Hizon Notes - Evidence (Francisco) (Erika Pineda's Conflicted Copy 2014-10-10)

NOTES ON EVIDENCE
Kenneth & King Hizon (3A) _____________________________________________

UNIVERSITY OF SANTO TOMAS
Faculty of Civil Law
A.Y. 2012-2013
First Semester
EVIDENCE
CULLED FROM EVIDENCE: RULES OF COURT IN THE PHILIPPINES RULES 128-134
By Assoc. Justice Ricardo J. Francisco
Ex: testimony of A that he saw B running away from

GENERAL PROVISIONS the place where A was found dead
RULE 128 3. Primary evidence- also known as the best evidence
rule which affords the greatest certainty of the fact
Section 1. Evidence Defined in question. Thus, in an action on a written contract,
the original instrument is the primary evidence of its
Q: What is evidence? contents
4. Secondary evidence- a necessarily inferior to
A: It refers to any material which tends to persuade the court primary evidence and shows on its face that better
of the truth or probability of some facts asserted before it. evidence exists. Thus, in an action on a written
contract, a testimonial evidence constitutes a
Q: Distinguish evidence from proof. secondary evidence.
5. Positive evidence- when the witness affirms that a
A: fact did or did not occur
Ex: testimony of N that he saw A set fire the house of
EVIDENCE PROOF B on a specific date and time
A relative term. It signifies Conceived of for practical 6. Negative- when the witness states that he did not
the relation between facts, purposes of convincing the see or know the occurrence of a fact. It is only
the factum probandum or tribunal that the is also a admissible if it tends to contradict positive evidence
proposition to the reality. of the other side or would tend to exclude the
established and the factum existence of fact sworn to by the other side.
probans, or material Ex: testimony of A that he was on that occasion at
evidencing the proposition. the place where the house of B was burned and that
Hypothetical. It is one which he did not see C set fire on the said house
the one party affirms and the 7. Corroborative- additional evidence of a different
other denies, the tribunal kind and character tending to prove the same point.
being as yet not committed Ex: Testimonies of the prosecution witness that the
in either action victims died because of the stab wounds inflicted by
the armed men who entered their residence on the
KINDS OF EVIDENCE night of Dec.4 1965 remain uncontroverted. Their
death certificates are only corroborative.
Q: What are the kinds of evidence and give an example of 8. Cumulative- evidence of the same kind and
each? character as that already given, and tends to prove
the same proposition.
A: Ex: on the capacity of a boy to write a certain paper,
1. Direct evidence- It is that which proves the fact in evidence of his school fellows as to his capacity is
dispute without the aid of any inference or cumulative to that of his teachers and medical men
presumption. upon the same question.
Ex: testimony of A that he saw B attack C 9. Prima facie evidence- it is that which suffices for the
2. Circumstantial evidence- the proof of facts from proof of a particular fact until contradicted and
which, taken collectively, the existence of the overcome by other evidence.
particular fact in dispute may be inferred as a Ex: entries in the course of business made by a
necessary of probable consequence. person in his professional capacity, entries in official
Facultad de Derecho Civil 1

NOTES ON EVIDENCE
records made in the performance of his duty by 1. The legal effect of particular classes of facts in
public officer establishing rights and liabilities must be determined
10. Conclusive evidence- it is that which is (substantive law)
uncontrovertible. It is a kind of evidence which the 2. A course of procedure must be laid down by which
law does not allow to be contradicted. persons interested may apply the substantive law to
Ex: a party introducing in evidence a letter written by particular cases.
his agent to the adverse party is bound by the
statements contained therein; admissions Q: What are the 2 main branches of law of procedure?
11. Relevant evidence- when it has a tendency in reason
to establish the probability or improbability of a fact A:
in issue. 1. The law of pleading- determines what in particular
12. Competent evidence- when it is not excluded by law cases are the questions in dispute between the
or rules of evidence parties
13. Rebuttal- that which is given to explain, repel, 2. The law of evidence- determines how the parties
counteract, or disprove facts given in evidence by are to convince the Court of the existence of that
the adverse party. It is an evidence in denial of some state of facts which, according to the provisions of
affirmative case or fact which the adverse party has substantive law, would establish of the right or
attempted to prove. It is generally receivable only liability which they allege to exist.
where new matter has been developed by the
evidence of one of the parties and is generally SOURCES OF RULES OF EVIDENCE
limited to reply to new points.
14. Sur-rebuttal- when the plaintiff in rebuttal is Q: What are the sources of rules of evidence?
permitted to introduce new matter, defendant
should be permitted to introduce evidence. A:
15. Object evidence- also known as real evidence which 1. The 1987 Constitution
is addressed to the senses of the court, as where 2. Rules 128-133 of the ROC (Rules of Court)
objects are presented for inspection by the court. 3. Resolution of the SC approving the Proposed Rules
16. Documentary evidence- evidence supplied by a on Evidence
written instruments or derived from conventional 4. Sec. 1 of Rule 115 of ROC
symbols, such as letters by which ideas are 5. Substantive and remedial statutes
presented on material substances. 6. Judicial decisions
17. Testimonial evidence- testimony given in court or
the deposition by one who has observed that to
which he is testifying; or one who, though he has not
observed the facts, is nevertheless qualified to give Sec. 2. Scope
an opinion relative to such facts.
18. Expert evidence- testimony of one possessing in Q: Are the rules of evidence the same in all courts and all
regard to a particular subject or department of trials and hearings?
human activity, knowledge not usually acquired by
other persons. A: Yes, unless otherwise provided by the rules of court or by
Ex: handwriting experts the law.
19. Substantial evidence- amount of relevant evidence
which a reasonable mind might accept as adequate Q: Why is it uniform?
to justify a conclusion
A:
Q: What do rules of evidence determine? 1. The relation between the evidentiary fact and
particular proposition is always the same, without
A: All rights and liabilities are dependent upon and arise out regard to the kind of litigation in which that
of facts. proposition becomes material to be proved
2. If the rules of evidence best prescribe the course to
1. The relevancy of facts arrive at the truth, that must be and are the same in
2. The proof of facts all cases and in all civilized countries.
3. The production of proof of relevant facts
Q: What are some of the differences in the rules of evidence
NOTE: Thus, provision must be made by law for the following in criminal and civil case?
objects:
A:

NOTES ON EVIDENCE
power to alter or create any rule of evidence. This is so for
CRIMINAL CIVIL reasons inherent in the nature of legislative functions.
As to voluntariness in attending the proceedings
The accused attends by The parties attend by accord Q: May rules of evidence be waived?
compulsion
As to existence of presumptions A:
The presumption of There is no presumption as
innocence attends the to either party GR: There are rules of evidence which are merely for the
accused throughout the trial protection of the parties, hence, they may be waived.
until the same has been
overcome by prima facie XPN: If the rule of evidence waived by the parties had been
evidence of his guilt. established by law on grounds of public policy, the waiver is
As to the effect of offer of compromise void.
An offer of compromise is an An offer of compromise does
admission of guilt not, generally amount to For instance, a contract of insurance requiring the testimony
admission of liability of eyewitness as the only admissible evidence concerning the
As to quantum of proof required death of the insured person is valid.
Proof beyond reasonable Preponderance of evidence
doubt Contract waiving the privilege against the disclosure of
confidential communications made by a patient to a physician
is also valid.
No vested right of property in rules of evidence
Q: May evidence inadmissible according to the laws in force The waiver of the privilege against the disclosure of state
secrets is void.
at the time the cause of action accrued be admitted at the
time of the trial of the case if by the laws then in force the
NOTE: Apart from these rules expressly thus protected
same is already made admissible?
against statutory legislative change, the Legislature has the
power to alter or create any rule of evidence. This is so for
A: Yes. There is no vested right of property in rules of
reasons inherent in the nature of legislative functions.
evidence.
Q: Why is such the rule? Q: What policy must courts observe in the enforcement of
the rules of evidence?
A: Because the rules of evidence are merely methods of
ascertaining the facts. It must be supposed that change in the A: Trial courts are enjoined to observe the strict enforcement
of the rules of evidence which crystallized through constant
law merely makes it more likely that the fact will be truly
use and practice and are very useful and effective aids in the
ascertained, either by admitting evidence whose former
search for truth and for the effective administration of
suppression, or by suppressing evidence whose former
admission, helped to conceal the truth. justice.
NOTE: In connection with evidence which may appear to be

Q: What rules of evidence sanctioned by the Constitution
cannot be altered by ordinary legislation? of doubtful relevancy or incompetency or admissibility, it is
the safest policy to be liberal, not rejecting them on doubtful
or technical grounds, but admitting them unless plainly
A: A constitutional provision sanctioning a rule of evidence
irrelevant immaterial or incompetent, for the reason that
has the legal effect of making it unalterable by ordinary
statutory legislation. their rejection places them beyond the consideration of the
court, if they are thereafter found relevant or competent.
1. Right against self-incrimination
2. Accuseds right to confrontation, or cross-
examination
3. Rule for two witnesses in treason
4. Right of an accused to compulsory processes of Sec. 3. Admissibility of evidence
requiring the attendance of witnesses
5. Right of testifying without regard to theological REQUSITES OF ADMISSIBILITY OF EVIDENCE
belief
Q: What are the requisites of admissibility of evidence?
NOTE: Apart from these rules expressly thus protected
against statutory legislative change, the Legislature has the A:
1. That it is relevant to the issue

NOTES ON EVIDENCE
2. That it is competent that is, it does not belong to both at the same moment, offering counsel may be required
that class of evidence which is excluded by the law by the court, as a condition precedent:
or Rules of Evidence. 1. To state the supposed connecting facts
2. To promise to evidence them later.
AXIOMS OF ADMISSIBILITY
If the promise thus made is not fulfilled, the court may strike
Q: What are the axioms of admissibility? out the evidence thus conditionally admitted, if a motion is
made by the opposite party.
A:
Thus, evidence of facts and declarations may not become
1. None but facts having rational probative value are material or admissible until shown to be those of an agent of
admissible the other party, and a copy of the writing may not become
2. All facts having rational probative value are competent evidence until the original is proven to be lost or
admissible, unless some specific rule forbids destroyed.
Q: Distinguish admissibility and weight of evidence. CURATIVE ADMISSIBILITY OF EVIDENCE
A: Q: State the rule regarding curative admissibility of

evidence.
ADMISSIBILITY WEIGHT OF EVIDENCE
Has to do with whether it Objections to the A: Where an inadmissible fact has been offered by one party
meets the various tests by admissibility of evidence and received without objection, and the opponents
which its reliability is to be which merely refer to weight afterwards, for the purpose of negativing or examining or
determined of evidence should be otherwise counteracting it, offers a fact similarly inadmissible,
overruled, for facts which such fact is admissible if it serves to remove unfair effect
have distinct probative value upon the court which might otherwise ensue from the
are not to be rejected merely original fact. If the opponent made a timely objection at the
because they are not, in time the admissible evidence was offered, and his objection
themselves, convincing. was erroneously overruled in the first instance, the claim to
Has to do with the effect of present similar inadmissible facts would be untenable since
evidence admitted, its his objection would save him on appeal from any harm which
tendency to convince and may accrue.
persuade
Thus, if A sues B for the latters alleged refusal to pay for
MULTIPLE ADMISSIBILITY OF EVIDENCE merchandise supplied by A. B denies having received the
merchandise. In the course of the trial, A introduces evidence
Q: State the rule regarding multiple admissibility of showing that B swindled C, a third person, on a similar
evidence. transaction before. This should not have been admitted. B
now offers to explain that he entered into a fair and honest
A: When a fact is offered for one purpose and is admissible in transaction with C. In fairness to B, this should be admitted.
so far as it satisfies all rules applicable to it when offered for
that purpose, its failure to satisfy some other rule which Q: Are telephone conversations admissible?
would be applicable to it if offered for another purpose does
not exclude it. A: Yes, unless otherwise objectionable but provided that the
identity of the person with whom the witness was speaking is
Example: A confession of an accused may not be competent satisfactorily established.
as against his co-accused being hearsay, as to the latter, or to
prove conspiracy between them without the conspiracy being Q: When can a speech by means of a radio broadcast
established by other evidence, nonetheless, the confession of admissible?
the accused may be admitted as evidence of his own guilt.
A: It is admissible when the identity of the speaker is
Q: State the rule regarding conventional admissibility of established either by:
evidence and illustrate your answer. 1. Testimony of a witness who saw him broadcast his
speech or message
A: Where 2 or more evidentiary facts are so connected under 2. By witness recognition of the voice of the speaker.
the issues that the relevancy of one depends upon another
not yet evidenced, and the party is unable to introduce them

NOTES ON EVIDENCE
Q: Are wiretapping and tape recordings admissible in 4. Whether the evidence conduces to the proof of a
evidence? pertinent hypothesis, such hypothesis being one
which, if sustained, would logically influence the
A: No. issue
Q: Is an extension telephone of the same category as the Q: Distinguish logical relevancy from legal relevancy.
other prohibited devices enumerated in Sec.1 of the Anti-
Wiretapping Act? A:
A: No. The phrase any other device or arrangement refers LOGICAL RELEVANCY LEGAL RELEVANCY
to tap of a wire or cable or the use of a device or Evidence must be absolutely Requires a higher standard of
arrangement for the purpose of secretly overhearing, essential to the fact in issue evidentiary force and
intercepting, or recording the communication. There must be includes logical relevancy.
either a physical interruption through a wiretap or the The main condition of
deliberate installation of a device or arrangement in order to admisibility and that all rules
overhear, intercept, or record the spoken words. excluding evidence which is
logically relevant are
Q: Before a recording or conversation can be given therefore exceptions to the
probative value, what requisites must be first established? general rule.
A: NOTE: The fact that the evidence is logically relevant does not
1. A showing that the recording device was capable of insure admissibility.
taking testimony
2. A showing that the operator of device was Q: What is an issue under the rules of pleading?
competent
3. Establishment of the authenticity and correctness of A: Issue is the point or points in question at the conclusion of
the recording the pleadings which one side affirms and the other denies.
4. A showing that changes, additions or deletions have
not been made Q: What is a fact?
5. A showing of the manner of the preservation of the
recording A: A thing done or existing.
6. Identification of the speakers
7. A showing that the testimony elicited was voluntarily Q: Distinguish facts in issue from facts relevant to the issue.
made without any kind of inducement
A:
Sec.4. Relevancy; collateral matters FACTS IN ISSUE FACTS RELEVANT TO THE

ISSUE
Q: When is evidence relevant? Those facts which a plaintiff Those facts which render
must prove in order to probable the existence or
A: When it directly relates to a fact in issue; or to a fact from establish his claim and those non-existence of a fact in
whcich, by the process of logic, an inference may be made as facts which the defendant issue, or some other relevant
to the existence or non-existence of a fact in issue. must prove in order to fact. They are determined by
establish a defense set up by ordinary logic and experience
Q: What is the test of relency? him, but only when the fact
alleged by the one party is
A: not admitted by the other
1. Every fact or circumstance tending to throw light on party
the isue is relevant
2. Evidence is relevant from which fact in issue is Q: What is the effect of pleadings in determining the
logically inferrable relevancy of evidence?
3. Any circumstance is relevant which tends to make
the proposiiton at issue or more or less probable, or A: They help in determining whether the evidence offered is
which is calculated to explain or establish facts relevant to the case, for it is a familiar proposition that the
pertinent to the inquiry evidence must be confined to the facts put in issue by the
pleadings.

NOTES ON EVIDENCE
Q:In prosecution for illegal possession of opium, recidivism Q: What is the object of judicial notice?
is not charged in the information. May proof of the same be
admitted? A: To relieve the parties from the necessity of introducing
evidence to prove the fact noticed. It displaces evidence since
A: No, because no evidence can be adduced during the trial as it stands for proof, it fulfills the object which evidence is
of the case which does not directly or indirectly tend to prove designed to fulfill and makes evidence unneccessary.
some of the essential allegations of the complaint.
Q: What facts are subject to mandatory judicial notice?
Q: What is the nature of presumptions?
A:
A: Presumptions are not allegations but are evidence. And, as 1. Territorial extent
they constitute evidence, presumptions are irrelevant and 2. General history
therefore, inadmissible when they do not correspond with 3. Forms of governmetn of states
the allegations and the facts at issue in the allegations. 4. Symbols of nationality
5. Law of nations
Collateral facts 6. Admiralty courts and their seals
7. Politcal constitution and history of the Philippines
Q: What are collateral facts? 8. Matters relating to the legislative department
9. Matters relating to the executive department
A: Those that arouse outside the controversy, or are not 10. Matters relating to the courts of justice
directly connected with the principal matter or issue in 11. Laws of nature
dispute, as indicated in the pleadings of the parties. 12. Measure of time
13. Geographical divisions
Q: Are evidence of collateral facts admissible?
A:
Sec. 2 Judicial notice, when discretionary
GR: No, because they draw away the mind of the court from
the point at issue and excite prejudice and mislead it. Q: What facts are subject to discretionary judicial notice?
XPN: Admissible when they tend in any reasonable degree to A:

establish the probability or improbability of the fact in issue. 1. Matters of public knowledge
2. Mattes capable of unquestionable demonstration
3. Matters ought to be known to judges because of
their judicial functions
WHAT NEED NOT BE PROVED
RULE 129 Q: When is a matter considered as one of public knowledge?
Sec. 1. Judicial notice, when mandatory A: When its existence or operation is acepted by the public
without qualification or contention. The test is whether
A court shall take judicial notice, without the introduction of sufficient notoriety attaches to the fact involved as to make it
evidence, of the existence and territorial extent of states, proper to assume its existence without proof.
their political history, forms of government and symbols of
nationality, the law of nations, the admiralty and maritime Q: Give examples of matters capable of unquestionable
courts of the world and their seals, the political constitution demonstration.
and history of the Philippines, the official acts of the
legislative, executive and judicial departments of the A: It includes most of the facts, theories, and conclusions
Philippines, the laws of nature, the measure of time, and the which have come to be established and accepted by the
geographical divisions.(1a) specialists in the areas of natural science, natural
phenomena, chronology, technology, geography, statistical
Q: What is judicial notice? facts and other fields of professional and scientific
knowledge.
A: It means no more than that the court will bring to its aid
and consider without proof of the facts its knowledge of Q: Is the personal knowledge of the judge a judicial
those matters of public concern which are known by all well- knowledge of the court?
informed persons.

NOTES ON EVIDENCE
A: No. Judicial cognizance is taken only of those matters a. Mythology
which are commonly known. b. Almanacs
c. Dictionary
Q: Is it essential that matters of judicial cognizance be
actually known to the judge?
A: No. If the subject is proper for judicial knowledge, the Sec. 4. Judicial admissions
judge may, at his discretion, inform himself in any way which
he may seem best to him, and act accordingly. Q: What is judicial admission?
Q: How should the power to take judicial notice be A: Those made in te pleadings or in the progress of the trial.
exercised?
Q: What about extra-judicial admission?
A: It rests on the discretion of the courts. It must be exercised
with caution; care must be taken that the requisite notoriety A: Those made out of court or in a judicial procceding other
exists; and every reasonable doubt upon the subject should than the one under consideration.
be promptly resolved in the negative.
JUDICIAL EXTRA-JUDICIAL
Conclusive upon the party Disputable
making them
Sec. 3. Judicial notice; when hearing necessary
Q: What are the different forms of jucial admissions?
Q: What is the purpose of the hearing?
A:
A: It is not for the purpose of presentation of evidence but to 1. Oral
afford the parties reasonable opportunity to present Ex: withdrawal of contention, disclosure made
information relevant to thw propriety of taking such judicial before the court, admission made in the course of a
notice or to the tenor of the matter to be noticed. witness testimony, deposition
2. Written
This is based on the notions of public policy. Ex: in a pleading, bill of particulars, stipulation of
facts, request for admission, affidavit
Q: At what stage may the court take judicial notice of a fact?
Q: Is an admission contained in a pleading filed in another
A: action material to the issue on trial a judicial admission?
1. During the trial
2. After the trial and before judgment A: No. For it to be considered as a judicial admission, the
3. Appeal admission must be made in the same case.
Q: Distinguish judicial notice taken during the trial from Q: Does the failure to answer the complaint amount to
judicial notice taken after trial but before judgment or on judicial admission of the facts alleged therein?
appeal.
A: No.
A:
Q: Is a stipulatopn of facts allowed in criminal cases?
DURING THE TRIAL AFTER TRIAL BUT BEFORE
JUDGMENT OR ON APPEAL A: Yes, however, the binding effect of the facts applies only to
The court may announce its The court may allow the the parties in agreement, it is no more binding on the court
intention to take judicial parties to be heard thereon if than any other evidence in the case.
notice of any matter and may such matter is decisve of a
hear the parties thereon material issue in the case. Q: May a pleading which has been superseded or amended
be considered as a judicial admission?
Q: May the court consult appropriate and reliable sources of
information in determining whether a fact is proper subject A: No. If not offered in evidence, the admission contained
of judical notice? therein will not be considered.
A: Yes. A judge may consult works on collateral sciences, or Q: What is the effect of a judicial admission?
arts, touching the topic on trial. He may refer to:

NOTES ON EVIDENCE
A: A judicial admission cannot be contradicted unless OBJECT DEMONSTRATIVE
previously shown to have been made thru: The required foundation Does not involve showing
a. Palpable mistake, or relates to proving that the that the object was the one
b. That no such admission was made evidence is indeed the object used in the underlying event.
used in the underlying event Rather, the foundation
NOTE: An admission in a pleading on which a party goes to merely involves showing that
trial is conclusive against him unless the court in its the demonstrative object
reasonable discretion allows the pleader to withdraw, explain fairly represents or illustrates
or modify if it appears to have been made by improvidence or what it is alleged to illustrate.
mistake or that no such admission was made.
Q: What is the reason for the admissibility of object or real
evidence?
RULES OF ADMISSIBILITY A: Physical evidence is one of the highest order. It speaks

RULE 130 more eloquently than a hundred witnesess.
A. OBJECT EVIDENCE Q: What are the requisites for the admissibility of real
evidence?
Sec. 1 Object as evidence
A:
Q: What is object or real evidence? 1. The object must be relevant to the fact in issue
2. The object must be authenticated before it is
A: It is that which is addressed to the senses of the tribunal, admitted.
as where objects are presented for the inspection of the
court. Q: May the existence of an object evidence be proved by
oral evidence?
Q: How is object evidence classified?
A: Yes, it may be proven by parol evidence.
A: It also extends to that which is perceived by the senses of
hearing, taste, smell, or touch. Q: Does the non-production of an object render oral
evidence respecting it inadmissible?
Q: What is the scope of object evidence?
A: Though the non-production of the article may afford
A: It is not limited to that which may be known by the sense ground for observation more or less weighty, according to
of vision; it extends to what is perceived by the senses of circumstances, it only goes to the weight, not to the
hearing, taste, smell or touch. admissibility, of the evidence, and no questions to the weight
of this evidence is now before us.
Q: Distinguish object from demonstrative evidence.
Q: Is indecency or impropriety a ground for disallowing the
A: introduction of object evidence?
OBJECT DEMONSTRATIVE A: Yes, unless the same is necessary for ascertaining the
Tangible object which played Tangible evidence that truth.
some actual role in the merely illustrates a matter of
matter that gave rise to the importance in the litigation. REPULSIVE OBJECTS
litigation.
Examples: Q: What is the rule as to the introduction of repulsive
Maps, diagrams, models, objects?
summaries, and other
materials created specially in A: Repulsive objects, offensive to the sensibilities, should be
litigation excluded, if they are not absolutely necessary for the
administration of justice.
Q: What is the importance of the distinction?
Q: May object evidence be disallowed on the ground that its
A: It helps determine the standards that the evidence must production would cause inconvenience?
meet to be admissible.

NOTES ON EVIDENCE
A: It rests on the sound discretion of the court to deny elicited was voluntarily made
applications for the production of real evidence in cases without any kind of
where the order will cause great inconvenience, or where for inducement
other reasons, it is unjust. Computer The print-out must be authenticated.
print-outs This is done by the witness who can
Preliminary matters to be established in case: testify as to:
1. the methods used to input the
Photographs It must be shown to be a true and data into the computer and
faithful representation of the place or 2. the methods used to produce
objects they refer. It must be verified the print-out of that data as
either by the photographer who took it well as testimony showing
or by any person who is acquainted why the result that appears on
with the object represented and the print-out is an accurate
testifies that the object represented reflection of the original
and testifies that the photograph transaction being recorded.
faithfully represents the object Maps, Their admissibility is conditioned upon
X-ray Although subject to explanation or diagrams, the showing that they are really
interpretation by experts in order to and accurate.
make them intelligible to the court, sketches
they are subject to the same rules and
principles which apply to ordinary Q: May fingerprints, palm prints and footprints and tracks
pictures be introduced in evidence to prove identity?
Motion It must be shown to be a true and
pictures faithful representation of the place or A: Yes, if authenticated.
and video objects they refer.
tapes The authentication ordinarily includes: Q: May the personal appearance of a person be taken into
1. Evidence as to rhe consideration to establish the proof of resemblance, race,
circumstances surrounding age, or parentage?
the taking of the film
2. The manner and A: Yes.
circumstances surrounding
the development of the film Q: May the court compel the plaintiff to submit his body for
3. Evidence in regard to the inspection in personal injury cases?
projection of the film
4. Testimony by a person A: There are 2 theories:
present at the time the 1. The plaintiff cannot be compelled to subject himself
motion pictures are taken that to an examination of his body
the pictures accurately depict 2. If the court is powerless, in action for personal
the events as he saw them injuries, to require plaintiff to submit himself to
when that occured physical examination, to the end that the truth as to
Tape Establishment of the ff: their nature, effect, and possible duration may be
recordings 1. Showing that the recording ascertained, thenm the law will permit him to
device was capable of taking disclose just so much and such parts of the facts as,
testimony in his judgment would benefit his case, at the
2. A showing that the operator expense of his adversary.
of the device was competent
3. Establishment of the The weight of the authority is in favor of the second theory.
authenticity and correctness
of the recording Q: May the accused in crimianl cases be compelled to
4. A showing of the changes, submit himself to an inspection of his body?
additions, or deletions have
not been made A: Yes.
5. A showing of the manner of
the preservation of the Q: How may an order compelling a person to submit himself
recording to examination or inspection be enforced?
6. Identification of the speakers
7. A showing that the testimony

NOTES ON EVIDENCE
A: It may be enforced by punishing the person who disobeys A: No, for the inspection is a part of the trial inasmuch as
the order as for contempt. In another case, it has been held evidence is thereby being received, and the parties are
thar such an order may be enforced not by punishment as for entitled to be present at any stage of the trial.
contempt, but by staying or dismissing the action.
Q: May accused be compelled to take dictation from the

prosecuting officer for the purpose of determining his B. DOCUMENTARY EVIDENCE
participation in the offense charged?
Sec. 2. Documentary evidence
A: No.
Q: What is a document?
Q: May an accused, who denied while testifying in his own
behalf, that a certain writing or signature was in his own A: Any substance having any matter expressed or described
hand writing be compelled on cross-examination to write in upon it by marks capable of being read.
open court to enable the judge to compare the hand writing
with the one in question? Q: What is documentary evidence?
A: Yes. Whenever a defendant at the trial of his case A: It is evidence supplied by written instruments, or derived
testifying on his own behalf denies that a certain writing or from conventional symbols, such as letters, by which ideas
signature is in his own hand, he may on cross-examination be are represented on material substances; documents,
compelled to write in open court in order that the jury may produced, for the inspection of the court or jduge.
be able to compare his handwriting with the one in question.
Q: When may a document be offered as object evidence?
Q: May an accused be compelled to produce documents or
chattels, which might incriminate him? A: It depends upon the purpose for which the document is
tendered. If it is produced qua chattel without regard to the
A: No. The privilege against self-incrimination extends to message which it contains, for instance simply in order to
inculpatory documents. show that it exists, the quality if the paper of which it is
made, of the fact that it is torn, it is treated as real not
Q: May the trial court permit an experiment to be tried documentary evidence.
during the course of the trial?
Q: When may a tape-recording be considered as
A: It rests on the sound discretion of the judge. documentary evidence?
Q: May evidence be given of experiments and A: Similar principles apply to tape-recordings and other
demonstrations made out of court? mechanically, photographically or electronically produced
statements. Thus, if a tape-recording is played over in court
A: Yes. simply to show that the words used were uttered with a
particular accent, the tape will usually be regarded as a piece
Q: When may an experiment not admissible as evidence? of real evidence, but if it is played in order to show that the
particular words were uttered it will constitute as
A: If the experiment is too complicated to afford any fair documentary evidence.
inference, or if it cannot be performed in such a manner as
fairly to illustrate the fact to be found, it should be excluded. BEST EVIDENCE RULE
Q: When is it proper for the court to go to the place where Q: What is the best evidence rule?
the object in question is and to observe it?
A: It requires the highest grade of evidence obtainable to
A: Where the object cannot be produced in court because it prove a disputed fact. The best evidence rule cannot be
is immovable or inconvenient to remove, it is proper for the invoked unless the contents of a writing is the subject of
tribunal to go to the object in its place and there observe it. judicial inquiry, in which case, the best evidence is the
original writing itself.
Q: May a judge properly make a view outside the court-
room of the place or object to be inspected without the Q: What is the reason for the rule?
previous knowledge or consent of the parties?
A: The purpose of the rule requiring the production of the
best evidence is the prevention of fraud, because if a party is

NOTES ON EVIDENCE
in possession of such evidence and witholds it, and seeks to Secondary evidence of the contents of the writing will be
substitute inferior evidence in its place, the presumption received in evidence if no objection is made to its reception.
naturally arises that the better evidence is withheld for
fraudulent purposes which its production would expose and Q: What must first be established before the best evidence
defeat. rule comes into operation?
Q: Is the best evidence rule applicable to external or A: It is essential that the original writing, or if it is a private
collateral matters about the document? document, be first duly identified, and a sufficient foundation
be laid, so as to entitle the writing to be admitted in
A: The best evidence rule applies only when the purpose of evidence, and must be available to the opposite party for
the proof is to establish the terms of the writing. So that cross-examination.
when the evidence sought to be introduced concerns some
external facts about the document, such as its existence, Q: What is the best evidence rule in criminal cases?
execution or delivery without reference to its terms, the best
evidence rule cannot be invoked. A: In criminal case for falsification of a document, it is
indispensable that the judge have before him the document
Q: Since the rule requires production of the original, what alleged to have been simulated, counterfeited, or falsified, in
constitutes the original? order that he may find, pursuant to the evidence produced at
the trial, whether or not the crime of falsification was actually
A: committed.
1. The original of a document is one the contents of
which are the subject of the inquiry Q: What presumption may be drawn from the non-
2. When a document is in two or more copies executed production of the original document?
at or about the same time with identical contents, all
such copies are equally regarded as originals. A: There will be a presumption of suppression of evidence
3. When an entry is repeated in the regular course of adverse to him.
business, one being copied from another at or near
time of the transaction, all the entries are likewise
regarded as originals.
Sec. 4. Original document
Q: What are the exceptions to the best evidence rule?
Q: What is an original document?
A:
1. When the origianal has been lost, destroyed or A: When the contents of writing are to be proved the original
cannot be produced in court without bad faith on is required. The original is the document whose contents are
the part of the offeror. to be proved.
2. When the original is in the custody or under the
control of the party against whom the evidence is Q: What is the purpose of the original document?
offered, and the latter fails to produce it after
reasonable notice. A: It is directed toward the prevention of fraud or inaccuracy.
3. When the original consists of numerous accounts or The rule may serve as protection against erroneous or
documents which cannot be examined in court as inaccurate portrayal of the contents of a document
without great loss of time and of fact sought to be occasioned by mistake in memory or faulty transcription.
established from them is only the general result of
the whole. Q: When a document is amended or altered by the parties,
4. When the original is a public record in the custody of which is the original?
a public officer or is recorded in a public office.
A: The duplicate or the copy amended or altered by the
Q: What is the effect of failure to object to the presentation parties becomes the original.
of secondary evidence?
Q: If the document is executed in duplicate or multiplicate
A: The objection should be made in proper seasonthat is, form, which is the original?
whenever it appears that there is better evidence than that
which is offered and before the secondary evidence has been A: Each one of the parts is primary evidence of the contents
admitted. The objection itself should be sufficiently definite of the document; and the other need not be proved.
to present a tangible question for the courts consideration.
Q: Determine whether or not the ff. are original copies.

NOTES ON EVIDENCE
a. Carbon copy
b. Letter press copies Q: Is proof of loss or destruction of the document sufficient
c. Photographs and Xerox copies foundation for the introduction of secondary evidence?
d. Blue prints and vellum tracings
e. Telegraph messages A: No. Due execution besides the loss, has to be shown for
the introduction of secondary evidence of the contents.
A:
Carbon copy A duplicate original and is admissible; it is Q: What is the meaning of the term execution?
not a secondary evidence
Letter press These copies are produced by obtaining A: It means the accomplishment of a thing; the completion of
copies/blotter repeated ink traces from a single writing so an act or instrumentl the fulfillment of an undertaking.
press prepared to furnish such traces by pressure
or by chemical operation. Not duplicate Q: How may the execution of the document be proved?
originals but merely secondary copies. Also,
they are not produced simultaneously with A: The execution of the document may be established :
the originals 1. By the person or persons who executed it,
Photographs Considered as secondary evidence rather 2. by the person before whom its execution was
and xerox than duplicate originals. They are executed acknowledged,
at a different period. Also, they can be easily 3. by the person who was present and saw it executed
tampered with. and delivered or who, after its execution and
Blue prints They are held as originals rather than copies delivery, saw it and recognized the signatures
and vellum 4. by a person to whom the parties to the instruments
tracings had previously confessed the execution thereof.
Telegraph The original paper sent to a telegraph office
messages is primary evidence of the message sent as Q: Is proof of due execution necessary in order that
against the sender, but not of the message secondary evidence of lost document more than 30 years
received at the place of its delivery, and that old may be omitted?
the telegram delivered to the person
addressed is primary evidence as against A: No.
him of the communication he received, but
only secondary evidence of the message Q: How may the loss and destruction of documents be
that was sent to him proved?
A:
1. by any person knowing the loss
SECONDARY EVIDENCE 2. by anyone who was made, in the judgment of the
court, a sufficient examination in the place or places
Sec. 5. When the original document is unavailable where the documents or papers of similar characters
are usually kept by the person in whose custody the
Q: What is secondary evidence? document lost was, and has been unable to find it
3. or who has made any other investigation which is
A: It shows that better or primary evidence exists as to the sufficient to satisfy the court that the instrument is
proof of the fact in question. It is the class of evidence which indeed lost.
is relevant to the fact in issue, it being first shown that
primary evidence of the fact is not obtainable. Q: Is it necessary to prove the loss of the document beyond
all possibility of mistake?
It performs the functions as that of primary evidence, but is
deemed less reliable and worthy of belief. A: No.
Q: What are the requisites of secondary evidence? Q: May a proof of loss of the original document be
dispensed with by the admission of the party?
A:
1. The execution or existence of the original A: Where both parties admit that an instrument has been
2. The loss and destruction of the original or its lost, this is sufficient to warrant the reception of the
nonproduction in court secondary evidence.
3. Unavailability of the original is not due to bad faith
on the part of the offeror.

