances;

rules in laying the basis with respect to audio recording is


more stringent under R128

2) Political belief
3) Interest in the outcome of the case, or
4) Conviction of a crime, unless otherwise provided by law, e.g.
a) State witness must not have been convicted of any
crime involving moral turpitude [Rule 119, Sec. 17 (e)]
b) Person who has been convicted of falsification of a
document, perjury or false testimony is disqualified
from being a witness to a will (Art. 821 NCC)

Business Record as Hearsay Exception (Entries)


R130 S43
- entrant must be deceased or
unable to testify
- in a position to know the facts
therein stated
- made in his professional
capacity or in the performance of
duty
- in the ordinary/regular course of
business/duty

R8 S1 (Rules on Electronic
Evidence )
- NO such requirement
- mere knowledge of the acts
sufficient; NOT personal
knowledge
- made by electronic, optical or
other similar means

Demonstration demonstrate in court. For example, in witness stand,


I can demonstrate this is how I slapped the victim. How should you
put this on record: The counsel or the interpreter should record that
the witness with his right hand struck the victim towards his cheek.
Demonstration is different from demonstrative evidence.

- at or near the time of/from


transmission/supply of
information
- kept in the regular
course/conduct of a business
activity
- such was the regular practice to
make the memorandum, report,
record or data compilation

Testimonial evidence - competency of the witness and ability to pass


on info/relay info to the court. How will you know if a witness is
qualified. If people perceive and perceiving and can make known his
perception. A witness can perceive now; but tomorrow he cannot --such is not competent witness. One may be very intelligent; but
cannot perceive such is not competent a competent witness as he
only testifies on merely hearsay and not on his personal knowledge.

* all of which are shown by the


testimony of the custodian/other
qualified witnesses
C. TESTIMONIAL EVIDENCE
1. QUALIFICATION OF WITNESSES
Sec. 20. Witnesses; their qualifications. Except as provided in the next
succeeding section, all persons who can perceive, and perceiving, can
make known their perception to others, may be witnesses.
Religious or political belief, interest in the outcome of the case, or
conviction of a crime unless otherwise provided by law, shall not be
ground for disqualification. (18a)
Qualifications of witnesses:
1) Can perceive
2) Perceiving
3) Can make known their perception to others
NOT grounds for disqualification:
1) Religious belief

Witnesses: qualifications; minimum requirements:


(1) Can perceive senses
(2) Can make known his perception
Witnesses can be impeached on cross examination by reason of
interest or bias. Cross examination is to impeach, to test truthfulness
or accuracy of testimony, free from bias or interest, and to elicit facts
bearing upon the issue.
Conviction unless otherwise prevented
e.g. witnesses convicted of falsification of document, perjury or false
testimony CANNOT be made witnesses to a will, state witness under
S17 R119
Sec. 21. Disqualification by reason of mental incapacity or immaturity.
The following persons cannot be witnesses:
(a)
Those whose mental condition, at the time of their production for
examination, is such that they are incapable of intelligently making known
their perception to others;
(b)
Children whose mental maturity is such as to render them
incapable of perceiving the facts respecting which they are examined and
of relating them truthfully. (19a)

Page 24 of 87

For a mentally defective person to be a witness, he must be mentally


capable at the time of production, even if he was not so at the time of
perception. A child must be mentally mature both at the time of
perception and at the time of production.
With regard to the subject matter of the testimony, we must make a
distinction between absolute disqualifications and relative
disqualifications. Objections based on absolute disqualifications may
be raised upon the calling of the disqualified witness. Objections
based on relative disqualifications may be raised when it becomes
apparent that the subject matter of the testimony covers inadmissible
matters.

1.

Mentally incapacitated at the time perceived, at the time of


his production as a witness cannot be a witness

2.

Mental immaturity a child/minor

CHILD WITNESS EXAMINATION RULE


If placed on the stand, age is NOT really considered. It is his
perception. The parameter is that he should know what is good
and bad, consequences of telling a lie, reason why he is placed on
oath.

i.

Cant perceive

Competency examination determined/assessed by the judge


through his question, Do you know what it is like to tell a lie? Its
consequences? Etc.

ii.

Not perceiving

Expanded can bring support personnel, item

iii.

Cant make known their perception to others

iv.

Mental condition, at the time of their production for


examination, render them incapable of intelligently making
known their perception to others

v.

Mental maturity is such as to render them incapable of


perceiving the facts respecting which they are examined and
relating them truthfully

Absolutely disqualified witnesses:

vi.

Marital disqualification

vii.

Parental and filial privilege

There can be video recording, deposition. Can be asked leading


questions, hearsay so long as complies with certain requirements.
Confidential documents, destroyed after a certain period
deaf-mute only a limitation to perception; can be a witness; use an
expert (interpreter) to verbalize the signs and communication; sign
language; when he sits at the stand, the verbal statements of such
expert are recorded
what if such interpreter is a family member or someone who knows
the sign language? theres still a need to qualify

Relative disqualifications:

insane may be a witness

i.

Dead mans statute

ii.

Marital communication privilege

iii.

Attorney-client privilege

iv.

Attorney's secretary, stenographer, or clerk concerning any


fact the knowledge of which has been acquired in such
capacity

what about an interview made immediately? admissible as res gestae,


hearsay exception (e.g. media interview while an event is occurring)

v.

Physician-Patient Privilege

drug use must be established during examination

vi.

Priest-Penitent Privilege

vii.

State Secrets

if insane when you saw NOT admissible; he CANNOT synthesize; e.g.


Alzheimers

person previously placed in an institution insanity is presumed to


continue under R131; must be sane at the time of production so he
can make known his perception to others

Disqualification by reason of mental incapacity or immaturity

Page 25 of 87

how are NON-believers of God sworn? through an affirmation a


confirmation that he will tell the truth withOUT relying on a God, NO
fear

GR: During their marriage, spouses may not testify for or against the
other without the consent of the affected spouse

witness placed on oath regardless of belief on a God

Exceptions:
1) Civil case by one against the other, or

credibility determined later

2) Criminal case for a crime committed by one against

idiot CANNOT testify

a) The other or

mental retardate distinguish: if slight, can be a witness because he


can perceive; if absolute, he CANNOT testify

The marital disqualification rule refers to all matters and applies only
during the existence of the marriage. It can be invoked only if one
spouse is a party to the action. It is an absolute disqualification and
can be invoked the moment that one spouse is called to testify.

autistic determine level of autism

mental capacity material (mental condition)


mental immaturity

Rule on child examination applies to both civil and criminal cases.

b) Others direct descendants or ascendants

Child knows what is good and bad


Child tells the truth and knows the consequences of false
testimony
Knowing the oath (why he is placed at the stand) + can
perceive and make known his perception (competency exam)
Guardian is entitled to notices, but CANNOT participate;
similar rule in case of default
Leading questions may be asked, also provided under R132
S10 (5 exceptions)

This is a testimonial disqualification, as opposed to the testimonial


privilege of ascendants and descendants (Rule 130 25). Hence, the
witness has no say whether the objection is to be raised or not. The
holder of the privilege is the spouse-litigant. When the spouse-litigant
consents to the testimony, the spouse-witness must testify whether
he wants to or not.
cf Rule 130 24 (a), Marital Communications
Sec. 24. Disqualification by reason of privileged communication. The following
persons cannot testify as to matters learned in confidence in the following cases:
(a) The husband or the wife, during or after the marriage, cannot be examined
without the consent of the other as to any communication received in confidence
by one from the other during the marriage except in a civil case by one against the
other, or in a criminal case for a crime committed by one against the other or the
latter's direct descendants or ascendants;

Sec. 22. Disqualification by reason of marriage. During their marriage,


neither the husband nor the wife may testify for or against the other
without the consent of the affected spouse, except in a civil case by one
against the other, or in a criminal case for a crime committed by one
against the other or the latter's direct descendants or ascendants. (20a)

Marital Disqualification
Covers all matters regardless of
source

Requisites for marital disqualification rule:


1) Marriage subsists
2) Spouse is a litigant

Applies during the marriage

3) No consent from the spouse-litigant


4) Not a civil case by one against the other, or a criminal case for
a crime committed by one against the other or the latter's
direct descendants or ascendants.

A spouse must be a litigant


Invoked when a spouse is called
to testify

Page 26 of 87

Marital Communications
Covers only those
communicated by one spouse to
another
Applies during and after the
marriage
A spouse need not be a litigant
Invoked when the testimony
appears to cover privileged
matters

Note that the exceptions under the marital disqualification and marital
communications rule are the same.
Sec. 23. Disqualification by reason of death or insanity of adverse party.
Parties or assignor of parties to a case, or persons in whose behalf a case
is prosecuted, against an executor or administrator or other representative
of a deceased person, or against a person of unsound mind, upon a claim
or demand against the estate of such deceased person or against such
person of unsound mind, cannot testify as to any matter of fact occurring
before the death of such deceased person or before such person became
of unsound mind. (20a)

Sec. 24. Disqualification by reason of privileged communication. The


following persons cannot testify as to matters learned in confidence in the
following cases:
Privileged Communications:
1) marital
2) attorney-client
3) physician-patient
4) priest-penitent

Requisites for dead mans statute:

5) state secrets

1) The witness sought to be disqualified is the plaintiff

2) Executor, administrator or representative of a deceased


person, or the person of unsound mind is the defendant
3) Upon claim or demand against the estate of such deceased
person or against such person of unsound mind
4) As to any matter of fact occurring before the death of such
deceased person or before such person became of unsound
mind
5) [NO counterclaim is filed]

Parties, Assignors or Persons in whose behalf a case is


prosecuted
Theres action being prosecuted
Against an Executor/Administrator/other Representative of a
deceased person or Against a person of Unsound mind
Nature of action: claim against the estate/person of unsound
mind

Can a NON-party testify?


NOT an absolute bar, only against the estate
Witnesses to a contract NOT covered by prohibition: recent SC case
-

only witnesses as they only attest; witnesses are NOT parties


checks allowed; documents may be produced (contracts)

Why is it called the Dead Mans Statute?


It pertains only to that portion referring to death, NOT insanity; thus,
inaccurate as the prohibition covers both death and insanity

Relationship is a consideration, though NOT primary


Nature of communication: confidential; makes it a
disqualification

This is a rule of relative disqualification. Each of those enumerated is


disqualified to testify as to specific matters only. It does not disqualify
them from testifying on matters not privileged. Hence, it is improper
to object to their testimony upon mere subpoena. One must wait until
it becomes apparent that their testimony covers matters that are
privileged (e.g. upon asking of a question that covers privileged
matters; when the purpose of their testimony as admitted by the
offeror covers privileged matters) before one may properly object.
Though a relative disqualification, it is nevertheless a testimonial
disqualification, as opposed to the testimonial privilege of ascendants
and descendants (Rule 130 25). [careful not to be confused in the
multiple meanings of the word privilege] Hence, the witness has no
say whether the objection is to be raised or not. When the holder of
the privilege (not necessarily the opposing party) consents to the
testimony, the witness must testify.
Note that the wording of the law is to the effect that (someone) may
not be examined without the consent of (another). The law does not
say that one can not testify or be examined over the objection of
another. The wording of the law is to the effect that an objection of the
other party in the privileged communication is not necessary for the
privilege to hold. Consent of the other party in the privileged
communication is an act that needs to be proved for the testimony to
be admitted. This is not to say that failure of a such a party to object
will never render such testimony admissible. This is to say that where
the other party to the privileged communication is not a litigant in the

Page 27 of 87

case, and privileged communication is offered in evidence without the


consent of such party, the litigant against whom the testimony is
offered may object to its admission on the ground of privileged
communication. Where the other party in the privileged
communication is a litigant, then his failure to object will be taken as a
consent to the testimony or a waiver of a privilege.

1) Civil case by one against the other, or


2) Criminal case for a crime committed by one against the other
or the latter's direct descendants or ascendants
cf Rule 130 22: Marital Disqualification Rule
Sec. 22. Disqualification by reason of marriage. During their marriage, neither
the husband nor the wife may testify for or against the other without the consent of
the affected spouse, except in a civil case by one against the other, or in a criminal
case for a crime committed by one against the other or the latter's direct
descendants or ascendants. (20a)

The communication that is privileged need not be in any form. It can


be oral or written.
The communication ceases to be privileged if knowingly
communicated in the presence of 3 rd persons. In such a case, the
privilege may not be invoked at all. However, if the privileged
communication was within the surreptitious observation of a 3 rd
person, then the communication can be invoked if either the
communicator or communicatee called to testify. However, the
privilege can not be invoked if the 3rd person is called to testify.
(a)
The husband or the wife, during or after the marriage, cannot be
examined without the consent of the other as to any communication
received in confidence by one from the other during the marriage except
in a civil case by one against the other, or in a criminal case for a crime
committed by one against the other or the latter's direct descendants or
ascendants;

communication received in confidence

Requisites for Marital Communications Rule:

The marital disqualification rule refers to all matters and applies only
during the existence of the marriage. It can be invoked only if one
spouse is a party to the action. It is an absolute disqualification and
can be invoked the moment that one spouse is called to testify.
1. Marriage - Info received in confidence (vs. sec 22). Legally married,
except in civ/crim case by one against the other or involving their
ascendants or descendants.
S22
Marriage
During marriage
Any matter
Case of 1 spouse against the
other
(testify)

Invoked by spouse
Exceptions:
(1) civil case between 1 spouse against the other
(2) criminal case between 1 spouse against the other/latters
direct ascendants and descendants

1) Communication received
a)

From the spouse

b)

In confidence

c)

During the marriage

2) Without the consent of the spouse


Note that the marital communication rule applies even after the
marriage. It applies only to matters communicated by one spouse to
another in confidence. It does not cover knowledge of matters that a
spouse obtains from a source other than other spouse.
It can be invoked even if neither spouse is a party to the action. It is a
relative disqualification and can be invoked only when it is apparent
that the testimony would cover privileged matters.
The exceptions to the rule are:

S24 (a)
Privilege
During and after marriage
Confidential
Any case; need NOT be a case of
1 spouse; NO distinction

Requisites:
1) Valid marriage a de facto marriage is NOT a valid one; NOT
legal
2) Confidential communication by nature, NOT intention
3) Privilege is claimed with regard to a communication, oral or
written
e.g.
husbands letter to his wife read to a close friend by her theres
agency
husbands letter to his wife read before an audience/in class NO
agency; intended to be for public consumption

Page 28 of 87


Person who overhears can testify NO agency
* How parties desire to treat the communication related
(b)
An attorney cannot, without the consent of his client, be examined
as to any communication made by the client to him, or his advice given
thereon in the course of, or with a view to, professional employment, nor
can an attorney's secretary, stenographer, or clerk be examined, without
the consent of the client and his employer, concerning any fact the
knowledge of which has been acquired in such capacity;

communication made by the client to an attorney or advice


given by the attorney

Requisites for attorney-client privilege:


1) Existence of an attorney-client relationship
2) Witness is an attorney
3) As to communication made by the client to him, or his advice
given thereon
4) Communication was made in confidence
5) Communication was made in the course of, or with a view to
professional employment
The privilege extends to the attorney's secretary, stenographer, or
clerk concerning any fact the knowledge of which has been acquired
in such capacity. The difference being consent of only the client is
needed for the attorney to testify. However, the consent of both the
attorney and the client is necessary for the attorney's secretary,
stenographer, or clerk to testify.

in the course of a question of fact


if merely exploratory NO relationship yet; NOT yet privileged
communication; NO advice
with a view to NO relationship yet and communication is
relayed/disclosed; regardless of the consummation of the attorneyclient relation
Requisites:
Attorney-client relationship
Communication made with a view to (courtship stage) or in
the course of professional employment
Covers lawyers secretary, stenographer, clerk information is
received in such capacity; need consent of both lawyer and
client (e.g. facts of the case, evidence)
(c)
A person authorized to practice medicine, surgery or obstetrics
cannot in a civil case, without the consent of the patient, be examined as
to any advice or treatment given by him or any information which he may
have acquired in attending such patient in a professional capacity, which
information was necessary to enable him to act in capacity, and which
would blacken the reputation of the patient;

The attorney-client privilege does NOT apply if the attorney was sued
by his client.
2. Atty.-Client relationship NOT just the course of employment
(existing relationship), but also in view of professional engagement
(giving advise when client went to the office); likewise applies to the
steno, sec, clerk of the atty; subject to waiver by both client and
lawyer; Joinders can share info

NOT just any communication; now limited: (1) in view to


professional employment; and (2) in the course of professional
employment
Lawyer gives advice; client gives communication
NO written agreement required
Engagement letter is ideal
Private practitioners, single practitioners and small firms

advice or treatment given by the doctor or information doctor


may have acquired in attending such patient in a professional
capacity (necessary to enable him to act in that capacity +
would blacken clients reputation)

Waivers of the physician-patient privilege, cf Rule 28, Sec. 3 and 4

By reason of communication; must be lawful


Attorney-client relationship is important
Any communication in the light of the relationship

Page 29 of 87

Sec. 3. Report of findings. If requested by the party examined, the party


causing the examination to be made shall deliver to him a copy of a detailed
written report of the examining physician setting out his findings and conclusions.
After such request and delivery, the party causing the examination to be made
shall be entitled upon request to receive from the party examined a like report of
any examination, previously or thereafter made, of the same mental or physical
condition. If the party examined refuses to deliver such report, the court on motion

- this should be a civil case and the info received is in a professional


relationship that if such is disclosed, it would blacken reputation of the
patient

and notice may make an order requiring delivery on such terms as are just, and if
a physician fails or refuses to make such a report the court may exclude his
testimony if offered at the trial. (3a)
Sec. 4. Waiver of privilege. By requesting and obtaining a report of the
examination so ordered or by taking the deposition of the examiner, the party
examined waives any privilege he may have in that action or any other involving
the same controversy, regarding the testimony of every other person who has
examined or may thereafter examine him in respect of the same mental or
physical examination. (4)

e.g. if I visited MMC because of hypertension - such would not blacken


my reputation but SARS, T.B. could blacken reputation
Requisites:
physician-patient relationship created
civil case
advice, treatment or information is acquired in a professional
capacity

Requisites for physician-client privilege:


1) Civil case
2) Witness is a person authorized to practice medicine, surgery
or obstetrics
3) As to any advice or treatment given by him or any information
which he may have acquired in attending such patient in a
professional capacity

- relationship is created thru medical record; Doctor of Medicine


(Medicine, Surgery, Obstetrics); psychiatrists included; dentists NOT
included but bound by their ethical standard
- interns, optometrists, midwife, hilot, iridology NOT included

4) Information was necessary to enable him to act in that


capacity

- civil case reputation v. the greater interest of justice; why? Autopsy


report used in a criminal case

5) Information would blacken the reputation of the patient

- criminal case NOT covered

The old rule used the word character (what the person actually is).
The new rules use the word reputation (what people think of the
person).

- laboratory report if with request from doctor, it is covered; if by


patients initiative alone, NOT covered

Note that the patient need not be the source of the information.

- father of child pregnancy test: NOT covered

Only persons authorized to practice medicine, surgery or obstetrics


are covered by the privilege. Hence, nurses, midwives and other
people who attend to the ill can be called to testify as to any matter.

The privilege does NOT cover expert opinion as long as the witness
does NOT testify to matters specifically referring to the patient.

There is NO physician-patient privilege in criminal cases.


3. Doctor-patient privilege - Involves a civil case (i.e. medico-legal,
autopsy report); advice given at the time relationship exists; info
acquired during relationship and there is a necessity to give advice
- Privilege applies if disclosure would blacken reputation of the patient;
includes
patients
who
have
no
freedom
of
choice/insane/child/mentally immature

outside of doctors concern (e.g. why it happened); only


incidents but bound by ethical standards
information necessary to attend to the patient
would blacken the reputation of the patient (e.g. STD,
impotency,
frigidity,
nervous
breakdown,
TB,
drug
dependence and rehabilitation [in the Philippines])
Does privilege extend to nurses, staff, medical technicians?
NO; NOT covered

(d)
A minister or priest cannot, without the consent of the person
making the confession, be examined as to any confession made to or any
advice given by him in his professional character in the course of
discipline enjoined by the church to which the minister or priest belongs;

Page 30 of 87

confession made to a minister/priest or advice given by such


minister/priest in his professional character in the course of
discipline enjoined by his church

of Syjuco. He further accused Binay of terrorism, intimidation and


harassment of the Makati electorate. Brillante also circulated among
the journalists copies of an open letter to President Aquino which
discussed in detail his charges against Binay.

Requisites for Priest-Penitent Privilege:


1) Witness is a minister or priest
2) As to any confession made to or any advice given by him in
his professional character
3) In the course of discipline enjoined by the church to which the
minister or priest belongs
4. Priest/minister and penitent If Mr. Ong shared his deepest darkest
secrets to the priest who later gave him advise, this is covered by the
privilege; priest/minister must be enjoined by the discipline to which
they belong
Requisites:
confession made or advice given in a professional character
in the course of discipline enjoined by the church of the
minister/priest
- Mike Velarde and Pastor NOT covered; only Catholic religion enjoins
you to confess
- look at the discipline (whether enjoined by the church)
- public confession at Luneta if NOT enjoined, NOT covered
- confidential nature of confession
* Do NOT confuse with
communication in libel.

the

rule

with

respect

to

privileged

Libel is defined under Article 353 of the Revised Penal Code as a


public and malicious imputation of a crime, or of a vice or defect, real
or imaginary, or any act, omission, condition, status, or circumstance
tending to cause the dishonor, discredit or contempt of a natural or
juridical person, or to blacken the memory of one who is dead.
To be liable for libel, the following elements must be shown to exist:
(a) the allegation of a discreditable act or condition concerning
another; (b) publication of the charge; (c) identity of the person
defamed; and (d) existence of malice.
Article 354 of the Revised Penal Code states, as a general rule, that
every defamatory imputation is presumed to be malicious, even if
true, if no good intention and justifiable motive is shown.
As an exception to the rule, the presumption of malice is done away
with when the defamatory imputation qualifies as privileged
communication.
Privileged communication may either be absolutely privileged or
conditionally privileged.
The Court in Orfanel v. People of the
Philippines, 141 Phil. 519 (1969), differentiated absolutely privileged
communication from conditionally privileged communication in this
manner:

In Brillante v. People, G.R. Nos. 118757 & 121571, October 19, 2004,
Bobby Brillante, questions his convictions for libel for writing and
causing to be published in 1988 an open letter addressed to then
President of the Republic of the Philippines Corazon C. Aquino
discussing the alleged participation of Atty. Jejomar Binay (Binay),
then the OIC Mayor and a candidate for the position of Mayor in the
Municipality (now City) of
Makati, and Dr. Nemesio Prudente
(Prudente), then President of the Polytechnic University of the
Philippines, in an assassination plot against Augusto Syjuco (Syjuco),
another candidate for Mayor of Makati at that time.
On January 7, 1988, Brillante, then a candidate for the position of
Councilor in Makati, held a press conference at the Makati Sports Club
which was attended by some 50 journalists. In the course of the
press conference, Brillante accused Binay of plotting the assassination

Page 31 of 87

A communication is said to be absolutely


privileged when it is not actionable, even if its author
acted in bad faith. This class includes statements
made by members of Congress in the discharge of their
functions as such, official communications made by
public officers in the performance of their duties, and
allegations or statements made by the parties or their
counsel in their pleadings or motions or during the
hearing of judicial proceedings, as well as the answers
given by witnesses in reply to questions propounded to
them, in the course of said proceedings, provided that
said allegations or statements are relevant to the
issues, and the answers are responsive or pertinent to
the questions propounded to said witnesses. Upon the
other hand, conditionally or qualifiedly privileged
communications
are
those
which,
although

containing defamatory imputations, would not be


actionable unless made with malice or bad faith.
Conditionally or qualifiedly privileged communications are those
mentioned in, Article 354 of the Revised Penal Code, to wit:
1.

