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REMEDIAL LAW
GENERAL PRINCIPLES
evidence,
are
equivalent to proof.
not
CONCEPT OF EVIDENCE
FACTUM PROBANS v. FACTUM PROBANDUM
Evidence is the means, sanctioned by the Rules of Court, of
ascertaining in a judicial proceeding the truth respecting a
matter of fact (Sec. 1, Rule 128).
Factum Probandum
The fact or proposition to
be established
NOTE: Evidence is only the means of ascertaining the truth. This

truth would depend upon the evidence admitted in Court.
The fact to be proved, the

fact which is in issue and
to which the evidence is
directed.
SCOPE OF THE RULES ON EVIDENCE

Applicability of the Rules on Evidence
The rules of evidence, being part of the Rules of Court,
apply only to judicial proceedings (Sec. 1, Rule 128).
ADMISSIBILITY OF EVIDENCE
Three (3) Kinds of Admissibility of Evidence
NOTE: The Rules of Court shall not apply to election cases, land
registration, cadastral, naturalization and insolvency proceedings,
and other cases not herein provided for, except by analogy or in a
suppletory character and whenever practicable and convenient.
(Sec. 4, Rule 1).
1.
Multiple admissibility - where the evidence is relevant

and competent for two or more purposes, such
evidence should be admitted for any or all purposes
for which it is offered provided it satisfies all the
requirements of law for its admissibility therefor
(Regalado,
2008).
Thus,
depending
upon
circumstances, the declaration of a dying person may
be admissible for two or more purposes. It may be
offered as a dying declaration under Sec. 37 of Rule
130 of the RoC, as part of res gestae under Sec. 42 of
Rule 130. The statement by a bus driver immediately
after the collision that he dozed off in the wheel while
driving may be admissible as an admission under Sec.
26 of Rule 130 or as part of res gestae pursuant to Sec.
42 of Rule 130.
2.
Conditional admissibility - where the evidence at the

time of its offer appears to be immaterial at the time
of its offer appears to be immaterial or irrelevant
unless it is connected with the other facts to be
subsequently proved, such evidence may be received
on condition that the other facts will be proved
thereafter, otherwise the evidence already given will
be stricken out (Regalado, 2008).
3.
Curative admissibility it allows a party to introduce

otherwise inadmissible evidence to answer the
opposing partys previous introduction of inadmissible
evidence if it would remove any unfair prejudice
caused by the admission of the earlier inadmissible
evidence [Adams v. Burlington N. R.R. Co., 865 S.W. 2d
748, 751 (Mo. App. 1993)]. Thus, a party who first
introduces either irrelevant or incompetent evidence
into the trial cannot complain of the subsequent
admission of similar evidence from the adverse party
relating to the subject matter [Commonwealth v.
Alexander, K., 5 S.W. rd104, 105 (1999) quoting
Dunaway v. Commonwealth , 239 Ky. 166, 39 S.W. 2d
242, 243 (1931); Smith vs. Commonwealth, Ky., 904
S.W. 2d 220, 222 (1995)]. Conversely, the doctrine
should not be invoked where evidence was properly
admitted.
Principle of Uniformity
As a general policy, the rules of evidence shall be same in
all courts and in all trials and hearing (Sec. 2, Rule 128).
EVIDENCE IN CIVIL CASES VERSUS
EVIDENCE IN CRIMINAL CASE
EVIDENCE IN CIVIL CASE
The party having the
burnden of proof must
prove his claim by a
preponderance
of
evidence (Sec. 1, Rule
133).
An offer of compromise is
not an admission of any
liability,
and
not
admissible in evidence
against the offeror (Sec.
27, Rule 130).
The
concept
of
presumption of innocence
does not apply and
generally
there is no
presumption for or against
a party exept in certain
cases provided by law.
EVIDENCE IN CRIMINAL
CASE
The guilt of the accused
has to be proven beyond
reasonable doubt (Sec. 1,
Rule 133).
The same may be received

in
evidence
as
an
admission of guilt except
those
involving quasioffenses
(criminal
negligence)
or
those
allowed by law to be
compromised (Sec. 27,
Rule 130)
The accused enjoys the
constitutional presumption
of innocence (Sec. 14, Art.
III, 1987 Constitution)
PROOF v. EVIDENCE
Proof
The result or effect of
evidence. Bare allegations
unsubstantiated
by
Evidence
The medium or means by
which a fact is proved or
disproved.
UNIVERS ITY OF SANTO TOMAS

2014 GOLDEN NOTES
Factum Probans
The facts or material
evidencing the fact or
proposition
to
be
established.
The
probative
or
evidentiary fact tending to
prove the fact in issue.
342
EVIDENCE
substitute for formal proof of a matter by evidence (Riano,
2013).
REQUISITES OF ADMISSIBILITY OF EVIDENCE

1.
2.
The evidence is relevant to the issue; and
Kinds of judicial notice
NOTE: It is relevant accord if it has such a relation to the fact

in issue as to induce belief in its existence or non-existence.
Relevancy is, therefore determinable by the rule of logic and
human experience.
1.
2.
The evidence is not excluded by the rules (competent)

NOTE: Competency is determined by the prevailing
exclusionary rules of evidence.
Mandatory insofar as those matters enumerated

under Sec. 1, Rule 129;
Discretionary on matters which are of public
knowledge, or are capable of unquestionable
demonstration, or ought to be known to judges
because of their functions (Sec. 2, Rule 129).
When Judicial Notice of a fact may be taken
Relevancy of Evidence
1.
2.
3.
Evidence must have such a relation to the fact in issue as to

induce belief in its existence or non-existence.
In all instances, the court may act on its own initiative

or on request of a party (Sec. 3, Rule 129).
RELEVANCY OF EVIDENCE AND COLLATERAL MATTERS
Collateral matters
During trial;
After trial and before judgment; or
Appeal.
MANDATORY JUDICIAL NOTICE
GR: Evidence on collateral matters is not allowed.
Mandatory judicial notice
XPN: Evidence on collateral matters shall be allowed when

it tends in any reasonable degree to establish the
probability or improbability of fact in issue.
When the matter is subject to a mandatory judicial notice,

no motion or hearing is necessary for the court may take
judicial notice of a fact.
JUDICIAL NOTICE AND JUDICIAL ADMISSIONS

WHAT NEED NOT BE PROVED
Matters subject to mandatory judicial notice (EPOL-APOLMG)
Facts that need not be proved

1.
2.
3.
4.
5.
6.
7.
1.
2.
Those of which the courts may take judicial notice

(Rule 129);
Those that are judicially admitted (Rule 129);
Those that are conclusively presumed (Rule 131);
Those that are disputably presumed but
uncontradicted (Rule 131);
Immaterial allegations; and
Facts admitted or not denied provided they have been
sufficiently alleged (Sec. 1, Rule 8).
Res ipsa loquitur
3.
4.
5.
6.
7.
8.
9.
MATTERS OF JUDICIAL NOTICE
Existence and territorial extent of States;

Political history, forms of government and symbols of
nationality;
Law of nations;
Admiralty and maritime courts of the world and their
seals;
Political constitution and history of the Philippines;
Official acts of legislative, executive and judicial
departments of the Philippines;
Laws of nature;
Measure of time; and
Geographical divisions (Sec. 1, Rule 129).
DISCRETIONARY JUDICIAL NOTICE
Judicial notice
Discretionary judicial notice
It is the cognizance of certain facts which judges may

properly take and act upon without proof because they are
supposed to be known to them. It is based on
considerations of expediency and convenience. It displaces
evidence, being equivalent to proof (Regalado, 2008).
When the matter is subject to discretionary judicial notice,

a hearing is necessary before judicial notice is taken of a
matter.
Function of judicial notice
1.
Matters which the court may take judicial notice of
Judicial Notice dispenses the presentation of evidence and

fulfills the purpose for which the evidence is designed to
fulfill (Moran, 1980, citing Alzua vs. Johnson, 21 Phil. 308).
Matters which are of public knowledge;

NOTE: Public knowledge are those matters coming to the
knowledge of men generally in the course of ordinary
experiences of life, or they may be matters which are
generally accepted by mankind as true and are capable of
ready and unquestioned demonstration.
Its function is to abbreviate litigation by admission of

matters that needs no evidence because judicial notice is a
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FACULTY OF CIV IL LA W
REMEDIAL LAW
2.
Capable of unquestionable demonstration; or

NOTE: Matters which are capable of unquestionable
demonstration are facts, theories and conclusions which have
come to be established and accepted by the specialists in the
areas of natural science, natural phenomena, chronology,
technology, geography, statistical facts and other fields of
professional and scientific knowledge (Francisco, 1996).
3.
2.
3.
Ought to be known to judges because of their judicial

functions (Sec. 2, Rule 129).
NOTE: Judicial notice is not judicial knowledge. The mere
personal knowledge of the judge is not the judicial knowledge
of the court, and he is not authorized to make his individual
knowledge of a fact, not generally or professionally known,
the basis of his action. Judicial cognizance is taken only of
those matters which are "commonly" known (State
Prosecutors vs. Muro, A.M. No. RTJ-92-876, September 19,
1994).
4.
5.
Requisites in order that the principle of discretionary

judicial notice may apply
1.
jurisdiction of great rivers and lakes, and their relation

to provincial boundaries, of navigability of streams,
constituting highway commerce and notorious facts
concerning the same (Banatao v. Tuliao, 38 Phil. 612).
The SC took judicial notice that financial problem is a
factor that beset the sugar industry; that there is crisis
in the sugar industry (Hilado v. Leogardo, Jr., 142 SCRA
286).
The SC took judicial notice of the general increase in
rentals of real estate especially of business
establishments (Commander Realty, Inc. v. CA, 168
SCRA 181).
The SC took judicial notice of the reality that,
especially in local elections , political rivals or
operators benefited from the usually belated decisions
by COMELEC on petitions to cancel or deny due course
to CoCs of potential nuisance candidates (Casimira S.
Dela Cruz vs. Commission on Elections, G.R. No.
192221; November 13, 2012).
The SC has taken into consideration how rapists are
not deterred by the presence of people nearby, such
as the members of their own family inside the same
room, with the likelihood of being discovered, since
lust respects no time, locale or circumstance (People of
the Philippines vs. Neil B. Colorado, G. R. No. 200792;
November 14, 2012).
The matter must be one of common and general

knowledge;
It must be well and authoritatively settled and not
doubtful or uncertain; and
It must be one which is not subject to a reasonable
dispute in that it is either:
a. Generally known within the territorial jurisdiction
of the trial court; or
b. Capable of accurate and ready determination by
resorting to sources whose accuracy cannot
reasonably be questionable (Expertravel & Tours,
Inc. v. CA, G.R. No. 152392, May 26, 2005).
Q: May judicial notice be taken of the financial condition

of the government?
NOTE: The principal guide in determining what facts may be

assumed to be judicially known is that of notoriety (Ibid.). The test
of notoriety is whether the fact involved is so notoriously known as
to make it proper to assume its existence without proof.
Q: May judicial notice be taken of the practice of banks in

conducting background checks on borrowers and sureties?
2.
3.
A: Judicial notice could be taken of the fact that

government is and has for many years been financially
strapped, to the point that even the most essential services
have suffered serious curtailment (La Bugal-BLaan Tribal
Assoc. v. Ramos, 445 SCRA 1).
A: Yes. While courts are not mandated to take judicial

notice of this practice under Sec. 1, Rule 129, they
nevertheless may do so under Rule on discretionary judicial
notice (Sec. 2, Rule 129) which provides that the court may
take judicial notice of matters which are of public
knowledge, or ought to be known to judges because of
their judicial functions (Solidbank Corporation v. Mindanao
Ferroally Corpo., 464 SCRA 409).
Hearing in cases of discretionary judicial notice

DURING 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 (Sec. 3, Rule
129).
AFTER TRIAL BUT 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 (Ibid).
JUDICIAL ADMISSIONS
Judicial Admission
These are admissions, verbal or written, made by a party in
the course of the proceedings in the same case, which does
not require proof (Sec. 4, Rule 129).
NOTE: Hearing is necessary in the foregoing instances to afford the

parties reasonable opportunity to present information relevant to
the propriety of taking such judicial notice or the tenor of the
matter to be judicially noticed.
Judicial admissions v. Extrajudicial admissions

JUDICIAL ADMISSIONS
Instances when the Court takes judicial notice

1.
Those made in the course

of the proceeding in the
same case
The court may take judicial notice of the existence and

location within the territory over which they exercise
2014 GOLDEN NOTES
344
EXTRAJUDICIAL
ADMISSIONS
Those made out of court
or in a judicial proceeding
other than the one under
EVIDENCE
consideration
Do not require proof and
may be contradicted only
by showing that it was
made through palpable
mistake or that no such
admission was made (Sec.
4, Rule 129).
Judicial admissions need
not be offered in evidence
since it is not evidence. It
is superior to evidence
and shall be considered by
the court as established.
Conclusive upon the
admitter
Admissible even if selfserving
Subject to crossexamination
EFFECTS OF JUDICIAL ADMISSIONS
Regarded as evidence and

must be offered as such,
otherwise the court will
not consider it in deciding
the case.
Effects of judicial admission

1.
2.
NOTE: Judicial admissions are conclusive and no evidence is

required to prove the same (Solivio vs. CA, 182 SCRA 119).
Requires formal offer for it

to be considered
Admissions made in pleadings which were NOT filed with

the court
Admissions made therein are not judicial admissions
1. If signed by the party litigant himself Considered as
extrajudicial admission.
2. If signed by the counsel Not admissible because a
counsel only binds his client with respect to
admissions in open court and in pleadings actually filed
with the court (Riano, 2013).
Rebuttable
Not admissible if selfserving
Not subject to crossexamination
Requisites of judicial admission

1.
2.
3.
Effect of an invalid and ineffective denial of actionable

documents attached to the complaint
It must be made by a party to the case or his counsel;

It must be made in the course of the proceedings in
the same case; and
It can be verbal or written admission. There is no
particular form required (Regalado, 2008).
When an action or defense is founded upon an actionable

document, the genuineness and due execution of the same
instrument shall be deemed admitted unless it is
specifically denied under oath. The failure to deny the
genuineness and due execution of said document amounts
to a judicial admission. (PNB v. Refrigeration Industries, Inc.
GR No. 156178, Jan. 20, 2006)
Different forms of judicial admission:

1.
2.
Verbal Verbal waiver of proof made in open court, a

withdrawal of contention, or disclosure made before
the court, or admission made by witness in his
testimony or deposition;
Writing Pleading, bill of particulars, stipulation of
facts, request for admission, or a judicial admission
contained in an affidavit used in the case (31 C.J.S
1069; Programme Inc. v. Province of Bataan, GR No.
144635, June 26, 2006).
NOTE: But the failure to deny the genuineness and due execution
of an actionable document does not preclude a party from arguing
against the document by evidence of fraud, mistake, compromise,
payment, statute of limitations, estoppel and want of
consideration. He is however, precluded from arguing that the
document is a forgery because the genuineness of document is
impliedly admitted (Acabal v. Acabal, 454 SCRA 555; PNB v.
Refrigeration Industries, Inc, ibid.).
NOTE: When an action or defense is founded upon a written
instrument, copied in or attached to the corresponding pleading as
provided by Sec. 7, the genuineness and due execution of the
instrument shall be deemed admitted unless the adverse party,
under oath, specifically denies them, and sets forth what he claims
to be the facts; but the requirement of an oath does not apply
when the adverse party does not appear to be a party to the
instrument or when compliance with an order for an inspection of
the original instrument is refused (Sec. 8, Rule 8).
How judicial admissions are made

Judicial admissions may be made in:
1. The pleadings filed by the parties;
2. The course of the trial either by verbal or written
manifestations or stipulations, including depositions,
written interrogatories and requests for admissions; or
3. Other stages of the judicial proceedings, as in pre-trial
(Binarao vs. Plus Builders, Inc., 491 SCRA 49).
Rule in case of admissions made in amended pleadings
2 ways in which admissions are made in pleadings

1.
2.
They do not require proof; and

They cannot be contradicted because they are
conclusive upon the parties (Ibid).
Admissions in a pleading which had been withdrawn or

superseded by an amended pleading, although filed in the
same case, are considered as extrajudicial admissions. The
original must be proved by the party who relies thereon by
formally offering it in evidence (Torres v. CA, G.R. Nos. L37420-21, July 31, 1984). Pleadings that have been
amended disappear from the record, lose their status as
pleadings and cease to be judicial admissions, and to be
utilized as extrajudicial admission, they must, in order to
have such effect, be formally offered in evidence (Ching v.
Court of Appeals 331 SCRA 16).
Actual Admission When a party categorically admits

a material allegation made by the adverse party.
Implied Admission When the admission is inferred
from the failure to specifically deny the material
allegations in the other partys pleadings.
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REMEDIAL LAW
presumption to be taken by the court as to the wordings
of said law? (1997 Bar Question)
Rule with regard to self-serving evidence

The self-serving rule is not applicable to judicial admissions.
If the declaration is made in open court, it is admissible
because the witness may be cross-examined on that
matter.
Effect of a guilty plea made by the accused during his
arraignment which was later on withdrawn
A: The doctrine of processual presumption applies. The

presumption is that the wordings of the foreign law are the
same as the local law (Northwest Orient Airlines v. CA, G.R.
No. 83033, June 8, 1990; Moran, 1980). In the absence of
evidence of the law of the foreign country, Philippine laws
should be applied under this doctrine (Laureano v. Court of
Appeals, 324 SCRA 414).
A plea of guilty entered by the accused may be later

withdrawn at any time before the judgment of conviction
becomes final. Such plea is not admissible in evidence
against the accused and is not even considered as an
extrajudicial admission.
NOTE: When foreign law refers to law of nations, said law is subject
to mandatory judicial notice under Sec. 1 Rule 129. Under the
Constitution, the Philippines adopts the generally accepted
principles of International Law as part of the law of the land (Sec. 2,
Art. II, 1987 Constitution). Being part of the law of the land, they
are in nature of local laws (Riano, 2013).
HOW JUDICIAL ADMISSIONS MAY BE CONTRADICTED
When foreign law is part of a published treatise, periodical

or pamphlet
Grounds for contradicting judicial admissions

1.
2.
When the foreign law is part of a published treatise,

periodical or pamphlet and the writer is recognized in his
profession or calling as expert in the subject, the court, it is
submitted, may take judicial notice of the treatise
containing the foreign law (Rule 130, Sec. 46).
Upon showing that the admission was made through

palpable mistake; or
When it is shown that no such admission was made
(Sec. 4, Rule 129).
Remedy of party who made a judicial admission

1.
2.
When a foreign law refers to the law of nations
Written admission File a motion to withdraw such

pleading, or any other written instrument containing
such admission.
Oral admission The counsel may move for the
exclusion of such admission.
When the foreign law refers to the law of nations, said law
is subject to mandatory judicial notice under Sec. 1 of Rule
129. Under the Philippine Constitution, the Philippines
adopt the generally accepted principles of international law
as part of the law of the land (Sec. 2, Art. II, 1987
Constitution of the Philippines). Being part of the law of the
land, they are therefore, technically in the nature of local
laws and hence, are subject to mandatory judicial notice
under Sec. 1 of Rule 129.
JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS

AND MUNICIPAL ORDINANCE
Judicial notice of foreign laws
Rules with regard to judicial notice of ordinances
GR: Courts cannot take judicial notice of foreign laws. They

must be alleged and proved.
XPN: When said laws are within the actual knowledge of
the court and such laws are:
1. Well and generally known;
2. Actually ruled upon in other cases before it; and none
of the parties claim otherwise (PCIB v. Escolin, 56 SCRA
266).
1.
MTCs are required to take judicial notice of the

ordinances of the municipality or city wherein they sit.
2.
RTCs must take judicial notice of ordinances in force in

the municipalities within their jurisdiction only:
a. When expressly authorized to do so by statute; or
b. In case on appeal before them and wherein the
inferior court took judicial notice of an ordinance
involved in the same case.
3.
Appellate courts may also take judicial notice of

ordinances not only because the lower courts took
judicial notice thereof but because these are facts
capable of unquestionable demonstration (Riano,
2013).
Doctrine of Processual Presumption

In international law, the party who wants to have a foreign
law applied to a dispute or case has the burden of proving
the foreign law. Where a foreign law is not pleaded or even
if pleaded, is not proved, the presumption is that the
foreign law is same as ours (ATCI Overseas Corporation,
Amalia G.Ikdal and Ministry of Public Health Kuwait vs.
Ma. Josefina Echin, G.R. No. 178551, October 11, 2010).
Rule on judicial notice of records of another case

previously tried
Q: Suppose a foreign law was pleaded as part of the

defense of the defendant but no evidence was presented
to prove the existence of said law, what is the

2014 GOLDEN NOTES
GR: Courts are not authorized to take judicial notice of the

contents of the records of other cases, even when such
cases have been tried or are pending in the same court, and
346
EVIDENCE
notwithstanding the fact that both cases may have been
heard or are actually pending before the same judge
(Calamba Steel Center, Inc. v. CIR, G.R. No. 151857, April 28,
2005).
Object evidence, also known as real evidence,

demonstrative evidence, autoptic preference and physical
evidence, is that evidence which is addressed to the senses
of the court (Sec. 1, Rule 130). It is not limited to the view of
an object. It extends to the visual, auditory, tactile,
gustatory, and olfactory.
XPNs:
1. When in the absence of any objection, with the
knowledge of the opposing party, the contents of said
other cases are clearly referred to by title and number
in a pending action and adopted or read into the
record of the latter;
2. When the original record of the other case or any part
of it is actually withdrawn from the archives at the
courts discretion upon the request, or with the
consent, of the parties, and admitted as part of the
record of the pending case (Jumamil v. Cafe, G.R. No.
144570, September 21, 2005).
3. When the action is closely interrelated to another case
pending between the same parties;
4. Where the interest of the public in ascertaining the
truth are of paramount importance;
5. In cases seeking to determine what is reasonable
exercise of discretion or whether or not the previous
ruling is applicable in a case under consideration; or
6. Where there is finality of a judgment in another case
that was previously pending determination and
therefore, res judicata (Herrera, 1999).
NOTE: When physical evidence runs counter to testimonial

evidence, conclusion as to physical evidence must prevail (People
vs. Aguinaldo, 316 SCRA 819).
Five senses
1. Visual
2. Auditory
3. Gustatory
4. Olfactory
5. Tactile
Examples of object evidence

1.
2.
3.
4.
5.
Q: Anna and Badong were accused of killing Cathy.

However, only Anna was arrested since Badong went into
hiding. After trial, Anna was acquitted of the charge in a
decision rendered by Judge Santos. Subsequently, Badong
was arrested and brought to trial. After trial, Badong was
found guilty of homicide in a decision rendered by Judge
Yantok, the judge who replaced Judge Santos after the
latter retired. On appeal, Badong argues that Judge
Yantok should have taken judicial notice of the acquittal
of Anna rendered by Judge Santos. Is Badong correct?
6.
Any article or object which may be known or perceived

by the use of the senses;
Examination of the anatomy of a person or of any
substance taken therefrom;
Conduct of tests, demonstrations or experiments; and
Examination of representative portrayals of the object
in question (e.g. maps, diagrams)
Documents, if the purpose is to prove their existence
or condition, or the nature of the handwriting thereon
or to determine the age of the paper used, or the
blemishes or alterations (Regalado,Vol. II, p. 717, 2008
ed.).
A persons appearance, where relevant (People vs.
Rullepa, 398 SCRA 567).
Paraffin test
A test which can establish the presence or absence of
nitrates or nitrites on the hand but the test alone cannot
determine whether the source of the nitrates or nitrites
was discharge of a firearm.
A: No. The appreciation of one judge of the testimony of a

certain witness is not binding on another judge who heard
the testimony of the same witness on the same matter.
Each magistrate who hears the testimony of a witness is
called upon to make his own appreciation of the evidence.
It is, therefore, illogical to argue that because one judge
made a conclusion in a certain way with respect to one or
more of the accused; it necessarily dictates that the
succeeding judge who heard the same case against the
other accused should automatically make the same
conclusion (People v. Langit, G.R. Nos. 134757-58, Aug. 4,
2000).
NOTE: The paraffin test is merely corroborative evidence, neither

proving nor disproving that a person did indeed fire a gun. The
positive or negative results of the test can be influenced by certain
factors such as the wearing of gloves by the subject, perspiration of
the hands, wind direction, etc. (People v. Buduhan, G.R. 178196,
August 6, 2008).
Polygraph test
An electromechanical instrument that simultaneously
measures and records certain physiological changes in the
human body that are believed to be involuntarily caused by
an examinees conscious attempt to deceive the questioner
(Wests legal thesaurus dictionary, 1986).
OBJECT (REAL) EVIDENCE

NATURE OF OBJECT EVIDENCE
Object Evidence
Q: Ron was charged with murder for shooting Carlo. After

trial, Ron was found guilty as charged. On appeal, Ron
argued that the trial court should have acquitted him as
his guilt was not proved beyond reasonable doubt. He
argues that the paraffin test conducted on him 2 days
after he was arrested yielded a negative result. Hence, he
could not have shot Carlo. Is Ron correct?
Object 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 (Sec. 1,
Rule 130).
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REMEDIAL LAW
witness. Be that as it may, the prosecution presented the
companions of the victim who testified that they were the
ones in the photographs. The defense objected to the
admissibility of the photographs because the person who
took the photographs was not presented as witness. Is the
contention of the defense tenable?
A: No. While the paraffin test was negative, such fact alone
did not ipso facto prove that Ron is innocent. A negative
paraffin result is not conclusive proof that a person has not
fired a gun. It is possible to fire a gun and yet be negative
for nitrates, as when the culprit is wearing gloves or he
washes his hands afterwards. Here, since Ron submitted
himself for paraffin testing only two days after the
shooting, it was likely he had already washed his hands
thoroughly, thus removing all traces of nitrates therefrom
(People v. Brecinio, G.R. No. 138534, March 17, 2004).
A: No. Photographs, when presented in evidence, must be

identified by the photographer as to its production and
testified as to the circumstances under which they were
produced. The value of this kind of evidence lies in its being
a correct representation or reproduction of the original,
and its admissibility is determined by its accuracy in
portraying the scene at the time of the crime.
REQUISITES FOR ADMISSIBILITY

Requisites for admissibility of object evidence
1.
2.
The photographer, however, is not the only witness who

can identify the pictures he has taken. The correctness of
the photograph as a faithful representation of the object
portrayed can be proved prima facie, either by the
testimony of the person who made it or by other
competent witnesses who can testify to its exactness and
accuracy, after which the court can admit it subject to
impeachment as to its accuracy. Here, the photographs are
admissible as evidence inasmuch as the correctness thereof
was testified to by the companions of the victim (Sison v.
People, G.R. Nos. 108280-83, November 16, 1995).
It must be relevant and competent;

Authenticated;
NOTE: To authenticate the object, it must be shown that the
object is the very thing that is either the subject matter of the
law suit or the very one involved to prove an issue in the
case.
3.
The authentication must be made by a competent

witness who should identify the object to be the actual
thing involved.
Q: Appellant Thor was charged with and convicted of the

special complex crime of robbery with homicide by the
trial court. On his appeal, he asseverates that the
admission as evidence of victim's wallet together with its
contents, violates his right against self-incrimination.
Likewise, Thor sought for their exclusion because during
the custodial investigation, wherein he pointed to the
investigating policemen the place where he hid the
victim's wallet, he was not informed of his constitutional
rights (Miranda rights). Decide the case.
Purposes of authentication of object evidence

1.
2.
Prevent the introduction of an object different from

the one testified about; and
Ensure that there have been no significant changes in
the objects condition.
Circumstances when the court may refuse the

introduction of object or real evidence and rely on
testimonial evidence alone
1.
A: The right against self-incrimination guaranteed under

our fundamental law finds no application in this case. This
right is simply a prohibition against legal process to extract
from the [accused]'s own lips, against his will, admission of
his guilt. It does not apply to the instant case where the
evidence sought to be excluded is not an incriminating
statement but an object evidence. Infractions on the socalled Miranda rights render inadmissible only the
extrajudicial confession or admission made during custodial
investigation. The admissibility of other evidence is not
affected even if obtained or taken in the course of custodial
investigation. Concededly, Thor was not informed of his
rights during the custodial investigation. Neither did he
execute a written waiver of these rights in accordance with
the constitutional prescriptions. Nevertheless, these
constitutional shortcuts do not affect the admissibility of
the victim's wallet and its contents (People v. Malimit, G.R.
No. 109775, November 14, 1996).
Its exhibition is contrary to public morals or decency;

NOTE: But if the exhibition of such object is necessary in the
interest of justice, it may still be exhibited, and the court may
exclude the public from such view. Such exhibition may not
be refused if the indecent or immoral objects constitute the
very basis of the criminal or civil action. (Moran, 1980)
2.
3.
4.
To require its being viewed in court or in ocular

inspection would result in delays, inconvenience, or
unnecessary expenses which are out of proportion to
the evidentiary value of such object;
Such object evidence would be confusing or
misleading, as when the purpose is to prove the
former condition of the object and there is no
preliminary showing that there has been no
substantial change in said condition; or
The testimonial or documentary evidence already
presented clearly portrays the object in question as to
render a view thereof unnecessary (Regalado, 2008).
Q: In a criminal case for murder, the prosecution offered

as evidence, photographs showing the accused mauling
the victim with several of the latters companions. The
person who took the photograph was not presented as a
2014 GOLDEN NOTES
348
EVIDENCE
1.
2.
3.
4.
CATEGORIES OF OBJECT EVIDENCE

Categories of
authentication
1.
2.
3.
object
evidence
for
purposes
of
Such record of movements and custody of seized item shall

include the identity and signature of the person who held
temporary custody of the seized item, the date and time
when such transfer of custody were made in the course of
safekeeping and used in court as evidence and the final
disposition (Sec. 1, DDB Reg. No. 1, Series of 2002).
Unique objects Those that have readily identifiable

marks (e.g. a calibre 40 gun with serial number
XXX888).
Objects made unique Those that are made readily
identifiable (e.g. a bolo knife used to hack a victim
which could be identified by a witness in court).
Non-unique objects Those which have no identifying
marks and cannot be marked (e.g. drops of blood)
(Riano, 2013).
Purpose of establishing a chain of custody

To guarantee the integrity of the physical evidence and to
prevent the introduction of evidence which is not authentic
but where the exhibit is positively identified the chain of
custody of physical evidence is irrelevant.
DEMONSTRATIVE EVIDENCE
Real evidence
Tangible object that played
some actual role in the
matter that gave rise to
the litigation
Intends to prove that the
object is used in the
underlying event
From the time of seizure/confiscation to

Receipt in the forensic laboratory to
Safekeeping to
Presentation in court for destruction.
Demonstrative Evidence
Tangible evidence that
merely illustrates a matter
of importance in the
litigation
Intends to show that the
demonstrative object fairly
represents or illustrates a
real evidence
Necessity of establishing a chain of custody

It is necessary when the object evidence is non-unique as it
is not readily identifiable, was not made identifiable or
cannot be made identifiable, e.g. drops of blood or oil,
drugs in powder form, fiber, grains of sand and similar
objects (Riano, 2013).
Discuss the principle of chain of custody with respect to
evidence seized under RA 9165. (2012 Bar Question)
Illustration : Where a
drawing is presented to
illustrate
the
relative
positions
of
the
protagonists and witnesses
to
the
killing,
the
foundation
for
demonstrative
evidence
will normally consist of the
testimony of an eyewitness
or investigator stating that
the drawing was indeed
fairly
represents
the
position of those present in
the event (Francisco, 1996).
In prosecutions involving narcotics and other illegal

substances, the substance itself constitutes part of the
corpus delicti of the offense and the fact of its existence is
vital to sustain a judgment of conviction beyond reasonable
doubt. The chain of custody requirement is essential to
ensure that doubts regarding the identity of the evidence
are removed through the monitoring and tracking of the
movements of the seized drugs from the accused, to the
police, to the forensic chemist, and finally to the court
(People v. Sitco, G.R. No. 178202, May 14, 2010). Ergo, the
existence of the dangerous drug is a condition sine qua non
for conviction (People v. De Guzman Y Danzil, G.R. No.
186498, March 26, 2010). The failure to establish, through
convincing proof, that the integrity of the seized items has
been adequately preserved through an unbroken chain of
custody is enough to engender reasonable doubt on the
guilt of an accused (People v. De Guzman Y Danzil).
VIEW OF AN OBJECT OR SCENE

Where the object in question cannot be produced in court
because it is immovable or inconvenient to remove, it is
proper for the tribunal to go to the object in its place and
there observe it (Francisco, 1996). An ocular inspection
conducted by the judge without the presence of the parties
or due notice is not valid, as an ocular inspection is part of
the trial (Regalado, 2008 citing Adan vs. Abucejo-Luzano,
etc., A.M. No. MTJ-00-1298, August 3, 2000).
Procedure to be followed in the handling and custody of

seized dangerous drugs
The apprehending team having initial custody and control
of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same
in the presence of the accused or the person/s from whom
such items were confiscated and/or seized or his/her
representative or counsel, a representative from media and
the DOJ, and any elected public official who shall be
required to sign the copies of the inventory and be given a
copy thereof.
CHAIN OF CUSTODY IN RELATION TO SECTION 21 OF THE

COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002
Chain of custody
It is the duly recorded authorized movements and custody
of seized drugs or controlled chemicals or plant sources of
dangerous drugs or laboratory equipment of each stage,
349

REMEDIAL LAW
as reference. The marking of the evidence serves to
separate the marked evidence from the corpus of all other
similar or related evidence from the time they are seized
from the accused until they are disposed of at the end of
criminal proceedings, obviating switching, "planting," or
contamination of evidence (People v. Coreche, G.R. No.
182528, August 14, 2009).
Non-compliance with the procedure
Non-compliance with Sec. 21, Art. II of RA 9165 is not fatal
and will not render an accused's arrest illegal or the items
seized/confiscated from him or her inadmissible. What is
material is the proof that the transaction actually took
place, coupled with the presentation before the court of a
specimen of the seized object as part of the corpus delicti.
Non-compliance with the procedure shall not render void
and invalid the seizure of and custody of the drugs only
when:
1. Such non-compliance was under justifiable grounds;
and
2. The integrity and the evidentiary value of the seized
items are properly preserved by the apprehending
team. (People v. Dela Cruz, G.R. No. 177222, October
29,2008; People v. Rivera, G.R. No. 182347, October
17, 2008; Sec. 21 (a), Art. II, IRR of RA 9165).
NOTE: What is of utmost importance is the preservation of the
integrity and evidentiary value of the seized items, as the same
would be utilized in the determination of the guilt or innocence of
the accused. The existence of the dangerous drug is a condition
sine qua non for conviction for the illegal sale of dangerous drugs.
The dangerous drug itself constitutes the very corpus delicti of the
crime and the fact of its existence is vital to a judgment of
conviction. The chain of custody requirement performs the
function of ensuring that the integrity and evidentiary value of the
seized items are preserved, so much so that unnecessary doubts as
to the identity of the evidence are removed (People v. Rivera,
supra.).
When no physical inventory or photograph of the

confiscated evidence
Generally, non-compliance with Secs. 21 and 86 of RA 9165
does not mean that no buy-bust operation against
appellant ever took place. The prosecutions failure to
submit in evidence the required physical inventory and
photograph of the evidence confiscated pursuant to Sec.
21, Art. II of RA 9165 will not discharge the accused from
the crime. Non-compliance with said section is not fatal and
will not render an accuseds arrest illegal or the items
seized or confiscated from him admissible (People v. Dela
Cruz, G.R. No. 185717, June 8, 2011).
NOTE: In cases involving violations of the Dangerous Drugs Act,

credence is given to prosecution witnesses who are police officers
for they are presumed to have performed their duties in a regular
manner, unless there is evidence to the contrary suggesting illmotive on the part of the police officers (People vs. Unisa, 368
SCRA 305).
Failure of apprehending officer/team to issue receipt
Importance of marking requirement as to preservation of

chain of custody
The non-issuance of a receipt for the confiscated drugs

weaken the prosecution's case, since such a receipt is not
essential to establishing a criminal case for selling or
possessing drugs as it is not an element of either crime
(People v. Faizal Askalani, G.R. No. 196257, February 8,
2012).
Crucial in proving chain of custody is the marking of the

seized drugs or other related items immediately after they
are seized from the accused. Marking after seizure is the
starting point in the custodial link, thus it is vital that the
seized contraband are immediately marked because
succeeding handlers of the specimens will use the markings
2014 GOLDEN NOTES
350
EVIDENCE
As long as the integrity and the evidentiary value of the
confiscated/seized items, are properly preserved by the
apprehending officer/team, the failure to issue a receipt
will not render the items seized/confiscated inadmissible as
evidence (People v. Magbanua, G.R. No. 170137, August 27,
2009).
more distinct biological samples originates from the same

person (direct identification) or if the biological samples
originate from related persons (Kinship Analysis) [Sec. 3(e),
AM No. 06-11-5-SC].
NOTE: The scientific basis of this test comes from the fact that our
differences as individuals are due to the differences in the
composition of our genes. These genes comprise a chemical
substance, the deoxyribonucleic acid or DNA (The Court Systems
Journal, 1999).
Presentation of informant is not a prerequisite in drug

cases
The presentation of an informant is not a requisite in the
prosecution of drug cases. The failure of the prosecution to
present the informant does not vitiate its cause as the
latter's testimony is not indispensable to a successful
prosecution for drug-pushing, since his testimony would be
merely corroborative of and cumulative with that of the
poseur-buyer who was presented in court and who testified
on the facts and circumstances of the sale and delivery of
the prohibited drug (People v. Naquito, G.R. No. 180511m
July 20, 2008).
Significance of DNA
The significance lies in the uniqueness of the totality of the
DNA of a person. It is a scientific fact that the totality of
individuals DNA is unique for the individual, except
identical twins (Sec. 3, AM No. 06-11-5-SC).
Q: During Alexis trial for rape with murder, the
prosecution sought to introduce DNA evidence against
him, based on forensic laboratory matching of the
materials found at the crime scene and Alexis hair and
blood samples. Alexis counsel objected, claiming that
DNA evidence is inadmissible because the materials taken
from Alexis were in violation of his constitutional right
against self-incrimination as well as his right of privacy
and personal integrity. Should the DNA evidence be
admitted or not? Reason. (2004 Bar Question)
RULE ON DNA EVIDENCE