NOTES ON EVIDENCE
Q: Is proof dilligent search for the document claimed to Q: What do you mean by authentic? Does it have to be a
have been lost necessary? public document?
A: Yes, there must be a proof that a diligent search has been A: Authentic means that the document should be genuine. It
made in the place where it is most likely to be found and that need not be a public instrument.
the search has not been successful.
Q: How may the contents of the original document be
Q: When is secondary evidence admissible in cases where proved by the testimony of witness?
the lost or destroyed original document was executed in
duplicate? A: Oral evidence of the contents of the original writing may
be given:
A: Where the original document was executed in duplicate, a. by any person who signed the document
the loss, destruction, or inaccessibility of both originals must b. Or who read it
be shown in order to admit secondary evidence. c. Or who heard it knowing that the document so read
is the one in question.
Q: What amount of evidence is necessary to prove the fact
of loss or destruction of a document or writing? Q: May secondary evidence be admitted when primary
evidence is admissible?
A: It must be proved by a fair preponderance of evidence.
A: No.
Q: May secondary evidence be given by the party who had
destroyed the original document? Q: What is the effect if the failure to object to the
presumption?
A: No.
A: Such evidence may be received, and then beomes primary
Q: How may the non-production of the original in court be evidence.
proved?
A: It is sufficient to show that it is deposited in a place from

which it cannot be removed for the purpose of being Sec. 6. When original document is in adverse partys custody
produced in court, or that it is not in the possession or under or control
the control of the party seeking to show the facts and that he
is unable to produce it within a reasonable time after the Q: Who is an adverse party?
exercise of reasonable diligence.
A: He may either be the plaintiff or the defendant.
Q: What are the kinds of secondary evidence that may be
presented as evidence of the original document? Q: What are the requisites for the admissibility of the
secondary evidence when the original is in the custody or
A: control of the adverse party?
1. a copy of the writing
2. a recital of its contents in some authentic documents A:
3. the recollection of witnesses in the order stated. 1. The adverse partys custody or control of the original
document
Q: How may the contents of the original document be 2. That reasonable notice was given to the adverse
proved by its copy? party who has the custody of the document
3. Satisfactory proof of evidence
A: It may be shown by the testimony of a person who has had 4. Failure or refusal by the adverse party to produce it
the opportunity to compare the copy with the original and in court.
found it to be correct.
Q: What is meant by the possession of the original by the
Q: How may the contents of the original document be adverse party?
proved by a recital of its contents?
A: It is not necessary for the party seeking to introduce
A: It is sufficient if it appears in a private document which is secondary evidence to show that the original writing is in the
proved to be authentic. actual possession of the adverse party, but it is sufficient that
the circumstances are such as to indicate that the writing is in
his possesison or under his control.

NOTES ON EVIDENCE
Sec. 8. Party who calls for document not bound to offer it
Q: What must the notice to produce contain?
Q: What is the option of the party who calls for the
A: The proponent must show that he had done all in his production of the document?
power to secure the best evidence by giving to the adversary
notice to produce the desired document. A: A party who calls for the production of a document and
inspects the same is not obliged to offer the same as
The notice must be always be such as to reasonably enable evidence. It is not until the party who demanded the
the party notified to understand what particular documents production of papers examines them and offers them in
are wanted. evidence that they assume the status of evidentiary matter.
Q: What is the effect of the production of the original after

notice?
PAROL EVIDENCE
A: Then, the secondary evidence cannot be introduced.
Sec. 9. Evidence of written agreements
Q: Is notice to produce necessary when the document
sought to be produced subject to the privilege against self- Q: What is the parol evidence rule?
incrimination?
A: It forbids any addition to or contradiction of the terms of a
A: Yes, they are subject. written instrument by testimony purporting to show that, at
or before the signing of the document, other or different
Q: When should notice be served? terms were orally agreed upon by the parties.
A: In the exercise of discretion, the court determines the NOTE: When an agreement has been reduced into writing,
question as to whether, in view of the circumstances of the the parties cannot be permitted to adduce evidence to prove
case, the notice has been reasonable and such as could have the alleged practices which to all purposes would after the
been complied with. terms of the written agreement.
Q: What is the effect of failure to produce the original Q: What is the reason for the above rule?
document upon notice?
A: When the parties have reduced their agreement to writing,
A: If the party having possession of primary evidence, upon its is presumed that they have made the writing the only
proper notice to produce such evidence, neglects of fails to repository and memorial of the truth, and whatever is not
do so, secondary evidence becomes available to his found in the writing must be understood to have been waived
adversary. and abandoned except in cases therein specifically
mentioned.
Oral testimony cannot prevail over a written agreement of

Sec. 7. Evidence admissible when original document is a the parties, the purpose of the parol evidence is to give
public record stability to written agreements and to receive the temptation
and possibility of perjury, which should be afforded if parol
Q: What must be the form of the certification required by evidence were admissible.
the rule?
Q: Distinguish best evidence rule from the parol evidence
A: It is not necessary that particular words be used to make rule.
effective a certificate attesting a paper as certified copy. The
certificate need not state no more than the paper bearing it is A:
a copy of a specified document in the certifiers copy.
BEST EVIDENCE RULE PAROL EVIDENCE RULE
Q: What do you mean by to certify? The issue is contents of a There is no issue as to
writing contents of a writing
A: It means to affirm or to assert in writing the correctness Secondary evidence is The purpose for the offer of
or identity of the designated instrument. offered to prove the contents parol evidence is to change,
of a writing, which is not vary or modify, qualify, or
allowed unless the case falls contradict the terms of a
under any of the exceptions complete written agreement,

NOTES ON EVIDENCE
whcin is not allowed unless 2. Failure of the written agreement to express the true
the case falls under any of intent and agreement of the parties.
the exceptions
Q: What are the kinds of ambiguities in documents?
Q: Is the parol evidence rule binding upon strangers to a
contract? A:
1. Patent or extrinsic
A: No. Strangers to a contract are not bound by it, and the 2. Latent or intrinsic
rule excluding extrinsic evidence is the construction of writing
is inapplicable in such cases. PATENT LATENT
Arises when the instrument Arises where the words of
Q: Why is the parol evidence rule not applicable to strangers on its face is unintelligible as the instrument and clear but
to the written agreement? where in the name of the their application to the
legatee is left wholly blank circumstances is doubtful, as
A: Strangers have not assented to the contract, nor can they where a legacy is given to
be heard in a proceeding to set aside or reform it. my niece Jane, the testator
having 2 nieces of that name
Q: Is parol evidence admissible to validate a void contract?
Q: What kind of ambiguity may be explained by parol
A: No, unless it can be show that the provision which renders evidence?
the instrument void was inserted by mistake.
A: The rule permits parol evidence to explain in intrinsic or
Q: May the parol evidence rule be waived? latent ambiguity in a writing.
A: Yes by failure to invoke it, as by failure to object to the INTRINSIC OR LATENT AMBIGUITY
introduction of parol evidence, and where a party who is
entitled to the benefit of the rule waives the benefit thereof Q: What is intrinsic or latent ambiguity?
by allowing such evidence to be received without objection
and without any effort to have it stricken from the minutes or A: It is an uncertainty which does not appear on the face of
disregarded by the trial court, he cannot after the trial has the instrument, but which is shown to exist for the first time
closed and the case has been decided against him, invoke the by matter outside the writingmay be explained or certified
rule in order to secure a reversal of the judgment by an by parol evidence.
appellate court.
An ambiguity is properly latent, in the sense of the law, when
Q: What is essential in order that parol evidence may be the equivocality of expression, or obscurity of intention, does
introduced to prove any of the exceptions to the rule? not arise from the words themselves, but from the
ambiguous or obscure state of extrinsic circumstances to
A: The parol evidence rule considers the documents as the which words of the instrument refer, and which is susceptible
endowment of the agreement of the parties. However, the of explanation by a mere developmentpf extraneous facts
rule is now explicit that the agreement may be modified, without altering or adding to the written language or
explained, or added if any of the exceptions to the rule is put requiring more to be understood thereby than will fairly
in issue in the pleading. comport with the ordinary or legal sense of the words made
use of.
Q: What does the term agreement under the rule include?
EXTRINSIC OR PATENT AMBIGUITY
A: It includes wills. That means that there is no evidence on
the terms of the will and of its attestation clause other than Q: It refers to uncertainty that arises at once on the reading
the contents of the same. of the contract. The doubt is suggested at once, and by the
phrase itself.
Exceptions
If the words are so defective or ambiguous as to be
Q: When is parol evidence admissible? unmeaning, no evidence can be given to show what the
author of the document intended to say.
A: When any of the following is put in issue in the pleading:
1. Intrinsic ambiguity, mistake or imperfection in the Example: A deed of sale which states a parcel of land
written document without description

NOTES ON EVIDENCE
Q: What is the reason of the rule for excluding parol contract may be received to enable the court to make a
evidence to explain an extrinsic ambiguity of a writing? proper interpretation of the instrument.
A: If the language is too doubtful for any settled construction, Q: May a condition precedent be established by parol
by the admission of parol evidence you create and do not evidence?
merely construe the contract.
A: When the operation of the contract is made to depend
Q: What are the rules governing the admissibility of parol upon the occurrence of an event, which, for that reason is a
evidence to explain ambiguity? condition precedent, such may be established by parol
evidence. This is not varying the terms of the written contract
A: by extrinsic agreement, for the simple reason that there is no
1. Where the instrument itself seem to be clear and contract in existence; there is nothing to whcich to apply the
certain on its face, and the ambiguity arises from excluding rule.
some extrinsic or collateral matter, the ambiguity
may be helped by parol evidence (latent ambiguity) Q: May the execution of a writing be proved by parol
2. When the ambiguity consists in the use of equivocal evidence?
words desigining the person or subject-matter, parol
evidence of collateral or extrinsic matter may be A: Yes, due execution of a writing may be proved by parol
introduced for the purpose of aiding the court in evidence, because what the rule prohibits is varying the
arriving at the meaning of the language used terms of the writing by parol evidence.
(intermediate ambiguity)
3. Where the ambiguity is such that a perusal of the Q: May parol evidence be introduced to prove inducements
instrument shows plainly that something more must and representations which led to the execution of an
be added before the reader can determine what of agreement?
several things is meant, the rule is inflexible that
parol evidence cannot be admitted to supply the A: Yes.
deficiency (patent ambiguity)
Q: May parol evidence be introduced to prove oral
Q: When is parol evidence admissible for the reformation of stipiulation prior to or contemporaneous with, such
a written instrument on the ground of mistake? agreement, which may in any way affect the writing?
A: To justify the reformation of a written instrument upon the A: All prior or contemporaneous collateral collateral
ground of mistake, the concurrence of the 3 things is stipulations which the parties might have had and which do
necessary: not appear in the writing, are presumed to have been waived,
1. That the mistake should be of fact or abandoned by them, and therefore, not provable.
2. That the mistake should be mutual or common to
both parties to the instrument Q: What is the test for determining whether or not a
3. That the mistake should be alleged and proved by contemporaneous oral agreement is separate and distinct
clear and convincing evidence. from the written agreement?
Q: When is parol evidence admissible where there is an A: It is essential to ascertain first what is the whole subject
imperfection of the writing? inended by the parties to be covered by such writing. Then,
ascertain the subject of the oral agreement offered to be
A: As when the writing is so erroneous, imperfect or fails to proved. Then, a comparison should be made between the
express the true agreement of the parties. writing and the oral negotiation and from that comparison it
may be seen whether or not the subject of the writing is
Q: When is parol evidence admissible where the written separate and distinct from that of the oral negotiation.
agreement does not express the true intent and agreement
of tha parties? Q: Is parol evidence admissible to show that the ocontract
never existed on the ground of fraud, illegality or incapacity
A: If a written contract is so ambiguous or obscure in terms of one of the parties?
that all contractual intention of the parties cannot be
understood from a mere inspection of the instrument, A: The rule is that evidence of a parol promise cannot be
extrinsic evidence of the subject matter of the contract, of shown for the purpose of enlarging or changing the written
the relations of the parties to each other and of the facts and contract, where the action is one to enforce the contract is,
circumstances surrounding them when they entered into the however, not applicable where the action is in fraud to
rescind the contract and to prove the oral promise as the

NOTES ON EVIDENCE
fraudulent represntation which acted as the inducement to A: A rule of construction is one which either governs the
the sale. effect of an ascertained intention or points out what a court
should do in the absence of express of implied intention. A
NOTE: The prohibition does not apply where the purpose of rule of interpretation is one which governs the ascertainment
the parol evidence is to show that no written contract ever of the meaning of the maker of a written document.
existed, that the minds of the parties never met on the terms
of such contract and that there never existed any Q: May the clear terms of a contract be the subject matter
consideration upon which acted as the inducement to the of interpretation?
sale.
A: No.
Q: Is parol evidence rule applicable to subsequent
agreements? Q: State briefly the rules of interpretation of documents
under the Rules of Court?
A: The rule forbidding the admission of parol or extrinsic
evidence to alter, vary, or contradict a written instrument A:
does not apply so as to prohibity the establishment by parol 1. A writing is to be interpreted according to its legal
of an agreement between the parties to a writing, entered meaning at the place of its execution unless the
into subsequent to the time when the written instrument was parties intended otherwise.
executed, notwithstanding such agreement may have the 2. The various provisions or particulars of an
effect of adding of adding to, changing, modifying, or even instrument should be construed together so as to
althogether abrogating the contract of the parties as give effect to all.
evidenced by the writing. 3. The intention of the parties should be ascertained
and pursued
Q: What is the reason of the rule why the parol evidence 4. The circumstances surrounding the execution of the
rule applicable to subsequent agreements? instrument should be considered to ascertain the
true intention of the parties.
A: Parties cannot be presumed to have intended the written 5. The words employed would be given their primary
instrument to cover all their possible subsequent agreements and general acceptation.
whcich for that reason may be considered as separate 6. When the terms of the agreement were intended in
transactions. a different sense by the parties to it, the sense which
either party supposed the other understood it
Q: May collateral stipulations in the contract be established should prevail
by parol evidence? 7. If 2 interpretations are equally plausible, the
instrument should be construed in favor of, and not
A: The rule of extrinsic evidence is not admissible to vary the against a natural right.
terms of a written agreement has reference to the terms or 8. Usage or custom may determine the true character
obligatoons expressed in a contract the existence of which is of the instrument
proved or admitted. This rule does not, however, prevent the
introduction of extrinsic evidence to show that a supposed
contract never became effective by reason of the failure of
some collateral condition or stipulation prerequisite to QUALIFICATION OF WITNESSES
liability. TESTIMONIAL EVIDENCE
Sec. 20. Witnesses; their qualifications
INTERPRETATION OF DOCUMENTS Q: What is meant by the term witness?
Q: By what law should be interpretation of a contract be A: It has reference to a person who testifies in a case or gives
governed? evidence before a judicial tribunal.
A: It is an elementary rule on contracts that the laws in force Q: What is meant by competency of evidence?
at the time the contract was made must govern in its
interpretation and application. A: It means the legal fitness or ability of a witness to be heard
on the trial of a cause.
Q: How is construction of an instrument distinguished from
its interpretation? Q: What is the presumption as to the competency of
witness?

NOTES ON EVIDENCE
Q: May a judge be a witness?
A: The law, on the grounds of public policy, presumes that he
is competent. Thus, if evidence is in equipoise, the witness A: There is a general objection, since a judicial conduct should
should permitted to testify. not be made subject to cross-examination or contract.
However, the trial judge is competent when his testimony
Q: Who determines the competency of a witness? concerns merely formal or preliminary matters about which
there is no dispute, as where he testifies in a perjury
A: It rests primarily with the trial judge. prosecution that the defendant gave testimony before him in
another proceeding in another court.
Q: May the determination of the trial court as to the
competency of a witness be disturbed on appeal of the Q: Is conviction of a crime a ground for disqualification of a
case? witness?
A: As the judge of the trial court is the one who hears the A:
witnesses, observes the manner in which they testify, notices, GR: No
their apparent possession or lack of intelligence, and may XPN: conviction of perjury or any offense involving moral
resort to any examination to find out the capacity as well as turpitude
the understanding of a witness.
Q: Upon the objection to the competency of the witness
Q: When must the objection to the competency of a witness being raised, what is the duty of the court?
be made?
A: The court must make an examination as will satisfy him as
A: Before he has given any testimony if a party knows before to the competency or incompetency of the witness to testify
the trial that the witness is incompetent, and if the in the case, and thereupon to rule object accordingly.
incompetency appears on the trial, the objection must be
interposed as soon as it becomes apparent. Q: What is the effect of the failure of a party to object to the
competency of a witness?
Q: Suppose the incompetency of the witness is merely
partial, when shall objection to his competency be raised? A: It is tantamount to a waiver, and once the evidence is
admitted the same shall stay in the records and be judged
A: The objection need not be raised until he is asked to testify according to the merits. The judge has no power to disregard
to those matters to which he is incapacitated. it solely for the reason that it could have been excluded had it
been objected to.
Q: What are the qualifications of a witness?
Q: What acts of a party entitled to object may be considered
A: as waiver of the objection?
1. He is capable of perceiving
2. He can make his perception known. A:
1. Where the party fails to raise the objection when the
NOTE: The following does not disqualify a witness: witness testifies, though at that time the party
a. Religious belief knows of his incompetency
b. Political belief 2. Where the party who might have made the
objection calls the witness in support of his own
Q: Is interest in the outcome of the case a ground for case.
disqualification?
A: No.
Q: May an attorney be a witness?
A: When a lawyer is a witness for his client, except as to

merely formal matters, such as the attestation or custody of
an instrument and the like, he should leave the trial of the
case to other counsel. Except when essential to the ends of
justice, a lawyer should avoid testifying in court in behalf of
his client.

NOTES ON EVIDENCE
A: Yes where he has sufficient capacity to understand the
RULE 130 solemnity to understand the solemnity of an oath and to
Section 21. Disqualification by reason of mental incapacity comprehend the obligation it imposes, and where he has
or immaturity sufficient intelligence to receive just impressions as to the
facts on which he is to testify and to relate them correctly,
MENTAL INCAPACITY although he is very young.
Q: May an insane be a witness? NOTE: The question of competency largely rests in the sound
discretion of the trial court, whose decision will not be
A: Unsoundness of mind does not per se render a witness disturbed in the absence of a clear abuse.
incompetent; one may be medically or metaphysically insane
yet be capable of giving competent testimony in the trial of
the case.
Section 22. Disqualification by reason of marriage
Insanity or mental weakness of a witness is not a valid
objection as to the competency of a witness, if at the time he Q: What is the reason for the rule prohibiting one spouse
is testifying, he has mental capacity to distinguish between from testifying for or against the other?
right and wrong, and he understands the nature and
obligation of an oath, and can give a fairly intelligent and A: It is based on the principles which are deemed important
reasonable narrative of the matters about which he testifies. to preserve the marriage relation as to one of full confidence
and affection.
Q: What is the rule when a witness is a lawful inmate of an
asylum? Q: What is the form of testimony covered by the rule?
A: He will not be presumed to be competent and before he A: This applies to any form of testimony; therefore it protects
can testify his competency should be made to appear by the against using the spouse-witness admission, or against
party offering him. compelling him to produce documents.
NOTE: Competency is presumed to continue as a mental However, the res gestae declarations of husband and wife are
state, if it has once existed, unless the contrary is shown. admissible for or against each other even though each is
incompetent to testify.
Q: What is monomania?
Q: What are the requisites of the rule on marital
A: The insanity of a person only to a particular subject, and disqualification?
with a single delusion of the mind. It does not render the
witness incompetent if the understands the nature and A:
obligations of an oath and can give a correct account of what 1. Spouses are legally married- thus, it does not apply
he has seen or heard. to bigamous marriage, not to a paramour, nor to an
affiance
Q: May an idiot be a witness? 2. Either spouse must be a party to the case- the other
spouse must be a party to the case; not a third
A: Yes. An idiot is one who has had no understanding from his person who happens to be involved somehow in the
nativity. case; otherwise, the testimony does not hurt the
other spouses legal interests.
Q: How about a drunkard?
Q: To whom does the right to invoke the disqualification
A: It does not per se disqualify a witness from testifying. If his belong?
status deprives him of intelligence, he should be excluded.
A: It can only be claimed when the spouse for or against
Q: How about a person under the influence of drugs? whom the testimony of the other is offered is a party to the
case.
A: It does not render him incompetent.
Q: When does the disqualification cease?
IMMATURITY
A: After the death of the divorce of one spouse, the privilege
Q: Are children competent witnesses? ceases for the reason ceases.

NOTES ON EVIDENCE
Q: What are the exceptions to the marital disqualification? behalf the suit is instituted. Interest in the outcome of the
case does not disqualify a witness from testifying,
A:
1. That the case which the husband or the wife is called 2. The action is against the executor or administrator or
to testify is a civil case instituted by one against the other representative of the deceased person or against a
other. person of unsound mind
2. That it is a criminal case for a crime committed by
one against the other. NOTE: The dead man statute does not apply where the
3. The offended husband can testify against his wife representative of the deceased files a counter-claim against
accused of adultery the plaintiff.
4. The wife can also testify against her husband
accused of bigamy 3. The subject matter of the action is a claim or demand
against the estate of a deceased person or a person of
Q: What is the reason for the exceptions? unsound mind.
A: The identity of the interests disappears and the NOTE: The words claim or demand mean any action or
consequent danger of perjury based on that identity is non- proceeding which may affect the real or personal properties
existent. of the deceased or insane person.
Q: May this right be waived? 4. The testimony of witness and the testimony of the party
or assignor to the case must refer to any matter of fact
A: The right belongs to the spouse-party, therefore, he or she which occurred before the death of the deceased or
alone can claim or waive it. It may be waived by a failure to before the person became insane.
interpose timely objection or by calling the other spouse as
witness. NOTE: Negative facts are not included in the matters
prohibited by law. The testimony of a plaintiff denying the
Section 23. Disqualification by reason of death or insanity of occurrence of the transaction may be admitted on the ground
adverse party that such plaintiff does not testify to a fact occurring before
the death of the decedent, but on the contrary that such fact
Q: What is the purpose of the rule? has not occurred.
A: To guard against the temptation to give false testimony in Q: May the disqualification be waived?
regard of the transaction in question on the part of the
surviving party, and further to put the 2 parties to a suit upon A: Yes. The representative, if he may choose, may waive this
terms of equality in regard to the opportunity to giving privilege. All the objection to the competency of a witness as
testimony. If the death has closed the lips of one party, the to a transaction with an incompetent or deceased person will
policy of the law is to close the lips of the other. be deemed waived, if it is not made at the time that the
evidence is given.
Q: Is the rule applicable to cases where the deceased died
after filing the suit against him? Section 24. Disqualification by reason of privileged
communication
A: The rule is applicable where the deceased died either
before or after the suit was filed against him, when the A. COMMUNICATION BETWEEN HUSBAND AND WIFE
testimony is given, he is dead and cannot prove it, since the
reason for the prohibition, which is to discourage perjury, Q: What is the reason for this privilege?
exists, in both instances.
A: Preservation of the peace of families.
Q: What are the requisites for the disqualification?
Q: What are the requisites for the rule on privileged
A: communications?
1. The witness is a party or assignor of a party to a case or is A:

a person in whose behalf is prosecuted 1. The spouses must be legally married
2. The communication must be confidential and made
NOTE: A witness may testify against an estate, provided he is during the marriage
not a party, or an assignor of a party, or a person in whose
Q: What is the scope of the marital privilege?

NOTES ON EVIDENCE
when the communication is needed on behalf of his state, the
A: It includes both words and conduct. It is said that any fact surviving spouse should be entitled to waive it.
which came to the wifes knowledge by reason of the
confidential relationship of husband and wife is covered by Q: What are the exceptions to this rule on marital privilege?
the privilege.
A:
Q: What is the presumption regarding communications 1. That the case in which the husband or the wife is called
between the husband and the wife? to be examined is not a civil case instituted by one
against the other
A: Impliedly, all communications between the husband and 2. That it is not a criminal case for a crime committed by
the wife are confidential in character, and hence, privileged. one against the other.
The party asserting the contrary in any given instance must
satisfy the court by the circumstances of the case that NOTE: The exception to the Rule on marital disqualification
grounds for the exclusion does not exist. are now also made exceptions to the rule on marital
communications.
Q: May the communications between husband and wife
rd
overheard by a 3 person be regarded as confidential and Q: Distinguish rule on marital disqualification and rule on
are therefore protected by this privilege? privileged marital communication?
A: Communications between husband and wife overheard by A:

rd
a 3 person are not protected by the privilege. But if the
communication made by one spouse to the other is MARITAL DISQUALIFCATION MARITAL COMMUNICATION
overheard by a third person, the communication does not Prohibits adverse testimony Prohibits only as to
cease to be confidential between the spouses, and neither of regardless of the source knowledge obtained through
them can testify is directed to the spouse only, and confidence of the martial
accordingly, the third person overhearing cannot be relation
prevented from testifying. Exists only when a party to Exists whether the husband
the action is the husband and and the wife is a party to the
NOTE: Where a privileged communication from one spouse the wife action or not
to another comes into the hands of a third party, whether Ceases upon the death of the Continues even after the
legally or not, the third party may testify. either spouse termination of the marriage
tie
rd
But if a 3 party comes into possession of the communication
by collusion and voluntary disclosure on the part of either of Q: To whom does the privilege belong?
the spouses, he thereby becomes an agent of such spouse
and cannot testify without the consent of the other. A: The privilege in principle, belongs to the communicating
spouse, not to the other spouse.
The known presence of a third party negatives the
presumption of privacy. Q: May the privilege be waived?
Q: Is the rule on privileged marital communications A: Yes, if the spouse of the accused is allowed to give
applicable to dying declarations? testimony as to confidential communications without
objection, he will be held to have waived the privilege.
A: When a person at the point of death as a result of the
injuries he has suffered makes a statement regarding the NOTE: The objection to the admission of the privileged
manner in which he received those injuries, the communication is timely if made before the answer to the
communication so made is in no sense confidential. On the question for its revelation.
contrary, such communication is made for the express
purpose that it may be communicated after the death of the B. COMMUNICATION BETWEEN ATTORNEY
declarant to the authorities concerned in inquiring the cause AND CLIENT
of his death.
Q: What is the basis of this rule?
Q: What is the duration of the marital privilege?
A: Public policy. This encourages the client to make full
A: This endures even after the termination of the marital disclosure of the facts. It is a rule founded on the
relations. It does not end, even after death or divorce. But administration of justice and is intended to enable the client
to place unrestricted or unbounded confidence in his

NOTES ON EVIDENCE
attorney in matters affecting his rights and obligations
without danger of having disclosures forced from the A: No, this is because a complaint made to a prosecutor will
attorney on the witness stand. usually be made for the purpose of inciting public
prosecution, and not for the protection of the complainants
Q: What are the requisites? right.
A: Q: Are professional communications for an unlawful

purpose privileged?
1. There must be a relation of attorney and client
2. Communication by client to attorney A: No, having for their object the commission of crime. The
interests of justice require that no such shield from merited
NOTE: It is necessary that the communication by the client to exposure shall be interposed to protect a person who take
the attorney or his clerk is confidential. counsel on how he can safely commit a crime.
There is no privilege in cases where abstract legal opinions Q: Are communications between an attorney and his client
rd
are sought and obtained on general questions of law, either in the presence of 3 persons regarded as confidential?
civil or general; in such cases, no facts are or need be
rd
disclosed implicating the client, and so there is nothing of a A: No, but when the 3 person is an agent of the attorney or
confidential character to conceal. an agent of his client, the communication does not cease to
be confidential and is therefore privileged.
3. Communication must have been made to the attorney in
rd
the course of or with a view of professional employment Q: What if it was overheard by 3 persons?
Q: What do you mean by professional capacity? A: The privilege exists if the client did not notice the presence
of third persons overhearing the communications. But the
A: When the client makes the same with the purpose of only persons prohibited by the privilege to testify are the
obtaining from him a legal advice and opinion concerning his attorneys and his agents. Third persons foreign to the
legal rights, obligations or duties relative to the subject relation are not included.
matter of communication.
Q: How about communications to or advice from the
NOTE: Confidential relations made in reliance upon the representative of an attorney?
supposed relation of attorney and client, whether the party
assuming to act as such is an attorney or not, are excluded by A: They are also privileged.
the court.
Q: Is the privilege communication protecting confidential
Sidewalk advice from attorney upon legal question for which communications between attorney and client applicable to
no compensation is asked or expected and none gives except actions brought by the client against the attorney?
a luncheon, should not be regarded as privileged
communication. A: No, the disclosure becomes necessary for the attorneys
own protection. Otherwise, he would suffer a manifest
Q: Is the privilege applicable to counsel de officio? injustice.
A: Yes. Q: To whom does the privilege belong?
Q: Is it applicable to an attorney who is subscribing witness A: To the client, therefore he alone can invoke it. And he may
to his clients will? claim it not only when his attorney is called upon to disclose
professional communications, but also when he himself is
A: An attorney who becomes a subscribing witness to his tasked to make the disclosure.
clients will, may testify to the attending circumstances of the
execution of his clients will for by representing his attorney NOTE: When the privilege belongs to 2 or more clients, the
to become a subscribing witness to the will, the testator consent of each is essential to constitute a waiver.
waives the privilege as to his attorneys testimony concerning
testamentary communications. Q: Will the privilege continue even after the professional
relation between them is terminated?
Q: Is a communication made by client to an attorney as
public officer to enable him to act in that capacity
privileged?

NOTES ON EVIDENCE
A: Yes. The seal of the law once fixed upon them remains 3. The advice or treatment given by him or any or any
forever, unless removed by the party himself in whose favor information was acquired by the physician while
it is there placed. professionally attending the patient.
Q: Give instances of implied waiver? Q: When is a physician said to be professionally attending

the patient?
A:
1. In clients failure to object to attorneys testimony A: When he attends the patient either for:
2. In giving evidence on the privileged communication a. Curative
3. When privileged communication falls into the hands of b. Preventive
adverse party c. Palliative treatment
4. In calling or cross-examining his attorney regarding
privileged communication 4. The information was necessary for the performance of
his professional duty.
C. COMMUNICATION BETWEEN PHYSCIAN AND PATIENT
NOTE: It is not necessary for the privilege to exist that the
Q: What is the reason for the rule on confidential information given by the patient to the physician was strictly
communication between physician and patient? necessary to enable the latter to prescribe for his patient. If in
his ignorance he gives information, though not strictly
A: It is intended to facilitate and make safe, full and necessary for that purpose, is still privileged,
confidential disclosure by the patient to physician of all facts,
circumstances, and symptoms, untrammeled by Q: Is the privilege limited to the information personally
apprehension of their subsequent and enforced disclosure given by the patient to the physician?
and publication on the witness stand, to the end that the
physician may form a correct opinion, and be enabled safely A: No, it includes all facts learned by observation and by all
and efficaciously to treat his patient. methods necessary to enable the physician to prescribe.
Q: What are the requisites for the privilege? Q: What is the rule regarding the autopsy of a dead man?
A: A: The evidence does not fall within the inhibition of the

1. The action in which the advice or treatment given by or provision. A dead man is not patient capable of sustaining
any information is to be used is a civil case the relation of confidence toward his physician which is the
foundation of the rule given in the statute, but is a mere
NOTE: In criminal cases, the privilege does not apply for the prescription, medical or otherwise.
maintenance of public order and the life, liberty of citizens
are deemed more important than the purpose for which the Q: Give examples of the privilege?
privilege was created.
A:
2. The relation of physician and patient existed between 1. Communications of the body
the person claiming the privilege or his legal 2. Observation of symptoms
representative and the physician. 3. Results of the doctors examination
4. The patients condition as found by the doctor
NOTE: It is not indispensable that the patient should have 5. Name of the ailment
actually employed the physician, surgeon or obstetrician. The 6. Nature of the operation performed
latter may have been employed by persons other than the 7. Whether the injuries caused death
patient himself, as where the latter is in extremis.] 8. Physicians records as distinguished from hospital records
9. Statement of facts or opinion given by the expert
The persons whom the privileged may be claimed are those 10. Instructions given to the patient
duly authorized to practice medicine, surgery or obstetrics. 11. X-ray plates and radiographs
The privilege cannot be extended by construction to persons
employing other curative processes not coming within the NOTE: Statements made by a wounded man as to why he was
ordinary meaning of the term. assaulted, the name of the persons present at the time of
the assault are not privileged.
Communications made by a patient to dentists, pharmacists,
and nurses who are not acting as agents of physicians, 5. The disclosure would tend to blacken the reputation of
surgeons or obstetricians are not privileged. the patient.

NOTES ON EVIDENCE
Q: Who has the burden of proving the relation of physician D. COMMUNICATION BETWEEN MINISTER OR PRIEST AND
and client? PENITENT
A: The privilege rests upon the persons objecting. Such Q: What is the reason for the rule?
person must show that the relation of physician and patient
existed. A: To compel the minister or priest to testify to a confession
made by him by a penitent is equivalent to an annulment of
Q: Who determines the competency of the physician to the confessional institution, for many would no longer make
testify? confessions. And this must not be done in a government
where the religious tolerance is sanctioned by law.
A: The court. It is not for the physician to determine himself
whether or not he should testify. Q: What are the requisites?
Q: What is the reason why death of the patient does not A:

extinguish the privilege which attaches to the relation of 1. The confession must be made to the minister or priest in
physician and client? his professional character, and in the course of discipline
enjoined by the rules of practice of the denomination to
A: The purpose of the law would be thwarted and the policy which the minister or priest belongs.
intended to be promoted thereby would be defeated if death
removed the seal of secrecy from the communications and NOTE: Statements made in the presence of his minister and
disclosures which a patient should make to his physician. fellow members are not privileged.
Q: May the privilege be waived? 2. The confession must be of a penitential character
A: Yes. Q: What do you mean by confession must be of a penitential

character?
a. Express- made by the patient himself, to whom alone it
belongs. A deceased persons representative may waive A: It must be confessions of sins with a view of obtaining
it; and perhaps the beneficiary of an insurance policy. pardon and spiritual advice or assistance.
The waiver may be made in contract.
Q: Who determines whether or not the disclosure is
b. Implied-when the patient himself takes the stand to privileged?
testify about his physical condition. The patient by calling
the physician to testify impliedly waives the privilege as A: A court may not require the disclosure of a confession to a
to all that the physician knows. clergyman to determine whether it is privileged, but must
determine the question from the circumstances and facts
NOTE: The calling of one physician ought to be an implied leading up to the making of the confession.
waiver of the privilege as to all that the physician knows.
Q: May the privilege protecting confessions made by a
Q: Is the privilege applicable to actions brought by the penitent or priest be waived?
patient against his physician?
A: Yes, if the penitent waives it to the extent of giving
A: No, for if a patient makes public in a court the occurrences evidence of what took place at the confessional he cannot
of the sickroom, for the purpose of obtaining a judgment for complain of evidence which goes no further than to establish
damages against the physician, he cannot shut out the the facts revealed by him.
physician himself nor any other who was present at the time
covered by the testimony. E. PUBLIC OFFICERS AND PUBLIC INTEREST
Q: Is the privilege applicable when the physician is sent by Q: What is the reason for protecting communications made
the court to determine the mental or physical condition of a to a public officer in official confidence?
person?
A: It is the duty of every citizen to communicate to his
A: No, but only if it is conclusively shown that the relation of government any information which he has of the commission
physician and patient did not and was not supposed by the of an offense against its law; and a court of justice will not
accused himself. compel or allow such information to be disclosed, either by
the subordinate officer to whom it is given, by the informer
himself, or by any other person without the permission of the

NOTES ON EVIDENCE
government, the evidence being excluded or not for the
protection of the witness or of a party to a particular case, TESTIMONIAL PRIVILEGE
but upon general grounds of public policy, because of the
confidential nature of such communications. Section. 25 Parental and Filial privilege
Q: What is public interest? Q: What is the scope of the rule?
A: It means more than a mere curiosity; it means something n A: It includes other direct ascendants and to exempt parents
which the public, the community at large has some pecuniary from being compelled against their children or other direct
interest by which their legal rights or liabilities are affected. It descendants.
does not mean anything so narrow as to interest the
particular localities, which may be affected by the matters in Q: What is the reason for this privilege?
question.
A: To preserve family cohesion.
Q: What are the requisites?
Q: When may this privilege be invoked?
A:
1. The communication must have been made to a public A: In both civil and criminal cases.
officer
ADMISSIONS AND CONFESSIONS
Q: Who are the public officers contemplated by law?
Section 26. Admissions of a party
A: Only those who have responsibility or duty to investigate
or to present public wrongs, and not to officials in general. Q: What is an admission?
2. The communication was made in official confidence A: It is a voluntary acknowledgment in express terms or by
3. Public interest would suffer by the disclosure of the implication, by a partty interest or by another by whose
communication. statement he is legally bound, against his interest, of the
existence or truth of a fact in dispute material to the issue.
NOTE: This privilege is intended not for the protection of
public officers but for the protection of public interest. Q: How may an admission be classified?
Q: What are the exceptions to the rule? A:

1. Judicial
A: 2. Extra-judicial
1. If what is asked is useful evidence to vindicate the 3. Express
innocence of an accused person, or 4. Implied
2. lessen the risk of false testimony
3. essential to the proper disposition of the case JUDICIAL EXTRA-JUDICIAL
4. benefit to be gained by a correct disposition of the One made in a judicial One made out of court, or in
litigation was greater than any injury which could inure proceeding under a judicial proceeding other
to the relation by disclosure of the information consideration than the one under
consideration
F. OTHER PRIVILEGED MATTERS
EXPRESS IMPLIED
1. Editors may not be compelled to disclose the source of Those made in definite, Those which may be
published news certain and unequivocal infferred from the acts,
2. Voters may not be compelled to disclose for whom they language declarations, or omissions of
voted a party.
3. Trade secrets
4. Information contained in tax census returns Q: Is the act of repairing the defect which caused an injury
5. Bank deposits (R.A. 1405) to be construed as an implied admission of negligence?
A: No. The rule is founded on sound reasons and good policy.