A private communication made by a person to


another in the performance of any legal, moral, or
social duty; and

2.

A fair and true report, made in good faith, without


any comments or remarks, of any judicial,
legislative, or other official proceedings which are
not of confidential nature, or of any statement,
report, or speech delivered in said proceedings, or
of any act performed by public officers in the
exercise of their functions.

The purpose of affording protection to privileged communication is to


permit all interested persons or citizens with grievances to freely
communicate, with immunity, to the persons who could furnish the
protection asked for. However, to shield such privilege from abuse,
the law itself requires at all times that such petitions or
communications shall be made in good faith or with justifiable
motives. If it is established that the communication was made
maliciously or to persons who could not furnish the protection sought,
then the author thereof cannot seek protection under the law. As was
explained by the Court in U.S. v. Caete, 38 Phil. 253 (1918),
The plainest principles of natural right and
sound public policy require that the utmost possible
freedom should be accorded every citizen to complain
to the supervising, removing and appointing authorities
of the misconduct of the public officials with whom he
comes into contact, and like considerations make it
equally proper that members of a religious organization
should enjoy equal freedom in bringing to the attention
of the church authorities the misbehavior of their
spiritual leaders or of fellow-members. Manifestly, the
right must be exercised in good faith, and may not with
impunity be made the occasion for the venting of
private spite. It is subject to the limitation and
restriction that such complaints must be made to a
functionary having authority to redress the evils
complained of; that they must be made in good faith
and that they must not be actuated by malice.

The fact that a communication is privileged does not mean that it is


not actionable; the privileged character of the communication simply
does away with the presumption of malice, and the plaintiff has to
prove the fact of malice in such case. However, since the open letter
and the statements uttered by Brillante during the January 7, 1988
press conference are defamatory and do not qualify as conditionally
privileged communication, malice is presumed and need not be
proven separately from the existence of the defamatory statement.
Unfounded and malicious statements made by one against another in
the course of an election campaign, or by reason of differences in
political views are not per se constitutionally protected speech. Our
laws on defamation provide for sanctions against unjustified and
malicious injury to a persons reputation and honor. Although wider
latitude is given to defamatory utterances against public officials in
connection with or relevant to their performance of official duties, or
against public figures in relation to matters of public interest involving
them, such defamatory utterances do not automatically fall within the
ambit of constitutionally protected speech. If the utterances are false,
malicious or unrelated to a public officers performance of his duties,
the same may give rise to criminal and civil liability.

Privileged communication is a defense in libel because the


nature of the information is privileged so it is protected; NOT
intended to malign/mislead; general intention was to reform
Prescription: how interrupted? Filing with the fiscal
Venue: place of publication/residence
In this case, it was held that it was NOT privileged
communication.
Therefore, refer to this case in relation to libel, NOT evidence.

(e)
A public officer cannot be examined during his term of office or
afterwards, as to communications made to him in official confidence,
when the court finds that the public interest would suffer by the
disclosure. (21a)

Communications made to a public officer in confidence whose


disclosure shall make the public interest suffer

Requisites for the State Secrets rule:


1) Witness is a public officer
2) As to communications made to him in official confidence
3) The court finds that the public interest would suffer by the
disclosure

Page 32 of 87

5. Public officer couldnt be examined during and after his term on


matters he received on official confidence/capacity.
The court
determines if fit to be disclosed or not, not the public officer.
Requisites:
1) Public officer
2) Communications made to him in confidence
3) Court finds that the public interest would suffer by the
disclosure
6. Other Privileged Communication
a.

4) Where the money deposited or invested is the subject matter


of the litigation
The privilege applies only to bank deposits. As to other property being
held by a bank, bank personnel may be examined upon order of a
court. (RA 8791)
b.

RA 53 as amended by RA 1477
Sec. 1. Without prejudice to his liability under the civil and
criminal laws, the publisher, editor, columnist or duly accredited
reporter of any newspaper, magazine or periodical of general
circulation cannot be compelled to reveal the source of any newsreport or information appearing in said publication which was related in
confidence to such publisher, editor or reporter unless the court or a
House or committee of Congress finds that such revelation is
demanded by the security of the State.

RA 1405 (Bank Secrecy Law) - Secrecy of bank deposits;


CANNOT disclose details, how much you have; EXC: court
order, dereliction of a public officer, impeachment case (can
be disclosed)

RA 1405: Law on Secrecy of Bank Deposits


Sec. 2. All deposits of whatever nature with banks or banking institutions in the
Philippines including investments in bonds issued by the Government of the Philippines,
its political subdivisions and its instrumentalities, are hereby considered as of an
absolutely confidential nature and may not be examined, inquired or looked into by any
person, government official, bureau or office, except upon written permission of the
depositor, or in cases of impeachment, or upon order of a competent court in cases of
bribery or dereliction of duty of public officials, or in cases where the money deposited or
invested is the subject matter of the litigation.
GR: All deposits of whatever nature with banks or banking institutions
in the Philippines including investments in bonds issued by the
Government of the Philippines, its political subdivisions and its
instrumentalities, are hereby considered as of an absolutely
confidential nature and may not be examined, inquired or looked into
by any person, government official, bureau or office.

Requisites of newsmans privilege:


1) Publisher, editor, columnist or duly accredited reporter
2) Of any newspaper,
circulation

magazine

or

periodical

of

general

3) CANNOT be compelled to reveal


4) As to the source of any news report or information appearing
in said publication
5) Related in confidence
Exception: Court, a House or committee of Congress finds that such
revelation is demanded by the security of the State.
c.

Exceptions:
1) Written permission of the depositor

RA 1477 GR: Publisher, editor, duly accredited reporter


CANNOT reveal source of their data or info; EXC: Court,
House/Committee of Congress finds such revelation is
demanded by the security of the State.

RA 8791 (General Banking Act of 2000)

General Banking Act of 2000, RA 8791, 55.1 (b)

2) Impeachment

Sec. 55. Prohibited Transactions. -

3) Order of a competent court in cases of

55.1. No director, officer, employee, or agent of any bank

a) bribery

shall

b) dereliction of duty of public officials

(b) Without order of a court of competent jurisdiction,


disclose to any unauthorized person any information relative to the

Page 33 of 87

There is NO distinction between legitimate or illegitimate relations.


This is to preserve family cohesion and maintain harmony of the
family as a whole. This should be invoked, otherwise, it is waived.

funds or properties in the custody of the bank belonging to private


individuals, corporations, or any other entity: Provided, That with
respect to bank deposits, the provisions of existing laws shall
prevail;

This is NOT a prohibition to sue, but only that you are prevented from
testifying on these matters. (why/why NOT you can testify
testimonial evidence)

Elements of the exclusion


1) Director, officer, employee, or agent of any bank
2) Disclosure to unauthorized person
3) Information relative to the funds or properties in the custody
of the bank belonging to private individuals, corporations, or
any other entity
4) WithOUT a court order

This is a testimonial privilege, NOT a testimonial disqualification,


found in 22-24 of Rule 130 [careful not to be confused in the multiple
use of the word privilege]. Here, the witness is the holder of the
privilege and has the power to invoke or waive the privilege. The
relative against whom he is testifying cannot invoke nor waive the
privilege. However, this must be construed in the light of Art. 215 of
the Family Code.

This provision covers only property in the custody of the bank other
than bank deposits. For bank deposits, RA 1405 governs.
d.

e.

Qualified voter as to whom he voted for, unless a tool of fraud


(flying voter can be compelled because he is NOT qualified,
disenfranchisement results) to know who perpetrated the
fraud
Trade Secrets formulas; exception: to know who really owns
it (dispute); upon a court order
Trademark is NOT a trade secret (Property Law); need to
register to be protected
Patent applies to inventions
Copyright author of literature, publication, movie

Disclosure of info during census? Census is when somebody goes


to your house asking how many you are in the house, few more
details. You have to be careful of those persons.
B.P. 22 case. Pretend I sued Mr. Ong because his checks bounced.
Can prosecution call on/subpoena bank officer to testify on the
details of his accounts? Yes, you can because you need to
establish that the checks were drawn against insufficient funds.

Art. 215. No descendant shall be compelled, in a criminal case, to testify against


his parents and grandparents, except when such testimony is indispensable in a
crime against the descendant or by one parent against the other. (315a)
Hence, a descendant may be compelled to testify in a criminal case
where
i.

Descendant-witness himself is the victim, or

ii.

Descendant-witnesss parent commits a crime against the


descendant-witnesss other parent.

Note that an ascendant may not be compelled to testify even if it is a


crime by the descendant against the ascendant-witness. The
ascendant-witness may testify voluntarily though.
3. ADMISSIONS AND CONFESSIONS
Sec. 26. Admission of a party. The act, declaration or omission of a
party as to a relevant fact may be given in evidence against him. (22)
Admissions
Admissions that are admissible against a party:
1) Admissions against interest

2. TESTIMONIAL PRIVILEGE
Sec. 25.
Parental and filial privilege. No person may
be compelled to testify against his parents, other direct
ascendants, children or other direct descendants. (20a)

Page 34 of 87

2) Compromises
3) Exceptions to Res Inter Alios Acta
a.

Partners/Agents admissions

b.

Co-conspirators statements

c.

Admission by Privies

4) Admissions by silence

S26 is the general concept of an admission and it covers both judicial


and extra-judicial.

Admission vs. Confession


Admission
may be judicial or extrajudicial

GR: statement of a material and relevant fact of a person cannot


Confession
3rd party
may be in and out affect
of court
(judicial and
extrajudicial as well). In confessions, you should
R129, S4 is
admission
comply
with
requirements
ofa judicial
custodial
investigation. Examples of judicial confessions: at
2 Kinds
of Admission:
arraignment, plea for lesser
offense,
on the stand
confessed commission of the offense (withdrawal
Judicial
Extra-judicial
of previous plea of not guilty; otherwise
explain
Before whom made
why commit the offense)
1. Court (made during pre-trial,
1. Public officer charged with law
trial, deposition, pleadings,
enforcement/peace officer
request for admission)
(custodial investigation)
Self-serving statement is one made out of court. This is not allowed
comply with the constitution,
while being examined in court.
Miranda doctrine and RA 7438
(An Act Defining Certain Rights of
Admission vs. Declaration against Interest
Person Arrested, Detained or
Admission
Declaration against interest
under Custodial Investigation)
party sits on stand, admits material fact. Primary secondary evidence.
Person who declared is
* self-serving declarations are
2. Ordinary person
evidence
unavailable or dead
unsworn statements made by
NO need to comply; ordinary
declarant
out
of
court
and
which
person can testify as to the fact
The general rule is evidence as to extra-judicial acts, omissions, and
are favorable to his interests
that he narrated (an Independent
declarations (AODs) of a party is admissible.
Relevant Statement) but NOT as
to the narrations truthfulness as
These evidence can either be favorable or unfavorable to a party. Rule
this would be hearsay
130, 26 expressly allows evidence of AODs prejudicial to the AODer.
merely to establish the fact
that the statement was made/the
However, an objection may be raised as to the admissibility of AODs
tenor of such statement
favorable to the AODer on the grounds of that these are self-serving
AODs. The argument is Rule 130 26 only allows evidence of AODs
Confession: crime charged; guilt/liability
prejudicial to the AODer.
Admission: material or relevant fact
However, 26 is only a rule of admissibility. It allows evidence of AODs
Sec. 27. Offer of compromise not admissible. In civil cases, an offer of
prejudicial to the AODer, but does not prohibit evidence on AODs
compromise is not an admission of any liability, and is not admissible in
favorable to AODer. There being no express prohibition, any evidence
evidence against the offeror.
on AODs favorable to the AODer falls under the general rule that
In criminal cases, except those involving quasi-offenses (criminal
evidence not excluded by law or the Rules is admissible (Rule 128 3).
negligence) or those allowed by law to be compromised, an offer of
Any doubt as to such evidence refers to its weight or probative value
compromise by the accused may be received in evidence as an implied
and not to its admissibility.
admission of guilt.
A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty
Self-serving statements = hearsay? Declaration against interest is an
to lesser offense, is not admissible in evidence against the accused who
exception to the hearsay rule only applies if the declarant is deceased
made the plea or offer.
or unable to testify. Self-defeating statements cannot be excluded by
the hearsay rule because it is expressly admissible by the rules.

Page 35 of 87

An offer to pay or the payment of medical, hospital or other expenses


occasioned by an injury is not admissible in evidence as proof of civil or
criminal liability for the injury. (24a)
Offer of compromise (sec 27)
1) Offer of a party cannot be taken against him
2) In a criminal case, offer of compromise by the accused, can be
taken as admission of guilt; except quasi-offenses (reckless
offenses) and crimes specifically stated by law cannot to be
not subject to compromise. Assistance in hospitalization,
expenses is not to be taken as an admission of guilt or liability
so as not to restrain people to help victims while they are
suffering.

paragraph of 27 excludes in civil cases offers to pay only for


expenses occasioned by an injury, offers to pay for other expenses fall
under the general rule that an offer to compromise in civil cases is not
admissible. The exclusion in civil cases of offers to pay for expenses
occasioned by an injury is merely a superfluity. Even if the exclusion
was expressly applied to only criminal cases, an offer to pay for
expenses occasioned by an injury is in the nature of an offer to
compromise which is undoubtedly inadmissible in civil cases. The
bottomline is: an offer to pay for any expense in civil cases is
inadmissible.
Criminal case NOT subject of compromise but you could file:
1) Affidavit of desistance
2) Motion to dismiss for failure to prosecute dismissal with
prejudice

Compromise amicable settlement; NOT the full relief as there is a


need to adjust; to avoid waste of time, set an amount and negotiate
on terms

The offer of compromise in civil cases is not admissible only as


evidence of liability. If the offer of compromise is offered as evidence
on other matters (e.g. amount of liability), then the evidence is
admissible.

In civil cases, an offer of compromise is inadmissible regardless of the


cause of action. In criminal cases, the general rule is an offer of
compromise is admissible. However, it is inadmissible under the
following cases:

1) Quasi-offenses (criminal negligence)

2) Cases allowed by law to be compromised (e.g. BIR can


compromise tax cases)
3) Plea of guilty later withdrawn
4) Unaccepted offer to plead guilty to a lesser offense
5) Offer to pay or payment of expenses occasioned by an injury
[The offer is made only to avoid the consequences of litigation.]
Note that the inadmissible offer to pay refers only to expenses
occasioned by an injury. It does not include offers to pay other
expenses. Ergo, an offer to pay for damages to property is admissible
in criminal cases.
Further note that an offer to pay for expenses other than those
occasioned by an injury is inadmissible in civil cases. Though the 3rd

affidavit of desistance with fiscal (DOJ) is pabuya and is


NOT recorded with the fiscal
if in court, could you compromise? NO as there is an
information and the offended party is only a prosecuting
witness
offer from accused can be taken against him because the law
presumes that persons would not compromise for a wrong
deed/crime affidavit of desistance with fiscals consent and
then the fiscal examines its voluntariness and due execution
what if theres an affidavit of desistance but NO arraignment?
Arraign so jeopardy would attach (with prejudice); Rules would
NOT apply at the prosecutors level
Plea Bargaining Compromise

Civil case: In practice, may be compromised before judgment


becomes final and executory; consider satisfaction of judgment under
R39 and relase/quitclaim if you could settle before there is a judgment
Pending action: compromise?
Better file a joint motion to dismiss (with or without prejudice);
compromise is NOT disclosed to the court; closest R17
Dismissal and internal agreement is there a need to refile? Yes, if
without prejudice
Thus, it is best to have a Compromise Agreement approved by the
court because it becomes the judgment; if this is violated, move for
execution.

Page 36 of 87

Exception: Criminal Negligence (Quasi-offenses) can be compromised;


insurance adjuster

3) Made during the existence of the partnership, agency or joint


interest

Offer to pay/payment of medical, hospital, or other expenses so as


NOT to prevent people from giving assistance

4) Partnership, agency, or joint interest is shown by evidence


other than such act or declaration

Sec. 28. Admission by third party. The rights of a party cannot be


prejudiced by an act, declaration, or omission of another, except as
hereinafter provided. (25a)
The general rule is extra-judicial acts of a person other than a party
are inadmissible against such party.
The rights of a party cannot be prejudiced by the act, omission or
declaration of another, except joint interest.
Admission of a party admissible
However, the rules also provide for exceptions
Admission of a third party inadmissible except in the following
instances:

Agency agency must be established by facts other than the


admission.
How constituted?
Through a GPA (admi),
specific/ownership (SPA). Show authority. Act was made during the
existence of the agent-principal relationship. Same as in joint debtor,
interest, owner (they have commonality of interest in all)
Agent unity of interest because he affirms and confirms principals
acts; during agencys existence and within the scope of his authority
(otherwise, ultra vires; subject to ratification subsequent to the act)

1) Partners admissions
2) Agents admissions
3) Admissions by a joint debtor, joint owner or other person
jointly interested with the party.
4) Co-conspirators statements
5) Admission by privies
All the exceptions to res inter alios acta require that the relationship
be proven by evidence independent of the act or declaration sought to
be admitted.
Sec. 29. Admission by co-partner or agent. The act or declaration of a
partner or agent of the party within the scope of his authority and during
the existence of the partnership or agency, may be given in evidence
against such party after the partnership or agency is shown by evidence
other than such act or declaration. The same rule applies to the act or
declaration of a joint owner, joint debtor, or other person jointly interested
with the party. (26a)
Requisites for admission by co-partner or agent:
1) Act or declaration of a partner, agent, or person jointly
interested with the party
2) Within the scope of authority

partner or agent establish partnership by fact other than the


admission of the partner such as the certificate of registration of
partnership, document (agreement/contract stating such partnership
[ex. Bank loan]), or testimony (as to its dealings); partner acting
within scope of authority; and during the existence of the relationship.
Take note of those requisites as they more or less apply to the rest,
save for certain words.

Sec. 30. Admission by conspirator. The act or declaration of a


conspirator relating to the conspiracy and during its existence, may be
given in evidence against the co-conspirator after the conspiracy is shown
by evidence other than such act of declaration. (27)
This is an extra-judicial admission.
Requisites for co-conspirators statements:
1) Act or declaration of a conspirator
2) Relating to the conspiracy
3) Made during its existence
4) The conspiracy is shown by evidence other than such act of
declaration.
Conspiracy is NOT a state of mind; theres an overt act; theres unity
of purpose/object and acts in furtherance of the common object
GR: NOT punishable
Exc: causes provided by law (treason, sedition)
R119 S17 Discharge of the accused to be a state witness; 5 requisites:

Page 37 of 87

1) Party derives title to property from another


1) Absolute necessity for the testimony
2) NO other direct evidence available
3) Testimony can be substantially corroborated in its material
points
4) Accused does NOT appear to be the most guilty
5) Accused has NOT at any time been convicted of any offense
involving moral turpitude
If you ask Did you admit an extra-judicial confession made? at the
witness stand NOT admissible because what is sought is to establish
conspiracy itself; conspiracy should be established by acts in its
furtherance
if in court, prohibition does NOT apply; judicial admission of
conspiracy is admissible
Co-conspirators conspiracy established by facts other than the
admission; common object; testify on matters taken during the
conspiracy. Ex. Mr. Ong was with me when I robbed the bank not
allowed. Our relationship should as co-conspirators be established by
others/other circumstances. Like by persons who can testify on
certain circumstances: Mr. Ong purchased a gun from Mr. Sandovals
gun shop Mr. Sandoval can testify that at a certain point Mr. Ong
bought a gun. Ms. Aquitania can testify against Mr. Ong and myself
that she went to my condo unit at this particular time of the day. Maid
can testify she heard exchange of info bet us. What is that Common
object? Crime committed. Lets say we robbed Equitable Bank Paseo
de Roxas. Can I testify on the robbery that we made on Equitable
Ayala Avenue two months ago? Under this provision, no because it is
not part of common object but yes, under section 34: similar acts as
evidence to establish we have scheme, knowledge, intent, pattern.
A previous act cannot be presented to convict them of a different
offense, such a robbery of Equitable Paseo. Evidence can be presented
to establish we have scheme, knowledge, intent, or pattern, but not
for purposes of convicting us of a crime for which we are charged for
this particular time (Equitable Ayala). Some of the circumstances
surrounding the conspiracy may include buying, disposing of the fruit
of the crime, and our meetings.

2) Act, declaration, or omission of the transferor


3) Made while holding the title
4) In relation to the property
There is successional interest.
e.g. seller told buyer, while holding title, that usufruct exists [act,
declaration or omission affects the buyer so buyer presents sellers
admissions]
This is a situation where Mr. Ong derived title from me. Thus, my
acts/declarations have significance only as to the title as to the time I
am holding the property, not after because at that moment, I was still
in possession of the property and has title over it. After I disposed of
the property, my declarations can no longer affect the said property.
Exceptions:
1) Declaration made in the presence of the transferee and he
acquiesce to the statement
2) Continuing conspiracy to defraud as between the vendor and
the vendee
3) Prima facie case of fraud established such that the property
remains to be with the possession of the seller or the
transferor even after the sale was effected
Sec. 32. Admission by silence. An act or declaration made in the
presence and within the hearing or observation of a party who does or
says nothing when the act or declaration is such as naturally to call for
action or comment if not true, and when proper and possible for him to do
so, may be given in evidence against him. (23a)
Requisites for admission by silence:
1) Act or declaration is made in the presence and within the
hearing or observation of a party
2) Party does or says nothing
3) Act or declaration naturally calls for action or comment if not
true

Sec. 31. Admission by privies. Where one derives title to property from
another, the act, declaration, or omission of the latter, while holding the
title, in relation to the property, is evidence against the former. (28)
Requisites for admission by privies:

4) Such action or comment is proper and possible on the part of


the party.
action or comment when proper
presence within hearing/observation

Page 38 of 87

prejudicial to recipient
Your character can be questioned and reputation doubted/affected.
e.g. big conference room and X used a microphone
Loose application: Erap failed to comment/act as to those statements
made during the hype of the impeachment NOT in his presence
Admission by silence is another rule which is not properly applied. It
is very important to take note that in admission by silence that a
statement was made in your presence or within your hearing and
understanding such that you understand the statement or declaration.
And while hearing the statement or declaration, it naturally calls for a
comment or answer if not true. But you never gave a comment. In
addition, take note that your giving a comment or answer if not true is
under the condition that a comment is proper under the
circumstances.
Lets say, we are in this auditorium and I made a statement as against
one of your classmates. Considering of course, as a matter of respect
to the professor, even if it was a statement against that person, it
might not be proper for him to react at the very moment in the
presence of the classmates. So it does not necessarily mean that you
have to comment immediately if the same is not true.
The
circumstances under which such statement had been made should be
that it is proper for you under the circumstances to make a comment
or an answer. And because of the silence, there is some inference as
to the fact being referred to. It is that silence that leads to some
inference.
Sec. 33. Confession. The declaration of an accused acknowledging his
guilt of the offense charged, or of any offense necessarily included
therein, may be given in evidence against him. (29a)

Before whom made


1. Court made during
1. Private Individual NO need to
arraignment, trial
comply; Independent Relevant
e.g. change of plea during
Evidence
questioning terminate cross
examination unless there shall be
a need for proving mitigating
circumstance
clerk reads information; judge
renders sentence
2. Police/Public Officer comply
with the requirements (custodial
investigation)
e.g. accused convicted of rape in court under the sweetheart theory
NOT admission by silence, but there is failure to refute
4. PREVIOUS CONDUCT AS EVIDENCE
Sec. 34. Similar acts as evidence. Evidence that one did or did not do a
certain thing at one time is not admissible to prove that he did or did not
do the same or similar thing at another time; but it may be received to
prove a specific intent or knowledge; identity, plan, system, scheme, habit,
custom or usage, and the like. (48a)
GR: Evidence that one did or did not do a certain thing at one time is
not admissible to prove that he did or did not do the same or a similar
thing at another time.
Exceptions: It may be received to prove a specific

Confession is an admission of guilt.