(A.M. NO. 06-11-5- SC)
Application of Rule on DNA Evidence
It shall apply whenever DNA evidence is offered, used, or
proposed to be offered or used as evidence in all criminal
and civil actions as well as special proceedings (Sec. 1, AM
No. 06-11-5-SC).
A: The DNA evidence should be admitted. It is not in

violation of the constitutional right against selfincrimination or his right of privacy and personal integrity.
The right against self-incrimination is applicable only to
testimonial evidence. Extracting a blood sample and cutting
a strand from the hair of the accused are purely mechanical
acts that do not involve his discretion nor require his
intelligence.
MEANING OF DNA
Deoxyribonucleic Acid (DNA)
DNA (deoxyribonucleic acid) is the chain of molecules found
in every nucleated cell of the body (Sec. 3, AM No. 06-11-5SC). It is the fundamental building block of a persons entire
genetic make-up, which is found in all human cells and is
the same in every cell of the same person (People v.
Umanito, G.R. No. 172607, October 26, 2007).
APPLICABLE FOR DNA TESTING ORDER

DNA Testing Order
A person who has a legal interest in the litigation may file
an application before the appropriate court, at any time
(Sec. 4, AM No. 06-11-5-SC).
DNA profile
It is the genetic information derived from DNA testing of a
biological sample obtained from a person, which biological
sample is clearly identifiable as originating from that person
[Sec. 3(d), AM No. 06-11-5-S].
The order for a DNA testing shall not however, be issued as

a matter of course and from the mere fact that the person
requesting for the testing has a legal interest in the
litigation. For the order to be issued, there must be a
further showing that:
DNA evidence
It constitutes the totality of the DNA profiles, results and
other genetic information directly generated from DNA
testing of biological samples [Sec. 3(c), AM No. 06-11-5-SC].
1.
2.
DNA testing
It means verified and credible scientific methods which
include the extraction of DNA from biological samples, the
generation of DNA profiles and the comparison of the
information obtained from the DNA testing of biological
samples for the purpose of determining, with reasonable
certainty, whether or not the DNA obtained from two or
3.
4.
351
A biological sample exists that is relevant to the case;

The biological sample:
a. Was not previously subjected to the type of DNA
testing now requested; or
b. Was previously subjected to DNA testing, but the
results may require confirmation for good
reasons;
The DNA testing uses a scientifically valid technique;
The DNA testing has the scientific potential to produce
new information that is relevant to the proper
resolution of the case; and
REMEDIAL LAW
5.
The existence of other factors, if any, which the court

may consider as potentially affecting the accuracy or
integrity of the DNA testing (Sec. 4 AM No. 06-11-5SC).
3.
Finding that the above requirements have been complied

with, the court shall now issue an order, if appropriate to:
1.
2.
Confidentiality of DNA profiles
Take biological samples from any person or crime

scene evidence;
Impose reasonable conditions on the testing to protect
integrity of the biological sample and the reliability of
the test results (Sec. 5, AM No. 06-11-5-SC).
DNA profiles and all results or other information obtained

from DNA testing shall be confidential. Except upon order
of the court, a DNA profile and all results or other
information obtained from DNA testing shall only be
released to any of the following, under such terms and
conditions as may be set forth by the court:
1. Person from whom the sample was taken;
2. Lawyers of private complainants in a criminal action;
3. Duly authorized law enforcement agencies; and
4. Other persons as determined by the court (Sec.11,
A.M. No. 06-11-5-SC).
DNA Testing without prior court order

The Rules on DNA Evidence allows a testing without prior
court order if done before a suit or proceeding is
commenced at the behest of any party including law
enforcement agencies. This also means that a litigation
need not exist prior to DNA testing. Thus, a court order
shall be required only if there is a pending litigation but not
before the litigation (Sec. 4, AM No. 06-11-5-SC).
NOTE: Whoever discloses, utilizes or publishes in any form any

information concerning a DNA profile without the proper court
order shall be liable for indirect contempt of the court wherein
such DNA evidence was offered, presented or sought to be offered
and presented (Ibid.).
Order granting DNA testing immediately executory
DNA TESTING IN DETERMINING PATERNITY
An order granting the DNA testing shall be immediately

executory and shall not be appealable. Any petition for
certiorari initiated therefrom shall not, in any way, stay the
implementation thereof, unless a higher court issues an
injunctive order (Sec. 5, AM No. 06-11-5-SC).
1.
2.
Admissibility of a grant of a DNA testing application
3.
The grant of a DNA testing application shall not be

construed as an automatic admission into evidence of any
component of the DNA evidence that may be obtained as a
result thereof (Sec. 5, AM No. 06-11-5-SC).
2.
3.
POST-CONVICTION DNA TESTING; REMEDY
The evaluation of the weight of matching DNA

evidence or the relevance of mismatching DNA
evidence;
The results of the DNA testing in the light of the
totality of the other evidence presented in the case;
and
DNA results that exclude the putative parent from
paternity shall be conclusive proof of non-paternity
(Sec. 9, AM No. 06-11-5-SC).
Availability of post-conviction DNA testing

Post-conviction DNA testing may be available, without need
of prior court order, to the prosecution or any person
convicted by final and executory judgment (Sec. 6, A.M. No.
06-11-5-SC).
Requisites for the applicability of the post-conviction DNA
testing
Possible results of DNA testing

1.
2.
1.
2.
3.
The samples are similar, and could have originated

from the same source (Rule of Inclusion). In such a
case, the analyst proceeds to determine the statistical
significance of the similarity.
The samples are different hence it must have
originated from different sources (Rule of Exclusion).
This conclusion is absolute and requires no further
analysis;

2014 GOLDEN NOTES
DNA analysis that excludes the putative father from

paternity should be conclusive proof of non-paternity.
If the value of Probability of Paternity is less than
99.9%, the results of the DNA analysis should be
considered as corroborative evidence.
If the value of Probability of Paternity is 99.9% or
higher, then there is refutable presumption of
paternity.
This refutable presumption of paternity should be

subjected to the Vallejo standards (Herrera v. Alba, G.R. No.
148220, June 15, 2005)
Factors that the courts must consider in evaluating DNA

testing results
1.
The test is inconclusive. This might occur due to

degradation, contamination, failure of some aspect of
protocol, or some other reasons. Analysis might be
repeated to obtain a more conclusive result (People v.
Vallejo, G.R. No. 144656, May 9, 2002).
Existing biological sample;

Such sample is relevant to the case; and
The testing would probably result in the reversal or
modification of the judgment of conviction (Sec. 6,
A.M. No. 06-11-5-SC).
Remedy of the convict if the result is favorable to him

Either the convict or the prosecution may file a petition for
a writ of habeas corpus in the court of origin. In case the
352
EVIDENCE
court, after due hearing, finds the petition to be
meritorious, it shall reverse or modify the judgment of
conviction and order the release of the convict, unless
continued detention is justified for a lawful cause. The
petition shall be filed in the court of origin as a rule.
However, the rule also allows the petition to be filed either
in the CA or in the SC, or with any member of said courts. A
hearing may be conducted by the latter courts or by any
member thereof or instead of conducting a hearing, may
instead remand the petition to the court of origin and issue
the appropriate orders (Sec. 10, A.M. No. 06-11-5-SC).
4.
5.
6.
The existence and maintenance of standards and

controls to ensure the correctness of data generated;
The existence of an appropriate reference population
database; and
The general degree of confidence attributed to
mathematical calculations used in comparing DNA
profiles and the significance and limitation of statistical
calculations used in comparing DNA profiles (Sec. 8,
ibid.).
DOCUMENTARY EVIDENCE
ASSESSMENT OF PROBATIVE VALUE OF DNA EVIDENCE

AND ADMISSIBILITY
MEANING OF DOCUMENTARY EVIDENCE

Documentary Evidence
Matters that the court should consider in determining the

probative value of DNA evidence
1.
2.
3.
4.
Documents as evidence consist of writings or any material

containing letters, words, numbers, figures, symbols, or
other modes of written expressions, offered as proof of
their contents (Sec. 2, Rule 130).
The chain of custody, including how the biological

samples were collected, how they were handled, and
the possibility of contamination of the samples;
The DNA testing methodology, including the
procedure followed in analyzing the samples, the
advantages and disadvantages of the procedure, and
compliance with the scientifically valid standards in
conducting the tests;
The forensic DNA laboratory, including accreditation
by any reputable standards-setting institution and the
qualification of the analyst who conducted the tests. If
the laboratory is not accredited, the relevant
experience of the laboratory in forensic casework and
credibility shall be properly established; and
The reliability of the testing result (Sec. 7, AM No. 0611-5-SC).
Document
A document is a deed, instrument or other duly notarized
paper by which something is proved, evidenced or set forth
(Regalado, 2008).
NOTE: Any instrument notarized by a notary public or a competent
public official, with the solemnities required by law, is a public
document. Pleadings filed in a case and in the custody of the clerk
of court are public documents. All other documents are private
documents (Bermejo vs. Barrios, 31 SCRA 764).
2 categories of documentary evidence

1.
2.
Vallejo Standard
In assessing the probative value of DNA evidence,
therefore, courts should consider, among others things, the
following data:
1. How the samples were collected,
2. How they were handled,
3. The possibility of contamination of the samples,
4. The procedure followed in analyzing the samples,
5. Whether the proper standards and procedures were
followed in conducting the tests, and
6. The qualification of the analyst who conducted the
tests (People vs. Vallejo, G.R. No. 144656, May 9,
2002).
Tape-recording as documentary evidence

If a tape recording is played in order to show that particular
words were uttered it will constitute a documentary
evidence. However if it is played to simply show that words
were uttered in a particular accent, then it is an object
evidence (Francisco, 1996).
Q: May a private document be offered and admitted in
evidence both as documentary evidence and object
evidence? (2005 Bar Question)
RULES ON EVALUATION OF RELIABILITY OF THE DNA

TESTING METHODOLOGY
Matters to consider in evaluating reliability of DNA testing
methodology
1.
2.
3.
Writings;
Any other material containing modes of written
expressions the material contains letters, words,
numbers, figures, symbols or other modes of written
expression and offered as proof of their contents
(Riano, 2009).
A: Yes. It is object evidence, when it is addressed to the

senses of the court or when it is presented in order to
establish certain physical evidence or characteristics that
are visible on the paper and the writings that comprise the
document. It is considered as documentary evidence when
it is offered as proof of its contents.
The falsifiability of the principles or methods used,

that is, whether the theory or technique can be and
has been tested;
The subjection to peer review and publication of the
principles or methods;
The general acceptance of the principles or methods
by the relevant scientific community;
353

REMEDIAL LAW
1. When the original has been lost or destroyed, or cannot
be produced in court, without bad faith on the part of
the offeror;
2. 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;
3. 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;
4. When the original is a public record in the custody of a
public officer or is recorded in a public office (Sec. 3,
Rule 130).
REQUISITES FOR ADMISSIBILITY

Requisites for admissibility
1.
2.
3.
4.
The document should be relevant.

The documents should be authenticated and proved in
the manner provided in the Rules of Court (Chua v. CA,
G.R. No. 88383, February 19, 1992); Such
authentication must be done by a competent witness.
The documents should be indentified and marked; and
They should be formally offered to the court and
shown to the opposing party so that the latter may
have the opportunity to object thereto (Ramcar, Inc.
vs. Hi-power Marketing, 495 SCRA 375).
NOTE: Where the issue is only as to whether such a document was

actually executed, or exists, or on the circumstances relevant to or
surrounding its execution or delivery (external facts), the best
evidence rule does not apply and testimonial evidence is
admissible (Moran, 1980).
Q: When Linda died, her common law husband, Lito and

their alleged daughter, Nes, executed an extrajudicial
partition of Lindas estate. Thereafter, the siblings of Linda
filed an action for partition of Lindas estate and
annulment of titles and damages with the RTC. The RTC
dismissed the complaint and ruled that Nes was the
illegitimate daughter of the decedent and Lito based
solely on her birth certificate, which on closer
examination, reveals that Nes was listed as adopted by
both Linda and Lito. Is the trial court correct?
The Best Evidence Rule, applied to documentary evidence,

operates as a rule of exclusion, that is, secondary evidence cannot
be inceptively be introduced as the original writing itself must be
produced in court, except in the four instances mentioned in Sec. 3
(Regalado, 2008).
Best Evidence Rule different from best evidence
A: No. A record of birth is merely a prima facie evidence of

the facts contained therein. It is not conclusive evidence of
the truthfulness of the statements made there by the
interested parties. Nes should have adduced evidence of
her adoption, in view of the contents of her birth
certificate. The mere registration of a child in his or her
birth certificate as the child of the supposed parents is not
a valid adoption, does not confer upon the child the status
of an adopted child and the legal rights of such child, and
even amounts to simulation of the child's birth or
falsification of his or her birth certificate, which is a public
document. The records however are bereft of any such
evidence (Rivera v. Heirs of Villanueva, G.R. No. 141501,
July 21, 2006).
The best evidence rule is often described as a misnomer.

Despite the word best, the rule does not proclaim itself as
the highest and most reliable evidence in the hierarchy of
evidence. The term best has nothing to do with the
degree of its probative value in relation to other types of
evidentiary rules. It is not intended to mean the most
superior evidence. More accurately, it is the original
document rule, or primary evidence rule (Riano, 2013).
Q: What is the reason underlying the adoption of the best
evidence rule? (1998 Bar Question)
A: There is a need to present to the court the exact words
of a writing where a slight variation of words may mean a
great difference in rights. It is also for the prevention of
fraud or mistake in the proof of the contents of a writing.
Theory of indivisibility (rule on completeness)

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 act, declaration,
conversation, writing or record necessary to its
understanding may also be given in evidence (Sec. 17, Rule
132).
Q: Valencia was charged with dishonesty, it was alleged

that his SALN was not reflective of his actual net worth. In
the proceedings with the Office of the Ombudsman, the
evidence that were presented were photocopies of his
credit card transactions. He was dismissed by the
Ombudsman. Can photocopies be the basis of his
conviction in the administrative case to establish
substantive evidence?
BEST EVIDENCE RULE
A: In an administrative proceeding, the law does not

require evidence beyond reasonable doubt or
preponderance of evidence. Substantial evidence is
enough. This presupposes, however, that the evidence
proffered is admissible under the rules. With respect to
photocopied private documents, the rule is that before it
can be considered admissible in evidence, its due execution
or genuineness should first be shown. Failing in this, the
photocopies are inadmissible in evidence; at the very least,
MEANING OF THE RULE

GR: It provides that when the subject of the inquiry is the
contents of the document, no evidence shall be admissible
other than the original document itself.
XPNs:

2014 GOLDEN NOTES
354
EVIDENCE
it has no probative value (Office of the Ombudsman, vs.
Manuel P. Valencia, G.R. No. 183890, April 13, 2011).
2.
WHEN APPLICABLE
Requisites for the applicability of the Best Evidence Rule
1.
2.
When a document is in two or more copies executed

at or about the same time, with identical contents,
including signed carbon copies, all such copies are
equally regarded as originals; or
NOTE: When carbon sheets are inserted between two or
more sheets of writing paper so that the writing of a contract
upon the outside sheet, including the signature of the party
to be charged thereby, produces a facsimile upon the sheets
beneath, such signature being thus reproduced by the same
stroke of pen which made the surface or exposed impression,
all of the sheets so written on are regarded as duplicate
originals and either of them may be introduced in evidence as
such without accounting for the nonproduction of the others
(Trans-pacific Industrial Supplies v. CA, G.R. No. 109172
August 19, 1994).
The subject matter must involve a document; and

The subject of the inquiry is the contents of the
document.
NOTE: When the truth of the document is in issue and not the
contents thereof, the best evidence rule will not be applicable. In
such case, it is the hearsay rule that will apply (Riano, 2009).
Subject of inquiry
3.
When the best evidence rule comes into operation, it is
presumed that the subject of the inquiry is the contents of
the document, thus the party offering the document must
present the original thereof and not any other secondary
evidence.
NOTE: Writings with identical contents made by printing,

mimeographing, lithography and other similar methods
executed at the same time are considered as original
document. Thus, each newspaper sold in the stand is an
original in itself (Riano, 2013).
Collateral Facts Rule

A document or writing which is merely collateral to the
issue involved in the case on trial need not be proved.
Where the purpose of presenting a document is not to
prove its contents, but merely to give coherence to, or to
make intelligible the testimony of a witness regarding a fact
contemporaneous to the writing, the original of the
document need not be presented.
Q: When Anna loaned a sum of money to Blair, Anna

typed a single copy of the promissory note, which they
both signed. Anna made two photocopies of the
promissory note, giving one copy to Blair and retaining the
other copy. Anna entrusted the typewritten copy to his
counsel for safekeeping. The copy with Anna's counsel
was destroyed when the law office was burned.
1. In an action to collect on the promissory note, which
is deemed to be the "original" copy for the purpose
of the best evidence rule?
2. Can the photocopies in the hands of the parties be
considered "duplicate original copies"?
3. As counsel for Anna, how will you prove the loan
given by Anna to Blair? (1997 Bar Question)
Q: At a trial for violation of the Dangerous Drugs Act, the

prosecution offers in evidence a photocopy of the marked
P100.00 bills used in the buy-bust operation. The
accused objects to the introduction of the photocopy on
the ground that the best evidence rule prohibits the
introduction of secondary evidence in lieu of the original.
1. Is the photocopy real (object) evidence or
documentary evidence?
2. Is the photocopy admissible in evidence? (1994 Bar
Question)
A:
1.
2.
A:
1.
It is real (object) evidence, because the contents of the

marked bills are not in issue.
Yes, it is admissible in evidence, because the best
evidence rule does not apply to object or real
evidence. The best evidence rule is inapplicable since
such secondary evidence is only intended to establish
the existence of a transaction and not the contents of
the document.
MEANING OF ORIGINAL DOCUMENT
Original document
1.
When an entry is repeated in the regular course of

business, one being copied from another at or near
the time of the transaction, including entries in
journals and ledgers, all the entries are likewise
equally regarded as originals (Sec. 4, Rule 130).
The original of a document is one the contents of

which are the subject of inquiry;
355
The copy that was signed and lost is the only "original"
copy for purposes of the best evidence rule [Sec. 4 (b),
Rule 130].
2.
No, because they are merely photocopies which were

not signed (Mahilum v. CA, G.R. No. L-17970, July 10,
1966). They constitute secondary evidence (Sec. 5,
Rule 130).
3.
It may be proved by secondary evidence through the

photocopies of the promissory note. When the original
document is 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 (Sec. 5, Rule 130).

REMEDIAL LAW
execution of the note, if not denied under oath, would be deemed
admitted (Sec. 8, Rule 9).
REQUISITES FOR INTRODUCTION OF SECONDARY

EVIDENCE
Intentional destruction of original document
Secondary evidence
Intentional destruction of the originals by a party who

acted in good faith does not preclude the introduction of
secondary evidence of the contents thereof (Regalado,
2009).
It refers to evidence other than the original instrument or

documents itself. It is the class of evidence that is relevant
to the fact in issue, it being first shown that the primary
evidence of the fact is not obtainable. It performs the same
functions as that of primary evidence (EDSA Shangri-La
Hotel and Resort, Inc., v. BF Corporation, GR 145873, June
27, 2008; Francisco, 1992).
Proof of loss or destruction

It may be proved by:
1. Any person who knew of such fact;
2. Anyone who, in the judgment of the court, had made
sufficient examination in the places where the
document or papers of similar character are usually
kept by the person in whose custody the document
was and has been unable to find it; or
3. Any person who has made any other investigation
which is sufficient to satisfy the court that the
document is indeed lost.
NOTE: All duplicates or counterparts of such document must first

be accounted before one can resort to secondary evidence. It must
appear that all of them have been lost or destroyed or cannot be
produced in court. The non-production of the original document,
unless it falls under any of the exceptions in Sec. 3, Rule 130, gives
rise to the presumption of suppression of evidence (De Vera, et al.
vs. Aguilar, et al. G.R. No. 83377, February 9, 1993).
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 (Sec. 5, Rule 130).
NOTE: A reasonable probability of its loss is sufficient, and this may

be shown by a bona fide and diligent search, fruitlessly made, in
places where it is likely to be found (Paylago v. Jarabe, 22 SCRA
1247).
All duplicates or counterparts of a lost or destroyed document
must be accounted for before using copies thereof since all
duplicates are parts of the writing to be proved (De Vera et. al. vs.
Aguilar et. al, G.R. No. 83377; February 9, 1993).
Requisites before the contents of the original document

may be proved by secondary evidence
Order of presentation of secondary evidence
The offeror must prove the following:

1. Execution or existence of the original document;
2. The cause of its unavailability; and
3. The unavailability of the original is not due to bad faith
on his part. (Sec. 5, Rule 130)
Upon proof of its execution and loss of the original

document, its contents may be proved by:
1. Copy of the original;
2. Recital of the contents of the document in some
authentic document; or
3. By the testimony of witnesses (Sec. 5, Rule 130)
NOTE: Accordingly, the correct order of proof is as follows:

existence, execution, loss, and contents. This order may be
changed if necessary at the sound discretion of the court (Citibank
N.A. Mastercard v. Teodoro, G.R. No. 150905, September 23, 2003).
NOTE: The hierarchy of preferred secondary evidence must strictly

be followed.
Who may prove the contents of a document
Due execution of the document
1.
2.
3.
It may be proved through the testimony of:

1. The person who executed it;
2. The person before whom its execution was
acknowledged;
3. Any person who was present and saw it executed and
delivered;
4. Any person who thereafter saw and recognized the
signature;
5. One to whom the parties, thereto had previously
confessed the execution thereof; or
6. By evidence of the genuineness of the signature or
handwriting of the maker (Sec. 20, Rule 132).
4.
5.
Definite Evidentiary Rule

Where the law specifically provides for the class and
quantum of secondary evidence to establish the contents of
a document, or bars secondary evidence of a lost
document, such requirement is controlling. E.g. Evidence of
NOTE: The promissory note is an actionable document and the

original or a copy thereof should have been attached to the
complaint (Sec. 7, Rule 8). In such a case, the genuineness and due

2014 GOLDEN NOTES
Any person who signed the document;

Any person who read it;
Any person who heard when the document was being
read;
Any person who was present when the contents of the
document were talked over by the parties to such an
extent as to give him reasonably full information of the
contents; or
Any person to whom the parties have stated or
confessed the contents thereof.
356
EVIDENCE
a lost notarial will should consist of a testimony of at least
two credible witnesses who can clearly and distinctly
establish its contents (Sec. 6, Rule 76; Regalado, 2008).
notice, Lynette failed to do so. Paula presented a copy of

the note which was executed at the same time as the
original and with identical contents. Over the objection of
Lynette, can Paula present a copy of the promissory note
and have it admitted as valid evidence in her favor? Why?
(2001 Bar Question)
Q: May the presentation or the offer of the original be

waived?
A: Yes, if the party against whom the secondary evidence is
offered does not object thereto when the same is offered in
evidence, the secondary evidence becomes primary
evidence. But even admitted as primary evidence, its
probative value must still meet the various tests by which
its reliability is to be determined. Its admissibility should
not be confused with its probative value (Heirs of Teodoro
De la Cruz v. CA, G.R. No. 117384, October 21, 1998).
A: Yes. Although the failure of Lynette to produce the

original of the note is excusable since she was not given
reasonable notice, a requirement under the Rules before
secondary evidence may be presented, the copy in
possession of Paula is not a secondary evidence but a
duplicate original because it was executed at the same time
as the original and with identical contents. Hence, being the
best evidence, the rule on secondary evidence need not be
complied with.
When original document is in adverse partys custody or

control
When a document produced is not offered in evidence
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 (Sec. 6,
Rule 130).
If the party who calls for the production of a document

does not offer the same in evidence, no unfavorable
inference may be drawn from such failure. This is because a
party who calls for the production of a document is not
required to offer it (Sec. 8, Rule 130).
Production of documents under Sec. 8, Rule 130 v. Rule 27
(mode of discovery)
Requisites in order that secondary evidence may be

admitted when the original document is in the custody or
control of the adverse party
1.
The original is in the possession or under the control of

the opponent;
2.
Demand or notice is made to him by the proponent

signifying that the document is needed;
Sec. 8, Rule 130

Procured by mere notice to
the adverse party, which is
a condition precedent for
the
subsequent
introduction of secondary
evidence
by
the
proponent.
Presupposes that the
document to be produced
is intended as evidence for
the proponent who is
presumed
to
have
knowledge of its contents.
NOTE: No particular form of notice is required, to be given to

the adverse party, as long as it fairly appraises the other party
as to what papers are desired. Even an oral demand in open
court for such production at a reasonable time thereafter will
suffice. Such notice must, however, be given to the adverse
party, or his attorney, even if the document is in the actual
possession of a third person (Regalado, 2008).
3.
Failure or refusal of opponent to produce document in

court; and
When the original consists of numerous accounts
NOTE: A justified refusal or failure of the adverse party to

produce the original document will not give rise to the
presumption of suppression of evidence, or create an
unfavorable inference against him. It only authorizes the
presentation of secondary evidence (Regalado, 2008).
4.
Rule 27
The
production
of
document is in the nature
of a mode of discovery and
can be sought only by
proper motion in the trial
court and is permitted only
upon good cause shown.
Contemplates a situation
wherein the document is
either assumed to be
favorable to the party in
possession thereof or that
the party seeking its
production
is
not
sufficiently informed of the
contents of the same.
When the production of the original writings and their

examination in court would result in great loss of time
considering that the evidence desired from the voluminous
accounts is only the general result of the whole [Sec. 3(c),
Rule 130].
Satisfactory proof of existence of original document

(Sec. 6, Rule 130).
NOTE: A witness may be allowed to offer a summary of a number

of documents, or summary of the contents may be admitted if
documents are so voluminous and intricate as to make an
examination of all of them impracticable. They may also be
presented in the form of charts or calculations (Riano, 2013).
Q: Paula filed a complaint against Lynette for the recovery

of a sum of money based on a promissory note executed
by the latter. During the hearing, Paula testified that the
original note was with Lynette and the latter would not
surrender to Paula the original note which Lynette kept in
a place about one day's trip from where she received the
notice to produce the note and in spite of such notice to
produce the same within 6 hours from receipt of such
357

REMEDIAL LAW
Requisites for the admissibility of secondary evidence
when the original consists of numerous accounts
1.
2.
3.
parties and through the medium of witnesses, records,

documents, exhibits, concrete objects, etc. for the purpose
of inducing belief in the minds of the court or jury as to
their contention." Electronic information (like paper)
generally is admissible into evidence in a legal proceeding
(Blacks Law Dictionary).
The original must consist of numerous accounts or

other documents;
They 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 [Sec. 3(c), Rule 130].
Electronic Document
Refers to information or the representation of information,
data, figures, symbols or other modes of written
expression, described or however represented, by which a
right is established or an obligation extinguished, or by
which a fact may be proved and affirmed, which is received,
recorded, transmitted, stored, processed, retrieved or
produced electronically. It includes digitally signed
documents and any print-out or output, readable by sight
or other means, which accurately reflects the electronic
data message or electronic document [Sec. 1(h), Rule 2].
NOTE: Voluminous records must be made accessible to the adverse

party so that the correctness of the summary of the voluminous
records may be tested on cross-examination (Compania Maritima
v. Allied Free Workers Union, et. al, G.R. No. L-28999, May 24,
1977).
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 (Sec. 7, Rule 130).
NOTE: Whenever a rule of evidence refers to the term writing,

document, record, instrument, memorandum or any other form of
writing, such term shall be deemed to include an electronic
document as defined in these Rules (Sec. 1, Rule 3).
Proof of the contents if the original document is a public

record
Electronic documents are the functional equivalents of paperbased documents (Ibid.).
The contents may be proved by:

1. A certified copy issued by the public officer in custody
thereof (Sec. 7, Rule 130); and
2. Official publication (Herrera, 1999).
Electronic Data Message

Electronic data message refers to information generated,
sent, received or stored by electronic, optical or similar
means [Sec.1 (g), Rule 2].
NOTE: Public records are generally not to be removed from the

places where they are recorded and kept (Sec. 26, Rule 132).
Hence, proof of the contents of a document which forms part of a
public record may be done by secondary evidence.
Q: May a facsimile transmission be considered as

electronic evidence?
RULES ON ELECTRONIC EVIDENCE

A.M. No. 01-7-01-SC
A: No. In enacting R.A. 8792 (E-Commerce Act of 2000),

Congress intended virtual or paperless writings to be the
functional equivalent and to have the same legal function
as paper-based documents. The terms electronic data
message and electronic document, as defined under R.A.
8792, do not include a facsimile transmission. Accordingly,
a facsimile transmission cannot be considered as electronic
evidence. It is not the functional equivalent of an original
under the best evidence rule and is not admissible as
electronic evidence (MCC Industrial Sales Corporation v.
Sangyong Corp., G.R. No. 170633, October 17, 2007).
SCOPE; COVERAGE; MEANING OF ELECTRONIC EVIDENCE;

ELECTRONIC DATA MESSAGE
Scope of Rules on Electronic Evidence
It shall apply to all civil actions and proceedings, as well as
quasi-judicial and administrative cases (Sec. 2, Rule 1).
NOTE: The SC issued a resolution on September 24, 2002, which
took effect on October 14, 2002, to include criminal proceedings in
the coverage of A.M. No. 01-7-01-SC.
PROBATIVE VALUE OF ELECTRONIC DOCUMENTS OR

EVIDENTIARY WEIGHT; METHOD OF PROOF
In the case of Ang v. Court of Appeals, G.R. No. 182835, April 20,
2010, it held that the Rules on Electronic Evidence is not applicable
to criminal actions. However, the RTC decided the case in 2001.
Thus, following the maxim that laws and rules should be
interpreted in favor of the accused, the SC did not apply the
amendment which took effect on October 2002.
Admissibility of electronic evidence

An electronic document is admissible in evidence if it
complies with the rules on admissibility prescribed by the
Rules of Court and related laws and is authenticated in the
manner prescribed by these Rules (Sec. 2, Rule 3).
Electronic Evidence
It is information stored in electronic form that is relevant to
the issues in a particular litigation (Overly, 2002).
NOTE: The authenticity of any private electronic document must

be proved by evidence that it had been digitally signed and other
appropriate security measures have been applied (Sec. 2, Rule 5).
Evidence is "any species of proof, or probative matter,

legally presented at the trial of an issue, by the act of the
2014 GOLDEN NOTES
358
EVIDENCE
Proof of electronic documents
When a copy of an Electronic Document Equivalent to an

Original
Matters relating to the admissibility and evidentiary weight

of an electronic document may be established by an
affidavit stating facts of direct personal knowledge of the
affiant or based on authentic records. The affidavit must
affirmatively show the competence of the affiant to testify
on the matters contained therein (Sec. 1, Rule 9).
When a document is in two or more copies executed at or

about the same time with identical contents, or is a
counterpart produced by the same impression as the
original, or from the same matrix, or by mechanical or
electronic re-recording, or by chemical reproduction, or by
equivalent techniques which accurately reproduces the
original, such copies or duplicates shall be regarded as the
equivalent of the original. Notwithstanding the foregoing,
copies or duplicates shall not be admissible to the same
extent as the original if:
1. A genuine question is raised as to the authenticity of
the original; or
2. In the circumstances it would be unjust or inequitable
to admit a copy in lieu of the original (Sec. 2, Rule 4).
Factors to be considered in assessing evidentiary weight of

an electronic document
1.
2.
3.
4.
5.
6.
The reliability of the manner or method in which it was

generated, stored or communicated, including but not
limited to input and output procedures, controls, tests
and checks for accuracy and reliability of the electronic
data message or document, in the light of all the
circumstances as well as any relevant agreement;
The reliability of the manner in which its originator
was identified;
The integrity of the information and communication
system in which it is recorded or stored, including but
not limited to the hardware and computer programs
or software used as well as programming errors;
The familiarity of the witness or the person who made
the entry with the communication and information
system;
The nature and quality of the information which went
into the communication and information system upon
which the electronic data message document was
based; or
Other factors which the court may consider as
affecting accuracy or integrity of the electronic
document or electronic data message (Sec. 1, Rule 7).
Q: During the hearing of a case, Jeff, a party litigant

therein, offered as evidence photocopies of documents
with information most of which were originally manually
written and signed. The court ordered Jeff to present the
original of the documents but he refused to do so. Jeff
argued that the photocopies of documents he presented
are considered as electronic documents and, hence,
equivalent to original ones. Is Jeff correct?
A: No. Photocopies of documents do not constitute the
electronic evidence defined in Section 1 of Rule 2 of the
Rules on Electronic Evidence. Here, the information in the
photocopies of documents offered by Jeff was not received,
recorded, retrieved or produced electronically. Moreover,
such electronic evidence must be authenticated, which Jeff
failed to do. Finally, the required affidavit to prove the
admissibility and evidentiary weight of the alleged
electronic evidence was not executed, much less presented
in evidence (NPC v. Codilla, G.R. No. 170491, April 4, 2007).
Q: When is electronic evidence regarded as being the

equivalent of an original document under the best
evidence rule? (2003 Bar Question)
BURDEN OF PROOF IN AUTHENTICITY OF ELECTRONIC

EVIDENCE
A: If it is a printout or output readable by sight or other

means, shown to reflect the data accurately (Sec. 1, Rule 4).
As to copies equivalent of the originals, electronic evidence
is an original document when it is:
1. In 2 or more copies executed at or about the same
time with identical contents;
2. A counterpart produced by the same impression as the
original;
3. From the same matrix;
4. By mechanical or electronic re-recording;
5. By chemical reproduction; or
6. By other equivalent techniques which accurately
reproduces the original (Sec. 2, Rule 4).
Burden of Proof
The person seeking to introduce an electronic document in
any legal proceeding has the burden of proving its
authenticity in the manner provided in this Rule (Sec. 1,
Rule 5, REE).
Authentication of an electronic document
1.
2.
NOTE: In all matters not specifically covered by the rules on

evidence, the Rules of Court and pertinent provisions of statutes
containing rules on evidence shall apply. Thus the confidential
character of a privileged communication is not lost solely on the
ground that it is in the form of an electronic document (Sec. 3, Rule
3).
3.
By evidence that it had been digitally signed by the

person purported to have signed the same;
By evidence that other appropriate security
procedures or devices as may be authorized by the
Supreme Court or by law for authentication of
electronic documents were applied to the document;
or
By other evidence showing its integrity and reliability
to the satisfaction of the judge (Sec. 2, Rule 5).
NOTE: Sec. 2 Rule 5 applies only when the document is a private

electronic document and when it is offered as authentic. It is not
applicable when the electronic document is offered simply for
359

REMEDIAL LAW
what it is or for what it is claimed to be without regard to whether
or not it is authentic (Riano, 2009).
AUDIO, PHOTOGRAPHIC, VIDEO AND EPHEMERAL

EVIDENCE
Authentication of electronic or digital signature

1.
2.
3.
Ephemeral electronic communication
By evidence that a method or process was utilized to

establish a digital signature and verify the same;
By any other means provided by law; or
By any other means satisfactory to the judge as
establishing the genuineness of the electronic
signature (Sec. 2, Rule 6).
It refers to telephone conversations, text messages, chat

room sessions, streaming audio, streaming video, and other
electronic forms of communication the evidence of which is
not recorded or retained [Sec. 1(k), A.M. No. 01-7-01-SC].
It shall be proven by the testimony of a person who was a
party to the same or has personal knowledge thereof. In
the absence or unavailability of such witnesses, other
competent evidence be admitted. A recording of the
telephone conversation or ephemeral electronic
communication shall be covered by the immediately
preceding section. If the foregoing communications are
recorded or embodied in an electronic document, then the
provisions of Rule 5 regarding Authentication of Electronic
Documents shall apply (Sec. 2, Rule 11, ibid).
Effect of authentication of an electronic signature

Upon authentication, it shall be presumed that:
1. The electronic signature is that of the person to whom
it correlates;
2. The electronic signature was affixed by that person
with the intention of authenticating or approving the
electronic document to which it is related or to
indicate such persons consent to the transaction
embodied therein; and
3. The methods or processes utilized to affix or verify the
electronic signature operated without error or fault
(Sec. 3, Rule 6).
Audio, photographic or video evidence

Audio, photographic and video evidence of events, acts or
transactions shall be admissible provided it shall be shown,
presented or displayed to the court and shall be identified,
explained or authenticated by the person who made the
recording or by some other person competent to testify on
the accuracy thereof (Sec. 1, Rule 11, ibid).
Effect of authentication of digital signatures

Upon authentication, it shall be presumed that:
1. The information contained in a certificate is correct;
2. The digital signature was created during the
operational period of a certificate;
3. No cause exists to render a certificate invalid or
revocable;
4. The message associated with a digital signature has
not been altered from the time it was signed; and
5. A certificate had been issued by the certification
authority indicated therein (Sec. 4, Rule 6).
Text messages
Text messages have been classified as ephemeral electronic
communication under Section 1(k), Rule 2 of the Rules on
Electronic Evidence, and shall be proven by the testimony
of a person who was a party to the same or has personal
knowledge thereof (Vidallon-Magtolis v. Cielito Salud, A.M.
No. CA-05-20-P, September 9, 2005).
ELECTRONIC DOCUMENTS vis a vis THE HEARSAY RULE
Purposes of presentation of electronic document
A memorandum, report, record or data compilation of acts,

events, conditions, opinions, or diagnoses, made by
electronic, optical or other similar means at or near the
time of or from transmission or supply of information by a
person with knowledge thereof, and kept in the regular
course or conduct of a business activity, and such was the
regular practice to make the memorandum, report, record,
or data compilation by electronic, optical or similar means,
all of which are shown by the testimony of the custodian or
other qualified witnesses, is exempted from the rule on
hearsay evidence (Sec. 1, Rule 8).
Electronic document may be presented for the following

purposes:
1. To establish a right;
2. To establish an obligation;
3. To prove or affirm a fact.
PAROL EVIDENCE RULE
Parol evidence
It is any evidence aliunde (extrinsic evidence) which is
intended or tends to vary or contradict a complete and
enforceable agreement embodied in a document
(Regalado, 2008). It may refer to testimonial, real or
documentary evidence.
NOTE: The presumption provided by the rules may be overcome by

evidence of the untrustworthiness of the source of information or
the method or circumstances of the preparation, transmission or
storage thereof (Sec. 2, Rule 8).
NOTE: Among the evidentiary rules, it is the parol evidence rule

that has direct application to the law on contracts. The rule applies
only to contracts which the parties have decided to set forth in
writing. Hence, parol evidence does not apply to oral contracts
(Riano, 2013).