The more careful person is, the more regard he has for the
lives of others, the more likely he would be to do so, and it
would seen unjust that he coud not do so without being liable

NOTES ON EVIDENCE
to have such acts construed as an admission of prior
negligence. A: A statement is not competent as an admission where it
does not, under reasonable construction, appear to admit or
Q: Disntinguish admission from confession. acknowledge the fact which is sought to be proved by it. It
must have been expressed in definite, certain, and
A: unequivocal language.
ADMISSION CONFESSION Q: How may an admission of a party be introduced as

Usually applied in criminal Declaration made at any time evidence against him?
cases to statements of fact by a person, voluntarily and
by the accused which do not without compulsion or A:
directly involve an inducement, stating or 1. As an independent evidence- admissions are original
acknowledgment of the guilt acknowledging that he had evidence and no foundation is necessary for their
of the accused or of the committed or participated in introduction in evidence.
criminal intent to commit the the admission of a crime.
offense with which he is NOTE: If the admission was made orally, it may be proved by
charged. any competent witness who heard them or by the declarant
himself. It is not necessary that the witness should be able to
Q: Distinguish admission from declaration against interest? fix accurately the date of the conversation in which the
admission was made. It is not a condition that the exact
A: words of the statement be repeated.
ADMISSION DECLARATION AGAINST If the admission is in a private writing, there must be some
INTEREST proof of the authenticity or the identity of the writing.
A primary evidence and is Secondary evidence;
receivable, although the receivable only when the If the admission is in a public document, the same does not
declarant is available as declarant is unavailable as need any authentication.
witness witness
It is competent only when Competent in any action to 2. As impeaching evidence- if proof of the admission is
the declarant, or someone which it is relevant, although sought for impeachment purposes, a proper foundation
identified in legal interest the declarant is not a party must be laid for the impeaching questions, by calling the
with him is a party to the to, or in privity with, any attention of such party to his former statement so as to
action party to the action give him an opportunity to explain before such admission
Need not have been It must have been, when are offered in evidence.
considered by declarant made, to the knowledge of
the declarant, against his Self-serving declarations
obvious and real interest
Q: What are self-serving declarations?
Q: How is the term party used in the rule construed?
A: They are unsworn statements made by the declarant out
A: The rule makes reference to the act, declaration or of court and which are favorable to his interests. It is one
omission of a party made by a party in his own interest at some place or time out
of court and it does not include testimony which he gives as a
It meant party to the action who has been served with witness at the trial.
process.
NOTE: Self-serving declarations may be:
Q: What is the reason of the rule that an admission of a a. Oral
party is evidence against him? b. Written
c. Acts or conduct
A: It is based on the presumption that no man could declare
anything against himself, unless such declarations were true. Q: Are self-serving declarations admissible in evidence?
A mans act, conduct and declarations, wherever made,
provided they are voluntary, are admissible against him, for A: No, they are not admissible in evidence as proof of the
the reason that it is fair to presume that they correspond facts asserted, whether they arose by implication from acts
with the truth, and it is his fault if they do not. and conduct or were made orally or reduced to writing. The
vital objection to the admission of this kind of evidence is its
Q: When is an admission competent? hearsay character. Also, they are untrustworthy; to permit

NOTES ON EVIDENCE
their introduction in evidence would open the door to frauds 4. Where the credibility of a party has been assailed on the
and perjuries. ground that his testimony is a recent fabrication, in
which case his prior declaration, even of a self-serving
NOTE: This rule is the same whether civil or criminal. character, may be admitted, provided they were made at
a time when a motive to misrepresent did not exist.
Q: What are the reasons for the exclusion of self-serving 5. When they are offered by the opponent
declarations? 6. When they are offered without the objection, the
evidence cannot afterward be objected to as
A: incompetent
1. The inherent untrustworthiness of the declarations
2. The fact that to permit their introduction in evidence
would open the door to fraud and fabrication of
testimony Section 27. Offer of compromise not admissible
3. The fact that if testified to by one other than the
declarant, they would be hearsay. Q: What is a compromise?
Q: Does death render self-serving declaration admissible? A: It is an an agreement made between 2 or more parties as a
settlement of matters in dispute.
A: No.
Q: Is an offer of compromise in civil cases admissible in
Q: Are unsworn self-serving declarations of a person for a evidence?
party admissible in favor of the latter?
A: No. It is not admissible in evidence against the offeror.
A: The unsworn declarations by others for him are equally to
be excluded. Q: Why is an offer of compromise in civil cases not
admissible in evidence?
NOTe E: Persons whose unsworn declarations in behalf, of a
party are not admissible in favor of the latter are: A: It is the policy of the law to favor the settlement of
a. Agents, as regards their principles disputes, to foster compromises, and to promote peace.
b. A co-defendant or co-partner, as regards the other Otherwise, many settlements would be prevented, and
c. A guardian as regards his ward unnecessary litigation would be produced and prolonged.
d. A principal as regards his surety
e. A husband or wife, as regards his or her spouse Q: When are admissions made in conection with an offer of
f. An employee, as regards his employer compromise in civil cases admissible in evidence?
g. The officers of the corporation as regards the
corporations A: That a writing contains an offer of compromise does not
h. A public officer as regards the public corporation render it inadmissible in evidence if it is competent evidence
i. Predecessors in title, as regards an owner of property. for other purposes.
Q: Are diaries admissible in evidence? If a statement forming part of an offer of compromise or

made in the course of negotiations to effect a settlement is
A: As a rule, diaries are inadmssible because they are self- an admission of an independent fact pertinent to an issue,
serving in nature, unless they have the nature of books of unless it is so closely connected with the offer of compromise
account; but it has also been held that an entry in diary being as to be inseparable therefrom, is tentative or hypothetical
in nature of a declaration, if it was against interest when statement as distingushed from a definite statement of a fact
made is admissible. or is expressly made without prejudice or indicates that it is
made in confidence that a compromise will be effected.
Q: When are self-serving declarations made by a party
admissible in his own behalf? Thus, an express admission of liability made during
negotiations for compromise has been held admissible.
A:
1. When they form part of the res gestae, including An express and unqualified admission of indebtedness
spontaneous statements and verbal acts accompanying an offer of compromise is admissible in
2. When they are in the form of complaint and evidence.
exclamations of pain and suffering
3. When they are part of a confession offered by the An admission of the correctness of an account or of specific
prosecution items, an admission involving an interest in property, and an

NOTES ON EVIDENCE
admission affecting liability for a tort are admissible in
evidence, notwithstanding they were made during Section 28. Admission by third party
negotiations carried on for the purpose of effecting a
settlement. Q: May the rights of a party be prejudiced by the act,
declaration, or omission of another?
Q: What is the effect of an offer of compromise in criminal
case? A: Unless he assents thereto, a party to an action cannot be
affected by the admission of a person who does not occupy
A: It may be received in evidence as an implied admission of toward him any relation of privity, agency or joint interest.
guilt.
Q: What are the exceptions to the rule?
Q: When is an offer of compromise in criminal cases not an
implied admission of guilt? A:
1. Admission by a co-partner
A: In criminal cases involving quasi-offenses (criminal 2. Admission by agent
negligence) an offer of compromise does not constitute an 3. Admission by joint owner or debtor or one jointly
implied admission of guilt. interested
4. Admission by conspirator, and
Q: Is plea of guilty later withdrawn admissible in evidence 5. Admission by privies
against the accused?
Q: What is the basis of these exceptions?
A: It is not an admission in evidence against the accused who
made the plea. A: A third person may be so united in interest with the party-
opponent that the other persons admissions may be
One of the practical reasons advanced is that encouragement receivable against the part himself.
of negotiation between the defense and prosecution counsel
with respect to pleas requires flexibility in making and
withdrawing them without prejudice.
Section 29. Admission by co-partner or agent
Q: Is an accepted offer of plea of guilty admissible in
evidence? A. Admission by Partner
A: It is inadmisisible in evidence against the accused who Q: What is the reason why the acts and declarations of a
made the offer. Obviously the objective of the rule is to partner are admissible in evidence against his co-partner?
provide a plea agreement procedure designed to give
recognition to the propriety of plea discussions and plea A: They are admissible not on the grounds that they are
agreements provided that they are discloses in open court parties to the record, but on the ground that they are
and subject to acceptance or rejection of the trial judge. identified in interest, and that each is agent for the other, and
that the acts or declarations of one during the existence of
Q: Is an offer to pay medical, hospital or similar expenses the partnership, while transacting its business and within the
occassioned by an injury admissible as proof of the civil or scope of the business are admissible against the other or
criminal liability for the injury? others.
A: It is not admissible. The payment or offer is usually made

from humane impulses and not from an admission of liability. Q: What are the requisites for the rule?
Q: Is an express admission of liability coupled with an offer A:

of assistance admissible in evidence? 1. That the partnership be previously proven by evidence
other than the admission itself
A: Some courts have stated that both should be admitted 2. The acts or declarations refer to a matter within the
since the express admission insured that the offer or tender scope of his authority
of assistance was not merely an act of benevolence, but some 3. The acts or declarations were made during the existence
admission of guilt. of the partnership
Q: Are the declarations of a hostile or deceased partner

admissible against the other co-partner?

NOTES ON EVIDENCE
A: Even when one partner is shown to be hostile to another,
the admissions of such first partner may be received, Q: When may an act or declaration of a joint owner, or joint
although of course, such hostility may affect the question of debtor jointly interested with a party be admissible against
weight of the evidence. The declarations of a deceased the latter?
partner relating to the partnership business, are admissible
against his survivors. A: In order that the act or declaration of a joint owner, or
joint debtor jointly interested with a party may bind the
Q: Are admissions of one partner respecting a former latter, it must be shown that:
transaction after the dissolution of the partnership a. There exists a joint interest between the joint owner, or
admissible against the co-partner? joint debtor or other person jointly interested with the
party and such party, which joint interest must first be
A: Admissions of one partner respecting a former transaction made to appear by evidence other than the act or
after the dissolution of the partnership are not competent declaration itself
against the other partners in the absence of prior authority or b. That the act or declaration was made while the interest
subsequent ratification even though such admissions or was subsisting
declarations relate to matters pending at the time of c. That the act relates to the subject matter of the joint
dissolution. interest, for otherwise it would be immaterial and
irrelevant.
B. Admission by agent
NOTE: The mere fact that several persons have a common
Q: Why are the acts or declarations of an agent of a party interest as contradistinguished from a joint interest, in the
are admissible in evidence against said party? subject matter involved in the suit does not render their
admissions competent against each other. This is true with
A: As a rule, parties are not chargeable with the declarations regard to the rights under will.
of their agents, unless such declarations or statements are
made during the transaction of business by the agent for the The quantum of interest of the declarant does not affect the
principal and in relation to such business and while within the application of the rule.
scope of the agency.
In other words, what is done, by an agent, is done by the

principal through him, as through a mere instrument. Section 30. Admission by conspirator
Q: What are the requisites for the rule? Q: When does conspiracy exist?
A: A: Under the RPC, a conspiracy exists when two or more

1. That the agency by previously proved by evidence other persons come to an agreement concerning the commission of
than the admission itself a felony and decide to commit it.
2. That the admission refers to a matter within the scope of
his authority Q: How are conspiracies generally proved?
3. That the admission was made during the existence of the
agency. A: It is generally proved by a number of indefinite acts,
conditions, and circumstances which vary according to the
Q: What is the effect of an answer given by another person purposes to be accomplished. If it be proved that the
upon a party in cases where such party expressly refers to defendants pursued by their acts the same object, one
such other person for an answer on particular subject in performing one part and another performing part of the
dispute? same, so as to complete it, with a view to the attainment of
the same object and will be justified in the conclusion that
A: When a party to any proceeding expressly refers to any they were engaged in a conspiracy to effect that object.
other person for an answer on a particular subject in dispute,
such answer, if restricted to the subject matter in relation to Q: Is direct proof essential to prove conspiracy?
which reference is made, is, in general, evidence against said
party, for the reason that he makes such third person his A:No. It is usually inferred from the proof of acts and
accredited agent for the purpose of giving such answer. circumstances which taken together apparently indicate that
they were merely parts of some complete whole.
C. Admission by joint owner, joint debtor, or other person
jointly interested with the party Q: Who has the burden of proof to establish conspiracy?

NOTES ON EVIDENCE
A: A person charged with testimony is presumed to be voluntary guarantees, or judgment creditors, or purchasers
innocent and the burden is on the prosecution to establish his from them with notice of the facts.
guilt, his connection with, and participation in the conspiracy.
Q: What is the reason for the rule that the declaration, act
The concurrence of minds essential to conspiracy may be or omission of a person under whom title is claimed are
inferred where the parties are apparently pursuing the same receivable in evidence against his privies?
object whether acting separately together by common or
different means leading to the same unlawful result, and a A: It rests on the theory that there is sufficient identity of
common purpose is inferable from concerted action interest to render the statements of the former equally
converging to a definite objective and whether or not the receivable with the admissions of the present owner, and
parties meet or confer and formulate their plans. that the rights of the latter are those, and only those of the
former.
Q: What is the quantum of proof to establish conspiracy?
It is based on the principle that the declarant is so situated
A: The same degree of proof required for establishing the that he probably know the truth, and his interest were such
crime is required to support a finding of its presence, that is, that he would not have made the admissions to the prejudice
it must be shown to exist as clearly and convincing as the of his title or possession, unless they were true.
commission of the offense itself.
Q: In what cases are the acts, declaration or omission of a
Q: What is the reason for the rule admitting in evidence the predecessor in interest relating to the property in question,
act or declaration of a conspirator against his co- made subsequent to the transfer of the property, admissible
conspirator? against his privies?
A: It is founded on the principles which apply to agencies and A:

partnerships. a. Where the declarations are made in the presence of the
transferee, and he acquiesces in the statements, or
Q: What is the scope of the rule? asserts no rights where he ought to speak
b. Where there has been a prima facie case of fraud
A: This applies only to extra-judicial acts or declaration but established, as where the thing granted has a corpus and
not to testimony given on the stand at the trial where the the possession of the thing after the sale or transfer,
defendant has the opportunity to cross-examine the remains with the seller or transferor,
defendant. c. Where the evidence establishes a continuing conspiracy
to defraud, which conspiracy exists between the vendor
Q: What are the requisites for the admissibility in evidence and the vendee.
of the acts and declarations of a conspirator against his co-
conspirator?
A: Sec. 32. Admission by silence

1. That the conspiracy be first proved by evidence other
than the admission itself Q: What is the reason for the admissibility in evidence of the
2. That the admission relates to the common object silence or omission to act by the party with reference to the
3. That it has been made while the declarant was engaged act or declaration of another in the presence and within the
in carrying out the conspiracy observation of the former?
A: It rests on the nature of our nature, which leads us to resist

an unfounded demand. The common sense of mankind is
Section 31. Admission by privies expressed in the popular phrase silence gives consent which
is but another form of expressing the maxim: Qui tacet
Q: Define privity and privies? consentire videtur.
A: Privity means mutual succession of relationship to the Q: What is the scope of the applicability of the rule?
same rights of property.
A: It is applicable in criminal as well as in civil cases.
Privies are those who have mutual or successive relationship
to the same right of property or subject matter, such as Q: What are the requisites for the rule?
personal representatives, heirs, devisees, legatees, assigns,
A:
NOTES ON EVIDENCE
1. Hearing and understanding of the statement by the
party Q: Is a confession obtained from a person who has not been
2. Opportunity and necessity of denying the informed of his right to silence and counsel admisisble in
statements evidence? Does the inclusionary rule include admission?
3. Statement must refer to a matter affecting his right
A: A confession obtained from a person who has not been
4. Facts are within the knowledge of the party informed of his right to silence and counsel is inadmissible.
5. Facts admitted or the inference to be drawn from
his silence would be material to the issue The exclusionary rule laid down by the new provision is
broader than the exclusion merely of blatantly coerced
Q: In what cases may an admission not be implied confessions. It covers every form of evidence obtained in
from the silence of a party? violation of Sec. 12 and Sec. 17, every form of confession
tainted with involuntariness.
A:
1. Custodial investigation Q: Is an extra-judicial confession at the poluce headquarters
by the accused without the assistance of his counsel but
2. Failure to answer was caused by constraint or the
ratified by him under oath with the assistance of counsel at
party was not aware at the time that he had an the office of the provincial fiscal admissible in evidence?
interest, or believed that he had no interest, or was
only indirectly affected A: Yes, the accused may be deemed to have in effect ratified
before the fiscal and with the assistance of the counsel, the
extra-judicial confession and waiver of the right to counsel
which he had earlier signed without the presence of counsel
Section 33. Confession in the police station.
Q: What are the rights of a person under custodial Q: May the right to be given these warnings be waived?
investigation?
A: No. It is the right to remain silent and right to counsel after
A: the suspect has been given warnings which can be waived.
Section 12 of Article 3 of 1987 Constitution Even then the waiver is required to be in writing and in the
presence of counsel.
Any person under investigation for the commission of an offense
shall have the right to be informed of his right to remain silent and Q: What is confession?
to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must A: It is an acknowledgment in express words, by the accused
be provided with one. These rights cannot be waived except in
in a criminal case, of the truth of the offense charged, or of
writing and in the presence of counsel.
some essential parts thereof.
No torture, force, violence, threat, intimidation, or any other means
which vitiate the free will shall be used against him. Secret detention It is the declaration of an accused acknowledging his guilt of
places, solitary, incommunicado, or other similar forms of detention the offense charged or any offense necessarily included
are prohibited. therein.
Any confession or admission obtained in violation of this or Section Q: Is there an implied admission?
17 hereof shall be inadmissible in evidence against him.
A: None. It is always direct and positive acknowlegment of
The law shall provide for penal and civil sanctions for violations of
this Section as well as compensation to the rehabilitation of victims the guilt. The conduct of an accused showing his
of torture or similar practices, and their families. consciousness of guilt is not a direct or poisitive statement of
guilt.
Q: What is meant by custodial investigation?
Q: Distingish confession from admission.
A: The Miranda requirements apply only when a person is in
custody and is being questioned or interrogated. A:
By custodial investigation it means questioning initiated by ADMISSION CONFESSION

law enforcement officers after a person has been taken into Usually applied in criminal Declaration made at any time
custody or otherwise deprived of his freedom of action in any cases to statements of fact by a person, voluntarily and
significant way. by the accused which do not without compulsion or

NOTES ON EVIDENCE
directly involve an inducement, stating or A: The rule is settled that a confession is presumed to be
acknowledgment of the guilt acknowledging that he had voluntary and freely made and that the confessant, who
of the accused or of the committed or participated in bears the burden of proving otherwise, must duly
criminal intent to commit the the admission of a crime. substantiate his claim that the admissions in his affidavit are
offense with which he is untrue and unwillingly executed.
charged.
NOTE: However, even if the confession of an accused is
Q: Distinguish judicial from extra-judicial confession. gospel truth, if it was made without the assistance of counsel,
it is admissible in evidence regardless of the absence of
A: coercion or even if it had been voluntarily given. The same
would necessarily apply to a waiver of the right to counsel
JUDICIAL EXTRA-JUDICIAL not made in the presence of counsel.
Those made in conformity to Those which are made by a
law before a committing party elsewhere than before Q: When is a confession regarded as voluntary?
magistrate or in court in the a magistrate or in court
course of legal proceedings A: It means the accused speaks of his free will and accord,
May be oral, written or partly without inducement of any kind, and with full and complete
written knowledge of the nature and consequences of the
confession, and when the speaking is so free from influences
A written confession need not be in any particular form. It affecting the will of the accused, at the time the confession
may be in narrative form or in the form of questions and was made, that it renders it admissible in evidence against
answers. him.
Q: What are the reasons for the admissibility og a It may be inferred from its language.
confession in evidence?
Voluntary does not mean spontaneous and for confession to
A: If it is made freely and voluntarily, the confession be admissible it is required only that the accused act on his
constitutes an evidence of a higher order, since it is own judgment, uninfluenced by methods denounced by law.
supported by the strong presumption that no person of
normal mind will deliberately and knowingly confess himself Q: Must confession be spontaneous in order to be
to be the perpetrator of a crime unless prompetd by truth admissible?
and conscience.
A: No. A confession will not be excluded just because it is not
Q: May a confession be written in a language which the the spontaneous statement of the accused. There are cases
accused did not speak or understand? of confessions which are voluntary but not spontaneous.
A: Yes. A confession may be written in a language which the A confession procured by the use of persistent questioning or
accused did not speak or understand provided it has been inquisitorial examination is not spontaneous but is voluntary
translated to him. and therefore admissible. Such mode of investigation is often
the only means or discovering truth.
Q: Is it necessary for a confession or admission to be under
oath in order to render it admissible in evidence? Q: Is confession obtained by leading questions admissible?
A: There is no provision of law which prescribes that either A: A confession procured by leading questions, or questions
confessions of admissions are not competent evidence unless assuming the guilt of the accused, is admissible, for in such
made under oath. It is the fact that they were made by the cases it cannot be said that the confession was obtained by
accused and against his own interest which gives them their force, intimidaiton or threats.
evidentiart value, and provided the fact is established it does
not matter whether they are made unde oath or not. Reasons for rejecting involuntary confessions
Q: What is the basic test for validity of a confession? Q: What are the reasons for rejecting involuntary
confessions?
A: The basic test is: was it voluntary and freely made.
A:
Q: May voluntariness of a confession be presumed? 1. By some on the ground that a confession so obtained is
unreliable

NOTES ON EVIDENCE
2. By some on the grounds of humanitarian principles which which would naturally ensue from being subjected to such
abhor all forms of torture or unfairness toward the violence or intimidation.
accused in criminal proceedings.
Q: Is it necessary that the force or violence be inflicted upon
Q: Will an appeal to a mans religious feelings which induces the defendant in order to vitiate his confession?
him to confess his guilt invalidate his confession?
A: It is not necessary that the force or intimidation be
A: No. An appeal to a mans religious feelings which induces inflicted directly upon defendant in order to vitiate his
him to confess his guilt does not invalidate his confession, as confession. If within his hearing and almost in his immediate
such a consideration is not likely to render his confession presence, physical violence is inflicted upon his co-defendant,
false. An appeal to mans conscience to speak the truth his confession made thereafter should be rejected. The
stands on the same footing. physical violence inflicted upon his co-defendant is as much
an intimidation to him, as much as a warning to him, of what
Q: Are confessions induced by spiritual exhortation he might expect under like circumstances.
admissible?
Q: When is a confession which is procured through a
A: Yes. Confessions made under the influence of spiritual promise of immunity by a person in authority, or is
exhortation are admissible. Such spiritual convictions, or supposed by the accused to have power and opportunity to
spiritual exhortations, seem from the nature of religion, the fulfill the promise, admissible against the person making the
most likely of all motives to produce truth. confession?
Q: Are confessions procured by promises made by a public A: When threat or promise is made by, or in the presence of,
officer who stated to the defendant that if he makes the a person in authority, who has, or is supposed by the accused
confession, he, the public officer would see to it that to have, power and opportunity to fulfill the threat or
nothing will happen to the defendant, admissible? promise, the confession of the accused will be presumed to
be the exclusive effect of inducement and therefore
A: No. The confessions were held inadmissible. inadmissible.
Q: Are confessionsn induced by trick or fraud asmissible? There is however, an exception to the rule. Where one of
several co-defendants agrees with the prosecuting attorney
A: Yes. Confessionsn induced by trick or fraud asmissible, for to be one of the states witness, and makes a confession on a
the use of such means does not tend to induce the making of promise of immunity by the prosecuting attorney, but later
a false confession. Thus, a confession is not inadmissible retracts and fails to keep his part of the agreement, his
because it was obtained by a detective who, in connivance confession made under such promise may be used against
with the prosecuting officer, was arrested on a fictitious him.
chrage of forgery, and locked in a cell, the defendant, in the
guise of a friend, obtained from him the confession. Q: Will the threats or promises made by a private person
upon the accused in order to obtain a confession render the
Q: Are confessions of intoxicated persons admissible? confession inadmissible?
A: A confession made by an accused while intoxicated is A: No.

admissible, if he was physically able to recollect the facts and
to state them truly. Q: May a confession be received in evidence by the
testimony of a witness who learned its purport through an
Q: Where violence and intimidation has been used to extort interpreter?
a confession from an accused, is the fact that sometime
thereafter ut appears that the confession has been made A: No. A confession cannot be received in evidence by the
freely and voluntarily sufficient to justify the admission of testimony of a witness who, although present when it was
such confession? made, learned its purport through an interpreter. Such
testimony is hearsay evidence and therefore inadmissible.
A: Where violence and intimidation has been used to extort a
confession from an accused, the mere fact that sometime Q: Is a confession of an accused admissible against his co-
thereafter ut appears that the confession has been made accused?
freely and voluntarily sufficient to justify the admission of
such confession, unless it is proved beyond reasonable doubt A: A confession made by an accused is admissible only against
that the mind of the accused was wholly relieved of the fear him but not against his co-accused as to whom said

NOTES ON EVIDENCE
confession is given. Said confession is hearsay evidence, for b. The confession be made after, not before, the
he had no opportunity to cross-examine the former. formation of such unlawful agreement and before,
not after, it has come to an end
Q: When is the confession of an accused admissible against c. The confession be made in furtherance of the
his co-accused? objects of the conspiracy
A: NOTE: A confession made before the formation of the

G.R.: Confession of an accused may be given in evidence conspiracy or after it had been brought to an end, constitutes
against him and incompetent against his co-accused evidence only against the one who made it.
XPNS: Q: Will the fact that the accused made several conflicting
1. When several accused are tried together, confession confessions render such confessions inadmissible?
made by one of them during the trial implicating the
others is evidence against the latter A: No. If such argument will be followed, in order to dispense
2. When one of the defendant is discharged from the with the damaging confession, it would only be necessary for
information and testifies as a witness for the the accused to tell another story not in harmony with the
prosecution, the confession made in the course of his confession to secure acquittal.
testimony is admissible against his co-defendants, if
corroborated by undisputable proof Q: May the court in admitting the confession as evidence
3. If a defendant, after having been apprised of the against the accused consider only those portion unfavorable
confession had been made by several persons charged to the accused and disregard those favorable to him?
with an offense and there could have been no collusion
with reference to said several confessions, the facts that A: No. The whole confession must be put in evidence by the
the statements therein are in all material respects, prosecuting officer.
identical, is confirmatory of the confession of the co-
defendant and is admissible against his other co- Q: Is the rule that a confession should be admitted and
defendants. This is commonly known as interlocking considered in its entirety, whether a part thereof be
confession. favorable or unfavorable to the accused absolute in all
4. A statement made by one defendant after his arrest, in cases?
the presence of his co-defendant, confessing his guilt and
implicating his co-defendant who failed to contradict or A: No.
deny it, inadmissible against his co-defendant
5. When the confession is a conspirator and made after Q: May the testimony of an escaped convict relating to an
conspiracy and in furtherance of its object, the same is alleged confession made to him by the accused admitting
admissible against his co-conspirator the commission of the crime, be the basis of the conviction
6. The confession of one conspirator made after the of the accused?
termination of a conspiracy, is admissible against his co-
conspirator if made in his presence and assented to by A: The testimony of an escaoed convict relative to an alleged
him, or admitted its truth or failed to contradict or deny confession made to him by the accused admitting the
it. commission of the crime, comes from a polluted source and is
without merit.
NOTE: Extreme caution should be exercised by the courts in
dealing with the confession of an accused which implicates Q: Is an extrajudicial confession alone sufficient to support a
his co-defendants. conviction?
JUDICIAL EXTRA-JUDICIAL A: No. Extra-judicial confession, including those made in a

His confession is thrown wide Deprives the other accused preliminary investigation will not be sufficient to support a
open for cross-examination of the opportunity to cross- conviction unless corroborated by proof of corpus delicti. The
and rebuttal examine the confessant rule is intended to guard against conviction upon false
confessions of guilt.
Q: When is confession of a conspirator admissible against
his co-conspirator? Weight and sufficiency of a judicial confession
A: It requires that: Q: What is the weight and sufficiency of a judicial

a. The conspiracy be first proved by evidence other confession?
than the confession

NOTES ON EVIDENCE
A: The court must assure itself that he is fully aware of the Q: Give examples of prior acts the proof of which is
implications if said plea and that, to this end, it may or should admissible to show quality knowledge?
take some evidence to be reasonably certain that no justice is
doen to him. A: Evidence which tends to show scienter or such knowledge
on the part of the accused as is necessary to constitute his act
Q: What is the weight of an extra-judicial confession? a crime is admissible.
A: A confession if freely and voluntarily made, is deserving of If B is accused of theft, the fact that A has been seen on a
the highest credit, because it is presumed to flow from the former occasion surreptitiously opening the safe would be
highest sense of guilt, and therefore, it is admitted as proof of admissible to show his knowledge.
the crime to which it refers.
Q: Give examples of prior acts the proof of which is
A confession is admissible as evidence of a high order. admissible to show identity.
Q: May an objection to the admissibility of a confession be A: On a charge of robbery, the window having been raised by
waived? a knife, and a fragment of the blade being left in the window,
the accuseds later possession of such a knife is evidential. He
A: For the protection of their clients, lawyers should present may explain that he found it in the street after the burglary
timely objections; otherwise, evidence which should and a question of the identity of the fragment with his knife
otherwise be objectionable, are admitted and given due may arise.
weight and credit.
Q: Give examples of prior acts the proof of which is
A confession offered in evidence and not objected to by the admissible to show plan, design, or scheme.
defendant is regarded as prima facie voluntary and therefore,
admissible as evidence. A: Evidence of other crimes is competent in a criminal trial to
prove the specific crime charged when it tends to establish a
common scheme, plan or design or system embracing the
commission of 2 or more crimes so related to each other that
Section 34. Similar acts as evidence proof of one tends to establish the others, notwithstanding
the general rule excluding evidence which shows or tends to
Q: What is the reason for the rule? show that the accused has committed another crime wholly
independent of that for which he is on trial.
A: It is clear that evidence of ther crimes compels the
defendant to meet charges of which the indictment gives him Q: Is the rule applicable in civil cases?
no information confuses him in his defense, raises a variety of
issue, and thus diverts the attention of the court from the A: In civil cases the rule as to proof of commission of an act
charge immediately before it. The rule may be said to be an by showing the commission of similar acts by the same
application of the principle that the evidence must be person at other times and under other circumstances is the
confined to the point in issue on the case on trial. same as in criminal prosecution.
Evidence of collateral offenses must not be received as

substantive evidence of the offenses on trial.
Section 35. Unaccepted offer
Q: Does the rule recognize any exception?
Q: What is the scope of the rule?
A: The rule recognizes this exception by providing that
evidence that one did or did not do a certain thing at one A:
time is admissible for the purpose of proving a specific intent 1. Payment of sum of money
or knowledge, identity, plan, system or scheme, habit, 2. Delivery of document
customs or usage and the like. 3. Delivery of personal property
Q: Give examples of prior acts the proof of which is The offer to pay or deliver must be in writing. In such offer be
admissible to show intent? rejected, without valid cause, the money, document or
property need not be actually produced, because the rejected
A: If D is charged with larceny, and he sustituted a cheap offer is equivalent to its actual production or tender thereof.
dimond ring for a valuable one.
Q: What is the civil code provision on unaccepted offer?

NOTES ON EVIDENCE
investigate the collision, which report states that the
A: defendant was negligent. Is the report admissible?
Art. 1256. If the creditor to whom tender of payment has been
made refuses without just cause to accept it, the debtor shall be A: No, for in the absence of a declaratory statute, the report
released from responsibility by the consignation of the thing or sum of the committee could not be considered as competent
due.
evidence to prove negligence of the defendant. It was no
Consignation alone shall produce the same effect in the following
more that the opinion of several persons who had examined
cases:
into the matter but were not called as witnesses, not sworn,
(1) When the creditor is absent or unknown, or does not appear at and whom the defendant did not have the opportinity to
the place of payment; cross-examine.
(2) When he is incapacitated to receive the payment at the time it is
due; Q: Are newspaper accounts and bulletins admissible in
(3) When, without just cause, he refuses to give a receipt; evidence?
(4) When two or more persons claim the same right to collect;
(5) When the title of the obligation has been lost. (1176a)
A: No, for the fact that hearsay is printed, no matter in what
form, does not alter the application of the rule. A newspaper
NOTE: Tender of payment must precede consignation, and account of an event or an occurrence had been characterized
only when such tender is refused without valid cause will tge as hearsay evidence, twice removed.
consignation of the thing or sum due release the debtor from
his obligation. But this does not mean that for the judicial Q: What may be the form of hearsay evidence?
authority to accept consignation, it has to examine whether
or not the creditor had a just reason for refusing the tender. A: It may be verbal or in writing. The rule against the
The refusal of the creditor of the tender of payment is admissibility of hearsay is so sweeping that it necessarily
enough. includes within the scope written statements which fall
within the general definition of hearsay.
Q: How may the act that an evidence offered is not known

Section 36. Testimony generally confined to personal by the witness of his own knowledge and therefore hearsay
knowledge; hearsay excluded be determined?
Q: Define hearsay evidence. A: The fact may be determined:

a. From the form of the question or answer itself
A: Evidence is hearsay when its probative force depends in b. From the context of the evidence in chief
whole or in part on the competency and credibility of some c. By a cross-examination of the witness showing that
persons other than the witness by whom it is sought to the testimony given on direct examination was
produce it. based on hearsay.
Evidence not of what the witness knows himself but what he Q: Give some examples of questions the answer to which
has heard from others. will be hearsay?
Q: What are the reasons why hearsay evidence is A: Where the fact be proved is the truth of the facts
inadmissible? contained in the declaration made by a third person to the
witness, such questions as what did you hear him tell you or
A: what did he tell you.
1. No personal knowledge (Sec. 36, Rule 130)
2. Testimony in court under oath (Sec. 1, Rule 132) Q: Is the testimony which contains the clause so far as he
3. Cross-examination knew or understand, hearsay?
4. Demurrer
A: Yes.
Q: What is the purpose of the trial?
Q: In an answer to a question, a witness stated I afterward
A: To arrive at the probable or judicial truth (and not absolute find out that a letter had been written by another. Is the
truth). testimony admissible?
Q: In an action to recover damages due to collision of A: No, for the language of the answer implies that the fact
vessels, the plaintiff offered in evidence a report of the was founded on hearsay and not on the personal knowledge
committee appointed by the Collector of customs to of the witness.