This rule is applicable only in criminal cases.
A confession need not be in writing in order to be admissible in
evidence.
If it is in writing, it is NOT required to be under oath.

2) knowledge
3) identity
4) plan
5) system
6) scheme

However, if it is not in writing, the prosecution may find difficulty in


proving it.

7) habit
8) custom or

2 Kinds of Confession:
Judicial

1) intent

9) usage, and
Extra-judicial

10) the like.

Page 39 of 87

due process (you can only be convicted of offense charged or that


necessarily included therein)
evidence admissible to establish modus operandi but this is only to
show manner of committing offense (pattern) and NOT to convict

What is an accepted offer? That there is an offer in writing to pay


money or delivery of written instrument or specific thing. If the same
was rejected what is the effect? The effect is production or tender of
money, property or instrument.

This is available to both the accused and prosecution. [did/did NOT


do]

5. TESTIMONIAL KNOWLEDGE

e.g. factory workers time card to show that it was impossible for him
to be at the crime scene
Similar Acts as Evidence. Just take note that the fact that you did or
did not do a thing or a particular act cannot be proven by the fact
that you did or did not do another thing at some other time. Lets say
a robbery was committed in Equitable-Paseo de Roxas. It does not
necessarily mean that in the constitution of the said robbery, you can
present the robbery committed in Ayala although to establish
particular intent or knowledge because there is some sort of modus
operandi. Take note that the law says that although it would not be
used to establish the existence of the thing or a fact, it would be used
to establish specific intent, knowledge, scheme or plan.
Other
examples. Lets say that my caha de jero was opened and previously
it was established that Mr. Ong was trying to open my vault.
Therefore it will establish some knowledge that he knows the
combination of the vault. Another example is the Rizal Day Bombing.
There were items or fragment taken at the scene of the crime. In the
QC house of Mr. Ong, it was discovered that he was keeping fragments
or bombs of similar nature. It would show some intent on his part.
Another example is Im uttering or using a counterfeit P200 bill. I am
being charged with using a counterfeit bill. The fact that I have been
uttering that to Fornier, Aquitania or Sandoval at a previous time may
not be enough to convict me on my uttering to Ong but those
particular acts could be established to show that there is a pattern as
to how I intend to commit such _______. Similar acts are used as some
sort of a guide to establish intent, knowledge, negligence, plan or
scheme.

Sec. 36. Testimony generally confined to personal knowledge; hearsay


excluded. A witness can testify only to those facts which he knows of
his personal knowledge; that is, which are derived from his own
perception, except as otherwise provided in these rules. (30a)
Personal knowledge is derived from witness perception; perceived
thru senses he actually witnessed it within the sphere of his
perception.
If you are to put somebody on the witness stand, note 3 requirements:
1.
competent (sec. 20)
2.
perceiving and perceiving can make known
perception to another
3.
personal knowledge experienced, saw, heard, felt
the happening of event, thing or circumstance.
Independent Relevant Statement in an sense, an admission;
personal knowledge
6. EXCEPTIONS TO THE HEARSAY RULE
Exceptions to the hearsay rule:

Sec. 35. Unaccepted offer. An offer in writing to pay a particular sum of


money or to deliver a written instrument or specific personal property is, if
rejected without valid cause, equivalent to the actual production and
tender of the money, instrument, or property. (49a)
This involves personal property.
Tender NO delay/violation
e.g. R67 tender of just compensation
Consign!

1)
2)
3)
4)
5)
6)
7)
8)
9)
10)
11)
12)
13)
14)

Waiver
Independently relevant evidence
Dying declaration
Declaration against interest
Act or declaration about pedigree
Family reputation or tradition regarding pedigree
Common reputation
Part of the res gestae
Verbal acts
Entries in the course of business
Entries in official records
Commercial lists and the like
Learned treatises
Testimony or deposition at a former proceeding

All such exceptions are NOT absolute; still subject to cross


examination; only testimonies so they may NOT be credible.

Page 40 of 87

Sec. 37. Dying declaration. The declaration of a dying person, made


under the consciousness of an impending death, may be received in any
case wherein his death is the subject of inquiry, as evidence of the cause
and surrounding circumstances of such death. (31a)
Requisites for admissibility of a dying declaration:
1)
2)
3)
4)

Declaration of a dying person


Made under the consciousness of an impending death
Death is the subject of inquiry
As evidence of the cause and surrounding circumstances of
such death [i.e. seriousness of the wound, nature of the
wound, victims condition (breathing, talking, cold body,
numbness, movement)]

death. S unable to prepare his will so told Ong to take care of his
family, take care of distribution of his property. NOT dying
declaration. Is this limited to criminal cases for homicide, murder or
parricide? P vs Norodin says yes but codal provision does not limit this
to criminal cases. It applies to any case wherein the declarants death
is the subject of inquiry. Another thing to note is that before you
present the dying declaration, counsel should establish the
preliminary facts and circumstances. This is practically laying the
basis for the presentation of a dying declaration. Circumstances,
time, place, situation, name of attacker.
Note the following cases:
P vs Bartolo (Sept. 27, 2003) reiterates the
requirement that had the victim survived, he would
have been competent to testify in court as there is no
evidence to the contrary.

e.g. cut at the throat bloodied; cannot speak so it is impossible!


(object and physical evidence)

P vs. Norodin a dying declaration made in


the form of answers to questions proved by the
person to whom the declaration is made is admissible
in court and may be proved by the testimony of the
witness who heard the same or to whom it was made.

This is a question of fact and may be refuted thru cross examination.


This applies to both civil (e.g. R39 S47 (a) probate of a will/granting of
letters of administration only prima facie evidence of the death of the
testator/intestate) and criminal cases.

P vs. Boller (Apr. 3, 2002) a dying declaration


may be oral or written. In oral, the witness who heard
it may testify thereto w/o the necessity of reproducing
the word of the decedent if he is able to give the
substance thereof. It is not important that he has to
use the exact words of the decedent. It is enough that
the substance thereof was given.

Both declarant and recipient must be competent to testify. If declarant


does not die, recipient may testify on res gestae.
Recipient testifies; NOT possible if unconscious, lingering illness (i.e. 3
months to live)
Dying declaration person who is the recipient of declaration will
testify. So if A is the dying man, B was the recipient of info, B testified.
If A survives, A could testify and this would fall under res gestae. So if
the dying person eventually survives, he can testify on res gestae.
Who should be competent? Both dying man and recipient must be
competent. There are some who say that only dying man must be
competent. Lets analyze. Dying man who knew of facts and
circumstances surrounding his death should have actually perceived
and knew who assaulted or killed him. So he should be able to
perceive and perceiving, could make known his perception to whom?
To another. But the fact is hes a dying man so he only related info to
B but B should also be competent to what? On the fact that he
perceived the declaration of A and that he could make this perception
known in court. So both of them should be competent. Note also that
the declaration should be limited to the facts and circumstances
regarding the death of the person. Lets say that S is in the brink of

An unsigned dying declaration may be used as


a memorandum by the witness who took it down. (in
relation to R 132)
Does it mean that a person would have to use
words to the effect that he knew he was dying? (eg. I
know that Im dying or Mamamatay na ako) NO!
Circumstances that will lead to such conclusion that
he is dying would be enough and the declaration
made in connection thereto will or can be used as a
dying declaration.

Independent Relevant Statement NOT fall under exception but still


allowed if presented in court.

Page 41 of 87

2 Kinds:
a. Pertaining to fact in issue
b. Pertaining to circumstances in connection to fact in
issue
Example: I talked to F and told him that I robbed a bank.
Can F testify as to fact that I narrated to him my having
robbed a bank? YES. But as to the truth or falsity of WON
I indeed robbed a bank is a matter that has to be
established by independent evidence. But the fact of my
sharing the info, the fact of my ____ declaration to F would
be an independent relevant statement.
Dying declaration by the dying man himself let us say that he can
no longer speak, but he wrote something. Do you need to present the
original? Yes, because the contents of which are the subject of the
inquiry. However, if, let us say I am the dying man and Mr. Ong was
taking a memorandum of my statement, based on what I am declaring
and narrating he was making and preparing a memorandum in which
case that memorandum could be used as his memory aid if he sits on
the witness stand in the nature of present recollection revival.
Sec. 38. Declaration against interest. The declaration made by a person
deceased, or unable to testify, against the interest of the declarant, if the
fact is asserted in the declaration was at the time it was made so far
contrary to declarant's own interest, that a reasonable man in his position
would not have made the declaration unless he believed it to be true, may
be received in evidence against himself or his successors in interest and
against third persons. (32a)
Requirements for hearsay testimony on declaration against interest:
1) Declaration made by a person deceased, or unable to testify
2) Against the interest of the declarant (contrary/prejudicial)
3) Fact asserted in the declaration was at the time it was made
so far contrary to declarant's own interest, that a reasonable
man in his position would not have made the declaration
unless he believed it to be true
4) As evidence against himself or his successors in interest and
against third persons
cf Rule 130 Sec. 31
Sec. 31. Admission by privies. Where one derives title to property from
another, the act, declaration, or omission of the latter, while holding the title,
in relation to the property, is evidence against the former. (211)

Admission by privies
One of 3 exceptions to res inter
alios acta
Evidence against the successor
in interest of the admitter
Admitter need not be dead or
unable to testify
Relates to title to property
Admission need not be against
the admitters interest

Declaration against interest


Exception to hearsay
Evidence against even the
declarant, his successor in
interest, or 3rd persons
Declarant is dead or unable to
testify
Relates to any interest
Declaration must be against the
interest of the declarant

Declaration against Interest. Who would testify? Another person.


NOT the person who made such declaration against interest. It is just
that the person who made such declaration against interest is either
dead or unable to testify. So it is the RECIPIENT who would testify as
to such declaration.
This is against human nature; could be considered by the court.
This is secondary evidence, unlike an admission which is primary
because declarant is dead or unable to testify; theres a certain
degree of reliability
The primary evidence is the witness who testifies.
But if declarant is still alive, his declaration may be used to impeach
him under R132 S13. (inconsistent with his interest)
Admissions may be express or implied (judicial under R8 S11 wherein
allegations NOT specifically denied are deemed admitted; or extrajudicial under S32 admission by silence)
Admission vs. Declaration against Interest. An admission is not
necessarily a declaration against interest but a declaration against
interest is always against ones interest. In admission, the person who
testifies is the person making such an admission; therefore, it is a
primary evidence. In a declaration against interest, the person who
made the declaration is deceased or unable to testify; therefore,
another person or a recipient will have to testify. Admissions used
only against admitter and those who have legal interest arising
therefrom. In declaration against interest, it could be used even as
against 3rd persons.
Self-serving declaration vs. Declaration against Interest. Self-serving
declaration is made out-of-court and is generally not admissible. To
make it admissible is to promote perjury and fraud.
While in
declaration against interest the person is dead or unable to testify and
it is admissible in its entirety; including the points not against interest.

Page 42 of 87

Anything that was stated that is in connection with the declaration


against interest is likewise admissible.
Note 3

a)
b)
c)
d)
e)
f)
g)
h)

things on declaration against interest:


Declarant is dead or unable to testify
Declaration must on a fact cognizable by the declarant
No motive to falsify.
If it is established later on that there is a motive to falsify, the
declaration against interest cannot be admitted.

These exceptions to the hearsay rule are not absolute and they could
be contested and objected to.

Act or declaration about pedigree; declarant is related


birth/marriage to the person whose pedigree is in question
-

The person being presented to narrate a declaration of a dying man or


to narrate the declaration of person who admitted an interest against
himself could be subjected to cross-examination.
Such cross-examination may touch on these matters:

relationship
family genealogy
birth
marriage
death
dates when and the places where these facts occurred
names of the relatives
facts of family history intimately connected with
pedigree.

by

family genealogy (family history, family tree); NOT limited to


oral, includes written
NO need to establish relationship; witness is merely a
recipient

e.g. Declarant relays information to Witness relating to a Person


whose pedigree is in question

What was your condition at the time you met the person?
Was he able to speak or could he hardly speak?
How did he know that he was dying?
Was he surely dying at that point in time?

involves 3 persons; D as pedigrees source is in a sense,


making an admission

Sec. 39. Act or declaration about pedigree. The act or declaration of a


person deceased, or unable to testify, in respect to the pedigree of another
person related to him by birth or marriage, may be received in evidence
where it occurred before the controversy, and the relationship between the
two persons is shown by evidence other than such act or declaration. The
word "pedigree" includes relationship, family genealogy, birth, marriage,
death, the dates when and the places where these fast occurred, and the
names of the relatives. It embraces also facts of family history intimately
connected with pedigree. (33a)
Requisites for admissibility of hearsay evidence as to pedigree:
1) Act or declaration of a person deceased, or unable to testify
2) In respect to the pedigree of another person
3) Related to him by birth or marriage

Pedigree is the history of family descent which is transmitted from a


generation to another generation by oral or written declaration and by
tradition.
It includes: relationship, family, genealogy, birth, marriage, death and
dates and places where these facts occurred.
Witness should be competent on his own to testify on the relationship.
The declarants relationship to his family must be legitimate, and NOT
is relationship to X (person whose pedigree is in question).
It is declarants claimed family which should be genuine because
otherwise, the relationship would be questionable/spurious.

4) Where it occurred before the controversy

But what is to be established need NOT be genuine (declarants


relationship with X).

5) Relationship between the 2 persons is shown by evidence


other than such act or declaration.

This should be before controversy, otherwise, it may not be reliable as


there may be reason to falsify.

"Pedigree" includes:

Page 43 of 87

Note:

relationship cannot be established by other evidence (birth


certificate, public instrument, private document) only if no
other superior evidence available

reason/motive to falsify); spontaneous declaration (i.e. reputation:


blacksheep, playboy, breadwinner)
NO declarant; witness received (passed on from one
generation to another)

Person is dead or unable to testify


Pedigree of another person, not the declarant, is in question
Recipient testifies
Witness need not be a relative
Declarant should be related, by birth or marriage, to the
person whose pedigree is in issue and the relationship does
not need to be legitimate because the law makes no
distinction
Declarants relationship to the family to which he claims to be
related to should be legitimate in character

Family pictures
Family Bibles common in Royalties who have family historians; far
back to see the line and becomes relevant in cases of succession to
the throne; not so much in the Philippines; only family members are
placed in the bible but now, this is no longer true; now unreliable

Sec. 40. Family reputation or tradition regarding pedigree. The


reputation or tradition existing in a family previous to the controversy, in
respect to the pedigree of any one of its members, may be received in
evidence if the witness testifying thereon be also a member of the family,
either by consanguinity or affinity. Entries in family bibles or other family
books or charts, engravings on rings, family portraits and the like, may be
received as evidence of pedigree. (34a)
Requisites for admissibility of hearsay evidence as to family reputation
or tradition regarding pedigree:
1) Reputation or tradition existing in a family
2) Previous to the controversy
3) In respect to the pedigree of any one of its members
4) Witness testifying thereon be also a member of the family,
either by consanguinity or affinity
Reputation is others perception of who you are, which may be
inaccurate.

Entries in family bibles or other family books or charts, engravings on


rings, family portraits and the like, may be received as evidence of
pedigree.
In family tradition, the declarant must be dead or unable to testify. In
family reputation or tradition, there is not even a declarant to speak
of, just a witness who was aware of an exiting family reputation or
tradition.
Family reputation or tradition regarding pedigree. Do we have here a
recipient of a declaration or an act? NO. What is reputation? It is how
other people perceive us to be. It is how the community perceives us
to be. Reputation, as defined, is declaration and statements passed
down from generation to generation coming from deceased relatives
though it cannot be identified as to who they tell; and this could be
regarded as family history. What is the reason for this? Necessity and
trustworthiness.
Reputation is only as against ones ancestors who
because of declarations and statements that has been
generation to generation. Examples: yung lolo
heneral yan dito, yung lolo ko provincial auditor
family reputation or tradition regarding pedigree.
Note:

It is reliable in family reputation; passed on from generation to


generation.
oral transmission of information; NO need to identify the
source; family history is created
why not include non-family members? Filipinos are clannish;
there is a certain level of indifference

Witness who is a family member testifies so it is reliable. (i.e.


tradition: reunions, confirmation); prior to the controversy (NO

Page 44 of 87

only we know
passed on from
ko gobernador
yon. That is

There should be a controversy with respect to the pedigree of


a member of the family so what is in issue here is the
pedigree of a member of the family.
A member of the same family testifies because only members
of the same family would know the acts or declarations of
their ancestors although they cannot really pinpoint as to who
among their ancestors made such acts or declaration.
Reputation or tradition of the person concerned existed before
the controversy so theres no room to fabricate, no bias and
interest (i.e. If Im mad at O, theres already bias and interest.

Chances are I might not be telling the truth; theres room to


fabricate.)
Sec. 41. Common reputation. Common reputation existing previous to
the controversy, respecting facts of public or general interest more than
thirty years old, or respecting marriage or moral character, may be given
in evidence. Monuments and inscriptions in public places may be received
as evidence of common reputation. (35)

o
Note:

Requisites for admissibility of hearsay evidence as to Common


reputation:

1) Common reputation
2) Existing previous to the controversy
3) Respecting either
a.

facts of public or general interest more than 30 years


old, or

b.

marriage or

c.

moral character

Monuments and inscriptions in public places may be received as


evidence of common reputation.
1945 Philippine history as to independence is subject to judicial notice
and NOT common reputation
e.g.
Student activities went to the mountains because they were
disgruntled, but 1st Quarter Storm is history!
Farmers joined Hukbalahap
Fact: Josons of Nueva Ecija (lolo was a guerilla)
Culture of the Tausugs (cooking, weapons, weaving, dress)
Legal marriage NOT required; only a perception
NO requirement of 30 years; only for purposes of testimony
NOT conclusive; NOT including 5 years under the Family Code
as to the absence of legal impediment to marry NO need to
have a marriage license
NO declarant
Moral character social norms; NOT accurate
Character person himself; reliable because it is difficult to obtain
evidence; NO document; trustworthy because the public is presumed
to be conversant
o Spontaneous information

From class of persons within that circle

Facts must be of public or general interest for more than 30


years
Common reputation must be ancient
Reputation has been formed among persons who have some
sort of information and could intelligently make an opinion of
such information
Common reputation exists previous to the controversy the
law understands that theres room to fabricate so common
reputation should have existed prior to the controversy.

Common Reputation. What are those which will fall under common
reputation?
Public or general interest for more than 30 years.
Documents existing for more than 30 years which have been
unblemished by alterations and beyond suspicion and is in possession
of the person who should be in custody of the same are called ancient
documents. Facts, common knowledge of more than 30 years fall
under common reputation. It will also include marriage and related
facts and individual moral character.
The reason for this is that it is very difficult to obtain evidence. What
is the trustworthiness of this evidence? Most of the time, the public is
conversant of what the true facts are. Note that if its fact of public or
common knowledge, the law requires more than 30 years so that it
will have a certain level of reliability. Otherwise, its famous as
rumor, chismis, haka-haka. But because it has been existing for
more than 30 years, it has reached a certain level of reliability.
In these cases, persons who made declaration is identifiable:
1)
2)
3)
4)
5)
6)

Dying declaration with declarant


Declaration against interest with declarant
Pedigree with declarant
Family Reputation with NO declarant
Common Reputation with NO declarant
Res gestae with declarant

Sec. 42. Part of res gestae. Statements made by a person while a


starting occurrence is taking place or immediately prior or subsequent
thereto with respect to the circumstances thereof, may be given in
evidence as part of res gestae. So, also, statements accompanying an
equivocal act material to the issue, and giving it a legal significance, may
be received as part of the res gestae. (36a)
Requisites for admissibility of hearsay evidence as to res gestae

Page 45 of 87

1) Statements made by a person either


a.

While a startling occurrence is taking place or

b.

Immediately prior or

c.

Immediately subsequent thereto

legitimate successor. That is an equivocal act of me building a


fence. But if its accompanied by a statement: Im building
this fence because I purchased this from F. Is that clear?
YES. The equivocal act is coupled with a statement.

2) With respect to the circumstances thereof


Requisites for admissibility of hearsay evidence as to verbal acts:
1) Statements accompanying an equivocal act
2) Material to the issue

If O heard you say that youre building a fence, isnt that a


matter of personal knowledge of O? It is but it falls under res gestae.
Its also possible that A saw me build the fence and O heard me say
the reason why I built the fence. O heard a statement which amplifies
my act but as to A, its only an act. These matters are concerns when
youre handling actual trial. For now, whats important is that it is the
statement which gives legal significance to the equivocal act.
The 1st kind of res gestae refers to spontaneity while the 2 nd kind
refers to contemporaneous statements with the act.