2014 GOLDEN NOTES
360
EVIDENCE
Parol Evidence Rule
privy of a party to the written instrument in question and

does not base a claim or assert a right originating in the
instrument of the relation established thereby. Thus, if one
of the parties to the case is a complete stranger to the
contract involved therein, he is not bound by this rule and
can introduce extrinsic evidence against the efficacy of the
writing (Lechugas v. CA, et.al, G.R. Nos. L-39972 & L-40300,
August 6, 1986).
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 (Sec. 9, Rule
130).
NOTE: Parol evidence is evidence outside of the agreement of the
parties while the parol evidence rule prevents the presentation of
such parol evidence.
WHEN PAROL EVIDENCE CAN BE INTRODUCED

Exceptions to Parol Evidence Rule
Rationale for the adoption of the parol evidence rule

(1998 Bar Question)
A party may present evidence to modify, explain or add to

the terms of the written agreement if he puts in issue in his
pleadings the following:
It is designed to give certainty to a transaction which has

been reduced to writing, because written evidence is much
more certain and accurate than that which rests on fleeting
memory only (Francisco, 1992). Moreover, it gives stability
to written statements, removes the temptation and
possibility of perjury and prevents possible fraud.
1.
2.
3.
4.
Waiver applicable
Failure to invoke the benefits of the rule constitutes as
waiver of the rule. Inadmissible evidence may be rendered
admissible by failure to object (Riano, 2009).
Kinds of ambiguities
Intrinsic or
Latent
On its face, the
writing appears
clear and
unambiguous
but there are
collateral
matters which
make the
meaning
uncertain
Curable by
evidence aliunde
NOTE: However, even if the parol evidence is admitted, it does not

mean that the court would give probative value to the parol
evidence. Admissibility is not the equivalent of probative value or
credibility (Riano, 2009).
Condition precedent and a

established by parol evidence
condition
An intrinsic ambiguity, mistake or imperfection in the

written agreement;
Failure of the written agreement to express the true
intent of the parties thereto;
Validity of the written agreement; or
Existence of other terms agreed to by the parties or
their successors in interest after the execution of the
written agreement (Sec. 9, Rule 130).
subsequent
Condition precedent may be established by parol evidence

because there is no varying of the terms of the written
contract by extrinsic agreement for the reason that there is
no contract in existence. There is nothing in which to apply
the excluding rule. Conditions subsequent may not be
established by parol evidence since a written contract
already exists.
APPLICATION OF THE PAROL EVIDENCE RULE
Requisites for the application of the parol evidence rule
1.
2.
There must be a valid contract;

The terms of the agreement must be reduced to
writing;
Where the
document refers
to a particular
person or thing
but there are
two or more
persons having
the same name
or two or more
things to which
the description
in the writing
NOTE: Agreement includes wills.
3.
4.
The dispute is between the parties or their successorsin-interest; and

There is dispute as to the terms of the agreement.
Parties should be privies to the contract

The parol evidence rule does not apply, and may not be
properly invoked by either party to the litigation against the
other, where at least one party to the suit is not a party or
361
Extrinsic or
Patent
Ambiguity is
apparent on the
face of the
writing and
requires that
something be
added to make
the meaning
certain
Cannot be cured
by evidence
aliunde because
it is only intrinsic
ambiguity not
extrinsic
ambiguity which
serves as an
exception to the
parol evidence
rule
Where the
contract refers
to an
unidentified
grantee or does
not particularly
identify the
subject matter
thereof such
that, in either
case the text
does not disclose
Intermediate
Ambiguity
consists in the
use of equivocal
words
susceptible of
two or more
interpretation
Curable by
evidence aliunde
Use of terms
such as dollars
tons and
ounces

REMEDIAL LAW
may apply
who are or what

is referred to
Prohibits the varying of the Prohibits the introduction of

terms
of
a
written secondary evidence in lieu
agreement
of the original document
regardless of whether or
not it varies the contents of
the original
Applies only to documents Applies to all kinds of
which are contractual in writings
nature including wills
Can be invoked only when Can be invoked by any party
the controversy is between to an action whether or not
the parties to the written he has participated in the
agreement, their privies, or writing involved
any party affected thereby
like a cestui que trust
(Regalado, 2008)
(Regalado, 2008)
Mistake
The mistake contemplated is one which is a mistake of fact
mutual to both parties (Bernardo, 2008, pg. 38 citing
Gurango vs. IAC, 215 SCRA 332). Parol evidence may only
be allowed, if any of the foregoing matters is put in issue in
the pleadings.
Failure of the written agreement to express true intent of
the parties
Parol evidence may be admitted to show the true
consideration of the contract, or the want or illegality
thereof, or the incapacity of the parties, or the fact that the
contract was fictitious or absolutely simulated, or that
there was fraud in inducement (Regalado, 2008).
AUTHENTICATION AND PROOF OF DOCUMENTS

MEANING OF AUTHENTICATION
Q: Paula filed a complaint against Lynette for the recovery

of a sum of money based on a promissory note executed
by the latter. Paula alleged in her complaint that although
the promissory note says that it is payable within 120
days, the truth is that the note is payable immediately
after 90 days but that if Paula is willing, she may, upon
request of Lynette give the latter up to 120 days to pay
the note. During the hearing, Paula testified that the truth
is that the agreement between her and Lynette is for the
latter to pay immediately after 90 days time. Also, since
the original note was with Lynette and the latter would
not surrender to Paula the original note which Lynette
kept in a place about one day's trip from where she
received the notice to produce the note and in spite of
such notice to produce the same within 6 hours from
receipt of such notice, Lynette failed to do so. Paula
presented a copy of the note which was executed at the
same time as the original and with identical contents.
Over the objection of Lynette, will Paula be allowed to
testify as to the true agreement or contents of the
promissory note? Why? (2001 Bar Question)
Authentication
It is the process of proving the due execution and
genuineness of a document.
When authentication is NOT required
1.
2.
NOTE: A private document required by law to be recorded,

while it is transformed into a public document by the public
record thereof, is not included in this enumeration. Such
recording does not make the private writing itself a public
document so as to make it admissible without authentication.
i.e. birth certificate recorded in the NSO is a public record,
but it is still a private document
3.
4.
A: Yes. As an exception to the parol evidence rule, 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 the failure of the written agreement to express
the true intent and agreement of the parties thereto. Here,
Paula has alleged in her complaint that the promissory note
does not express the true intent and agreement of the
parties. The parol evidence rule may be admitted to show
the true consideration of the contract.
5.
The writing is a notarial document acknowledged,

proved or certified (Sec. 30, Rule 132);
The authenticity and due execution of the document
has been expressly admitted or impliedly admitted by
failure to deny the same under oath; or
When such genuineness and due execution are
immaterial to the issue.
PUBLIC AND PRIVATE DOCUMENTS
Public Document
Private Document
What comprises it
1. The written official acts, All other writings are
or records of the official private (Sec. 19, Rule 132).
acts of the sovereign
authority, official bodies
and tribunals, and public
officers, whether of the
Philippines, or of a
foreign country;
2. Documents
acknowledged before a
notary public except last
DISTINCTIONS BETWEEN THE PAROL EVIDENCE RULE AND

THE BEST EVIDENCE RULE
Parol Evidence Rule
Best Evidence Rule
Presupposes
that
the The original document is
original
document
is not available or there is a
available in court
dispute as to whether said
writing is original

2014 GOLDEN NOTES
The writing is an ancient document (Sec. 21, Rule 132);

The writing is a public document or record (Sec. 19,
Rule 132);
362
EVIDENCE
conduct an examination of the questioned signature in
order to arrive at a reasonable conclusion as to its
authenticity. The opinions of handwriting experts are not
binding upon courts, especially when the question involved
is mere handwriting similarity or dissimilarity, which can be
determined by a visual comparison of specimens of the
questioned signatures with those of the currently existing
ones (Pontaoe v. Pontaoe, G.R. No. 15958, April 22, 2008).
wills and testaments;

and
3. Public records, kept in
the
Philippines,
of
private
documents
required by law to be
entered therein (Sec. 19,
Rule 132).
As to authenticity and admissibility as evidence
Admissible as evidence Before
any
private
without need of further document
offered
as
proof of its genuineness authentic is received in
and due execution
evidence, its due execution
and authenticity must first
be proved.
As to persons bound
Evidence even against third Binds only the parties who
persons, of the fact which executed them or their
gave rise to its due privies, insofar as due
execution and to the date execution and date of the
of the latter
document are concerned
As to validity of certain transactions
Certain transactions must
be contained in a public
document; otherwise they
will not be given any
validity.
WHEN EVIDENCE OF AUTHENTICITY OF A PRIVATE

WRITING IS NOT REQUIRED (ANCIENT DOCUMENTS)
When evidence of authenticity of a private writing is NOT
required
1.
2.
3.
Requisites of ancient document/authentic document rule

1.
2.
3.
NOTE: Church registries of births, marriages and deaths are no

longer public writings nor are they kept by duly authorized public
officials. They are private writings and their authenticity must
therefore be proved, as are all other private writings in accordance
with the rules (Llemos v. Llemos G.R. No. 150162, January 26,
2007).
HOW TO PROVE GENUINENESS OF A HANDWRITING

1.
2.
Who may prove the due execution and authenticity of

private documents
2.
That the private document be more than 30 years old;

That it be produced from a custody in which it would
naturally be found if genuine; and
That it is unblemished by any alteration or
circumstances of suspicion (Sec. 21, Rule 132).
NOTE: This rule applies only if there are no other witnesses to

determine authenticity.
WHEN A PRIVATE WRITING REQUIRES AUTHENTICATION;

PROOF OF A PRIVATE WRITING
1.
The writing is an ancient document (Sec. 21, Rule 132);

The authenticity and due execution of the document
has been expressly admitted or impliedly admitted by
failure to deny the same under oath;
When such genuineness and due execution are
immaterial to the issue
By anyone who saw the document executed or

written; or
By evidence of the genuineness of the signature or
handwriting of the maker.
3.
4.
Any other private document need only be identified as that

which it is claimed to be, i.e. ancient documents.
It may be proved by any witness who actually saw the

person writing the instrument;
By any person who is familiar or has acquired
knowledge of the handwriting of such person, his
opinion as to the handwriting being an exception to
the opinion rule under Secs. 48 & 50 of Rule 130;
By a comparison of the questioned handwriting from
the admitted genuine specimens thereof; or
By expert witness (Secs. 20 & 22, Rule 132; Sec. 49,
Rule 130).
NOTE: Sec. 22 of merely enumerates the methods of proving

handwriting but does not give preference or priority to a particular
method (Lopez v. CA, et. al, L-31494, January 23, 1978).
NOTE: In addition to the modes of authenticating a private

document under Sec. 20, Rule 132, American Jurisprudence also
recognizes the doctrine of self-authentication - where the facts in
writing could only have been known by the writer; and the rule of
authentication by the adverse party - where the reply of the
adverse party refers to and affirms the sending to him and his
receipt of the letter in question, a copy of which the proponent is
offering as evidence (Regalado, 2010).
PUBLIC DOCUMENTS AS EVIDENCE; PROOF OF OFFICIAL

RECORD
Proof of public records
Written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public
officers, e.g. a written foreign law, may be evidenced by:
1. If it is within the Philippines
a. An official publication thereof; or
b. By a copy attested by the officer having the legal
custody of the record, or by his deputy.
2. If it is kept in a foreign country
Q: Is the testimony of a handwriting expert indispensable

to the examination or the comparison of handwritings in
cases of forgery?
A: No. A finding of forgery does not depend entirely on the
testimonies of handwriting experts, because the judge must
363

REMEDIAL LAW
a.
b.
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 with a certificate that such officer
has the custody. 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 (Sec. 24, Rule 132).
PUBLIC RECORD OF A PUBLIC DOCUMENT

Proof of public record of a private document
1.
2.
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 (Sec. 27, Rule 132).
PROOF OF LACK OF RECORD
Proof of lack of record of a document consists of written

statement signed by an officer having custody of an official
record or by his deputy. The written statement must
contain the following matters:
1. There has been a diligent search of the record;
2. That despite the diligent search, no record of entry of
a specified tenor is found to exist in the records of his
office.
NOTE: Upon failure to comply with the above-mentioned

requirements, courts will apply the doctrine of processual
presumption.
Inspection of Public Record

GR: Any public record must not be removed from the office
in which it is kept.
NOTE: The written statement must be accompanied by a certificate

that such officer has the custody of official records (Sec. 28, Rule
132).
XPN: Upon order of a court where the inspection of the

record is essential to the just determination of a pending
case (Sec. 26, Rule 132).
HOW A JUDICIAL RECORD IS IMPEACHED
Probative value of documents consisting of entries in

public records
Impeachment of a judicial record
They are prima facie evidence of the facts stated therein if

entered by a public officer in the performance of a duty. 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 (Sec. 23, Rule 132).
1.
2.
3.
Want of jurisdiction in the court or judicial officer;

Collusion between the parties; or
Fraud in the party offering the record, in respect to the
proceedings (Sec. 29, Rule 132).
Q: Lino was charged with illegal possession of firearm.

During trial, the prosecution presented in evidence a
certification of the PNP Firearms and Explosives Office
attesting that the accused had no license to carry any
firearm. The certifying officer, however, was not
presented as a witness. Is the certification of the PNP
Firearm and Explosives Office without the certifying
officer testifying on it admissible in evidence against Lino?
(2003 Bar Question)
Q: Is a special power of attorney executed and

acknowledged before a notary public in a foreign country
authorizing a person to file a suit against certain persons
in the Philippines admissible in evidence?
A: No, because a notary public in a foreign country is not
one of those who can issue the certificate mentioned in
Sec. 24, Rule 132 of Rules of Court. Non-compliance with
the said rule will render the SPA inadmissible in evidence.
Not being duly established in evidence, the SPA cannot be
used to file a suit in representation of another. The failure
to have the SPA authenticated is not a mere technicality
but a question of jurisdiction (Heirs of Medina v. Natividad,
G.R. No. 177505, November 27, 2008).
A: Yes. Section 28, Rule 130 provides that 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 admissible as evidence that the records of his
office contain no such record or entry.
ATTESTATION OF A COPY
Whenever a copy of a document or record is attested for
the purpose of evidence, the attestation must state, in
substance:
1. That the copy is a correct copy of the original, or a
specific part thereof, as the case may be;
2. It 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 (Sec. 25,
Rule 132).
The records of the PNP Firearm and Explosives Office are a

public record. Hence, notwithstanding that the certifying
officer was not presented as a witness for the prosecution,
the certification he made is admissible in evidence against
Lino.
PROOF OF NOTARIAL DOCUMENTS
Notarial documents
Documents acknowledged before a notary public is
considered a public document and enjoys a presumption of

2014 GOLDEN NOTES
364
EVIDENCE
regularity.
TESTIMONIAL EVIDENCE
The document 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 (Sec. 30, Rule 132).
It is sometimes called viva voce evidence which literally

means living voice or by word of mouth. In this kind of
evidence, a human being (witness) is called to the stand, is
asked questions, and answers the question asked of him
(Riano, 2013).
NOTE: The identification documents which may be presented as

competent evidence of identity by signatories to documents or
instruments to be notarized include, but are not limited to:
passports, drivers licenses, Professional Regulations Commission
identification cards, NBI clearances, police clearances, postal IDs,
voters IDs, Barangay certifications, GSIS e-cards, SSS cards,
Philhealth cards, senior citizens cards, Overseas Workers Welfare
Administration (OWWA) IDs, OFW IDs, seamans books, alien
certificate of registrations/immigrant certificate of registrations,
government office IDs, certifications from the National Council for
the Welfare of Disabled Persons (NCWDP), and DSWD
certifications.
QUALIFICATION OF A WITNESS
Qualification of a Witness
Except as provided in the next succeeding section, all
persons who can perceive, and perceiving, can make their
known perception to others, may be witnesses.
NOTE: 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.
Evidentiary weight of a notarial document
Presumption regarding the qualification of a witness
Notarial documents celebrated with all the legal requisites

under a notarial certificate is evidence of a high character,
and to overcome its recitals, it is incumbent upon the party
challenging it to prove his claim with clear, convincing and
more than mere preponderant evidence.
Generally, a person who takes the witness stand, is

presumed to be qualified to testify. A party who desires to
question the competence of a witness must do so by
making an objection as soon as the facts tending to show
incompetency are apparent (Jones on Evidence, Vol. 3, Sec.
796).
A notarized document carries the evidentiary weight

conferred upon it with respect to its due execution, and it
has in its favor the presumption of regularity which may
only be rebutted by evidence so strong and convincing as to
exclude all controversy as to the falsity of the certificate.
Absent such, the presumption must be upheld. The burden
of proof to overcome the presumption of due execution of
a notarial document lies on the one contesting the same
(Pan Pacific Industrial Sales Co. v. CA, G.R. No.125283,
August 9, 2005).
A prospective witness must show that he has the following

abilities:
1. To observe The testimonial quality of perception;
2. To remember The testimonial quality of memory;
3. To relate The testimonial quality of narration; and
4. To recognize a duty to tell the truth The testimonial
quality of sincerity.
Time when should the witness possess the qualifications
HOW TO EXPLAIN ALTERATIONS IN A DOCUMENT
The qualifications and disqualifications of witnesses are

determined as of the time said witnesses are produced for
examination in court or at the taking of their depositions
(Regalado, 2008).
A party producing a document as genuine which has been

altered and appears to have been altered after its
execution must account for the alteration. He may show
that the alteration:
1. Was made by another, without his concurrence;
2. Was made with the consent of the parties affected by
it;
3. Was otherwise properly or innocently made; or
4. That the alteration did not change the meaning or
language of the instrument.
WHO MAY BE WITNESSES

Who may be witnesses
All persons who:
1. Can perceive and in perceiving;
2. Can make known their perception to others (Sec. 20,
Rule 130);
NOTE: Failure to do at least one of the above will make the

document inadmissible in evidence (Sec. 31, Rule 132).
NOTE: The ability to make known the perception of the

witness to the court involves two factors: (a) the ability to
remember what has been perceived; and (b) the ability to
communicate the remembered perception. It is of common
reason to realize that a witness is presented to testify on a
matter he has perceived. If he cannot remember, he cannot
be a competent witness. (Riano, Evidence: A Restatement for
the Bar, p. 248-249, 2009 ed)
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 (Sec. 33, Rule 132).
3.
365
Must take either an oath or an affirmation (Sec. 1, Rule

132; Riano, 2009); and
REMEDIAL LAW
4.
Must not possess the disqualifications imposed by law

or the rules (Riano, 2013).
Credibility of a witness
A testimony must not only come from a credible witness,
but must be credible in itself, tested by human experience,
observation, common knowledge and accepted conduct
that has evolved through the years (People vs. Mirandilla
Jr., G.R. 186417, July 27, 2011).
Oath vis-a-vis Affirmation

An oath signifies that he is swearing to the Creator to tell
the truth and nothing but the truth and that if he does not,
he will later on answer for all the lies he is guilty of while an
affirmation is a formal declaration of truth in the absence of
swearing to a Creator. It is a declaration about something
to be true.
Q: Does mental unsoundness of the witness, at the time

the facts to be testified to occurred, affect his
competency?
NOTE: The judge must determine first whether the witness

understands the nature of the oath, realizes the moral duty to tell
the truth and understands the prospect of being punished for a
falsehood. A person is not qualified to be a witness if he is
incapable of understanding the duty to tell the truth. (Riano, 2009)
A: No, it only affects his credibility. Nevertheless, as long as

the witness can convey ideas by words or signs and give
sufficiently intelligent answers to questions propounded,
she is a competent witness even if she is feeble-minded or
is mental retardate or is a schizophrenic (People v. De Jesus,
G.R. No. L-39087, Apr. 27, 1984; People v. Gerones, G.R. No.
91116, Jan. 24, 1991; People v. Baid, G.R. No. 129667, July
31, 2000).
COMPETENCY VERSUS CREDIBILITY OF A WITNESS

Competency v. Credibility of the witness (2004 Bar
Question)
Competency of Witness
Credibility of Witness
Refers to a witness who

can perceive, and in
perceiving,
can
make
known his perception to
others.
Is a matter of law or a
matter of rule
Refers to a witness whose

testimony is believable.
NOTE: Testimony of 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 does not only
affect his/her credibility but his/her competence.
Findings on the credibility of a witness

GR: Questions concerning the credibility of a witness are
best addressed to the sound discretion of the trial court as
it is in the best position to observe his demeanor and bodily
movements (Llanto v. Alzona, 450 SCRA 288). The findings
of the trial courts carry great weight and respect and,
generally, the appellate courts will not overturn the said
findings.
Refers to the weight and

trustworthiness
or
reliability of the testimony.
It also includes the absence

of
any
of
the
disqualifications imposed
upon a witness.
XPNs:
1. The lower court has reached conclusions that are
clearly unsupported by evidence,
2. It has overlooked some facts or circumstances of
weight and influence which, if considered, would
affect the result of the case (People vs. Dalag, G.R. No.
129895. April 30, 2003).
NOTE: GR: Inconsistency in the affidavit and those made in the

witness stand will not discredit him, because it is a matter of
judicial experience that an affidavit being taken ex parte, is almost
always incomplete and often inaccurate.
XPN: The credibility of a witness will be impaired if:
1. The omission in the affidavit refers to a very important detail
of the incident that one relating the incident as an eyewitness
would not be expected to fail to mention and
2. When the narration in the sworn statement substantially
contradicts the testimony in court. The point of inquiry is
whether the omission is important or substantial (People vs.
Calegan, 233 SCRA 537)
DISQUALIFICATION OF A WITNESS
Disqualification of a Witness
The following are the disqualifications of a witness:
1. Disqualification by reason of mental incapacity or
immaturity (Sec. 21, Rule 130);
2. Disqualification by reason of marriage(sec. 22, Rule
130);
3. Disqualification by reason of death or insanity of
adverse party (Sec. 23, Rule 130); and
4. Disqualification on the ground cof privileged
communication (Sec. 24, Rule 130):
a. Marital privilege;
b. Attorney-client privilege;
c. Doctor-patient privilege;
d. Minister-penitent privilege; or
e. Public officer as regards communications made in
official confidence.
Presumption of Competency
GR: A person who takes the witness stand is presumed to
possess the qualifications of a witness.
XPNs: There is prima facie evidence of incompetency in the
following:
1. The fact that a person has been recently found of
unsound mind by a court of competent jurisdiction; or
2. That one is an inmate of an asylum for the insane
(Torres v. Lopez, 48 Phil. 722).

2014 GOLDEN NOTES
366
EVIDENCE
When incompetence of the witness by reason of mental
incapacity or immaturity should exist
NOTE: The qualifications and disqualifications of witnesses are

determined as of the time they are produced for examination in
court or at the taking of the depositions. Blood relationship does
not disqualify a witness (Bernardo, 2008, citing Angelo vs. CA 210
SCRA 402).
Mental Incapacity
The incompetence of the
witness must exist not at the
time of his perception of the
facts but at the time he is
produced for examination, and
consists in his inability to
intelligently make known what
he has perceived.
(Riano,
Evidence:
A
Restatement for the Bar, p. 255,
2009 ed.)
Absolute disqualification v. Relative disqualification

Absolute Disqualification
The proposed witness is
prohibited to take the
witness stand
1. Disqualification
by
reason
of
mental
incapacity
or
immaturity (Sec. 21,
Rule 130).
2. Disqualification
by
reason of marriage
(Sec. 22, Rule 130).
Relative Disqualification
The proposed witness is
prohibited to testify only
on
certain
matters
specified under the Rules
1. Disqualification
by
reason of death or
insanity of the adverse
party (dead mans
statute) (Sec. 23, Rule
130).
2. Disqualification
by
reason of privileged
communication
(Sec.
24, Rule 130).
Mental Immaturity
The incompetence of
the witness must
occur at the time the
witness perceives the
event including his
incapability to relate
his
perceptions
truthfully.
(Ibid.)
Tests considered in determining insanity of a person

1.
2.
The test of cognition, which is a complete deprivation

of intelligence; and
The test of volition, which is the total deprivation of
the freedom of the will.
NOTE: The test of cognition is the applicable test in the Philippines

(People vs. Pascual, 220 SCRA 440).
Conviction of a crime as a ground for disqualification
Q: Cyrus, a deaf-mute, was presented as a witness in a

criminal case. The accused objected to the presentation of
the testimony of Cyrus on the ground that, being a deafmute, he was not a competent witness. Is the contention
of the accused correct?
GR: Conviction of a crime is not a ground for

disqualification as a witness
XPNs: Unless otherwise provided by law, like the following:
1. Those convicted of falsification of document, perjury
or false testimony are prohibited from being witnesses
to a will (Art. 821, NCC).
2. Those convicted of an offense involving moral
turpitude cannot be discharged to become a State
witness (Sec. 17, Rule 119; Sec. 10, R.A. 6981).
3. Those who fall under the disqualification provided
under Secs. 21-24, Rule 130.
A: No. A deaf-mute is not incompetent as a witness. Deafmutes are competent witnesses where they can:
1. Understand and appreciate the sanctity of an oath;
2. Comprehend facts they are going to testify on; and
3. Communicate their ideas through a qualified
interpreter (People v. Tuangco, G.R. No. 130331,
November 22, 2001).
DISQUALIFICATION BY REASON OF MENTAL INCAPACITY

OR IMMATURITY (Sec. 21, Rule 130)
DISQUALIFICATION BY REASON OF MARRIAGE (MARITAL

DISQUALIFICATION RULE; SEC. 22)
Disqualification by reason of mental incapacity
Marital Disqualification Rule
The following persons cannot be witnesses:

1. 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 [Sec. 21 (a), Rule 130].
2. 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 [Sec. 21 (b), Rule 130].
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 latters direct descendant or
descendants (Sec. 22, Rule 130).
Purpose of the Rule
The rule forbidding one spouse to testify for or against the
other is based on principles which are deemed important to
preserve the marriage relation as one of full confidence and
affection, and that this is regarded as more important to
the public welfare than the exigencies of the lawsuits which
authorize domestic peace to be disregarded for the sake of
ferreting out facts within the knowledge of strangers
(Alvarez vs. Ramirez, G.R. No. 143439, October 14, 2005).
367

REMEDIAL LAW
Requisites for the applicability of spousal immunity
1.
2.
3.
4.
over the objection of her husband on the ground of

marital privilege? (2006 Bar Question)
That the spouse for or against whom the testimony is

offered is a party to the case;
That the spouses are validly married;
The testimony is one that is given or offered during the
existence of the marriage (Riano, 2009); and
The case is not one of the exceptions provided in the
rule (Herrera, 1999).
A: Yes. The marital disqualification rule is aimed at

protecting the harmony and confidences of marital
relations. Hence, where the marital and domestic relations
are so strained that there is no more harmony to be
preserved nor peace and tranquility which may be
disturbed, the marital disqualification no longer applies.
Exceptions to spousal immunity

1.
2.
3.
4.
The act of Bob in setting fire to the house of his sister-inlaw, knowing fully well that his wife was there, is an act
totally alien to the harmony and confidences of marital
relation which the disqualification primarily seeks to
protect. The criminal act complained of had the effect of
directly and vitally impairing the conjugal relation. It
underscored the fact that the marital and domestic
relations between her and the accused-husband have
become so strained that that there is no more harmony,
peace or tranquility to be preserved (Alvarez v. Ramirez,
G.R. No. 143439, Oct. 14, 2005).
Consent is given by the party-spouse;

In a civil case filed by one against the other;
In a criminal case for a crime committed by one
against the other or the latters direct descendants or
ascendants (Sec. 22, Rule 130); or
Where the testimony was made after the dissolution
of the marriage.
Waiver of spousal immunity

It can be waived just like any other objection to the
competency of other witnesses, through failure to
interpose timely objection at the time the other spouse is
called as a witness (People vs. Francisco, 78 Phil. 694).
Q: Alex and Bianca are legally married. Alex is charged in

court with the crime of serious physical injuries
committed against Carding, son of Bianca and step-son of
Alex. Bianca witnessed the infliction of the injuries on
Carding by Alex. The public prosecutor called Bianca to the
witness stand and offered her testimony as an eyewitness.
Counsel for Alex objected on the ground of the marital
disqualification rule under the Rules of Court.
1.
Is the objection valid?
2.
Will your answer be the same if Biancas testimony
is offered in a civil case for recovery of personal
property filed by Carding against Alex? (2000, 2004
Bar Question)
Extent of prohibition
The prohibition extends not only to a testimony adverse to
the spouse but also to a testimony in favor of the spouse. It
also extends to both criminal and civil cases and not only
consists of utterances but also the production of
documents (State vs. Bramlet, 114 S.C. 389,103 S.E. 755;
Riano, 2009).
Who can claim spousal immunity
A:
1.
The spouse who can object is the spouse-party and not the
spouse-witness.
Q: May a spouse testify in a trial where the party-spouse is
a co-accused?
A: Yes. The spouse could testify in a murder case against
the other co-accused, which was jointly tried with accusedspouses case. This testimony cannot, however, be used
against accused-spouse directly or through the guise of
taking judicial notice of the proceedings in the murder case
without violating the marital disqualification rule, if the
testimony is properly objected (People v. Quidato, 297
SCRA 1).
2.
Q: Ivy was estranged from her husband Bob for more than
a year due to Bobs suspicion that she was having an affair
with Jeff, their neighbor. Ivy was temporarily living with
her sister in Pasig City. For unknown reasons, the house of
Ivys sister was burned, killing the latter. Ivy survived. Ivy
saw her husband in the vicinity during the incident. Later,
Bob was charged with arson in an Information filed with
the RTC, Pasig City. During the trial, the prosecutor called
Ivy to the witness stand and offered her testimony to
prove that her husband committed arson. Can Ivy testify
2014 GOLDEN NOTES
No. While neither the husband nor the wife may

testify against each other without the consent of the
affected spouse, one exception is if the testimony of
the spouse is in a criminal case for a crime committed
by one against the other or the latters direct
descendants or ascendants. Here, Carding is the direct
descendant of Bianca, the wife of Alex. Hence, the
testimony of Bianca falls under the exception to the
marital disqualification rule.
No. The marital disqualification rule applies this time.
The exception provided by the rules is in a civil case by
one spouse against the other. Here, the case involves a
case by Carding for the recovery of personal property
against Biancas spouse Alex.
DISQUALIFICATION BY REASON OF DEATH OR
INSANITY OF THE ADVERSE PARTY
(DEAD MAN STATUTE/SURVIVING PARTY RULE)
Dead Mans Statute

Parties or assignors 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
368
EVIDENCE
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 (Sec. 23, Rule 130).
Cases not covered by the Dead Mans Statute

1.
Testimony of mere witnesses who are neither party

plaintiffs, nor their assignors, nor persons in whose
behalf a case is prosecuted, nor to a nominal party,
nor to officers and stockholders of a plaintiff
corporation (Lichauco v. Atlantic Gulf & Pacific Co. of
Manila, G.R. No. L-2016, August 23, 1949);
2. Where a counterclaim has been interposed by the
defendant as the plaintiff would thereby be testifying
in his defense (Sunga-Chan v. Chua, G.R. No. 143340,
August 15, 2001);
3. Where the deceased contracted with the plaintiff
through an agent and said agent is alive and can
testify, but the testimony of the plaintiff should be
limited to acts performed by the agent (Goni et. al. v.
CA et. al., G.R. No. L-27434, September 23, 1986);
4. Land registration cases instituted by the deceaseds
representative, where the oppositor is considered as
defendant (Nanagas v. Mun. of San Francisco, et.al.,
53 Phil. 719) or in cadastral cases where there are no
oppositors (Tongco v. Vianzon, G.R. No. 27498,
September 20, 1927);
5. When there is waiver as the defendant does not timely
object to the admission of such evidence or testifies on
the prohibited matters (Asturias v. CA et. al., G.R. No.
L-17895, September 30, 1963) or cross-examines
thereon;
6. If the plaintiff is the executor or administrator or other
representative of a deceased person, or the person of
unsound mind; (Razon v. IAC, G.R. No. 74306, March
16, 1992)
7. When the testimony refers to fraudulent transactions
committed by the persons mentioned in the rule (Ong
Chua v. Carr, G.R. No. L-29512, Jan, 17, 1929),
provided such fraud is first established by evidence
aliunde (Babao v. Perez, G.R. No. L-8334, December 28,
1957);
8. Negative testimony, that is, testimony that a fact did
not occur during the lifetime of the deceased
(Mendezona v. Vda. De Goitia, G.R. No. L-31739,
March 11, 1930);
9. Testimony on the present possession by the witness of
a written document signed by the deceased because
such fact exists even after the death of decedent (4
Martin, op. cit., p. 164);
10. When the defendant/s, though heirs of the deceased,
are sued in their personal and individual capacities;
and
11. In actions against a partnership.
Purpose of Dead Mans Statute