NOTES ON EVIDENCE
1. By common consent of the parties endeavoring to
Q: A witness testified that he could neither read nor write. Is converse, or
his statement as to what a written notice contained 2. By the party against whom the statements of the
hearsay? interpreter were offered in evidence.
A: Yes. Q: May objection to the admission of a hearsay evidence be

raised for the first time on appeal?
Q: Where a witness testifies to a fact, what is the
presumption as to the basis of his testimony? A: No.
A: The presumption is, in the absence of any showing to the Q: How should hearsay evidence admitted without
contrary, that he is testifying of his own knowledge. objection be weighed?
Q: When is the hearsay rule not applicable to the testimony A: Some hold that when hearsay has been admitted without
of a witness regarding a statement made by a third person? objection, the same may be considered as any other properly
admitted testimony. Others maintain that it is entitled to no
A: Where regardless of the truth or the falsity of a statement, more consideration than if it had been excluded.
the fact that it has been made is relevant, the hearsay rule
does not apply, but the statement must be shown. Multiple hearsay
NOTE: The independently relevant statements may be Q: What is multiple hearsay?

grouped into 2 classes:
a. Those statements which are the very facts in issue A: There is no good reason why a hearsay delcaration which
b. Those statements which are circumstantial evidence within itself contains a hearsay statement should not be
of the facts in issue admissible to prove the truth of the included statement, if
both the statement and the included statement meet the
The statements from which the facts in issue may be inferred tests of an exception to the hearsay rule.
may be testified to by witness without violating the hearsay
rule. Of this kind are: This situation frequently exists where hearsay is relied to
1. Statements of a person showing his state of mind, that is, prove family history.
his mental conditon, knowledge, belief, intention, ill-will
or other emotion Exceptions to hearsay rule
2. Statements of a person which show his physical
condition as illness and the like Q: What are the exceptions to the hearsay rule?
3. Statements of a person from which an inference may be
made as to the state of mind of another, that is, A:
knowledge, belief, motive, good or bad faith, etc. of the 1. Dying declaration
latter 2. Declaration against interest
4. Statements which may identify the date, place, and 3. Act or declaration about pedigree
person in question 4. Family reputation or tradition regarding pedigree
5. Statements showing the lack of credibility of a witness 5. Common reputation
6. Part of the res gestae
Q: When a statement is introduced for the purpose of 7. Entries in the course of business
establishing the fact that a party relied and acted upon 8. Entries in official records
thereon, is it objectionable? 9. Commercial lists and the like
10. Learned treaties
A: No. 11. Testimony or disposition at a former proceeding
Q: Are statements made through an interpreter hearsay?
A: No, because both the original witness and the interpreter

are under oath and subject to cross-examination.
Q: What are the exceptions?
A: Cases where the interepreter had been selected

NOTES ON EVIDENCE
Section 37. Dying Declarations A: Under the old rule, a dying declaration may be received
only in a criminal case, such declaration is now admissible in
Q: What is a dying declaration? any case wherein his death is the subject of the inquiry, as
evidence of the cause and surrounding circumstance of such
A: It is a statement made by the victim of homicide, referring death.
to the material facts which concern the cause and
circumstances of the killing and which is uttered under a fixed The old rule resulted from the belief that such evidence was
belief that death is impending and is certain to follow comparatively unreliable and thus should be used only where
immediately, or in a very short time, without an opportunity absolutely necessary. Accordingly, so exceptional and
of retraction and in the absence of all hopes of recovery. dangerous a class of evidence should be restricted in its use
and application to the public necessity of preserving the lives
They are statements made by a person after the mortal of the community by bringing manslayers to justice.
wound has been inflicted, under a belief that death is certain,
stating the facts concerning the cause of, and the The new rule is based on the observation that if the evidence
circumstances surrounding the homicide. is reliable enough in homicide cases where it can do the most
harm, if unreliable, then certainly ought to be admissible in
Q: State the reasons for their admissibility as an exception civil cases as well. The stakes do not involve possibility
to the hearsay rule? imprisonment.
A: Q: What are the requisites for the admissibility of dying

declarations?
1. Necessity; and
2. Trustworthiness A:
Necessity 1. The death be imminent and that declarant be

conscious of that fact;
The declarants death renders impossible his taking the 2. That the primary facts which bring the declaration
witness stand; and it often happens that no other equally within its scope be made to appear;
satisfactory proof of the crime. To prevent failure of justice 3. That the declaration relates to the facts or
also. circumstances pertaining to the fatal injury or death;
4. That declarant would have been competent to
Trustworthiness testify had he survived;
A declaration made in extremity; when every motive to The death be imminent and that declarant be conscious of
falsehood is silenced, and the mind is induced by the most that fact
powerful consideration to speak the truth. A situation so
solemn and awful us considered by the law as creating an A fixed belief in inevitable and imminent death must be
obligation equal to that which is imposed by an oath entered by the declarant. It is not the rapid succession of
administered in court. death which renders the declaration admissible. It is not
necessary that approaching death be presaged (foretold) by
Q: State the purpose for their admissibility? the personal feelings of the deceased.
A: It is to identify the accused and the deceased, to show the Q: What is the test?
cause of the death and the circumstances under which the
assault was made upon him. A: It is whether or not the declarant has abandoned hope of
living and looked on death as certainly impending. Although
Q: May it be objected on the ground that it violates the that state of mind is brought by statement made to him y
constitutional right of the accused to confront and cross- nurses or physicians.
examine the witness against him?
Q: How such consciousness of death shown?
A: No because the person who testifies to the dying
declaration is the witness against the accused and the A:
witness with whom the accused is entitled to be confronted.
The declarant is not testifying against him. 1. By words or statements of the declarant himself;
2. Inferred from the nature and extend of the wound
Q: Are they admissible in civil cases? inflicted;

NOTES ON EVIDENCE
3. Conduct at the time; and subject of his statement, but that his statement of any given
4. Communications made to him by his medical adviser fact should be a full expression of all that he intended to say
or others. as conveying his meaning in respect of such fact.
Note: Fact that a clergy man had administered to him the Thus, if an interruption (by death or by an intruder) cuts short
last rites of the church also show that he was under the a statement which thus remains clearly less than that which
sense of approaching death. the dying person wished to make, the fragmentary statement
is not receivable, because the intended whole is not there,
He must believe that there is no possibility of his recovery or and the whole might be of a very different effect from that of
his statement will be incompetent. the fragment.
That the primary facts which bring the declaration within its Q: What is the reason upon which incomplete declarations
scope be made to appear are generally excluded or if admitted accorded little or no
weight?
A dying declaration is not invalid if such statement is made at
the conclusion of the deceaseds declaration although the A: It is because the declarant was prevented from saying all
correct practice is that the statement the he is very seriously that he wished to say, what he did say might have been
wounded and that he believes that he would not survive be qualified by the statements which he was prevented from
made at the beginning of his decoration. making.
That the declaration relates to the facts or circumstances Example of dying declaration: Kung akoy bibigyan pa ng
pertaining to the fatal injury or death Diyos ng pangalawang byhay, hindi maaaring hindi
mananagot si Bebot at Frankie.
The declaration must relate to the cause of death which
includes not only the facts of assault itself, and the facts Note: The fact that he died not immediately, but 5 days
surrounding it, but also matters both before and after the afterwards, does not affect its admissibility.
assault having a direct causal connection with it.
Oh Lord, they have killed me
Examples: - The accusation was made to the faces of the
defendants who were the only ones at the spot of
1. Nature of injury; the killing, and the exclamations could have been
2. Cause of death; made only to them.
3. History of the trouble between the declarant and the
assailants and the motive for killing. An ante mortem statement made under the
requisite conditions by the victim of a homicide is admissible
That declarant would have been competent to testify had he in a trial against its author but such is admissible only in so far
survived as it relates to the homicide itself. Thus, statements which
relates to past history, its contents are inadmissible and to
Where it is shown that the declarant would not have been a that ex tent the court must exclude it from consideration.
competent witness if he had lived, the proferred declarations
will not be received. Like when the declarant was insane or Q: What if the declarant had a slight expectation or hope of
incapable of understanding his statements by reason of recovery, but death actually ensued?
partial unconsciousness, or a child who was too young to be a
competent witness. A: They are inadmissible in evidence however slight the
expectation of hope of recovery.
The declarations must relate to such facts only as the
declarant would have been competent to testify to if sworn Q: What if the declaration was made at the time when the
as a witness in the case. Thus, statements which consist of deceased did not know or firmly believe that he was at the
hearsay or opinions or conclusions of declarant are not point of death, but contents of which the deceased ratified a
admidssible. week later when he was near death as a result of the
wound?
Admissibility of dying declarations as affected by their
incompleteness A: Although they are inadmissible as an ante mortem
declartation (in as much as when it was made the deceased
A dying declaration to be admissible must be complete in did not know nor firmly believe that he was at the point of
itself. Nonetheless, it does not mean that the declarant must death) yet having ratified a week later when he was near
recite everything that constituted the res gestae of the

NOTES ON EVIDENCE
death, such declaration is admissible as part of that which he ejaculation, a mere formal statement, or answers to
made ante mortem. questions put by the person to whom the declaration is
made.
Note: A statement made under circumstances which would
not render it admissible as a dying declaration becomes A dying declaration written by a third person in substantially
admissible as such, if approved or repeated by the declarant the language used by the decedent, and which was read over
after he had abandoned al hope of recovery. and approved and signed by the declarant, is admissible,
though not in his exact language.
Q: Does the fact that death did not ensue until a
considerable time after the dying declarations were made, Q: How is a dying declaration introduced in evidence by the
or the fact that on other days, he may have expressed slight prosecution?
hope of recovery, render inadmissible the dying
declarations? A: A proper predicate must be laid for the introduction of the
dying declaration. The proper predicate is the proof that the
A: No. declarant has made his declaration under a consciousness of
impending death. It is generally a sufficient predicate to show
Note: While the words Opo, siguro po may mean that the that he was about to die by showing that the surrounding
declarant would not surely die, they may also mean that he circumstances were of such character as to satisfy the court
was sure or certain. At any rate, as they could mean both that the declarant believed that he would die.
things, the Court believes that the declarant signified that we
was going to die. Also, the Court may take into consideration the bodily
condition of the declarant, his wounds, his conduct, his
It is not necessary to the validity or admissibility of dying language, and his statements, all facts from which a
declarations that the declarant expressly states that he has conclusion may be deduced of his consciousness of
lost all hope of recovery; it is sufficient that the approaching dissolution at the time.
circumstances are such as to lead inevitably to the conclusion
that at the time the declaration was made, the declarant did If the dying declaration has been made orally, it may be
not expect to survive from the injury from which he actually proved by the testimony of the witness who heard the same
died. or to whom it was made.
The declarants statements that he was dying and that only Q: How is a dying declaration introduced by the accused?
the intervention of Providence could save him; and the fact
that death supervened with a comparatively short time, all A: There is no reason why a declarant is not entitled to invoke
point unmistakably to the declarants consciousness of as evidence the dying declarations of the deceased. If such
impending dissolution. declarations are competent evidence to prove facts, it does
not matter if such proof tends to acquit the defendant, rather
Q: Is a declaration in articulo mortis, made by a child only 4 than convict him.
years old, admissible on the trial?
Q: May a dying declaration be impeached?
A: No since the child of such tender years cannot have the
idea of a future state which is necessary to make such A: Yes. It may be shown that the declarant has been
declaration admissible. convicted of a crime involving moral turpitude, for the
purpose of impeaching the credibility of his dying declaration.
Note: The incompetency of the deceased as a witness, from It may also be shown that the declarant had made
mental debility, scarcely admits of doubt. statements contradictory to his dying declaration as to the
cause and circumstances of the inquiry causing his death. It
The circumstance that the declarant is a pagan and does not may be shown that the dying declaration was prompted by
believe in a possible future life or in the doctrine of future feelings of hatred or revenge towards the accused.
reward and punishment, does not render declarants dying
declaration inadmissible in a criminal prosecution. Such only Q: What circumstances should be taken into consideration
affects the weight of the statement but not its admissibility. in determining the weight to be given to dying declarations?
Q: What may be the form of the dying declaration? A: The credibility and weight of the declaration should be
determined by the Court, by the same rules that are used in
A: To be admissible, a dying declaration need not have been testing the weight and credibility of a living witness
made in any particular form. A declaration may be a testimony.
communication by means of signs, an oral statement or

NOTES ON EVIDENCE
The circumstances that should be taken into consideration in made the admission
determining the weight to be given to dying declarations are:
Refers to a declaration May be used although the
1. Trustworthiness of the reporters; against interest of a admitter is still alive
2. Capacity of the declarant at the time to accurately deceased person
remember the past; Admissible against interest is May be used only against the
3. His disposition to tell what he remembers; and admissible against third admitter and those identified
4. Such circumstance as may be attendant as the fact person with him in legal interest
that the declarations were the result of questions
propounded by an attorney, the presence only of Q: Distinguish between declaration against interest from
friends and prosecuting officers, the lack of belief of self-serving declaration.
the declarant in a future life, rewards and
punishment, the fact that the statements in the A:
dying declarations are contrary to facts satisfactorily
proven by other evidence, and the fact that the Declaration against interest Self-serving declaration
declarant might have been influenced by the passion Admissible notwithstanding A statement favorable to the
of anger and vengeance, or jealousy. its hearsay character, only if interest of the declarant. It
the declarant has died, is not admissible.
becomes insancee, or for
some other reason is not
Section 38. Declaration against interest available as a witness.
Q: What are the reasons for the admissibility of the Q: What is the scope of the rule?
declarations against interest?
A: It shall include all kinds of interestpecuniary, proprietary,
A: moral or penal.
1. Necessity Q: What are the requisites for its admissibility?

2. Trustworthiness
A:
Necessity
1. The declarant must not be available to testify;
Such declaration, act or omission is frequently the only mode 2. The declaration must concern a fact cognizable by
of proof available. declarant; and
3. The circumstances must render it improbable that a
Trustworthiness motive to falsify existed.
The presumption that men will neither falsify nor commit The declarant must not be available to testify
mistakes when such falsehood or mistake would be
prejudicial to their own pecuniary interest, and because of Q: Under what instances is a declarant not available to
the fact that any fraudulent motive for making the statement testify?
may be shown.
A:
It is admissible although the declarant is neither party nor in
privity with a party to the action. 1. He is dead;
2. Mentally incapacitated;
Q: Distinguish between declaration against interest from 3. Physically incompetent; and
admission. 4. As where from advanced age, other irremediable
cause, he has lost the power of speech.
A:
Note: Declarations against interest are not admissible if the
Declaration of a deceased Admission declarant is available to testify as a witness. If he is available
person against his interest and testifies, his statement against interest which he now
An exception to the rule that Not necessarily against the denies would be admissible against him as prior inconsistent
an admission is not interest of the person who statement is some instances.
necessarily against the made the admission
interest of the person who

NOTES ON EVIDENCE
The declaration must concern a fact cognizable by declarant Q: What is moral obligation?
It is essential to relevancy in the declaration that the
declarant should have adequate knowledge with respect to A: It is a duty which one owes, and which he ought to
the subject covered by his statement. perform, but which he is not legally bound to fulfill.
The rule requires that it should appear that the person had An example of moral interest is a statement constituting an
competent knowledge; that is, was cognizant of the fact, or acknowledgement of a natural child is usually made at the
that it was his duty to know. If he were not so situated as to hour of repentance.
make it his duty to know, an inference that might have been
known, or very probably would have known, will not suffice. Declarations against penal interest of the declarant
The circumstances must render it improbable that a motive Example: A declaration that it was the victim who fought the
to falsify existed. accused and that there was nobody present during the fight.
There should be a circumstantial guaranty of the Q: What may be the form of declaration against interest?
trustworthiness of the declaration. Where there exists both a
self-serving and a self-disserving interest, the latter must A: It may be oral or written. These are matters which affect
preponderate over the self-serving interest. the weight rather than the admissibility of the evidence.
Q: Who is a reasonable man?
A: It denotes a person exercising those qualities of attention, Section 39. Act or declaration about pedigree
knowledge, intelligence and judgment which society requires
of its members for the protection of their interests and in the Q: What is pedigree?
interest of others.
A: It is the history of family descent which is transmitted from
Declarations against pecuniary interest of the declarant one generation to another by both oral and written
declarations and by traditions.
They are those which may bar in whole or in part the
declarants money claim or which may give rise to a monetary Q: What does it include?
claim against him as when he acknowledges that his credit is
already paid or that he is indebted to some person. A: It includes relationship, family genealogy (family tree),
birth, marriage, death, dates when and the places where
Examples: these facts occurred, and the names of the relatives. It also
includes paternity and legitimacy.
1. Statements which evidenced indebtedness;
2. Contractual obligation; Q: What are the reasons for their admissibility?
3. Tort liability; and
4. Statements of receipt of money on behalf of A:
another.
1. Necessity and
Declarations against proprietary interest of the declarant 2. Circumstantial trustworthiness
They are those which are at variance with declarants Necessity

property rights as when he, being in possession of a piece of
land or chattel, declares that he is not the owner thereof, or In inquiries regarding these matters, facts must be proved
that he is holding it as a mere trustee, or that he has already which occurred many years before the trial, and were known
sold it, and the like. to but few persons, it is obvious that the strict enforcement
in such cases of the rules against hearsay evidence would
They are declarations in derogation of an apparent property frequently occasion a failure of justice.
interest.
Circumstantial trustworthiness
It is an act or declaration of a deceased person, done or made
against his interests in respect to his real property. For there exists the probability that the natural effusions of
those who talk over family affairs, when no special reason for
Declarations against moral interest of the declarant his bias or passion exists, are fairly trustworthy.

NOTES ON EVIDENCE
Accordingly, the Courts will not receive declarations made by
Q: What are the requisites for the admissibility of intimate friends or neighbors, or even by persons living in the
declarations regarding pedigree? family or by servants however trustworthy or however long
employed in the family.
A:
The declaration of the husband regarding the pedigree of his
1. Declarant is dead or unable to testify; wife and his wifes relatives, and vice versa, is admissible.
2. Necessity that pedigree be in issue; But declarations of the husbands relatives regarding the
3. Declarant must be a relative of the person whose pedigree of the wifes relatives, or vice versa, are not
pedigree is in question; admissible.
4. Declaration must be made before the controversy
occurred; Yet, declarations of the father or sister of a wife with respect
5. The relationship between the declarant and the to matters of pedigree of the husbands family have been
person whose pedigree is in question must be shown held to be incompetent.
by evidence other than such act or declaration.
While it is usually considered that in order to render a
Declarant is dead or unable to testify declaration as to pedigree admissible it is necessary that the
relationship of declarant to the family should be of a
As a rule, declarations as to pedicgree are not admissible legitimate character, and thus, a bastards declarations as to
unless declarant is dead or unable to testify. the pedigree of his putative family, or conversely, the
declarations of a member of the family as to a bastard, are
Yet, if he is deceased, the fact that there are living members not admissible, there are cases in which the courts have
of the same family who could be examined on the same point shown a tendency to relax the rule.
does not exclude his declarations.
Declaration must be made before the controversy occurred
Where the declarant became insane at the time of the trial,
his statement made before his insanity, regarding pedigree The declaration must be made ante litem motam-before the
may be admissible in evidence for declarations regarding controversy and that the person making them could have no
pedigree are admissible not only when the declarant is dead motive to misrepresent the facts. Thus, the declarant must
or outside the Philippines but also when his testimony is have been disinherited to the extent of having no motive
unobtainable. which can fairly assumed to be such as would induce him to
state the fact otherwise than as understood it.
Necessity that pedigree be in issue
Declarations made after the controversy has originated are
The declarations as to pedigree can be received only where excluded on the ground that the bias under which they were
pedigree itself is directly in issue. Nonetheless, the fact that uttered suffices to render them untrustworthy.
pedigree is relevant to the issue is sufficient to admit the
evidence, and that declaration as to matters of genealogy or Q: What is meant by controversy?
facts incidentally connected therewith are admissible as
proof of the fact of facts contained therein in any case in A: It does not mean mere idle rumors, or doubts of curious
which such facts are relevant, regardless of whether scandalmongers whose discussions of the family matters of
pedigree is separately in issue. their neighbors are made without reverence for sanctity,
morality, privacy or religion.
Declarant must be a relative of the person whose pedigree
is in question; Such suspicions, doubts and rumors do not rise to the dignity
of a controversy that would exclude declarations made
The declaration must have been made by someone related to thereafter.
the family concerned.
The relationship between the declarant and the person
In so far as blood relatives are concerned, the law does not whose pedigree is in question must be shown by evidence
lay down the pedigree of relationship that must be other than such act or declaration
established between the person whose pedigree is in
question and the declarant. It is enough if some relationship The relationship of declarant to the family concerned must be
is shown, although the declaration of very remote relatives established by evidence other than statements of declarant
might be entitled to very little weight. himself.

NOTES ON EVIDENCE
The evidence may either be direct or circumstantial, such as
declarants bearing the family name or a name identical with 1. There is controversy in respect to the pedigree of
that of the subject of the declaration, recognition of declarant any members of the family;
by the family, or mention of him in family conveyances and 2. The reputation or tradition of the pedigree of the
other dispositions of property. person concerned existed previous to the
controversy; and
The declarant must be shown to have possessed testimonial 3. The witness testifying to the reputation or tradition
qualifications; hence his relationship or the fact relied upon regarding the pedigree of the person concerned
as giving him special knowledge must be shown preliminary must be a member of the family of said person,
to the admission of the declaration. either by consanguinity or affinity.
Q: How are the written acts or declarations regarding There is controversy in respect to the pedigree of any
pedigree proved? members of the family
A: Oral declarations may be proved by the testimony of the Reputation of family gives rise to such facts as birth, descent,
person who is a competent witness and who has heard such failure of issue, heirship, identity, marriage, celibacy,
declarations of the declarant. parentage, or relationship; or facts incidentally connected
with genealogy.
Written acts or declarations may be proved by the Tradition, being in form of family history or reputation is
statements in writing relating to pedigree made or recognized admissible to prove facts as birth, descent, marriage,
by the declarant, or made under his direction except where parentage, or relationship on any inquiry as to pedigree.
the writing is in the form of an entry in a family Bible or
testament which is produced from the proper custody, in Note: Hearsay evidence is inadmissible to prove the manner
which event the assent of the family is presumed. or cause of death like to prove suicide.
The reputation or tradition of the pedigree of the person

concerned existed previous to the controversy
Section 40. Family reputation or tradition regarding
pedigree Accordingly, common reputation or tradition arising after the
controversy is supposed to be tainted with bias and therefore
Q: What is meant by family reputation or tradition in unreliable.
matters of pedigree?
The witness testifying to the reputation or tradition\
A: It means such declarations and statements as have come regarding the pedigree of the person concerned must be a
down from generation to generation from deceased relatives member of the family of said person, either by
in such way that even though it cannot be said or consanguinity or affinity
determined which of the deceased relatives originally made
them, or was personally cognizant of the facts therein stated, As the reputation to be shown is reputation in a family, it is
ye it appears that such declaration and statements were essential that the witness testifying thereto be a member of
made as family history by a deceased person connected by that family either by consanguinity or affinity. Relationship
blood or marriage with the person whose pedigree is to be between the witness and the family need not be proved by
established. independent evidence. It may be shown by the witness own
testimony.
Q: State the reason for the admissibility of family reputation
or tradition regarding pedigree. Such reputation cannot be proved by neighbors or other
members of the community.
A: It is based on the fact that such persons were familiar with
those matters of family history, tradition and repute with Note: It is the common reputation in the family and not the
which the members of most families are familiar, although common reputation in the community that is a material
based upon hearsay within the family, and that, having been element of evidence going to establish pedigree.
made before any controversy had arisen, there was no
motive to speak other than the truth. XPN: When the deceased left no kindred that are known,
questions of his pedigree may be established by common
Q: What are the requisites for the admissibility of the family reputation in the community in which he lived, for in such
reputation or tradition regarding pedigree? case the rule that the reputation or tradition must exist in the
family of the person whose pedigree is in question, must be
A: relaxed by reason of necessity.

NOTES ON EVIDENCE
Q: Can paternity be established by general reputation in a Q: What are the requisites for the admissibility of common
community? reputation respecting facts of public or general interest?
A: No. A:
1. The facts must be of public or general interest and more
Q: How may family reputation or tradition regarding than 30 years old
pedigree be proved? 2. The common reputation must be ancient, i.e., 30 years or
one generation old
A: It may be in any form capable of conveying thought, 3. The reputation must have been one formed among a
provided the authenticity of the vehicle conveying the class of persons who were in a position to have some
statement is established to the satisfaction of the court by sources of information and to contribute intelligently to
evidence as recognition in the family or production from the the formation of the opinion.
proper custody. However, the declaration must be a 4. The common reputation must have been exisiting
statement of fact, and not merely the opinion of the previous to the controversy (ante litem mortam)
members of the family.
Q: Distinguish facts of public knowledge and those of a
The declaration may be: general interest.
a. Oral
b. Writing A:
MATTERS OF PUBLIC FACTS OF PUBLIC
NOTE: Monumental inscriptions and family portraits, as well INTEREST KNOWLEDGE
as written statements as to pedigree are regarded as Common to all citizens of the Common only to a single
admissible if sufficiently authenticated as genuine, as by state or the entire people community or to a
having been received as such by the family. considerable numbers of
people forming part of the
The statement may be contained in an affidavit. community
Example:
land boundaries and land
possession, for the lapse of
Section 41. Common Reputation years is likely to destroy the
landmarks, leave no surviving
Q: What matters may be established by common witnesses and usually they
reputation? cannot be evidence by record
of titile
A:
1. Facts of public or general interest more than 30 NOTE: It is not essential that the reputation should come
years old from deceased persons. It is enough if it is ancient, more than
2. Marriage and related facts 30 years old.
3. Individual moral character
Q: As to the question of which of two towns should be
Q: What are the reasons for the admissibility of common charged with the support of the pauper, it become
reputation existing previous to the controversy as evidence important to show exactly how the house of the paupers
of facts of public or general interest more than 30 years old? grandfather stood on the boundary line between 2 towns. Is
the question one of public or general interest?
A:
1. Necessity arising from the inherent difficulty of A: It is one of general interest.
obtaining any other evidence than in the nature of
common reputation Q: How is common reputation respecting facts of public or
2. Trustworthiness of the evidence arising from general interest proved?
a. The supposition that the public is conversant
with the subject to be proved because of their A: Common reputation offered as evidence of matters of
general interest therein public or general interest may be proved by the testimony of
b. The fact that the falsity or error of such witnesses, old maps and old surveys so far as they have been
evidence could be exposed or corrected by used and resorted to by the community in dealing with land,
other testimony since the public are interested leases and other private documents as declaratory of the
in the same

NOTES ON EVIDENCE
public matters recited in them, monuments and inscriptions A: Yes. A mans character is not talked about till there is some
in public places. fault to be found with it. It is the best evidence of his
character that he is not talked about at all.
Q: What are the requisites for the admissibility of common
reputation respecting marriage? Q: May the evidence of reputation be rebutted by evidence
of rumor?
A:
1. The common reputation must have been formed A: No. If these rumors and suspicion have, in effect, affected
previous to the controversy a persons reputation that may be proved by general
2. The common reputation must have been formed in the evidence of reputation. If they have not affected it, they are
community or among the class of persons who are in a not relevant to the issue.
position to have sources of information and to contribute
intelligently to the formation of the opinion.
NOTE: The reputation must be general, need not be Section 42. Part of the res gestae
unanimous.
Q: What is res gestae?
Q: Is it necessary that such marriage or the reputation
respecting thereto be more than 30 years of age? A: It came from the Latin meaning things done, and
includes the circumstances, facts and declarations incidental
A: No. to the main fact or transaction necessary to illustrate its
character, and also includes acts, words, and declarations
Q: What are the requisites for the admissibility of common which are so closely connected therewith as to constitute a
reputation respecting moral character? part of the transaction.
A: Res gestae, as applied to a crime, means the complete

1. That is the reputation in the place where the persons in criminal transaction from its beginning point in the act of the
question is best known accused until the end is reached.
2. That it was formed ante litem motam
Q: Distinguish res gestae and dying declarations.
NOTE: The reputation which is admissible as evidence of
moral character is the general opinion in the community A:
where the person in question is best known. The place may RES GESTAE DYING DECLARATIONS
be: Regarded as the actual facts
a. Where he resides expressing themselves
b. Where he has his business, through the mouth of the
c. Any other place where he may be very well known witness
May precede or accompany Confined to matters
Character v. Reputation or follow as events occurring occurring after the homicidal
as a part of the principal act act
Q: Distinguish reputation from character.
Q: What is the reason for the res gestae rule?
A:
A: It is well-settled belief that statements made indistinctively
CHARACTER REPUTATION at the time of a specific transaction or event, without the
Refers to the inherent Applies to the opinion which opportunity for formulation of statements favorable to ones
qualities of the person rather others may have formed or own cause, are likely to cast important light upon the matter
than to any opinion that may expressed of his character in issue; as to such statements, the law creates a
be formed or expressed of presumption of their truthfulness.
him or others
That which a person really is That which he is reputed to Q: What is the test for the admissibility of evidence as part
be of the res gestae?
Q: Is the testimony of a witness who is acquainted with a A: Whether the act, declaration, or exclamation is so
person and has never heard anything said about the latters intimately interwoven or connected with the principal fact or
reputation admissible in evidence? event which it characterizes as to be regarded as a part of the

NOTES ON EVIDENCE
transaction itself, and also whether it clearly negatives any concocting matters for speech and selecting words is
premeditation or purpose to manufacture testimony. concerned.
Q: What matters are subject to proof by means of NOTE: The fact that said declaration was made immediately
declarations forming part of the res gestae? after the aggression, it can be considered as part of the res
gestae.
A:
1. Ownership and possession The rule contemplates that all the res gestae including
2. Frauds declarations forming part therof, must transpire within the
3. Pain and suffering present time of the transaction, but that time, while it cannot
be lesss, may be more extended than the present of the
Q: To what general classes of declaration is the term res principal fact, in some instances a little, in others much, and
gestae normally applied? in others very much.
A: Q: What are the factors to be considered in determining

a. Spontaneous statements whether statements offered in evidence as part of the res
b. Verbal acts gestae have been made spotaneous or not?
SPONTANEOUS STATEMENTS A:
1. The time that has elapsed between the occurrence of the
Q: What are spontaneous statements? act or transaction and the making of the statement
2. The place where the statement was made
A: A statement or exclamation made immediately after some 3. The condition of the declarant when he made the
exciting occasion by a particular or spectator and asserting statement
the circumstances of that occasion as it is observed by him. 4. The presence or absence of intervening occurences
between the occurrence and the statement relative
Q: What is the reason for the admissibility of spontaneous thereto
statements? 5. The nature and circumstances of the statement itself
A: Q: May declaration of third persons be admitted as part of

1. Trustworthiness the res gestae?
2. Necessity
A: The oral or written declarations of persons other than the
Trustworthiness- statements are made instinctively, while accused of the passive participants in the crime, if they
the declarants mental powers of declaration in concocting possess the character of written declarations forming a part
matters are controlled and stilled by the shocking influence of of the res gestae, are receivable.
a startling occurrence
If the act of a third party is relevant and is in evidence, his
Necessity- said natural and spontaneous utterances are more statement accompanying and explanatory of it, which is the
convincing than the testimony of the same person on the natural concomittant of the act, and is prompted by the
stand identical motive, should be admitted.
Q: What are the requisites for the admissibility of If the declarations of a third person are merely narrative and
spontaneous statements? unconnected with the relevant act, so that by no proper
extension of the rule can they be included among the res
A: gestae, they will, with some few exceptions, be rejected as
1. There must be a startling occurrence hearsay.
2. The statement must relate to the circumstances of
the startling occurrence Where persons are nor near enough to see and hear what
3. The statement must be spontaneous was said by accused and deceased, they were not bystanders
and their declarations were not a part of the res gestae.
There must be a startling occurrence
VERBAL ACTS
The spontaneous statement should have been caused by
something startling enough to produce nervous statement Q: Define verbal acts.
and to keep the will dormant so far as any deliberation in

NOTES ON EVIDENCE
A: They are utterances which accompany some act or A: Yes, since verbal acts are admitted as relevant
conduct to which it is desired to give a legal effect. When circumstances characterizing an act, they are admissible as
such act has intrinsically no definite legal significance, or only well for or against the party making them.
an ambiguous one, its legal purport or tenor may be
ascertained by considering the words accompanyinhg it, and CONDITIONS AND CIRCUMSTANCES SURROUNDING ACT OR
these utterances thus enter merely as verbal part of the act. TRANSACTION
Q: What is the reason for their admissibility? Q: May the circumstances immediately surrounding the act
or transaction in question and the conditions immediately
A: The motive, character, and object of an act are frequently preceding and following it, be shown as part of the res
indicated by what was said by the person engaged in the act. gestae?
Such statements are in the nature of verbal acts and are
admissible in evidence with the remainder of the transaction A: Yes.
which they illustrate.
Q: In a prosecution for carelessness use of firearms, is
Q: Distingish verbal acts and spontaneous statements. evidence that just prior to the careless shooting in issue the
defendant had pointed the gun at another person
A: admissible?
VERBAL ACTS SPONTANEOUS A: Yes, in a prosecution for the careless use of firearms,
STATEMENTS evidence that just prior to the careless shooting in issue, the
The res gestae is the The res gestae is the startling defendant had pointed the gun at another person, is
equivocal act occurence admissible as part of the res gestae tending to show that
The verbal act must be May be prior to, there was no malice.
contemporaneous with or simultaneous with, or
must accompany the subsequent to the startling
equivocal act to be occurrence.
admissible Section 43. Entries in the course of business
Q: What are the requisites for the admissibility of the verbal Q: What are the reasons for the admissibility of the entries
acts? in the course of business?
A: A:
1. Act or occurrence characterized must be equivocal 1. Necessity
2. Verbal acts must characterize or explain the equivocal act 2. Trustworthiness
3. Equivocal act must be relevant to the issue.
4. Verbal acts must be contemporaneous with the Q: What are the requisites for the admissibility of business
equivocal act entries?
Q: In a land action based on prescriptive title, is the A:

plaintiffs statements, when building a fence that the fence 1. Entries must have been made at or near the time of
would keep his land from being intruded on, admissible? transaction to which they refer
2. Entrant must have been in position to know the facts
A: Yes. stated in the entries
3. Entries must have been made by entrant in his
Q: Are statements made accompanying an equivocal act professional capacity or in the performance of his duties.
extending over a long period of time admissible? 4. Entries were made in the ordinary or regular course of
business or duties
A: The equivocal act may extend over a long period of time 5. Entrant must be deceased or unable to testify
and during that period, those statements that are necessary
for an understanding of the meaning of the said equivocal Q: What are the 3 guarantees of trustworthiness when the
act, are admissible as verbal acts. entry was made in a professional capacity and in the
ordinary or regular course of business?
Q: Are verbal acts admissible in favor of the party making
them? A:
1. Habit and system of making record with regularity result
in accuracy

NOTES ON EVIDENCE
2. Errors may easily be detected because the entries are d. publicity of records
made in the regular course of professional conduct
3. If the entries are made in pursuance of his duty, legal or Q: What are the requisites for the admissibility of official
to a superior, the additional risk of censure and disgrace entries?
to the entrant makes them presumably correct.
A:
Q: Are there instances where the business entries may be 1. that it was made by a public officer or by another
admitted even when the declarant is alive? persons specifically enjoined by the law to do so
2. that it was made by a public officer in the performance of
A: Where the declarant is still alive but available within the his duty, or by another person in the performance of a
purview of this rule, the entry, while not admissible under duty specially enjoined by law
this rule, may be used by the entrant to refresh his testimony 3. that the public officer or the other person had
on the witness stand, in accordance with Sec. 16 of Rule 132. sufficiently knowledge of the facts by him stated which
must have been acquired by him personally or through
Q: How are business entries proved? official information
A: Q: Is proof of the unavailability of the entrant necessary in