3) Giving it a legal significance


2 Kinds of Res Gestae:

Res gestae is NOT sufficient to convict; only in support; reliable


because NO time to concoct and NO opportunity to fabricate

a. Statements made from a startling occurrence while it is


taking place, immediately prior or subsequent thereto
reason: spontaneous, no room to falsify/fabricate. If theres
already a gap, a space for you to think, consider or elaborate
certain facts, then theres room to fabricate. Example: I
throw this is the middle of the room. S shouted _______.
Thats an immediate and spontaneous reaction. Who will
testify? Is it O who saw me throw this in the middle of the
room? If O testifies, hell testify on his personal knowledge
NOT res gestae. Because what is to be testified on here is the
statement which was initiated or generated by that startling
occurrence. Who will testify then? If I threw this away, S
reacted. Lets say A was not looking at me and she heard
________, will she testify on the immediate reaction of S? YES.
Thats res gestae. It is not that S and O saw me threw the
chair. It is the statement which was the reaction to that
startling occurrence.
b. Verbal acts What is the evidence here?
It is the
statements accompanying an equivocal act. If you see me
with this hand, I could give as many meanings and
interpretation. Thats why its equivocal; its not clear. If its
unequivocal, it does not fall under this. What amplified the
equivocal act? The statement amplifies or gives significance
to the equivocal act. W/o the statement, this equivocal act is
useless. It is the statement that gives significance to the
equivocal act that has to be submitted in court. Lets say you
see me building a fence around my house. This will give you a
number of meanings:
that I am a tenant or owner or

1) Person who heard the statement which is the result of startling


occurrence testifies testified on by another individual;
statement need not be so close to the event; NO hard and fast
rule in terms of time; a question of fact (how he narrated:
before, during or after)
2) Spontaneous statements contemporaneous with an equivocal
act statement is material to the issue, a relevant matter; it
is the act which gives it legal significance
e.g. symbolic act of thumbs down made by A and B heard As
statement while C saw such act but did not hear the
statement
B can testify on personal knowledge as to what he
heard; C can testify on res gestae as to the equivocal act
Bs testimony amplifies
act is testified on by another individual
Res Gestae: Types

Page 46 of 87

1) Startling occurrence
Triggers the statements made as a reaction
o While taking place
o Immediately prior
o Subsequent (lapse of time depends on the
circumstances)
You do NOT testify on the occurrence but on statements
heard

X startling occurrence; Y witness (personal knowledge);


Z X relayed it to him when X arrived home (res gestae)
Independent Relevant Evidence need arise from a startling
occurrence
Witness testifies on the statement which is NOT confined
to those made by X, the person who experienced the
startling occurrence
Subject to judges discretion if cumulative evidence
Spontaneous

2) Equivocal act
Given legal significance by statements which are testified
on
e.g. clenched fist
Person who sees act and does not hear testifies (personal
knowledge)
If he did not see, but heard (res gestae)
If sees and hears (personal knowledge)
Scenarios:
a) X and Y only Y heard
b) X killed, Y saw killing, Z naku patay!
Y has personal knowledge; if Y did not see,
res gestae
Sec. 43. Entries in the course of business. Entries made at, or near the
time of transactions to which they refer, by a person deceased, or unable
to testify, who was in a position to know the facts therein stated, may be
received as prima facie evidence, if such person made the entries in his
professional capacity or in the performance of duty and in the ordinary or
regular course of business or duty. (37a)
Requisites for admissibility of hearsay evidence as to Entries in the
course of business:
1) Entries made at, or near the time of the transactions to which
they refer
2) By a person deceased, or unable to testify
3) Who was in a position to know the facts therein stated
4) If such person made the entries in his professional capacity or
in the performance of duty and in the ordinary or regular
course of business or duty

the entry need not be deceased or unable to testify (Rule 130, Sec.
44). Both official and business records are only prima facie evidence.
If the person making the entry is still alive, use the record to refresh
his memory. (Rule 132, Sec. 16)
We first heard of this in best evidence. Because these are made at or
near the time of transaction, the entries, the data, the presumption is
theres no room to fabricate because these were made at the regular
course of business. But could it be refuted? Could it be established
that it is not accurate? YES. Thats why those who falsify entries
appearing in these documents would normally falsify/tamper/alter as
they follow the regular course of business because theres such
presumption.
The entrant must have been in the position to know the facts. Is the
person who made such entries available to testify? NO. The entrant
must either be dead or unable to testify. Who will testify then?
Another person who has knowledge of how the entries were made
NOT the person who made entries.
Entries:
In issue; made at/near the time of the transaction so
reliable; R130 S4 (original: documentary) NO question as to
who made the entry; the document cannot speak for itself;
must be relevant, not excluded and authenticated
Prima facie evidence: made the entries in his professional
capacity or in the performance of duty and in the ordinary or
regular course of business
Hearsay because the person in a position to know is deceased
or unable to testify
Reason: necessity and trustworthiness
Who testifies? Competent witness who may be the supervisor
or his subordinate
Still needs authentication R130 S19 (classes of documents)
Sec. 44. Entries in official records. Entries in official records made in
the performance of his duty by a public officer of the Philippines, or by a
person in the performance of a duty specially enjoined by law, are prima
facie evidence of the facts therein stated. (38)
Requisites for admissibility of hearsay evidence as to Entries in official
records:

Note that in business records, the person making the entry must be
deceased or unable to testify. In official records, the person making

Page 47 of 87

1) Made in the performance of his duty


2) By either

a.

a public officer of the Philippines, or

b.

by a person in the performance of a duty specially


enjoined by law

compilation is published for use by persons engaged in that occupation


and is generally used and relied upon by them therein. (39)
Requisites for admissibility of hearsay evidence as to Commercial lists

Certified true copy suffices


Another person who did not prepare the
document testifies
But public officer may be ordered to testify
upon order of court

1) Statements of matters of interest


2) To persons engaged in an occupation
3) Contained in a list, register, periodical, or other published
compilation
4) As tending to prove the truth of any relevant matter so stated

Note that in official records, the person making the entry need not be
deceased or unable to testify, but he must be a public officer or a
person in the performance of a duty specially enjoined by law. In
business records, the person making the entry must be deceased or
unable to testify. Both official and business records are only prima
facie evidence.
The entries must be made in professional capacity or in the
performance of a duty. If those are financial entries, I must be an
accountant or I may not be an accountant but because of a duty
mandated upon my by my employer, I have to make an entry in the
regular course of business, then it will fall under this exception.
There are two types here:
1) Entries made by public officer in the performance of his duty
2) Entries made by a public officer in the performance of his duty
as enjoined by law
Note:

Made by a public officer or a person enjoined by law


In the performance of his duty or a duty enjoined by law
Public officer or the person enjoined by law has sufficient
knowledge of the facts acquired by him personally or through
his official information

5) Compilation is
a.

Published for use


occupation and

by

persons

engaged

in

b.

Generally used and relied upon by them therein

that

e.g. NEDA reports, part of the newspaper which reports the prices of
shares
In commercial lists, there are persons who are engaged in an
occupation and that there is a list, register or other published
compilation.
What does the published compilation tend to establish? Truth as to a
relevant matter stated in the publication.
What we want to prove is the fact or the matter stated in that
publication or the list and for that compilation or publication to be
reliable, there are two important requirements: usage and reliance.
If it is used but not generally relied upon by the persons engaged in
that occupation then it is useless.
It must be a compilation which has attained certain level of reliability.
e.g.

When did we first hear this? Also in best evidence wherein you could
submit a certified true copy of private documents in the custody of a
public officer or a public office
Sec. 45. Commercial lists and the like. Evidence of statements of
matters of interest to persons engaged in an occupation contained in a
list, register, periodical, or other published compilation is admissible as
tending to prove the truth of any relevant matter so stated if that

list of lawyers or the lex mundi


listing of firms or organization
Thus, the use and reliance of the compilation is important and that
which makes it an exception on the hearsay rule.
Why? Its really hearsay, you dont know who prepared it and how
they collated the matter of information. It is only because it is used

Page 48 of 87

by persons engaged in that occupation and relied upon that is why it


falls under the exception.

Witness did not prepare


Used and relied upon by persons in such occupation
Member of the occupation testifies

Again, this is hearsay! Why? There is a person who


material the person will appear in court (no, he will
in court) so what will be presented to prove a matter
the treaties would be.. what are the modes by which
the fact appearing on the treaties:
1.

By judicial notice you dont really need to do anything if it


is mandatory of course, the judge will take mandatory judicial
notice. If it is discretionary, it would depend upon his
discretion. But if its other matters, which you want the court to
take judicial notice of, you have to call the courts attention
after notice and hearing of such matter.

2.

There should be an expert in the same subject. Will he testify


on the contents of the treaty? No. he will testify as to the
expertise of the person who prepared the material. All he
needs to establish is that the person is an expert. Once it is
established, the matter stated in the treaties will be
admissible. Is it by ordinary witness? No. by an expert. If you
cannot make it by judicial notice, make it by an expert.

DECLARATIONS:
Dying declaration
Declaration against interest
Pedigree
Res gestae
REPUTATIONS:
Family Reputation
Common Reputation
ENTRIES:
Regular course of business
Entries of pubic officer
Sec. 46. Learned treatises. 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,
or a witness expert in the subject testifies, that the writer of the statement
in the treatise, periodical or pamphlet is recognized in his profession or
calling as expert in the subject. (40a)

This provision is useful to prove an unwritten law. E.g. learned


treatises on unwritten law which the court has taken judicial notice:
Manresa, Sanchez-Roman. e.g. of writers of treatises acknowledged as
experts: Corpus juris, Corpus juris secundum, LRA

Requisites for admissibility of hearsay evidence as to Learned


treatises (used to prove unwritten foreign law)

1) Published treatise, periodical or pamphlet


2) On a subject of history, law, science or art

court takes judicial notice, or

b.

witness expert in the subject testifies

Courts can take judicial notice of treatise of lawyers because


these are secondary sources
Authors would not testify and general recognition of authors
as experts makes it reliable
How presented? Can be sourced out (judicial notice) or an
expert in the field of the author testifies

If it is a written law that is sought to be proven, cf Rule 132, Sec. 19

3) Either
a.

prepared the
never appear
appearing on
you establish

Sec. 19. Classes of documents. For the purpose of their presentation in


evidence, documents are either public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the sovereign
authority, official bodies and tribunals, and public officers, whether of the
Philippines, or of a foreign country;

4) Writer of the statement in the treatise, periodical or pamphlet


is recognized in his profession or calling as expert in the
subject
What are treaties?
These are dissertations, papers or scholarly
articles prepared by persons in the field of history, law, science and
the arts [limited fields].

xxx
E.g. of written official acts: Judicial decisions, executive orders. Our
courts take judicial notice of local laws. However, there are certain

Page 49 of 87

instances when an official copy of the written official act is required to


be presented. cf Rule 132, Sec. 24
Sec. 24. Proof of official record. The record of public documents referred to
in paragraph (a) of Section 19, when admissible for any purpose, may be
evidenced by an official publication thereof or by a copy attested by the
officer having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate
that such officer has the custody. If the office in which the record is kept is in
a foreign country, the certificate may be made by a secretary of the embassy
or legation, consul general, consul, vice consul, or consular agent or by any
officer in the foreign service of the Philippines stationed in the foreign country
in which the record is kept, and authenticated by the seal of his office. (25 a)

cf with the rules on admissions (R130, S26-33) and interrogatories


(R24)

Ways to prove written foreign official acts


1) official publication, or
2) copy
a.

attested by the officer having the legal custody of the


record, or by his deputy, and

b.

if the record is not kept in the Philippines


i.

ii.

There are two cases. The cases involve the same fact and subject
matter. But what is the most important thing that you have to take
note so that the testimony or deposition taken in another proceeding
can now be used in a simple proceeding? The testimony or deposition
was subjected to cross-examination. What if only a portion was
subjected to a cross-examination? Only the portion that was subjected
to a cross-examination. If there was no cross examination, then it
could not be used or be admissible as against the adverse party.
Example, a case of ejectment and a case of ownership. If there was a
testimony on the case for ownership and it was subjected to cross
examination, then it can be presented. But note that ejectment cases
fall on summary procedure. Unless the court calls for a clarificatory
hearing, then there is no need to present another witness.

accompanied with a certificate that such


officer has the custody made by

a secretary of the embassy or legation

consul general, consul, vice consul, or


consular agent or

by any Philippine officer in the foreign


service stationed in the foreign
country in which the record is kept

and, authenticated by the seal of his office

Sec. 47. Testimony or deposition at a former proceeding. The testimony


or deposition of a witness deceased or unable to testify, given in a former
case or proceeding, judicial or administrative, involving the same parties
and subject matter, may be given in evidence against the adverse party
who had the opportunity to cross-examine him. (41a)
Requisites for admissibility of hearsay evidence as to prior testimony:
1)
2)
3)
4)

5) As evidence against the adverse party


6) Adverse party had the opportunity to cross-examine him

Testimony or deposition
Of a witness deceased or unable to testify
Given in a former case or proceeding
Involving the same parties and subject matter

Relate with R23 S5


Stricter under this rule because there is a need for an
opportunity to cross-examine; such right may be waived
R115 s1 (f) rights of the accused; same with S47 (subject to
cross examination)

7. OPINION RULE
Sec. 48. General rule. The opinion of witness is not admissible, except
as indicated in the following sections. (42)
Sec. 49. Opinion of expert witness. The opinion of a witness on a matter
requiring special knowledge, skill, experience or training which he shown
to posses, may be received in evidence. (43a)
An expert witness is a person who has special skill, knowledge,
training, experience. So an expert could give an opinion on matters
that he has special knowledge. Is it required that he is a college
degree holder? Is it required that hes schooled? What is important is
that you could establish that he has special skill, knowledge,
experience and training that could qualify him as an expert.
What are matters that an expert could testify on?

Page 50 of 87

those that he will give an opinion on matters that he has


personal knowledge of. Ex. medico legal officer who

conducted an autopsy. He can give an opinion on the


fatality of the wound.

although he doesnt have personal knowledge of the facts,


the facts are hypothetically presented to me but those
facts have a relation on the facts in issue, meaning that
the hypothetical facts are not foreign and irrelevant. And
based on the facts presented, the expert can give an
opinion. Ex. there is a victim and the person who
conducted the autopsy is already dead. Could the autopsy
report be examined by another expert in order to give an
opinion on whether the facts as presented to him can
produce a reasonable opinion based on the facts

3) Handwriting with which he has sufficient familiarity


4) Mental sanity of a person with whom he is sufficiently
acquainted.
5) Impressions of the
a) Emotion
b) Behavior
c) Condition or
d) Appearance of a person
Ordinary witnesses on matters on identity where he has adequate
knowledge can testify on the following:

GR: Experts can give opinion (with knowledge, skill, experience,


training)
Exc: witnesses can testify on identity, handwriting, mental sanity and
impressions

It is best to have bio-data marked.


Qualification of an expert may be dispensed with through
stipulation of the parties and then proceed with questioning.
Experts testify in either of 2 ways:
a) Within his personal knowledge
Identify his own report or findings
b) NOT within his personal knowledge
Facts are presented to him and he is to make an
opinion or assessment (hypothetically)

Sec. 50. Opinion of ordinary witnesses. The opinion of a witness for


which proper basis is given, may be received in evidence regarding
(a)
The identity of a person about whom he has adequate knowledge;
(b)
A handwriting with which he has sufficient familiarity; and
(c)
The mental sanity of a person with whom he is sufficiently
acquainted.
The witness may also testify on his impressions of the emotion, behavior,
condition or appearance of a person. (44a)
GR: The opinion of a witness is not admissible.
Exceptions: Admissible opinion evidence:
1) Matter requiring special knowledge, skill, experience or
training which he is shown to possess, may be received in
evidence.
2) Identity of a person about whom he has adequate knowledge;

Page 51 of 87

1) Identity- Does it mean that I should have a relationship with


the person? No. Does it mean that I see him everyday? No.
identity needed is one that is enough for me to identify.
2) Sufficient familiarity as to handwriting. Ex. I saw the person
write and the document is the subject of the inquiry so I could
give an opinion. I am in charge with the documents because
the person who wrote the handwriting is my boss. In these
cases, where you want to elicit testimony from ordinary
witnesses, you must lay the bases first so the witness can
identify the handwriting. Lay the basis of the execution of the
document. (i.e. Where were you during that time? We were in
Rockwell. Who were you with? Mr. Ong. What did Mr. Ong do?
He signed the document. Is this the document that was
signed? Yes. Is this the signature of Mr. Ong? Yes.)
3) Sufficiently acquainted with the sanity of the person. It does
not need a relationship with the person but you need a certain
degree of exposure to the person to make such a conclusion
as to his mental sanity. Do you need to qualify an expert
witness? Yes. Is it enough that I say, o, Mr. Saguisag, he is my
next witness. He is an expert in handwriting. Will the court
allow him to sit to testify? No because he has not yet been
qualified. How do you qualify an expert witness? Either the
court asks him some questions or the counsel who is
presenting him as witness will ask him some questions as to
his background. (i.e. a doctor his degree, special training,
etc.) Could you do away with the qualification? No but you can
stipulate on the qualifications. This is a matter of strategy on
whether to stipulate or not. If the expert witness is so good, it
is better to stipulate.
4) Ordinary witness can testify on behaviors, conditions,
emotions, appearance Ex. is she beautiful? This is useful in
criminal cases in order to identify the accused in order for the

judge to visualize or to paint a picture for the judge because


he has no personal knowledge of the incident.

adequate knowledge identity


enough to identify, includes notice
First, show adequate knowledge.
Second, ask how did know? Was it the first time
you saw him? Is your recollection accurate?
sufficient familiarity handwriting
familiarity is a question of fact
NO relationship required
Same repetition
The signatures of GMA and Marcos on our
currency are NOT covered
Statement of familiarity; Why familiar?
If you saw him sign, this is NOT opinion as this is
based on personal knowledge

sufficiently acquainted mental sanity


demeanor, behavior, gesture, moves from
which the court makes inference (opinion)
NO need for repetition
A question of fact
Sufficient enough to make an opinion
How do you know?
o Emotion
o Behavior
o Condition
o Appearance
important in criminal cases, damage suits; common
reaction so you could give an opinion

Evidence of the moral character of a party in civil case is admissible only


when pertinent to the issue of character involved in the case.
(c)
In the case provided for in Rule 132, Section 14, (46a, 47a)
cf Rule 132, Sec. 14
Sec. 14. Evidence of good character of witness. Evidence of the good
character of a witness is not admissible until such character has been
impeached. (17)
GR: Character evidence not generally admissible
Exceptions:
1) In Criminal Cases
a) Accused may prove his good moral character which is
pertinent to the moral trait involved in the offense
charged.
b) In rebuttal, the prosecution may prove the bad moral
character of the accused which is pertinent to the moral
trait involved in the offense charged.
c) Moral character of the offended party may be proved if it
tends to establish in any reasonable degree the probability
or improbability of the offense charged.

8. CHARACTER EVIDENCE
Sec. 51. Character evidence not generally admissible; exceptions:
(a)
In Criminal Cases:
(1)
The accused may prove his good moral character which is
pertinent to the moral trait involved in the offense charged.
(2)
Unless in rebuttal, the prosecution may not prove his bad moral
character which is pertinent to the moral trait involved in the offense
charged.
(3)
The good or bad moral character of the offended party may be
proved if it tends to establish in any reasonable degree the probability or
improbability of the offense charged.
(b)
In Civil Cases:

2) In Civil Cases only when pertinent to the issue of character


involved in the case
3) Good character of an impeached witness
When you are confronted with a question of character evidence, break
it to civil and criminal. If it is criminal, could the accused present his
good moral character? If there is a moral trait on the offense charged.
If there is no moral trait in the offense charged, you cannot present as
to his good character. Because the fact that he is a good person
doesnt mean that he cannot commit a crime. Ex of a moral trait: rape
- chastity, estafa, homicide, physical injury attitude for peacefulness
and violence. Consider the moral trait of the offense charged if you
want to present the good moral character of the accused.
Can the prosecution present the bad character of the accused? Yes but
only on rebuttal after the defense has rested its case. This is not a
matter of right and is subject to the courts discretion. In the same
manner of recalling of witnesses, there is a need to justify. How about
the victims good or bad character? Yes.if it would establish the
probability and improbability of the commission of the crime.

Page 52 of 87

If you are confronted with character evidence, there are 3 persons to


take note of: accused, prosecution, victim. Then you have civil. By any
party if character is an issue in the case. How about the character of
the witness? That applies to both criminal and civil cases. You have to
make a cross-reference with section 14 of Rule 132 where it states
that the witness cannot present his good character unless his
character be impeached. When character evidence is irrelevant, do
not present it if it will not present or resolve any fact in issue or any
circumstance arising from those facts in issue.

Robbery, Theft, Estafa: honesty (virtue)


Murder: violence/peacefulness (virtues)
Libel: dishonesty
Rape: lust, promiscuity, sexual conduct, perversion
Moral character of the accused is considered if there is
a moral trait involved in the offense; used by the
defense; prosecution only uses bad character during
rebuttal since good character is a new matter
Fact of being a prostitute does not indicate she cannot
be raped a settled doctrine
e.g. under offended party: modus operandi honesty
in claims; R128 S4: probability or improbability of a
fact in issue
Civil case: there should be an issue of character
any party (so make an issue)
Character evidence is evidence, NOT an objection
Criminal case: GR: accused
; Exc: prosecution
during rebuttal to meet the new matter
any party a character issue; make it an issue by
placing it in the pleading
good character of the witnesses is inadmissible unless
impeached

RULE 131
Burden of Proof and Presumptions
SECTION 1.
Burden of proof. Burden of proof is the duty of a party
to present evidence on the facts in issue necessary to establish his claim
or defense by the amount of evidence required by law. (1a, 2a)
Under Rule 131, you have presumptions as distinguished from
inferences. You have inferences from conclusions arising from facts.
You have a set of facts and you establish an inference.

In presumption, there is also an inference from established facts. The


only difference is that there is only a presumption when it is laid down
by law. So only those presumptions that are laid down by law are
legitimate presumptions.
Presume make an inference from established facts
Assume you lay the premise first and from those assumptions, you
make a conclusion
Burden of proof the duty of a party to present evidence on the facts
in issue necessary to establish his claim or defense by the amount of
evidence required by law; the burden of persuasion
Test for determining burden of proof:
The result of the inquiry as to which party would be successful if no
evidence at all were given, the burden on the adverse party
Matters which need not be proved by a party to an action:
1) Allegations contained in the complaint or answer immaterial
to the issues
2) Facts which are admitted or which are not denied in the
answer, provided they have been sufficiently alleged
3) Those which are the subject of an agreed statement of facts
between the parties as well as those admitted by the party in
the course of the proceedings in the same case
4) Facts which are the subject of judicial notice
5) Facts which are legally presumed
6) Facts peculiarly within the knowledge of the opposite party
Burden of proof: never shifts; stays until the end of the case
1) Plaintiff
2) Defendant
If the evidence in a case is evenly balanced, it must be decided
against the party who has the burden of proof, for the case is then
found in exactly the same position at the conclusion as it was at the
beginning.
Burden of evidence: production burden to meet the evidence; shifts;
duty of producing evidence; burden of coming forward with the
evidence; happens in rebuttal
e.g.

Page 53 of 87

Nature of case in a
contract of loan
Parties
CIVIL
Application:
Evidence presented:

Parties:
CRIMINAL

Burden of Proof
Plaintiff
Cause of action
(allegations in the
complaint)
Cause of action:
Debt obligation
(1) P/N, demand
letter
(2) Testimony of the
person who follows
up payment
(3) Interest is
stipulated
(4) That receipt of
payment was falsified
or fabricated
Since receipt
is a new
matter,
plaintiff
should be
able to meet
this by
presenting
evidence that
such is
falsified
Accused
Cause of accusation
found in the
information
(elements of the
crime)
R 120
Alleged: estafa
Proved: other deceits

(doctor)
(3) Police report
(police)
(4) Eyewitness

Defendant
Payment

The aggravating
circumstances are
burdened on the
prosecution who shall
present testimonies,
body of the crime,
weapon, bloodied
shirt.
* Rebut:
(1) Present
certification that
accused was here
and not abroad
(2) Pictures

Defense:
Payment
(1) Payment was
made to the person
who follows up and
supported by a
receipt

Prosecution
(1) Eyewitness
(2) Fact of death

The defense may


present an alibi and
tickets and
certifications may be
shown.
(1) That certification
of his presence here
was falsified
(2) That my
certification from
abroad is true

The burden of proof in a criminal case requires the prosecution in the


first instance to make out a prima facie case proving the essential
facts embraced in the criminal actions alleged, including the intent.

Prosecution
Defenses to free him
from liability
- If defense is there is
no note, present
testimonies, or proof
that the p/n was
returned and there
was no loan.

If this is done and the accused offers no evidence, the case as made
out by the state must go to the court. In thus complying with the
requirement that it shall sustain the burden of proof, the state must
produce such evidence as will overcome the presumption of innocence
and convince the court of the guilt of the accused beyond a
reasonable doubt.
After the state has introduced all the proof which it regards as
sufficient to convict the accused, the accused may meet the case thus
made out against him in three (3) different ways:

Another defense
would be payment.
Homicide
Witnesses presented

assailant and that he


was out of the
country) alibi
(2) Immigration
papers
(3) Certification from
abroad

Accused
(1) Accused himself
(that he is not the

Page 54 of 87

1) He may deny the truth of all the evidence which may be


offered against him.
2) He may deny the truth of some particular ingredient in the
criminal transaction as shown by the state. (i.e. he may plead
an alibi, admit the doing of the act charge and deny the
presence of intent, or make an affirmative defense such as
insanity or license)
3) He may put in a defense not traversing the allegations of the
indictment, but involving some matters or facts which are
entirely separate from and independent of the original
transaction set forth therein.

knowledge.