If death has closed the lips of one party, the policy of the
law is to close the lips of the other party (Goni v. CA, G.R.
No. L-77434, September 23, 1986). This is to prevent the
temptation to perjury because death has already sealed the
lips of one party.
NOTE: As the statutes are designed to protect the interest of a
deceased or insane person, they do not exclude testimonies, which
are favorable to the representative of such person.
Requisites for the applicability of Dead Mans Statute
1.
2.
3.
4.
The defendant in the case is the executor or the

administrator or a representative of the deceased or
the person of unsound mind;
The suit is upon the claim by the plaintiff against the
estate of said deceased or person of unsound mind;
The witness is the plaintiff, or an assignor of that party,
or a person in whose behalf the case is prosecuted;
and
The subject of the testimony is as to any matter of fact
occurring before the death of such deceased person or
before such person became of unsound mind (Sec. 23,
Rule 130).
Extent of disqualification by reason of death or insanity of

the adverse party
It constitutes a partial disqualification of a witness wherein
he is prohibited from testifying as to any matter of fact
occurring before the death or insanity of a party to the
transaction (Regalado, 2008).
Who may invoke the protection of Dead mans Statute
The persons entitled to invoke the protection of the Dead
Mans Statute are the executor, administrator and any
other representative of a deceased person, when they are
the defendants in a claim against the estate of the
deceased. The protection may likewise be invoked by a
person of unsound mind in a claim filed against them.
(Riano, 2009)
Waiver of the privilege to invoke the Dead Mans Statute
is when the defendant:
1.
2.
3.
Q: True or False. The surviving parties rule bars Maria

from testifying for the claimant as to what the deceased
Jose had said to her, in a claim filed by Pedro against the
estate of Jose. Explain. (2001, 2007 Bar Question)
does not timely object to the admission of such

evidence or testifies on prohibited matters (Asturias
vs. CA, L-17895, September 30, 1963);
cross-examines the plaintiff (Tongco v. Vianzon, 50
Phil 698); or
files a counter claim against the plaintiff (Goni v. CA,
G.R. No. L-77434, September 23, 1986).
A: False. For the survivorship disqualification rule or the

dead mans statute to apply, one of the requisites is that
the witness being offered is either a party plaintiff, or his
assignor or a person in whose behalf a case is prosecuted.
Here, Maria is a mere witness. Hence, Maria does not fall
within the prohibition and is not barred from testifying.
369

REMEDIAL LAW
Dead Mans Statute v. Marital Disqualification Rule
Dead Mans Statute
Only
a
partial
disqualification as the
witness is not completely
disqualified but is only
prohibited from testifying
on the matters therein
specified
Applies only to a civil case
or special proceeding over
the estate of a deceased
or insane person
The
rule
prohibits
testimony that is against
the
estate
of
the
deceased.
confidences inherent in, and inseparable from the marital

status. The law insures absolute freedom of communication
between the spouses by making it privileged (Francisco,
1996; Zulueta v. CA, 253 SCRA 699, Feb. 20, 1996).
Marital Disqualification
Rule
A complete and absolute
disqualification
Requisites for the application of marital privilege

1.
2.
3.
GR: Applies to a civil or

criminal case.
4.
XPN: In a civil case by one

spouse against the other
or in a criminal case for a
crime committed by one
spouse against the other
or the latters direct
descendants
or
ascendants
The
rule
prohibits
testimony that is against
or for the party-spouse.
There must be a valid marriage;

There is a communication received in confidence by
one from the other;
The confidential communication was received during
the marriage; and
There is no consent to disclose the information [Sec.
24(a), Rule 130].
Cases when marital privilege is inapplicable

1.
2.
3.
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 latters direct ascendants or
descendants [Sec. 24(a), Rule 130].
Information acquired by a spouse before the marriage
even if received confidentially will not fall squarely
with the privilege.
Sec. 22 v. Sec. 24 (a)

Disqualification By
Reason of Marriage (Sec.
22)
Can be invoked only if
one of the spouses is a
party to the action
Applies only if the
marriage is existing at the
time the testimony is
offered
Applies to information
received prior to marriage
as long as such is offered
during the marriage
DISQUALIFICATION BY REASON OF PRIVILEGED

COMMUNICATION
Scope of disqualification by reason of privileged
communication
The disqualification by reason of privileged communication
applies to both civil and criminal cases except as to the
doctor-patient privilege, which is applicable only in civil
cases. Unless waived, the disqualification under Sec. 24
remains even after the various relationships therein have
ceased to exist.
Who may assert the privilege
The holder of the privilege, authorized persons and persons
to whom privileged communication were made can assert
the privilege.
The married witness

would not be allowed to
take the stand at all
because
of
the
disqualification. Even if
the testimony is, for or
against the objecting
spouse,
the
spousewitness cannot testify
Marital Privilege
Disqualification by reason of marital privilege
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. 24 (a), Rule 130).
Disqualification By
Reason of Marital
Privilege (Sec. 24, (a))
Can be claimed whether
or not the other spouse is
a party to the action
Can be claimed even after
the marriage is dissolved
Applies
only
to
confidential
communications received
during
the
marriage
between the spouses
The married person is on
the stand but the
objection of privilege is
raised when confidential
marital communication is
inquired into
Q: Are third persons who overheard the communication

between the spouses bound by the privilege?
A: GR: Third persons who, without the knowledge of the
spouses, overhear the communication are not disqualified
to testify.
Purpose of marital privilege

XPN: When there is collusion and voluntary disclosure to a
third party, that third party becomes an agent and cannot
testify.
The society has a deeply rooted interest in the preservation

for peace of the families and its strongest safeguard is to
preserve with jealous care any violations of those hallowed
2014 GOLDEN NOTES
370
EVIDENCE
Q: In June 1998, A told B that he killed C. After a year, A
married B. Upon the offer of testimony of B for the alleged
killing of C, can A validly make an objection?
A: Yes. The court may admit the testimony and affidavits of

the wife against her husband in the criminal case where it
involves child prostitution of the wife's daughter. It is not
covered by the marital privilege rule. One exception is
where the crime is committed by one against the other or
the latter's direct descendants or ascendants (Sec. 24, Rule
130). A crime by the husband against the daughter is a
crime against the wife and directly attacks or vitally impairs
the conjugal relation (Ordono v. Daquigan, G.R. No. L39012, Jan. 31, 1975).
A: Yes. Irrespective of the fact that B was informed of the

killing before her marriage to A, still, the testimony was
offered during their marriage, which brings it into the ambit
of the marital disqualification rule under Sec. 22.
Q: Supposed in the above problem, the testimony was
offered at the time the marriage between A and B was
already terminated, can A still validly object, this time on
the ground of marital privilege rule under Sec. 24?
Attorney-Client Privilege
A: No. The testimony even if confidential was not

communicated to B during the time of marriage, but before
the marriage.
Disqualification by reason of attorney-client relationship

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
[Sec. 24 (b), Rule 130].
Q: Supposed in the above problem, the information

received by B was communicated to A during their
marriage, can A validly object to the testimony of B if it
was offered after the dissolution of their marriage on the
ground of marital disqualification rule under Sec. 22?
A: No. He can only object based on the marital
disqualification rule if the testimony was offered during
their marriage and not to testimony offered after the
dissolution of the marriage. The proper objection must be
based on marital privilege rule under Sec. 24 because such
defense is applicable even after the dissolution of marriage
provided that the communication was made confidentially
to B during their marriage.
NOTE: This rule shall apply to similar communications made to or

received by a law student, acting for the legal clinic (Sec. 3, Rule
138-A). Communication in furtherance of crime or fraud is not
privileged (8 Wigmore, Evidence) or for the purpose of committing
a crime or a tort or those made in furtherance of an illicit activity.
Purpose of Attorney-Client Relationship

To encourage full disclosure by client to his attorney of all
pertinent matters as to further the administration of justice
and to protect the client from possible breach of
confidence as a result of a consultation with a lawyer
(Hadjula v. Mdianda A.C. No. 6711, July 3, 2007).
Q: A was prosecuted and convicted for bigamy for

allegedly contracting a second marriage with C.
Thereafter, C was presented as a witness to testify against
A for the alleged killing of D. A objected on the ground
that the matters to be testified by C were communicated
to her during their marriage. Is he correct?
Requisites for the application Attorney-Client privilege:
A: No. The law requires that both the marital

disqualification rule under Sec. 22 and the marital privilege
rule under Sec. 24 can only be invoked by spouses who are
validly married to each other. In this case, the bigamous
marriage between A and C is void.
1.
2.
3.
Q: James, an alien, was criminally charged of promoting

and facilitating child prostitution and other sexual abuses
under R.A. 7610. The principal witness against him was his
Filipina wife, Conching. Earlier, she had complained that
James hotel was being used as a center for sex tourism
and child trafficking. The defense counsel for James
objected to the testimony of Conching at the trial of the
child prostitution case and the introduction of the
affidavits she executed against her husband as a violation
of spousal confidentiality and marital privilege rule. It
turned out that Patring, the minor daughter of Conching
by her first husband who was a Filipino, was molested by
James earlier. Thus, Conching had filed for legal separation
against James since last year. May the court admit the
testimony and affidavits of the wife, Conching, against her
husband, James, in the criminal case involving child
prostitution? Reason (2004 Bar Question)
Attorney-client relation;
The privilege is invoked with respect to a confidential
communication or advice between them in the course
of or with a view to professional employment; and
The client has not given his consent to the attorneys
testimony; or if the attorneys secretary, stenographer
or clerk is sought to be examined, that both the client
and the attorney have not given their consent
(Regalado, 2008).
Test in applying the attorney-client privilege

The test is whether the communication made is with the
view of obtaining from the lawyer his professional
assistance or advice regardless of the existence or absence
of a pending litigation.
NOTE: This rule does not require a perfected attorney client
relationship. It is enough that the communication or advice be with
a view to professional employment [Sec. 24(b), Rule 130].
371

REMEDIAL LAW
Confidential communication
A: No. The subpoena may not be simply quashed on the

allegation that the testimony to be elicited constitutes
privileged communication. It may be noted that the
accused committed the crime swindling on August 15,
2008, whereas he first visited his lawyer on August 14, 2008
or before he committed the swindling.
It refers to information transmitted by voluntary act of

disclosure between attorney and client in confidence and
by means which, so far as the client is aware, discloses the
information to no third person other than one reasonably
necessary for the transmission of the information or the
accomplishment of the purpose for which it was given
(Mercado v. Vitriolo, A.C. No. 5108, May 26, 2005).
Clearly the conversations the accused had with his lawyer

during such first visit, before he committed the swindling
cannot be protected by the privilege between attorney and
client because the crime had not been committed yet and it
is no part of a lawyers professional duty to assist or aid in
the commission of a crime; hence not in the course of
professional employment.
Waiver of Attorney-Client Privilege

The privilege is personal and belongs to the client. If the
client waives the privilege such as client reveals the
confidential communication during cross-examination and
if the client does not object to his attorneys testimony on
the communication, no one else including the attorney can
invoke it (In Re Youngs Estate, 33 Utah 382; Riano, 2009).
The second visit by accused Edgardo to his lawyer on the

next day (August 16, 2008) after the swindling was
committed may also suffer from the same infirmity as the
conversations had during their first meeting inasmuch as
there could not be a complaint made immediately after the
estafa was committed. The privilege covering a lawyerclient relation under Sec. 24(b), Rule 130, may not be
invoked, as it is not a ground for quashal of a subpoena ad
testificandum under Sec. 4, Rule 21 of the Rules of Court.
Cases when the attorney-client privilege is inapplicable

1.
2.
3.
4.
5.
Intended to be made public;

Intended to be communicated to others;
Intended for an unlawful purpose;
Received from third persons not acting in behalf or as
agents of the client; or
Made in the presence of third parties who are
strangers to the attorney-client relationship (Regalado,
2008).
Q: A tugboat owned by Speedy Port Service, Inc. (SPS)

sank in Manila Bay while helping to tow another vessel,
drowning 5 of the crew in the resulting shipwreck. At the
maritime board inquiry, the 4 survivors testified. SPS
engaged Atty. Ely to defend against potential claims and
to sue the company owning the other vessel for damages
to the tug. Ely obtained signed statements from the
survivors. He also interviewed other persons, in some
instance making memoranda. The heirs of the 5 victims
filed an action for damages against SPS.
Applicability of the rule with regard to the identity of the

client
GR: Lawyers may not invoke the privilege and refuse to
divulge the name or identity of their client.
XPNs:
1. Where a strong possibility exists that revealing the
clients name would implicate the client in the very
activity for which he sought the lawyers advice;
2. Where disclosure would open the client to civil
liability; or
3. Where the prosecutors have no case against the client
unless by revealing the clients name, the said name
would furnish the only link that would form the chain
of testimony necessary to convict an individual for a
crime (Regala vs. Sandiganbayan, G.R. No. 105938,
September 20, 1996).
The counsel of the heirs of the 5 victims sent written

interrogatories to Ely, asking whether statements of the
witnesses may be obtained if written, copies were to be
furnished; if oral, the exact provisions were to be set forth
in detail. Ely refused to comply, arguing that the
documents and information asked are privileged
communication. Is the contention tenable? Explain. (2008
Bar Question)
A: Yes, the contention of Ely, as counsel for SPS, is tenable
considering that he was acting in his professional capacity
in bringing about the statement he obtained from the
witnesses and the memoranda he made. The notes,
memoranda, and writings made by the counsel in
pursuance of his professional duty, form part of his private
and confidential files in the cases handled by him; hence
privileged (Air Philippines Corp v. Penswell, Inc., G.R. No.
172835, Dec. 13, 2007).
Q: On August 15, 2008, Edgardo committed estafa against

Petronilo in the amount of 3 million pesos. Petronilo
brought his complaint to the National Bureau of
Investigation, which found that Edgardo had visited his
lawyer twice, the first time on August 14, 2008 and the
second August 16, 2008; and that both visits concerned
the swindling of Edgardo.
NOTE: The weight of authority supports the view that when

the client and attorney become embroiled in a controversy
between themselves, as in action filed for payment of
attorneys fee, the privilege is removed from the attorneys
lips. (Riano, 2009)
During the trial, the RTC issued a subpoena ad

testificandum to Edgardos lawyer for him to testify the
conversations during their first and second meetings. May
the subpoena be quashed on the ground of privileged
communication? Explain fully. (2008 Bar Question)

2014 GOLDEN NOTES
372
EVIDENCE
questions under cross-examination on matters which are
supposedly privileged, the waiver also exists. There could
also be waiver by operation of law (Sec. 4, Rule 28).
Physician and Patient Privilege

Physician and Patient Privilege
Cases when Physician and Patient Privilege is inapplicable:
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 (Sec.
24(c), Rule 130).
1.
2.
3.
4.
5.
Q: Is it necessary that the professional relationship exists

between the doctor and patient when the communication
was made?
Purpose of this privilege

The privilege is intended to facilitate and make safe, full
and confidential disclosure by patient to doctor of all facts,
circumstances, and symptoms, untrammeled by
apprehension of their subsequent and enforced disclosure
and publication on the witness stand, to the end that the
physician may form a correct opinion, and be enabled
safely and efficaciously to treat his patient.
A: Yes. It is essential that at the time the communication

was made, the professional relationship is existing, that is,
while the doctor was attending to the patient for curative,
preventive or palliative treatment. It is not however
necessary that the relationship was created through the
voluntary act of the patient. The treatment may have been
given at the behest of another, the patient being in
extremis (Ibid.).
Requisites for the applicability of physician and patient

privilege
1.
Q: In a proceeding for annulment of marriage on the

ground of psychological incapacity, the husband
presented a confidential psychiatric report prepared by a
physician after examining his wife, but without the
knowledge of the physician. Can the wife invoke the
physician patient privilege?
The action involves a civil case;

NOTE: This privilege cannot be claimed in a criminal case
presumably because the interest of the public in criminal
prosecution should be deemed more important than the
secrecy of the communication. (Riano, 2009)
2.
3.
4.
5.
A: No. The person against whom the privilege is claimed is

not one duly authorized to practice medicine, surgery, or
obstetrics. He is simply the patient's husband who wishes
to testify on a document executed by medical practitioners.
Neither can his testimony be considered a circumvention of
the prohibition because his testimony cannot have the
force and effect of the testimony of the physician who
examined the patient and executed the report. The proper
objection should be hearsay and not privileged
communication. (Krohn v. Court of Appeals, 233 SCRA 146)
The relation of physician and patient existed between

the person claiming the privilege or his legal
representative and the physician;
The advice or treatment given by him or any
information was acquired by the physician while
professionally attending to the patient;
The information was necessary for the performance of
his professional duty; and
The disclosure of the information would tend to
blacken the reputation of the patient.
Q: Aimee sought to offer as evidence the testimony of Dr.

Naval to prove that Bob is not the illegitimate son of
Yuring as the latter was sterile. Bob objected to the
admissibility of the said testimony arguing that the same
is covered by the physician-patient privilege because the
testimony would blacken the reputation of Yuring. It was
alleged that Yuring became sterile because he contracted
gonorrhea. Aimee argues that Yuring is long dead and, as
such, the privilege may not be invoked.
1. Is the testimony of Dr. Naval covered by the
physician-patient privilege?
2. Does the fact that Yuring is long dead bar the
application of the physician-patient privilege?
Information which cannot be disclosed

1.
2.
3.
4.
Not given in confidence;

Irrelevant to the professional employment;
Made for an unlawful purpose;
Intended to be made public; or
Waived either by contract or law (Regalado, 2008).
Any advice given to the client;

Any treatment given to the client;
Any information acquired in attending such patient
provided that the advice, treatment or information
was made or acquired in a professional capacity and
was necessary to enable him to act in that capacity;
and
That the information sought to be disclosed would
tend to blacken the reputation of the patient (Sec.
24(c), Rule 130).
Waiver of Privilege
A:
1.
The waiver may be made expressly or impliedly. The waiver

may be by a contract as in medical or life insurance. When
there is disclosure by the patient of the information, there
is necessarily, a waiver. When the patient answers
373
Yes. Yuring's sterility arose when he contracted

gonorrhea, a fact which most assuredly blackens his
reputation. In fact, given that society holds virility at a
premium, sterility alone, without the attendant
embarrassment of contracting a sexually-transmitted
REMEDIAL LAW
disease, would be sufficient to blacken the reputation
of any patient (Gonzales v. CA, G.R. No. 117740,
October 30, 1998).
2.
Public Officer as Regards Communications

made in Official Confidence
Public officer as regards communication made in official
confidence
No. The privilege of secrecy is not abolished or

terminated because of death. The purpose of the law
would be thwarted and the policy intended to be
promoted thereby would be defeated, if death
removed the seal of secrecy, from the communications
and disclosures which a patient should make to his
physician. After one has gone to his grave, the living
are not permitted to impair his name and disgrace his
memory by dragging to light communications and
disclosures made under the seal of the statute
(Gonzales v. CA, G.R. No. 117740, October 30, 1998).
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 (Sec. 24(e), Rule
130).
Purpose and scope of the privilege
The privilege only applies to communications to such
officers who have a responsibility or duty to investigate or
to prevent public wrongs, and not to officials in general
(Francisco, 1992).
Priest-Penitent Privilege
Priest-penitent privilege
Requisites for its application of the privilege
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 (Sec.
24 (d), Rule 130).
1.
2.
3.
Purpose of the priest-penitent privilege
4.
To allow and encourage individuals to fulfill their religious,

emotional or other needs by protecting confidential
disclosures to religious practitioners (Peralta, Jr., 2005,
citing Evidence, Oregon State Bar Committee on Continuing
Legal Education).
Cases when the privilege is inapplicable

If what is asked:
1. Is useful evidence to vindicate the innocence of an
accused;
2. Lessen the risk of false testimony;
3. Is essential to the proper disposition of the litigation;
or
4. The benefit to be gained by a correct disposition of the
litigation was greater than any injury which could inure
to the relation by a disclosure of the information
(Francisco, 1992).
Requisites for the applicability of the priest-penitent

privilege
1.
2.
The confession must have been made to the priest in

his professional character according to the discipline of
the church to which the priest or minister belongs
[Sec. 24(d)]; and
Communications made must be confidential and must
be penitential in character e.g., under the seal of the
confessional (Regalado, 2008)
NOTE: The court, not the witness, will determine the necessity of
regarding the communication as privileged (Francisco, 1992).
NOTE: This rule is not limited to confessions made by a penitent

but also to any advice given by the minister or priest (Riano, 2009).
The advice given as a result of confession must be made in the
ministers professional character (ibid.).
Executive privilege
Certain types of information like military, diplomatic and
other national security matters may be withheld from the
public.
Extent of the priest-penitent privilege

When the communication is not penitential in character as
when what is divulged is the plan to commit a crime or
where the penitent discussed business arrangements with
the priest (ibid.).

2014 GOLDEN NOTES
The communication was given to the public officer in

official confidence;
The public interest would suffer by the disclosure of
the communication;
The holder of the privilege is the government, acting
through a public officer;
The communication was given during the term of
office of the public officer but the privilege may be
invoked not only during the term of office of the public
officer but also after (Regalado, 2008)
Q: Secretary of Fisheries Nenito Abesamis received an

invitation for questioning in a hearing from the Senate of
the Philippines regarding the Fish Feeds Scam. During the
hearing, Abesamis didnt answer the questions
propounded to him by Senator Renato Pamintuan
claiming that his position entitles him to invoke the
executive privilege. Is his contention correct?
374
EVIDENCE
A: No. As held in the case of Senate of the Philippines vs.
Ermita, G.R. No. 169777, April 25, 2006), the Court upheld
the doctrine of executive privilege but it found E.O. 464
partly constitutionally defective, specifically Secs. 2(b) and 3
which required government officials below the heads of
executive departments to secure consent from the
President before appearing in congressional hearings and
investigations. The Court noted that E.O. 464 covers
persons, which is a misuse of the doctrine because the
privilege is to be properly invoked in relation to specific
categories of information and not categories of persons
(Riano, 2013).
3.
A:
1.
The doctrine of parental privilege cannot likewise be

invoked by W because she is not being compelled to
testify. It is filial privilege which can be invoked only by
C, not W, who may not be compelled to testify but is
free to testify against her (Sec. 25, Rule 130; Art. 215,
FC).
3.
D, as a doctor who used to treat W, is disqualified to

testify against W over her objection as to any advice or
treatment given by him or any information which he
may have acquired in his professional capacity [Sec. 24
(c), Rule 130].
Rule on filial privilege
NOTE: Under the Family Code, the general rule is that no

descendant shall be compelled, in a criminal case, to testify against
his parents and grandparents. As an exception, a descendant may
be compelled to give his testimony in the following instances:
1.
When such testimony is indispensable in a crime committed
against said descendant or
2.
In a crime committed by one parent against the other
(Art.215, Family Code; Riano, 2009)
The rule of marital privilege cannot be invoked in the

annulment case under Rule 36 of the Family Code
because it is a civil case filed by one against the other
(Sec. 22, Rule 130).
2.
Parental and Filial Privilege
A person may not be compelled to testify against his/her

parents or other direct ascendants (Sec. 25, Rule 130). It is
therefore a privilege granted and which can be invoked
only by the child or other direct descendant.
D cannot testify against her because of the doctrine

of privileged communication between patient and
physician. (1998 Bar Question)
Other Privileged Matters

Other privileged matters
1.
Q: A was convicted of raping his own daughter. His son, an

8 year old boy testified against him. Can he object to the
testimony on the ground of filial privilege and invoke the
incompetence of the child?
2.
A: No. The competency of his son is not affected by the

filial privilege Rule. The Rule is not strictly speaking a
disqualification but refers to a privilege not to testify, which
can be invoked and waived like other privileges. The son
was not compelled to testify against his father but chose to
waive that filial privilege when he voluntarily testified
against the accused (People v. Invencion, 398 SCRA 592).
3.
4.
Q: A married to B killed the latter. One of the witnesses

was C, the mother of B, who was being compelled to
testify against A. Can A object on the ground of parental
privilege?
5.
A: No. C is not a direct ascendant of A but that of B, being

the mother of the latter. Thus, the privilege does not
belong to A.
6.
Q: C is the child of the spouses H and W. H sued his wife W

for judicial declaration of nullity of marriage under Article
36 of the Family Code. In the trial, the following testified
over the objection of W: C, H and D, a doctor of medicine
who used to treat W. Rule on W's objections which are the
following:
1. H cannot testify against her because of the rule on
marital privilege;
2. C cannot testify against her because of the doctrine
on parental privilege; and
7.
8.
375
The guardian ad litem shall not testify in any

proceeding concerning any information, statement, or
opinion received from the child in the course of
serving as a guardian ad litem, unless the court finds it
necessary to promote the best interests of the child
[Sec. 5 (e), Rule on Examination of a Child Witness];
Editors, publisher, or duly accredited reporter of any
newspaper, magazine or periodical of general
circulation cannot be compelled to reveal the source
of any news report or any information given to him in
confidence, unless a court or a House or a committee
of Congress finds that such revelation is demanded for
State security (R.A. 1477);
Voters may not be compelled to disclose for whom
they voted;
Trade secrets cannot be disclosed although this is not
absolute as the court may compel disclosure where it
is indispensable for doing justice (Francisco, 1992);
Bank deposits are absolutely confidential in nature
except upon written permission of the depositor, or in
cases of impeachment, or upon lawful order of a
competent court (R.A. 1405; Francisco, 1992);
Conciliators and similar officials shall not testify in any
court or body regarding any matter taken up at the
conciliation proceedings conducted by them (Art. 233,
Labor Code); and
Informers, for the protection of their identity, cannot
be compelled to testify by the prosecutor when their
testimony would merely be cumulative and
corroborative (Herrera, 1999).
Information in tax census returns (Air Philippines
Corporation v. Pennswell Inc., G.R. No. 172835,
December 13, 2007).

REMEDIAL LAW
Q: Can a privileged information be otherwise disclosed
upon a production order issued by the court pursuant to
Rule 27 of the Rules of Court?
credibility as well as the truth of his testimony and to

elicit the answers that it needs for resolving the issues.
Oath
A: No. Rule 27 sets an unequivocal proviso that the

documents, papers, books, accounts, letters, photographs,
objects or tangible things that may be produced and
inspected should not be privileged. On the ground of public
policy, the rules providing for production and inspection of
books and papers do not authorize the production or
inspection of privileged matter; that is, books and papers
which, because of their confidential and privileged
character, could not be received in evidence. Such a
condition is in addition to the requisite that the items be
specifically described, and must constitute or contain
evidence material to any matter involved in the action and
which are in the partys possession, custody or control (Air
Philippines Corporation v. Pennswell Inc., G.R. No. 172835,
December 13, 2007).
It is an outward pledge given by the person taking it that his

attestation or promise is made under an immediate sense
of responsibility to God.
NOTE: The purpose is to affect the conscience of the witness to
compel him to speak the truth, and for the witness to be punished
for perjury should he willfully falsify the truth.
In order that one may be competent as a witness, it is not
necessary that he has a definite knowledge of the difference
between his duty to tell the truth after being sworn and before, or
that he is able to state it, but it is necessary that he be conscious
that there is a difference (People v. Bisda, 406 SCRA 454).
Affirmation
It is a substitute for an oath and is solemn and formal
declaration that the witness will tell the truth.
EXAMINATION OF A WITNESS
Examination of a witness
NOTE: The option to take either an oath or affirmation is given to

the witness and not to the court.
GR: The examination of witnesses presented in a trial or

hearing shall be done in open court and under oath or
affirmation. The answers of the witness shall be given orally
unless the witness is incapacitated to speak, or the question
calls for a different mode of answer (Sec. 1, Rule 132).
Q: May the right to have the witness sworn be waived?

A: Yes. If a party admits proof to be taken in a case without
an oath, after the testimony has been acted upon by the
court, and made the basis of a judgment, such party can no
longer object to the admissibility of the testimony. He will
be deemed to have waibved the objection. (People v. Bisda,
406 SCRA 454).
NOTE: The reason for the requirement that the examination of the
witnesses would be given in open court orally is to enable the court
to judge the credibility of the witness by witness manner of
testifying, their intelligence, and their appearance.
XPNs:
The testimony of the witness may not be given in open
court in the following case:
1.
2.
3.
4.
5.
6.
Matters to be recorded during trial

The entire proceedings of a trial or hearing, including:
1. Questions propounded to a witness and his answers
thereto; and
2. The statements made by the judge or any of the
parties, counsel, or witness with reference to the case
(Sec. 2, Rule 132).
In civil cases, by depositions pursuant to and under the

limitations of Rules 23 and 24;
In criminal cases, by depositions or conditional
examination, pursuant to Secs. 12-15, Rule 119, and
Sec. 1, Rule 123, or by the records of the preliminary
investigation, under the circumstances of Sec. 1(f) of
Rule 115;
In criminal cases covered by the Rule on Summary
Procedure where the affidavits of the parties
witnesses constitute their direct testimonies subject
however to cross-examination, re-direct or re-cross
examination;
In civil actions covered by the Rule on Summary
Procedure where no examination of witnesses is even
required or allowed; and
In agrarian cases where the parties submit affidavits of
their witnesses subject to cross-examination.
In cases falling under the judicial affidavit rule where
the direct examination is substituted for the affidavit
of the party and witnesses, without prejudice to cross
examination by the opposing party and re direct
examination. In every case, the court shall take active
part in examining the witness to determine his

2014 GOLDEN NOTES
NOTE: These shall be recorded by means of shorthand or

stenotype or by other means of recording found suitable by the
court (Ibid.).
Q: How should the questions be propounded to the

witness?
A: Questions propounded to a witness should not be:
1. Irrelevant;
2. Indefinite or uncertain;
3. Argumentative;
4. Calling for conclusion of law;
5. Calling for opinion or hearsay evidence;
6. Calling for illegal answer;
7. Calling for self-incriminating testimony;
8. Leading;
9. Misleading;
10. Degrading to the reputation of witness;
11. Repetitious; and
12. Calling for a narration.
376
EVIDENCE
Classifications of immunity statutes
Q: May a judge exclude a witness during the course of the
trial?
Use and Fruit Immunity

Prohibits the use of the
witness' compelled
testimony and its fruits in
any manner in connection
with the criminal
prosecution of the
witness. It is immunity
from using the testimony
of the witness.
A: GR: Yes, 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 (Sec. 15, Rule 132).
XPN: The following may not be excluded:
1. Parties in a civil case;
2. Expert witness;
3. Agent of the party, when the presence of such agent is
necessary, as when the agent has gained such
familiarity with the facts that this presence is
necessary for the proper management of the action or
defense;
4. Complaining witness; or
5. Accused (Francisco, 1992)
Obligation of a witness in open court

GR: The witness has the obligation to answer questions,
although his answer may tend to establish a claim against
him (Sec. 3, Rule 132).
XPNs: A witness may validly refuse to answer under the
following:
Recantation of a witness
1.
The court must not automatically exclude the original

statement based solely on the recantation. It should
determine which statement should be given credence
through a comparison of the original and the new
statements, applying the general rules of evidence (PLDT v.
Bolso, G.R. No. 159701, August 17, 2007).
2.
Rights of a witness
2.
3.
4.
To be protected from irrelevant, improper, or insulting

questions, and from harsh or insulting demeanor;
Not to be detained longer than the interests of justice
require;
Not to be examined except only as to matters
pertinent to the issue;
Not to give an answer which will tend to subject him to
a penalty for an offense unless otherwise provided by
law (right against self-incrimination)
Right against self-degradation If his answer will have

a direct tendency to degrade his character.
XPNs to the XPNs: A witness may not invoke the right
against self-incrimination nor the right against selfdegradation if:
1. Such question is directed to the very fact at issue
or to a fact from which the fact at issue would be
presumed; or
2. If it refers to his previous final conviction for an
offense (Regalado, 2008).
NOTE: A witness invited by the Senate who refused to testify and

arrested for contempt, cannot invoke right against selfincrimination in a petition for certiorari and prohibition. The said
right may only be invoked when the incriminating question is being
asked, since he has no way of knowing in advance the nature or
effect of the questions to be asked. That this right may possibly be
violated or abused is no ground for denying respondent senate
committees their power of inquiry (In Re: Sabio, G.R. No. 174340,
October 17, 2006).
NOTE: This refers to immunity statutes wherein the witness is

granted immunity from criminal prosecution for offenses
admitted in his testimony, e.g. under Sec. 8, R.A. 1379, the
law providing for the forfeiture of unlawfully acquired
property; and under P.D. 749, in prosecutions for bribery and
graft.
5.
Right against self-incrimination If his answer will

tend to subject him to punishment for an offense; or
NOTE: The constitutional assurance of the right against selfincrimination is a prohibition against the use of physical or
moral compulsion to extort communications from the
accused. It is simply a prohibition against legal process to
extract from the accuseds own lips, against his will,
admission of his guilt (Ong v. Sandiganbayan & Office of the
Ombudsman, G.R. No. 126858, September 16, 2005).
RIGHTS AND OBLIGATIONS OF A WITNESS
1.
Transactional Immunity
Grants immunity to the
witness from prosecution
for an offense to which his
compelled testimony
relates. It is an immunity
from prosecution by
reason or on the basis of
the testimony (Galman v.
Pamaran, 138 SCRA)
Not to give an answer, which will tend to degrade his

reputation, unless it be to 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 (Sec. 3, Rule 132).
Right against self-incrimination of the accused v. Right

against self-incrimination of an Ordinary witness
Accused
Cannot be compelled to
testify or produce evidence
in the criminal case in
which he is the accused or
one of the accused, he
377
Ordinary Witness
May be compelled to
testify by subpoena,
having only the right to
refuse to answer a
particular incriminating

REMEDIAL LAW
cannot be compelled to do
so even by subpoena or
other process or order of
the court. He cannot be
required either for the
prosecution, for co-accused
or even for himself.
question at the time it is

put to him.
Q: Can a State witness be liable for contempt or criminal

prosecution?
A: Yes, if he fails or refuses to testify or to continue to
testify without just cause when lawfully obliged to do so, he
shall be prosecuted for contempt. If he testifies falsely or
evasively, he shall be liable to prosecution for perjury. If a
State witness fails or refuses to testify, or testifies falsely or
evasively, or violates any condition accompanying such
immunity without just cause, as determined in a hearing by
the proper court, his immunity shall be removed and he
shall be subject to contempt or criminal prosecution.
Moreover, the enjoyment of all rights and benefits under
R.A. 6981 shall be deemed terminated. The witness may,
however, purge himself of the contumacious acts by
testifying at any appropriate stage of the proceedings (Sec.
13, R.A. 6981).
Refusal of a witness to take the witness stand

GR: A witness may not refuse to take the witness stand.
XPNs:
1. An accused in a criminal case; or
2. In civil and administrative cases that partake the
nature of or analogous to a criminal proceeding. As
long as the suit is criminal in nature, the party thereto
can decline to take the witness stand. It is not the
character of the suit involved but the nature of the
proceedings that controls (Rosete, et. al. v. Lim, et. al.,
G.R. No. 136051, June 8, 2006).
ORDER IN THE EXAMINATION OF AN

INDIVIDUAL WITNESS
Q: Is the right against self-incrimination available to a

witness who has been admitted to the Witness Protection
Program?
A: Any witness admitted into the program of the Witness
Protection, Security and Benefit Act cannot refuse to testify
or give evidence or produce books, documents, records or
writings necessary for the prosecution of the offense or
offenses for which he has been admitted into the Program
on the ground of the constitutional right against selfincrimination but he shall enjoy immunity from criminal
prosecution and cannot be subjected to any penalty or
forfeiture for any transaction, matter or thing concerning
his compelled testimony or books, documents, records and
writings produced (Sec. 14, R.A. 6981).
Persons eligible to the Witness Protection, Security and
Benefit Program
Any person who has witnessed or has knowledge or
information on the commission of a crime and has testified
or is testifying or about to testify before any judicial or
quasi-judicial body, or before any investigating authority
may be admitted provided that:
1. The offense in which his testimony will be used is a
grave felony as defined under the Revised Penal Code,
or its equivalent under special laws;
2. His testimony can be substantially corroborated in its
material points;
3. He or any member of his family within the second civil
degree of consanguinity or affinity is subjected to
threats to life or bodily injury or there is a likelihood
that he will be killed, forced, intimidated, harassed or
corrupted to prevent him from testifying, or to testify
falsely, or evasively, because or on account of his
testimony; and
4. He is not a law enforcement officer, even if he would
be testifying against the other law enforcement
officers. In such a case, only the immediate members
of his family may avail themselves of the protection
provided for under the Act (Sec. 3, R.A. 6981).
2014 GOLDEN NOTES
Purposes of each stage of the examination
378
1.
Direct examination To establish the case of the

proponent of the witness.
2.
Cross examination
a. To impeach the credibility of the testimony;
EVIDENCE
b.
c.
d.
3.
4.
To impeach the credibility of the witness;

To elicit admissions; and
To clarify certain matters.
Right of the adverse party when a writing is shown to a

witness
The adverse party has a right to inspect it to enable him to
cross-examine the witness (Sec. 18, Rule 132).
Redirect examination
a. To afford opportunity to the witness to explain or
amplify his testimony during cross-examination;
and
b. To explain any apparent contradiction or
inconsistency in his statements.
Scope of a cross-examination
1.
Re-cross examination
a. To overcome the proponents attempt to
rehabilitate the witness; and
b. To rebut damaging evidence brought out during
redirect examination.
2.
Q: Tony states on direct examination that he once knew

the facts being asked but he cannot recall them now.
When handed a written record of the facts, he testifies
that the facts are correctly stated, but that he has never
seen the writing before. Is the writing admissible as past
recollection recorded? Explain. (1996 Bar Question)
NOTE: The English rule is observed in our jurisdiction, except

with respect to cross-examination of the accused, or a hostile
witness.
Cross-examination as an absolute right of the party

against whom he is called
A: No, because for the written record to be admissible as

past recollection recorded, it must have been written or
recorded by Tony 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 (Sec.
16). But in this case Tony has never seen the writing before.
Cross-examination of a witness is the absolute right, not a

mere privilege, of the party against whom he is called; and
with regard to the accused, it is a right granted by the
Constitution. Sec. 14(2), Art. III thereof provides that the
accused shall enjoy the right to meet the witnesses face to
face.
When the witness may refer to memorandum

Present Recollection
Revived
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 later so long
as the fact was fresh in his
memory and he knew that
it was correctly recorded
Memory is obscure but
there is still memory
The main evidence is the
testimony of the witness
No need to swear since
the witness simply testifies
that he knows that the
memorandum is correctly
written by him or under
his direction
American rule Cross-examination is restricted to

facts and circumstances which are connected with the
matters that have been stated in the direct
examination of the witness.
English rule Where a witness is called to testify to a
particular fact, he becomes a witness for all purposes
and may be fully cross-examined upon all matters
material to the issue, the examination not being
confined to the matters inquired about in the direct
examination.
Doctrine of Incomplete Testimony
Past Recollection
Recorded
A witness may also testify
from such writing or
record, though he retains
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
GR: When cross-examination cannot be done or completed

due to causes attributable to the party who offered the
witness, the incomplete testimony is rendered incompetent
and should be stricken from the record.
XPN: Where the prosecution witness was extensively crossexamined on the material points and thereafter failed to
appear and cannot be produced despite a warrant of his
arrest (People v. Gorospe, G.R. No. 51513, May 15, 1984).
Effect of death or absence of a witness after the direct
examination by the proponent
1.
There is no recollection
The main evidence is the
memorandum
Witness must swear that
the writing correctly states
the transaction
2.
379
If the witness was not cross-examined because of

causes attributable to the cross-examining party and
the witness had always made himself available for
cross-examination, the direct testimony of the witness
shall remain on record and cannot be stricken off
because the cross-examiner is deemed to have waived
his right to cross-examine (Dela Paz v. IAC, G.R. No.
75860, September 17, 1987).
If the witness was partially cross-examined but died
before the completion of his cross-examination, his
testimony on direct may be stricken out but only with
respect to the testimony not covered by the crossexamination (People v. Seeris, G.R. No. L-48883,
August 6, 1980).