1. It is necessary to lay a foundation for the admission of order that the entry may be received in evidence?
entries by clerks and third persons in the regular course
of business. A: No. The reason for his being excused is in order that public
2. It is usually required that the entries be properly business be not deranged.
identified or authenticated and generally their
completeness and correctness as well as the method of Q: How are official entries proved?
making them, must be established.
3. It must appear that they were regularly and fairly made A: By the production of the books or records themselves or
at or near the time of the transactions recorded by one by a copy certified by the legal keeper thereof.
authorized to make them
4. that they are made in the regular course of business, Q: What is the probative value of the official entries?
and if made by a clerk, in the performance of his duty
5. that the business in which they are made is of a A: They are only prima facie evidence of the fact therein
character in which it is proper and customary to make stated, and their probative value may be either substantiated
such entries or nullified by other competent evidence.
6. the entries were made by a person having knowledge of
the facts entered NOTE: Public or official records of entries made in excess of
official duty are not admissible in evidence for the rule that
entries in public registers afford no evidence of facts which
they do not properly contain of any fact which can be
Section 44. Entries in official records inferred from the record by argument.
Q: What are the reasons for the admissibility of official

entries?
Section 45. Commercial lists and the like
A:
1. necessity Q: What are the reasons for the admissibility of commercial
2. trustworthiness lists and the like?
Necessity- practical impossibility of requiring the officials A:

attendance as a witness to testify to the innumerable 1. necessity
transactions occurring in the course of his duty and requiring 2. trustworthiness
to be evidenced
Trustworthiness- Q: Give some examples of commercial lists and the like?
a. the sense of official duty which has led to the making
of the statement A: In almost every organized occupation, there are standard
b. the penalty which usually is affixed to a breach of handbooks or periodicals, containing data of everyday
that duty professional need and relied upon in the work of the
c. in the routine and disinterested origin of most of occupation.
such statements a. Trade journals reporting current prices

NOTES ON EVIDENCE
b. Market data 1. The witness whose testimony is offered in evidence is
c. Mortality tables dead or unable to testify
d. Abstracts of title a. Insanity or mental incapacity, or the former witness
e. Business directories loss of memory through old age or disease
f. Animal pedigree registers b. Physical disability by reason of sickness or advanced
age
Q: What is the prerequisite for the presumption of c. The fact that the witness has been kept away by
commercial lists and the like in evidence? contrivance of the opposite party
d. The fact that after dilligent search the former
A: It is generally considered necessary. witness be found
Also, such reports are not admissible as original evidence 2. Identity of parties
without extrinsic proof that they are accurate and that they 3. Identity of issues
are based on reliable sources of information 4. Opportunity of cross-examination of witnes
Q: How may former testimony be proved in the subsequent

action?
Section 46. Learned treatises
A: If testimony at a former trial is reduced to writing, such
Q: What are the reasons for the admissibility of the learned writing is the primary evidence thereof and should be used.
treaties?
The stenographic note may be admissible in evidence.
A:
1. Necessity
2. Trustworthiness
OPINION RULE
Necessity- the unavailability of the expert witness to testify Section 48. General Rule
to testify on the matter or because of the tremendous
expense for hiring them Q: What is opinion evidence?
Trustworthiness- the learned witness in writing his work has A: The statement by witness of an inference as to the
no motive to misrepresent. existence or non-existence of a fact in issue, based upon
other facts presented directly to the senses of the witness.
Q: What are the requites for the admissibility of learned
treaties? Q: What is the general rule as to the admissibility of opinion
evidence?
A:
1. Historical works A: Upon the question of the existence of non-existence of any
2. Scientific treaties fact in issue, whether a main fact or evidentiary fact, opinion
3. Law evidence as to its existence or non-existence is inadmisisble.
The witness must testify to facts within that their knowledge
and may not state their opinion, even on their cross-
examinaiton.
Section 47. Testimony or deposition of a former
proceeeding Q: What are the reasons for the admissibility of opinion
evidence?
Q: What are the reasons for their admissibility?
A: It is for the court to form an opinion concerning the facts
A: in proof which evidence is offered. Even when the witnesses
1. Necessity are limited in their statements to detailed facts, their bias,
2. Trustworthiness ignorance, and disregard of the truth, are obstacles which
hinder in the investigation of the truth.
Q: What are the requisites for the admisisbility of former
testimony?
A:

NOTES ON EVIDENCE
experience such as men not especially skilled to
SEC. 49. RULE 130 have, and such therefore as cannot be obtained
from the ordinary witnesses;
I. IN GENERAL 2. The witness must possess knowledge, skill, or
experience needed to inform the court in the
Q: What is an expert evidence? particular case.
A: It is the testimony of persons who are particularly skilled, GR: Opinion of experts is not received if all the facts can be
or experience in a particular art, science, trade, business, ascertained and made intelligible to the court.
occupation, profession, or vocation, a thorough knowledge of
which is not possessed by man in general, in regard to 3. Such testimony is not admissible as to a matter not
matters connected therewith. in issue.
Q: Who is an expert? II. EXAMINATION OF EXPERT WITNESS
A: A person who is so qualified, either by actual experience or Q: What should be the form of the question on direct
by careful study, as to enable him to form a definite opinion examination of an expert witness?
of his own respecting any division of science, branch of art, or
department of trade about which persons having no A:
particular training or special study are incapable of forming
accurate opinions or of deducing correct conclusions. 1. Opinion based on facts known personally by the
expert: he must first state those facts before giving
He is one possessing, in regard to a particular subject or an opinion thereon.
department of human activity, knowledge not usually
acquired by other persons. 2. Opinion based on facts of which he has no personal
knowledge: the facts should be given to him
NOTE: The rule is the same in criminal and civil cases. hypotheticallyassume the state of facts upon
which his opinion is desired.
Q: How are qualifications of an expert witness established?
Where the facts are undisputed, they must also be
A: There is no exact standard fixing the qualifications of an included in the hypothetical question. Otherwise,
expert witness. He must be in possession of special skill or each party must assume in his hypothetical question
knowledge respecting the matter involved so superior to that any state of facts which he claims his evidence is
of men. It is not necessary that he should be infallible or justified.
possess the highest degree of skill or knowledge.
NOTE: Hypothetical questions must include only facts that
Q: Who determines the qualification of an expert witness? are supported by evidence and should embody facts relating
to the particular matter upon which an expert opinion is
A: It rests largely in the direction of the trial court. The test of sought to be elicited.
the qualification is a relative one, depending upon the subject
under the investigation and the fitness of the particular Q: Is the opinion of an expert based on hearsay
witness. inadmissible?
Q: May an expert be asked whether he is an expert? A: A hearsay in the form of information gained from the
statements of others outside the courtroom may not be the
A: No, he may not give his opinion as to his own qualification basis of an expert witness.
as this would be usurping the function of the court.
Q: May the opinion of an expert be based on other
NOTE: Expert witnesses are not allowed to give opinion opinions?
evidence if from the other evidence available, the judge can
be put in possession of the facts. A: An opinion of an expert witness cannot be based upon
Q: What are the requisites for the admissibility of expert opinions expressed by other experts.
testimony?
Q: May the opinion of an expert be based on conjecture
A: (speculation or guess)?
1. The subject under examination must be one that
requires that the court has the aid of knowledge or

NOTES ON EVIDENCE
A: Expert testimony should not be allowed to extend to the upon such testimony and may reject it, if they find that it is
field of baseless conjecture concerning matters not inconsistent with the facts in the case or otherwise
susceptible of reasonable accurate conclusions. An expert unreasonable.
opinion must be in terms of the certain or probable, and not
of the possible. Q: How must the court weigh the testimony of an expert
witness?
Q: May an expert give his opinion on questions of law?
A: It is to be considered like other testimony, in the light of
A: Testimony of expert witnesses is confined to matters of their own general knowledge and experience in the subject of
fact, as distinguished from matters of law. experts or skilled witnesses, and make an unsupported
finding contrary to the opinion.
Q: May an expert give his opinion on the ultimate fact in
issue? Expert witness is of no weight and must be disregarded when
it is contrary to common sense, common knowledge,
A: While the court is entitled to the aid of the expert in undisputed facts, or physical laws or when such a nature it
determining the existence or nonexistence of facts not within will not support a verdict.
common knowledge, an expert witness must not take the
place of the court and declare his belief as to an ultimate fact. The court must consider the testimony of an expert witness
as a whole and the fact that his cross-examination testimony
Q: May scientific book or treatises be resorted in cross- is inconsistent with his testimony in chief does not necessarily
examination? destroy the effectiveness of his opinion.
A: There is distinction between the use of medical or other III. SUBJECTS OF EXPERT TESTIMONY
scientific books or treatises in the direct examination of
expert witnesses and their use for the purpose of cross- 1. Handwriting
examination. 2. Typewritten documents
3. Fingerprints
If it appears that the expert witnesses is basing his opinion, in 4. Ballistics
whole or in part, on the authority of medical or other 5. Medicine
scientific works, counsel may on cross-examination 6. Value of properties and services
interrogate the witness with reference to the authorities for
the purpose of discrediting him or disparaging his testimony.
If the witness gives source of his professional knowledge, it is Section 50. Opinion of ordinary witnesses
allowable on cross-examination to resort to that same source
to show that he was mistaken. Q: May the opinion of an ordinary witness be received as
evidence?
Q: How may the opinion of an expert witness be
impeached? A: A witness can testify to those facts only which he knows of
his own knowledge; he should not be allowed to state
A: Evidence may be introduced to impeach a skilled or expert conclusions or inference which are for the court to make.
witness or to lessen the weight of his expert opinion, or
qualifications or retractions on the direct, cross, or redirect A non-expert may make his opinion regarding:
examination. But qualifications by a witness of his testimony 1. The identity of a person when he has adequate
or isolated statements are not necessarily sufficient to knowledge of said person
destroy the value of his testimony as a whole. 2. The handwriting of a person when he has sufficient
familiarity of the latters handwriting
Q: Has the Court any discretion in the examination of an 3. The mental sanity of the person with whom he is
expert witness? sufficiently acquainted.
A: The latitude of the examination of the expert witness is NOTE: A non-expert witness may also testify on his
within the trial court. impressions of the emotion, behavior, condition, or
appearance of a person.
Q: Are the courts bound by the testimony of experts?
Q: What is the test?
A: No, they are merely regarded as purely advisory in
character; the courts may place whatever weight they chose

NOTES ON EVIDENCE
A: Is the evidence relevant, is it the best the nature of the more readily than they can make a detailed statement; that
case admits of, and does it come from a competent witness? as commonly presented to observation, insanity is really
detected, if carried beyond a certain point; that an unskilled
Q: What must first be establish before an ordinary witness observer may be quite as able as an expert to make clear
may give his opinion? mental comparison between the acts and conduct of a sane
person and those of one who is laboring under mental
A: The proper basis or predicate upon which he bases his disability; and that to reject the inference of an observer with
opinion must first be laid. suitable opportunities and faculty for observation is to refuse
to consider evidence which is frequently of the highest
Q: How may an ordinary witness give his opinion as to the possible value.
identity of a person?
Q: May a subscribing witness to a will give his opinion as to
A: An ordinary witness may give his opinion regarding the the mental sanity, or insanity of a person?
identity of a person when he has adequate knowledge of his
identity. A: The rule which permits the opinion of the subscribing
witness to be received in evidence without preliminary proof
A person may be identified by his voice, his left-handedness, of the facts upon which the opinion is based is limited to an
his tattoo marks, his skill in chemistry, his residence, his formed at the time of the execution of the will. The opinion
personal history at college or in a shop. of an attesting witness, formed at another time, before or
after the execution of the will, stands like that of any other
A witness need not be an expert in medical matters in order witness and is not admissible unless the facts upon which the
to be competent to express an opinion as the physical opinion is based are evidence.
condition of another.
Q: Is the testimony of an attesting witness to a will that the
Q: How may an ordinary witness give his opinion as to the testator was of unsound mind admissible in evidence?
handwriting of a person?
A: Yes. Although a person who attaches his name as a witness
A: With which he has sufficient familiarity. Evidence may also to a testamentary instrument impliedly certifies that the
be given in comparison, made by the witness of the court, testator is of sound mind and competent to make a will, he
with writings admitted or treated as genuine by the party will be permitted to contradict the attestation clause and
against whom the evidence is offered, or proved to be a testify as to the actual facts.
genuine to the satisfaction of the judge.
Q: May an ordinary witness give his opinion on the emotion,
Q: How may an ordinary witness give his opinion as to the behavior, or condition or appearance of a person?
mental sanity or insanity of a person?
A: Yes.
A: An ordinary witness give his opinion as to the mental
sanity or insanity of a person with whom he is sufficiently Q: May he testify as to the impression such facts would have
acquainted. upon others?
An ordinary witness give his opinion as to the mental sanity A: He cannot go further and testify as to the impression such
or insanity of a person, if such opinion is drawn from the facts would have had upon others.
conduct of the latter, since there can be no doubt that
persons of common sense, conversant with mankind, and A non-expert witness, when testifying must state facts and
having practiced knowledge of the word, if brought in the not his opinion or conclusion.
presence of a lunatic, would, in short, perhaps, of the specific
and precise character of the sanity as referable to a particular Q: May a non-expert opinion as to the sanity or insanity of a
class of the insane malady, but certainly, in general way, of person be based in whole or in part upon a hypothetical
his mental unsoundness. question?
Q: What is the reason for the rule? A: No. He must base his opinion solely on his own personal
knowledge, observation, acquaintance, etc. with the accused.
A: They are found in the considerations that the facts
showing insanity, in their entirety, frequently elude accurate, Q: How may a witness who has testified to the sanity or
complete, and detailed statement and consequently render it insanity of a testator be cross-examined?
difficult to afford a satisfactory basis for the judgment of an
expert; that many witnesses can make a correct inference

NOTES ON EVIDENCE
A: A witness testifying as to his opinion may be cross- NOTE: The highest degree of moral excellence is not required.
examined as to the facts and grounds upon which his opinion
is based, and generally cross-examination legitimately Q: What are the different ways of proving character?
tending to test the accuracy and truthfulness of the witness
and the value of the testimony should be permitted. A:
The cross-examination must be confined to the scope of the 1. Personal opinion as to the moral character of an
examination in chief, and a question based on an assumption accused party is excluded;
not warranted by the evidence is inadmissible. 2. Reputation in the community is admissible;
NOTE: The reputation offered must be that of the

neighborhood in which the person lives.
CHARACTER EVIDENCE
A person may be little seen or known in his place of
Section 51. Character evidence not generally admissible; abode, and that in the office or factory where he
exceptions works, or in the trade in which he circulates, one can
often get the best light on his moral character. His
A. IN GENERAL repute in that circle should be admissible.
Q: What is character? 3. Specific conduct of the party exhibiting character is

excluded: undue prejudice, that of unfair surprise
A: It is the possession by a person of certain qualities of mind and that of confusion of issues.
or morals, distinguishing him from others. The opinion
generally entertained of a person derived from the common B. CRIMINAL CASES
report of the people who are acquainted with him; his
reputation. Q: May the good moral character of an accused in criminal
cases be proved by him?
Q: Distinguish between character and reputation.
A: Yes, when the same is pertinent to the moral trait involved
CHARACTER REPUTATION in the offense charged.
That which a person or thing What a person is estimated,
really is; said, supposed, or thought, Good character should be permitted to operate as positive,
to by others; appropriate and substantial defense. It affords a presumption
Internal; External; against the commission of crime. The presumption arises
Substance; Shadow; from the improbability that a person who has uniformly
Signifies reality; What is reputed or pursued an honest and upright conduct will depart from it,
understood from report to and do an act so inconsistent with it.
be the reality about a person
or thing; NOTE: The character offered ought to be a trait germane in
What a man is morally, and Qualities one is supposed to kind to the act charged. For example, on a charge of rape,
consists of the qualities possess. character for chastity; on charge of assault, the character of
which constitute the peaceableness or violence; on charge of embezzlement,
individual, including natural character for honesty.
and acquired tastes;
constituting ones actual, or Q: At what time and place should the character of the
real character. accused be confined?
A: The character proved must be character prior to the time

Q: What is good moral character?
of the commission of the offense.
A: It includes all the elements essential to make up such a
Q: May the accused prove the good moral character of his
character like common honesty and veracity.
co-accused?
It is the character that measures up as good among the
A:
people of the community in which the person lives, or that is
up to the standard of the average citizen; status which
attaches to a man of good behavior and upright conduct.

NOTES ON EVIDENCE
GR: No, he will not be permitted to prove that others Q: In the prosecution for rape, is the womans character as
conspiring with him or who are suspected of complicity in the to chastity admissible in evidence?
crime are men of good character.
A:
XPN: Accused may prove good character of his co-accused in
a case for adultery, when the prosecution, after showing GR: Yes, the womans character as to chastity is admissible to
defendants presence with a woman under suspicious show whether or not she consented to the mans act.
circumstances proves that the woman is a prostitute.
XPN: But not in a prosecution for rape under the age of
Q: May the character of a person be established by negative consent.
testimony?
Here the womans disposition to unchastity would have
A: Testimony to the effect that he never heard anything probative value, and would be admissible on behalf of the
against the character or reputation of a person is admissible accused. But in trial for a sex offense where the womans
to prove the good character of such person, provided the consent is immaterial and not in issue, it follows that the
witness is shown to have been in such position that he would womans unchastity would also be immaterial i.e a charge for
have heard anything that was said concerning the persons rape of a woman under 12 years of age.
character or reputation.
Q: Is the evidence of the character of the deceased in a
Accordingly, in the absence of any discussion about character, prosecution for homicide admissible?
it may reasonably be presumed that the persons reputation
is good. A:
Q: May any inference be drawn against the accused from his GR: No as the same is irrelevant as the law protects everyone
failure to offer evidence of his good character? from unlawful violence, regardless of character, and the
service done the community in riding it of a violent and
A: No. dangerous man is no justification of the act.
Q: May the prosecution in the first instance attack the XPN:

character of the accused?
1. Issue of self-defense is raised and the character of
A: No, it is not competent for the prosecution to initiate the the slaying is doubtful, evidence of the violent and
inquiry, and it is only after the prisoner has elected to put his dangerous character of the deceased is competent
character in issue, by calling witnesses and adducing evidence for the purpose of determining whether the
in its support, that the prosecution is permitted to follow and deceased or the accused was the aggreessor;
disprove the evidence so offered, if it can. 2. Where the evidence tends to prove that the
accused acted in self-defense, evidence of violent
Q: May the prosecution prove the bad moral character of and dangerous character of the deceased is
the accused by evidence of his prior specific conduct admissible as tending to characterize the acts of the
revealing such character? deceased, as bearing on the reasonableness of
defendants apprehension of danger at the time of
A: No. the homicide.
Q: May the character be the fact in issue? Q: Is the character of the deceased in a prosecution for
murder admissible?
A:Yes as in the (a) offense of keeping a house of prostitution
or for gambling will depend upon the character and habits of A: No, it is not necessary in a crime of murder where the
the inmates; and (b) the offense of seducing a woman may killing is committed with treachery or premeditation.
involve the character of the woman as chaste or unchaste.
It can only be allowed in homicide cases to show that such
Q: May the good or bad moral character of the offended character may only be allowed in homicide cases to show
party in criminal case be given in evidence? thatit has produced a reasonable belief of imminent danger
in the mind of the accused and a justifiable conviction that a
A: The good or moral character of the offended party may be prompt defensive action was necessary.
proved if it tends to establish in any reasonable degree the
probability or improbability of the offense charged. Q: Distinguish the rule on character evidence in criminal and
civil cases.

NOTES ON EVIDENCE
Q: When may the character be offered in evidence in
CRIMINAL CASE CIVIL CASE mitigation of damages or as an excuse or defense to the
Evidence of the good Such evidence is with equal action?
character of the accused is good reason not admitted,
most properly and with good because no presumption A: In some civil actions, the measure of compensation may be
reason admissible in would fairly arise, in the very affected by the plaintiffs character.
evidence because there is great proportion of such a. In defamation, a plaintiff or poor reputed character
fair and just presumption cases, from the good words be entitled to less compensation for injury to
that a person of good character of the defendant, his repute
character would not commit that he did not commit the b. For breach of promise to marry, the injury to the
a crime breach of contract or of civil feelings of a dissolute woman might well be less
duty alleged against him. than otherwise
c. In an action for malicious prosecution, the injury to
Q: Is evidence of the moral character if a party in a civil case the plaintiffs reputed character would depend upon
admissible? the quality of that repute before the prosecution
was started.
A:
C. CHARACTER OF WITNESS
GR: The character of a party to a civil case is not a proper
subject of inquiry, for while it is recognized that ground for an Q: When is evidence of the good character of the witness
inference if some logically probative force as to whether or admissible?
not a person did a certain act may be furnished by the fact
that his character is such might reasonably be expected to A: Evidence of good character of a witness is not admissible
predispose him toward or against such an act, this until such character has been impeached.
consideration is outweighed by the practical objections to
opening the door to this class of evidence. The character or reputation of a witness must be attacked or
impeached before the testimony sustaining his character or
XPNS: In cases where, because of the nature of the action, reputation can be admitted, but it is not necessary that
the character or reputation of a party becomes a matter in character witnesses for impeachment purposes should first
issue, in such cases, evidence will reference to such partys be introduced if the veracity or character of the witness has
character or reputation is admissible. been substantially impeached in other ways, especially if he is
a stranger in the country where the trial is being conducted.
Ex: actions for slander or libel
It is not necessary that there shall be a successful
Q: What is meant by putting character in issue or impeachment of the witness, but an attempt to impeach his
character involved in the issue? character, even though unsuccessful warrants the
introduction of testimony as to his good character.
A: It is a technical expression, which do not mean simply that
the character may be affected by the result, but that it is of
particular importance in the suit itself, as the character of the
plaintiff in an action of slander, or that of a woman in an BURDEN OF PROOF AND PRESUMPTIONS
action for seduction. RULE 131
Section 1. Burden of Proof
The mere fact that there are circumstances shown in
evidence which tend to cast doubts upon the veracity of a A. INTRODUCTORY
party will not be sufficient to allow a party to introduce
evidence as to his reputation for truth and veracity. Q: What is the importance of the rule?
rd
Q: Is evidence of moral character of a 3 person admissible A: The importance is often underestimated; yet, the right to
in civil cases? have the burden of proof properly placed is a valuable right
and to give force and effect to such right some courts have
rd
A: An issue in a civil case sometimes involves a 3 persons gone even so far as to rule that failure so to place it over the
act having a moral quality. On such an issue, the third request and proper exception of a party, constitutes a
persons moral trait would have probative value, and there is reversible error.
no practical policy against it.
Q: What is the basis of the rule?

NOTES ON EVIDENCE
A: To facilitate justice by serving the convenience of the and the defendant has the burden of proving material
court. allegations in the answer which sets up new matter.
Q: What is burden of proof? Q: If the plaintiff fails to discharge the burden of proof, is
the defendant under the obligation to prove his evidence?
A: It means the obligation imposed upon a party who alleges
the existence of a fact or thing necessary in the prosecution A: No. If the plaintiff fails to show the facts upon which he
or defense of an action to establish it by proof. It is the duty bases his claim, the defense is under no obligation to prove
of a party to present evidence on the facts in issue necessary exceptions or defense.
to establish his claim or defense by the amount of evidence
required by law. Q: What is the test in determining on whom the burden of
proof lies?
The burden of proof exists only in connection with a fact in
issue. A: Ordinarily, the burden of proof is in the first instance with
the party who initiated the action, that is, the plaintiff. But
Q: What are the facts in issue referred to by the rule? there is no rigid rule that the primary burden of proof is on
the party who brings the suit; rather, this is generally
A: Facts in issue are those facts which a plaintiff must prove speaking taken for granted because of expediency and
in order to establish his claim and those facts which the interest of justice and because of the initiative action.
defendant must prove in order to establish a defense set up
by him, but only when the fact alleged by the one party is not Where the defendant, either in a positive and express terms
admitted by the other party. or by the character and nature of his pleadings admits the
cause of action alleged by the plaintiff, he thereby absolved
Facts which are admitted expressly or by implication are not the plaintiff from the necessity of making any support of his
in issue. claim.
To determine the relevancy of the evidence, the pleadings of The burden of proof is upon the defendant as to all
the parties must first be looked for the purpose of affirmative defenses which he sets up in his answer to the
ascertaining the issue. plaintiffs claim or cause of action.
Q: What is meant by burden of evidence? Q: What is the legal effect of a legal presumption upon the
burden of proof and of evidence?
A: The phrase burden of going forward with the evidence is
sometimes shortened to burden of evidence. It means that A: The legal effect of a legal presumption upon the burden of
logical necessity which rests on a party at any particular time proof is to create the necessity of presenting evidence to
during the trial to create a prima facie case in his behavior, or meet the prima facie case created thereby, and which if no
to overthrow one when created against him. proof to the contrary is offered, will prevail. It does not shift
the burden of proof. The burden of proof remains where it is.
Q: Distinguish burden of proof and burden of evidence?
The legal effect of a legal presumption upon the burden of
A: evidence is that it creates a prima facie case and thereby
BURDEN OF PROOF BURDEN OF EVIDENCE sustains the said burden of evidence on the point which it
Never shifts. This remains Shifts to one party when the covers, shifting it to the other party. It relieves those favored
throughout the entire case other has produced sufficient thereby of the burden of proving the fact presumed. The
evidence to be entitled as a same is the result of any substitute for evidence such asL
matter of law to a ruling in a. Judicial admission
his favor. b. Stipulations
It has no connection with the c. Rules of substantive law
pleadings, but is determined d. The rule of res ipsa loquitur
by the progress of the trial e. Statutory regulations prescribing prima facie
evidence of specified facts
B. CIVIL CASES f. Judicial notice
Q: Who has the burden of proof in civil cases? Q: What matters need not be proved by the parties to an
action?
A: The plaintiff has the burden of proving the material
allegations of the complaint which are denied by the answer; A:

NOTES ON EVIDENCE
1. Allegations contained in the complaint or answer Action for It is on the part of the plaintiff to
immaterial to the issues partition establish that the other children had not
2. Facts which are admitted or not denied in the received their share
answer Disbarment The burden of proof rests upon the
3. Those which are subject of an agreed statement of proceedings complainant
facts between the parties Special civil Petition has the burden of proof
4. Facts which are subject of judicial notice actions and
5. Facts which are legally presumed proceedings
6. Facts which are within the knowledge of the Abuse of The dismissal of an action rests upon the
opposite party. discretion in sound discretion of the court and will
dismissing cases not be reversed on appeal in the
SUBJECT WHO HAS THE BURDEN OF PROOF absence of abuse.
MATTERS The burden of showing abuse of judicial
Recovery of sum Plaintiff-creditor must prove that the discretion is in favor of the correctness
of money promissory note has not been paid of the courts action
Contract The plaintiff has the burden of proof of
establishing the execution and existence Q: Against whom is the case is decided when the evidence is
of the contract evenly balanced?
Insurance cases Plaintiff has generally the burden of
proving every fact that may be essential A: If the evidence in a case is evenly balanced it must be
to the enforcement of the insurers decided against the party who has the burden of proof, for
liability the case is then found in exactly the same position at the
Tort actions plaintiff conclusion as it was at the beginning.
Contributory This is an affirmative defense, the
negligence burden of proof is on the defendant
Fraud, dishonesty, 1. The law never presumed Fraud,
unfairness, dishonesty, unfairness, duress, and C. CRIMINAL CASES
duress, and undue undue influence in the absence of
influence fiduciary relationship. Q: Who has the burden of proof in criminal cases?
2. When the fiduciary relationship A: The burden of proof is on the prosecution to prove,
exists, the burden of proof of its beyond a reasonable doubt, the essential elements of the
fairness is upon the fiduciary. He offense with which the accused is charged; and if the proof
must show that there was no Fraud, fails to establish any of the essential elements necessary to
dishonesty, unfairness, duress, and constitute a crime, the defendant is entitled to an acquittal.
undue influence.
Crime charged in The burden of proof rests upon the The burden of proof is never on the accused to establish
civil case party who has alleged that the crime innocence or disprove the facts necessary to establish the
was committed. crime charged.
Insanity in civil Upon him who alleges insanity; but
cases when the insanity is one proved, the Q: Distinguish burden of proof from presumption of
burden shifts to him who asserts that innocence.
the act was done while the person was
sane. A:
Statute of The burden of producing the facts to
limitation avoid the bar of the statute of PRESUMPTION OF BURDEN OF PROOF
limitations is upon the party who asserts INNOCENCE
such facts A rule of substantive law, Designed mainly as a rule of
Action against Plaintiff existing before any evidence procedure, requiring the
bailee is offered and accompanying prosecution in the first
Action against The plaintiff has the burden of proving the accused throughout the instance to make out a prima
carriers injury to or loss, non-delivery of the trial facie case proving the
goods by the fault of the carrier essential facts embraced in
Action against Proof of the loss suffices to make out a the criminal transaction
inn-keeper prima facie case, and casts upon the alleged, including intent
defendant the burden of proving facts
which will exonerate him from liability
NOTES ON EVIDENCE
Thus, after the state has introduced all the proof which it was warned of his constitutionally
regard as sufficient to convict the prisoner, he may meet the protected rights
case thus made out against him in 3 different ways: Corpus delicti Prosecution
1. He may deny the truth of all the evidence which may Insanity It is an affirmative defense which the
be offered which may be offered against him accused has a burden of proof
2. He may deny the truth of some particular ingredient Jeopardy Defense
in the criminal transaction, as shown by the state, as Matters excepted GR: Accused
when he pleads an alibi, or admitting the doing of in statute defining XPN: Part of the enacting clause, or a
the act charged, denies the presence of a malicious crime proviso
intent, or he may make an affirmative defense such Matters of Defense
as insanity or license defense
3. He may put in a defense not traversing the
allegations of the indictment, involving some
matters or facts which are entirely separate from
and independent of the original transaction set forth
Section 2. CONCLUSIVE PRESUMPTIONS
therein.
Q: What is presumption?
Q: Is it necessary that a negative fact alleged by the
prosecution be proved?
A: An inference of the existence or non-existence of some
facts which courts are required or permitted to draw from
A: Where the negative of an issue does not permit of direct
the proof of other facts, an inference which common sense,
proof or where the facts are more immediately within the
enlightened by human knowledge and experience, draws
knowledge of the accused, the onus probandi rests upon him.
from the connection, relation, and coincidence of facts and
circumstances with each other.
It is not incumbent on the prosecution to adduce positive
evidence to support a negative averment the truth of which is
Q: Distinguish presumption from inference.
fairly indicated by established circumstances and which, if
untrue, could readily be disproved by the production of
A:
documents or other evidence probably within the
defendants possession or control.
PRESUMPTION INFERENCE
A rule which a law makes Conclusion which, by means
Q: Who has the burden of proof as to facts peculiarly within
upon a given state of facts of data founded upon
defendants knowledge?
common experience, natural
reason draws from facts
A: Where the subject matter of negative averment in the
which are proved
indictment or a fact relied on by accused as justification, or
Deduction directed to be Permissive deduction
excuse relates him personally or otherwise lies peculiarly
drawn by law
within his knowledge, the general rule is that the burden of
proof as to such averment or fact is on him.
Q: What is conclusive presumption and rebuttable
presumption?
SUBJECT WHO HAS THE BURDEN OF PROOF
MATTERS
A:
Alibi The accused must show that he was at
CONCLUSIVE REBUTTABLE
another place for such a period of time
Inference which the law That may be accepted and
that it was impossible for him to have
makes so peremptory that it acted on when there is no
been at the place where the crime was
will not allow them to be other evidence to uphold the
committed at the time of its commission
overturned of any contrary contention for which it
Authenticity of It is incumbent upon the prosecution to
proof however strong stands; one which may be
documents prove that said signature is a forgery;
overcome by other evidence
and if the prosecution fails to do so, the
authenticity of the said document
Q: Distinguish presumption of fact from presumption of law
should be accepted
Bail The burden of proof is on the
A:
prosecution
Confession It is now incumbent upon the
prosecution to prove during the trial
that prior to questioning, the confessant

NOTES ON EVIDENCE
3. By record
PRESUMPTION OF FACT PRESUMPTION OF LAW
That mental process by An inference which, in the NOTE: The last two are sometimes referred to as technical
which the existence of one absence of direct evidence estoppel as distinguished from equitable estoppel or
fact is inferred from proof of on the subject, the law estoppel in pais
some other fact or facts requires to be drawn from
which experience shows it is the existence of certain Q: What is estoppels in pais?
usually associated by established facts.
succession or co-existence. A: It is the principle by which a party who knows or should
It is an assumption made by know the truth is absolutely precluded, both by law and in
the law that a strong equity, from denying or asserting the contrary of, any
inference of fact is prima material fact, which by his words or conduct, affirmative or
facie correct, and will negative, intentionally or through culpable negligence, he has
therefore sustain the burden induced another, who was excusably ignorant of true facts
of evidence. and who had a right to rely upon such words or conduct, to
Cannot be rebutted believe and act upon them thereby, as a consequence
reasonably to be anticipated, changing his position in such a
Q: Distinguish presumption from prima facie evidence. way that he would suffer injury if such denial or contrary
assertion were allowed.
A:
Q: Distinguish estoppel in pais from waiver.
PRESUMPTION PRIMA FACIE EVIDENCE
Signifies properly an amount A:
of evidence which is
sufficient in the particular ESTOPPEL IN PAIS WAIVER
case to pass the judge May arise in the absence of Voluntary and intentional
any intention on the part of abandonment or
Q: How is presumption juris or of law classified? the person estopped to relinquishment of a known
relinquish or change any right
A: existing right, and;
1. Conclusive presumptions or presumptions juris et de It need not be supported by Supported by an agreement
jure any consideration, founded upon a valid
2. Disputable presumptions or presumptions juris agreement or legal obligation consideration
tantum Frequently carries the Carries no implication of
implication of fraud fraud and does not
Q: Is presumption an evidence? necessarily imply that the
party asserting it has been
A: Presumptions are evidence according to the law, which misled to his prejudice or
considers and regulates them as such. Thus, they are into an altered position
irrelevant and inadmissible when they do not correspond to Involves the conduct of both Involves the conduct or act of
the allegation and the facts at issue in the pleadings. parties, since it is based on only one of the parties
some misleading conduct or
ESTOPPEL language of one person and
reliance thereon by another
Q: What is estoppel? who is misled thereby to his
prejudice
A: It is a bar which precludes a person from denying or
asserting anything to the contrary of that which has, in Q: Distinguish estoppel in pais from ratification.
contemplation of law, been established as the truth, either by
the acts of judicial or legislative officers or by his own deed or A:
representations, either express or implied.
ESTOPPEL IN PAIS RATIFICATION
Q: What are the kinds of estoppel? The substance is the The substance is
inducement to another to act confirmation after conduct
A: to his prejudice
1. By matter in pais Notwithstanding that there A matter of intention
2. By deed was no such intention,