Facts: in the pleading


Evidence: during trial
Sec. 2. Conclusive presumptions. The following are instances of
conclusive presumptions:
(a)
Whenever a party has, by his own declaration, act, or omission,
intentionally and deliberately led to another to believe a particular thing
true, and to act upon such belief, he cannot, in any litigation arising out of
such declaration, act or omission, be permitted to falsify it:
(b)
The tenant is not permitted to deny the title of his landlord at the
time of commencement of the relation of landlord and tenant between
them. (3a)
Presumption an inference of the existence or non-existence of some
fact which courts are required or permitted to draw from the proof of
other facts, an inference which common sense, enlightened by human
knowledge and experience, draws from the connection, relations, and
coincidence of facts and circumstances, with each other
an assumption of fact resulting from a rule of law which
requires such fact to be assumed from another fact or group
of facts found or otherwise established in the action

It is a rule which the law makes


upon a given state of facts.
It is a deduction directed to be
drawn by law.

Presumption of fact mental process by which the existence of one


fact is inferred from proof of some other fact or facts with which
experience shows it is usually associated by succession or coexistence
Presumption of law an inference which, in the absence of direct
evidence on the subject, the law requires to be drawn from the
existence of certain established facts
an assumption made by law that a strong inference of fact is
prima facie correct, and will therefore sustain the burden of
evidence, until conflicting facts on the point are shown
Estoppel:

Presumptions juris or of law are classified into conclusive


presumptions, or presumptions juris et de jure and rebuttable
presumptions, or presumptions juris tantum.

1)
2)
3)
4)
5)
6)

Conclusive presumption inference which the law makes so


peremptory that it will not allow them to be overturned by any
contrary proof however strong
absolute presumption of law
rules determining the quantity of evidence requisite for the
support of any particular averment, which is not permitted to
be overcome by any proof that the fact is otherwise
a rule of substantive law
Disputable presumption a species of evidence that may be accepted
and acted on when there is no other evidence to uphold the
contention for which it stands
rebuttable presumption
may be overcome by other evidence
a rule of evidence; a species of evidence
Presumption
A presumed fact is one taken for
granted and accepted as a result
of human experience and general

which, by reason of the same


human experience and
knowledge, would naturally lead
to it.
It is a conclusion which, by means
of data found upon common
experience, natural reason draws
from which facts are proved.
It is a permissive deduction.

Equitable estoppel
By deed
By record or judgment
By laches
Promissory estoppel
By silence
- Estoppel by silence arises in a case wherein another
person who relied on silence is prejudiced, as
distnguished from admission by silence wherein the
burden is on the silent person and no one is
prejudiced

Instances of conclusive presumptions:

Inference
An inference is the conclusion
drawn from the proof or
admission of circumstances,

Page 55 of 87

1) Party has, by his own declaration, act, or omission,


intentionally and deliberately led another to believe a
particular thing true, and to act upon such belief, he cannot, in
any litigation arising out of such declaration, act or omission,
be permitted to falsify it

Equitable estoppel (reliance as true)


Acts, declarations representation; omissions
inaction

NO estoppel if other party knows

1.
2.
3.

2) Tenant is not permitted to deny the title of his landlord at the


time of the commencement of the relation of landlord and
tenant between them

Estoppel by deed
At the onset, tenant affirms landlords title (only at the
commencement since title may be questioned during
the relation)
There may be prescription (ownership is attained)

Elements of estoppel in pais as related to the party estopped:


1. Conduct which amounts to a false representation or
concealment of material facts, or at least, which is
calculated to convey the impression that the facts are
otherwise than, and inconsistent with, those which the
party subsequently attempts to assert
2. Intention, or at least expectation, that such conduct shall
be acted upon by the other party
3. Knowledge, actual or constructive, of the real facts

Estoppel in pais or equitable estoppel. Because of an act,


declaration or omission, you make a representation. it is an
intentional representation and because of that representation,
a person relied on that representation as true and heavily
relied on such representation and acted based on such
representation. The most important thing: the person claiming
the estoppel does not know of the facts because if he knew
the facts, he cannot claim estoppel. He is ignorant of the
facts.

What are the kinds of estoppel which are akin to equitable


estoppel?

Conclusive presumptions are NOT absolute.

Attack facts which would lead to the presumption


NOT absolute, but the moment the facts are settled and
presumption is established, then they become conclusive
Facts from which conclusive nature would arise
Do NOT attack the conclusion (end result) since it cannot be
overturned

Conclusive presumption cannot be disputed? Yes. Once created,


cannot be disputed. But the facts which created the presumption, you
can dispute in order that the conclusive presumption will not arise.
Estoppel a bar which precludes a person from denying or asserting
anything to the contrary of that which has, in contemplation of law,
been established as the truth, either by the acts of judicial or
legislative officers or by his own deed or representations, either
express or implied

1) Promissory estoppel if not for the declaration or


promise which was relied upon by the other person as
true, you may not have acted on such promise
2) Estoppel by silence person relied on your omission
because you did not act, and having relied on your
omission as true, he acted on it
3) Estoppel on the question of jurisdiction there is
estoppel if you failed to raise the issue of jurisdiction
within a reasonable time
4) Estoppel by laches failure to act on an unreasonable
period of time; sleeping on ones rights

Kinds or Classifications of Estoppel:


1) By matter in pais equitable estoppel; a term applied to a
situation where, because of something which he has done or
omitted to do so, a party is denied the right to plead or prove
an otherwise important fact

Whenever a party has, by his own declaration, act, or


omission, intentionally and deliberately led another to believe
a particular thing true, and to act upon such belief, he cannot,
in any litigation arising out of such declaration, act or
omission, be permitted to falsify it.
Elements of estoppel in pais as related to the party claiming it:

Page 56 of 87

Lack of knowledge and of the means of knowledge of the


truth as to the facts in question
Reliance upon the conduct of the party estopped
Action based thereon of such character as to change his
position prejudicially

A party who knows or should know the truth is absolutely


precluded, both in law and in equity, from denying or
asserting the contrary of any material fact which, by his own
words or conduct, affirmative or negative, intentionally or
through culpable negligence, he has induced another, who
was excusably ignorant of the true facts and who had a right

to rely upon such words or conduct, to believe and act upon


them thereby, as a consequence reasonably to be anticipated,
changing his position in such a way that he would suffer injury
if such denial or contrary assertion were allowed.
2) By deed a bar which precludes a party to a deed and his
privies from asserting as against the other and his privies any
right or title in derogation if the deed, or from denying the
truth of any material fact asserted in it

Estoppel by deed appears from the face of the deed


and does not require all of the elements of estoppel in
pais. It pertains to a contract as to an owner of a
property and a tenant. The source of the right to
possess is the landlord so the tenant has no right to
contest the title of the landlord. It may conclude a
party without reference to the moral qualities of his
conduct.

3) By record or judgment the preclusion to deny the truth of


matters set forth in a record, whether judicial or legislative,
and also to deny the facts adjudicated by a court of
competent jurisdiction

Estoppel by record is limited to judicial and legislative


records.

Laches unreasonable delay to seek or to enforce a right at a proper


time
Estoppel by laches a neglect to do something which one should do
or to seek to enforce a right at a proper time
Elements of estoppel by laches:
1.
2.
3.
4.

Conduct on the part of the defendant or of one under whom


he claims, giving rise to the situation of which complaint is
made and for which the complainant seeks a remedy
Delay in asserting the complainants rights, the complainant
having had knowledge or notice of the defendants conduct
and having been afforded an opportunity to institute suit
Lack of knowledge or notice on the part of the defendant that
the complainant would assert the right on which he bases his
suit
Injury or prejudice to the defendant in the event relief is
accorded to the complainant, or the suit is not held to be
barred

Statutory instances of estoppel:


i.
Non-owner transferor who later acquires title passes
ownership to the transferee by operation of law (Art. 1434
NCC)
ii.
Agent who alienates can not claim title against the transferee
(Art. 1435 NCC)
iii.
Lessee or a bailee is estopped from asserting title to the thing
leased or received, as against the lessor or bailor. (Art. 1436
NCC)
iv.
Contract between 3rd persons concerning immovable property,
one of them is misled by a person with respect to the
ownership or real right over the real estate, the latter is
precluded from asserting his legal title or interest therein,
provided all these requisites are present:
fraudulent representation or wrongful concealment of
facts known to the party estopped;
party precluded must intend that the other should act
upon the facts as misrepresented;
party misled must have been unaware of the true
facts; and
party defrauded must have acted in accordance with
the misrepresentation. (Art. 1437 NCC)
v.
One who has allowed another to assume apparent ownership
of personal property for the purpose of making any transfer of
it, cannot, if he received the sum for which a pledge has been
constituted, set up his own title to defeat the pledge of the
property, made by the other to a pledgee who received the
same in good faith and for value. (Art. 1438 NCC)
Sec. 3. Disputable presumptions. The following presumptions are
satisfactory if uncontradicted, but may be contradicted and overcome by
other evidence:
(a) That a person is innocent of crime or wrong;
fact: unlawful act
(b) That an unlawful act was done with an unlawful intent;
fact: unlawful act
(c) That a person intends the ordinary consequences of his voluntary act;
fact: voluntary act
(d) That a person takes ordinary care of his concerns;
fact: performance of an act
(e) That evidence willfully suppressed would be adverse if produced;

Page 57 of 87

fact: suppression of evidence

(q) That the ordinary course of business has been followed;


fact: doing of business or acts in pursuance of the business

(f) That money paid by one to another was due to the latter;
fact: payment

(r) That there was a sufficient consideration for a contract;


fact: contract

(g) That a thing delivered by one to another belonged to the latter;


fact: delivery
(h) That an obligation delivered up to the debtor has been paid;
fact: payment and issuance of a receipt (most recent receipt;
indicate coverage to be safe)
(i)
(ii)

That prior rents or installments had been paid when a


receipt for
the later one is produced;

(j) That a person found in possession of a thing taken in the doing of a


recent wrongful act is the taker and the doer of the whole act; otherwise,
that things which a person possess, or exercises acts of ownership over,
are owned by him;
fact: possession of a thing
(k) That a person in possession of an order on himself for the payment of
the money, or the delivery of anything, has paid the money or delivered
the thing accordingly;
fact: possession of an order for payment or delivery

(s) That a negotiable instrument was given or indorsed for a


sufficient consideration;
fact: indorsement/drawing of a negotiable instrument
(t) That an endorsement of negotiable instrument was made before the
instrument was overdue and at the place where the instrument is dated;
fact: indorsement/datng of a negotiable instrument
(u) That a writing is truly dated;
fact: writing/dating
(v) That a letter duly directed and mailed was received in the regular
course of the mail;
fact: letter sent/mailed
(w) That after an absence of seven years, it being unknown whether or not
the absentee still lives, he is considered dead for all purposes, except for
those of succession.
fact: absence

(l) That a person acting in a public office was regularly appointed or


elected to it;
fact: discharge of public office

The absentee shall not be considered dead for the purpose of opening his
succession till after an absence of ten years. If he disappeared after the
age of seventy-five years, an absence of five years shall be sufficient in
order that his succession may be opened.

(m) That official duty has been regularly performed;


fact: performance of official duty

The following shall be considered dead for all purposes including the
division of the estate among the heirs:

(n) That a court, or judge acting as such, whether in the Philippines or


elsewhere, was acting in the lawful exercise of jurisdiction;
fact: exercise of judicial function
(o) That all the matters within an issue raised in a case were laid before the
court and passed upon by it; and in like manner that all matters within an
issue raised in a dispute submitted for arbitration were laid before the
arbitrators and passed upon by them;
fact: decision or judgment of court or arbitrators
(p) That private transactions have been fair and regular;
fact: transaction

Page 58 of 87

(1) A person on board a vessel lost during a sea voyage, or an


aircraft with is missing, who has not been heard of for four years
since the loss of the vessel or aircraft;
- has not been heard of includes both communication and
knowledge
(2) A member of the armed forces who has taken part in armed
hostilities, and has been missing for four years;
- includes a chaplain who gives moral support
(3) A person who has been in danger of death under other
circumstances and whose existence has not been known for four
years;
(4) If a married person has been absent for four consecutive
years, the spouse present may contract a subsequent marriage if

2) Lived exclusively each other as husband and wife


3) Property has been acquired through their actual joint
contribution of money, property or industry
(dd) That if the marriage is terminated and the mother contracted
another marriage within three hundred days after such
termination of the former marriage, these rules shall govern in the
absence of proof to the contrary:

he or she has well-founded belief that the absent spouse is


already dead. In case of disappearance, where there is a danger of
death the circumstances hereinabove provided, an absence of
only two years shall be sufficient for the purpose of contracting a
subsequent marriage. However, in any case, before marrying
again, the spouse present must institute a summary proceedings
as provided in the Family Code and in the rules for declaration of
presumptive death of the absentee, without prejudice to the effect
of reappearance of the absent spouse.
- law promotes lawful union, NOT illicit relationships; human
nature: longing of the spouse for affection (who was alone)

(1) A child born before one hundred eighty days after the
solemnization of the subsequent marriage is considered
to have been conceived during such marriage, even
though it be born within the three hundred days after the
termination of the former marriage.

(x) That acquiescence resulted from a belief that the thing acquiesced in
was conformable to the law or fact;
fact: acquiescence/conformity

Marriage terminated ----- 300 days ----- child born ----- 180
days after subsequent marriage

(y) That things have happened according to the ordinary course of nature
and ordinary nature habits of life;
fact: happening of a thing

o
o
o

(z) That persons acting as copartners have entered into a contract of


copartnership;
fact: acting as co-partners

o
o

(aa) That a man and woman deporting themselves as husband


and wife have entered into a lawful contract of marriage;
- deportment as husband and wife; considering a number of
circumstances
(bb) That property acquired by a man and a woman who are
capacitated to marry each other and who live exclusively with
each other as husband and wife without the benefit of marriage or
under void marriage, has been obtained by their joint efforts, work
or industry.
- facts:
1) Capacitated to marry each other
2) Lived exclusively each other as husband and wife
without benefit of marriage or under a void marriage
3) Property has been obtained by their joint efforts, work
or industry
(cc) That in cases of cohabitation by a man and a woman who are
not capacitated to marry each other and who have acquired
properly through their actual joint contribution of money, property
or industry, such contributions and their corresponding shares
including joint deposits of money and evidences of credit are
equal.
- facts:
1) NOT capacitated to marry each other

Page 59 of 87

if NO subsequent marriage, NO presumption (R131 S4)


belongs to the subsequent marriage
300 days is the period of gestation of a woman; full
term: 9 months
child should be born within 300 days
terminated - must be legally dissolved
(2) A child born after one hundred eighty days following
the celebration of the subsequent marriage is considered
to have been conceived during such marriage, even
though it be born within the three hundred days after the
termination of the former marriage.

Marriage terminated ----- Subsequent marriage ----- 180 days


----- child born ----- 300 days after termination of the former
marriage
o

belongs to the subsequent marriage

Presumptions: only disputable


1) If born before 180, within 300 of the former marriage,
it is of the former marriage
2) If born after 180, even within 300 of the former
marriage, it is of the subsequent marriage
3) If after 300, with more reason it is of the subsequent
marriage

Child born before 180 days after the solemnization of the


subsequent marriage

If born within 180 days following the 2nd marriage, it is


the child of the 2nd husband.
This presumption can be overthrown only when the
husband presumed to be the father, or his heirs in
proper cases, brings an action to impugn the
legitimacy of the child.
The child himself cannot choose his own filiation. If the
husband presumed to be the father does not impugn,
the status of the child is fixed, and the child cannot
choose to be the child of the other husband.

when such presumption is necessary to perfect the title of such


person or his successor in interest;
- trustee with duty to convey to perfect title
(jj) That except for purposes of succession, when two persons
perish in the same calamity, such as wreck, battle, or
conflagration, and it is not shown who died first, and there are no
particular circumstances from which it can be inferred, the
survivorship is determined from the probabilities resulting from
the strength and the age of the sexes, according to the following
rules:
- NOT applicable to succession; only to other purposes than
succession; e.g. insurance claim (if beneficiary dies first,
claims redound to his heirs), condition that property is
conveyed if X survives, criminal case with civil aspect, but if
with self-defense, NOT necessary, NOT applicable
- could be refuted; only applicable if NO facts to rely on (e.g.
that there are witnesses); disputable presumptions are only
good if NOT rebutted
- if both 35 and male, consider factors such as lifestyle and
health
1. If both were under the age of fifteen years, the older is
deemed to have survived;
2. If both were above the age sixty, the younger is
deemed to have survived;
3. If one is under fifteen and the other above sixty, the
former is deemed to have survived;
4. If both be over fifteen and under sixty, and the sex be
different, the male is deemed to have survived, if the sex
be the same, the older;
5. If one be under fifteen or over sixty, and the other
between those ages, the latter is deemed to have
survived.
(kk) That if there is a doubt, as between two or more persons who
are called to succeed each other, as to which of them died first,
whoever alleges the death of one prior to the other, shall prove
the same; in the absence of proof, they shall be considered to
have died at the same time. (5a)
- applicable to succession
e.g. A married to B with C as their child, and D as the child of

Child born after 180 days following the celebration of the


second marriage

If the child is born after 180 days following the


celebration of the 2nd marriage, it is the child of the 2nd
husband.
This presumption may be overthrown by:
1) Proving physical impossibility of access by the
husband to the wife during the period of
conception of the child
2) Showing that the wife, upon the death of the
1st husband, or upon annulment of her
marriage, gave notice of pregnancy as
required under Article 260, because such
notice shall be deemed to be true
3) Proving that the 1st husband has left some
document expressly acknowledging the
pregnancy of the wife at the time of his death
4) Utilizing blood test exclusions, to show that
the child and the 2nd husband belong to
different blood groups

(ee) That a thing once proved to exist continues as long as is


usual with things of the nature;
- a thing of a similar nature exists
(ff) That the law has been obeyed;
- law
(gg) That a printed or published book, purporting to be printed or
published by public authority, was so printed or published;
- publication purportedly published by a public authority
(hh) That a printed or published book, purporting to contain
reports of cases adjudged in tribunals of the country where the
book is published, contains correct reports of such cases;
- printed/published book containing reports of cases
(ii) That a trustee or other person whose duty it was to convey real
property to a particular person has actually conveyed it to him

C
A and C died in a plane crash.
If C dies first, A cannot inherit. Love descends; there is D.
If A dies first, C can inherit. D can inherit by representation
Miscellaneous Presumptions:

Page 60 of 87

a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
k)
l)
m)
n)
o)
p)

Love of life and avoidance of danger


Suicide
Virility of men
Capacity of women for childbearing
Flight
Attempts to escape
Concealing the body of the victim
Surrendering to authorities or resisting arrest
Confusion, embarrassment, etc.
Demeanor subsequent to the crime
Falsehood by accused or suspected persons
Constitutionality
Waiver of constitutional rights
Voluntariness
Res ipsa loquitor
Foreign law same as law of forum (processual presumption)

Sec. 4. No presumption of legitimacy or illegitimacy. There is no


presumption of legitimacy of a child born after three hundred days
following the dissolution of the marriage or the separation of the spouses.
Whoever alleges the legitimacy or illegitimacy of such child must prove
his allegation. (6)
- child born after 300 days
RULE 132
PRESENTATION OF EVIDENCE
A. EXAMINATION OF WITNESSES
SECTION 1.
Examination to be done in open court. The
examination of witnesses presented in a trial or hearing shall be done in
open court, and under oath or affirmation. Unless the witness is
incapacitated to speak, or the questions calls for a different mode of
answer, the answers of the witness shall be given orally. (1a)

Open court a court formally opened and engaged in the transaction


of judicial affairs, to which all persons conduct themselves in an
orderly manner are admitted
Oath an appeal by a person to God (Supreme Being) to witness the
truth of what he declares and an impreciation of Divine punishment or
vengeance upon him if what he says is false
in its broadest sense, includes any form of attestation by
which a party signifies that he is bound in conscience to
perform an act faithfully and truthfully
an outward pledge given by the person taking it that his
attestation or promise is made under an immediate sense of
responsibility to God
Purpose: to affect his conscience and thus compel him to
speak the truth, and also to lay him open to punishment for
false testimony in case he willfully testifies
Form: immaterial, provided it is a form which in the witness
belief invokes the fear of supernatural punishment (In this
jurisdiction, the wording of the oath is: Do you swear to tell
the truth, the whole truth, and nothing but the truth? So help
you God.
Affirmation a solemn and formal declaration or assertion that the
witness will tell the truth, etc., this being substituted for an oath in
certain cases
a solemn declaration without oath
does NOT implore the guidance of a supreme being; one
affirms being a man of integrity
if untrue, one may be held liable for false testimony under the
RPC

Examination of witnesses presented in a trial or hearing:


1) Done in open court
2) Under oath or affirmation
3) Answers of the witness shall be given orally, unless
a. Witness is incapacitated to speak, or
b. Question calls for a different mode of answer

The right to have a witness sworn may be waived either


expressly or by going forward in the matter without inquiry or
objection.

The court may commit for contempt a witness who refuses to


be sworn or to affirm.

Recalled witness need not be sworn again.

Perjury preparation of a document under oath; applies to both oath


and affirmation

Witness one who testifies in a cause or gives evidence before a


judicial tribunal

Page 61 of 87

Testimony is made orally; if witness cannot speak, an


interpreter for the sign language may be availed of.
(testimony is recorded after the sign is verbalized)

Blind

Clerks know the attitude of the judge.

Ideally, record the meat of the proceedings.

Blind and Deaf Braille; write; signals


Japanese, Korean, Russian person proficient in the language; pool of
interpreters or referrals from the embassy; judge would not normally
rely on an outsider

Generally, the testimony should not be given in a narrative


form. The danger is that irrelevant and other improper
evidence may be interjected and a motion to strike out may
become necessary.

The testimony of a witness may be given in a continuous


uninterrupted narrative:
1) Where a party witness is his own counsel
2) When allowed by the trial court in the exercise of its
discretion, as in the case of a witness allowed to
describe a transaction from the beginning once his
attention has been drawn to the time and place of the
scene of action

Sec.2. Proceedings to be recorded. The entire proceedings of a trial or


hearing, including the questions propounded to a witness and his answers
thereto, the statements made by the judge or any of the parties, counsel,
or witnesses with reference to the case, shall be recorded by means of
shorthand or stenotype or by other means of recording found suitable by
the court.
A transcript of the record of the proceedings made by the official
stenographer, stenotypist or recorder and certified as correct by him shall
be deemed prima facie a correct statement of such proceedings. (2a)

Sec. 3. Rights and obligations of a witness. A witness must answer


questions, although his answer may tend to establish a claim against him.
However, it is the right of a witness:
(1)
To be protected from irrelevant, improper, or insulting questions,
and from harsh or insulting demeanor;
(2)
Not to be detained longer than the interests of justice require;
(3)
Not to be examined except only as to matters pertinent to the
issue;
(4)
Not to give an answer which will tend to subject him to a penalty
for an offense unless otherwise provided by law; or
(5)
Not to give an answer which will tend to degrade his reputation,
unless it to be the very fact at issue or to a fact from which the fact in
issue would be presumed. But a witness must answer to the fact of his
previous final conviction for an offense. (3a, 19a)
The object of all examination of witnesses is to elicit facts to show the
truth.
Obligation of a witness answer questions, although his answer may
tend to establish a claim against him
Rights of a witness:

Requisites for transcript to be deemed prima facie a correct statement


of the proceedings:
1) Made by the official stenographer, stenotypist or recorder
2) Certified as correct by him
Records law makes no qualification; discretionary
Stories, jokes and comments of the judge are recorded but not
transcribed.
in practice, only those with reference to the case are recorded; the
meat
Recorded TSN; the tape recorder is only a back-up

Page 62 of 87

1) To be protected from irrelevant, improper, or insulting


questions, and from harsh or insulting demeanor;
Irrelevant (fact in issue), improper (not material),
insulting (e.g. Now youre telling me you read the
communication. Can you really read? Any formal
schooling?; even degrading)
2) Not to be detained longer than the interests of justice require;
Holding the witness under the courts control for him
to testify
3) Not to be examined except only as to matters pertinent to the
issue;
Irrelevant
4) Not to give an answer which will tend to subject him to a
penalty for an offense, unless otherwise provided by law; or

offense pertains to self-incrimination which right is


available only if it gives rise to a civil case, and not a
criminal case
The privilege against self-incrimination must be
invoked at the proper time, and the power to invoke it
is when a question calling for an incriminating answer
is propounded.
Question need not be actually incriminating. It is
enough if the question has a tendency to incriminate.
The privilege is not limited to facts constituting an
element of a crime. It extends to any fact which tends
to establish a criminal offense. The privilege extends
to inculpatory documents.
It may be invoked in all kinds of proceeding where
testimony is to be taken, including investigation by
legislative bodies.
Since it is a personal right to be exercised by him
alone, the privilege may be waived by a witness and,
when waived by him, cannot thereafter be asserted.
If the witness discloses part of a transaction in which
he was criminally concerned, he cannot hold back the
rest. He must tell the whole.