REMEDIAL LAW
3.
The absence of a witness is not sufficient to warrant

the striking out of his testimony for failure to appear
for further cross-examination where the witness has
already been sufficiently cross-examined, and the
matter on which cross-examination is sought is not in
controversy (Ibid.).
3.
4.
NOTE: 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. (Sec.
12, Rule 132)
Q: Is the party who offered the testimony of a witness

bound by such testimony?
A: GR: Yes, he is bound by the testimony.
5.
XPNs: When the witness is the:

1. adverse party;
2. hostile witness;
3. unwilling witness; or
4. a witness required by law to be presented (forced
witness).
6.
It 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 (Sec. 10, Rule 132) unless waived or
when asking hypothetical questions to an expert witness.
GR: A witness cannot be recalled without leave of court as

the recalling of a witness is a matter of judicial discretion
(Sec. 9, Rule 132).
NOTE: The adverse party should object thereto or ask the court to
expunge the answer from the records, if he has already given his
answer.
XPNs:
1. The examination has not been concluded; or
2. If the recall of the witness was expressly reserved by a
party with the approval of the court. In these two cases the
recall of a witness is a matter of right (Regalado, 2008).
METHODS OF IMPEACHMENT OF ADVERSE PARTYS

WITNESS
NOTE: Something more than the bare assertion of the need to

propound additional questions is essential before the court's
discretion may rightfully be exercised to grant or deny recall. There
must be a satisfactory showing of some concrete, substantial
ground for instance, that particularly identified material points
were not covered in the cross-examination, or that particularly
described vital documents were not presented to the witness
whose recall is prayed for, or that the cross-examination was
conducted in so inept a manner as to result in a virtual absence
thereof. Absent such particulars, to repeat, there would be no
foundation for a trial court to authorize the recall of any witness
(People v. Rivera, G.R. No. 98376, August 16, 1991).
Impeachment of a witness
It is a technique employed usually as part of crossexamination to discredit a witness testimony by attacking
his credibility (Riano, 2013).
Ways of impeaching an adverse partys witness
1.
2.
3.
LEADING AND MISLEADING QUESTIONS
It is one which suggests to the witness the answer which

the examining party desire. Leading question not allowed.
When is leading question allowed
On cross-examination;
NOTE: The witness is not the cross-examining partys witness
in cross-examination. Thus, he is expected to be adverse or
hostile to the cross-examiner. He is not expected to
cooperate.
On preliminary matters;
NOTE: A question is preliminary if it does not touch on any
issue.

2014 GOLDEN NOTES
By contradictory evidence;
By evidence that the general reputation for truth,
honesty or integrity of the witness is bad and
By prior inconsistent statements (Sec. 11, Rule 132).
NOTE: The other modes of impeaching a witness are:

1. By showing improbability or unreasonableness of testimony;
2. By showing bias, prejudice, and hostility;
3. By prior inconsistent acts or conduct;
4. By showing intent and motive;
5. By showing social connections, occupation and manner of
living; or
6. By showing interest (Francisco, 1992).
Leading question
2.
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
(Sec. 10, Rule 132); or
In all stages of examination of a child if the same will
further the interests of justice (Sec. 20, AM 004-07-SC).
Misleading question
Recalling
1.
When there is difficulty in 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;
To unwilling witness or hostile witness;
380
EVIDENCE
By contradictory
evidence
Refers to the
prior testimony
of the same
witness or other
evidence
presented
by
him in the same
case, but not the
testimony
of
other witness
By evidence that
his general
reputation for
truth, honesty,
or integrity of
the witness is
bad
Since the weight
of the witness
testimony
depends on his
credibility,
he
may
be
impeached
by
impairing
his
credibility
by
showing his not
pleasing
reputation but
only as regards
his
reputation
for
truth,
honesty
or
integrity.
him by introducing other evidence to prove a state of facts

contrary to what the witness testifies. Unlike an ordinary
witness, the calling party may impeach an adverse witness
in all respects as if he had been called by the adverse party,
except by evidence of his bad character. Under a rule
permitting the impeachment of an adverse witness,
although the calling party does not vouch for the witness
veracity, he is nonetheless bound by his testimony if it is
not contradicted or remains unrebutted (Gaw v. Chua, G.R.
No. 160855, April 16, 2008).
By prior
inconsistent
statements
laying the
predicate"
Refer
to
statements, oral
or documentary
made by the
witness sought
to be impeached
on
occasions
other than the
trial in which he
is testifying
HOW THE WITNESS IS IMPEACHED BY EVIDENCE OF

INCONSISTENT STATEMENTS
Laying the predicate
It means that it is the duty of a party trying to impugn the
testimony of a witness by means of prior or subsequent
inconsistent statements, whether oral or in writing, to give
the witness a change to reconcile his conflicting
declaration.
Elements of laying the predicate
1.
Impeachment of a witness by evidence of particular

wrongful acts
2.
GR: A witness may not be impeached by evidence of

particular wrongful acts.
The alleged statements must be related to the witness

including the circumstances of the times and places
and the persons present. If the statements are in
writing they must be shown to him
He must be asked whether he made such statements
and also to explain them if he admits making those
statements (Riano, 2009).
XPN: If it may be shown by the examination of the witness,

or the record of the judgment, that he has been convicted
of an offense (Sec. 11, Rule 132).
Procedure in impeaching a witness by evidence of prior

inconsistent statements
Impeachment by a party of his own witness
1.
GR: By calling a witness, the party certifies his credibility.
2.
XPN: The witness is an:

1. Unwilling or adverse witness so declared by the court;
2. Adverse party; or
3. Officer of the adverse party who is a juridical person
(Sec. 12, Rule 132).
3.
Inapplicability of the rule
Proponent may impeach his own witness when:

1.
2.
The witness must be confronted with such statements

with the circumstances of the times, places and the
persons present in which they were made;
The witness must be asked whether he made such
statements, and if so, allowed to explain them; and
If the statement be in writing it must be shown to the
witness before any question is put to him concerning
them (Sec. 13, Rule 132).
It is inapplicable if the prior inconsistent statement appears

in a deposition of the adverse party, and not a mere
witness, that adverse party who testifies may be impeached
without laying the predicate as such prior statements are in
the nature of admissions of said adverse party (Regalado,
2008).
When the witness is the adverse party himself

When the witness turned hostile. (Proponent must ask
the court that he would treat the proponent as hostile)
NOTE: In these instances, such witnesses 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.
NOTE: The reasons for such inaplicability are:

1. To avoid unfair surprise to the adversary;
2. To save time, as an admission by the witness may make the
extrinsic proof necessary; and
3. To give the witness, in fairness to him, a chance to explain the
discrepancy.
Q: What is meant by impeachment of the adverse party as

a witness?
A: That the witness is the adverse party does not
necessarily mean that the calling party will not be bound by
the formers testimony. The fact remains that it was at his
instance that his adversary was put on the witness stand.
He is not bound only in the sense that he may contradict
381

REMEDIAL LAW
Laying the predicate v. Laying the foundation or basis
Laying the Predicate
Refers
only
to
impeachment of a
witness
through
prior
inconsistent
statements
consideration
Do not require proof and
may be contradicted only
by showing that it was
made through palpable
mistake or that no such
admission was made (Sec.
4, Rule 129).
Judicial admissions need
not be offered in evidence
since it is not evidence. It
is superior to evidence and
shall be considered by the
court as established.
Conclusive
upon
the
admitter
Admissible even if selfserving
Subject
to
crossexamination
Laying the Foundation or Basis

Refers to a situation where
evidence which is otherwise
incompetent will be introduced
into evidence because it falls
under the rules of exclusion. e.g.
under the best evidence rule, a
party must first prove that a
writing was duly executed and
that the original has been lost or
destroyed. Without first laying
the
foundation,
secondary
evidence will not be admitted by
the court.
EVIDENCE OF THE GOOD CHARACTER OF A WITNESS

Admissibility of evidence on the good moral character of a
witness
CIVIL CASE
It is NOT an
admission of
any
liability
and is NOT
admissible
against
the
offeror.
NOTE: Not every good or bad moral character of the offended

party may be proved under this provision but only those which
would establish the probability or improbability of the offense
charged.
ADMISSIONS AND CONFESSIONS

Admissions v. Confessions
Confession
A statement of fact which
involves
an
acknowledgment of guilt
or liability
Can be made only by the
party himself and, in some
instances, are admissible
against his co-accused
Applies only to criminal
cases
Always express
CRIMINAL CASE
GR: It may be received in evidence as
an implied admission of his guilt.
XPNs:
1. In quasi-offenses where there is no
criminal intent (negligence) such as
reckless imprudence
b. LGC (Sec. 408) Allowed in minor

offenses whose penalties do not
exceed one year
c. RPC (Art. 266-C) In cases of marital
rape, where subsequent forgiveness
by the wife extinguishes the criminal
action or penalty (Suarez and De la
Banda,
Evidence:
A
Lawyers
Companion, 2006 ed.)
NOTE: No compromise is valid in the following cases:
1. Civil status of persons;
2. Validity of a marriage or legal separation;
3. Any ground for legal separation;
4. Future support;
5. Jurisdiction of courts;
6. Future legitime;
7. Habeas corpus; and
8. Election cases.
EXTRAJUDICIAL
ADMISSIONS
Those made out of court
or in a judicial proceeding
other than the one under

2014 GOLDEN NOTES
Not admissible if selfserving

Not subject to crossexamination
a. NIRC (Sec. 7c) The CIR has the

power to compromise minor criminal
violations as may be determined by
the Secretary of Finance
Judicial admission v. Extrajudicial admission
Those made in the course

of the proceeding in the
same case
Rebuttable
2. In criminal cases allowed by law to be

compromised such as:
NOTE: An admission, in general sense, includes confessions, the

former being a broader term because, accordingly, a confession is
also an admission by the accused of the fact charged against him
or of some fact essential to the charge (4 Wigmore, Sec. 1050). A
confession is a specific type of admission which refers only to an
acknowledgement of guilt. As used, the term admission refers to
an acknowledgement of facts which, although may be
incriminating , falls short of an admission of guilt.
JUDICIAL ADMISSIONS
Requires formal offer for it

to be considered
Offer of compromise as admission of liability
Evidence of the good character of a witness is not

admissible except when such character has been
impeached (Sec. 14, Rule 132).
Admission
A statement of fact which
does not involve an
acknowledgment of guilt
or liability
May be made by third
persons and in certain
cases,
are
admissible
against a party
Applies to both criminal
and civil cases
May be express or implied
Regarded as evidence and

must be offered as such,
otherwise the court will
not consider it in deciding
the case.
382
EVIDENCE
Q: What is the underlying reason for the adoption of the
rule against the admission of an offer of compromise in
civil cases? (1998 Bar Question)
1.
2.
A: The reason for the rule against the admission of an offer

of compromise in civil case as an admission of any liability is
that parties are encouraged to enter into compromises.
Courts should endeavor to persuade the litigants in a civil
case to agree upon some fair compromise (Art. 2029, NCC).
During pre-trial, courts should direct the parties to consider
the possibility of an amicable settlement [Sec. 2(a), Rule
18].
A:
1.
2.
Offer of compromise v. Ordinary admission

Offer of Compromise
Tentative
only;
any
statement
made
in
connection
with
the
proposal
is
merely
hypothetical; it is in
contemplation of mutual
concessions
Ordinary Admission
To admit the liability and
to seek or secure relief
against
a
liability
recognized as such.
Is the offer by Lloydie to pay the hospitalization

expenses of Bea admissible in evidence?
Is the offer by Lloydie's insurance carrier to pay for
the injuries and damages of Bea admissible in
evidence? (1997 Bar Question)
It is not admissible in evidence to prove his guilt in

both the civil and criminal cases [Sec. 27(4), Rule 130].
It is irrelevant. The obligation of the insurance
company is based on the contract of insurance and is
not admissible in evidence against the accused
because it was not offered by the accused but by the
insurance company which is not his agent.
Admissibility of plea or offer

Offer or Plea
Plea of guilty later
withdrawn by the accused
Offer by the accused to
plead guilty to a lesser
offense but unaccepted
by prosecution
Offer to pay or payment
of medical, hospital or
other expenses
occasioned by injury
(Good Samaritan Rule)
Q: Berting was accused of having raped Lisa. Rule on the

admissibility of an offer of Berting to marry Lisa. (1998 Bar
Question)
A: Berting's offer to marry Lisa is admissible in evidence as
an implied admission of guilt because rape cases are not
allowed to be compromised (Sec. 27, Rule 130).
Q: Accused was charged with rape. Among the witnesses
of the prosecution was the father of the complainant who
testified that the relatives of the accused sought a
compromise agreement of the case. Is the offer admissible
in evidence?
Admissibility
Not admissible in evidence
agains tthe accused who
made the plea
agains tthe accused who
made the offer
as proof of civil or criminal
liability for the injury
(Suarez and De la Banda,
Evidence: A Lawyers
Companion, 2006 ed.)
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 (Sec. 35, Rule 130).
A: Yes, the offer of settlement made by the relatives of the

accused to the complainants father militates against the
innocence of the accused. Indeed, an offer of compromise
by the accused in criminal cases, except those involving
quasi-offenses or those allowed by law to be compromised
may be received in evidence as an implied admission of
guilt (People v. Salvador, 396 SCRA 298).
RES INTER ALIOS ACTA RULE

Res inter alios acta alteri nocere non debet
This principle literally means things done between
strangers ought not to injure those who are not parties to
it.
NOTE: An offer of compromise made by the parents of the accused

without his participation cannot be considered as an implied
admission. Following the principle of res inter alios acta, the
actions of his parents cannot prejudice accused, since he was not a
party to the conversation nor was it shown that he was privy to the
offer of compromise. They cannot be considered as evidence
against the accused (People v. Gaudia, 423 SCRA 520).
Reason for the rule on res inter alios acta

On principle of good faith and mutual convenience, a mans
own acts are binding upon himself and are evidence against
him. So are his conduct and declarations. It would not only
be rightly inconvenient but also manifestly unjust, that a
man should be bound by the acts of mere unauthorized
strangers; and if a party ought not to be bound by the acts
of strangers, neither ought their acts or conduct be used as
evidence against him (People v. Vda. De Ramos, 403 SCRA
167).
Q: Lloydie, while driving his car, ran over Bea. Lloydie

visited Bea at the hospital and offered to pay for her
hospitalization expenses. After the filing of the criminal
case against Lloydie for serious physical injuries through
reckless imprudence, Lloydies insurance carrier offered to
pay for the injuries and damages suffered by Bea. The
offer was rejected because Bea considered the amount
offered as inadequate.
383

REMEDIAL LAW
2 branches of res inter alios acta rule
1.
2.
Statements in affidavits are not sufficient to prove the existence of

agricultural tenancy. It is self-serving. It will not suffice to prove
consent of the owner. Independent evidence is necessary
(Rodriguez vs. Salvador, G.R. No. 171972, June 8, 2011).
The rights of a party cannot be prejudiced by an act,

declaration, or omission of another (Sec. 28, Rule 130).
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 (Sec.
34, Rule 130).
Q: After working as a laborer for 43 years, A resigned from

Rufina Patis Factory. Thereafter, he availed of his pension
from the SSS and executed an affidavit stating that he was
never re-employed. However, when he filed a claim for
retirement benefits from his employer before the NLRC,
he alleged that he continued working for Rufina Patis
Factory for 4 more years. Can Rufina Patis Factory use As
affidavit executed before the SSS as an admission against
his interest?
Exceptions to the res inter alios acta rule (first branch):

1.
2.
3.
Admission by a co-partner or agent (Sec. 29, Rule 130);

Admission by a co-conspirator (Sec. 30, Rule 130); and
Admission by privies (Sec. 31, Rule 130).
A: Yes. The document is the best evidence which affords

greater certainty of the facts in dispute. While the affidavit
may have facilitated the release of the retirement benefits
from SSS, hence, beneficial to him at that time, it may still
be considered as admission against interest since the
disserving quality of the admission is judged as of the time
it is used or offered in evidence and not when such
admission was made. Thus, it matters not that the
admission was self serving at the time it was made, so long
as it is against As present claim (Rufina Patis Factory v.
Alusitain, 434 SCRA 419).
NOTE: The rule has reference to extrajudicial declarations. Hence,

statements made in open court by a witness implicating persons
aside from him are admissible as declarations from one who has
personal knowledge of the facts testified to.
Q: Mau sued Kenstar Travel Corporation for breach of

contract on the ground that when she went on a European
tour, there was no European tour manager, the Filipino
guide was a first timer, and the hotels where they were
billeted were not first class. Kenstar contended that the
tour was satisfactory because out of 18 participants, only
Mau actually complained. Can the fact that the other
participants in the tour filed no case against Kenstar be
used as evidence to show that B has no cause of action?
Classifications of admissions
A: No. Rule 130, Sec. 28 of the Rules of Court provides that

the rights of a party cannot be prejudiced by an act,
declaration or omission of another. The failure of the other
participants to file and action should not prejudice Mau
(Geraldez v. Court of Appeals, 230 SCRA 320).
ADMISSION BY A PARTY
Express
Implied
It is a positive statement or act.

It is one which may be inferred from the
declarations or acts of a person.
Judicial
When made in the course of a judicial

proceeding.
Extrajudicial
When made out of court or even in a

proceeding other than the one under
consideration.
It is a partys reaction to a statement or
action by another person when it is
reasonable to treat the partys reaction
as an admission of something stated or
implied by the other person. A third
persons statement becomes the
admission of the party embracing or
espousing it. Adoptive admission may
occur when a party:
1. Expressly agrees to or concurs in an
oral statement made by another;
2. Hears a statement and later on
essentially repeats it;
3. Utters an acceptance or builds upon
the assertion of another;
4. Replies by way of rebuttal to some
specific points raised by another but
ignores further points which he or
she has heard the other make; or
5. Reads and signs a written statement
made by another (Riano, 2009;
Republic v. Kendrick Development
Corp., G.R. No. 149576, August 8,
2006).
Admission of a party
Adoptive
The act, declaration or omission of a party as to a relevant

fact may be given in evidence against him (Sec. 26, Rule
130).
Requisites for the admissibility of an admission
1.
2.
3.
4.
Must involve matters of fact and not of law;

Must be categorical and definite;
Must be knowingly and voluntarily made; and
Must be adverse to the admitters interests (Ibid.).
Self-serving declaration
It is one which has been made extra-judicially by the party
to favor his interest. It is not admissible in evidence
because they are inherently untrustworthy, and would
open the door to fraud and fabrication of testimony.
NOTE: Self-serving evidence are inadmissible because the adverse
party is not given the opportunity for cross-examination, and their
admission would encourage fabrication of testimony (Hernandez
vs. CA, 228 SCRA 429).

2014 GOLDEN NOTES
384
EVIDENCE
against him was the testimony of Jovita in a previous
criminal case wherein the accused therein, Pacita, was
convicted of theft and where she stated that Francisco
bought stolen jewelries from her. Can the admission in the
previous case be used against Francisco?
ADMISSION AGAINST INTEREST

Admission against interest
It is made by a party to a litigation or by one in privity with
or identified in legal interest with such party.
A: No. It bears stressing that Francisco was not a party to

the previous criminal case where Pacita was the accused.
The rule is that the acts, or declarations of a person are not
admissible against a third party. Only parties to a case are
bound by a judgment of the trial court (Francisco v. People,
434 SCRA 122). Without presenting Jovita to testify on her
admission during the previous criminal case, even if made
in a previous judicial proceeding, it remains an extrajudicial
admission without any effect, insofar as the present action
against Francisco is concerned.
NOTE: The rationale for the rule is based on the presumption that
no man would declare anything against himself unless such
declaration was true. Thus, it is fair to presume that the declaration
corresponds to the truth, and it is his fault if it is not (Rufina Patis
Factory v. Alusitain, 434 SCRA 419).
Q: Anabelle Gutierrez borrowed money from Ligaya

Santos for which she issued 5 checks as guarantee for the
loan; however, these were dishonored for the reason
closed account. Later, Anabelle executed a document
which states that: I, Anabelle Rama Gutierrez certify that
I received all my old checks from Mrs. Ligaya Santos in
exchange to the new ones I gave her. In agreement, Mrs.
Ligaya agreed to drop her case against me. The
replacement checks were subsequently honored except
for one check. Thus, trial ensued and Anabelle was found
guilty for violation of BP 22 based solely on the document
she executed. Did the trial court acted correctly?
ADMISSION BY A CO-PARTNER OR AGENT

Admission by a 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
(Sec. 29, Rule 130).
A: No. the trial court misconstrued and misapplied the rule

with regard to admissions in criminal cases. An admission is
a mere acknowledgment of a fact or of circumstance from
which guilt may be inferred, tending to incriminate the
speaker, but not in itself sufficient to establish guilt beyond
reasonable doubt. By itself, the letter acknowledging that
Anabelle issued the checks and that she was replacing them
does not prove beyond reasonable doubt her culpability
under BP 22. It is indispensable that the checks she issued
be offered in evidence because the gravamen of the
offense charged is the act of knowingly issuing a check with
insufficient funds (Gutierrez v. Palattao, 292 SCRA 26).
Requisites for an admission of a partner to bind his copartners or for an agent to bind his principal
1.
2.
3.
ADMISSION BY A THIRD PARTY

Admission by a third party
The act or declaration of a partner or agent of the

party must be within the scope of his authority;
The admission was made during the existence of the
partnership or agency; and
The existence of the partnership or agency is proven
by independent evidence other than such act or
declaration (ibid.). The Articles of Incorporation or a
Special Power of Attorney may be presented for such
purpose (Suarez and De la Banda, 2000.
NOTE: The same rule applies to an act or declaration of a joint

owner, joint debtor or other person jointly interested with the
party.
GR: The act, declaration or omission made out of court of a

party as to a relevant fact may be given in evidence against
him but may not be given in evidence against another
person.
Dissolved Partnership
XPN: The act or omission of one party made out of court

may be used as evidence against another when its
admission is made by:
1. A partner
2. An agent
3. A joint owner
4. A joint debtor
5. A person jointly interested with the party
6. A conspirator
7. A privy or successor in interest (Suarez and De la
Banda, 2006).
GR: Admissions made after a partnership has been

dissolved do not fall within the exception because such are
made when the partnership ceased to exist.
XPN: Where the admissions are made in connection with
the winding up of the partnership affairs, said admissions
are still admissible as the partner is acting as an agent of his
co-partner in said winding up (Regalado, 2008).
Q: The Republic of the Philippines filed a forfeiture case
against the heirs of the late former President Marcos. In
one of her manifestations before the Sandiganbayan,
Imelda Marcos admitted that she owned 90% of the Swiss
bank deposits and only 10% belongs to the estate of the
Q: Francisco was charged with violating PD No. 1612 or

the Anti Fencing Decree. Among the evidence submitted
385

REMEDIAL LAW
late President Marcos. The other heirs also made separate
admissions in their pleadings. What is the value of these
admissions?
Q: Are extrajudicial admissions made by a conspirator

after the conspiracy had been terminated and even before
trial, be admissible against the co-conspirator?
A: The individual and separate admissions of each

respondent bind all of them pursuant to Sec. 29, Rule 130
of the Rules of Court. The declaration of a party is
admissible against a party whenever a privity of estate
exists between the declarant and the party. It generally
denotes a succession of rights. Without doubt, privity exists
among the respondents in this case. Where several coparties exists who are jointly interested in the subject
matter of the controversy, the admission of one is
competent against all (Republic v. Sandiganbayan, 406
SCRA 190).
A: No, except in the following cases:

1. If made in the presence of the co-conspirator who
expressly or impliedly agreed therein;
2. Where the facts in said admission are confirmed in the
individual extrajudicial confessions made by the coconspirator after their apprehension;
3. As a circumstance to determine the credibility of the
witness; or
4. As circumstantial evidence to show the probability of
the co-conspirators participation in the offense.
(Regalado, 2008)
ADMISSION BY A CONSPIRATOR
When extrajudicial
admission
admission
becomes
judicial
Admission by a conspirator
While it is true that statements made by a conspirator
against a co-conspirator are admissible only when made
during the existence of the conspiracy, if the declarant
repeats the statement in court, his extrajudicial confession
becomes a judicial admission, making the testimony
admissible as to both conspirators (People v. Baharan, 639
SCRA 157, January 10, 2011).
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 (Sec.
30, Rule 130).
Conspiracy
ADMISSION BY PRIVIES
A conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and
decide to commit it.
Admission by privies
NOTE: Once conspiracy is proven, the act of one is the act of all.
The statement therefore of one may be admitted against the other
co-conspirators as an exception to the rule of res inter alios acta.
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 (Sec. 31, Rule 130).
Requisites of an admission by a conspirator
Privies
1.
They refer to those who have mutual or successive

relationship to the same rights of property or subject
matter such as personal representatives, heirs, devisees,
legatees, assigns, voluntary guarantees or judgment
creditors or purchasers from them with notice of the facts.
2.
3.
The declaration or act be made or done during the

existence of the conspiracy;
The declaration or act must relate to the purpose and
object of the conspiracy; and
The conspiracy must be shown by evidence other than
the declaration or act (evidence aliunde) (Sec. 30, Rule
130).
Requisites of an admission by privies
NOTE: This rule applies only to extrajudicial acts or admission and

not to testimony at trial where the party adversely affected has the
opportunity to cross-examine the witness (People vs. Baharan,
January 10, 2011).
1.
2.
One (successor in interest) derives title to property

from another (predecessor in interest) through any
legal means of transfer
A statement, act or declaration is made by the
predecessor in interest in relation to the property and
while holding the title thereof
Said statement, act or declaration is evidence against
his successor in interest (Sec. 31, Rule 130; Suarez and
De la Banda, 2006).
Q: A was convicted of robbery with homicide. Among the

evidence used to convict her was the extrajudicial
confession of her co-accused, an alleged co-conspirator,
which confession was made with the assistance of
counsel. Can such admission be used against A?
3.
A: No. In order for such admission to be admissible in

evidence, there must be independent evidence aside from
the extrajudicial confession to prove conspiracy. There
being no independent evidence to prove conspiracy, As
culpability was not sufficiently established (People v. Vda.
De Ramos, 403 SCRA 167).
Q: Del Monte Development Corporation filed a case to be

adjudged owner of a piece of land against Ababa claiming
that it acquired a lot from Lucero in 1964. As a defense,
Ababa presented a document executed by Lucero in 1968
to settle the controversy. Can the document bind Del
Monte as successor in interest of Lucero?

2014 GOLDEN NOTES
386
EVIDENCE
A: No. The admission of a former owner of a property must
have been made while he was the owner thereof in order
that such admission may be binding upon the present
owner. Hence, Luceros act of executing the 1968
document have no binding effect on Del Monte, the
ownership of the land having passed to it in 1964 (Gevero v.
IAC, 189 SCRA 201).
withdrew its support from him as President and Commander-inChief. Thus, Angara had to allegedly ask Senate President Pimentel
to advise Estrada to consider the option of dignified exit or
resignation. Estrada did not object to the suggested option but
simply said he could never leave the country. According to the
court, his silence on this and other related suggestions can be
taken as adoptive admissions by him (Estrada v. Desierto, G.R. Nos.
146710-15, April 3, 2001).
ADMISSION BY SILENCE
CONFESSIONS
Admission by silence
Confessions
There is admission by silence when a party does or says

nothing when he hears or observes an act or declaration
made in his presence when such 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. Such may be
given in evidence against him (Sec. 32, Rule 130).
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 (Sec. 33, Rule
130).
Requisites of an admission by silence
1.
1.
2.
2.
3.
4.
5.
6.
Requisites for the admissibility of a confession
He must have heard or observed the act or declaration

of the other person;
He must have had the opportunity to deny it;
He must have understood the statement;
He must have an interest to object, such that he would
naturally have done so, if the statement was not true;
The facts were within his knowledge; and
The fact admitted or the inference to be drawn from
his silence is material to the issue (Sec. 32, Rule 130;
People v. Paragsa, G.R. No. L-44060, July 20, 1978).
3.
4.
5.
It must involve an express and categorical

acknowledgement of guilt;
Facts admitted must be constitutive of a criminal
offense;
It must have been given voluntarily;
It must have been intelligently made, the accused
realizing the importance or legal significance of his act;
and
There must have been no violation of Sec. 12, Art. III,
1987 Constitution
NOTE: A confession to a person, who is not a police officer, is
admissible in evidence. The declaration acknowledging his
guilt of the offense charged, or of any offense necessarily
included therein, may be given in evidence against the
declarant. Such admissions are not covered by Secs. 12 (1)
and (3), Article III, 1987 Constitution, because they were not
extracted while he was under custodial investigation (People
v. Davao, et. al, G.R. No. 174660, May 30, 2011).
NOTE: The rule on admission by silence does not apply when a

person is under an official investigation. For the silence of a person
under a custodial investigation for the commission of an offense
should not be construed as an admission by silence because a
person has the right to remain silent and to be informed of that
right (Sec. 12, Art. III, 1987 Constitution; Riano, 2009). However, if
it is not the police investigators who confronted the accused but
the owner of a carnapped vehicle, the silence of one after being
implicated by the other accused serves as an admission by silence
as he did not refute the statements of his co-accused despite
having heard of them (People v. Garcia, 400 SCRA 229).
6.
Principle of adoptive admission

It states that a party may, by his words or conduct,
voluntarily adopt or ratify anothers statement. Where it
appears that a party clearly and unambiguously assented to
or adopted the statements of another, evidence of those
statements is admissible against him (Riano, 2013).
It must be in writing and signed by such person in the

presence of his counsel or in the latters absence, upon
a valid waiver and in the presence of any of the
parents, elder brothers and sisters, his spouse, the
municipal mayor, the municipal judge, district school
supervisor or priest or minister of the gospel as chosen
by him (Sec. 2d, R.A. 7438; Regalado, 2008).
Judicial
confession
It is a partys reaction to a statement or action by another

person when it is reasonable to treat the partys reaction as
an admission of something stated or implied by the other
person. The basis for admissibility of admissions made
vicariously is that arising from the ratification or adoption
by the party of the statements which the other person had
made (Estrada v. Desierto, G.R. Nos. 146710-15, April 3,
2001).
CLASSIFICATION OF CONFESSIONS
One made by the accused before an
open court in which the case is pending
and in the course of legal proceedings
therein and, by itself, can sustain
conviction and is admissible against ones
co-accused. It is governed by Secs. 1, 3 &
4 of Rule 116.
Extrajudicial
confession
NOTE: One good example of adoptive admission is the alleged

admissions made by President Estrada when his options had
dwindled when, according to the Angara Diary, the Armed Forces
387
One made in any other place or occasion

other than the court where the case is
pending and cannot sustain a conviction
unless corroborated by evidence of
corpus delicti. It is generally binding only
upon the confessant and is not

REMEDIAL LAW
admissible against his co-accused. It is
governed by Sec. 33 of Rule 130
(Regalado, 2008).
1.
2.
3.
NOTE: If the accused admits having

committed the act in question but alleges a
justification therefor, such as absence of
criminal intent, the same is merely an
admission (Ibid.).
4.
5.
Q: What is the reason for the adoption of the rule against

the admission of illegally obtained extrajudicial
confession? (1998 Bar Question)
Admissibility of extrajudicial confessions

GR: An extrajudicial confession is not admissible against the
confessors co-accused.
Said confession is hearsay
evidence and violative of the res inter alios acta rule.
A: An illegally obtained extrajudicial confession nullifies the

intrinsic validity of the confession and renders it unreliable
as evidence of the truth (Moran, 1980). It is the fruit of a
poisonous tree.
XPN: It may be admitted in evidence against his co-accused

in the following cases:
1. In case of implied acquiescence of the co-accused to
the extrajudicial confession;
2. In case of interlocking confessions;
3. Where the accused admitted the facts stated by the
confessant after being apprised of such confession;
4. If they are charged as co-conspirators of the crime
which was confessed by one of the accused and said
confession is used only as corroborating evidence;
5. Where the confession is used as circumstantial
evidence to show the probability of participation by
the co-conspirator;
6. When the confessant testified for his co-defendant;
and
7. Where the co-conspirators extrajudicial confession is
corroborated by other evidence on record (Regalado,
2008).
DOCTRINE OF INTERLOCKING CONFESSIONS

Doctrine of Interlocking Confessions
It states that extrajudicial confessions independently made
without collusion which are identical with each other in
their essential details and corroborated by other evidence
against the persons implicated, are admissible to show the
probability of the latters actual participation in the
commission of the crime.
Q: 4 of the 6 suspects in the crime of kidnapping with
double murder executed separate extrajudicial statements
confessing to the crime and implicating the others. The
statements were independently executed but are identical
with each other in their material details. There are also
distinct similarities in the narration of events leading to
the killings. Is the extrajudicial confession admissible
against the others?
Q: The mutilated cadaver of a woman was discovered near

a creek. Due to witnesses attesting that he was the last
person seen with the woman when she was still alive,
Carlito was arrested within 5 hours after the discovery of
the cadaver and brought to the police station. The crime
laboratory determined that the woman had been raped.
While in police custody, Carlito broke down in the
presence of an assisting counsel and orally confessed to
the investigator that he had raped and killed the woman,
detailing the acts he had performed up to his dumping of
the body near the creek. He was genuinely remorseful.
During the trial, the State presented the investigator to
testify the oral confession of Carlito. Is the oral confession
admissible as evidence of guilt? (2008 Bar Question)
A: Yes. The rule that an extrajudicial statement is evidence

only against the person making it, also recognizes various
exceptions. One such exception is the rule on interlocking
confessions where several extrajudicial statements had
been made by several persons charged with an offense and
there could have been no collusion with reference to said
several confessions bu the fact that the statements are in
all material respects identical, is (1) confirmatory of the
confession of the co-defendants and is admissible against
other persons implicated therein. (2) They are also
admissible as circumstantial evidence against the person
implicated therein to show the probability of the latters
actual participation in the commission of the crime and (3)
may likewise serve as corroborative evidence if it is clear
from other facts and circumstances that other persons had
participated in the perpetration of the crime charged and
proved (People v. Lising, 285 SCRA 595)
A: No. The oral confession is not admissible as evidence of

guilt of Carlito because he was already under arrest and in
police custody when he made the extrajudicial confession
and he was not informed of the Miranda rights particularly
the right to remain silent. Additionally, it does not appear
that the counsel present is his counsel of his choice.
Q: What are the requirements in order that an admission
of guilt of an accused during a custodial investigation be
admitted in evidence? (2006 Bar Question)
A:
2014 GOLDEN NOTES
The admission must be voluntary.