NOTES ON EVIDENCE
because the other party will Such defense always operates as a shield, and never as a
be prejudiced and defrauded sword.
by his conduct unless the law
treats him as legally bound NOTE: It is well-settled that a party can never be stopped by
Its existence is a question of an act that is illegal and void; that an estoppels cannot be
fact founded on an illegal act.
There must be a voluntary
assumption of the Q: What are the elements of estoppels in pais as related to
unauthorized act either on the party claiming the estoppel?
full information or on less
than the full information if A:
undertaken deliberately in 1. Lack of knowledge and of the means of the truth as
disregard of the fact that all to the facts in question
knowledge of the transaction 2. Reliance upon the conduct of the party estoppel
available has not been 3. Action based thereon of such character as to change
obtained. his position prejudicially
Does not rest on prejudice
Q: What are the elements of estoppels in pais as related to
Q: What is estoppel by deed? the party estopped?
A: It is a bar which precludes a party to a deed and his privies A:

from asserting as against the other and his privies any right or 1. Conduct which amounts to a false representation or
title in derogation of the deed, or from denying the truth of concealment of material facts, or at least, which is
any material fact asserted in it. calculated to convey the impression that the facts
are otherwise than, and inconsistent with, those
Q: What is estoppels by record or judgment? which the party subsequently attempts to assert
2. Intention or at least expectation, that such conduct
A: It is the preclusion to deny the truth of matters set forth in shall be acted upon by the other party
the record, whether judicial or legislative and also to deny the 3. Knowledge, actual or constructive of the real facts
facts adjudicated by a court of competent jurisdiction.
Q: Are there other forms of estoppel akin to estoppel in
Estoppel in pais pais?
Q: State the rule on estoppels in pais or conduct. A:

1. Estoppel by silence
A: Whenever a party has, by his own declaration, act or 2. Estoppel by laches
omission, intentionally and deliberately led another to 3. Promissory estoppel
believe in a particular thing true, and to act upon such belief, 4. Estoppel on question of jurisdiction
he cannot, in any litigation arising out of such declaration,
act, or omission, be permitted to falsify it. Estoppel by laches
It is a well-settled rule of equity. Q: What is laches?
Q: What is the basis of the rule? A: Laches is the unreasonably delay to seek or to enforce a
right at a proper time
A: It is founded on the principles of morality and fair dealing
and is, intended to subserve the ends of justice. It always A neglect to do something which one should do or to seek to
presupposes error on one side and fault or fraud upon the enforce a right at a proper time has been termed as estoppel
other and some defect of which it would be equitable for the by laches.
party against whom the doctrine is asserted to take
advantage. Q: What are the 4 elements of the equitable defense of
laches?
Q: What is the effect of estoppel in pais?
A:
A: It prevents the assertion of what would otherwise be an 1. Conduct on the part of the defendant, or of one
unequivocal right or an otherwise good evidence. under whom he claims, giving rise to a situation of

NOTES ON EVIDENCE
which complaint is made and for which the the contestant thereof, who even availed of the benefits of
complainant seeks a remedy said agreement as well as invoked it, the contestant is barred
2. Delay in asserting the complainants rights, the or estopped from assailing the validity of said agreement and
complainant having that knowledge or notice of the of the decision based thereon.
defendants conduct and having been afforded an
opportunity to institute a suit Q: When is the defendant estopped from pleading double
3. Lack of knowledge or notice on the part of the jeopardy?
defendant that the complainant would assert the
right on which he bases his suit A: When the trial court dismisses a case on a disclaimer of
4. Injury or prejudice to the defendant in the event jurisdiction upon the instigation of the accused, the latter is
relief is accorded to the complainant, or the suit is estopped on appeal from asserting the jurisdiction of the
not held to be barred lower court in support of his plea of second jeopardy.
Promissory Estoppel Q: Does estoppel lie against the government and public
officers?
Q: What is promissory estoppel?
A:
A: Under this doctrine, an estoppel may arise from the
making of a promise, even though without consideration, if it GR: No. A sovereign state is not subject to an estoppels to the
was intended that the promise should be relied upon and in same extent as an individual or a private corporation.
fact it was relied upon, and if a refusal to enforce it would be Otherwise, it might be rendered helpless to assert its powers
virtually to sanction the perpetration of fraud or would result in government.
in other injustice.
The government is never estopped by mistake or error on the
Estoppel on question of jurisdiction part of its agents.
A party is barred from assailing the legality of an order issued XPN: The doctrine of estoppel may be asserted against the
at his own motion since a person cannot be allowed to take government when it or its agents, acting within the scope of
advantage of his own wrong when such would work their authority have been guilty of acts amounting to fraud
substantial injury to the other party, yet jurisdiction being a and acted on in good faith by others to their detriment.
matter of law and not of fact, estoppel does not apply.
Estoppel by deed
The application of this principle seemingly depends on
whether the lower court actually had the jurisdiction or not. If Q: State the rule on estoppel by deed.
it had no jurisdiction, but the case was tried and decided
upon the theory that it had jurisdiction, the parties are not A: The tenant is not permitted to deny the title to his landlord
barred on appeal, from assailing such jurisdiction, for the at the time of the commencement of the relation of landlord
same must exist as a matter of law, and may not be conferred and tenant between them.
by consent of the parties or by estoppel.
Q: What is the reason for the rule?
Q: Is there estoppel due to ignorance founded on innocent
mistake? A: It is founded in public convenience and policy, because it
tends to encourage honesty and good faith between landlord
A: In an act, conduct or misrepresentation of the party sought and tenant.
to be stopped is due to ignorance founded on innocent
mistake, estoppel will not arise. Q: What are the qualifications of the rule?
Q: Is there estoppels by extra-judicial admissions made in A:

the original complaint which had been amended? 1. The recitals should be clear and unambiguous
2. There should be a distinct and precise admission of a
A: No. fact
3. The deed must be delivered
Q: When is a party stopped from raising the validity of a 4. It must be a valid instrument
compromise agreement?
A: Where a compromise agreement was approved by the trial

court and complied with, although somewhat irregular, by

NOTES ON EVIDENCE
34. Printed books containing reports of cases
Section 3. Disputable Presumptions 35. Conveyance by trustee
36. Survivorship
Q: What are the disputable presumptions? 37. Doubt as to survivorship
A:
1. Innocence
2. Unlawful intent Innocence
3. Ordinary consequences of unlawful act
4. Ordinary care of ones concern A person accused of a crime is presumed to be innocent until
5. Suppression of evidence the contrary is proved, and this presumption remains with
6. Payment to another him throughout the trial until it is overcome.
7. Delivery of thing
8. Obligation delivered This applies to both civil and criminal cases
9. Payment of later installment
10. Unexplained possession of stolen property Unlawful intent
11. Payment arising from possession by debtor of
evidence of indebtedness Q: State the rule on this presumption.
12. Regularity of appointment
13. Regularity of performance of official duty A: GR: If it is proved that the accused committed an unlawful
14. Regularity of judicial proceedings act, it will be presumed that the act was done with a criminal
15. Issues properly decided and submitted for intention. It is for the accused to rebut this presumption.
arbitration
16. Fairness and regularity of transaction This is usually referred as general intent.
17. Ordinary course of business
18. Sufficient consideration Ordinary consequences of unlawful act
19. Negotiable instrument
20. Indorsement of negotiable instrument 1. Every person is deemed to responsible for the natural
21. True date in writing consequences of his own acts
22. Mail and delivery of mail matter 2. One who inflicts injury upon another is mediately or
23. Absence immediately responsible for the latters death and the
a. Presumption of death of a person not for the fact that other causes may have cooperated to cause the
purpose of opening his succession death of such does not relieve the actor of responsibility
b. Presumption of death of a person for the 3. It is only when death is not the direct or indirect
purpose of opening his succession consequence of the injury, but a malicious commission
c. Presumption of death of a person for all on the part of the injured that he is relieved from
purposes including the decision of the estate responsibility
among heirs
i. Presumption of death aboard a vessel or Ordinary care of ones concern
airplane
ii. Presumption of death of member of armed All men are presumed to be sane and normal. When of age
forces missing in armed hostilities and sane, they must take care of themselves.
iii. Presumption of death of person in danger
of death Suppression of evidence
24. Acquiescence Q: State the rules on this presumption.

25. Ordinary course of business
26. Co-partners A: It has been held that where a party fails to present a fact
27. Marriage necessary to his case when it is within his power to do so, it
28. Acquisition of property through joint efforts will be presumed that such fact does not exist and the same
29. Cohabitation is true, where evidence as to a certain matter is introduced,
30. Termination of marriage and the adverse party, having it within his power to refute
31. Continuance of established condition such evidence if it is untrue, fails to introduce any refuting
32. Obedience of the law evidence.
33. That a printed or published book, purporting to be
printed or published by public authority was so The presumption is not applicable when the omitted
printed or published evidence is at the disposal of both parties.

NOTES ON EVIDENCE
Where the party having the burden of proof fails to establish It is proper to indulge a presumption that in their business
a prima facie case, no presumption arises from the failure of and social relations all persons act honestly and properly and
the other party to introduce evidence peculiarly within his dishonesty or bad faith will not be presumed, but must be
knowledge. proved.
Obligation delivered GR: Fraud is not presumed.
On the payment of the debt, the document should no longer XPN:

be allowed to remain in the creditors custody. The
possession of the evidence of a debt, as a note, bond, bail or 1. Statute so provides; and
draft raises the presumption of payment. 2. If there are special circumstances.
This cannot stand when from the evidence it appears that the Regularity of appointment
obligation was debt, and that the creditors purpose was not
to leave the instrument evidencing the credit in possession of GR: Presumption that public officers, including persons acting
the debtor, if the latter did not forthwith pay the amount in an official capacity, have been duly elected or appointed
mentioned therein. and that they are qualified.
The existence of certificate of indebtedness in the hands of XPN: To a public officer seeking to recover salary attached to
the creditor is evidence that the debt has not been settled. the office, or the benefits of a pension system.
Payment of later installment Regularity of performance of official duty
GR: It is presumed that the former rent or installments had All things are presumed to have been rightly and duly
been paid when a receipt for the later ones is produced. performed until there is proof to the contrary.
XPN: This presumption does not apply when the prior It is generally indulged where the legality of an official act is
installments were made payable in a separate contract questioned collaterally, and not where it is directly attacked
or where a question of jurisdiction is involved.
Unexplained possession of stolen property
It also applies where a duty is imposed on an official to act in
Q: Explain this presumption. a certain way, and assumes that the law tells him what his
duties are; and therefore the presumption that an officer will
A: When a property stolen is found in the possession of a discharge his duties according to law does not apply where
person who is unable to give a satisfactory explanation of his his duties are not specified by law and he is given discretion.
possession he may be deemed to have committed the crime
of theft of said property. Regularity of judicial proceedings
Q: What are the requisites for the presumption to apply? Presumption that the proceedings of a judicial tribunal are
regular and valid, and that judicial acts and duties have been,
A: and will be duly and regularly performed. Where the record is
1. That the crime was committed silent, it will be presumed in favor of the judgment that what
2. That it was committed recently ought to have been done was rightly done.
3. That the stolen property was found in the possession
of the defendant What is the basis of this presumption?
4. That the defendant is unable to explain his
possession satisfactorily A: Expediency, otherwise, every case before it would result in
unnecessarily long and expensive litigations.
Q: What is the reason for the presumption?
Issues properly decided and submitted for arbitration
A: Men who come honestly into the possession of property
have no difficulty in explaining the method by which they Presumption that issues are properly found; that all facts
came into such possession. within the issues, not expressly found, and not inconsistent
with the other finding, have been found in accordance with
Payment arising from possession by debtor of evidence of the judgment; that all the issues in an action were actually
indebtedness heard and decided; that all the material issues were found in

NOTES ON EVIDENCE
favor of the party who recovered the judgment; that a
material fact, put in issue by the pleadings, has been found by True date in writing
court to support a judgment; that all the facts necessary to
the support of a judgment, and which are embraced within Presumption that the instruments were made on the day
the issues, were proven, in the absence of any facts they bear date, or in the code language, that writings are
inconsistent with the relief granted, or the allegation upon truly dated.
which it is based.
Mail and delivery of mail matter
Fairness and regularity of transaction
Proof that a letter or other mail matter is properly addressed,
Presumption that persons carrying on a trade or business are stamped, and mailed raises a presumption that it was
familiar with customs and usages thereof; and contract in received by the addressee.
reference to such customs and usages.
Q: What is the basis for such rule?
Ordinary course of business
A:
Events or facts which usually happen or coexist in the
ordinary course of the business and other human affairs are 1. It is the presumption of probability that officers and
presumed to have happened or coexisted in any particular employees of the post-office department will do
case. In the absence of a contrary showing, it is to be their duty;
presumed that the ordinary course of the business or conduct 2. Regularity and certainty with which, according to
was followed. common experience, the mail is carrier;
3. Statute.
This presumption is rebuttable.
Absence
Sufficient consideration
Presumption of death of a person not for the purpose of
The party alleging lack of consideration has the burden of opening his succession
proving such allegation.
CHAPTER 4
PRESUMPTION OF DEATH
Negotiable instrument
Art. 390. After an absence of seven years, it being unknown whether or not
There is a presumption that an indorsement, made by a the absentee still lives, he shall be presumed dead for all purposes, except
payee or indorsee, without date, was before maturity, and for those of succession.
that the acquired the note or bill before maturity; and in the
The absentee shall not be presumed dead for the purpose of opening his
absence of proof, the indorsement is presumed to have been succession till after an absence of ten years. If he disappeared after the age
made at the time of execution of the note, and at the place of seventy-five years, an absence of five years shall be sufficient in order
where the instrument is dated. This does not apply to non- that his succession may be opened. (n)
negotiable instrument.
Art. 391. The following shall be presumed dead for all purposes, including
the division of the estate among the heirs:
Every N.I is deemed prima facie to have been issued for a
valuable consideration; and every person whose signature (1) A person on board a vessel lost during a sea voyage, or an aeroplane
which is missing, who has not been heard of for four years since the loss of
appears thereon to have become a party thereto for value.
the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been
Indorsement of negotiable instrument missing for four years;
(3) A person who has been in danger of death under other circumstances
Every negotiation is deemed prima facie to have been
and his existence has not been known for four years. (n)
effected before the instrument was overdue.
RATIO: It is now much easier to receive news about what is
Q: What is the importance of this presumption? happening in other parts if the country or even abroad
because of modern means of communication and
A: For one to be a HIDC, one of the requisites is that the transportation.
instrument must have been negotiated to him before it was
overdue. Art. 392. If the absentee appears, or without appearing his existence is
proved, he shall recover his property in the condition in which it may be
found, and the price of any property that may have been alienated or the
property acquired therewith; but he cannot claim either fruits or rents.
(194)

NOTES ON EVIDENCE
Art. 240. Claims for damages by either spouse, except costs of the
Q: What are the other purposes for which the absentee is
proceedings, may be litigated only in a separate action. (n)
presumed dead?
Art. 241. Jurisdiction over the petition shall, upon proof of notice to the
A: other spouse, be exercised by the proper court authorized to hear family
cases, if one exists, or in the regional trial court or its equivalent sitting in
the place where either of the spouses resides. (n)
1. For considering the conjugal partnership terminated;
2. For considering the extinguishment of his civil Art. 242. Upon the filing of the petition, the court shall notify the other
personality; spouse, whose consent to the transaction is required, of said petition,
ordering said spouse to show cause why the petition should not be granted,
3. For substituting him as a party to a case, unless his
on or before the date set in said notice for the initial conference. The notice
claim is not extinguished by death; shall be accompanied by a copy of the petition and shall be served at the
4. For considering his parental authority extinguished; last known address of the spouse concerned. (n)
5. For considering any partnership of which he is a
Art. 243. A preliminary conference shall be conducted by the judge
member dissolved; and
personally without the parties being assisted by counsel. After the initial
6. For considering any contract of agency to which he is conference, if the court deems it useful, the parties may be assisted by
a party, either as principal or agent, terminated. counsel at the succeeding conferences and hearings. (n)
Art. 244. In case of non-appearance of the spouse whose consent is sought,

Article 41 of the Family Code
the court shall inquire into the reasons for his failure to appear, and shall
require such appearance, if possible. (n)
Art. 41. A marriage contracted by any person during subsistence of a
previous marriage shall be null and void, unless before the celebration of Art. 245. If, despite all efforts, the attendance of the non-consenting spouse
the subsequent marriage, the prior spouse had been absent for four is not secured, the court may proceed ex parte and render judgment as the
consecutive years and the spouse present has a well-founded belief that facts and circumstances may warrant. In any case, the judge shall endeavor
the absent spouse was already dead. In case of disappearance where there to protect the interests of the non-appearing spouse. (n)
is danger of death under the circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of only two years shall be Art. 246. If the petition is not resolved at the initial conference, said
sufficient. petition shall be decided in a summary hearing on the basis of affidavits,
documentary evidence or oral testimonies at the sound discretion of the
For the purpose of contracting the subsequent marriage under the court. If testimony is needed, the court shall specify the witnesses to be
preceding paragraph the spouse present must institute a summary heard and the subject-matter of their testimonies, directing the parties to
proceeding as provided in this Code for the declaration of presumptive present said witnesses. (n)
death of the absentee, without prejudice to the effect of reappearance of
the absent spouse. (83a) Art. 247. The judgment of the court shall be immediately final and
executory. (n)
nd
RATIO for the 2 paragraph: To protect the present spouse
from a criminal prosecution for bigamy since with the Art. 248. The petition for judicial authority to administer or encumber
specific separate property of the abandoning spouse and to use the fruits
judicial declaration that the missing spouse is presumptively
or proceeds thereof for the support of the family shall also be governed by
dead, the good faith of the present spouse in contracting the these rules. (n)
second marriage is already established.
Presumption of death of a person for the purpose of
Pertinent Family Code provisions opening his succession
TITLE XI The absentee shall not be presumed dead for the purpose of
SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW
opening his succession till after an absence of 10 years. If he
Chapter 1. Prefatory Provisions disappeared after the age of 75 years, and absence of 5 years
shall be sufficient in order that a succession may be opened.
Art. 238. Until modified by the Supreme Court, the procedural rules
provided for in this Title shall apply as regards separation in fact between
Q: When will the computation for the 10-year period begin?
husband and wife, abandonment by one of the other, and incidents
involving parental authority. (n)
A: It shall begin from the time the person has absented
Chapter 2. Separation in Fact himself, unless news have been received from him, in which
case the period shall begin from date on which the last news
Art. 239. When a husband and wife are separated in fact, or one has
abandoned the other and one of them seeks judicial authorization for a concerning his is received.
transaction where the consent of the other spouse is required by law but
such consent is withheld or cannot be obtained, a verified petition may be Presumption of death of a person for all purposes including
filed in court alleging the foregoing facts.
the decision of the estate among heirs
The petition shall attach the proposed deed, if any, embodying the
transaction, and, if none, shall describe in detail the said transaction and Presumption of death aboard a vessel or airplane
state the reason why the required consent thereto cannot be secured. In
any case, the final deed duly executed by the parties shall be submitted to
and approved by the court. (n)

NOTES ON EVIDENCE
This presumption applies to cases wherein the vessel cannot NOTE: It must appear that the person knew or had notice of
be located nor accounted for, or when its fate is unknown or the fact upon which the alleged acquiescence is founded, and
there is no trace for its whereabouts, inasmuch as the word to which it refers. It cannot arise unless the party against
lost must be given the same meaning as missing whom it is set up is aware of his rights.
employed in connection with an aeroplane.
Ordinary course of business
Vessels will include watercrafts, and aeroplanes will include
all aircraft, whether airplanes, balloons, zepplines, Normality is presumed in all things, and particularly in human
hydroplanes, etc. affairs.
Co-partners
Loss of vessel must be during a sea voyage. This will include
voyages in open seas, passages along mouths of rivers, Where several persons carry on the same business together,
canals, etc. Yet, trips which are only in inland waters are not they are properly presumed to be partners.
included.
Marriage
Presumption of death of member of armed forces missing in
armed hostilities Persons dwelling together in apparent matrimony are
presumed to be in fact married. Accordingly, if the parties
The presumption applies not only to soldiers, but also to were not what they thus hold themselves out as being, they
those who are employed by or render service to the armed would be living in the constant violation of decency and law.
forces like nurses, doctors, strokers in warships, etc., those
who render voluntary service such as guides, and guerillas, The law presumes morality and not immorality; marriage and
and those who stay or follow with the armed forces like not concubinage; legitimacy, and not bastardy.
reporters, photographers, and cameraman.
Acquisition of property through joint efforts
NOTE: It is not enough that the disappearance of such
persons be during wartime; it is necessary that it be during Article 147 of the Family Code
military operations.
Art. 147. When a man and a woman who are capacitated to marry each
other, live exclusively with each other as husband and wife without the
Presumption of death of person in danger of death benefit of marriage or under a void marriage, their wages and salaries shall
be owned by them in equal shares and the property acquired by both of
them through their work or industry shall be governed by the rules on co-
Other circumstances in which there is danger of death would
ownership.
include earthquake, fires, explosions, inundations, dangerous
expeditions, cave-ins of mines, volcanic eruptions, landslides, In the absence of proof to the contrary, properties acquired while they lived
etc. In such cases, the death should be considered to have together shall be presumed to have been obtained by their joint efforts,
work or industry, and shall be owned by them in equal shares. For purposes
taken place on the day of danger; and it is also from this day
of this Article, a party who did not participate in the acquisition by the other
that the 4-year period is to be computed. If the danger party of any property shall be deemed to have contributed jointly in the
continues for several days, there are some who believe that acquisition thereof if the former's efforts consisted in the care and
the period should be counted from the day on which the maintenance of the family and of the household.
danger commenced. More logical view however is that the
Neither party can encumber or dispose by acts inter vivos of his or her share
period should be computed from the last day of such danger; in the property acquired during cohabitation and owned in common, without
in cases of expeditions or similar ventures of which nothing is the consent of the other, until after the termination of their cohabitation.
heard after it has started, the date when it should have been
When only one of the parties to a void marriage is in good faith, the share of
completed, if favorably concluded, is to be taken into
the party in bad faith in the co-ownership shall be forfeited in favor of their
account. common children. In case of default of or waiver by any or all of the common
children or their descendants, each vacant share shall belong to the
Acquiescence respective surviving descendants. In the absence of descendants, such share
shall belong to the innocent party. In all cases, the forfeiture shall take place
upon termination of the cohabitation. (144a)
Q: When is the acquiescence?
Unions governed by Article 147
A: It is when a principal, with knowledge of all the facts
adopts the acts of his agent, although his acts were contrary
to his duty and instructions; and if the principal does not
1. When a man and a woman who are capacitated to marry
each other, live exclusively with each other as husband
dissent or give notice of disapproval within a reasonable time,
and wife without the benefit of marriage:
he will be presumed to have acquiesced.

NOTES ON EVIDENCE
a. The parties must be capacitates to marry each other through equal efforts and the parties will own the
which means that they have no legal impediment to same in equal shares;
get married and consequently, their living together iii. For purposes of this Article, a party who did
dies not prejudice anyone; not participate in the acquisition by the other
b. The cohabitation of the parties must be exclusive. party of any property shall be deemed to have
Multiple alliances are thus excluded. contributed jointly in the acquisition thereof if the
former's efforts consisted in the care and
RATIO: It is to encourage the parties, who have no legal maintenance of the family and of the household.
impediment to get married to each other, to eventually
legalize their union. NOTE: Where the only contribution of the common-law wife
in the acquisition of the properties was moral or spiritual in
2. When a man and a woman live together under a void character, her interest as co-owner of such properties shall
marriage: be determined by the courts by using their sound discretion.
a. Applies to void marriages where the parties or either Special rules applicable to void marriages under Article 147
of them does not have an existing valid marriage.
Hence, bigamous marriages will not fall under this When only one of the parties to a void marriage is in good
Article. faith, the other party having been aware of the ground that
b. If the parties do not have existing marriages with renders their marriage void but did not communicate it to the
other persons but their marriages is void for other other party; the share of the party in bad faith in the co-
reasons (incestuous marriage or marriage against ownership shall be forfeited as follows:
public policy), it is believed that this Article will
apply. A. In favor of their common children;
B. In case of the predecease of a common child, in
Rules governing property relations of the unions under favor of the descendants of said child, who take the
Article 147 vacant share by the deceased child;
C. The right of representation of the descendants
1. Wages and salaries earned by either spouse during the applies even in case of repudiation by a common
cohabitation shall be owned by them in equal shares and child or his or her share in the forfeited property,
will be divided equally between them, even if anyone since this is transmission inter vivos, not mortis
party earned the wages and salaries and the other did causa, so that the legal principles governing this kind
not contribute thereto. of transmission are different.
D. If the descendant dies ahead of the common child of
2. Property acquired by the parties during their whom he is a descendant, there will be no
cohabitation shall be governed by the following rules: transmission between the two.
a. If the property was not acquired by their joint work Cohabitation

or industry, but was acquired by either party
Article 148 of the Family Code
through donation or succession or as exchange for
such exclusive properties are also not covered by Art. 148. In cases of cohabitation not falling under the preceding Article, only
this article; the properties acquired by both of the parties through their actual joint
contribution of money, property, or industry shall be owned by them in
b. Fruits and income of these exclusive income are also common in proportion to their respective contributions. In the absence of
not covered; proof to the contrary, their contributions and corresponding shares are
presumed to be equal. The same rule and presumption shall apply to joint
c. Absence of proof to the contrary however, deposits of money and evidences of credit.
properties acquired during the cohabitation of the
If one of the parties is validly married to another, his or her share in the co-
parties are presumed to have been acquired through ownership shall accrue to the absolute community or conjugal partnership
their joint efforts, work or industry; existing in such valid marriage. If the party who acted in bad faith is not
d. Properties acquired through work or industry are validly married to another, his or her shall be forfeited in the manner
provided in the last paragraph of the preceding Article.
governed by the following rules:
The foregoing rules on forfeiture shall likewise apply even if both parties are
in bad faith. (144a)
i. Rules of co-ownership-parties own said properties
in proportion to their efforts in acquiring the Q: Under what circumstances this article apply?
same;
ii. In the absence of proof as to their contribution, it A:
is presumed that the properties were obtained
NOTES ON EVIDENCE
1. Bigamous marriage; A child born before one hundred eighty days after the
2. Adulterous relationships; solemnization of the subsequent marriage
3. Relationships in a state of concubinage;
4. Relationship were both man and woman are married Such child shall be considered to be the child of the first
to other persons; and husband. This presumption can be overthrown only when the
5. Multiple alliances of the same married man. husband who is presumed to be the father, or his heirs in
proper cases, brings an action to impugn the legitimacy of the
Only properties acquired by the parties through their actual child. The child himself cannot choose his own filiation.
contribution of money, property, or industry shall be owned
in common in proportion to their respective contributions. A child born after one hundred eighty days following the
Hence: celebration of the subsequent marriage
a. Wages and salaries earned by each other belong to Such child shall be considered as the child of the second
him or her exclusively; husband. This presumption can be overthrown:
b. Care by one of the party of the home, children and
household or spiritual or moral inspiration provided a. By proving physical impossibility of access by the
to the other, is not included. husband to the wife during the period of conception
of the child;
In the absence of proof to the contrary, contributions and b. By showing that the wife, upon the death of the
shares of the parties to the properties acquired during their husband, or upon annulment of her marriage, gave
cohabitation are presumed to be equal. notice of pregnancy as required by Art. 260, because
such notice will be deemed to be true;
This rule applies to joint deposits of money and to evidence c. By proving that the first husband has left some
of credit. document expressly acknowledging the pregnancy of
the wife, at the time of his death; and
If one party is validly married to another: d. By utilizing blood test exclusion to show that the
child and the second husband belong to different
1. His or her share in the co-owned properties will accrue to blood groups.
the absolute community or conjugal partnership of his or
her existing valid marriage; Continuance of established condition
2. If the party who acted in bad faith is not validly married
to another, his or her share shall be forfeited in the same Proof of the existence at a particular time of a fact of a
manner as that provided in the preceding article; continuous nature gives rise to an inference, within logical
3. Same rule applies even if both parties are in bad faith. limits, that exists at a subsequent time, unless the contrary is
shown.
Note: Pari delicto does not apply in family law.
Q: Who has the burden of proof?
Termination of marriage
A: It is on the party who seeks to prove its termination, when
Article 168 of the Family Code such termination is claimed to have occurred prematurely.
Art. 168. If the marriage is terminated and the mother NOTE: A present possessor who shows his possession at
contracted another marriage within three hundred days after some previous time, is presumed to have held possession
such termination of the former marriage, these rules shall also during the intermediate period, in the absence of proof
govern in the absence of proof to the contrary: to the contrary.
(1) A child born before one hundred eighty days after the Obedience of the law
solemnization of the subsequent marriage is considered to
have been conceived during the former marriage, provided it Q: What is the presumption under this?
be born within three hundred days after the termination of
the former marriage; A: There is presumption in favor of legality and compliance
(2) A child born after one hundred eighty days following the with the law, and against illegality
celebration of the subsequent marriage is considered to have
been conceived during such marriage, even though it be born Every alleged violation must be established by competent
within the three hundred days after the termination of the proof.
former marriage. (259a)

NOTES ON EVIDENCE
Printed books containing reports of cases
Section 4. No presumption of legitimacy or illegitimacy
The actual decisions and opinions contained in law reports,
various selected case series, and other reports of like kind, Q: What is the reason for the fixing of the period of 300
found in non-official reports, are just as official as the days?
decisions and opinions published in these non-official law
reports. A: If the ordinary average duration of the pregnancy of
woman is nine months and some days a tardy birth is not an
The copies of the opinions published in these non-official law impossibility or an unusual event, and neither is it impossible
reports are obtained from the same source and are just as or unusual to have a delayed or retarded conception, one of
authentic as the copies from which the official reports are the inexplicable mysteries of nature since the opinions of
made up. physicians upon the matter are conflicting.
Conveyance by trustee Thus, in fixing the said 300 days, the law admits the possibility
that a woman may be in pregnancy for more than 9 months
Q: Explain the presumption. and that the birth of a child taking place 9 months after it was
conceived is not an impossibility.
A: There is a presumption that every instrument has been
executed which it was the legal duty of his trustee to execute TITLE VI
in order to perfect his title. PATERNITY AND FILIATION
Chapter 1. Legitimate Children
Q: What are the requisites for the presumption to apply?
Art. 163. The filiation of children may be by nature or by adoption. Natural
filiation may be legitimate or illegitimate. (n)
A:
1. It must have been the duty of the trustee to convey Art. 164. Children conceived or born during the marriage of the parents are
2. There must be sufficient reason to justify the legitimate.
presumption Children conceived as a result of artificial insemination of the wife with the
sperm of the husband or that of a donor or both are likewise legitimate
3. The object o the presumption must be to support a
children of the husband and his wife, provided, that both of them
just title authorized or ratified such insemination in a written instrument executed
4. The case must be clearly such that a court of equity, and signed by them before the birth of the child. The instrument shall be
if called upon, would decree a reconveyance. recorded in the civil registry together with the birth certificate of the child.
(55a, 258a)
Survivorship Art. 165. Children conceived and born outside a valid marriage are
illegitimate, unless otherwise provided in this Code. (n)
Q: Explain the rule on survivorship.
Art. 166. Legitimacy of a child may be impugned only on the following
grounds:
A: Survivorship is presumed, as between persons who have (1) That it was physically impossible for the husband to have sexual
perished in a common calamity, from the probabilities intercourse with his wife within the first 120 days of the 300 days which
resulting from strength, age, and sex, according to specified immediately preceded the birth of the child because of:
(a) the physical incapacity of the husband to have sexual intercourse with
rules.
his wife;
(b) the fact that the husband and wife were living separately in such a way
Such statutes do not apply where the order of death is shown that sexual intercourse was not possible; or
by evidence either direct or circumstantial. (c) serious illness of the husband, which absolutely prevented sexual
intercourse;
(2) That it is proved that for biological or other scientific reasons, the child
Doubt as to survivorship could not have been that of the husband, except in the instance provided in
the second paragraph of Article 164; or
Q: What does the rule mean? (3) That in case of children conceived through artificial insemination, the
written authorization or ratification of either parent was obtained through
mistake, fraud, violence, intimidation, or undue influence. (255a)
A: It refers only to cases where two or more persons are
called to succeed each other. Hence, it cannot apply to cases Art. 167. The child shall be considered legitimate although the mother may
which do not involve succession. have declared against its legitimacy or may have been sentenced as an
adulteress. (256a)
Art. 168. If the marriage is terminated and the mother contracted another
marriage within three hundred days after such termination of the former
marriage, these rules shall govern in the absence of proof to the contrary:
(1) A child born before one hundred eighty days after the solemnization of
the subsequent marriage is considered to have been conceived during the

NOTES ON EVIDENCE
former marriage, provided it be born within three hundred days after the RULE 132
termination of the former marriage;
PRESENTATION OF EVIDENCE
(2) A child born after one hundred eighty days following the celebration of
the subsequent marriage is considered to have been conceived during such
marriage, even though it be born within the three hundred days after the A. EXAMINATION OF EVIDENCE
termination of the former marriage. (259a) Introductory
Art. 169. The legitimacy or illegitimacy of a child born after three hundred
days following the termination of the marriage shall be proved by whoever Section 1. Examination to be done in open court
alleges such legitimacy or illegitimacy. (261a)
Q: Define a witness.
Art. 170. The action to impugn the legitimacy of the child shall be brought
within one year from the knowledge of the birth or its recording in the civil
register, if the husband or, in a proper case, any of his heirs, should reside A: It has reference to those who testify in a cause or give
in the city or municipality where the birth took place or was recorded. evidence before a judicial tribunal.
If the husband or, in his default, all of his heirs do not reside at the place of
birth as defined in the first paragraph or where it was recorded, the period
Q: Why the examination of a witness be done orally in open
shall be two years if they should reside in the Philippines; and three years if
abroad. If the birth of the child has been concealed from or was unknown court?
to the husband or his heirs, the period shall be counted from the discovery
or knowledge of the birth of the child or of the fact of registration of said A: It is to enable the court to judge the credibility of the
birth, whichever is earlier. (263a)
witness manner of testifying, their intelligence and their
Art. 171. The heirs of the husband may impugn the filiation of the child appearance. It is unquestionably the safest and most
within the period prescribed in the preceding article only in the following satisfactory method of investigating facts, and affords the
cases: greatest protection to the rights and liberties of the citizen.
(1) If the husband should died before the expiration of the period fixed for
bringing his action;
(2) If he should die after the filing of the complaint without having desisted Q: What is meant by open court?
therefrom; or
(3) If the child was born after the death of the husband. (262a) A: It is a court formally opened and engaged in the
transaction of judicial affairs, to which all persons who
Q: Is the period applicable to utero gestation? conduct themselves in an orderly manner are admitted.
A: It is practically impossible to fix an absolute definite period Q: What is an oath?
for utero gestation because in most cases no exact data is
available as to the time when the pregnancy actaully began. A: It is an appeal by a person to God to witness the truth of
what he declares and an impreciation of Divine punishment
Q: What is artificial insemmination? or vengeance upon him if what he says is false.
A: It is the impregnation of a female with semen from a male B. EXAMINATION OF WITNESSES
without sexual intercourse. All that is needed is the squirting
of semen toward the uterine opening by means of a syringe Q: Who conducts the examination of witnesses?
inserted into the vagina. That semen may that of the husband
(AIII or homologous artificial insemmination), or that of a A: It is ordinarily conducted by counsel.
donor (AID or heteroglous artificial insemmination), or a
combination of the husband and the donors semen (AIC or While a party has the right to appear in propia persona or by
confused or combined artificial insemination). counsel, he has not both rights and the court may refuse him
permission to examine a witness when he is represented by
his counsel.
Where a party is represented by counsel, the court may
properly prevent the party from interrogating a witness, but
the interrogation of a witness by a party who is represented
by counsel is sometimes allowed.
Q: When a party is represented by several counsels who

conduct the examination of witnesses?
A: One counsel should be allowed to examine a witness a

witness in a single stage.
But other counsel may make objection to testimony.