5) Not to give an answer which will tend to degrade his


reputation, unless it be to the fact
a. At issue or
b. From which the fact in issue would be presumed
c. Of his previous final conviction for an offense.
Generally, not allowed
3 Exceptions: when degrading questions are
allowed

STD question asked to a woman, not degrading to a man


AIDS question relating to blood transfusion and various sexual
partners are allowed
e.g. fact in issue may be presumed
Witness saw from the window the commission of the crime
but witness legs are amputated and the window is even
higher that the witness himself
Sec. 4. Order in the examination of an individual witness. The order in
which the individual witness may be examined is as follows;
(a)
Direct examination by the proponent;
(b)
Cross-examination by the opponent;
(c)
Re-direct examination by the proponent;
(d)
Re-cross-examination by the opponent. (4)
Sec. 5. Direct examination. Direct examination is the examination-inchief of a witness by the party presenting him on the facts relevant to the
issue. (5a)
Direct examination the examination-in-chief or initial examination of
a witness by the party presenting him on the facts relevant to the
issue

e.g.
rape case Is she a prostitute? (character evidence of offended party)
annulment of marriage on the ground of impotence (to give a
window and to prevent adultery)
sex is a biological need; part of marriage
since womans need is not satisfied, and not because of an
illness
women aged 30-45 are sexually active
case for serious physical injuries where the penis was castrated
questions on feeling, reaction, consequence of castration are
allowed

Only 1 requisite of the cause of action/element of the crime is


enough (e.g. medical officer on direct examination to establish
the fact of death)
Indicate purpose for which the witness is presented
Facts relevant to the issue are facts from the existence of
which inference as to the truth or existence of the right or
liability to be ascertained may logically be drawn.
To determine the relevancy of evidence, the pleadings of the
parties must first be looked to for the purpose of ascertaining
the issue.
The direct examination should build up the theory of the case
and nothing more.

Sec. 6. Cross-examination; its purpose and extent. Upon the


termination of the direct examination, the witness may be cross-examined
by the adverse party as to many matters stated in the direct examination,
or connected therewith, with sufficient fullness and freedom to test his
accuracy and truthfulness and freedom from interest or bias, or the
reverse, and to elicit all important facts bearing upon the issue. (8a)

Page 63 of 87

Cross-examination examination of a witness by the party opposed to


the party who called such witness, the latter party having examined,
or having been entitled to examine, such witness in chief

1) To explain or supplement his answers given during the crossexamination


2) With leave of court, on matters not dealt with during the
cross-examination in the courts discretion

Evidence elicited on cross-examination is regarded as


testimony on the part of the party calling the witness, and not
as evidence of the party cross-examining.

The main object of re-examination is to prevent


injustice to the witness and the party who has called
him by affording an opportunity to the witness to
explain or amplify the testimony which he has given
on cross-examination and to explain any apparent
contradiction or inconsistency in his statements, an
opportunity which is not ordinarily afforded to him
during his cross-examination.

On re-examination, the witness may be allowed to


reaffirm or explain his statements, their meaning or
import, and to minimize or destroy discrediting
tendencies.

Witness may be cross-examined by the adverse party:


1) As to any matters stated in the direct examination, or
connected therewith
2) With sufficient fullness and freedom to
a. Test his
accuracy and
truthfulness and
freedom from interest or bias, or the reverse
b. Elicit all important facts bearing upon the issue
Dual function of cross examination:
1) To impeach (test accuracy, truthfulness and freedom from
interest or bias or the reverse)
2) To elicit all important facts bearing upon the issue
opportunity to get information; dangerous; why? surprise; more or
less, the counsel know the answers to the questions
difficult if the witness describes because there is a tendency to
narrate (favorable to the witness)
what is important is that there is an opportunity to cross; may be
waived or forfeited; R115 (F) and R130 S47
Scope of cross examination: Matters
1) Stated in the direct examination how autopsy conducted
2) Connected therewith Based on your experience, how many
hours will a person with a stab wound on his chest survive?
(there is a relation)

e.g. at direct: witness answered that he was at the scene of the crime
at re-direct: witness explains that he was there to buy something
Sec. 8. Re-cross-examination. Upon the conclusion of the re-direct
examination, the adverse party may re-cross-examine the witness on
matters stated in his re-direct examination, and also on such other matters
as may be allowed by the court in its discretion. (13)
Re-cross-examination:
1) On matters stated in his re-direct examination, and
2) With leave of court, other matters in the courts discretion
Sec. 9. Recalling witness. After the examination of a witness by both
sides has been concluded, the witness cannot be recalled without leave of
the court. The court will grant or withhold leave in its discretion, as the
interests of justice may require. (14)

Sec. 7. Re-direct examination; its purpose and extent. After the crossexamination of the witness has been concluded, he may be re-examined
by the party calling him, to explain or supplement his answers given
during the cross-examination. On re-direct-examination, questions on
matters not dealt with during the cross-examination, may be allowed by
the court in its discretion. (12)
Re-direct examination:

Page 64 of 87

A witness can be recalled only with leave of the court.

The matter of recalling rests in the courts discretion and is


available to both sides.

A party who has examined a witness is not entitled as a


matter of right to recall him; or may a party reserve the right
to recall a witness for re-examination, without the consent of
the opposing party.

3) Difficulty in getting direct and intelligible answers from a


witness who is:
a. Ignorant
b. Child of tender years
c. Feeble mind cannot make a decision; confused
d. Deaf-mute

Permission to recall a witness should be sought by special


application. The court has no power to compel either party to
recall his witness against his will.

Sec. 10. Leading and misleading questions. A question which suggests


to the witness the answer which the examining party desires is a leading
question. It is not allowed, except:
(a)
On cross examination;
(b)
On preliminary matters;
(c)
When there is a difficulty is getting direct and intelligible answers
from a witness who is ignorant, or a child of tender years, or is of feeble
mind, or a deaf-mute;
(d)
Of an unwilling or hostile witness; or
(e)
Of a witness who is an adverse party or an officer, director, or
managing agent of a public or private corporation or of a partnership or
association which is an adverse party.
A misleading question is one which assumes as true a fact not yet testified
to by the witness, or contrary to that which he has previously stated. It is
not allowed. (5a, 6a, and 8a)
Leading questions a question which suggests to the witness the
answer which the examining party desires; test: suggestiveness of the
questions substance
not confined to those answerable by yes/no
e.g. Were you in Sta. Mesa?

4) Unwilling or hostile witness (cf Rule 132, Sec. 12)


Sec. 12. Party may not impeach his own witness. xxx
A witness may be considered as unwilling or hostile only if so declared by the
court upon adequate showing of his adverse interest, unjustified reluctance
to testify, or his having misled the party into calling him to the witness stand.
5) Witness is an adverse party or an officer, director, or
managing agent of a public or private corporation or of
a partnership or association which is an adverse party.
Adverse party witness adverse party himself
Adverse partys witness witness of the adverse party
Plaintiff
Witnesses:

1 (P)

1
2
3 (P)

offer of testimonial evidence


varies

GR: Leading questions not allowed.

Adverse party makes the plaintiff


as his 3rd witness; P wont be
expected to answer

Exceptions:
1) Cross examination

Why present P? purposes may be


different when P presents P and D
presents P

2) Preliminary matters not applicable to documents which need


the laying of the basis
e.g. Who is the accused?
Why do you know him?
Was he in the church?
Is it correct to say that you were employed by the
company?
This may also be done for purposes of qualification of a
witness

Defendant

Witnesses:

A declaration of being hostile made by the court does not


preclude his being subject to cross-examination.

Misleading question one which assumes as true a fact not yet


testified to by the witness, or contrary to that which he has previously
stated.
e.g. If there is no basis and this is asked: Could you tell us why you
were in Sta. Mesa? or While in Sta. Mesa, what did you do?

Page 65 of 87

Misleading questions are never allowed. No exceptions.

4) By showing bias, interest or hostile feeling against the adverse


party

Sec. 11. Impeachment of adverse party's witness. A witness may be


impeached by the party against whom he was called, by contradictory
evidence, by evidence that his general reputation for truth, honestly, or
integrity is bad, or by evidence that he has made at other times statements
inconsistent with his present, testimony, but not by evidence of particular
wrongful acts, except that it may be shown by the examination of the
witness, or the record of the judgment, that he has been convicted of an
offense. (15)

Usually, the impeachment of a witness should take


place either during the cross-examination or during
the presentation of the other partys case.

The credit of a witness cannot be impeached after the


hearing and decree, and a party desiring to impeach
his own witness must do so before closing his case.

Impeachment right of a party to impeach the credibility of a witness


whom he did not call.

Truth means conformity to fact or reality; exact accordance with that


which is, or has been or shall be

Generally, any fact or circumstance tending in the least to


discredit a witness is admissible to impeach him, and a party,
especially the accused, is entitled to all the evidence in the
case legitimately bearing upon the question of the veracity of
a witness of the prosecution.

Honesty signifies the quality or state of being, straightforwardness of


conduct, thought, speech, etc.

Ways to impeach:

Integrity defined as moral soundness; honesty; freedom from


corrupting influence or practice; especially strictness in the fulfillment
of contracts, the discharge of agencies, trusts, and the like;
uprightness, rectitude

1) General reputation for truth, honesty, integrity is bad refers


to character

The impeaching testimony must be confined to the general


reputation of the witness as to truth, honesty or integrity.

2) Prior inconsistent statements does not refer to character


a) Oral
b) Written

Impeaching witnesses may themselves be impeached, but


only by the usual methods and by questions properly framed.

Impeachment of adverse party's witness:


1) Contradictory evidence
2) Evidence that his general reputation for truth, honesty, or
integrity is bad
3) Evidence that he has made at other times statements
inconsistent with his present testimony
4) Evidence of conviction of an offense shown by the
examination of the witness or the record of the judgment
Other modes of impeachment:
1) By involving him during the cross-examination in
contradictions
2) By showing the impossibility or improbability of his testimony
3) By proving acts or conduct of the witness inconsistent with his
testimony

Sec. 12. Party may not impeach his own witness. Except with respect to
witnesses referred to in paragraphs (d) and (e) of Section 10, the party
producing a witness is not allowed to impeach his credibility.
A witness may be considered as unwilling or hostile only if so declared by
the court upon adequate showing of his adverse interest, unjustified
reluctance to testify, or his having misled the party into calling him to the
witness stand.
The unwilling or hostile witness so declared, or the witness who is an
adverse party, may be impeached by the party presenting him in all
respects as if he had been called by the adverse party, except by evidence
of his bad character. He may also be impeached and cross-examined by
the adverse party, but such cross-examination must only be on the subject
matter of his examination-in-chief. (6a, 7a)
GR: The party producing a witness is not allowed to impeach his
credibility.
Exceptions: When party may impeach his own witness (except
evidence of bad character)

Page 66 of 87

1) Unwilling or hostile witness; or


2) Witness who is an adverse party or an officer, director, or
managing agent of a public or private corporation or of a
partnership or association which is an adverse party.
Grounds for declaring a witness unwilling or hostile:

other times statements inconsistent with his present testimony, the


statements must be related to him, with the circumstances of the times
and places and the persons present, and he must be asked whether he
made such statements, and if so, allowed to explain them. If the
statements be in writing they must be shown to the witness before any
question is put to him concerning them. (16)
Requisites for impeaching a witness by prior inconsistent statements
which may be oral or in writing:

1) Adverse interest
2) Unjustified reluctance to testify, or
3) Misled the party into calling him to the witness stand
Consequences of being an unwilling, hostile, or adverse witness:
1) May be impeached by the proponent, except by evidence of
bad character
2) May also be impeached by the opponent
3) May be cross-examined by the opponent, only on the subject
matter of his direct examination
4) Proponent may ask leading questions

1) If the statements be in writing they must be shown to the


witness before any question is put to him concerning them
2) Statements must be
a. Related to him
b. With the circumstances of the times and places and
the persons present
3) He must be asked whether he made such statements
4) If so, allowed to explain them

If the witness refuses to acknowledge the prior inconsistent


statement, present someone who can testify that the
recording of the prior statement was accurate (e.g.
stenographer, in which case, the statement is prima facie
evidence of the fact stated therein).

There must be a real inconsistency between the two


assertions of the witness. It is not a mere difference of
statement that suffices; nor yet is an absolute oppositeness
essential; it is an inconsistency that is required.

Credibility of a witness their disposition and intention to tell the truth


in the testimony they have given

Hostile witness one who manifests so much hostility or prejudice


under examination-in-chief that the party who has called him, or his
representative, is allowed to cross-examine him, that is to treat him as
though he had been called by the opposite party

To be impeaching, the prior testimony must not only be


contradictory, but must also have reference to matters
relevant to his testimony and the case.

In other words, the statement which it is intended to


contradict must involve facts in evidence, and the varying
statements sought to be shown must be relevant to the
issues. To this rule, there is an exception, with respect to prior
statements showing the existence of bias, prejudice, or
interest denied by the witness.

The proper foundation for impeachment depends upon


whether the inconsistent statement is oral or written.

Statements of a witness, which are admissible as independent


evidence may be shown without laying the foundation for their

Impeach is applied to testimony to indicate that it is erroneous


To impeach to call into question the veracity of a witness by means
of evidence offered for that purpose, or by showing that the witness is
unworthy of belief
Impeachment an allegation, supported by proof, that a witness who
has been examined is unworthy of credit

Adverse party adverse to the party calling him and actively seeks a
recovery against, or opposing a recovery by such party, or a person
for whose immediate benefit the action was brought or defended

A proper foundation should be laid in order to impeach a


witness.

Sec. 13. How witness impeached by evidence of inconsistent statements.


Before a witness can be impeached by evidence that he has made at

Page 67 of 87

because other witnesses may attune their testimony to that


of the witness on the stand
cf R119 S21 Exclusion of the public if the evidence to be
produced during the trial is offensive to decency or public
morals (motu proprio or upon motion of the accused)

admission, although they are contradictory to the testimony of


the witness and hence tend to impeach him.

When a witness is impeached by proof of prior inconsistent


statements, its effect is merely to discredit him as witness;
former statements are incompetent for any other purpose,
and do not constitute evidence of truth of facts stated. It bears
on the witness credibility.

The rule does not apply to the following:


1) Party to an action
2) Expert witnesses
3) Witnesses in rebuttal
4) Agent of the party, when the presence of such agent is
necessary, as when the agent has gained such familiarity
with the facts that his presence is necessary for the proper
management of the action or defense
5) Witnesses called to testify to another witness character
for truth and veracity
6) Policemen, detectives, or other police officers in criminal
cases in the courts discretion
7) Party in interest, though not a party to the record

The court has wide discretion as to the order of proof, and it


would be within that discretion to order the party to be called
first.

Sec. 14. Evidence of good character of witness. Evidence of the good


character of a witness is not admissible until such character has been
impeached. (17)
cf Rule 130, Sec. 51
Sec. 51. Character evidence not generally admissible; exceptions.
xxx
(c) In the case provided for in Rule 132, Section 14. (46 a, 47 a)

Evidence of the good character of a witness is not admissible


until such character has been impeached.
GR: This rule applies to any witness
Exc: Character evidence where specific provisions apply
Does this apply to a party who is a witness? No but character
of such witness may be attacked in offenses where character is
involved. (i.e. estafa)

The character or reputation of a witness must be attacked or


impeached before testimony sustaining his character or
reputation can be admitted, but it is not necessary that
character witnesses for impeachment purposes should first be
introduced if the veracity or character of the witness has been
substantially impeached in other ways.

There is a distinction between an attack on the character of a


witness, as such, for credibility and an attack on the nature of
the testimony given for belief.

Sec. 16. When witness may refer to memorandum. A witness may be


allowed to refresh his memory respecting a fact, by anything written or
recorded by himself or under his direction at the time when the fact
occurred, or immediately thereafter, or at any other time when the fact was
fresh in his memory and knew that the same was correctly written or
recorded; but in such case the writing or record must be produced and
may be inspected by the adverse party, who may, if he chooses, cross
examine the witness upon it, and may read it in evidence. So, also, a
witness may testify from such writing or record, though he retain no
recollection of the particular facts, if he is able to swear that the writing or
record correctly stated the transaction when made; but such evidence
must be received with caution. (10a)
Requisites for a witness to refer to a memorandum:

Sec. 15. Exclusion and separation of witnesses. On any trial or hearing,


the judge may exclude from the court any witness not at the time under
examination, so that he may not hear the testimony of other witnesses.
The judge may also cause witnesses to be kept separate and to be
prevented from conversing with one another until all shall have been
examined. (18)

This rule applies to the trial of civil and criminal cases.

Page 68 of 87

1) Memorandum must have been written or recorded by himself


or under his direction
2) Either:
a. At the time when the fact occurred, or
b. Immediately thereafter, or
c. Any other time when the fact was fresh in his memory
3) Knew that the same was correctly written or recorded

4) Memorandum must be produced and may be inspected by the


adverse party, who may, if he chooses, cross-examine the
witness upon it, and may read it in evidence
5) If the witness retains no recollection of the particular facts, he
must swear that the writing or record correctly stated the
transaction when made

While the general rule requires that a witness should


testify only to such facts as are within his personal
knowledge and recollection, this requirement is not
violated by permitting him to refresh such knowledge.

The theory is simply that the knowledge or


recollection is that of the witness, resting on his
original personal observations, but that, having grown
hazy through lapse of time, a recreative stimulus may
properly be applied.

If document is presented, mark as an exhibit and also


authenticate.

If document is false, testimony is also false.

By anything written or recorded by himself or under


his direction at the time when the fact occurred or
immediately thereafter, or at any other time when the
fact was fresh in his memory and he knew that the
same was correctly written or recorded applies to
both present recollection revived and past recollection
recorded.

3 Phases of practice: Refreshment of memory


1) Instances where the witness faded memory is actually
refreshed so that he testifies from independent resensing or
revisualization of the event itself otherwise termed present
recollection of facts which is revived or refreshed by reading of
the memorandum

The rule contemplates two situations:


1) Present recollection revived evidence is the
testimony

2) Past recollection recorded evidence is the


document; no independent recollection of fact;
So also

2) Instances where the witness can no longer recall the event


itself in spite of the stimulations, but where he recalls from his
state of mind at the time a memorandum was made and
checked up by him and that he then determined that it was a
correct memorandum in view of his then recollection

In order that a writing may be admissible as a record


of the witness past recollection, a proper foundation
must be laid by showing that the witness once knew
the facts narrated in the memorandum, that he
recollects the making of the memorandum, and that it
was truly made so that he can swear that it is correct.
It must be shown that the witness has no present
independent recollection.

3) Instances where the witness can neither recall his original


memory of the event or his state of mind when the
memorandum was made or checked up by him, but can swear
from his habits and course of business or action that the
memorandum would not have existed or been approved by
him unless it was correct
The last two (2) are termed past recollection.

The memorandum is the document itself and should


not be a summary brief. It still has to be authenticated
in both cases.

Authentication does not usually happen if the


document is public. (irremovability of public record
and the public officer would not testify)

If it is testimony, other party may examine and


inspect.

A memorandum used as a record of past recollection must


be made available to the other side for inspection and use
on cross-examination.

Sec. 17. When part of transaction, writing or record given in evidence, the
remainder admissible. When part of an act, declaration, conversation,
writing or record is given in evidence by one party, the whole of the same
subject may be inquired into by the other, and when a detached act,
declaration, conversation, writing or record is given in evidence, any other

Page 69 of 87

act, declaration, conversation, writing or record necessary to its


understanding may also be given in evidence. (11a)

When part of an act, declaration, conversation, writing or


record is given in evidence by one party, the whole of the
same subject may be inquired into by the other.
When a detached act, declaration, conversation, writing or
record is given in evidence, any other act, declaration,
conversation, writing or record necessary to its
understanding may also be given in evidence.

If lost: present either secondary evidence or certified


true copy from the clerk of the court which appointed
or commissioned the notary (better option)

Wills and last testaments are not included; these are


personal

3) Public records, kept in the Philippines, of private documents


required by law to be entered therein

Sec. 18. Right to respect writing shown to witness. Whenever a writing


is shown to a witness, it may be inspected by the adverse party. (9a)

birth certificate becomes public by reason of the


recording of the private document in a public office

Where a party has a document which he desires to introduce


in evidence, the adverse party has a right to inspect it to
enable him to cross-examine the witness.

B. AUTHENTICATION AND PROOF OF DOCUMENTS


Sec. 19. Classes of Documents. For the purpose of their presentation
evidence, documents are either public or private.
Public documents are:
(a)
The written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public officers,
whether of the Philippines, or of a foreign country;
(b)
Documents acknowledged before a notary public except last wills
and testaments; and
(c)
Public records, kept in the Philippines, of private documents
required by law to the entered therein.
All other writings are private. (20a)

Documents are either public or private, for the purpose of


their presentation in evidence.

Public documents:
1) Written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public
officers, whether of the Philippines, or of a foreign country
2) Notarized documents, except last wills and testaments
acknowledged

Transfer, cede, assign rights and interests

e.g.
notice of lis pendens (simple letter) and affidavit of
adverse claim (with jurat) recorded at the RD

cf 2004 Rules on Notarial Practice (A.M. No. 02-8-13SC effective August 1, 2004)

The presentation of a certified true copy is available in cases


of official acts and public records.

Private documents: by exclusion


Public documents
Genuineness and authenticity
presumed
Binding against the parties and
3rd persons
Certain transactions are
required to be in a public
document (e.g. donation of real
property)

Private documents
Must prove genuineness and
due execution
Binds only parties to the
document

Sec. 20. Proof of private document. Before any private document


offered as authentic is received in evidence, its due execution and
authenticity must be proved either:
(a)
By anyone who saw the document executed or written; or
(b)
By evidence of the genuineness of the signature or handwriting of
the maker.
Any other private document need only be identified as that which it is
claimed to be. (21a)
Requisites for admissibility of private document:

Page 70 of 87

1) Offered as authentic due execution and authenticity must be


proved either
a.

By
i.

Anyone who saw the document executed or


written personal knowledge

Genuineness and Due Execution of the document that it is not


spurious, counterfeit, or of different import on its face from the one
executed (its having been made by the purporting person)

ii.

Evidence of the genuineness of the


signature or handwriting of the maker.

Cases where authenticity of a private document is not necessary:

a) Any witness who believes it to be the


handwriting of such person because
He has seen the person write,
or
Has seen writing purporting to
be his
o Upon which the
witness has acted or
been charged, and
o Has thus acquired
knowledge of the
handwriting of such
person
b) Comparison, made by the witness or
the court, with writings
Admitted or treated as
genuine by the party against
whom the evidence is offered,
or
Proved to be genuine to the
satisfaction of the judge
b.