The admission must be in writing.
The admission must be made with the assistance of
competent, independent counsel.
The admission must be express (People vs. Prinsipe,
G.R. No. 135862, May 2, 2002).
In case the accused waives his rights to silence and to
counsel, such waiver must be in writing, executed with
the assistance of competent, independent counsel.
388
EVIDENCE
SIMILAR ACTS AS EVIDENCE
2nd Branch of the Res Inter Alios Acta Rule (Sec. 34, Rule
130)
HEARSAY
MEANING OF HEARSAY
2nd Branch of the res inter alios acta rule
Hearsay evidence
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 similar thing at another time; (Sec. 34, Rule
130).
It signifies all evidence which is not founded upon the

personal knowledge of the witness from whom it is elicited
and which consequently does not depend for its credibility
and weight upon the confidence which the court may have
in him. It is information relayed from another person to the
witness before it reaches the court (Go v. CA, G.R. No.
112550, February 5, 2001). It also includes all assertions
where, though derived from personal knowledge, the
adverse party is not given an opportunity to cross-examine.
XPNs: Evidence of similar or previous acts may be received

to prove the following:
1. Specific Intent
2. Knowledge
3. Identity
4. Plan
5. System
6. Scheme
7. Habit
8. Custom
9. Usage and
10. The like (Ibid).
It includes:
1. Any evidence, whether oral or documentary, is
hearsay if its probative value is not based on the
personal knowledge of the witness but on the
knowledge of some other person not on the witness
stand (Regalado, 2008).
2. It also includes all assertions which have not been
subjected to cross-examination by the adverse party at
the trial in which they are being offered against him
(Herrera, 1999).
Purpose of the rule

Evidence of similar acts or occurrences compels the
defendant to meet allegations that are not mentioned in
the complaint, confuses him in his defense, raises a variety
of relevant issues, and diverts the attention of the court
from the issues immediately before it. Hence, the
evidentiary rule guards the practical inconvenience of trying
collateral issues and protracting the trial, and prevents
surprise or other mischief prejudicial to litigants (Cruz v. CA,
G.R. No. 126713, July 27, 1998).
NOTE: The testimony of a witness regarding a statement made by

another person, if intended to establish the truth of the facts
asserted in the statement, is clearly hearsay evidence, it is
otherwise if the purpose of placing the statement in the record is
merely to establish the fact that the statement was made or the
tenor of such statement.
Hearsay Rule
It states that a witness can testify only to those facts which
he knows of based on his personal knowledge or those
which are derived from his own perception (Sec. 36, Rule
130).
It prohibits the admission of the so-called propensity

evidence and decrees that 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.
Elements of hearsay evidence
Q: Accused was charged with 2 counts of kidnapping.

Since the 2 incidents happened almost simultaneously, the
cases were consolidated and joint trial ensued. In the first
case, accused tied the hands of the 2 victims and pointed
their guns at them. In the second case, however, it
appears that the 2 victims were not physically threatened
or tied. Can evidence in the first case be used in the
second to prove that accused had the intent to deprive
the victims of liberty?
1.
2.
A: Yes. The evidence shows the intent of the accused. That

the victims hands were not tied nor guns poked at their
sides when they were taken by the accused in the second
case do not conclusively preclude the deprivation of liberty.
The circumstances surrounding the taking of the victims in
the first case, particularly the previous conduct of accused
in kidnapping them, plainly demonstrates their intent to
likewise deprive the victims in the other case, of their
liberty (People v. Dadles, 278 SCRA 393).
Medical certificates cannot be admitted in the absence of the

testimony of the physician who examined the complaint for alleged
torture wounds.
There must be an out-of-court statement; and

The statement made out of court, is repeated and
offered by the witness in court to prove the truth of
the matters asserted by the statement (Riano, 2013).
NOTE: Newspaper clippings are hearsay and of no evidentiary

value at all whether objected to or not, unless offered for a
purpose other than proving the truth of the matter asserted (Feria
v. CA, 325 SCRA 525)
Affidavits are inadmissible unless the affiants themselves are

placed in the witness stand to testify therefrom.
Statements made through an interpreter

GR: Statements made through an interpreter are
considered hearsay if a witness is offered to testify to the
389

REMEDIAL LAW
statements of another person, spoken in a language not
understood by him, but translated for him by an
interpreter, such witness is not qualified, because he does
not speak from personal knowledge. All that he can know
as to the testimony is from the interpretation thereof which
is in fact given by another person.
OUT-OF-COURT STATEMENTS
Classification of out-of-court statements:
1.
Hearsay Its probative force depends, in whole or in

part, on the competency and credibility of some
persons other than the witness by whom it is sought to
produce it. It is inadmissible as evidence when the
purpose for introducing the out-of-court statement is
to prove the truth of the facts asserted therein
(Estrada v. Desierto, G.R. Nos. 146710-15 & 146738,
April 3, 2001).
2.
Non-hearsay This occurs when the purpose for

introducing the statement is not to prove the truth of
the facts asserted therein but only the making of the
statements and are admissible in evidence when the
making of the statement is relevant. These are the socalled independently relevant statements.
3.
Exceptions to the hearsay rule Those which are

hearsay but are considered as exceptions to the
hearsay rule and are therefore admissible (Secs. 37-47,
Rule 130).
XPNs: In cases where the interpreter had been selected:

1. By common consent of the parties endeavoring to
converse;
2. By a party against whom the statements of the
interpreter where offered in evidence (Principal-Agent
Rule).
Q: Counsel Oliva objected to a question posed by
opposing Counsel Diesta on the grounds that it was
hearsay and it assumed a fact not yet established. The
judge banged his gavel and ruled by saying Objection
Sustained. Can Counsel Diesta ask for a reconsideration
of the ruling? (2012 Bar Question)
A: Yes, Counsel Diesta may ask the Judge to specify the
ground/s relied upon for sustaining the objection and
thereafter move its reconsideration thereof (Sec. 38, Rule
132, Rules of Court).
INDEPENDENTLY RELEVANT STATEMENTS
REASON FOR EXCLUSION OF HEARSAY EVIDENCE
Independently relevant statements
There is no opportunity for cross-examination hence, it is

not subject to the test of truth since the declarant is not
available and available for cross-examination.
These are statements which are relevant independently of

whether they are true or not. They are neither hearsay nor
an exception to the hearsay rule as the purpose thereof is
not to prove the truth of the declaration or document
(Estrada v. Desierto, G.R. Nos. 146710-15 & 146738, April 3,
2001).
In criminal cases, its admission would be a violation of the

constitutional provision that the accused shall enjoy the
right of being confronted with the witnesses testifying
against him and to cross-examine them. Moreover, the
court is without opportunity to test the credibility of
hearsay statements by observing the demeanor of the
person who made them.
Classification of independently relevant statements

1.
2.
DOUBLE HEARSAY
Double hearsay
It is a testimony based on third hand information related to
the witness by someone who heard it from others.
Q: Romeo is sued for damages for injuries suffered by the
plaintiff in a vehicular accident. Julieta, a witness in court,
testifies that Romeo told her that he heard Antonio, a
witness to the accident, gives an excited account of the
accident immediately after its occurrence. Is Julietas
testimony admissible against Romeo over proper and
timely objection? Why? (2002 Bar Question)
A: No, because while the excited account of Antonio, a
witness to the accident, was told to Romeo, it was only
Romeo who told Julieta about it, which makes it hearsay.

2014 GOLDEN NOTES
Those statements which are the very facts in issue;

Those statements which are circumstantial evidence of
the fact in issue. It includes the following:
a. Statements of a person showing his state of mind,
that is, his mental condition, knowledge, belief,
intention, ill-will and other emotions;
b. Statements of a person which show his physical
condition, as illness and the like;
c. Statements of a person from which an inference
may be made as to the state of mind of another,
i.e., the knowledge, belief, motive, good or bad
faith, etc. of the latter;
d. Statements which may identify the date, place
and person in question; and
e. Statements showing the lack of credibility of a
witness (Estrada v. Desierto, etc. et al., G.R. Nos.
146710-15, April 3, 2001).
Q: Annie overheard Billy call Rocky a thief. In an action for

defamation filed by Rocky against Billy, is the testimony of
Annie offered to prove the fact of utterance i.e., that Billy
called Rocky a thief, admissible in evidence? Explain.
(1999 Bar Question)
390
EVIDENCE
A: Yes. The testimony of Annie is admissible in evidence as
an independently relevant statement. It is offered in
evidence only to prove the tenor thereof, not to prove the
truth of the facts asserted therein. Independently relevant
statements include statements which are on the very facts
in issue or those which are circumstantial evidence thereof.
The hearsay rule does not apply.
NOTE: Where the elements of both a dying declaration and a

statement as part of the res gestae are present, the statement may
be admitted as a dying declaration and at the same time as part of
res gestae (People vs. Gado, 298 SCRA 466).
Reason for admissibility

The reasons for admissibility are necessity and
trustworthiness. Necessity, because the declarants death
renders it impossible his taking the witness stand, and it
often happens that there is no other equally satisfactory
proof of the crime; allowing it prevents a failure of justice.
Trustworthiness, because the declaration is made in
extremity, when the party is at the point of death and when
every motive to falsehood is silenced and the mind is
induced by the most powerful considerations to speak the
truth (Riano, 2009; People v. Cerilla).
NON-HUMAN EVIDENCE
It is the testimony of a witness as to statements made by a
non-human declarant (e.g. machines and computers). It
does not violate the rule on hearsay, hence not covered by
the Rule. Machines and animals, unlike humans, lack
conscious motivation to tell falsehoods. The workings of the
machines can be explained by human witnesses who may
then be cross-examined (Herrera, 1999).
Requisites for the admissibility of a dying declaration
EXCEPTIONS TO THE HEARSAY RULE
1.
2.
Exceptions to the hearsay rule (1999 Bar Question)

1.
2.
3.
4.
5.
Dying declaration (Sec. 37);

Declaration against interest (Sec. 38);
Act or declaration about pedigree (Sec. 39);
Entries in the course of business (Sec. 43);
Testimony or deposition at a former proceeding (Sec.
47);
6. Family reputation or tradition regarding pedigree (Sec.
40);
7. Common reputation (Sec. 41);
8. Parts of Res gestae (Sec. 42);
9. Entries in official records (Sec. 44);
10. Commercial lists and the like (Sec. 45);
11. Learned treatises (Sec. 46);
3.
4.
5.
6.
7.
NOTE: Items 1 to 5 requires death or unavailability of declarant.
The declaration is one made by a dying person;

The declaration was made by said dying person under
a consciousness of his impending death;
The declaration refers to the cause and circumstances
surrounding the death of the declarant and not of
anyone else;
The declaration is offered in a case wherein the
declarants death is the subject of the inquiry; and
The declarant is competent as a witness had he
survived (Geraldo v. People, G.R. No. 173608,
November 20, 2008).
That the statement is complete in itself Doctrine of
Completeness (People vs. De Joya, G.R. No. 75028,
November 8, 1991)
The declarant should have died (if he survives, his
declaration may be admissible as part of the res
gestae).
Time interval
It is not correct to say that the exceptions to the hearsay rule are
not hearsay. They are hearsay evidence but they are deemed
admissible by reason of necessity and trustworthiness.
GR: The intervening time from the making of a dying

declaration up to the time of death is immaterial in its
admissibility, as long as it was made under the
consciousness of death.

They are admissible by reason of relevancy, necessity and
trustworthiness (Estrada vs. Desierto, G.R. No. 146710-15,
April 3, 2001).
XPN: If there is retraction made by the declarant before he

died or his declaration is ambiguous. However, the interval
of time between the declaration and the death of the
declarant may be taken into account where the declaration
is ambiguous as to whether the declarant believed that his
death was imminent when he made such declaration.
DYING DECLARATION
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 (Sec. 37, Rule 130).
Factors in determining whether the declarant is conscious

of his impending death
1.
2.
3.
These are ante mortem statements made by a person after

the mortal wound has been inflicted under the belief that
the death is certain, stating the fact concerning the cause of
and the circumstances surrounding the attack.
Utterances;
Actual character and seriousness of his wounds; and
By the declarants conduct and the circumstances at
the time he made the declaration, whether he
expected to survive his injury (Regalado, 2008).
Q: Sam was charged with robbery and homicide. Kitchie,

the vcictim, suffered several stab wounds. It appears that
391

REMEDIAL LAW
11 hours after the crime, while Kitchie was being brought
to the hospital in a jeep, with his brother and a policeman
as companions, Kitchie was asked certain questions which
she answered, pointing to Sam as her assailant. Her
answers were put down in writing, but since she was in a
critical condition, her brother and the policeman signed
the statement. Is the statement admissible as a dying
declaration? Explain. (1999 Bar Question)
Requisites of declaration against interest:

1.
NOTE: The inability to testify must be serious.
2.
3.
A: Yes. The statement is admissible as a dying declaration if

the victim subsequently died and her answers were made
under the consciousness of an impending death. The fact
that she did not sign the statement pointing to the accused
as her assailant because she was in a critical condition does
not affect its admissibility as a dying declaration (People v.
Viovicente, G.R. No. 118707, February 2, 1998).
4.
Declaration relates to a fact against the interest of the

declarant;
At the time he made said declaration, he was aware
that the same was contrary to his interest; and
Declarant had no motive to falsify and believed such
declaration to be true.
Q: Alejandro Cuenca was charged with the crime of

kidnapping Hector Ocampo. One of the testimonies
presented by the prosecution was that of Maribelle
Magdayao, who testified that Hector confided to her that
he and Alejandros wife Rubi were having an affair.
Undoubtedly, his wife's infidelity was ample reason for
Alejandro to contemplate revenge. Consequently, the trial
court convicted Alejandro based on the testimonies of the
witnesses. Was the testimony of Maribelle admissible as
evidence?
NOTE: A dying declaration may be oral or written. If oral, the

witness who heard it may testify thereto without the necessity of
reproducing the word of the decedent, if he is able to give the
substance thereof. An unsigned dying declaration may be used as a
memorandum by the witness who took it down (People v. Boller,
G.R. Nos. 144222-24, April 3, 2002).
Assailing a dying declaration
A: Yes. Hectors revelation to Maribelle regarding his illicit

relationship with Alejandros wife is admissible in evidence,
pursuant to Section 38, Rule 130 of the Revised Rules on
Evidence. With the deletion of the phrase "pecuniary or
moral interest" from the present provision, it is safe to
assume that "declaration against interest" has been
expanded to include all kinds of interest, that is, pecuniary,
proprietary, moral or even penal. Hector having been
missing since his abduction, cannot be called upon to
testify. His confession to Maribelle, definitely a declaration
against his own interest, since his affair with Rubi was a
crime, is admissible in evidence because no sane person will
be presumed to tell a falsehood to his own detriment
(People v. Bernal, G.R. No. 113685, June 19, 1997).
The declaration may be attacked in the same manner as

one would do a testimony in open court. The declarant
himself may be impeached through the normal methods
provided for under the rules.
DECLARATION AGAINST INTEREST
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 (Sec. 38, Rule 130).
Declaration against interest v. Admission against interest

Declaration against
Interest
Made by a person who is
neither a party nor in
privity with a party to the
suit is a secondary
evidence
Secondary evidence and
admissible only when the
declarant is already dead
or unavailable to testify as
a witness.
Exception to the hearsay
rule
Must have been made ante
litem motam, i.e. before
the controversy
May be admitted against
himself or successors-ininterest and against third
persons
These are ante litem motam statements made by a person

who is neither a party nor in privity with a party to the suit.
Such are considered secondary evidence and admissible
only when the declarant is already dead or unavailable to
testify as a witness and may be admitted against himself or
successors-in-interest and against third persons.
Requisites for the admissibility of declaration against
interest:
Necessity, as such declaration, act, or omission is frequently
the only mode of proof available and trustworthiness,
because of the first presumption that men will neither
falsify nor commit mistakes when such falsehood or
mistake would be prejudicial to their own pecuniary
interest, and because of the fact that any fraudulent motive
for making the statement may be shown.

2014 GOLDEN NOTES
The declarant is dead or unable to testify;
392
Admission against Interest

Made by a party to a
litigation or by one in
privity with or identified in
legal interest with such
party.
Primary evidence and
admissible whether or not
the declarant is available
as a witness.
Covered by the hearsay
rule
May be made at any time,
before or during the trial.
Used only against the party
admitting
EVIDENCE
ACT OR DECLARATION ABOUT PEDIGREE
and the like, may be received as evidence of pedigree (Sec.

40, Rule 130).
Act or declaration about pedigree

The declarant is the witness himself and a member of the
family. The witness is the one to whom the fact relates, it is
not necessary for him to establish by independent evidence
his relationship to the family.
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 (Sec. 39, Rule 130).

These are admissible by reason of necessity since tradition
is often the sole method by which proof of matters of
pedigree can be obtained.
Pedigree
It includes relationship, family genealogy, birth, marriage,
death, the dates when and the places where the facts
occurred and the names of the relatives. It also embraces
facts of family history intimately connected with pedigree
(Ibid.).
Requisites for the admissibility of family reputation or

tradition regarding pedigree
1.
2.
NOTE: The relationship between the declarant and the person

subject of the inquiry must be legitimate unless the issue is the
legitimacy itself.
3.
There is no provision as to the extent of degree of relationship.
4.
Necessity and trustworthiness. Necessity since the facts

about pedigree are usually those which occurred many
years before the trial and known only to a few persons.
Trustworthiness since these are matters which members of
a family are presumed to be interested in ascertaining the
truth.
How to establish family reputation or tradition with

respect to ones pedigree
1.
Requisites for the admissibility of acts or declarations

about pedigree
1.
2.
3.
4.
5.
There is controversy in respect to the pedigree of any

member of the family;
The reputation or tradition of the pedigree of the
person concerned existed previous to the controversy;
and
The statement is about the reputation or tradition of
the family in respect to the pedigree of any member of
the family.
The witness testifying to the reputation or tradition
regarding pedigree of the person concerned must be a
member of the family of said person either by
consanguinity or affinity (Sec. 40, Rule 130).
2.
The declarant is dead or unable to testify;

The pedigree should be in issue;
The declarant must be a relative of the person whose
pedigree is in question, either by birth or marriage;
The declaration must be made ante litem motam or
before the controversy occurred; and
The relationship between the declarant and the
person whose pedigree is in question must be shown
by evidence other than such act or declaration (Tecson
v. COMELEC, G.R. No. 161434, March 3, 2004).
Through testimony in open court of a witness who

must be a member of the family either by
consanguinity or affinity;
Through entries in:
a. Family bible;
b. Family books or charts;
c. Engravings on rings; or
d. Family portraits and the like.
Sec. 39 (act or declaration about pedigree) v. Sec. 40

(family reputation regarding pedigree)
Section 39
Act or declaration about
pedigree
NOTE: Such declarations are natural expressions of persons who

must know the truth. Although hearsay, it is best that the nature of
the case admits and because greater evil might arise from the
rejection of such proof than from its admission.
Act or declaration about

pedigree
FAMILY REPUTATION OR TRADITION REGARDING

PEDIGREE
Witness need not be a

member of the family
Relation of the declarant
and the person subject of
the inquiry must be
established
by
independent evidence
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
393
Section 40
Family reputation or
tradition regarding
pedigree
Family
reputation
or
tradition
regarding
pedigree
Witness is a member of the
family
The witness is the one to
whom the fact relates, it is
not necessary for him to
establish by independent
evidence his relationship
to the family (Francisco, p.
292, 1992 ed.)

REMEDIAL LAW
Testimony is about what
the declarant has said
concerning the pedigree of
the family
NOTE: Marriage, if not proven through an act or declaration about

pedigree may be proven through common reputation (Trinidad v.
CA, G.R. 118904).
Testimony is about family

reputation or tradition
covering
matters
of
pedigree
Difference between matters of public interest and matters

of general interest
COMMON REPUTATION
Matters of public interest involve those which are common

to all citizen of the state or to the entire people while
matters of general interest involve those which are
common only to a single community or to a considerable
number of persons forming part of the community.
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 (Sec. 41, Rule 130).
PART OF RES GESTAE

Res Gestae
It is the definite opinion of the community in which the fact

to be proved is known or exists. It means the general or
substantially undivided reputation, as distinguished from a
partial or qualified one, although it need not be unanimous
(Regalado, 2008).
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 (Sec. 42, Rule 130).
NOTE: As a general rule, the reputation of a person should be that

existing in the place of his residence; it may also be that existing in
the place where he is best known (Ibid.). Character is what a man
is, and reputation is what he is supposed to be in what people say
he is (Lim vs. CA, 214 SCRA 273).
It is a Latin phrase which literally means "things done." As

an exception to the hearsay rule, it refers to those
exclamations and statements by either the participants,
victims, or spectators to a crime immediately before, during
or immediately after the commission of the crime, when
the circumstances are such that the statements were made
as spontaneous reactions or utterances inspired by the
excitement of the occasion, and there was no opportunity
for the declarant to deliberate and fabricate a false
statement (Capila v. People, G.R. No. 146161, July 17,
2006).
Reasons for admissibility

1.
2.
Necessity arising from the inherent difficulty of

obtaining any other evidence than that in the nature
of common reputation; and
Trustworthiness of the evidence arising from:
a. The supposition that the public is conversant with
the subject to be proved because of their general
interest therein; and
b. The fact that the falsity or error of such evidence
could be exposed or corrected by other testimony
since the public are interested in the same
(Francisco, pp. 296-297, 1992 ed.).

The reason for the rule is human experience. It has been
shown that under certain external circumstances of
physical or mental shock, the state of nervous excitement
which occurs in a spectator may produce a spontaneous
and sincere response to the actual sensations and
perceptions produced by the external shock.
Requisites for admissibility of common reputation

1.
2.
3.
4.
The facts must be of public or general interest and

more than 30 years old;
The common reputation must have been ancient, i.e.
30 years old;
The reputation must have been one formed among a
class of persons who were in a position to have some
sources of information and to contribute intelligently
to the formation of the opinion; and
The common reputation must have been existing
previous to the controversy.
As the statements or utterances are made under the

immediate and uncontrolled domination of the senses,
rather than reason and reflection, such statements or
utterances may be taken as expressing the real belief of the
speaker as to the facts he just observed. The spontaneity of
the declaration is such that the declaration itself may be
regarded as the event speaking through the declarant
rather than the declarant speaking for himself.
Matters that may be established by common reputation
Requisites for the admissibility of res gestae
1.
1.
2.
3.
Matters of public and general interest more than 30

years old;
Matters respecting marriage or moral character and
related facts; and
Individual moral character.

2014 GOLDEN NOTES
2.
394
That the principal act, the res gestae, be a startling

occurrence;
That the statements were made before the declarant
had time to contrive or devise; and
EVIDENCE
3.
That the statements must concern the occurrence in

question and its immediately attending circumstances
(Sec. 42, Rule 130; People vs. Balbas, 122 SCRA 859).
concern the occurrence

in question and its
immediate
attending
circumstances;
3. The statement must be
spontaneous and were
made
before
the
declarant had the time
to contrive or devise a
falsehood. (Talidano v.
Falcom Maritime &
Allied Services, Inc., G.R.
No. 172031, July 14,
2008)
NOTE: The test for the admissibility of evidence as part of the res
gestae is whether the act, declaration, or exclamation is so
intimately interwoven or connected with the principal fact or event
that it characterizes as to be regarded a part of the principal fact or
event itself, and also whether it clearly negates any premeditation
or purpose to manufacture testimony (People vs. Villarico Sr., April
4, 2011).
Part of res gestae v. dying declaration.

Part of Res Gestae
It is the event itself which
speaks
May be made by the killer

after or during the killing
or that of a third person
May
precede,
or
accompany or follow the
principal act
Justification
is
the
spontaneity
of
the
statement
Dying Declaration
A sense of impending
death takes the place of an
oath and the law regards
the declarant as testifying
Can be made by the victim
only
NOTE: The reason for the

admissibility of verbal acts is
that the motive, character and
object of an act are frequently
indicated by what was said by
the person engaged in the act.
NOTE: The reason for the

admissibility of spontaneous
statements is trustworthiness
and
necessity,
because
statements
are
made
instinctively, and because said
natural
and
spontaneous
utterances are more convincing
than the testimony of the same
person on the stand.
Confined
to
matters
occurring
after
the
homicidal act
Justification
is
the
trustworthiness,
being
given by the person who
was
aware
of
his
impending death
Factors to determine whether statements offered in

evidence as part of the res gestae have been made
spontaneously
1.
Two types of res gestae

Verbal Acts
Utterances
which
accompany some act or
conduct to which it is
desired to give legal effect;
When
such
act
has
intrinsically no definite legal
significance, or only an
ambiguous one, its legal
purport or tenor may be
ascertained by considering
the words accompanying it,
and these utterances thus
enter merely as verbal part
of the act.
The res gestae is the
equivocal act.
Verbal
act
must
be
contemporaneous with or
must
accompany
the
equivocal
act
to
be
admissible.
Requisites:
1. There must be a
startling occurrence;
2. The statement must
relate
to
the
circumstances of the
startling occurrence or
that the statement must
equivocal act;
4. The statement gives a
legal significance to the
equivocal act. (Talidano
v. Falcom Maritime &
Allied Services, Inc., G.R.
No. 172031, July 14,
2008)
Spontaneous Statements
Statements or exclamations
made immediately after
some exciting occasion by a
participant or spectator and
asserting the circumstances
of that occasion as it is
observed by him.
2.
3.
4.
5.
The time that has elapsed between the occurrence of

the act and transaction and the making of the
statement;
The place where the statement was made;
The condition of the declarant when he made the
statement;
The presence or absence of intervening occurrences
between the occurrence and the statement relative
thereto; and
The nature and circumstances of the statement itself
(Francisco, 1992).
Q: Sam raped Reyna. After raping Reyna, Sam fled. Reyna

then rushed to the police station and told Police Officer
Buloy what had happened. Sam was charged with rape.
During the trial, Reyna can no longer be located. If the
prosecution presents Buloy to testify on what Reyna had
told him, would such testimony of Buloy be hearsay?
Explain. (2005 Bar Question)
The res gestae is the

startling occurrence.
May
be
prior
to,
simultaneous
with,
or
subsequent to the startling
occurrence.
A: No. It is part of res gestae. It is also an independently

relevant statement. Buloy testified based on his personal
knowledge; that is, he was testifying to the fact that Reyna
told him that she was raped by Sam and not to the truth of
Reynas statement (People v. Gaddi, G.R. No. 74065, Feb.
27, 1989).
Requisites:
1. The principal act to be
characterized must be
equivocal;
2. The equivocal act must
be material to the issue;
3. The statement must
accompany
the
395

REMEDIAL LAW
ENTRIES IN THE COURSE OF BUSINESS or
THE SHOP-BOOK RULE
When the declarant is alive

GR: Business entries may not be admitted in evidence as an
exception to the hearsay rule when the declarant is alive.
Entries in the course of business or the Shop-Book Rule

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 (Sec. 43, Rule 130).
XPN: They may nevertheless be availed of by said entrant

as a memorandum to refresh his memory while testifying
on the transactions reflected therein.
ENTRIES IN OFFICIAL RECORDS
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 (Sec. 44,
Rule 130).
What a man has actually done and committed to writing

when under obligation to do the act, it being in the course
of the business he has undertaken, and he being dead,
there seems to be no danger in submitting to the
consideration of the court.
Official record
NOTE: Reliability is furnished by the fact that regularly kept records

typically have a high degree of accuracy. The law does not fix any
precise moment when the entries should be made. It is sufficient if
the entry was made within a reasonable period of time so that it
may appear to have taken place while the memory of the facts was
unimpaired.
The original document that is legally recognized and thus

ensuring the quality of a fact when it is established. It may
be a:
1. Register;
2. Cash book; or
3. An official return or certificate (Regalado, 2008).
Requisites for the admissibility of entries in the course of

business
1. The person who made the entry must be dead or
unable to testify;
2. The entries were made at or near the time of the
transactions to which they refer;
3. The entrant was in a position to know the facts stated
in the entries;
4. The entries were made in his professional capacity or
in the performance of a duty, whether legal,
contractual, moral or religious; and
5. The entries were made in the ordinary or regular
course of business or duty (Regalado, 2008)

1.
2.
Requisites for the admissibility of entries in official records

1.
NOTE: The law does not fix any precise moment when the entries
should be made as long as the entry was made within a reasonable
period of time so that it may appear to have taken place while the
memory of the facts was unimpaired.
2.
Proof of regularity of the entries

3.
It may be proved by the form in which they appear as
entries in the books/ledgers. There is no need to present
for testimony the clerk who manually made the entries. The
person who supervised such clerk is competent to testify
that:
1. The account was prepared under his supervision; and
2. That the entries were regularly entered in the ordinary
course of business (Regalado, 2008)
Entries were made by a public officer in the

performance of his duties or by a person in the
performance of a duty especially enjoined by law;
Entrant had personal knowledge of the facts stated by
him or such facts were acquired by him from reports
made by persons under a legal duty to submit the
same; and
Such entries were duly entered in a regular manner in
the official records (Ibid.).
Entries in official record v. Entries in the course of business

Entries in Official Record
The entrant, if a private
individual, must have acted
pursuant to a specific legal
duty specially enjoined by
law.
Entrant need not be dead
or unable to testify
Need not be authenticated
NOTE: Baptismal certificates are admissible as entries in the

ordinary course of business, even absent the testimony of the
officiating priest or official recorder because it is one of its
transactions in the exercise of ecclesiastical duties and recorded in
the book of the Church during the course of its business (Heirs of
Conti vs. Court of Appeals, G.R. No. 118464. December 21, 1998.)

2014 GOLDEN NOTES
Necessity - due to the impossibility of requiring the

officials attendance as a witness to testify to the
innumerable transactions occurring in the course of his
duty.
Trustworthiness there is a presumption of regularity
in the performance of official duty
396
Entries in the Course of

Business
It is sufficient that the
entrant made the entries
pursuant to a duty be it
legal, contractual, moral or
religious.
Entrant must be dead or
unable to testify.
Needs authentication
EVIDENCE
Exception to the best
evidence
rule
(irremovability of public
records)
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 (Sec. 46, Rule 130).
Best Evidence Rule applies
Q: Should entries in the police blotter be given probative

value?

The learned writers have no motive to misrepresent due to
the awareness that his work will be carefully scrutinized by
the learned members of the profession and that he shall be
subject to criticisms and be ultimately rejected as an
authority on the subject matter if his conclusions are found
to be invalid.
A: No, as they are not conclusive evidence of the truth of

the contents but merely of the fact that they were recorded
(People v. Cabrera, Jr., G.R. No. 138266, April 30, 2003).
COMMERCIAL LISTS AND THE LIKE
Commercial lists and the like
Requisites for the admissibility of learned treatises

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 compilation is published for use by persons engaged
in that occupation and is generally used and relied upon by
them therein (Sec. 45, Rule 130).
1.
2.
When the court can take judicial notice of them; or

When an expert witness testifies that the author of
such is recognized as expert in that profession (Sec. 46,
Rule 130).
Examples of learned treatises

1.
2.
3.