NOTES ON EVIDENCE
Q: What are the reasons for such rule? A: It is when it seeks to elicit the answer of the witness to the
argument presented. The ruling of the trial judge on the
A: objection that a question is argumentative is peculiarly within
his province.
1. To protect the witnesses from undue and confusing
interrogation; and Question must not call for conclusion of law
2. To secure system and brevity by giving the control of
the interrogation to a single hand. A witness no matter how skillful is not permitted to testify as
to whether or not a party is responsible to the law, or
Form and nature of the questions whether certain facts constitute in law an agency.
Q: What are the form and nature of the questions that may Questions must not call for opinion or hearsay evidence
or may not be propounded to a witness?
A witness can testify to those facts only which he knows of
A: his own knowledgederived from his own perception,
except where a case is a proper one for the introduction of
1. Question must not be indefinite or uncertain; opinion evidence or calls for a testimony which falls within
2. Question must be relevant; the exceptions to the hearsay rule.
3. Question must not be argumentative;
4. Question must not call for conclusion of law; E.g. A question asked if the witness had ever heard of a
5. Questions must not call for opinion or hearsay conduct like the one in issue being made by a certain
evidence; company.
6. Question must not call for illegal answer
7. Question must not call for self-incriminating Question must not call for illegal answer
testimony;
8. Question must not be leading; Where a witness is prohibited by law from furnishing certain
9. Question must not be misleading; information, he cannot be compelled to do so by his answer.
10. Question must not tend to degrade reputation of
witness; and Question must not call for self-incriminating testimony
11. Question must not be repetitious
It is improper to propound questions calling for self-
Question must not be indefinite or uncertain incriminating answer. Yet, the better rule is that the mere
fact that the answer might incriminate the witness does not
Must not be so indefinite as to fail to put the adverse party render the question improper, since the witness is privileged
on notice of the testimony sought to be elicited and preclude to refuse to answer it.
him from objecting to the question in a specific manner as to
prevent any improper answer, and to leave it to the Question must not be leading (Sec. 10, Rule 132)
discretion of the witness as to what matter he shall
elucidate. Question must not be misleading (Sec. 10, Rule 132)
E.g. When you went to the butchers shop or slaughter house Question must not tend to degrade reputation of witness
for the first time, did you go in? This is objectionable as it (Sec. 10, Rule 132)
could not be understood whether it referred to the butchers
shop or to the slaughter house. Question must not be repetitious
Question must be relevant When an objection to a question is sustained, there is no

justification for repeating such question.
Questions should be framed to elicit testimony which tends
to prove the issue involved. As a rule, questions must be The repetition of a question after the witness has disavowed
relevant to the issue in the case. The materiality of a question knowledge, or has satisfactorily or substantially answered is
must appear or be shown at the time the question is asked. properly disallowed, especially where the answer already
given is straight forward and not evasive. Yet, if the answer
Question must not be argumentative given to a question is reluctant and evasive, it is proper for
the court to permit the repetition of such question.
Q: When is a question argumentative?
This largely rests in the discretion of the trial court.

NOTES ON EVIDENCE
Q: May the court suggest the form of questions? A witness cannot be required to answer yes or no when
the nature of the question is not such as to make such an
A: The Court should not be so strict as to the mere form of a answer appropriate. The cross-examiner can confine the
question as will result in injustice when the evidence which is witness to a direct answer, leaving the explanation of the
intended to be brought out by it, is competent and material answer to be brought out on redirect examination.
and is absolutely necessary to the protection of the partys
rights. Answer based on witness own knowledge in part
They may and should go so far as to indicate and suggest the An answer which is based partly on the witness own
form of questions to and the method of examination of a knowledge cannot be excluded as a whole because it is also
witness where it appears that examining counsel, through based in part on what another person told him.
inexperience or misunderstanding, is unable to extract which
is competent and essential to his clients case. Repetitious answers
There are certain rights which are inherent in judges due to It was not error to strike out of an answer that which was
the nature of their functions. Among these is the right to only a reiteration of what the witness had testified to and
question a witness with a view to satisfying his mind upon about which there was no dispute.
material point which presents itself during the trial and as to
the credibility of such witness. Answers must be responsive to the question asked
Where the degree of credit which he is to give the testimony Q: What is a non-responsive question?
of a given witness may have an important bearing upon the
outcome, there can be no question that in the exercise of A: It is one that states facts not called for by the question.
sound discretion he may put such questions to the witnesses
as in his opinion will aid him in determining the ability or the These questions are not allowed. The answer should be
willingness of the witness to tell the truth. responsive, stating all facts called for, and no more, and
generally without any expression of opinions, inferences, or
Form and nature of the answers conjectures. A non-responsive answer, or if it fails to convey
all the facts which were required, or if it states facts of
Q: What are the form and nature of the answers a witness opinions not required, it may be stricken out on motion as far
must give to questions propounded to him? as it is not responsive, and the refusal of his motion when
seasonable objection is made by the accused is reversible
A: error.
1. General answers; The court may always in its discretion direct a witness to
2. Categorical answers; answer a relevant question responsively if he persists in
3. Answer based on witness own knowledge in part; replying evasively.
4. Repetitious answers;
5. Answers must be responsive to the question asked; Where the answer is partly responsive
6. Where the answer is partly responsive;
7. Answer responsive to part of question; and The unresponsive matter may be stricken out. Partial
8. Answer unresponsive but relevant unresponsiveness does not warrant striking the answer as a
whole. Where an answer in response to an interrogatory was
General answers offered in evidence as an entirety, and a part was not
responsive was inadmissible for other reasons, the entire
An answer too general, and not confined to the issues evidence was properly exclude.
involved is properly excluded. A party who could have
elicited the details by cross-examination, cannot complain of Answer responsive to part of question
the generality of an answer by his opponents witness.
Where the inquiry is complicated and involves several
Categorical answers questions in one, the answer of witness may be construed as
referring only to part of such inquiry. Where a question was
Trial Courts has the discretion in determining whether a complex and the answer was responsive only to a part but
witness should be required to answer categorically yes or the witness meaning was made clear by further answers to
no or be permitted to explain his answer. questions of the Court, there was no error in refusing to
strike the answer.

NOTES ON EVIDENCE
Answer unresponsive but relevant A: Since all the courts are courts of record, the entire
proceedings of a trial or hearing shall be recorded not only by
The fact that an answer may be unresponsive is not shorthand or stenotype but also by other means approved by
necessarily, nor at all in some cases, sufficient ground for its the court:
exclusion if it is competent evidence.
a. Questions propounded to a witness and his answers
Q: Who may raise the objection of lack of responsiveness? thereto;
b. Objections to the questions and the ruling of the
A: It can be made only by the party examining the witness; if court in connection therewith;
the answer is proper evidence, the party who is examining c. Statements made by a judge or any of the parties,
the witness has the right to retain it if he chooses to do so, counsel, or witnesses with reference to the case.
and it cannot be excluded on the objection of the adverse
party. Where a party asks to have a part only of an answer Q: What is the probative value of the certification of the
struck, which is done, he is bound by the part which remains. official stenographer, stenotypist or recorder?
Q: What is the remedy when the answer of the witness is A: It is prima facie evidence of its correctness.
not responsive?
A: It is to strike out the objectionable testimony. If any

testimony appears to be unresponsive and prejudicial, Section 3. Rights and obligations of a witness
striking it out may be demanded as a matter of right.
Q: Is a witness bound to answer a question which may tend
A motion to strike out testimony should specify the objection to establish a claim against him?
as well as the portion of the evidence which is objected to. A
motion to strike out all of certain evidence should not be A: Although the answer to the question may tend to establish
sustained if a part of the evidence is relevant and competent. a claim against the witness, he is bound to answer the
question.
Q: Supposing a witness answers a question before the
adverse party could fully object and such objection is found A constitutional provision against compulsory self-
to a meritorious, what course should the court take? incrimination or that no person is required to furnish against
himself relates to criminal proceedings only, and not to civil
A: The Court shall sustain the objection and order the answer action, or to evidence that may be used against the witness in
given to be stricken off the record. such action, or to questions of property or business. A
witness cannot refuse to testify because his answer might
Q: When may the testimony of a witness be given in expose him to a civil action or liability.
narrative form?
The rights and obligations of a witness
A:
Q: What are the rights and obligations of a witness?
1. Where a party witness is his own counsel;
2. When allowed by the trial court in the exercise of its A:
discretion as in the case of a witness allowed to
describe a transaction from the beginning once his 1. To be protected from irrelevant or insulting
attention has been drawn to the time and place of questions;
the scene of action. 2. To be protected from harsh or insulting demeanor;
3. To be detained only so long as interests of justice
But if, in giving such testimony, the witness states matters requires it;
irrelevant or immaterial or incompetent it is the right and 4. To be examined only on matters pertinent to the
duty of counsel objecting to such testimony to interpose and issue;
arrest the narrative by calling the attention of the court to 5. To refrain from answering questions if the answer
the objectionable matter and by a motion to strike it out. will have a direct to degrade his character;
6. To answer question about his previous final
conviction of an offense;
Section 2. Proceedings to be recorded 7. To refrain from answering questions which may
incriminate him;
Q: What must be recorded during the trial?
To be protected from irrelevant or insulting questions

NOTES ON EVIDENCE
It is not declared that he may not be compelled to testify to
Protection from questions which go beyond the bounds of facts which may impair his reputation for probity, or even
proper cross-examination merely to harass, annoy or tend to disgrace him, but the line is drawn at testimony that
humiliate him. The court may , in its discretion, exclude may expose him to prosecution.
questions which are calculated to ridicule or mortify the
witness to whom they are propounded. The privilege of the witness ought not to be considered as
superior to the rights of individuals, or the demands of public
To be protected from harsh or insulting demeanor justice. He is required to speck of a transaction in which he
voluntarily participated. If he sustains a loss or reputation in
Duty of the Court to protect a witness on cross-examination consequence of his disclosures, it is but the result of his own
from being unfairly dealt with, and cross-examining counsel wrong.
should not be permitted to browbeat, bulldoze, or intimidate
a witness, or coerce him, to approach so closely as to The privilege not to give an answer which will have a direct
embarrass, or intimidate him, to confuse him by a too rapid tendency to degrade his character if irrelevant to the issue is
cross-examination, to use violent or abusive language personal. It is for the witness to assert his privilege.
towards him.
To answer question about his previous final conviction of an
A witness should be protected from the harsh or insulting offense
demeanor of the examining counsel. Yet, a witness need not
be shielded against any embarrassment that might result GR: It is permissible to inquire into former convictions of
from a proper examination. crime to show the credibility of the accused as a witness.
To be detained only so long as interests of justice requires it XPN: A witness has the right to refuse to answer a question
about his having been merely charged with an offense, or for
A witness should not be detained longer than the interests his having been convicted, provided that the final judgment
of justice require. The trial judge may, where a witness has of conviction is not yet final.
told all he knows about the subject under investigation,
exclude further questions thereon, indeed, it may be the duty To refrain from answering questions which may incriminate
of the trial judge to stop the examination of a witness, who him
has stated that he knows nothing more about the matter
under consideration than that to which he has already A witness need not give an answer which will have a
testified. tendency to subject him to a penalty for an offense unless
otherwise provided by law.
To be examined only on matters pertinent to the issue
Q: What is the reason for the privilege?
The examination should be restricted to competent, material,
and relevant evidence; the court may interrupt a witness in A: It is due to the tolerance with which confessions coerced
order to prevent the eliciting of incompetent evidence, and it by inquisitorial torture were regarded in all civilized
is proper for the trial judge to state wherein a line of countries. It is intended to prevent in a positive manner the
examination is immaterial. repetition of cases whereby a person in a criminal proceeding
of different nature is with human result obliged to furnish the
To refrain from answering questions if the answer will have necessary damaging evidence against himself.
a direct to degrade his character
This was established both on:
Witness is not bound to answer questions if the answer a. Grounds of public policy- it would place the witness
thereto would have direct tendency to degrade his under strongest temptation to commit perjury
reputation, unless it the very fact at issue or to a fact from b. Of humanity- it would be to extort a confession of
which the fact at issue would be presumed. truth by a kind of duress every specie and degree of
which the law abhors.
A witness cannot avoid answering a question material to the
issue, on the ground that it imputes disgrace to himself , if Q: Can corporations claim this right?
such disgrace does not amount to incrimination, and if the
matter is relevant to the issue in such case he will be obliged A: The historic function of the privilege against self-
to give evidence, however strongly it may reflect upon his incrimination is to protect only the natural individual. A
character. corporate officer may not withhold testimony or documents
on the ground that his corporation would be incriminated. A
custodian of corporate books may not withhold them on the

NOTES ON EVIDENCE
ground that he personally may be incriminated by their the accused. incriminatory question at
protection. He cannot be compelled to the time it is put to him
do so even by subpoena or
The privilege also applies to an unincorporated association, other process or order of
such as a labor union. court.
He cannot be required to be
Q: What is the scope of the privilege? a witness either for the
prosecution or even for
A: It is a prohibition against physical or moral compulsion to himself
extort communications from him and not an exclusion of
body as evidence, when it may be material. The prohibition is The defendant in a criminal
simply against the legal process to extract from the action can refuse to testify
defendants own lips, against his will, an admission of his altogether
guilt.
Q: What is the consequence if the accused testify on his own
The privilege extends to production of inculpatory behalf?
documents. Therefore, the accused cannot be required to
produce a document in his possession for use as evidence A: He may be cross-examined as any other witness. He may
against him. be cross-examined as to any matters stated in his direct
examination, or connected therewith. He may not on cross-
Q: Does the rule apply to agents? examination refused to answer any question on the ground
that the answer he will give or the evidence he will produce,
A: Yes, it applies to agents whose possession the accused has would have a tendency to incriminate him for the crime
entrusted the incriminating papers. So, a lawyer who has which he is charged.
received the defendants papers from him after his retainer
as defense attorney cannot be called upon to produce them Q: Give the summary of the rights of the accused:
in court under a subpoena duces tecum.
A:
Q: Describe the nature of the right of the accused against
self-incrimination. 1. Before the case is filed in court but after having
been taken into custody or otherwise deprived of his
A: It is a personal one. But the privilege is an option of refusal liberty in some significant way, and on being
not a prohibition of inquiry. Hence, when an ordinary witness
interrogated by the police, the continuing right to
is on the stand, and self-incriminating act relevant to the
issue is desired to be shown by him, the question may be remain silent and to counsel, and to be informed
asked, and then it is for the witness to say whatever he will thereof, not to be subjected to force, violence,
answer it or claim his privilege, or it cannot be known before threat, intimidation or any other means which
hand what he will do. vitiates the free will and to have evidence obtained
in violation of these rights rejected.
Q: Can you waive this right?
2. After the case is filed in court:
A: This right is not self-executing or automatically
operational. It must be claimed. If not claimed by or in behalf a. To refuse to be a witness;
of the witness, the protection does not come into play. It b. Not to have any prejudice whatsoever result to him
follows that the right may be waived: by such refusal;
a. Expressly c. To testify on his own behalf, subject to cross-
b. Impliedly examination by the prosecution; and
d. While testifying to refuse to answer a specific
Q: Distinguish: Right of accused against self-incrimination v. question which tends to incriminate him for some
Right against self-incrimination of an ordinary witness. crime other than that for which he is then
prosecuted.
A:
ACCUSED ORDINARY WITNESS Rights during custodial Rights during preliminary
He cannot be compelled to He may be compelled to investigation investigation or in open
testify or produce evidence testify by subpoena, having court as regards giving of
in the criminal case in which only the right to refuse to testimony
he is the accused or one of answer a particular A defendant on trial or under

NOTES ON EVIDENCE
preliminary investigation is a. He cannot be compelled to take dictation from
not under custodial prosecuting officer for the purpose of detecting his
investigation. participation in crime; writing is not a purely
A defendant in a criminal mechanical act, because it requires the application
case already pending in court of intelligence and attention
(or the public prosecutors b. An accused cannot be compelled to copy in her own
office), there is no occasion writing certain letters to be introduced in evidence
to speak of his right in an administrative case
Possesses the right against c. A lawyer cannot be called upon to produce them in
self-incrimination court under a subpoena duces tecum
d. Forced-enactment, like uncounselled and coerced
Q: What are the other rights of the accused in a criminal confessions
case regarding his giving of testimony or refusing to do so?
Q: Distinguish forced-reenactment from mechanical acts the
A: accused is made to execute certain physical attributes
determinable by simple observation.
1. To be exempt from being a witness against himself;
2. To testify as a witness in his own behalf; yet, if he A:
offers himself as a witness he may be cross- FORCED-REENACTMENT MECHANICAL ACTS
examined as any other witnesses; however, his Not meant to unearth
neglect or refusal to be a witness shall not in any undisclosed facts but to
manner prejudice or be used against him. ascertain physical attributes
determinable by simple
Disclosure not violative of accuseds right against self- observation
incrimination a. Extract virus from
his body
An accused or a witness may be required to do other things b. Expectorate
which are not violative of his right against self-incrimination: morphine from his
mouth
a. For the purpose of identification or comparison, he c. Submission to a
may be required to stand up in court pregnancy test
b. Appear at the scene of the crime d. To take part in
c. To put on a blouse to see if it fits him police line-up
d. To place a handkerchief over his face Not a prerequisite that he be
e. To stand up and remove his glasses provided with the guiding
f. To remove his shirt and permit the court to see scars hand of counsel
on his body and to don shirt introduce in evidence
g. To exhibit his hands or his arms to reveal tattoo Laws granting immunity from prosecution to a witness
marks therein whose testimony may be self-incriminating
h. To discharge prohibited drugs from his mouth
i. To submit to a face shaving or haircut Q: What are immunity statutes?
j. To a scientific test for alcoholic examination
k. To submit to a physical examination A: There are laws which are enacted to provide a substitute
l. To remove any article of dress which denies that for the privilege against self-incrimination.
opportunity for observation which has commonly
existed for those coming in contact with him, such as Q: What are the 2 kinds of immunity statutes?
his hat or an article of dress hiding his face
m. To allow the taking of the portion of a substance A:
emitting from his body 1. Use immunity
n. Finger-printing, photographed and measured under 2. Transactional immunity
Bertillon system
o. Paraffin test USE IMMUNITY TRANSACTIONAL IMMUNITY
Prohibits the use of witness Grants immunity to the
Disclosures violative of accuseds right against self- compelled testimony and its witness from prosecution for
incrimination fruits in any manner in an offense to which his
connecting with the criminal compelled testimony relates
prosecution of the witbess

NOTES ON EVIDENCE
1. The prosecution shall present evidence to prove the
Examples: charge and in the proper case, the civil liability
2. The accused may present evidence to prove the
1. RA 1379 (Forfeiture of illegally obtained wealth) charge and damages, if any, arising from the
2. P.D. 749 (Bribery and Graft cases) issuance of any provisional remedy in the case
3. E.O. 14 (Proceedings before the PCGG) 3. The parties may then respectively present rebutting
4. 1987 Constitution (Commission on Human Rights) evidence only, in furtherance of justice, permits
them to present additional evidence bearing upon
the main issue
4. Upon admission of the evidence, the case shall be
Section 4. Order of the examination of an individual witness deemed submitted for decision unless the court
directs the parties to argue orally or to submit
CIVIL CASES memoranda.
5. However, when the accused admits the act or
Q: State the order of trial in civil cases. omission charged in the complaint or information
but interposes a lawful defense, the order of trial
A: Section 2 of Rule 31 provides: may be modified accordingly.
1. The plaintiff must produce the evidence on his part Q: State the order of examination of a witness.
2. The defendant shall then offer evidence in support
of his defense, counter-claim, cross-claim, and third- A:
party claim 1. Direct examination by the proponent;
3. The third party defendant, if any, shall introduce 2. Cross-examination by the opponent;
evidence of his defense, counter-claim, cross-claim, 3. Re-direct examination by the proponent; and
and third-party claim 4. Re-cross examination by the opponent.
4. The fourth, etc. party, if any shall introduce evidence
of material facts by him pleaded Q: What is direct examination?
5. The parties against whom any counter-claim or
cross-claim has been pleaded, shall introduce A: It is the examination in-chief of a witness that is, the initial
evidence in support of their defense, in the order to examination by the party calling him
be prescribed by the court
6. The parties may then respectively offer rebutting Q: What is cross-examination?
evidence only, unless the court, for good reasons, n
the furtherance of justice, permits them to offer A: It is defined as the examination of a witness by the party
evidence upon their original case opposed to the party who called such witness, the latter
7. When the evidence is concluded, unless the parties party having examined, or having been entitled to examine
agree to submit the case without argument, the such witness in chief.
plaintiff or his counsel may make the opening
argument, the defendant, the third party defendant, Evidence elicited on cross-examination is regarded as
and fourth, etc. party or their respective counsel, testimony on the part of the party calling the witness, and
may follow, successively, and the plaintiff or his not as evidence of the party cross-examining.
counsel, may conclude the argument. Two counsel
may, if desired, be heard upon each side, but in the Q: What is meant by re-direct examination?
order herein specified
8. If several defendants or third party defendants A: After a witness has been cross-examined, the next stage in
having separate defenses, appear by different the proceeding is his reexamination by the party calling him.
counsel, the court must determine their relative
order in the evidence and argument, but in any Q: What is re-cross examination?
event the plaintiff is entitled to the opening and
closing argument. A: It is the operation of examining a witness who has finished
his examination in chief, cross-examination, and re-direct
CRIMINAL CASES examination, by the lawyer who cross-examined.
Q: State the order of trial in criminal cases.
A: Section 5. Direct Examination

NOTES ON EVIDENCE
Q: What is the scope of direct-examination? same parties and subject matter, the adverse party having
had the opportunity to cross-examine him;
A: It includes interrogation as to the facts within his
knowledge relevant to the issue. Q: When does cross-examination become a privilege?
Q: What is its function? A: It ceases to be a right where the cross-examination in chief

is apparently concluded and the attendance of the witness is
A: It is to build up the theory of the case and nothing more. either dispensed with from the stand or the re-examination,
if any, has begun.
Q: What are the facts relevant to the issue?
Accordingly, the ordinary rules of procedure made to the end
A: These are the facts from the existence of which reference that the truth may be elicited by the expeditious as well as
as to the truth or existence of the right or liability to be orderly examination of witness require that parities must
ascertained may logically be drawn. Thus, the pleadings of exhaust their cross-examination of a witness when once
the parties must first be looked to for the purpose of entered upon.
ascertaining the issue.
Q: State its purpose.
A: It is to test the truth of statements of a witness made on

Section 6. Cross-Examination direct-examination. It serves as a safeguard to combat
unreliable testimony, providing means for discrediting a
Q: Is cross-examination a right or a privilege? witness testimony and is in the nature of an attack on his
truth or accuracy.
A: It is an absolute right, not a mere privilege, of the party It is also a leading and searching inquiry of witness for further
against whom he is called, and with regard to the accused, it disclosure touching the particular matters detailed by him in
is the right granted by the Constitution. his direct examination, and it serves to sift, modify, or
explain what has been said, in order to develop new or old
ARTICLE 3 OF 1987 CONSTITUTION facts in a view favorable to the cross-examiner.
Section 14. (1) No person shall be held to answer for a Its objective is to weaken or disprove the case of ones
criminal offense without due process of law. adversary, and break down his testimony in chief, test the
collection, veracity, accuracy, honesty and bias or prejudice
(2) In all criminal prosecutions, the accused shall be of the witness, his source of information, motives, interest
presumed innocent until the contrary is proved, and shall and memory, and exhibit all improbabilities of his testimony.
enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against Q: May the court intervene in the cross-examination of the
him, to have a speedy, impartial, and public trial, to meet witness?
the witnesses face to face, and to have compulsory process
to secure the attendance of witnesses and the production of A:It should stay out if it as much as possible, neither
evidence in his behalf. However, after arraignment, trial interfering nor intervening in the conduct thereof.
may proceed notwithstanding the absence of the accused:
Provided, that he has been duly notified and his failure to Q: What is the scope and extent of cross-examination?
appear is unjustifiable.
A: It is not confined to matters inquired about on direct
RULES OF COURT examination (English Rule).
Section 1. Rights of accused at the trial. American Rule provides however that cross-examination
must be confined to facts and circumstances brought out, or
In all criminal prosecutions, the accused shall be entitled: connected with, matters stated on direct-examination.
(f) To confront and cross-examine the witnesses against him We follow the English Rule.
at the trial. Either party may utilize as part of its evidence
the testimony of a witness who is deceased, out of or Q: May a witness be asked to physically demonstrate
cannot with due diligence be found in the Philippines, matters testified to in chief?
unavailable or otherwise unable to testify, given in another
case or proceeding, judicial or administrative, involving the A: Yes.

NOTES ON EVIDENCE
E.g. He may be required on cross-examination to take gun
and show how he used and handled it on the occasion is A: He may be asked questions concerning his situation with
question. respect to the parties and to the subject of litigation, his
interest, his motives, his inclinations, and his prejudices, and
Q: May a witness be asked to repeat what he has testified in contradictory statement made by him as to the subject
the direct-examination? matter of his evidence.
A: Yes for the purpose not only of testing the recollection of Q: When may the cross-examining party call the witness in
the witness, but of ascertaining whether he made a his own behalf?
statement at variance with what he testified in chief.
A: If the opposite party wishes to examine a witness as to
Q: How is the cross-examination of the accused conducted? matters not stated in the direct examination, or connected
therewith, he must do so by calling the witness in his own
A: He who takes the stand, may be cross-examined at least behalf.
as to any matter testified upon his evidence in chief. Within
the limitations as to self-incrimination, the accused subjects A witness may not be cross-examined as to a document
himself to the same liabilities on cross-examination as do which has not been offered in evidence, although there is
other witnesses, as do other witnesses, and thereby becomes authority for the proposition that in exceptional cases,
subject to all proper and legitimate cross-examination as to documents may be identified and introduced on cross-
facts in issue, whether it tends to incriminate him or not. examination.
Q: How is the cross-examination of a party conducted? Q: To whom does evidence brought out on cross-
examination pertain?
A: Where a party becomes a witness in his own behalf, cross-
examination is governed by the rules which are applicable in A: All evidence brought out on cross-examination is
the case of any other witness. Yet, he is not deprived of his technically given on behalf of the party calling the witness.
rights as a party and his counsel, in a proper case, raise the
question of privilege for his client while he is on the witness Evidence adduced on the cross-examination as to matter not
stand. brought out on the direct examination is the evidence of the
party producing the witness and not the evidence of the
Q: How is the cross-examination of ones witness cross-examining party.
conducted?
Q: May the right of cross-examination be waived?
A: GR: Ordinarily, a party cannot cross-examine his own
witness but a witness first called by the State and later by the A: Yes.
defendant may be cross-examined by the State.
Savory Luncheonette v. Lakas ng Manggagawang Pilipino
XPN: When such witness has proved recalcitrant, reluctant,
unwilling, evasive, uncandid, adverse, or hostile although he The right of a party to confront and cross-examine opposing
cannot ask questions in the effect of which will be the witnesses in a judicial litigation, be it criminal or civil in
discredit the witness. nature, or in proceedings before administrative tribunals with
quasi-judicial powers, is a fundamental right which is part of
Thus, if the State is the surprised by the unexpected due process. However, the right is a personal one which may
testimony of its witnesses, or where the witness answer is be waived expressly or impliedly by conduct amounting to a
evasive and at variance with his statements to the States renunciation of the right of cross-examination. Thus, where
attorney, before the court or in the preliminary examination, a Party has had the opportunity to cross-examine a witness
it may cross-examine him. but failed to avail himself of it, he necessarily forfeits the
rights to cross-examine and the testimony given on direct
Q: How is the cross-examination of an accomplice examination of the witness will be received or allowed to
conducted? remain in the record.
A: He may be subjected to a most searching inquiry as to any The conduct of a party which may be construed as an implied
promise of immunity or leniency made to him, or any hope or waiver of the right to cross-examine may take various forms.
expectation he may entertain of escaping punishment. But the common basic principle underlying the application of
the rule on implied waiver is that the party was given the
Q: How is the cross-examination conducted in order to test opportunity to confront and cross-examine an opposing
the credibility of a witness?

NOTES ON EVIDENCE
witness but failed to take advantage of it for reasons
attributable to himself alone. Q: May a witness complete on re-direct examination an
answer which was interrupted by counsel on cross-
Q: When death prevents the cross-examination of the examination?
testimony of the witness on direct examination without
fault on the part of the party offering it, must the entire A: Yes.
testimony be stricken off the record?
Q: May the court permit a re-direct examination to go
A: No. Where death prevents cross-examination under beyond the scope the scope of the cross-examination?
circumstances that no responsibility if any sort can be
ascribed to the Plaintiff or his witness, it seems a harsh A: Yes.
measure to strike out all the that has been obtained in the
direct examination.
NOTE: Same rule applies if the adverse party was afforded a Section 8. Re-Cross Examination
reasonable chance for cross-examination but through his own
fault failed to cross-examine the witness. Q: When should re-cross examination be allowed?
Q: When is a witness under cross-examination entitled to A: When new matter has been brought out on re-direct
rest? examination, re-cross examination should be allowed.
Otherwise, it is a matter wholly discretionary with the trial
A: When the judge sees that a witness is confused, by a long court.
or irrelevant cross-examination, that his memory seems to
have left him, it is proper to let the witness rest for a short Q: May matters treated of in the direct examination be the
time or to send him from stand, so that he may collect his subject of cross-examination?
thoughts and become composed for the resumption of the
examination. A: Questions as to matter treated during the examination in
chief should be asked in the first cross-examination, and are
properly refused where there is no claim of oversight and no
reason stated why the matter was not inquired into on the
Section 7. Re-direct Examination cross-examination proper. But the Court in the exercise of its
discretion may permit such a question.
Q: What is the purpose and scope of the re-direct
examination of a witness?
Section 9. Recalling witness
A: It is to clarify facts which may have been brought on cross-
examination and which requires further explanation or Q: When is the recall of witnesses necessary?
further testimony to make the witness testimony as a whole
consistent and clear. A: Recall of a witness is frequently made necessary by facts
arising from the cross-examination of other witnesses or by
GR: No new testimony may be added. reason of inadvertence or from other cause.
XPN: New matters which have been overlooked or were not Q: What is its purpose?
known about on the direct examination or cross-examination.
A: For the purpose of correcting or explaining his prior
Q: May a witness on re-direct examination be asked an testimony. Witnesses are also called after they have left the
explanation of his testimony given on cross-examination? stand in order to lay the proper foundation for impeachment,
but this is permitted only within the discretion of the court.
A: Yes.
NOTE: A judge may recall or re-examine a witness, if he
Q: May a witness on re-direct examination be interrogated deems it advisable so as to do for the development of the
as to facts and circumstances tending to refute, weaken, or truth as to the issues he is called upon to adjudicate; and of
remove inferences, impressions, implications, or suggestions course, upon such re-examination he may repeat any or all of
which might result from testimony or inquiries on cross- the questions asked in the examination in chief.
examination?
A: Yes.

NOTES ON EVIDENCE
Section 10. Leading and misleading questions
Q: Give examples of phrases which indicate what is desired
Q: What is a leading question? in the accused and thus render the question objectionable.
A: A question which suggests to the witness the answer A:

which the examining party desires, is a leading question. Didnt
Does it not
Q: Give an example of leading questions. Did you
You didnt
A: Do you remember in one of the months of the year 1898 to Have you not
have seen a certain M? was not
At that time, that is, in 1898, do you know in what barrio M a matter of fact
lived? it is not a fact
Do you know where Ms house was in 1898? was it not a fact that
In what way were you acquainted with M, back there in the the facts are
year 1898 when that affair happened? tell the court if
state whether or not
Q: Give a permissible question. you rememberyou did not say
you dont know of course
A: State whether anything had occurred between you and the
defendants on the evening of January 9, 1913. Misleading questions
NOTE: A leading question propounded to a witness may, by Q: What is misleading question?

reacting an inference in his mind, cause him to testify in
accordance with the suggestion conveyed by the question; his A: It is a question which assumes the truth of facts which are
answer may be rather an echo to the question than genuine in issue or assumes material facts which have not been
recollecting of event. proved or certain answers to have been given to prior
questions, when such answers have not been given. It is not
Q: Is the question directing the witness to the subjectsof the allowed.
testimony leading?
Q: Give examples.
A: A question which merely suggests to the witness a subject
without suggesting an answer or a specific thing, is not A:
leading. The mere mention of the subject to which the Have you left off beating your wife?
witness is desired to direct his answer cannot be regarded as State what was the nature of the current at the point where
making any suggestion as to what the answer shall be, for it is Sheppard fell in.
impossible to examine a witness without referring to, or
suggesting, the subject upon which he is to answer. Q: What is the effect if a misleading question was answered
without objection?
Q: Where is a question in the alternative objectionable as
leading? A: It is not an evidence of the fact assumed by the improper
question. The question itself is open to condemnation and
A: If a question, although in the alternative, is so framed as to even though it stands in the record unobjected to, no court
suggest the answer, it is improper as leading, and accordingly with due regard for the properties of judicial procedure and
the mere use of words whether or not in putting a question the just end such procedure serves would permit such a
does not necessarily prevent it from being objectionable. catch question with its answer to constitute the chief or
sole support of verdict.
NOTE: Whether such question is, in the analysis, leading
depends on the circumstances.
Q: What is the test on whether a question is leading or not? Section 11. Impeachment of adverse partys witness
A: It is the suggestiveness of its substance. The form of Q: What are the modes of impeaching a witness?
question is not supreme. It is immaterial whether the
construction of the question is simple, or whether it has A:
attached to it a conjunctive qualification or a disjunctive 1. By contradictory evidence
alternative, whether it is framed affirmatively or negatively.

NOTES ON EVIDENCE
2. By evidence that his general reputation for truth,
honesty, or integrity is bad A:
3. By evidence that he has made at other times GR: In order to impeach a witness by proof of bad character,
statements inconsistent with his present testimony the predicate is knowledge of his character in the community
4. By showing bias, interest, or hostile feeling against or neighborhood in which he resides.
the adverse party.
Q: Is the testimony of a single witness sufficient for the
Q: When does the impeachment of a witness usually take purpose of impeachment?
place?
A: The number of witnesses permitted to testify as to the
A: Either during the cross-examination or during the general reputation of a witness to be impeached is a matter
presentation of the other partys case resting largely in the sound discretion of the trial judge.
Q: May a witness be impeached by contradictory evidence? Q: May an impeaching witness himself be impeached?
A: A witness may be impeached by the party against whom A: Yes but only by the usual methods and by questions
he has been called, by the testimony of other witness properly framed.
showing a contrary state of facts. The right of contradiction
exists even though the contradictory evidence tends to Q: How may an impeaching witness himself be impeached?
disgrace the witness or shows that he has been guilty of
particular wrongful acts. A: By requiring him to specify the particular rumors or
statements of individuals that have led him to swear to the
Q: Is it necessary to lay a foundation for the impeachment bad reputation of the witness, and to discredit him by
of a witness by contradictory evidence? showing that his knowledge is inadequate.
A: No. Q: How may a witness be impeached by evidence of

inconsistent statements?
Q: May a witness be impeached by contradicting him upon
collateral matters? A: By proving that on a former occasion he made a statement
inconsistent with his statement on the trial, provided such
A: A witness cannot be impeached by contradicting him upon statement is material to the issue.
collateral matters, unless said matters are relevant to the
issue or tend in some way to prove any issue of fact under Q: May a witness be impeached by evidence of particular
inquiry. wrongful acts?
Q: How may a witness be impeached by self-contradiction A: No.

or inconsistencies?
Q: May the fact that a witness has been convicted of an
A: Immaterial discrepancies or differences in the statements offense to be shown for the purpose of impeaching his
of witnesses do not affect their credibility unless there is testimony?
something to show that they originate in willful falsehood.
A: Yes. In general, the rule applies to both civil and criminal
Q: May a witness be impeached by showing bad general cases.
reputation of witness?
Q: What are the other modes of impeachment aside from
A: A witness may be discredited by evidence attacking his those provided by the rule?
general reputation for truth, honesty, integrity, even though
evidence has not been given to sustain his reputation. A:
1. Impeachment by showing improbability or
Q: What is the scope of the impeachment on bad general unreasonableness of testimony
reputation of the witness? 2. Impeachment by showing bias, prejudice or hostility
3. Impeachment by prior inconsistent acts or conduct
A: It must be confined to the general reputation of the 4. Impeachment by showing social connections,
witness as to truth, honesty and integrity. occupation and manner of living
5. Impeachment by showing interest
Q: What should be the basis of the testimony of a witness as 6. Impeachment by showing intent
to the reputation of another?