Authentication process of evidencing the connection, i.e. evidencing


the genuineness of the thing; or evidencing that the thing here shown
did come from the very person or place testified to by the witness

1) When the document is ancient


2) When the due execution or genuineness of the document is
admitted
3) When the due execution or genuineness of the document is
immaterial
4) When the document need only to be identified e.g.
anonymous letter (document is not offered as an authentic
document)
Sec. 21. When evidence of authenticity of private document not necessary.
Where a private document is more than thirty years old, is produced
from the custody in which it would naturally be found if genuine, and is
unblemished by any alterations or circumstances of suspicion, no other
evidence of its authenticity need be given. (22a)
Requisites for private documents to be exempt from authentication:

Unless it is an ancient document; requisites

1) Ancient documents those which have been in existence for


more than 30 years
e.g. party to an agreement usually has a copy of the same
2) Produced from the custody in which it would naturally be
found if genuine
3) Unblemished by any alterations or circumstances of suspicion

i.

More than 30 years old

ii.

Produced from a custody in which it would


naturally be found if genuine, and

iii.

Unblemished by any alterations or


circumstances of suspicion

2) Not offered as authentic identified as that which it is claimed


to be

Page 71 of 87

This is on the theory that under such circumstances,


the instrument proves itself.

In computing the age of an ancient document, the


time is to be reckoned from the date of execution to
the day when the instrument is to be offered in
evidence.

The competency of the evidence is to be determined


by the state of things at the time when it is offered.

Document must be found in the proper custody and


must on its face appear to be genuine.

The rule is not absolute. Their probative value may be


either substantiated or nullified by other competent
evidence.

Sec. 22. How genuineness of handwriting proved. The handwriting of a


person may be proved by any witness who believes it to be the
handwriting of such person because he has seen the person write, or has
seen writing purporting to be his upon which the witness has acted or
been charged, and has thus acquired knowledge of the handwriting of
such person. Evidence respecting the handwriting may also be given by a
comparison, made by the witness or the court, with writings admitted or
treated as genuine by the party against whom the evidence is offered, or
proved to be genuine to the satisfaction of the judge. (23a)

Sec. 24. Proof of official record. The record of public documents


referred to in paragraph (a) of Section 19, when admissible for any
purpose, may be evidenced by an official publication thereof or by a copy
attested by the officer having the legal custody of the record, or by his
deputy, and accompanied, if the record is not kept in the Philippines, with
a certificate that such officer has the custody. If the office in which the
record is kept is in foreign country, the certificate may be made by a
secretary of the embassy or legation, consul general, consul, vice consul,
or consular agent or by any officer in the foreign service of the Philippines
stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office. (25a)

The handwriting of a person may be proved:

The record of public documents of official acts may be evidenced by:


1) Official publication thereof or
2) Copy
a. Attested by
Officer having the legal custody of the record, or
His deputy, and

1) By any witness who believes it to be the handwriting of such


person, because:
a) He has seen the person write; or
b) He has seen writing purporting to be his upon which
the witness acted or been charged, and has thus
acquired knowledge of the handwriting of such person

b.

2) By a comparison with writings admitted or treated as genuine


by the party against whom the evidence is offered, or proved
to be genuine to the satisfaction of the judge, made by the:
a) Witness, or the
b) Court
Sec. 23. Public documents as evidence. Documents consisting of
entries in public records made in the performance of a duty by a public
officer are prima facie evidence of the facts therein stated. All other public
documents are evidence, even against a third person, of the fact which
gave rise to their execution and of the date of the latter. (24a)
Documents consisting of:

If the record is not kept in the Philippines


Accompanied by a certificate that such officer has
the custody made by
o Secretary of the embassy or legation
o Consul general
o Consul
o Vice consul, or
o Consular agent or
o Any officer in the foreign service of the
Philippines stationed in the foreign country in
which the record is kept
Authenticated by the seal of his office

Procedure in obtaining copy of foreign official acts:

1) Entries in public records made in the performance of a duty by


a public officer prima facie evidence of the facts therein
stated.
2) All other public documents evidence, even against a 3 rd
person, of the fact which gave rise to their execution and of
the date of the latter

Page 72 of 87

1) Get a copy from the legal custodian


2) Have the legal custodian attest that the copy is correct
3) Have the Philippine consul certify that the person in #2 is the
legal custodian of a copy of official act

The test of the admissibility of an official record or


document is its public character, and where the

records are essentially private in character, they may


not be admitted as public records, as where they were
not kept by a public officer in the regular course of
business.
S24:
1) Official publication
a) Official Gazette
b) Newspaper of general circulation

To certify to affirm or to assert in writing the correctness or identity


of the designated instrument
Sec. 26. Irremovability of public record. Any public record, an official
copy of which is admissible in evidence, must not be removed from the
office in which it is kept, except upon order of a court where the
inspection of the record is essential to the just determination of a pending
case. (27a)
GR: Any public record, an official copy of which is admissible in
evidence, must not be removed from the office in which it is kept.

2) Certified true copy


a) If foreign, consular office (civic, social, economic
functions)

Exception: Upon order of a court where the inspection of the record is


essential to the just determination of a pending case

If there is no embassy, go to the facilities of the DFA.

Records, being the precedent of the demonstration of justice,


to which every man has a common right to have recourse,
cannot be transferred from place to place to serve a private
purpose; and therefore, they have a common repository, from
where they ought not to be removed.

The court can require the presence of the legal custodian


through the issuance of a subpoena.

Taiwan only has a consular office. It has no embassy


MECO-TECO (One-China policy) go here for documents
Sec. 25. What attestation of copy must state. Whenever a copy of a
document or record is attested for the purpose of evidence, the attestation
must state, in substance, that the copy is a correct copy of the original, or
a specific part thereof, as the case may be. The attestation must be under
the official seal of the attesting officer, if there be any, or if he be the clerk
of a court having a seal, under the seal of such court. (26a)
Attestation of copy must:
1) State the copy is a correct copy of the original, or a specific
part thereof, as the case may be

Sec. 27. Public record of a private document. An authorized public


record of a private document may be proved by the original record, or by a
copy thereof, attested by the legal custodian of the record, with an
appropriate certificate that such officer has the custody. (28a)
Public record of a private document may be proved by:

2) Be under the official seal of the attesting officer, if there be


any, or if he be the clerk of a court having a seal, under the
seal of such court

1) Original record, or
2) Copy thereof
a) Attested by the legal custodian of the record
b) With an appropriate certificate that such officer has the
custody

It is not necessary that particular words be used to


make effective a certificate attesting a paper as a
certified copy. On principle, the certificate need state
no more than that the paper bearing it is a copy of a
specified document in the certifiers custody.

There must be showing that the person has authority.

Include the position of the person attesting.

The seal is very important.

Public records kept in the Philippines of private


writings are public writings, and a copy of the
same, duly certified to be true, should be
admissible in evidence the same as the original
writing.

Sec. 28. Proof of lack of record. A written statement signed by an officer


having the custody of an official record or by his deputy that after diligent
search no record or entry of a specified tenor is found to exist in the
records of his office, accompanied by a certificate as above provided, is

Page 73 of 87

admissible as evidence that the records of his office contain no such


record or entry. (29)

2) Show a course of conduct previously taken by a party to a


principal case

Proof of lack of record:

3) Show the divestiture or acquisition of certain legal rights


through the
rendition of the judgment
e.g. actions on judgments and actions involving property sold
under a writ of execution

1) Written statement
a) Signed by an officer having the custody of an official
record or by his deputy
b) That after diligent search no record or entry of a
specified tenor is found to exist in the records of his
office,
2) Accompanied by a certificate that such officer is supposed to
have custody

4) Show that an issue involved in the principal case was


previously adjudicated
e.g. judgment of conviction or acquittal of the defendant in a
criminal case may be offered under a plea of double jeopardy
by the same defendant in a subsequent prosecution of the
offense charged in the first case

Certificate is enough but could still be questioned.

If a notarized document is lost, get certifications of loss from:

1) Notary public
2) Bureau of archives
3) Clerk of court who commissioned the notary public

A judgment void for want of jurisdiction is open to


contradiction or impeachment in a collateral proceeding.

Collusion in judicial proceedings agreement between two persons


that the one should institute a suit against the other, in order to
obtain the decision of a judicial tribunal for some sinister purpose

Sec. 29. How judicial record impeached. Any judicial record may be
impeached by evidence of: (a) want of jurisdiction in the court or judicial
officer, (b) collusion between the parties, or (c) fraud in the party offering
the record, in respect to the proceedings. (30a)

Any judicial record may be impeached by evidence of:


1) Want of jurisdiction in the court or judicial officer
2) Collusion between the parties, or
3) Fraud in the party offering the record, in respect to the
proceedings

An action to annul a judgment based on fraud cannot prosper


unless the fraud be extrinsic or collateral or unless the fraud
refers to the jurisdiction of the court, and that the facts
constituting it have not been in controversy nor resolved in
the case wherein the judgment, whose nullity is sought, has
been obtained.

Extrinsic fraud fraud in the means whereby the judgment was


procured, and not fraud in the cause of action or matter put in issue
and present for adjudication; not appearing on the pleadings

Judicial record record, official entry, or files of the proceedings in a


court of justice, or of the official act of a judicial officer, in an action,
suit, or proceeding

e.g. convince the other party not to participate in the proceedings


with the promise of withdrawal of the suit but such withdrawal was not
eventually made

A judgment may be used as evidence to prove its own existence and


is generally used for one of four purposes: To

Sec. 30. Proof of notarial documents. Every instrument duly


acknowledged or proved and certified as provided by law, may be
presented in evidence without further proof, the certificate of
acknowledgment being prima facie evidence of the execution of the
instrument or document involved. (31a)

1) Prove a fact collateral to the issues involved in the principal


case
e.g. production of the record of conviction to impeach a
witness

Every instrument duly acknowledged or proved and certified as


provided by law:

Page 74 of 87

1) May be presented in evidence without further proof

The term alteration imports some fraud or improper


design on the part of the person entitled thereunder to
change the effect of the instrument, and if the act is
done by a stranger, without privity or consent of the
parties, it is ordinarily termed an spoliation or
mutilation and its legal consequences are
distinguishable with respect to the parties to the
instrument from those of a technical alteration

Therefore, one has to examine every document


presented and manifest if there are alterations.

2) Certificate of acknowledgment being prima facie evidence of


the execution of the instrument or document involved

An affidavit with jurat is not public.

The presentation of the original suffices.

Sec. 31. Alteration in document, how to explain. The party producing a


document as genuine which has been altered and appears to have been
altered after its execution, in a part material to the question in dispute,
must account for the alteration. He may show that the alteration was made
by another, without his concurrence, or was made with the consent of the
parties affected by it, or was otherwise properly or innocently made, or
that the alteration did not change the meaning or language of the
instrument. If he fails to do that, the document shall not be admissible in
evidence. (32a)

Sec. 32. Seal. There shall be no difference between sealed and unsealed
private documents insofar as their admissibility as evidence is concerned.
(33a)

The party producing a document as genuine which has been altered


and appears to have been altered after its execution, in a part
material to the question in dispute:

Sec. 33. Documentary evidence in an unofficial language. Documents


written in an unofficial language shall not be admitted as evidence, unless
accompanied with a translation into English or Filipino. To avoid
interruption of proceedings, parties or their attorneys are directed to have
such translation prepared before trial. (34a)

1) Must account for the alteration, either as


a.
b.
c.
d.

Made by another, without his concurrence, or


Made with the consent of the parties affected by it, or
Properly or innocently made, or
Alteration did not change the meaning or language of
the instrument

2) If he fails to do that, the document shall not be admissible in


evidence
Alteration in an instrument a change in the instrument by a party
thereto or one entitled thereunder or one in privity with such a person
after the instrument has been signed or fully executed, without
consent of the party to it, by an erasure, interlineations, addition, or
substitution of material matter affecting the:
Identity of the instrument or contract; or
Rights or obligations of the parties

This refers to private documents.

Documents written in an unofficial language:


1) Shall not be admitted as evidence, unless accompanied with a
translation into English or Filipino
2) Parties or their attorneys are directed to have such translation
prepared before trial
C. OFFER AND OBJECTION
Sec. 34. Offer of evidence. The court shall consider no evidence which
has not been formally offered. The purpose for which the evidence is
offered must be specified. (35)

In order that the change may constitute an alteration


in this sense, the act must be one by which the
meaning or language of the instrument is changed,
but by which its identity is not otherwise destroyed.

Page 75 of 87

The court shall consider no evidence which has not been


formally offered.

The judge determines if evidence is excluded: Offer


Comment

The purpose for which the evidence is offered must be


specified.

A document or article is not evidence when it is simply marked


for identification; it must be formally offered in evidence, and
the opposing counsel must have an opportunity of objecting to
it or of cross-examining any witness called to prove or identify
it.

Sec. 35. When to make offer. As regards the testimony of a witness, the
offer must be made at the time the witness is called to testify.
Documentary and object evidence shall be offered after the presentation
of a party's testimonial evidence. Such offer shall be done orally unless
allowed by the court to be done in writing. (n)

The objection is limited to the ground or grounds


specified and does not cover others not specified. Where
specific grounds are stated, the implication is that there
are no others, or, if there are others, that they are
waived.

A specific objection overruled will be effective to the


extent of the grounds specified, and no further.

An objection to evidence cannot be made in advance of


the offer of the evidence sought to be introduced
(premature objection).

Where evidence is competent on any ground, the court


may properly admit the evidence over objection.

A waiver as to the competency of a witness is not a


waiver of the right to object to the competency of such
persons testimony.

Failure to object to evidence at the time it is offered is a


waiver of objections to its admissibility.

Objection to evidence cannot be raised for the first time


on appeal.

Question propounded in the course of the oral


examination as soon as the grounds therefor shall
become reasonably apparent

Grounds for the objections should always be specified.

Grounds for objection:

When to make offer:


1) Testimony the time the witness is called to testify; give a gist
of the proposed testimony and what it seeks to establish
2) Documentary and Object after the presentation of a party's
testimonial evidence; specify the purpose for which they are
being offered

Offer of evidence shall be done orally unless allowed


by the court to be done in writing.

Sec. 36. Objection. Objection to evidence offered orally must be made


immediately after the offer is made.
Objection to a question propounded in the course of the oral examination
of a witness shall be made as soon as the grounds therefor shall become
reasonably apparent.
An offer of evidence in writing shall be objected to within three (3) days
after notice of the unless a different period is allowed by the court.
In any case, the grounds for the objections must be specified. (36a)
When objection to evidence offered must be made:
1) Orally immediately after the offer is made
2) In writing within 3 days after notice of the offer, unless a
different period is allowed by the court

The office of an objection is to stop an answer to a


question put to a witness, or to prevent the receipt of a
document in evidence until the court has had
opportunity to make a ruling upon its admissibility; the
objection lays the foundation for an exception to an
adverse ruling by the court, warning both court and
counsel that such adverse rulings may be the basis of
appellate review.

Page 76 of 87

i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
xi.
xii.

Hearsay
Argumentative
Leading
Misleading
Immaterial
Incompetent
Irrelevant
Vague/confusing/ambiguous/unintelligible
Self-serving
Privileged communication
Lack of foundation
Lack of authentication

xiii.
xiv.
xv.
xvi.
xvii.
xviii.
xix.
xx.
xxi.
xxii.
xxiii.
xxiv.
xxv.
xxvi.
xxvii.
xxviii.

Question is repetitive (asked and answered)


Question asks for a speculative answer
Question is a compound question
Question violates the witness rights under the
Rules
Multiple questions
Improper impeachment
Improper judicial notice
Witness not properly qualified
Self-incrimination
Beyond the scope of the previous examination
Opinion evidence
Calls for a narrative
Calls for a conclusion
Violates the best evidence rule
Violates the parole evidence rule
Lack of basis; assumes a fact not established

This is to highlight and put the appellate court on


notice as to such objections.

There is no need for the judge to rule.

Exceptions: Where
1)
2)
3)
4)
5)

Subsequent evidence is not of the same kind


Question has not been answered
Incompetency of evidence is later shown
Objection refers to preliminary questions
Objection to evidence was sustained but re-offered at a later
stage of trial
6) Evidence admitted on condition
7) Court reserves ruling on objection

Sec. 37. When repetition of objection unnecessary. When it becomes


reasonably apparent in the course of the examination of a witness that the
question being propounded are of the same class as those to which
objection has been made, whether such objection was sustained or
overruled, it shall not be necessary to repeat the objection, it being
sufficient for the adverse party to record his continuing objection to such
class of questions. (37a)

Sec. 38. Ruling. The ruling of the court must be given immediately after
the objection is made, unless the court desires to take a reasonable time
to inform itself on the question presented; but the ruling shall always be
made during the trial and at such time as will give the party against whom
it is made an opportunity to meet the situation presented by the ruling.
The reason for sustaining or overruling an objection need not be stated.
However, if the objection is based on two or more grounds, a ruling
sustaining the objection on one or some of them must specify the ground
or grounds relied upon. (38a)

Requisites for a proper continuing objection:

The ruling of the court on an objection:

1) In the course of the examination of a witness


2) Objection has been made
3) Reasonably apparent that the questions being propounded are
of the same class as those to which objection has been made
4) Adverse party records his continuing objection to such class of
questions

Where an objection to evidence is distinctly made and


overruled, it need not be repeated to the same class
of evidence subsequently received, although the
evidence is given by, or the question asked of, another
witness.
The court may treat the objection as a continuing one.
Instead of repeating the objection to the same class of
questions, the adverse party may records his
continuing objection thereto.

1) Must be given immediately after the objection is made


2) Unless the court desires to take a reasonable time to inform
itself on the question presented; but the ruling shall always be
made
a) During the trial and
b) Such time as will give the party against whom it is made
an opportunity to meet the situation presented by the
ruling
GR: The reason for sustaining or overruling an objection need not be
stated.
Exception: If the objection is based on two or more grounds, a ruling
sustaining the objection on one or some of them must specify the
ground or grounds relied upon.

Page 77 of 87

The parties may ask for the ground for the ruling, even if the
rules do not require the judge to so state.

The court need not rule on objections to evidence until it is


offered.

Where evidence is admitted subject to a future ruling, the


objecting party must renew his objection and secure a ruling
thereon.

Rulings should be unequivocal and so definite in character as


to leave no room for doubt as to what evidence is admitted
and what is excluded.

When an objection to a question is sustained, it means that


the court declares the question improper, and the witness
ought not to answer it.

Sec. 39. Striking out answer. Should a witness answer the question
before the adverse party had the opportunity to voice fully its objection to
the same, and such objection is found to be meritorious, the court shall
sustain the objection and order the answer given to be stricken off the
record.
On proper motion, the court may also order the striking out of answers
which are incompetent, irrelevant, or otherwise improper. (n)

1) Witness answers the question before the adverse party had


the opportunity to voice fully its objection
2) Objection is found to be meritorious
3) Court order that the answer given to be stricken off the record
On proper motion, the court may also order the
striking out of answers which are incompetent,
irrelevant, or otherwise improper.

This is to remove it and that it should not appear on


record.

Ideally, an objection must be interposed as soon as


the grounds therefor become evident. However, it
usually happens that despite the alertness of the
counsel, a witness answers the question with alacrity
(eagerness) before the adverse party has had the
opportunity to voice fully his objection. In that case,
the court shall sustain the objection, if it finds the
same to be meritorious, and shall order the striking
out if such answer.

A motion to strike out evidence is properly denied if it


is not sufficiently definite. Where only a part of the
evidence is admissible, a general motion to strike out
without specifying the particular part objected to must
be denied.

A motion to strike out evidence should be acted upon


seasonably.

Sec. 40. Tender of excluded evidence. If documents or things offered in


evidence are excluded by the court, the offeror may have the same
attached to or made part of the record. If the evidence excluded is oral, the
offeror may state for the record the name and other personal
circumstances of the witness and the substance of the proposed
testimony. (n)

Where the court refuses to permit the counsel to


present testimony which he thinks is competent, material and
necessary to prove his case, the method of properly
preserving the record to the end that the question may be
saved for the purposes of review, is through the making of an
offer of proof (tender of excluded evidence).

When witness is not allowed to testify, the offeror


may state the circumstances, purpose and substance of the
testimony.

Where evidence is inadmissible when offered and


excluded, but thereafter becomes admissible, it must be reoffered, unless the court indicates that a second offer would
be useless.

A re-offer of proof once ruled out by the court


must be timely made. An offer of proof is made at the proper
time when objection is made to the question put to the
witness, and the court has sustained the objection.

Requisites for Striking out an answer:

If documents or things offered in evidence are excluded by the court,


the offeror may:

Page 78 of 87

1) Have the same attached to or made part of the record, if the


evidence is object or documentary
2) If the evidence excluded is oral, the offeror may state for the
record:

a) Name and other personal circumstances of the witness


and
b) Substance of the proposed testimony

The object is described and is eventually deposited with the


court. The same should be properly received to avoid getting
misplaced.

RULE 133
Weight and Sufficiency of Evidence
SECTION 1.
Preponderance of evidence, how determined. In civil
cases, the party having burden of proof must establish his case by a
preponderance of evidence. In determining where the preponderance or
superior weight of evidence on the issues involved lies, the court may
consider all the facts and circumstances of the case, the witnesses'
manner of testifying, their intelligence, their means and opportunity of
knowing the facts to which there are testifying, the nature of the facts to
which they testify, the probability or improbability of their testimony, their
interest or want of interest, and also their personal credibility so far as the
same may legitimately appear upon the trial. The court may also consider
the number of witnesses, though the preponderance is not necessarily
with the greater number. (1a)

Proof is confined to the issues raised in the pleadings. The


weight of evidence is not a question of mathematics, but
depends on its effect in inducing belief, under all of the facts
and circumstances.

In civil cases, the party having the burden of proof must


establish his case by a preponderance of evidence. Stated
differently, the general rule in civil cases is that the party
having the burden of proof of an essential fact must produce a
preponderance of evidence thereon.

In determining where the preponderance or superior weight of


evidence on the issues involved lies, the court may consider:
1) All the facts and circumstances of the case
2) Witnesses' manner of testifying
3) Intelligence
4) Means and opportunity of knowing the facts to which they are
testifying

Page 79 of 87

Observation:
a) Opportunities for observation
b) Capacity for observation
c) Attention as a condition of correct observation
d) Interest as a condition of observation
e) Particular circumstances affecting the power of
observation:
i.
Interest
ii.
Conversation diverting attention
iii.
Fear, horror or excitement
iv.
Observation of ignorant persons
v.
Intoxication
Memory:
a) Memory in general
b) Questions about the memory of witnesses that usually
arise in the trial of the case
c) The Actor Rule
d) Particular circumstances affecting memory
e) Memory of person making dying declarations
f) Recently or remoteness of facts
g) Effect of prior contradictory statements when memory
was presumptively better
h) Memory of important or trivial facts
i) Striking incidence in transaction or event
j) Matters inherently difficult to recollect
k) Memory of events attended by excitement or
commotions or inspiring fear
l) Memory of rapid succession and of order and
sequence of events
m) Memory deceived by leading questions
n) Memory of biased witnesses
o) Memory revived by association of ideas
p) Memory refreshed by memorandum
q) Memory of dates
r) Fixing dates by collateral facts
s) Memory of time of day
t) Estimates of periods of time
u) Collateral facts constituting indicia of time
v) Estimates of time by biased witnesses
w) Influences affecting estimates of time
x) Memory of oral statements, conversations, etc.
y) Whose memory of conversation is best?
z) Memory of dead mans statements
i.
Oral promises in relation to statute of frauds

ii.