Because of the usual inaccessibility of the persons
responsible for the compilation of matters contained in
such lists, it would cause the court inconvenience if it would
issue summons to these numerous individuals. Persons
responsible for such lists have no motive to deceive and
they further realize that unless the list, register or
periodical or other published compilation are prepared with
care and accuracy, their work will have no commercial or
probative value.
Historical works;
Scientific treatises; or
Law (Francisco, 1992).
TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING

Testimony or deposition at a former proceeding
Requisites for the admissibility of commercial lists and the

like
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 (Sec. 47, Rule 130).
1.
Requisites for admissibility
2.
3.
4.
Statements of matters of interest to persons engaged

in an occupation;
Statements must be contained in a list, register,
periodical, or other published compilation;
Compilation is published for use by persons engaged in
that occupation; and
Such is generally relied upon by them.
1.
2.
Examples of commercial lists
3.
1.
4.
2.
3.
4.
Trade journals reporting current prices and other

market data;
Mortality tables compiled for life insurance;
Abstracts of title compiled by reputable title examining
institutions or individuals; or
Business directories, animal pedigree registers, and
the like (Francisco, p. 339, 1992 ed.).
5.
Witness whose testimony is offered in evidence is

dead or unable to testify;
The testimony or deposition was given in a former
case or proceeding, judicial or administrative, between
the same parties or those representing the same
interests;
Former case involved the same subject as that in the
present case, although on different causes of action;
Issue testified to by the witness in the former trial is
the same issue involved in the present case; and
Adverse party had an opportunity to cross-examine
the witness in the former case (Regalado, 2008).
NOTE: What may be admitted as evidence is testimony or

deposition. A decision in a previous case involving the same parties
and the same subject matter does not fall under the exception.
What is considered as a testimony in the former trial is the
transcript of the witness testimony.
LEARNED TREATIES
Learned treatises
A published treatise, periodical or pamphlet on a subject of
history, law, science, or art is admissible as tending to prove
397

REMEDIAL LAW
Grounds which make a witness unable to testify in a
subsequent case
1.
2.
3.
4.
5.
NOTE: The use of the word may, signifies that the use of opinion of
expert witness is permissive and not mandatory on the part of the
courts. It only assists the court in the determination of the issue
before it, and is for the court to adopt or not to adopt depending
on its appreciation of the attendant facts and the applicable law
(Tabao v. People, July 20, 2011).
Death
Insanity or mental incapacity or the former witness
loss of memory through old age or disease;
Physical disability by reason of sickness or advanced
age;
The fact that the witness has been kept away by
contrivance of the opposite party; or
The fact that after diligent search the former witness
cannot be found (Francisco, 1992).
Expert Witness
He is one who belongs to the profession or calling to which
the subject matter of the inquiry relates and who possesses
special knowledge on questions on which he proposes
special knowledge to express an opinion (Regalado, 2008).
Before one may be allowed to testify as an expert witness,
his qualification must first be established by the party
presenting him, i.e., he must be shown to possess the
special skill or knowledge relevant to the question to which
he is to express an opinion (People vs. Fundano, 291 SCRA
356).
Proof of former testimony

1.
2.
If reduced to writing, such writing is the primary

evidence thereof and should be used;
The stenographic notes or a copy thereof.
NOTE: The judges notes are not evidence of what the witness said,
and, as a rule, they can be used only to refresh the memory of a
witness.
NOTE: Expert testimony is not admissible as to a matter not in

issue.
Degree of skill or knowledge
OPINION RULE
There is no definite standard in determining the degree of

skill or knowledge that a witness must possess in order to
testify as an expert as long as the following are present:
1. Training and education
2. Particularity, first-hand familiarity with the facts of the
case
3. Presentation of authorities or standards upon which
his opinion is based (People v. Abriol, G.R. No. 123137,
October 17, 2001).
Opinion
A person's thought, belief, or inference, especially a
witness's view about facts in dispute, as opposed to
personal knowledge of the facts themselves (Blacks Law
Dictionary, 2004).
GR: The opinion of a witness is not admissible. The witness
must testify to facts within their knowledge and may not
state their opinion, even on their cross-examination.
NOTE: An expert witness may base his opinion either on the firsthand knowledge of the facts or on the basis of hypothetical
questions where the facts are presented to him hypothetically and
on the assumption that they are true, formulates his opinion on
such hypothesis.
XPNs:
1. Opinion of expert witness
2. Opinion of ordinary witnesses
The probative force of the testimony of an expert does not lie in a

mere statement of his theory or opinion, but rather in the aid that
he can render to the courts in showing the facts which serve as a
basis for his criterion and the reasons upon which the logic of his
conclusion is founded (Dizon v. Tuazon, G.R. No. 172167, July 9,
2008).
NOTE: Opinion testimony involving questions of law or the

ultimate fact in issue is not admissible.
Hearsay evidence v. Opinion evidence (2004 Bar Question)

Hearsay Evidence
Consists of testimony that
is not based on personal
knowledge of the person
testifying
Opinion Evidence
Expert evidence based on
the personal knowledge,
skill, experience or training
of the person testifying
and evidence of an
ordinary
witness
on
limited matters.
Expert evidence
It is the testimony of a person (expert witness) possessing
knowledge not usually acquired by other persons in a
particular subject matter.
NOTE: It is admissible when the matter to be established requires
expertise and the witness have been qualified as an expert.
OPINION OF EXPERT WITNESS

Test in determining the need to resort to expert evidence
Opinion of expert witness
Whether the opinion called for will aid the court in
resolving an issue.
The opinion of a witness on a matter requiring special

knowledge, skill, experience or training which he shown to
possess may be received in evidence (Sec. 49, Rule 130).

2014 GOLDEN NOTES
Q: In a case where the issue involves forgery, two expert

witness were presented by the plaintiff, the NBI official
and a handwriting expert from the PNP. The NBI official
398
EVIDENCE
testified that the signatures in the deed of sale and the
other sample signatures are the same. However, the PNP
handwriting expert declared that the person who signed
are not the same person. The lower court gave credit and
based the ruling on the testimony of the PNP handwriting
expert on the fact that the said witness has better
credentials than the NBI witness. Is the ruling valid,
because of the fact that the court based the ruling on the
credentials?
EXCEPTIONS ON THE RULE ON CHARACTER EVIDENCE

CRIMINAL CASES
As to the
Accused
He may prove
his good moral
character which
is pertinent to
the moral trait
involved in the
offense charged
A: While credentials of an expert witness play a factor in

the evidentiary and persuasive weight of his testimony, the
same cannot be the sole factor in determining its value. The
judge must conduct his own independent examination of
the signatures under scrutiny (Tamani et al vs. Roman
Salvador and Filomena Bravo, G.R. No. 171497, April 4,
2011).
OPINION OF ORDINARY WITNESS
Ordinary Opinion
That which is given by a witness who is of ordinary capacity
and who has by opportunity acquired a particular
knowledge which is outside the limits of common
observation and which may be of value in elucidating a
matter under consideration.
As to the
Prosecution
They may not
prove the bad
moral character
of the accused
which
is
pertinent to the
moral
trait
involved in the
offense charged,
unless
in
rebuttal when
the
accused
opens the issue
by introducing
evidence of his
good
moral
character
As to the
Offended Party
His good or bad
moral character
may be proved
as long as it
tends
to
establish in any
reasonable
degree
the
probability
or
improbability of
the
offense
charged
NOTE: In criminal cases, character evidence is inadmissible under

the following situations:
1. In rebuttal, proof of the bad character of the victim is not
admissible if the crime was committed through treachery and
premeditation; and
2. In rape cases, the evidence of complainants past sexual
conduct, or reputation or opinion thereof shall not be
admitted unless and only to the extent that the court finds
that such evidence is material and relevant to the case (Rape
shield or Sexual Abuse Shield, Sec. 6, R.A. 8505).
The opinion of a witness for which proper basis is given,

may be received in evidence regarding:
1. The identity of a person about whom he has
adequate knowledge;
2. A handwriting with which he has sufficient
familiarity;
3. The mental sanity of a person with whom he is
sufficiently acquainted; and
4. The witness impressions of the emotion,
behavior, condition or appearance of a person
(Sec. 50, Rule 130).
CIVIL CASES
Character evidence in civil cases
The moral character of either party thereto cannot be
proved unless it is pertinent to the issue of character
involved in the case (Sec. 51, Rule 130).
CHARACTER EVIDENCE
Character
NOTE: Evidence of good moral character of a witness whether in a

civil or criminal case is not admissible, unless such character has
been impeached (Sec. 14, Rule 132).
The aggregate of the moral qualities which belong to and

distinguish an individual person; the general result of ones
distinguishing attributes (Blacks Law Dictionary, 2004).
Proof of bad character

1.
2.
Admissibility of Character Evidence
Cross-examination
Independent evidence of bad character
GR: Character evidence is NOT admissible in evidence.

NOTE: Personal opinion as to the moral character of the accused
and the specific conduct of the part exhibiting character is
excluded as evidence. However, reputation in the community is
admissible.
XPNs:
1. Subject to certain exceptions in criminal cases;
2. In civil cases;
3. In case the character of a witness has been
previously impeached.
Q: Don was prosecuted for homicide for allegedly beating

up Vilma to death with an iron pipe. May the prosecution
introduce evidence that Vilma had a good reputation for
peacefulness and non-violence? Why? (2002 Bar Question)
NOTE: The reason for this is that the evidence of a persons

character does not prove that such person acted in conformity with
such character or trait in a particular occasion.
A: The prosecution may introduce evidence of the good or

even bad moral character of the victim if it tends to
399

REMEDIAL LAW
establish in any reasonable degree the probability or
improbability of the offense charged. In this case, the
evidence is not relevant.
purpose of determining whether child abuse has been

committed [Sec. 4(i)].
Appointment of guardian ad litem
EXCEPTIONS TO THE EXCEPTION

1.
2.
The court may appoint a guardian ad litem for a child who is

a victim of, accused of, or a witness to a crime to promote
the best interests of the child. In making the appointment,
the court shall consider the background of the guardian ad
litem and his familiarity with the judicial process, social
service programs, and child development, giving preference
to the parents of the child, if qualified [Sec. 5(a)].
Proof of bad character of a victim in a murder

case is not admissible if the crime was committed
through treachery and premeditation.
In prosecution for rape, evidence of
complainants past sexual conduct, opinion
thereof of his or her reputation shall not be
admitted unless and only to the extent that the
court finds that such evidence is material and
relevant to the case.
NOTE: A person who is a witness in any proceeding involving the

child cannot be appointed as a guardian ad litem (Ibid.).
Best interest of the child
RULE ON EXAMINATION OF A CHILD WITNESS

(A.M. No. 004-07-SC)
It is determined by the totality of the circumstances and

conditions as are most congenial to the survival, protection
and feelings of security of the child and most encouraging
to his physical, psychological and emotional development.
It also means the least detrimental available alternative for
safeguarding the growth and development of the child [Sec.
4(g)].
APPLICABILITY OF THE RULE

It shall apply in all criminal and non-criminal proceedings
involving child witnesses. This Rule shall govern the
examination of child witnesses who are victims of crime,
accused of a crime, and witnesses of a crime (Sec. 1).
PRESUMPTION OF COMPETENCY OF A CHILD WITNESS
The provisions of the Rules of Court on deposition,

conditional examination of witnesses, and evidence shall be
applied in a suppletory character (Sec. 32).
Presumption of Competency of a child witness

Every child is presumed qualified to be a witness. However,
the court shall conduct a competency examination of a
child, motu proprio or on motion of a party, when it finds
that substantial doubt exists regarding the ability of the
child to perceive, remember, communicate, distinguish
truth from falsehood, or appreciate the duty to tell the
truth in court (Sec. 6).
MEANING OF CHILD WITNESS

Child witness
A child witness is any person who at the time of giving
testimony is below the age of 18 years. In child abuse
cases, a child includes one over 18 years but is found by the
court as unable to fully take care of himself or protect
himself from abuse, neglect, cruelty, exploitation, or
discrimination because of a physical or mental disability or
condition [Sec. 4(a)].
Examination of a child as to his competence shall be

conducted only by the judge. Counsels of the parties can
submit questions to the judge that he may, in his discretion,
ask the child.
Child witness v. Ordinary witness

Child Witness
Only the judge is allowed
to ask questions to a child
witness during preliminary
examination
Testimony in a narrative
form is allowed
Leading questions are
allowed
The child witness is
assisted by a support
person
Requirements of a childs competency as a witness
Ordinary Witness
Opposing counsels are
allowed to ask questions
during
preliminary
examination
Testimony in a narrative
form is not allowed
Leading questions are
generally not allowed
An ordinary witness is not
assisted by a support
person
1.
2.
3.
NOTE: A mere allegation that a witness is of tender age is not

sufficient to disqualify him from sitting on the witness stand
(People vs. Santos 183 SCRA 25).
Voir dire examination

It is a French phrase meaning to speak the truth. It may
refer to a preliminary examination to ascertain whether he
possesses the required qualifications, being sworn to make
true answers (State v. Fox, 149 S.E. 735, 1929).
In-depth investigative interview or disclosure interview

It is an inquiry or proceeding conducted by duly trained
members of a multidisciplinary team or representatives of
law enforcement or child protective services for the

2014 GOLDEN NOTES
Capacity of observation
Capacity of recollection; and
Capacity of communication (People v. Nang, 289 SCRA
16).
NOTE: If a party against whom a witness is presented believes that

the witness is incompetent or is not aware of his obligation and
responsibility to tell the truth and the consequence of him
400
EVIDENCE
testifying falsely, such party may pray for leave to conduct a voire
dire examination on such witness to test his competency. The court
may also motu proprio conduct the voir dire examination. In United
States v. Buncad, the Court held that when a child of tender age is
presented as a witness, it is the duty of the judge to examine the
child to determine his competency (People v. Bisda y Gaupo, G.R.
No. 140895, July 17, 2003).
1.
2.
3.
At the time the fact to be testified to occurred such

that he could receive correct impressions thereof;
To comprehend the obligation of an oath; and
To relate those facts truly at the time he is offered as a
witness. The court should take into account his
capacity
for
observation,
recollection
and
communication (Regalado, 2008).
COMPETENCY EXAMINATION
EXAMINATION OF A CHILD WITNESS
Competency Examination
How conducted
A party seeking competency examination must present

proof of necessity of competency examination. The age of
the child by itself is not a sufficient basis for a competency
examination [Sec. 6(a)].
It shall be done in open court and unless the witness is

incapacitated to speak or the question calls for different
mode of answer, the answers of the witness shall be given
orally (Sec. 8).
NOTE: The burden of proof lies on the party challenging the

competency of the child [Sec. 6(b)].
Facilitator
Persons allowed at a competency examination
He is a person appointed by the court to pose questions to

a child [Sec. 4(c)].
Only the following are allowed at a competency

examination:
1. The judge and necessary court personnel;
2. The counsel for the parties;
3. The guardian ad litem, if any;
4. One or more support persons for the child; and
5. The defendant, unless the court determines that
competence can be fully evaluated in his absence [Sec.
6(c)].
Support person
He is a person chosen by the child to accompany him to
testify at or attend a judicial proceeding or deposition to
provide emotional support for him [Sec. 4(f)].
Corroboration of testimony of child witness NOT required
Corroboration shall not be required for the testimony of a
child. His testimony, if credible by itself, shall be sufficient
to support a finding of fact, conclusion, or judgment subject
to the standard of proof required in criminal and noncriminal cases (Sec. 22).
NOTE: Such competency examination shall be conducted only by

the judge but the counsel for the parties can submit questions to
the judge that he may, in his discretion, ask the child [Sec. 6(d)].
Questions to be asked to the child during competency

examination
Q: Budoy was charged with rape of his 10 year old

stepdaughter, Angie, to which he pleaded not guilty. For
the prosecution, it presented as witnesses the victim and
a Medico Legal Certificate issued by Dr. Luna, the results
of which showed that the victim suffered hymenal
laceration. For the defense, he vehemently denied the
charges and presented an alibi. RTC, affirmed with
modification by the CA convicted the accused. Should the
testimony of the child be given full weight and credit?
The questions to be asked are:

1. Appropriate to the age and developmental level of the
child;
2. Not related to the issues at trial; and
3. Shall focus on the ability of the child to remember,
communicate, distinguish between truth and
falsehood, and appreciate the duty to testify truthfully
[Sec. 6(e)].
A: Testimonies of child victims are given full weight and

credit, for when a woman or a girl-child says that she has
been raped; she says in effect all that is necessary to show
that rape was indeed committed. Youth and immaturity are
generally badges of truth and sincerity (People v. Sobusa,
G.R. No. 181083, January 21, 2010).
Developmental level
It refers to the specific growth phase in which most
individuals are expected to behave and function in relation
to the advancement of their physical, socio-emotional,
cognitive, and moral abilities [Sec. 4(h)].
Exclusion of public from the courtroom
Duty of the court regarding the competency of the child
When a child testifies, the court may order the exclusion

from the courtroom of all persons, including members of
the press, who do not have a direct interest in the case.
Such an order may be made to protect the right to privacy
of the child or if the court determines on the record that
requiring the child to testify in open court would cause
psychological harm to him, hinder the ascertainment of
truth, or result in his inability to effectively communicate
due to embarrassment, fear, or timidity.
It has the duty of continuously assessing the competence of

the child throughout his testimony [Sec. 6(f)].
Factors to be considered by the court in determining the
competency of a child witness
The court must consider his capacity:
401

REMEDIAL LAW
LIVE-LINK TV TESTIMONY OF A CHILD WITNESS
HEARSAY EXCEPTION IN CHILD ABUSE CASES
Q: When may the court order that the testimony of the

child be taken by live-link television? Explain. (2005 Bar
Question)
A statement made by a child describing any act or

attempted act of child abuse, not otherwise admissible
under the hearsay rule, may be admitted in evidence in any
criminal or non-criminal proceeding subject to the following
rules:
A: The court may order that the testimony of the child be

taken by live-link television if there is a substantial
likelihood that the child would suffer trauma from testifying
in the presence of the accused, his counsel or the
prosecutor as the case may be. The trauma must be of a
kind which would impair the completeness or truthfulness
of the testimony of the child (Sec. 25).
1.
VIDEOTAPED DEPOSITION OF A CHILD WITNESS

Video-taped deposition of a child witness
If the court finds that the child will not be able to testify in
open court at trial, it shall issue an order that the
deposition of the child be taken and preserved by
videotape [Sec. 27(b)].
NOTE: When the child witness is unavailable, his hearsay

testimony shall be admitted only if corroborated by other
admissible evidence [Sec. 28(d)].
NOTE: The rights of the accused during trial, especially the right to
counsel and to confront and cross-examine the child, shall not be
violated during the deposition [Sec. 27(d)]. After the original
videotaping but before or during trial, any party may file any
motion for additional videotaping on the ground of newly
discovered evidence. The court may order an additional
videotaped deposition to receive the newly discovered evidence.
[Sec. 27(j)].
2.
GR: It states that the following evidence is not admissible in

any criminal proceeding involving alleged child sexual
abuse:
1. Evidence offered to prove that the alleged victim
engaged in other sexual behavior; and
2. Evidence offered to prove the sexual predisposition of
the alleged victim [Sec. 30(a)].
The judge shall preside at the videotaped deposition of a

child. Objections to deposition testimony or evidence, or
parts thereof, and the grounds for the objection shall be
stated and shall be ruled upon at the time of the taking of
the deposition. The other persons who may be permitted to
be present at the proceeding are:
1. The prosecutor;
2. The defense counsel;
3. The guardian ad litem;
4. The accused, subject to sub-section (e);
XPN: Evidence of specific instances of sexual behavior by

the alleged victim to prove that a person other than the
accused was the source of semen, injury, or other physical
evidence shall be admissible [Sec. 30(b)].
NOTE: Sub-section (e) provides that if the order of the court

is based on the evidence that the child is unable to testify, the
physical presence of the accused, the court may direct the
latter to be excluded from the room in which the deposition
is conducted.
6.
7.
8.
NOTE: Testimonies of child-victims are given full weight and credit.

When a child or woman says that she was raped, she says in effect
all that is necessary to show that the rape was indeed committed
(People of the Philippines vs. Pulanco, G.R. No. 141186; November
27, 2003).
Other persons whose presence is determined by the

court to be necessary to the welfare and well-being of
the child;
One or both of his support persons, the facilitator and
interpreter, if any;
The court stenographer; and
Persons necessary to operate the videotape
equipment [Sec. 27(c)].

2014 GOLDEN NOTES
In ruling on the admissibility of such hearsay

statement, the court shall consider the time, content
and circumstances thereof, based on various factors
provided by the law, which provide sufficient indicia of
reliability [Sec. 28(b)].
SEXUAL ABUSE SHIELD RULE
Persons allowed to preside and be present in the videotaped deposition
5.
Before such hearsay statement maybe admitted, its

proponent shall make known to the adverse party the
intention to offer such statement and its particulars to
provide him a fair opportunity to object.
a. If the child is available, the court shall, upon
motion of the adverse party, require the child to
be present at the presentation of the hearsay
statement for cross-examination by the adverse
party.
b. When the child is unavailable, the fact of such
circumstance must be proved by the proponent
[Sec. 289(a)].
PROTECTIVE ORDERS
Other measures provided under the rule for the
protection of the privacy and safety of a child witness
1.
402
Confidentiality of records Any record regarding a

child shall be confidential and kept under seal. The
records may be released only to the following upon
written request and order of the court:
a. Members of the court staff for administrative use;
b. The prosecuting attorney;
EVIDENCE
c.
d.
e.
f.
2.
Defense counsel;
The guardian ad litem;
Agents of investigating law enforcement
agencies; and
Other persons as determined by the court
or an immediate family of the child shall be liable to

the contempt power of the court [Sec. 31(c)].
5.
Protective order Any videotape or audiotape of a

child that is part of the court record shall be under a
protective order that provides as follows:
a. Tapes may be viewed only by parties, their
counsel, their expert witness, and the guardian
ad litem;
b. No tape, or any portion thereof, shall be divulged
by any person mentioned in sub-section (a) to any
other person, except as necessary for the trial;
c. No person shall be granted access to the tape, its
transcription or any part thereof unless he signs a
written affirmation that he has received and read
a copy of the protective order; that he submits to
the jurisdiction of the court with respect to the
protective order; and that in case of violation
thereof, he will be subject to the contempt power
of the court;
d. Each of the tape cassettes and transcripts thereof
made available to the parties, their counsel, and
respective agents shall bear the following
cautionary notice:
NOTE: The court may, however, require the child to testify

regarding personal identifying information in the interest of
justice [Sec. 31(e)].
"This object or document and the contents thereof

are subject to a protective order issued by the
court in (case title), (case number). They shall not
be examined, inspected, read, viewed, or copied
by any person, or disclosed to any person, except
as provided in the protective order. No additional
copies of the tape or any of its portion shall be
made, given, sold, or shown to any person
without prior court order. Any person violating
such protective order is subject to the contempt
power of the court and other penalties prescribed
by law."
e.
f.
g.
No tape shall be given, loaned, sold, or shown to

any person except as ordered by the court.
Within 30 days from receipt, all copies of the tape
and any transcripts thereof shall be returned to
the clerk of court for safekeeping unless the
period is extended by the court on motion of a
party.
This protective order shall remain in full force and
effect until further order of the court [Sec. 31(b)].
3.
Additional protective orders The court may, motu

proprio or on motion of any party, the child, his
parents, legal guardian, or the guardian ad litem, issue
additional orders to protect the privacy of the child
[Sec. 31(c)].
4.
Publication of identity contemptuous - Whoever

publishes or causes to be published in any format the
name, address, telephone number, school, or other
identifying information of a child who is or is alleged to
be a victim or accused of a crime or a witness thereof,
Physical safety of child; exclusion of evidence A child

has a right at any court proceeding not to testify
regarding personal identifying information, including
his name, address, telephone number, school, and
other information that could endanger his physical
safety or his family.
6.
Destruction of videotapes and audiotapes Videotapes

and audiotapes produced under the provisions of this
Rule or otherwise made part of the court record shall
be destroyed after 5 years have elapsed from the date
of entry of judgment [Sec. 31(f)].
7.
Records of youthful offender: confidential

a. Where he has been charged before any
prosecutor or before any municipal judge and the
charges have been ordered dropped, all the
records of the case shall be considered as
privileged and may not be disclosed directly or
indirectly to anyone for any purpose whatsoever.
b. Where he has been charged and the court acquits
him, or dismisses the case or commits him to an
institution and subsequently releases him, all the
records of his case shall also be considered as
privileged and may not be disclosed except:
i.
To determine if a defendant may have his
sentence suspended under Art. 192 of P.D.
603 or if he may be granted probation
under the provisions of P.D. 968; or
ii.
To enforce his civil liability, if said liability
has been imposed in the criminal action.
8.
The youthful offender concerned shall not be held

under any provision of law to be guilty of perjury or of
concealment or misrepresentation by reason of his
failure to acknowledge the case or recite any fact
related thereto in response to any inquiry made to him
for any purpose [Sec. 31(g)].
OFFER AND OBJECTION
GR: The court shall consider only the evidence which has
been formally offered. The purpose for which the evidence
is offered must be specified (Sec. 34, Rule 132).
XPNs:
1. Marked exhibits not formally offered may be admitted
provided it complies with the following requisites:
a. Must be duly identified by testimony duly
recorded; and
b. Must have been incorporated in the records of
the case (Ramos v. Dizon, G.R. No. 137247,
August 6, 2006);
2. Under the Rule on Summary Procedure, where no full
blown trial is held in the interest of speedy
administration of justice;
403

REMEDIAL LAW
3.
4.
5.
6.
7.
In summary judgments under Rule 35 where the judge

based his decisions on the pleadings, depositions,
admissions, affidavits and documents filed with the
court;
Documents whose contents are taken judicial notice of
by the court;
Documents whose contents are judicially admitted; or
Object evidence which could not be formally offered
because they have disappeared or have become lost
after they have been marked, identified and testified
on and described in the record
and became the
subject of cross-examination of the witness who
testified on them during the trial (Tabuena vs. CA, 196
SCRA 650; People vs. Napat-a, 179 SCRA 403);
Documents and affidavits used in deciding quasijudicial or administrative cases (Bantolino vs. CocaCola Bottlers Inc., 403 SCRA 699).
Reasons for stating purposes of offer of evidence

1.
2.
3.
NOTE: It is basic in the law of evidence that the court shall consider
evidence solely for the purpose for which it was offered. (Ragudo
vs. Fabella Estate Tenants Asso. Inc., 466 SCRA 136)
Q: Gizel filed a complaint for recovery of possession and

damages against Fara. In the course of the trial, Gizel
marked his evidence but his counsel failed to file a formal
offer of evidence. Fara then presented in evidence tax
declarations in the name of his father to establish that his
father is a co-owner of the property. The court ruled in
favor of Fara, saying that Gizel failed to prove sole
ownership of the property in the face of Faras evidence.
Was the court correct? Explain briefly. (2007 Bar Question)
Q: During the pre-trial of a civil case, the parties presented

their respective documentary evidence. Among the
documents marked by the plaintiff Rina was the Deed of
Absolute Sale of the property in litigation (Exh. "C"). In the
course of the trial on the merits, Exh. "C was identified by
Rina, who was cross-examined thereon by Rey's counsel;
furthermore, the contents of Exh. "C" were read into the
records by Rina. However, Exh. "C" was not among those
formally offered in evidence by her. May the trial court
consider Exh. "C" in the determination of the action?
Why? (1993 Bar Question)
A: Yes. The court shall consider no evidence which has not

been formally offered. The trial court rendered judgment
considering only the evidence offered by Fara. The offer is
necessary because it is the duty of the judge to rest his
findings of fact and his judgment only and strictly upon the
evidence offered by the parties at the trial (People v.
Pecardal, G.R. No. 71381, November 24, 1986).
A: Yes, because not only was the Deed of Absolute Sale

marked, identified and Rina was cross-examined by Reys
counsel. Furthermore, the contents of Exh. "C" were read
into the records. Hence, the trial court could properly
consider Exh. "C" in the determination of the action even
though it was not formally offered in evidence. This is an
exception to the rule that the court shall consider no
evidence which has not been formally offered. (Sec. 35,
Rule 132)
Q: Eidene sued ABC, a shipping company, based on a

contract of carriage contained in a bill of lading. The bill of
lading, an actionable document, was pleaded and
attached to the complaint. ABC, without alleging anything
else, merely assailed the validity of the agreement in the
bill of lading for being contrary to public policy. After
presenting evidence, Eidene did not formally offer for the
bill of ladings admission. The court ruled for Eidene. On
motion for reconsideration, ABC alleged that Eidene failed
to prove his action as the bill of lading was not formally
offered. Decide. (1996 Bar Question)
OFFER OF EVIDENCE
Purposes of offer of evidence
1.
2.
3.
A: The motion for reconsideration should be denied. There

was no need to formally offer for admission the bill of
lading, because the failure of ABC to deny under oath the
genuineness and due execution of the bill of lading which
was an actionable document constituted an admission
thereof.
To notify the party of possible objection, and for the

offeror to make necessary correction at the trial level
to meet the objection;
To allow the trial judge to rule properly;
To lay basis for appeal so that the appellate court can
decide intelligently.
Q: Aiza and Matet were charged with murder. Upon

application of the prosecution, Matet was discharged from
the Information to be utilized as a State witness. The
prosecutor presented Matet as witness but forgot to state
the purpose of his testimony much less offer it in
evidence. Matet testified that she and Aiza conspired to
kill the victim but it was Aiza who actually shot the victim.
The testimony of Matet was the only material evidence
establishing the guilt of Aiza. Matet was thoroughly crossexamined by the defense counsel. After the prosecution
rested its case, the defense filed a motion for demurrer to
evidence based on the following grounds:
NOTE: A formal offer is necessary, since judges are required to

base their findings of fact and their judgment solely and strictly
upon the evidence offered by the parties at the trial.
To allow parties to attach any documents to their pleadings and
then expect the court to consider it as evidence, even without
formal offer and admission, may draw unwarranted consequences.
Opposing parties will be deprived of their chance to examine the
document and to object to its admissibility. On the other hand, the
appellate court will have difficulty reviewing the documents not
previously scrutinized by the court below (Candido v. Court of
Appeals, G.R. No. 107493, February 1, 1996).

2014 GOLDEN NOTES
For the court to determine whether that piece of

evidence should be admitted or not;
Evidence submitted for one purpose may not be
considered for any other purpose; and
For the adverse party to interpose the proper
objection.
404
EVIDENCE
1.
2.
The testimony of Matet should be excluded because

its purpose was not initially stated and it was not
formally offered in evidence; and
Matet's testimony is not admissible against Aiza
pursuant to the rule on "res inter alios acta".(2003
Bar Question)
WHEN TO MAKE OFFER

Testimonial Evidence
Offer must be made at the
time the witness is called
to testify.
Rule on the motion for demurrer to evidence on the above

grounds.
A:
1.
2.
Every time a new witness is

called to testify, there
must be an offer of
evidence.
The demurrer to evidence should be denied because

the defense counsel did not object to her testimony
despite the fact that the prosecutor forgot to state its
purpose and offer it in evidence. Moreover, the
defense counsel thoroughly cross-examined Matet and
thus waived the objection.
Documentary and Object

Evidence
Must be made after the
presentation of partys
testimonial evidence, and
before resting his case.
The evidence is only
offered once, after all the
testimonial evidence are
offered and prior to the
resting of the case for a
party.
NOTE: The presentation of a
documentary
or
object
evidence for marking and
identification
during
the
course of trial is not the offer
contemplated in the rules
(Riano, 2009).
The res inter alios acta rule does not apply because
Matet testified in open court and was subjected to
cross-examination.
Stages in the presentation of documentary evidence
NOTE: The offer shall be done orally unless allowed by the court to
be in writing (Sec. 35, Rule 132).
OBJECTION
Ways of impeaching the evidence of the proponent
1.
2.
By objection and without objection, the objection is

waived and the evidence is admitted (Sec. 36 Rule
132).
By motion to strike (Sec. 39 Rule 132).
Purposes of objections
1.
2.
3.
4.
5.
6.
To keep out inadmissible evidence that would cause

harm to a clients cause;
To protect the record, i.e. to present the issue of
inadmissibility of the offered evidence in a way that if
the trial court rules erroneously, the error can be
relied upon as a ground for a future appeal;
To protect a witness from being embarrassed on the
stand or from being harassed by the adverse counsel;
To expose the adversarys unfair tactics like his
consistently asking obviously leading questions; and
To give the trial court an opportunity to correct its
own errors and at the same time warn the court that a
ruling adverse to the objector may supply a reason to
invoke a higher courts appellate jurisdiction (Riano,
2009);
To avoid a waiver of the inadmissibility of an otherwise
inadmissible evidence.
Time when objection should be made

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 therefore
shall become reasonably apparent. An offer of evidence in
writing shall be objected to within 3 days after notice of the
405

REMEDIAL LAW
offer unless a different period is allowed by the court. In
any case, the grounds for objection must be specified (Sec.
36).
Testimonial Evidence
1st: When the offer was made;
2nd: When an objectionable
question is asked of the witness.
REPETITION OF AN OBJECTION
Rules on continuing objections
Documentary and
Object Evidence
When the document
is offered in
evidence.
GR: When it becomes reasonably apparent in the course of

the examination that the questions asked are of the same
class as those to which objection has been made (whether
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
(Sec. 37, Rule 132).
NOTE: As a rule, failure to specify the grounds for the objection is

in effect a waiver of the objection, except where the evidence
could not have been legally admitted for any purpose whatsoever.
XPNs:
1. Where the question has not been answered, it is
necessary to repeat the objection when the evidence
is again offered or the question is again asked;
2. Incompetency is shown later;
3. Where objection refers to preliminary question,
objection must be repeated when the same question is
again asked during the introduction of actual evidence;
4. Objection to evidence was sustained but reoffered at a
later stage of the trial;
5. Evidence is admitted on condition that its competency
or relevance be shown by further evidence and the
condition is not fulfilled, the objection formerly
interposed must be repeated or a motion to strike out
the evidence must be made; and
6. Where the court reserves the ruling on objection, the
objecting party must request a ruling or repeat the
objection.
Contemporaneous Objection Rule

It requires that a specific and timely objection be made to
the admission of evidence. Objections to the admission of
evidence must be made seasonably, at the time it is
introduced or offered, otherwise they are deemed waived,
and will not be entertained for the first time on appeal
(People vs. Banares, 145 SCRA 680).
Q: What is the difference between a "broadside" objection and a specific objection to the admission of
documentary evidence? (1994 Bar Question)
A: A broadside objection is a general objection such as
incompetent, irrelevant and immaterial and does not
specify any ground; while a specific objection is limited to a
particular ground.
RULING
Q: What are the two kinds of objections

A:
1.
2.
It 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 (Sec. 38, Rule 132).
Irrelevant The evidence being presented is not

relevant to the issue (e.g. when the prosecution offers
as evidence the alleged offer of an insurance company
to pay for the damages suffered by the victim in a
homicide case); and
Incompetent The evidence is excluded by law or rules
(Sec. 3, Rule 138) (e.g. evidence obtained in violation
of the Constitutional prohibition against unreasonable
searches and seizures).
STRIKING OUT OF AN ANSWER

Modes of excluding inadmissible evidence
1.
Alternative Answers:
1. Specific objections e.g. Parol evidence and best
evidence rule.
2. General objections e.g. Continuing objections (Sec.
37).
a. objection to a question propounded in the course
of the oral examination of the witness; and
b. objection to an offer of evidence in writing
NOTE: Objections may be waived because the right to object

is merely a privilege which the party may waive (People v.
Martin, G.R. No. 172069, Jan. 30, 2008). However, such
waiver only extends to the admissibility of the evidence. It
does not involve an admission that the evidence possesses
the weight attributed to it by the offering party (Riano, 2013).
2.
NOTE: Objections to admissibility of evidence cannot be raised for

the first time on appeal. When a party desires the court to reject
the evidence offered he must so state in the form of objection.
Without objection he cannot raise the question for the first time on
appeal (People vs. Salak, March 14, 2011).

2014 GOLDEN NOTES
Objection when the evidence is offered.
406
Motion to strike out or expunge:

a. When the witness answers prematurely before
there is reasonable opportunity for the adverse
party to object, and such objection is found to be
meritorious;
b. When the answers are incompetent, irrelevant, or
improper (Sec. 39, Rule 132);
c. When the witness becomes unavailable for crossexamination through no fault of the crossexamining party;
EVIDENCE
d.
e.
f.
g.
h.
i.
When the answer is unresponsive;

When the testimony was allowed conditionally
and the condition for its admissibility was not
fulfilled (Riano, 2009);
When a witness has volunteered statements in
such a way that the party has not been able to
object thereto;
When a witness testifies without a question being
addressed to him; or
When a witness testifies beyond the ruling of the
court prescribing the limits within which he may
answer.
Uncompleted testimonies where there is no
opportunity for the other party to crossexamination.
Q: How is tender of excluded evidence made?

A:
1.
As to documentary or object evidence: It may have the

same attached to or made part of the record.
NOTE: The party should ask that evidence ruled out at the
trial be attached to the record of case in order that same may
be considered on appeal (Banez vs. CA, 59 SCRA 15).
2.
As to oral evidence: It may state for the record the

name and other personal circumstances of the witness
and the substance of the proposed testimony.
How offer of evidence is made
Q: May a direct testimony given and allowed without a

prior formal offer be expunged from the record?
1.
A: No. When such testimony is allowed without any

objection from the adverse party, the latter is estopped
from questioning the non-compliance with the
requirement.
2.
3.
TENDER OF EXCLUDED EVIDENCE

Tender of excluded evidence or offer of proof
Before the court has ruled on the objection, in which

case its function is to persuade the court to overrule
the objection or deny the privilege invoked;
After the court has sustained the objection, in which
case its function is to preserve for the appeal the
evidence excluded by the privilege invoked;
Where the offer of proof includes the introduction of
documents, or any of the physical evidence, the same
should be marked for identification so that they may
become part of the record (Herrera, 1996).
When offer of proof is NOT required
When an attorney is not allowed by the court to present

testimony which he thinks is competent, material and
necessary to prove his case, he must make an offer of
proof. This is the method properly preserving the record to
the end that the question may be saved for purposes of
review (Caraig, 2004).
1.
2.
NOTE: This rule is in preparation in the filing of an appeal.