Attorneys testifying to oral stipulations or


admissions

Interested witness may be a party to an action or a person


directly interested in the event of a trial, assuming that he is
competent to testify

5) Nature of the facts to which they testify


8) Personal credibility so far as the same may legitimately
appear upon the trial.

a) Dates
b) Time of day
c) Oral statements

Credibility of a witness their disposition and intention to tell


the truth in the testimony they have given

6) Probability or improbability of their testimony


Personal credibility as applied to a witness, means that
which would lead a court to believe or disbelieve what the
witness has said by reason of his appearance and manner
before them while testifying

Probability means consonance to reason.


Improbabilities are provable. An improbable fact properly
verified is not to be rejected because of such improbability.
a)
b)
c)
d)
e)
f)
g)

Testimony inherently improbable


Testimony contrary to natural laws
Testimony contrary to the natural course of things
Mathematical impossibilities
Incredible coincidences
Acts opposed to common sense
Testimony contrary to common observation and
experience
h) Improbability of improvident business transactions
i) Important contracts made without written evidence
improbable
j) Payments without taking receipt
7) Interest or want of interest

9) Number of witnesses, though the preponderance is not


necessarily with the greater number.
Preponderance of evidence does not consist merely in the
greater numerical array of witnesses, but means the weight,
credit, and the value of the aggregate evidence on either side.
In case of conflicting testimonies, the numerical factor may be
given certain weight.
A cause of action on the ground of reformation of instrument must be
proven by clear and convincing evidence.
Rules for weighing evidence:

Generally, the interest of a witness, as affecting his credibility,


signifies the specific inclination which is apt to be produced by
the relation between the witnesses and the facts at issue in
the litigation, and connotes or implies concern for the
advantage or disadvantage of the parties to the cause.

1) The axiomatic rule: Evidence which is justly open to criticism


derogating from its trustworthiness is inferior in weight to
opposing evidence free from perceptible defects.
2) The admitted facts rule: Evidence of whatever description
must yield to the extent that it conflicts with admitted or
clearly established facts,
3) Written evidence superior to oral
4) Positive testimony superior to negative

Biased witness one who has a motive to color his


statements, to suppress the truth, or to state what is false.
Bias that which excites a disposition to see and report
matters as they are wished for rather than as they are
- as applied to a witness, it is the leaning of the mind, a
mental prejudice or predilection

Rules of construction of testimony:


1) Testimony must be considered as a whole, and the true
meaning of answers to isolated questions is to be ascertained
by due consideration of all the questions propounded to the
witness and his answers thereto.
2) Courts must subordinate the literal terms used by a witness
to the substance and effect of his testimony.

Bias of a witness goes only to his credibility, and is not a


reason for exclusion of his testimony.

Page 80 of 87

3) The language of a witness must be construed in its ordinary


sense, and that meaning given to it which he evidently
intended to convey.
4) If the meaning intended by the witness cannot safely be
ascertained, his testimony should be taken to its natural
import and meaning.
5) Where the question put to a witness is long and contains
more than one point, the common habit of witness to answer
only the last point mentioned in the question, should be taken
into consideration in the construction of his testimony.
6) Technical meaning of words is not necessarily controlling.
7) When the testimony of a party is self-contradictory, the courts
are fully justified in taking against him that version of his
testimony which is most unfavorable to him.
8) Where proof as well as pleading is of a doubtful or equivocal
character, it must be construed least favorably to the party
offering it.
9) Where testimony is ambiguous, and there is doubt as to its
correct application to the facts in question, the promotion of
truth and justice to the witnesses require that construction
which will render it as consistent as possible with the
opposing evidence.
10) Where a question addressed to a party by his own counsel is
a composite one, and the witness replies No, it can hardly be
considered as a categorical denial of an individual query.
11) Reading the typewritten report of the testimony as taken by a
stenographer, the court may well be satisfied that the
stenographer made a mistake, and what the witness actually
said may sufficiently appear from the context.
Conflicting testimony must be reconciled, if it can reasonably be done.
Sec. 2. Proof beyond reasonable doubt. In a criminal case, the accused
is entitled to an acquittal, unless his guilt is shown beyond reasonable
doubt. Proof beyond reasonable doubt does not mean such a degree of
proof, excluding possibility of error, produces absolute certainly. Moral
certainly only is required, or that degree of proof which produces
conviction in an unprejudiced mind. (2a)

2) Moral certainty only is required, or that degree of proof which


produces conviction in an unprejudiced mind
Moral certainty a certainty that convinces and directs the
understanding and satisfies the reason and judgment of those who are
bound to act conscientiously upon it
Presumption of Innocence
Conclusion drawn by law in favor
of a citizen
Evidence introduced by law to be
considered by the court

Reasonable Doubt
Condition of the mind produced
by proof resulting from evidence
in the case
Result of insufficient proof

A defense of self-defense must be proven by clear and


convincing evidence. Accused must rely on the
strength of his own evidence and not on the weakness
of that of the prosecution.
Alibi must be proved by positive, clear and
satisfactory evidence. To establish an alibi, defendant
must not only show that he was present at some other
place about the time of the alleged crime, but also
that he was at such other place for so long a time,
that it was impossible for him to have been at the
place where the crime was committed, either before
or after the time he was at such other place. As a rule,
alibi is a weak defense and cannot prevail over the
positive testimony of truthful witnesses.

Sec. 3. Extrajudicial confession, not sufficient ground for conviction.


An extrajudicial confession made by an accused, shall not be sufficient
ground for conviction, unless corroborated by evidence of corpus delicti.
(3)

In a criminal case, the accused is entitled to an acquittal,


unless his guilt is shown beyond reasonable doubt.

Proof beyond reasonable doubt:


1) Does not mean such a degree of proof as, excluding possibility
of error, produces absolute certainty

Page 81 of 87

An extrajudicial confession made by an accused, shall not be


sufficient ground for conviction, unless corroborated by
evidence of corpus delicti.

The rule does not mean that all the elements of the crime
must be clearly established by evidence independent of that
confession. It only means that there should be some evidence
tending to show the commission of the crime apart from the
confession.

Corpus delicti must be proved by evidence other than the


accuseds confession to guard against convictions upon false
confessions of guilt.

Proof of the locus of the crime is not necessary in order to


establish the corpus delicti.

It is sufficient ground for conviction when the prima facie proof


of corpus delicti and the confession, taken together, show the
accuseds guilt beyond reasonable doubt.

2) The facts from which the inferences are derived are proven,
and
The circumstances are not themselves presumed.
An inference cannot be based on another inference.
The facts upon which the inference may legitimately
rest must be established by direct evidence, and to
the same degree as the main fact.
3) The combination of all the circumstances is such as to produce
a conviction beyond reasonable doubt
In criminal prosecutions, a resort to circumstantial
evidence is, in the very nature of things, a necessity.
Direct proof is not essential to establish conspiracy.

Corpus delicti the body of the offense, the substance of the crime
defined in its primary sense as the fact that a crime actually
has been committed
as applied to a particular offense, means the actual
commission by someone of the particular crime charged
homicide: fact of death and the criminal agency of another person as
the cause thereof
embezzlement: agency, control, ownership and conversion of
principals money
theft: taking of the property without the consent of the owner

Elements of corpus delicti: existence of a certain act of result


forming the basis of the criminal charge, as the occurrence of
injury or loss; and the existence of a criminal agency as the
cause of this act or result
1) Certain result has been produced end result of an act
e.g. death
2) Some person is criminally responsible for the act fact
that the end result was produced by a criminal act
e.g. shooting caused such death

Sec. 4. Circumstantial evidence, when sufficient. Circumstantial


evidence is sufficient for conviction if:
(a)
There is more than one circumstances;
(b)
The facts from which the inferences are derived are proven; and
(c)
The combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt. (5)
Circumstantial evidence is sufficient for conviction if:
1) There is more than one circumstance
It is more like a rope composed of several cords.

All the circumstances must be consistent with


each other, consistent with the hypothesis
that the accused is guilty, and at the same
time, inconsistent with the hypothesis that he
is innocent, and with every other rational
hypothesis except that of guilt.

Circumstantial evidence that which relates to a series of other facts


than that fact in issue, which by experience have been found so
associated with that fact that in the relation of cause and effect, they
lead to a satisfactory conclusion
consists of proof of collateral facts and circumstances from
which the existence of the main fact may be inferred
according to reason and common experience
evidence which tends to establish the fact to be proved
through inference based on human experience that that fact
exists when a certain circumstance or set of circumstances is
present
sometimes referred to as indirect or presumptive evidence
Circumstantial Evidence
Evidence which, without going
directly to prove the existence of
a fact, gives rise to a logical
inference that such fact does
exist
Given of facts and circumstances
from which the court may infer
other connected facts which
reasonably follow, according to
the common experience of
mankind

Page 82 of 87

Direct Evidence
Evidence which, if believed,
proved the existence of the fact
in issue without any inference or
presumption
Witnesses testify directly of their
own knowledge as to the main
facts to be proved

Equally direct evidence of a minor Intended evidence which applies


fact or facts of such a nature that
directly to the fact which forms
the mind is led intuitively, or by a
the subject of inquiry, the factum
conscious process of reasoning,
probandum
towards or to the conviction that
from it or them some other fact
may be inferred
Identical nature
Sec. 5. Substantial evidence. In cases filed before administrative or
quasi-judicial bodies, a fact may be deemed established if it is supported
by substantial evidence, or that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a conclusion. (n)

In cases filed before administrative or quasi-judicial bodies, a


fact may be deemed established if it is supported by
substantial evidence.

Applicable in the following:


o Private employees violation of company rules
o NLRC

Not applicable in the following:


o Ombudsman probable cause
o Sandiganbayan beyond reasonable doubt

The discretion must be an actual and judicial discretion,


exercised in view of the special character and circumstances
of the particular case.

When the fact in issue is collateral to the main issue, the court
may, in its discretion, limit the number of witnesses.

The number of witnesses to give opinion evidence may also


be limited.

Whether further evidence will be allowed after a party offering


the evidence has rested his case lies within the discretion of
the trial judge, and this discretion will not be reviewed except
in clear case of abuse.

Sec. 7. Evidence on motion. When a motion is based on facts not


appearing of record the court may hear the matter on affidavits or
depositions presented by the respective parties, but the court may direct
that the matter be heard wholly or partly on oral testimony or depositions.
(7)
When a motion is based on facts not appearing of record:

Substantial evidence that amount of relevant evidence which a


reasonable mind might accept as adequate to justify a conclusion;
lower than preponderance
more than a mere scintilla
does not necessarily import preponderant evidence as
required in an ordinary civil case
means such evidence which affords a substantial basis from
which the fact in issue can be reasonably inferred

1) Court may hear the matter on affidavits or depositions


presented by the respective parties
2) But the court may direct that the matter be heard wholly or
partly on oral testimony or depositions
Affidavit
Always taken ex parte

Sec. 6. Power of the court to stop further evidence. The court may stop
the introduction of further testimony upon any particular point when the
evidence upon it is already so full that more witnesses to the same point
cannot be reasonably expected to be additionally persuasive. But this
power should be exercised with caution. (6)

The trial court may, in its discretion, restrict the number of


witnesses to establish a particular fact, at least where the fact
is sufficiently established and is not controverted.

This refers to facts put in issue in a motion, and not to facts


alleged in the pleadings. Such facts alleged in a motion may
be proved by affidavits and depositions, but the court, in its
discretion, may order that oral testimony be presented before
it; or before a commissioner appointed in accordance with R32
S2 (c): Reference to a commissioner ordered on motion when
a question of fact, other than upon the pleading, arises upon
motion or otherwise, in any stage of a case, or for carrying a
judgment or order into effect.

RULE 134
Perpetuation of Testimony

Page 83 of 87

Deposition
Opposite party has an
opportunity to cross-examine the
witness

[NOTE: This rule will be transposed to Part 1 of the Rules of Court on


Deposition and Discovery]
The Rules of Court contemplates three (3) different situations for the
taking of depositions:
1) Depositions taken pending an action
2) Depositions taken pending an appeal
3) Depositions taken in contemplation of a forthcoming action

parties and their addresses so far as known; and (e) the names and
addresses of the persons to be examined and the substance of the
testimony which he expects to elicit from each, and shall ask for an order
authorizing the petitioner to take the depositions of the persons to be
examined named in the petition for the purpose of perpetuating their
testimony.
Material allegations of petition:
1) Expectancy of action
2) Subject matter of the expected action and petitioners interest
therein
3) Facts which petitioner desires to establish by the proposed
testimony and his reasons thereof
4) Names of expected adverse parties and their addresses so far
as known
5) Identity of persons to be examined and substance or nature of
their expected testimony
6) Prayer for relief

The last 2 kinds are designated as perpetuation of testimony.


Kinds of petitions to perpetuate testimony:
1) To perpetuate the testimony or examine the witnesses in
perpetuam rei memoriam
2) To examine witnesses de bene esse, which is commonly
brought after the commencement of a suit by a person out of
possession to perpetuate testimony which is in danger of
being lost before the matter to which it relates can be
examined into by the proper tribunal

The perpetuation of testimony may not be used for


framing or drafting of a complaint, but only for the
purpose of preserving known testimony against
danger of loss.

Perpetuation of testimony before action should be


limited to the taking of depositions and may not
properly include inspection, survey and photographing
of property.

SECTION 1. Petition. A person who desires to perpetuate his own


testimony or that of another person regarding any matter that may be
cognizable in any court of the Philippines, any file a verified petition in the
court of the province of the residence of any expected adverse party.

A petition for perpetuation of testimony should show


plainly that the court would have jurisdiction of the
contemplated action, in aid of which the testimony is
to be contemplated.

An affidavit setting forth the facts indicating the


danger of the loss of the testimony is necessary,
either as part of the petition itself or as supplementary
thereto.

Sec. 3. Notice and service. The petitioner shall thereafter serve a


notice upon each person named in the petition as an expected adverse
party, together with a copy of a petition, stating that the petitioner will
apply to the court, at a time and place named therein, for the order
described in the petition. At least twenty (20) days before the date of
hearing the notice shall be served in the manner provided for service of
summons.

Sec. 2. Contents of petition. The petition shall be entitled in the name


of the petitioner and shall show: (a) that the petitioner expects to be a
party to an action in a court of the Philippines by is presently unable to
bring it or cause it to be brought; (b) the subject matter of the expected
action and his interest therein; (c) the facts which he desires to establish
by the proposed testimony and his reasons for desiring to perpetuate it;
(d) the names or a description of the persons he expects will be adverse

Page 84 of 87

A proceeding to perpetuate testimony cannot be ex parte. It


requires the filing of a petition and the service of process in
the usual manner upon the defendants interested. The
adverse party must be given an opportunity to be heard but
the hearing must be confined to the issues involved therein.

Notice shall be served in the manner provided under R14 and


the time of the serving of the notice must be at least twenty
(20) days before the date of the hearing of the petition.

deposition may not be used against him in a subsequent


action, although involving the same subject matter.

Sec. 4. Order of examination. If the court is satisfied that the


perpetuation of the testimony may prevent a failure or delay of justice, it
shall make an order designating or describing the persons whose
deposition may be taken and specifying the subject matter of the
examination, and whether the depositions shall be taken upon oral
examination or written interrogatories. The depositions may then be taken
in accordance with Rule 24 before the hearing.

The court must determine whether the necessity for


entertaining the petition exists. The right to perpetuate
testimony does not depend on the condition of the witness,
but upon the situation of the party (petitioner), and his power
to bring his rights to an immediate investigation.
The rules provide for either oral or written examination for
discovery or deposition and for perpetuation of testimony. If
the deposition is taken pending action, the interrogating party
may normally select the mode of examination he prefers, but
in perpetuating testimony, the choice is apparently with the
court.

Sec. 5. Reference to court. For the purpose of applying Rule 24 to


depositions for perpetuating testimony, each reference therein to the court
in which the action is pending shall be deemed to refer to the court in
which the petition for such deposition was filed.

Since in perpetuation of testimony there is no action pending


in court, the court in which the petition for perpetuation of
testimony has been filed may designate the officer before
whom the perpetuation of testimony shall be taken upon oral
examination or written interrogatories.

Sec. 6. Use of deposition. If a deposition to perpetuate testimony is


taken under this rule, or if, although not so taken, it would be admissible
in evidence, it may be used in any action involving the same subject
matter subsequently brought in accordance with the provisions of
Sections 4 and 5 of Rule 24.

The deposition to perpetuate testimony may be used in any


action involving the same subject matter subsequently
brought, and in the same manner as deposition taken pending
action in accordance with R24 S4 and S5.

Where an expected adverse party is duly notified only of the


taking of the deposition, and not of the petition proceeding,
the deposition may not be used against him in a subsequent
action, unless he participates in the taking of the deposition
and such participation can be construed as a waiver of notice
of the petition for perpetuating testimony.

The perpetuation of testimony in itself does not prove the


existence of any right. By reason of its very nature, it can refer
to nothing but facts, if consisting only of the mere declarations
of witnesses.

The testimony thus perpetuated is not in itself conclusive


proof, either of the existence of any right nor even of the facts
to which they relate, as it can be controverted at the trial in
the same manner as though no perpetuation of testimony was
ever had.

Sec. 7. Depositions pending appeal. If an appeal has been taken from a


judgment of the Regional Trial Court or before the taking of an appeal if
the time therefor has not expired, the Regional Trial Court in which the
judgment was rendered may allow the taking of depositions of witnesses
to perpetuate their testimony for use in the event of further proceedings in
the said court. In such case the party who desires to perpetuate the
testimony may make a motion in the said Regional Trial Court for leave to
take the depositions, upon the same notice and service thereof as if the
action was pending therein. The motion shall show (a) the name and the
addresses of the persons to be examined and the substance of the
testimony which he expects to elicit from each; and (b) the reason for
perpetuating their testimony. If the court finds that the perpetuation of the
testimony is proper to avoid a failure or delay of justice, it may make an
order allowing the depositions to be taken, and thereupon the depositions
may be taken and used in the same manner and under the same
conditions as are prescribed in these rules for depositions taken in
actions pending in the Regional Trial Court. (7a)
The deposition referred to in this rule may be taken:

Where an expected adverse party is duly notified of the


petition proceeding, but not of the taking of a deposition, the

Page 85 of 87

1) If an appeal has been taken from a judgment of a Regional


Trial Court, or
2) Before the taking of an appeal if the time therefor has not
expired

The hearing on the motion for leave to perpetuate


testimony pending appeal or after judgment and
before the expiration of the time for taking an appeal
is summary, similar to the hearing of any motion and
would ordinarily be heard on affidavits.

RULE 24
Depositions Before Action or Pending Appeal
Before action

Pending appeal
How Instituted
Verified petition in court with
Motion for leave to take
jurisdiction over residence of
deposition; Indicate substance of
adverse party to perpetuate
testimony and reason for
testimony. Indicate substance of
perpetuating
testimony and reason for
perpetuating

Philippines, may file a verified petition in the court of the place of the
residence of any expected adverse party. (1a, R134)
Venue of petition for depositions before action: court of the residence
of any expected adverse party
Sec. 2. Contents of petition. The petition shall be entitled in the
name of the petitioner and shall show: (a) that the petitioner expects to be
a party to an action in a court of the Philippines but is presently unable to
bring it or cause it to be brought; (b) the subject matter of the expected
action and his interest therein; (c) the facts which he desires to establish
by the proposed testimony and his reasons for desiring to perpetuate it;
(d) the names or a description of the persons he expects will be adverse
parties and their addresses so far as known; and (e) the names and
addresses of the persons to be examined and the substance of the
testimony which he expects to elicit from each, and shall ask for an order
authorizing the petitioner to take the depositions of the persons to be
examined named in the petition for the purpose of perpetuating their
testimony. (2, R134)
Contents of petition for deposition before action:

General procedure for depositions before action:

1) Entitled in the name of petitioner

1) Petition filed by a party who expects to be a party in an action


in the court of the residence of the expected adverse party

2) That the petitioner expects to be a party to an action in a


court of the Philippines but is presently unable to

2) Notice of the petition served on expected adverse party

a) Bring it or

3) Court serves notice of hearing, at least 20 days before, to

b) Cause it to be brought

a) Parties and

3) Subject matter of the expected action and his interest therein

b) Prospective deponents

4) Facts which he desires to establish by the proposed testimony


and his reasons for desiring to perpetuate it

4) Court order
a) Designating or describing the persons whose deposition
may be taken and

5) Names or a description of the persons he expects will be


adverse parties and their addresses so far as known

b) Specifying the subject matter of the examination and

6) Names and addresses of the persons to be examined and the


substance of the testimony which he expects to elicit from
each

c)

Specifying whether the depositions shall be taken upon


oral examination or written interrogatories.

7) Ask for an order authorizing the petitioner to take the


depositions of the persons named to perpetuate their
testimony

5) Deposition taken would be admissible in evidence, it may be


used in any action involving the same subject matter
subsequently brought

Section 1. Depositions before action; petition. A person who


desires to perpetuate his own testimony or that of another person
regarding any matter that may be cognizable in any court of the

Sec. 3. Notice and service. The petitioner shall serve a notice upon
each person named in the petition as an expected adverse party, together
with a copy of the petition, stating that the petitioner will apply to the
court, at a time and place named therein, for the order described in the

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petition. At least twenty (20) days before the date of the hearing, the court
shall cause notice thereof to be served on the parties and prospective
deponents in the manner provided for service of summons. (3a, R134)
Sec. 4. Order and examination. If the court is satisfied that the
perpetuation of the testimony may prevent a failure or delay of justice, it
shall make an order designating or describing the persons whose
deposition may be taken and specifying the subject matter of the
examination and whether the depositions shall be taken upon oral
examination or written interrogatories. The depositions may then be taken
in accordance with Rule 23 before the hearing. (4a, R134)

perpetuating their testimony. If the court finds that the perpetuation of the
testimony is proper to avoid a failure or delay of justice, it may make an
order allowing the depositions to be taken, and thereupon the depositions
may be taken and used in the same manner and under the same
conditions as are prescribed in these Rules for depositions taken in
pending actions. (7a, R134)
General procedure for depositions pending appeal:

Sec. 5. Reference to court. For the purpose of applying Rule 23 to


depositions for perpetuating testimony, each reference therein to the court
in which the action is pending shall be deemed to refer to the court in
which the petition for such deposition was filed. (5a, R134).
Sec. 6. Use of deposition. If a deposition to perpetuate testimony is
taken under this Rule, or if, although not so taken, it would be admissible
in evidence, it may be used in any action involving the same subject
matter subsequently brought in accordance with the provisions of
sections 4 and 5 of Rule 23. (6a, R134)
Sec. 7. Depositions pending appeal. If an appeal has been taken
from a judgment of a court, including the Court of Appeals in proper
cases, or before the taking of an appeal if the time therefor has not
expired, the court in which the judgment was rendered may allow the
taking of depositions of witnesses to perpetuate their testimony for use in
the event of further proceedings in the said court. In such case the party
who desires to perpetuate the testimony may make a motion in the said
court for leave to take the depositions, upon the same notice and service
thereof as if the action was pending therein. The motion shall state (a) the
names and addresses of the persons to be examined and the substance of
the testimony which he expects to elicit from each; and (b) the reason for

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1) Either
a) Appeal has been taken from a judgment of a court
(including CA), or
b) Before the taking of an appeal if the appeal period has
not expired
2) Party moves for leave to take deposition pending appeal
3) Motion shall state
a) Names and addresses of the persons to be examined
and the substance of the testimony which he expects
to elicit from each; and
b) Reason for perpetuating their testimony
4) Service of notice of hearing on the motion
5) Court finds that the perpetuation of the testimony is proper to
avoid a failure or delay of justice
6) Court order allowing the depositions to be taken and used as
in depositions pending actions