Moreover, the rule is that the offeror must preserve such excluded
evidence on his record and stating the purpose of such
preservation, i.e. knowing that it is relevant and must be admitted.
3.
When the question to which an objection has been

sustained clearly reveals on its face the substance,
purpose and relevancy of the excluded evidence;
When the substance, purpose and relevancy of the
excluded evidence were made known to the court
either in the court proceedings and such parts appear
on record;
Where evidence is inadmissible when offered and
excluded, but thereafter becomes admissible, it must
be re-offered, unless the court indicates that a second
offer would be useless (Herrera, 1996).
Purposes of tender of excluded evidence

English Exchequer Rule v. Harmless Error Rule
1.
2.
To allow the court to know the nature of the

testimony or the documentary evidence and convince
the trial judge to permit the evidence or testimony;
and
To create and preserve a record for appeal, should the
judge be not persuaded to reverse his earlier ruling
(Riano, 2013).
English Exchequer Rule

It provides that a trial
court's error as to the
admission of evidence was
presumed to have caused
prejudice and therefore,
almost
automatically
required new trial.
Offer of proof v. Offer of evidence

Offer of Proof/Tender of
Excluded Evidence
Only resorted to if
admission is refused by
the court for purposes of
review on appeal
Offer of Evidence
Refers to testimonial,
documentary or object
evidence
that
are
presented or offered in
court by a party so that
the court can consider his
evidence when it comes to
the preparation of the
decision
Harmless Error Rule

The apellate court will
disregard
an
error
committed by the trial
court in the admission of
evidence unless in its
opinion,
some
substantial wrong or
miscarriage of justice has
been occasioned.
NOTE: We follow the harmless error rule, for in dealing with

evidence improperly admitted in the trial, courts examine its
damaging quality and its impact to the substantive rights of the
litigant. If the impact is slight and insignificant, appellate courts
disregard the error as it will not overcome the weight of the
properly admitted evidence against the prejudiced part (People v.
Teehankee Jr. G.R. Nos. 111206-08, October 6, 1995).
407

REMEDIAL LAW
Kinds of presumptions of law
PRESUMPTIONS
Presumptions
1.
These are inferences of the existence or non-existence of a

fact which courts are permitted to draw from the proof of
other facts (In the matter of the Intestate Estates of
Delgado and Rustia, G.R. No. 175733, Jan. 27, 2006).
2.
NOTE: A presumption shifts the burden of going forward with the

evidence. It imposes on the party against whom it is directed the
burden of going forward with evidence to meet or rebut the
presumption (Bautista, 2004, citing Mueller and Kirkpatrick, 3.4.).
Conclusive Presumptions
CONCLUSIVE PRESUMPTIONS
They are those which are irrebuttable upon the

presentation of the evidence and any evidence tending to
rebut the presumption is not admissible. This presumption
is in reality a rule of substantive law (Riano, 2009).
Presumption v. Inference
PRESUMPTION
It is mandated by law and
establishes a legal relation
between or among the
facts.
Is a deduction directed by
law
Conclusive presumptions (presumptions juris et de

jure)
Disputable presumptions (presumptions juris tantum)
(Rule 131; Regalado, 2008)
INFERENCE
It is a factual conclusion
that can rationally be
drawn from other facts
(Riano, 2013).
It
is
a
permissive
deduction
(Francisco,
1996 )
Classes of conclusive presumptions

1.
Estoppel in pais (Equitable Estoppel) Whenever a

party has, by his own declaration, act or omission,
intentionally and deliberately led another to believe a
particular thing to be 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
[Sec. 2, (par. a), Rule 131].
2.
Estoppel by deed A party to a property deed is

precluded from asserting, as against another party to
the deed, any right or title in derogation of the deed,
or from denying the truth of any material fact asserted
in the deed e.g. The 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 [Sec. 2 (par. b), Rule 131]
Effect of presumption
A party in whose favor the legal presumption exists may
rely on and invoke such legal presumption to establish a
fact in issue. One need not introduce evidence to prove the
fact for a presumption is prima facie proof of the fact
presumed (Diesel Construction, Inc v. UPSI property
Holdings, Inc., GR No. 154937, March 24, 2008).
Presumption of law v. Presumption of fact
PRESUMPTION OF LAW
(Praesumptiones Juris)
It is a deduction which the
law expressly directs to be
made from particular
facts.
A certain inference must
be made whenever the
facts appear which furnish
the basis of the inference.
Reduced to fixed rules and
form a part of the system
of jurisprudence
Need not be pleaded or

proved if the facts on
which they are based are
duly
averred
and
established
NOTE: Estoppel may attach even though the landlord does

not have title at the commencement of the relations. It may
inure in favor of the successor (Golden Horizon Realty
Corporation vs. St Chuan, 365 SCRA 593 citing Geminiano vs.
CA, 259 SCRA 344). If the title asserted is one that is alleged
to have been acquired subsequent to the commencement of
that relation, the presumption will not apply (Santos vs. NSO,
G.R. No. 171129, April 6, 2011).
PRESUMPTION OF FACT
(Praesumptiones
Hominis)
It is a deduction which
reason draws from the
facts proved without an
express direction from law
to that effect.
Discretion is vested in the
tribunal as to drawing the
inference.
Distinguish estoppel from waiver

A waiver is a voluntary and intentional abandonment or
relinquishment of a known right. It must be supported by
an agreement founded upon a valid consideratipn. An
equitable estoppel may arise however, in the absence of
any intention on the part of the person estopped to
relinquish or change any existing right, and it need not be
supported by any consideration, agreement, or legal
obligation (Francisco, 1996).
Derived
wholly
and
directly
from
the
circumstances of the
particular case by means
of
the
common
experience of mankind
Has to be pleaded and
proved

2014 GOLDEN NOTES
Basis of Estoppel in pais

It is founded upon principles of morality and fair dealing
and is, intended to promote the ends of justice. It always
presupposes error on one side and fault or fraud upon the
other and some defect of which it would be equitable for
the party against whom the doctrine is asserted to take
advantage (19 Am. Jur. 640-642; Francisco, 1996).
408
EVIDENCE
Effect of estoppel in pais
between landlord and tenant (32 Am. Jur. 109; Francisco,

1996).
The effect of an estoppel in pais, is to prevent the assertion

of what would otherwise be an unequivocal right or to
preclude what would otherwise be a good defense. Such
estoppel operates always as a shield, never as a sword.
Requisites of estoppel by deed

1.
2.
Requisites of estoppel in pais

1.
2.
3.
3.
4.
Conduct amounting to false representation or

concealment of material facts; or at least calculated to
convey the impression that the facts are otherwise
than, and inconsistent with, those which the party
subsequently attempts to assert;
Intent, or at least, expectation, that this conduct shall
be acted upon by, or at least influence, the other
party; and
Knowledge, actual or constructive, of the real facts
(Riano, 2013).
The recitals should be clear and unambiguous;

There should be distinct and precise admission of
facts;
The deed must be delivered; and
That it must be a valid instrument (Francisco, 1996).
DISPUTABLE PRESUMPTIONS
Disputable Presumptions
Those which are satisfactory if uncontradicted, but may be
contradicted and overcome by other evidence (Sec. 3, Rule
131).
Disputable presumptions under Section 3 of Rule 131
Requisites for estoppel

1.
1.
2.
3.
Lack of knowledge and of the means of knowledge of

the truth as to the facts in question;
Reliance, in good faith, upon the conduct or
statements of the party to be estopped; and
Action or inaction based thereon of such character as
to change the position or status of the party claiming
the estoppel, to his injury, detriment or prejudice.
(Kalalo v. Luz, G.R. No. L-27782, July 31, 1970)
Lack of knowledge and of the means of knowledge of

the truth as to the facts in question;
NOTE: It applies to both civil and criminal cases. Presumption
of innocence of the accused accompanies him until the
rendition of judgment and disappears after conviction, such
that upon appeal, the appellate court will then presume the
guilt of the accused. The prosecutions case must rise and fall
on its own merits and cannot draw strength from the
weakness of the defense (People vs. Mingming, G.R. No.
174195, Dec. 10, 2008).
Other forms of estoppel akin to estoppel in pais:

1.
2.
3.
4.
2.
3.
Estoppel by silence - where a person, who by force of

circumstances is under a duty to another to speak,
refrains from doing so and thereby leads the other to
believe in the existence of a state of facts in reliance
on which he acts to his prejudice. Silence may support
an estoppel whether the failure to speak is intentional
or negligent (Pasion vs. Melegrito, G.R. No. 166558,
March 28, 2007).
Estoppel by laches is unreasonable delay to seek or
to enfore a right at a proper time. A neglect to do
something which one should do or to seek to enforce a
right at a proper time.
Promissory estoppel- may arise from the making of a
promise, even though without consideration, if it was
intended that the promise should be relied upon and
in fact relied upon, and if a refusal to enforce it would
be virtually to sanction the perpetration of fraud or
would result in other injustice.
Estoppel on question of jurisdiction A party is barred
from assailing the legality of an order issued at his own
motion since a person cannot be allowed to take
advantage of his own wrong when such would work
substantial injury to the other party (21 C.J. 1152,
Francisco, 1996).
4.
Unlawful act is done with an unlawful intent;

Person intends the ordinary consequences of his
voluntary act;
Person takes ordinary care of his concerns.
NOTE: GR: All people are sane and normal and moved by
substantially the same motives. When of age and sane, they
must take care of themselves. Courts operate not because
one person has been defeated or overcome by another but
because that person has been defeated or overcome illegally.
There must be a violation of the law (Vales v. Villa, G.R. No.
10028, Dec. 16, 1916).
XPN: When one of the parties is unable to read or if the
contract is in a language not understood by him, and mistake
or fraud is alleged, the person enforcing the contract must
show that the terms thereof have been fully explained to the
former. (Art. 1332, NCC)
5.
Evidence willfully suppressed would be adverse if

produced.
Requisites:
a. The evidence is material;
b. The party had the opportunity to produce it; and
c. The evidence is available only to the said party.
The presumption will not be applicable when:
a. Suppression of evidence is not willful;
b. Evidence suppressed or withheld is merely
corroborative or cumulative;
c. Evidence is at the disposal of both parties; and
Estoppel by deed
The doctrine is founded in public convenience and policy,
because it tends to encourage honesty and good faith
409

REMEDIAL LAW
d.
Suppression is by virtue of an exercise of

privilege.
b.
NOTE: Failure of the prosecution to present a certain witness

and to proffer a plausible explanation does not amount to
willful suppression of evidence since the prosecutor has the
discretion/prerogative to determine the witnesses he is going
to present (People v. Jalbuena, G.R. No. 171163, July 4, 2007).
c.
14. A court or judge acting as such, whether in the

Philippines or elsewhere, was acting in the lawfu
exercise of jurisdiction.
6.
7.
Money paid by one to another was due to the latter.

Thing delivered by one to another belonged to the
latter.
8. Obligation delivered up to the debtor has been paid.
9. Prior rents or installments had been paid when a
receipt for the later ones is produced.
10. A person found in possession of a thing taken in the
doing of a recent wrongful act is the taker and doer of
the whole act; otherwise, that things which a person
possesses or exercises acts of ownership over, are
owned by him.
NOTE: Lawful exercise of jurisdiction is presumed in all cases,

be it superior or inferior courts, whether in the Philippines or
elsewhere, unless the record itself shows that jurisdiction has
not been acquired or the record itself shows the absence of
jurisdiction, in which case jurisdiction to render a judgment
may not be presumed.
15. All the matters within an issue raised in a case were

laid before the court and passed upon by it; all matters
within an issue raised in a dispute submitted
for
arbitration were laid before arbitrators and passed
upon by them.
16. Private transactions have been fair and regular.
17. Ordinary course of business has been followed.
18. There was a sufficient consideration for a contract.
19. Negotiable instrument was given or indorsed for a
sufficient consideration.
20. An endorsement of negotiable instrument was made
before the instrument was overdue and at the place
where the instrument is dated.
NOTE: In order to raise the presumption, the following must

be proved:
1. That a crime was committed;
2. That it was committed recently;
3. That the stolen property was found in the possession of
the defendant; and that the defendant is unable to
explain his possession satisfactorily (U.S v. Espia 16 Phil
506).
11. That a person in possession of an order for the

payment of the money, or the delivery of anything, has
paid the money or delivered the thing accordingly;
12. Person acting in public office was regularly appointed
or elected to it.
NOTE: Except where an indorsement bears date after the

maturity of the instrument, every negotiation is deemed
prima facie to have been effected before the instrument was
overdue (Sec. 45, Act. No. 2031).
Ratio: It would cause great inconvenience if in the first

instance strict proof were required of appointment or
election to office in all cases where it might be
collaterally in issue.
21. A writing is truly dated.

22. Letter duly directed and mailed was received in the
regular course of the mail.
NOTE: However the presumption of a regular appointment

does not apply to a public officer seeking to recover salary
attached to the office, or the benefits of a pension system (31
C.J.S, 787-788)
NOTE: For this presumption to arise, it must be proved that

the letter was properly addressed with postage pre-paid and
that it was actually mailed.
23. Presumption of Death

a. Absence of 7 years It being unknown whether or
not, the absentee still lives, he shall be presumed
dead for all purposes, except for those of
succession
b. Absence of 10 years The absentee shall be
considered dead for the purpose of opening his
succession only after an absence of 10 years.; and
if he disappeared after the age of 75, absence of
only 5 years is sufficient.
c. The following shall be considered dead for all
purposes including the division of estate among
the heirs:
i.
Person on board a vessel lost during a sea
voyage, or an aircraft which is missing, who
has not been heard of for 4 years since the
loss of the vessel or aircraft;
ii. Member of the armed forces who has taken
part in armed hostilities, and has been
13. Official duty has been regularly performed.

NOTE: All things are presumed to have been done regularly
and with due formality until the contrary is proved (Omnia
praesumuntur rite et solemniter esse acta donec probetur in
contrarium).This presumption extends to persons who have
been appointed pursuant to a local or special statute to act in
quasi-public or quasi-official capacities and to professionals
like lawyers and surgeons.
GR: Presumption applies to both civil as well as

criminal cases.
XPNs:
a. Petition for writ of amparo presumption may
not be invoked by the respondent public officer
or employee (Rule on the Writ of Amparo, A.M.
No. 17-9-12-SC);

2014 GOLDEN NOTES
The presumption does not apply during incustody investigation (People vs. Camat, 256
SCRA 52);
When the official conduct in question is irregular
on its face (People v. Obmiranis, GR. No. 181492,
Dec. 16, 2008);
410
EVIDENCE
iii.
iv.
missing for 4 years;

Person who has been in danger of death
under other circumstances and whose
existence has not been known for 4 years;
If a married person has been absent for 4
consecutive years, the spouse present may
contract a subsequent marriage if he or she
has well-founded belief that the absent
spouse is already dead; 2 years in case of
disappearance where there is danger of
death under the circumstances hereinabove
provided. Before marrying again, the spouse
present must institute a summary
proceeding as provided in the Family Code
and in the rules for declaration of
presumptive death of the absentee, without
prejudice to the effect of re-appearance of
the absent spouse.
26. Persons acting as co-partners have entered into a

contract of co-partnership.
27. A man and woman deporting themselves as husband
and wife have entered into a lawful contract of
marriage.
28. 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.
29. 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.
30. If the marriage is terminated and the mother
contracted another marriage within 300 hundred days
after such termination of the former marriage, these
rules shall govern in the absence of proof to the
contrary:
24. Acquiescence resulted from a belief that the thing

acquiesced in was conformable to the law or fact.
25. Things have happened according to the ordinary
course of nature and ordinary habits of life.
Presumptions of paternity:
1.
2.
A child born before 180 days after the subsequent marriage is conceived during the former marriage, provided it is born
within 300 days after the termination of the former marriage.
A child born after 180 days following the subsequent marriage is considered to have been conceived during the subsequent
marriage, even though it be born within the 300 days after the termination of the former marriage.
no presumption of
legitimacy or illigitimacy
conceived during the
subsequent marriage
conceived during the
former marriage
termination of
1st marriage
subsequent marriage
180 days after the

subsequent marriage
300 days after termination of 1st

marriage
NOTE: There is no presumption of legitimacy or illegitimacy when a child is born after 300 days following dissolution of marriage or the separation
of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation (Sec. 4, rule 131).
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 age of the sexes, according to the
following rules:
31. A thing once proved to exist continues as long as is

usual with things of that nature.
32. The law has been obeyed.
33. A printed or published book, purporting to be printed
or published by public authority, was so printed or
published.
34. 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.
35. A trustee or other person whose duty it was to convey
real property to a particular person has actually
conveyed it to him when such presumption is
necessary to perfect the title of such person or his
successor in interest.
36. Except for purposes of succession, when 2 persons
perish in the same calamity, and it is not shown who
411
First Person
Second
Person
Presumed To Have
Survived
< 15 yrs old
< 15 yrs old
older
> 60 yrs old
> 60 yrs old
younger
< 15
>15 and < 60
male
>15 and < 60
female
> 60 yrs old

>15 and < 60
female
>15 and < 60
female
< 15
< 15 or > 60
15-60
The male
The older
The one between those
ages

REMEDIAL LAW
37. 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 (Sec. 3, Rule 131).
natural, reasonable and probable as to make it easy to believe

(People v. Peruelo, G.R. No. 50631, June 29, 1981).
LIBERAL CONSTRUCTION OF THE RULES OF EVIDENCE
A: A prima facie case need not be countered by a

preponderance of evidence nor by evidence of greater
weight. Defendant's evidence which equalizes the weight of
plaintiff's evidence or puts the case in equipoise is
sufficient. As a result, plaintiff will have to go forward with
the proof. Should it happen that at the trial the weight of
evidence is equally balanced or at equilibrium and
presumptions operate against plaintiff who has burden of
proof, he cannot prevail (People v. Santiago, G. R. Nos.
137542-43, January 20, 2004)
Q: What is the degree of evidence required in order to

disprove the prima facie case established by the party
having the burden of proof?
The rules of evidence must be liberally construed (Sec. 6,

Rule 1). The Rules of Procedure are mere tools intended to
facilitate rather than to frustrate the attainment of justice.
A strict and rigid application of the rules must always be
avoided if it would subvert their primary objective of
enhancing substantial justice (Alcantara vs. PCIB, G.R. No.
151349, October 20, 2010). Procedural rules must be
liberally interpreted and applied so as not to frustrate
substantial justice (Quiambao vs. Court of Appeals, 454
SCRA 17, March 28, 2005). However, to justify relaxation of
the rules, a satisfactory explanation and a subsequent
fulfillment of the requirements have always been required
(Barcenas vs Tomas, 454 SCRA 593, March 31, 2005).
Guidelines in the assessment of credibility of a witness

1.
QUANTUM OF EVIDENCE (WEIGHT AND SUFFICIENCY OF

EVIDENCE) (RULE 133)
2.
Weight of evidence
It is the probative value given by the court to particular
evidence admitted to prove a fact in issue.
A witness who testified in clear, positive and

convincing manner and remained consistent in crossexamination is a credible witness (People v. Comanda,
G.R. No. 175880, July 6, 2007); and
Findings of fact and assessment of credibility of a
witness are matters best left to the trial court that had
the front-line opportunity to personally evaluate the
demeanor, conduct, and behavior of the witness while
testifying (Sps. Paragas v. Heirs of Balacano, G.R. No.
168220, August 31, 2005).
Q: May the trial courts findings as to the credibility of

witnesses be disturbed on appeal?
Hierarchy of quantum of evidence
A: The trial courts findings of fact will not be disturbed on

appeal, unless there is a clear showing that it plainly
overlooked matters of substance which, if considered,
might affect the results of the review. The credibility of
witnesses is best determined by the trial judge, who has the
direct opportunity to observe and evaluate their demeanor
on the witness stand (People v. Pacuancuan, G.R. No.
144589, June 16, 2003).
Q: May the uncorroborated testimony of an accused who
turned into a State witness suffice to convict his coaccused?
A: Yes. It may suffice to convict his co-accused if it is given
unhesitatingly and in a straightforward manner and is full of
details which by their nature could not have been the result
of deliberate afterthought, otherwise, it needs
corroboration, the presence or lack of which may ultimately
decide the case of the prosecution and the fate of the
accused (People v. Sunga, G.R. No. 126029, March 27,
2003).
Sufficiency of evidence
In determining the sufficiency of evidence, what matters is
not the number of witnesses but the credibility and the
nature and quality of their testimonies. The testimony of a
lone witness is sufficient to support a conviction if found
NOTE: Evidence, to be worthy of credit, must not only proceed

from a credible source but must also be credible in itself. It must be

2014 GOLDEN NOTES
412
EVIDENCE
positive and credible (Ceniza-Manantan v. People, G.R. No.
156248, August 28, 2007).
2.
3.
Partial credibility of a witness

The testimony of a witness may be believed in part and
disbelieved in another part, depending on the probabilities
and improbabilities of the case (People v. Tan, G.R. No.
176526, Aug. 8, 2007).
The corollary rule is that the circumstances proven must

constitute an unbroken chain which leads to one fair and
reasonable conclusion pointing to the accused, to the
exclusion of all others, as the guilty person, i.e. the
circumstances proven must be consistent with the
hypothesis that the accused is guilty and at the same time
inconsistent with the hypothesis that he is innocent and
with any other rational hypothesis except of that guilt
(Trinidad v. People, G.R. No. 192241, June 13, 2012).
NOTE: If the testimony of the witness on a material issue is willfully

false and given with an intention to deceive, the court may
disregard all the witness testimony. Falsus in uno, falsus in
omnibus (Riano, 2013). This is not a mandatory rule of evidence
but is applied by the courts in its discretion. It deals only with the
weight of evidence and not a positive rule of law. The witnesses
false or exaggerated statements on other matters shall not
preclude the acceptance of such evidence as is relieved from any
sign of falsehood. The court may accept and reject portions of the
witness testimony depending on the inherent credibility thereof
(Regalado, 2008).
Alibi
It is a defense where an accused claims that he was
somewhere else at the time of the commission of the
offense. It is one of the weakest defenses an accused may
avail because of the facility with which it can be fabricated,
just like a mere denial (People v. Esperanza, G.R. Nos.
139217-24, June 27, 2003). When this is the defense of the
accused, it must be established by positive, clear and
satisfactory evidence.
Falsus in uno, falsus in omnibus (in relation to credibility

of witness)
Literally, falsus in uno, falsus in omnibus means false in
one thing, false in everything (Dawson v. Bertolinin, 70 R.I.
325, 38 A.2d 765, 765). The doctrine means that if the
testimony of a witness on a material issue is willfully false
and given with an intention to deceive, the jury may
disregard all the witness testimonies (Hargrave v.
Stockloss, 127 N.J.L. 262, 21 A.2d 820, 823). It is particularly
applied to the testimony of a witness who may be
considered unworthy of belief as to all parts of his
testimony if he is shown to have sworn falsely in one detail.
NOTE: A categorical and positive identification of an accused,

without any showing of ill-motive on the part of the eyewitness
testifying on the matter, prevails over an alibi (People v. Gingos
and Margote, G.R. No. 176632, September 11, 2007). For the
defense of alibi to prosper, the accused must show that:
1. He was somewhere else; and
2. It was physically impossible for him to be at the scene of the
crime at the time of its commission (People v. Gerones, et.al.,
G.R. No. L-6595, October 29, 1954).
The principle of falsus in uno, falsus in omnibus is not

strictly applied in this jurisdiction. It deals only with the
weight of the evidence and is not a positive rule of law. The
rule is not an inflexible one of universal application.
Modern trend in jurisprudence favors more flexibility when
the testimony of a witness may be partly believed and
partly disbelieved depending on the corroborative evidence
presented at the trial (People v. Negrosa, G.R. Nos. 14285657, August 25, 2003).
Out-of-court identification
It is a means of identifying a suspect of a crime and is done
thru:
1. Show-ups: where the suspect alone is brought face to
face with the witness for identification;
NOTE: Eyewitness identification is often decisive of the
conviction or acquittal of an accused. Identification of an
accused through mug shots is one of the established
procedures in pinning down criminals. However, to avoid
charges of impermissible suggestion, there should be nothing
in the photograph that would focus attention on a single
person. (People v. Villena, G.R. No. 140066, October 14, 2002)
When the maxim falsus in uno, falsus in omnibus applies

1.
2.
That the false testimony is as to one or more material

points; and
That there should be conscious and deliberate
intention to falsity (People vs. Pacapac, 248 SCRA 77).
Extrajudicial
conviction
confession NOT
The facts from which the inferences are derived are

proven; and
The combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt (Sec. 4,
Rule 133).
2.
sufficient ground for
3.
An extrajudicial confession made by an accused, shall not

be sufficient ground for conviction, unless corroborated by
evidence of corpus delicti (Sec. 3, Rule 133).
Mug shots: where photographs are shown to the

witness to identify the suspect; or
Line-ups: where a witness identifies the suspect from a
group of persons lined up for the purpose (People v.
Claudio Teehankee, Jr., G.R. Nos. 111206-08, October
6, 1995).
NOTE: A police line-up is merely a part of the investigation
process by police investigators to ascertain the identity of
offenders or confirm their identification by a witness to the
crime. Police officers are not obliged to assemble a police
line-up as a condition sine qua non to prove the identity of an
offender. If on the basis of the evidence on hand, police
When circumstantial evidence is sufficient for conviction

Circumstantial evidence is sufficient for conviction if:
1. There is more than one circumstances;
413

REMEDIAL LAW
officers are certain of the identity of the offender, they need
not require any police line-up anymore (Tapdasan, Jr. v.
People, G.R. No. 141344, November 21, 2002).
that the identity of the marijuana which constitutes the

corpus delicti must be established before the court. During
the trial, the sticks of marijuana were never presented as
evidence to prove that appellant indeed sold the same
during the entrapment operation. It is an entrenched rule
in our jurisprudence that indispensable in every
prosecution for illegal sale of marijuana, a prohibited drug,
is the submission of proof that the sale for the illicit drug
took place between the poseur-buyer and the seller
thereof, and the presentation further of the marijuana, the
corpus delicti, as evidence in court (People v. Rigodon, G.R.
No. 111888, November 8, 1994).
Admissibility of out-of-court identification

It is admissible and reliable when it satisfies the totality of
circumstances test. Under the totality of circumstances
test, the following factors are considered:
1. Witness opportunity to view the criminal at the time
of the crime;
2. Witness degree of attention at that time;
3. Accuracy of any prior description given by the witness;
4. Level of certainty demonstrated by the witness at the
identification;
5. Length of time between the crime and the
identification; and
6. Suggestiveness of the identification procedure (People
v. Claudio Teehankee, Jr., G.R. Nos. 111206-08,
October 6, 1995)
Res ipsa loquitur

It literally means the thing speaks for itself. This doctrine
provides that the fact of the occurrence of an injury, taken
with the surrounding circumstances, may permit an
inference or raise a presumption of negligence, or make out
a plaintiff's prima facie case, and present a question of fact
for defendant to meet with an explanation. Where the
thing which caused the injury complained of is shown to be
under the management of the defendant or his servants
and the accident is such as in ordinary course of things does
not happen if those who have its management or control
use proper care, it affords reasonable evidence, in the
absence of participation by the defendant, that the
accident arose from or was caused by the defendant's want
of care (Ramos v. CA, G.R. No. 124354, December 29, 1999).
Corpus delicti
It is the actual commission by someone of the particular
crime charged. It refers to the fact of the commission of the
crime, not to the physical body of the deceased or to the
ashes of a burned building. The corpus delicti may be
proven by the credible testimony of a sole witness, not
necessarily by physical evidence (Rimorin v. People, G.R. No.
146481, April 30, 2003).
Q: Does the application of the doctrine dispense with the

requirement of proof of negligence?
Elements of corpus delicti

1.
2.
Proof of the occurrence of a certain event; and

A persons criminal responsibility for the act (People v.
Corpuz, G.R. No. 148919, December 17, 2002).
A: No. It is considered merely as evidentiary or in the

nature of procedural rule. It is simply in the process of such
proof, permitting the plaintiff to present enough of the
attending circumstances to invoke the doctrine, creating an
inference or presumption of negligence and thereby place
on the defendant the burden of going forward with the
proof to the contrary (Ramos, et. al. v. CA, G.R. No. 124354,
December 29, 1999).
NOTE: The identity of the accused is not a necessary element of

the corpus delicti.
Q: Is a plea of guilty in open court sufficient without proof

of corpus delicti?
PROOF BEYOND REASONABLE DOUBT
A: Yes. A plea of guilty at the arraignment in open court,

which is a confession of guilt by the defendant, is sufficient
to support a conviction without necessity of proof aliunde
of corpus delicti. In contrast, an extrajudicial confession
made by defendant does not warrant a conviction unless
corroborated by independent evidence of corpus delicti
(Francisco, 1996).
Proof beyond reasonable doubt

It is that state of the case which, after the entire
comparison and consideration of all the evidence leaves the
mind of the judge in that condition that he cannot say that
he feels an abiding conviction to a moral certainty of the
truth of the charge (People v. Calma, G.R. No. 127126,
September 17, 1998).
Q: Jose Mariposa was charged with violation of Sec. 4, Art.

2 of the Dangerous Drugs Act of 1972. He was
apprehended thru a buy-bust operation. During trial the
prosecution failed to produce the marijuana sticks that
Mariposa sold during the entrapment operation. Is there a
need to produce the marijuana sticks in order to convict
the accused?
Proof beyond reasonable doubt does not mean such a

degree of proof as, excluding possibility of error, produces
absolute certainty. Moral certainty only is required, or that
degree of proof which produces conviction in an
unprejudiced mind (Sec. 2, Rule 133).
A: Yes. The elements necessary for a charge of illegal sale of

marijuana are: (1) the identity of the buyer and the seller,
the object, and consideration; and (2) the delivery of the
thing sold and the payment therefore. It is indispensable
2014 GOLDEN NOTES
NOTE: Moral certainty is that degree of certainty which will justify

the trial judge in grounding on it his verdict. It is a certainty that
convinces and directs the understanding and satisfies the reason
and judgment of those who are bound to act conscientiously upon
it.
414
EVIDENCE
SUBSTANTIAL EVIDENCE
Q: Must the identity of the accused be proved beyond

reasonable doubt?
That amount of relevant evidence which a reasonable mind

might accept as adequate to justify a conclusion (Sec. 5,
Rule 133).
A: Yes. When the identity of the accused is not established

beyond reasonable doubt, acquittal necessarily follows.
Conviction for a crime rests on the strength of the
prosecutions evidence, never on the weakness of that of
the defense (People vs. Jalon, G.R. No. 93729, November
13, 1992).
CLEAR AND CONVINCING EVIDENCE

Clear and convincing evidence
It is that degree of evidence that produces in the mind of
the trier of fact a firm belief or conviction as to allegations
sought to be established; It is intermediate, being more
than preponderance, but not to the extent of such certainty
as is required beyond reasonable doubt as in criminal cases
(Blacks Law Dictionary, 2004).
NOTE: In every criminal prosecution, the prosecution must prove

two things:
1.
The commission of the crime; and
2. The identification of the accused as the perpetrator of the
crime. What is needed is positive identification made with
moral certainty as to the person of the offender (People v.
Maguing, G.R. No. 144090, June 26, 2003).
XPN: Under Art. 1387, NCC, certain alienations of property

are presumed fraudulent.
PREPONDERANCE OF EVIDENCE
Preponderance of Evidence
Instances when clear and convincing evidence is required
It is the weight, credit, and value of the aggregate evidence

on either side and is usually considered to be synonymous
with the term greater weight of the evidence or greater
weight of the credible evidence. It is a phrase which, in the
last analysis, means probability of the truth, evidence which
is more convincing to the court as worthy of belief than
that which is offered in opposition thereto (Philippine
Commercial International Bank vs. Balmaceda, 658 SCRA
33).
1. When proving forgery (Citibank, N.A. v. Sabeniano, G.R.

No. 156132, February 6, 2007);
2. When proving ownership over a land in annulment or
reconveyance of title (Manotok Realty, Inc. v. CLT Realty
Development Corp., G.R. No. 123346, December 14,
2007);
3. When invoking self-defense, the onus is on the accusedappellant to establish by clear and convincing evidence
his justification for the killing (People v. Tomolin, G.R.
No. 126650, July 28, 1999);
4. When proving the allegation of frame-up and extortion
by police officers in most dangerous drug cases (People
v. Boco, G.R. No. 129676, June 23, 1999);
5. When proving physical impossibility for the accused to
be at the crime scene when using alibi as a defense
(People v. Cacayan, G.R. No.180499, July 9, 2008);
6. When using denial as a defense like in prosecution for
violation of the Dangerous Drugs Act (People v.
Mustapa, G.R. No. 141244, February 19, 2001);
7. To overcome the presumption of due execution of
notarized instruments (Viaje v. Pamintel, G.R. No.
147792, January 23, 2006);
8. When proving bad faith to warrant an award of moral
damages (Resolution of the SC in Cual v. Leonis
Navigation, G.R. No. 167775, October 10, 2005);
9. When proving that the police officers did not properly
perform their duty or that they were inspired by an
improper motive (People v. Concepcion, G.R. No.
178876, June 27, 2008); or
NOTE: However, even if the evidence adduced by the plaintiff

appears to be stronger than that presented by the defendant, a
judgment cannot be entered in the plaintiffs favor if his evidence
still does not suffice to sustain his cause of action (Ibid.).
Q: What are the matters that the court may consider in

determining whether or not there is preponderance of
evidence?
A:
1.
2.
3.
4.
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 they are testifying, the nature of the facts to
which they testify, the probability or improbability of
their testimony;
The witnesses interest or want of interest, and also
their personal credibility so far as the same may
legitimately appear upon the trial; and
The number of witnesses, though the preponderance
is not necessarily with the greater number (Sec. 1, Rule
133).
When a person seeks confirmation of an imperfect or

incomplete title to a piece of land on the basis of
possession by himself and his predecessors-in-interest, he
must prove with clear and convincing evidence compliance
with the requirements of the applicable law (Republic v.
Imperial Credit Corp., G.R. No. 173088, June 25, 2008;
Riano, 2009).
NOTE: To persuade by the preponderance of evidence is not to

take the evidence quantitatively but qualitatively (Riano, 2013).
415


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REMEDIAL LAW

NOTE: Evidence is only the means of ascertaining the truth. This

The fact to be proved, the

SCOPE OF THE RULES ON EVIDENCE

Multiple admissibility - where the evidence is relevant

Conditional admissibility - where the evidence at the

Curative admissibility it allows a party to introduce

The same may be received

UNIVERS ITY OF SANTO TOMAS

REQUISITES OF ADMISSIBILITY OF EVIDENCE

The evidence is relevant to the issue; and

Kinds of judicial notice

NOTE: It is relevant accord if it has such a relation to the fact

The evidence is not excluded by the rules (competent)

Mandatory insofar as those matters enumerated

When Judicial Notice of a fact may be taken

Evidence must have such a relation to the fact in issue as to

In all instances, the court may act on its own initiative

RELEVANCY OF EVIDENCE AND COLLATERAL MATTERS

MANDATORY JUDICIAL NOTICE

GR: Evidence on collateral matters is not allowed.

Mandatory judicial notice

XPN: Evidence on collateral matters shall be allowed when

When the matter is subject to a mandatory judicial notice,

JUDICIAL NOTICE AND JUDICIAL ADMISSIONS

Matters subject to mandatory judicial notice (EPOL-APOLMG)

Facts that need not be proved

Those of which the courts may take judicial notice

MATTERS OF JUDICIAL NOTICE

Existence and territorial extent of States;

Discretionary judicial notice

It is the cognizance of certain facts which judges may

When the matter is subject to discretionary judicial notice,

Function of judicial notice

Matters which the court may take judicial notice of

Judicial Notice dispenses the presentation of evidence and

Matters which are of public knowledge;

Its function is to abbreviate litigation by admission of

UNIVERS ITY OF SANTO TOMAS

Capable of unquestionable demonstration; or

Ought to be known to judges because of their judicial

Requisites in order that the principle of discretionary

jurisdiction of great rivers and lakes, and their relation

The matter must be one of common and general

Q: May judicial notice be taken of the financial condition

NOTE: The principal guide in determining what facts may be

Q: May judicial notice be taken of the practice of banks in

A: Judicial notice could be taken of the fact that

A: Yes. While courts are not mandated to take judicial

Hearing in cases of discretionary judicial notice

The court on its own

AFTER TRIAL BUT BEFORE

NOTE: Hearing is necessary in the foregoing instances to afford the

Judicial admissions v. Extrajudicial admissions

Instances when the Court takes judicial notice

Those made in the course

The court may take judicial notice of the existence and

EFFECTS OF JUDICIAL ADMISSIONS

Regarded as evidence and

Effects of judicial admission

NOTE: Judicial admissions are conclusive and no evidence is

Requires formal offer for it

Admissions made in pleadings which were NOT filed with