NOTES ON EVIDENCE
his previous statement and against that partys interest, to
deny the party calling him the right to show that he was
Section 12. Party may not impeach his own witness induced to do so by a previous statement of the witness
made under such circumstances as to warrant a reasonable
Q: May a party impeach his own witness? belief that the witness would repeat the statement when
called to testify.
A: No.
Q: May a party impeach his own witness who is an adverse
Q: What do you mean by impeachment of witness? party or who has turned hostile by evidence of bad
character?
A: The word impeach is applied to testimony to indicate
that it is erroneous, and to impeach a witness means to call A: No, he is not allowed to impeach him by evidence of bad
into question the veracity of the witness by means of character for the law presumes that the party is acquainted
evidence offered for that purpose, or by showing that the with the character of his own witnesses and he knows before
witness is unworthy of belief. he calls him whether he is a truthful man or the reverse.
Impeachment is an allegation supported by proof, that a Hostile witness

witness who has been examined is unworthy of credit.
Q: Who is a hostile witness?
Q: What is meant by credibility of witness?
A: He is one who manifests so much hostility or prejudice
A: It means their disposition and intention to tell the truth in under examination-in-chief that the party who has called him,
the testimony they have been given. or his representative, is allowed to cross-examine him, that is
to treat him as though he had been called by the opposite
CREDIBILITY OF WITNESS v. CREDIBILITY OF TESTIMONY party.
Q: Distinguish credibility of testimony from credibility of Q: Who determines the hostility or the bias or unwillingness
witness. of a witness?
A: Without the slightest reflection upon the integrity of a A: If so declared by the court. The same is to be decided by
witness, his testimony may fail to win belief, because his the judge from his demeanor upon the stand and from such
capacity and opportunities for observation were imperfect, or facts as evidence as may show that the witness has some bias
because of its non-conformity to the laws which regulate the against the one calling him or has some disinclination to
human memory and it may be incredible or highly improbable testify.
for other reasons that do not necessarily impeach the good
faith of the witness. Q: Who is an adverse party?
Q: Distinguish competency as a witness from credible A: He must be adverse to the party calling him, and be
witness. actively seeking a recovery against, or opposing a recovery by
such party, or a person for whose immediate benefit the
A: Trial courts may allow a person to testify as a witness upon action was brought or defended.
a matter because he is incompetent but may thereafter
decide whether to believe or not to believe his testimony. Q: May a witness who has mislead a party into calling him
be impeached?
Q: When may a party impeach his own witness?
A: Yes, in the discretion of the court.
A: While a party may not impeach his own witness, he may
impeach him if he is an adverse party, or has become an Q: Is it necessary to lay a foundation for impeachment of a
unwilling or hostile witness in all respects as if he had been witness?
called by the adverse party.
A: Yes. The party must first show that the evidence as given
Q: What is the reason for the rule? has taken him by surprise and that the witness is hostile.
A: It would be grossly unfair to permit a witness to entrap a Q: May a party contradict his own witness?
party into calling him by making a statement favorable to that
partys contention, and then, when he is called and
accredited by that party and gives testimony at variance with

NOTES ON EVIDENCE
A: Yes, he is not precluded from proving by other witness that
the facts were otherwise that that stated by his former A: Yes, the proper foundation or predicate must be laid by
witness. the impeaching party.
Q: When a party is called either by law or the court as a Q: How should the foundation for impeachment be laid if
witness, may he be impeached? the inconsistent statement is oral?
A: A party who is compelled to call an indispensable witness A: Express precision in the laying of a predicate is not
either by law or the order of the court, is not concluded by necessary. It suffices if there is a reasonable certainty or it is
the answers of such witness. He may impeach him. clear that the attention of the witness is called to the
conversation in such manner that it is identified by him. In
Q: May a party cross-examine his own witness who has such case, a variance as to time is immaterial. If the question
turned hostile? designates the person or the place with reasonable
certainty, it is sufficient. It is not necessary to give the exact
A: It is within the discretion of the court to allow the party language of the alleged statement; the substance is
calling the witness to cross-examine him. sufficient.
Q: May the adverse party cross-examine the party who Q: May a witness be recalled for the purpose of laying down
called him as his witness? the foundation?
A: Yes, with reference to all matters concerning which he has A: Yes, but it shall be with the discretion of the court.
been examined by plaintiff just as fully as though such
witness has been called by plaintiff as his own witness. Q: May failure to lay any proper foundation be waived?
Q: Is a party who calls the adverse party as his witness A: Yes, by the failure of the adverse party to object in proper
bound by his testimony? form to the introduction of the alleged former statement or
testimony.
A: No, he is not bound. He may contradict him by other
evidence to prove a state of facts contrary to that to which Q: How should the foundation for impeachment be laid if
the witness testifies. the inconsistent statement is written?
Q: What is the reason for the rule? A: The witness should first be examined by proper
questioning, his attention be called to such statements, and
A: To enable a litigant to call his adverse without making him should be asked whether or not he made them, and afforded
his own witness and elicit from him, if possible, material facts an opportunity for explanation, or affirmance, or denial of the
within his knowledge. Such rule is remedial in character and is authenticity of the writing.
liberally construed and its application is not limited to cases
in which the adverse party is not called as a witness in his Such statements must be produced at the time of such
own behalf. questioning, and be shown to, or read to or by, the witness,
and marked for identification.
Q: What is the reason for the rule that proper foundation

Section 13. How witness impeached by evidence of should first be laid before a witness can be impeached by
inconsistent statements evidence of inconsistent statement?
Q: How may a witness be impeached by evidence of A: It is based on the sense of justice to the witness. He should
inconsistent statement? have an opportunity to recollect the fact, and if necessary to
correct the statement already given, as well as to explain the
A: It is by showing that at other times he has made nature, circumstances, meaning and design of what he is
statements which are inconsistent with, or contradictory to, proved elsewhere to have said.
the testimony which he has given at the trial; and, where a
witness denies on the stand that he has made certain Q: How should the foundation be laid if the writing
statements, evidence that he did make the statements in containing the previous inconsistent statement has been
question may be introduced to impeach him. lost?
Q: Is it necessary to lay the foundation before a witness can A: It may be made by proving first the loss of the writing, and
be impeached by evidence of inconsistent statement? then the witness may be cross-examined as to the contents,

NOTES ON EVIDENCE
after which he may be contradicted by secondary evidence of
the contents of the paper.
Section 14. Evidence of good character of witness
Q: What is the effect of failure to lay proper foundation for
impeachment? Q: What is the reason behind this rule?
A: In such case, proof of alleged inconsistent statements of A: The rule that evidence of the good character of a witness is
the witness cannot be admitted on objection of the adverse not admissible until such character has been impeached is
party, or be pointed out on appeal for the purpose of the logical result of the other one, that the law presumes
destroying the credibility of the witness. every person to be reputedly truthful till evidence shall have
been produced to the contrary.
Q: Does this rule apply to dying declarations?
NOTE: Evidence as to good character is not rendered
A: No since they are admitted on the ground of necessity, admissible by mere attack on the credibility if the testimony
proof of contradictory or inconsistent statements of the which the witness has given in the particular case without any
deceased may be admitted on the same ground without attack on the general character or reputation for veracity
laying and foundation thereof.
Q: May statements which are admissible as independent

evidence be shown without laying any foundation for their
admission?
Section 15. Exclusion and separation of witnesses
A: Such independent evidence may be shown without laying
any foundation for their admission, although they are Q: What is the reason for the rule as to exclusion of
contradictory to the testimony of the witness and hence tend witnesses?
to impeach him.
A: It is to elicit the truth by securing testimony not
Ysmael and Co. v. Hashim influenced by the statements of other witnesses or the
suggestions of counsel, as well as to prevent the collusion
If such testimony contained admissions against interest by and concert of testimony among witnesses.
the parties to the action or their agents; if such had been the
case, the testimony would have been admissible without XPN:
the laying of a foundation and without the witnesses having
testified in the case at bar. But the purpose of the offer of 1. It does not apply to a party in the action, although
the testimony was evidently to impeach the testimony of the there may be several parties on one side of the case;
same witnesses in the present case and if so, a foundation 2. Expert witness;
should have been laid by calling the attention of the XPN to the XPN: If theres a reason to apprehend
witnesses to the former statements so as to give them the expert witness are liable to be influenced by the
opportunity to explain before the statements were offered in testimony of other witnesses
evidence. 3. Witness in rebuttal;
4. An agent of the party, when the presence of such
Q: When may impeaching testimony be offered in evidence? agent is necessary, as when the agent has gained
such familiarity with facts that his presence is
A: It is only when the witness denies that he made the necessary for the proper management of the action
statement or when he neither directly admits nor denies the or defense;
making of such statement, but states that he does not E.g. Officers of a corporation
remember whether he made it or not. 5. Witnesses called to testify to another witness
character for truth and veracity are exempted from
Q: What is the effect of impeaching testimony? the rule;
6. Policemen, detectives or other police officers when
A: It has the effect of discrediting the witness. their presence is required in the courtroom to guard
prisoners on trial or assisting in the prosecution of
NOTE: We simply set the 2 against each other, perceive that the case; and
both cannot be correct, and immediately conclude that he 7. Party in interest though not a party to the record.
has erred in one or the other, but without determining which
one. Q: May counsel consult with the witnesses excluded from
the courtroom?

NOTES ON EVIDENCE
A: Yes. He may tell the witness what the other witnesses have Q: What proper foundation must be laid before a witness
testified, if the purpose of the counsel is to find out whether may be allowed to refer to a memorandum or other writing
what those witnesses had testified is true. for the purpose of refreshing his memory?
Q: What is the effect of the violation of the rule? A:
A: GR: Such witness is not thereby rendered incompetent to 1. If it appears that the aid of such memorandum or
testify, and that the party calling him, cannot be rightfully other writing is necessary on account of his being
deprived of the testimony of such witness. unable to testify from memorandum without it; and
2. It has been shown that the memorandum was
XPN: If the party is at fault, the evidence may be excluded. written by himself or under his discretion at the time
when the fact occurred, or immediately thereafter,
NOTE: The witness may also be punished for contempt of or at any other time when the fact was fresh in his
court and his disobedience may be considered as affecting his memory, and he knew that the same was correctly
credibility. Yet, it lies with the discretion of the TC to allow or stated in the writing.
not allow such witness to testify.
NOTE: The memorandum is the record of a past recollection,
reduced to writing while there was an existing independent
recollection of such transaction, and now vouched for by the
Section 16. When witness may refer to memorandum witness. It stands in the place of the present recollection, the
witness being at most a mere conduit for repetition of its
Q: May a witness while testifying be allowed to refer to a statement.
memorandum?
Q: Should it be in his original writing?
A: Yes, under the following situations:
A: No.
1. For the purpose of refreshing his memory respecting
a fact provided: Q: Is the adverse party entitled to inspect the writing and
a. That the memorandum has been written by him cross-examine the witness?
or under his direction;
b. That it was written (a) when the fact occurred, A: Yes since in no other way can the accuracy and recollection
or immediately thereafter, or (b) at any other of the witnesses be ascertained. It is to ascertain whether the
time when the fact was fresh in his memory and memorandum does assist the memory or not.
he knew that the same was correctly stated
(Past collection revived).
2. If he is able to swear that the writing being merely a Section 17. When part of transaction, writing or record given
memory aid. in evidence, the remainder admissible.
Q: What is the reason for the rule? Q: When part of an act, declaration or compensation is put
in evidence may the adverse party introduce or read the
A: The knowledge or recollection is that of the witness, remainder in evidence?
resting on his original personal observations, but that, having
grown hazy through lapse of time, a recreative stimulus may A: Yes, the adverse party is entitled to prove the remainder of
properly be applied. the conversation, particularly to the extent that it modifies or
explains the part admitted. Also, where a part of a writing (or
Q: What are the advantages and disadvantages of allowing a record) is introduced into evidence, the opponent may
witness to consult notes or memoranda? introduce the remaining part of the writing or have the entire
letter or document read in evidence.
A: Its disadvantage is that the Court partly lose the advantage
of that lively and quick examination which does not give bad Q: What is the limitation to this rule?
faith time to think.
A: The rule is limited to such statements as fairly tend to
Yet if the assistance is denied, a witness is often unable to qualify or explain the part first given. It does not extend to
give accurate and complete testimony and the whole object introduction of what was said in relation to a different
of judicial investigation may be defeated. matter, although in the same conversation.

NOTES ON EVIDENCE
3. Receipts issued by the Department of Assessment
NOTE: Detached and independent statements, in no way and Collections of the City of Manila for taxes
connected with the statement given in evidence, are not collected;
admissible. 4. A burial permit issued by the Board of Public Health
of the City of Manila;
Q: When a party offers a part of a writing may he object to 5. Official receipts prescribed by the government to be
the offer of the remainder by the adverse party on the issued upon receipts of money for public purposes;
ground of the privilege? 6. Official cash book of a public official in which entries
are made of account of public moneys received;
A: No. The introduction in evidence of part of a writing or 7. Official receipt printed in accordance with standard
record by one party waives privilege as to other parts of the forms;
same writing or record. 8. Copy of the records of possessory information, the
original of which was filed in the registry of property,
Q: May a portion of the document is introduces in evidence partakes of the character of a judicial proceeding
may the adverse party use the remaining portion without and of a public document;
presenting it in evidence? 9. Legislative acts;
10. Parish records of birth, marriages and deaths;
A: No. The adverse party may not use another portion 11. Civil service examination papers forming part of the
thereof, if he did not in turn present it as evidence nor asked files of the civil service;
the trial court to consider it as such. 12. Record of a private document kept by a justice of the
peace court during the Spanish regime;
Section 18. Right to inspect writing shown to witness 13. Cedula certificate;
14. Certificate of admission of Attorney;
Where a party has a document which he desires to introduce 15. Examination papers of bar attorneys;
in evidence marked by the reporter for identification, the 16. Certificate of land registration;
opposite party has the right to inspect it to enable him to 17. Personnel information sheet of NBI; and
cross-examine the witness. 18. Documents acknowledged by a notary public and
certified by him
B. AUTHENTICATION AND PROOF OF DOCUMENTS
PRIVATE DOCUMENTS
Documents are either public or private, for the purpose of
their presentation of evidence. Q: What are private documents?
PUBLIC INSTRUMENTS A: It refers to every deed or instrument executed by a private

person, without the intervention of a public notary or other
Q: What are public documents? person legally authorized; by which document some
disposition or agreement is proved, evidenced set forth.
A: They include written official acts or records of the official
acts of the sovereign authority, official bodies and tribunals, Q: What are the examples of private documents?
and public officers, whether of the Philippines or a foreign
country. A:
Documents acknowledge before a notary public, except last 1. Theater ticket;

will and testament are those acknowledge before a 2. Time record;
competent public official, with the formalities required by 3. Receipt taken from a private person;
law, are public documents. 4. Document executed in a certain municipality outside
the territorial limits of the officers jurisdiction;
Q: Give examples of public documents. 5. Public documents defectively executed
(incompetency of the notary public);
A: 6. Church registries of birth, marriages, and death are
no longer public writings nor are they kept by only
1. Instrument notarized by a notary public or authorized public officials.
competent public official with the solemnities
required by law; Q: Distinguish public documents from private.
2. Blank forms prepared by the Auditor of the
Philippines; A:

NOTES ON EVIDENCE
PUBLIC PRIVATE
DOCUMENTS DOCUMENTS A: It is established by competent evidence which sometimes
As to authenticity Admissible in Must be proved as depends on whether or not the writing has been attested.
evidence, without to their due Proof may be made by the evidence of those who can testify
proof of their due execution and to its execution, or by those who can testify as to the
execution or authenticity signature of handwriting.
genuineness; before they may
be received in Q: Will it be sufficient if the witness states in general
evidence; manner that such person made the writing?
As to persons Evidence even Bind only the
bound against third parties who A: No, it is not sufficient if the witness states in a general
persons, of the executed them or manner that such person made the writing. The testimony of
fact which give their privies; an eyewitness as to the execution of a private document
rise to their due must be positive. He must state that the document was
execution and to actually executed by the person whose name is subscribed
the date of the thereto.
latter;
As to validity of In some cases, Q: What are the cases where the authenticity of the private
certain substantial law document is not necessary?
transactions requires that
certain A:
transactions must
be in public 1. When the document is ancient;
documents, 2. When the execution or genuineness of the
otherwise, they document is admitted by the adverse party;
will not be given 3. When the execution or genuineness of the
any validity document is immaterial;
4. When the document need only to be identified.
Section 20. Proof of Private Document

Section 21. When evidence of authenticity of private
Q: When is a private document admissible in evidence? document not necessary
A: The identity and authenticity of the document must be Q: What are ancient documents?
reasonably established as a prerequisite to its admission in
evidence. Such facts can be shown by direct and A: Those which have been in existence for thirty years or
circumstantial evidence. The extent for documentary proof more.
lies in the discretion of the Court.
Q: What are the requisites?
Q: What is meant by authentication?
A:
A: It is the evidencing of the thing; that the thing here shown
did come from the very person or place testified to by the a. The document is more than 30 years old;
witness. In criminal case, this requirement is vital. The thing b. Produced from a custody in which it would naturally
produced in Court must be traced by testimony from hand to be found if genuine;
hand until it appears that it is the very thing which a witness c. Unblemished by any alterations or circumstances of
spoke of seeing or finding or using. suspicion;
d. The subscribing witnesses being presumed to be
Q: What is meant by due execution and genuineness? dead;
e. No other evidence of execution and authenticity
A: It means nothing more than that the instrument is not need be give.
spurious, counterfeit, or of different import on its face from
the one executed. Q: What is the reason for such rule?
Q: How is the execution and authenticity of private A: Convenience and on the difficulty of proving the due
document established? execution of a deed after an interval of many years.

NOTES ON EVIDENCE
nonetheless affected its authenticity. Indeed, its importance
Q: How is the age of the document computed? cannot be overemphasized. It allegedly bears the signature of
the vendor of the portion of Lot No. 11165 in question and
A: The time to be reckoned from the date of execution to the therefore, it contains vital proof of the voluntary transmission
day when the instrument is offered in evidence, and if the of rights over the subject of the sale. Without that signature,
instrument is 30 years old when offered, it is not material the document is incomplete. Verily, an incomplete
that it was less than 30 years old, when the action was document is akin to if not worse than a document with
commenced, since the competency of the evidence is to be altered contents.
determined by the state of things at the time it is offered.
Moreover, there is a circumstance which bothers the Court
Q: When is a private document said to be found in the and makes the genuineness of the document suspect. If it is
proper custody? really true that the document was executed in 1917, Ursula
Cid would have had it in her possession when she filed her
A: The document must be shown that it comes from the answer in Cadastral Case No. 53 in 1933. Accordingly, she
proper custody or depository. This is to afford a reasonable could have stated therein that she acquired the portion in
assurance of the authenticity of the instrument and what question by purchase from Maria Gonzales. But as it turned
constitutes proper custody in the particular case is a out, she only claimed purchase as a mode of acquisition of
question for the determination of the court. Lot No. 11165 after her sister-in-law, Maria J. Bartolome and
the other descendants of Doroteo Bartolome sought
The custody shown is not necessarily that of the person intervention in the case and demanded their rightful shares
strictly entitled to the possession. It is enough if the person in over the property.
whose custody the document is found is so connected with
the document that he may reasonably be supposed to be in All these negate the appellate court's conclusion that Exhibit
possession of it without fraud. 4 is an ancient document. Necessarily, proofs of its due
execution and authenticity are vital. Under Section 21 of Rule
Q: What is the reason for requiring that the document be 132, the due execution and authenticity of a private writing
found in the proper custody in order to render unnecessary must be proved either by anyone who saw the writing
proof of its execution and authenticity? executed, by evidence of the genuineness of the
handwriting of the maker, or by a subscribing witness. The
A: It is for its genuineness. The fact of its coming from the testimony of Dominador Bartolome on Exhibit 4 and Ursula
natural and proper place tends to remove presumptions of Cid's sworn statement in 1937 do not fall within the purview
fraud and strengthens the belief in its genuineness. of Section 21. The signature of Maria Gonzales on the missing
fourth page of Exhibit 4 would have helped authenticate the
Q: In order to be admissible as an ancient document what document if it is proven to be genuine. But as there can be no
must it show on its face? such proof arising from the signature of Maria Gonzales in the
deed of sale, the same must be excluded.
A: It must be genuine. If a document shows alterations,
interlineations, or erasures of a material character, some
Even if Exhibit 4 were complete and authentic, still, it would
explanations thereof should be required by the court.
substantially be infirm. Under Article 834 of the old Civil
Code, Maria Gonzales, as a surviving spouse, "shall be
A paper must be free from suspicion and have the
entitled to a portion in usufruct equal to that corresponding
appearance of genuineness.
by way of legitime to each of the legitimate children or
descendants who has not received any betterment." And,
Bartolome v. IAC
until it had been ascertained by means of the liquidation of
the deceased spouse's estate that a portion of the conjugal
We agree with the appellate court that the first two property remained after all the partnership obligations and
requirements ordained by Section 22 are met by Exhibit 4. It debts had been paid, the surviving spouse or her heirs could
appearing that it was executed in 1917, Exhibit 4 was more not assert any claim of right or title in or to the community
than thirty years old when it was offered in evidence in property which was placed in the exclusive possession and
1983. It was presented in court by the proper custodian control of the husband as administrator thereof. Hence, in
thereof who is an heir of the person who would naturally the absence of proof that the estate of Epitacio Batara had
keep it. We notice, however, that the Court of Appeals failed been duly settled, Maria Gonzales had no right to sell not
to consider and discuss the third requirement; that no even a portion of the property subject of Exhibit 4.
alterations or circumstances of suspicion are present.
Section 22. How genuineness of handwriting proved
Admittedly, on its face, the deed of sale appears unmarred by
alteration. We hold, however, that the missing page has
Q: How may the handwriting of a person be proved?
NOTES ON EVIDENCE
A:
Section 23. Public Documents as evidence
1. By any witness who believes it to be the
handwriting of such person because: Q: How are public or official entries proved?
a. Has seen the person write; or
b. He has seen writing purporting to be his upon A: It may be proved by the production of the books or records
which the witness has acted or been charged, themselves or by a copy certified by the legal keeper thereof.
and has thus acquired knowledge of the
handwriting of such person Q: What is the probative value of entries in public records?
2. By a comparison, made by the witness or the court,
with writings admitted or treated as genuine by the A: Entries in public records, made in the performance of their
party against whom the evidence is offered, or duty by public officers of the Philippine Islands, are prima
proved to be genuine to the satisfaction of the facie evidence of the facts therein stated. Such documents,
judge. however, are not conclusive evidence. Their probative value
may either be substantiated or nullified by other competent
Q: May an ordinary witness express his opinion regarding evidence.
the handwriting of a person?
NOTE: Public or official records of entries made in excess of
A: Yes. It must be a person who is familiar with the official duty are not admissible in evidence. As to matters
handwriting of the alleged writer; the opinion of such a which the officer is not bound to record, his certificate, being
person is universally recognized to be admissible; even extrajudicial, is merely the statement of a private person.
though he is in no sense a handwriting expert.
Q: What are public documents evidence of?
Q: May the authenticity of a writing be proved by
comparison made by the court? A: This rule is not absolute in the sense that the contents of
a public document is conclusive evidence against the
A: Yes through comparison by the court with the writings contracting parties as to the truthfulness of the statements
admitted or treated as genuine by the party against whim the made therein. They constitute only prima facie evidence of
evidence is offered. the facts which give rise to their execution and of the date of
the latter. A baptismal certificate, like all documents in
Comparison of handwritings is a mode of proof of the general, attests the fact that originated its execution, and the
authenticity or genuineness of a writing, by comparing the date of the same to wit, the administration of the sacrament
handwriting thereof with a specimen proved or admitted to on the day specified, but not to the veracity of the
have been written by the person whose authorship of the statements made therein respecting the kinsfolk of the
questioned document is in controversy. person baptized.
Q: How can the genuineness of a standard be established? A death certificate is not proof of the real cause of the death
of the assured, its probative value being only confined to the
A: fact of death, and the statement therein contained regarding
duration of illness and cause of death, are mere hearsay.
1. By the admission of the person sought to be charged
with the disputed writing made at or for the Q: Is proof of authenticity of public documents necessary?
purposes of the trial or by his testimony;
2. By witnesses who saw the standards written or to A: A document duly acknowledged before a notary public
whom or in whose hearing the person sought to be under his hand and seal, with his certificate thereto attached,
charged acknowledged the writing thereof; and is admissible in evidence without further proof of its due
3. By evidence showing that the reputed writer of the execution and delivery, unless and until some question
standard has acquiesced in or recognized the same, raised as to the verity of said acknowledgment and
or that it has been adopted and acted upon by him certificate. One of the very purposes of requiring documents
in his business transactions or other concerns. to be acknowledged before a notary public, in addition to the
solemnity which should surround the execution and delivery
Q: May the authenticity of a writing be proved by a of documents, is to authorize such documents to be given in
handwriting expert? evidence without further proof of their execution and
delivery.
A: Yes.

NOTES ON EVIDENCE
The law reposes a particular confidence in public officers that Q: What are official publications?
it presumes they will discharge their several trusts with
accuracy and fidelity; and, therefore, whatever acts they do A:
in discharge of their public duty may be given in evidence
and shall be taken to be true under such a degree of caution 1. Legislative records
as the nature and circumstances of each case may appear to 2. Executive documents
require. 3. Judicial records
4. Official records of
Q: What is the probative value of public documents? a. Birth
b. Marriage
A: It is a prima facie evidence of a fact. In order to overcome c. Death
such evidence, the oral testimony must be clear, strong, and
convincing. 5. Proceedings of municipal corporations
6. Foreign law
Q: May a notary public deny his own execution?
NOTE: Considerations of public policy led to the adoption of
A: No. the rule giving verity and unimpeachability to legislative
records.
Records of the legislature are as important as those of the

Section 24. Proof of official record judiciary, and to inquire into the veracity of the journals of
the Philippine Legislature is to evade a coordinate and
Q: How is an official record proved? independent department of the government.
A: Q: What is the rule regarding laws of foreign jurisdiction?
1. By an official publication; A: The laws of a foreign jurisdiction do not prove themselves

2. By a copy attested by the officer having the legal in courts. The courts of the Philippines are not authorized to
custody of the record or by his deputy; if the record take judicial notice of the laws of the various countries. Such
is not kept in the Philippines, the attestation must be laws must be proven as facts.
accompanied with a certificate that such officer has
the custody. If the officer in which the record is kept
is in a foreign country, the certificate may be made
by the following: Section 25. What attestation copy must state
a. Secretary of the embassy;
b. Consul; Q: What must the attestation of copies of public records of
c. Vice-consul; documents state?
d. Consul-general;
e. Consular agent; and A:
f. Any officer of the foreign service of the Philippines a. That the copy is a correct copy of the original or a
stationed in a foreign country in which the record is specific part thereof, as the case may be
kept. In all these cases the certificate must be b. Under official seal of the attesting officer, if there be
authenticated by the seal of his office. any, or if he be a clerk of court having a seal, under
the seal of such court
Q: What must the certification of copies of public records
contain? Q: Does the attesting officer have authority to state facts
explanatory of or collateral to the record certified by him?
A: It should appear that the officer by whom they purport to
be certified had the right to the custody of the records and A: No, he has no authority to state facts explanatory of or
had authority to furnish authenticated copies; and ordinarily collateral to the record certified by him, or mere conclusions
it is sufficient if such facts appear. not required to be certified, or facts to which his statements
are hearsay.
The certificate of an unofficial person that a paper is a true
and correct copy of an original deed now in my hands, with The power of the officer is limited to a certification that the
the indorsements thereon, does not render the paper paper is a true copy of another writing, or a part thereof. The
admissible to prove the contents of the original document. officer is not authorized to determine what the record or

NOTES ON EVIDENCE
document relates or pertains or to pass judgment upon it in Q: How is lack of record proved?
any way.
A: The certificate of the custodian that he has diligently
Q: What is the effect of absence of a seal for certified copy? searched for a document or an entry of a specified tenor and
has been unable to find it ought to be usually as satisfactory
A: Where the statute expressly requires a seal fro certified for evidencing its non-existence in his office as his testimony
copy of public records, an unsealed seal is inadmissible. on the stand to this effect would be.
NOTE: The fact that the seal was in the wrong place does not
require exclusion of the copy.
Section 29. How Judicial record impeached
Q: What is the probative value of a certified copy?
Q: What is a judicial record?
A: It proves prima facie the original to have been in the public
office when it was made. The officers certificate is accorded A: It is a the record, official entry, or files of the proceedings
the sanctity of a deposition. It is conclusive, but when no in a court of justice or of the official act of a judicial officer in
special incentive for falsification appears, it should prevail an action, suit or proceeding.
over the bare fact that 7 years later an original record cannot
be found. Q: How may judicial record be impeached?
A:
Section 26. Irremovability of public record 1. By evidence of want of jurisdiction in court or judicial
officer in respect to the proceedings
Q: What is the reason for the irremovability of public 2. By evidence of collusion between the parties in the
record? proceedings
3. By evidence of fraud in the party offering the record
A: Records, being the precedent of the demonstrations of in respect to the proceedings
justice, to which every man has a common right to have
recourse, cannot be transferred from place to place to serve a Q: When may a judgment be impeached on the ground of
private purpose; and therefore, they have a common lack of jurisdiction?
repository, from where they ought not to be removed.
Besides, these records by being daily removed, would be in A: A judgment void for want of jurisdiction is open to
great danger of being lost. contradiction or impeachment in a collateral proceeding. By
the weight of authority of the record, but in some
jurisdictions extrinsic evidence is admissible to contradict the
record in this respect.
Section 27. Public record of a private document
NOTE: The defect of jurisdiction may either be in respect to:
Q: How may an authorized public record of a private writing a. Person
be proved? b. Subject matter
c. Authority to render the particular judgment or
A: decree
1. By the original record
2. By a copy attested by the legal custodian of the 1. Where the court is authorized by the statute to entertain
record with an appropriate certificate that such jurisdiction in a particular case only, if it undertakes to
officer has the custody. exercise jurisdiction in a case to which the statute has no
application, such court acquires no jurisdiction and its
Where certified copies of public records are offered, it should judgment when made is a nullity and subject to collateral
appear that the officer by whom they purport to be certified attack.
had the right to the custody of the records, and was the 2. Where the court has jurisdiction, a judgment may not be
person who has authority to furnish authenticated copies. impeached collaterally, because it is not in the form
required by the applicable statute, or is contrary to the
limitations of such statute, or resulted from an erroneous
interpretation thereof, or an erroneous ruling as to the
Section 28. Proof of lack of record operative force of one of the 2 statutes, apparently
conflicting.

NOTES ON EVIDENCE
papers which form part thereof. If it does not affect the
validity of the writing it may be admitted.
FACTS WHICH INVOLVE THE JURISDICTIONAL FACTS Section 30. Proof of notarial documents
JURISDICTION OF THE WITHOUT ALLEGATION OF
COURT OVER THE PARTIES WHICH THE COURT CANNOT Q: What is the probative value of notarial documents?
AND SUBJECT MATTER PROPERLY PROCEED AND A
DECREE CANNOT BE MADE A: Notarial documents may be presented in evidence without
Its absence renders the Error in the exercise of further proof, the certificate of acknowledgment being prima
judgment void and assailable jurisdiction is not want of facie evidence of the execution of the instrument or
collaterally jurisdiction and does not document involved.
make a judgment void
Q: When may a judgment be impeached on the ground of

collusion between the parties in the proceedings? Section 31. Alterations in document, how to explain
A: Collusion in proceedings is an agreement between two Q: What is an alteration?

persons that one should institute a suit against the other, in
order to obtain the decision of a judicial tribunal for some A: It is a change in the instrument by a party thereto or one
sinister purpose. entitled thereunder or one in privity with such a person after
the instrument has been signed, or fully executed, without
Q: What are the 2 kinds of collusions in judicial proceedings? the consent of the other party to it, by an erasure,
interlineation, addition or substitution of material affecting
A: the identity of the instrument or contract or the rights and
1. When the facts put forward as the foundation of the obligations of the parties.
sentence as the foundation of the sentence of the
court do not exist Q: What is the test?
2. When they exist, but have been corruptly
preconcerted for the express purpose of obtaining A: In order that change may constitute an alteration in the
the sentence. legal sense, the act must be one by which the meaning or
language of the instrument is changed, but by which its
Q: When may a judgment be impeached on the ground of identity is not otherwise destroyed.
fraud?
Q: How may an alteration in a writing be explained?
A: An action to annul a judgment, based on fraud, cannot
prosper unless the fraud be extrinsic or collateral or unless A:
the fraud refers directly to the jurisdiction of the court, and 1. He may show that the alteration was made by
that the facts constituting it have not been in controversy nor another, without his concurrence
resolved in the case wherein the judgment, whose nullity is 2. He may show that the alteration was made with the
sought, has been obtained. consent of the parties affected by it
3. He may show that the alteration did not change the
Q: What is extrinsic fraud? meaning or language of the instrument
A: It refers to fraud in the means whereby the judgment was Q: How may a party offer a document in evidence which
procured, and not fraud in the cause of action or matter put appears to have been materially altered?
in issue and present for adjudication.
A: The rule requires that a party, producing a writing as
Q: May a judicial record with some defect or informality in genuine but which is found altered after its execution, in a
the making of the record or the papers which form a part part material to the question in dispute, should account for
thereof inadmissible in evidence? the alteration and, if he does that, he may give the writing in
evidence, but not otherwise. Thus, he should have accounted
A: A judicial record will not be excluded because of some for the alteration when he introduced the paper in evidence
defect or informality in the making of the record or the and not endeavor to explain the alteration afterwards.

NOTES ON EVIDENCE
Q: When is the alteration material? offering the instrument has had an opportunity to have a
translation made.
A: Generally, it is one which causes it to speak a language
different in legal effect from that which it originally spoke, or Instrument partly in a foreign language are admissible at least
which change the legal effect of the instrument so as to affect to the extent of the English words which they contain.
its legal identity or the rights and liabilities of the parties, or
which may in any event alter the rights, duties or obligations
of the party sought to be charged.
C. OFFER AND OBJECTION
Q: What presumption obtains with respect to altered
documents in case there is no positive proof as to when and Section 34. Offer of evidence
by whom such alteration might have been made?
Q: What is the reason for the rule that requires evidence be
A: The general rule is adopted that where an instrument formally offered?
presents the appearance of having been changed, in the
absence of evidence to the contrary, or suspicious A: It is necessary because it is the duty of the judge to rest his
circumstances, the presumption is that the change was made findings of facts and his judgment only and strictly upon the
before, or contemporaneously with, the execution and evidence offered by the parties at the trial. The offer may be
delivery of the instrument, and it is for the party attacking the made in any form sufficient to show that the party is ready
instrument to show otherwise, for the reason that the and willing to submit the evidence to the court.
presumption of law is always in favor of honesty and upright
conduct, Q: What is the reason for the rule of requiring that the
purpose for which the evidence is presented must be
specified?
Section 32. Seal A: It is the duty of the party to select the competent form
incompetent in offering testimony, and he cannot impose this
Q: Is there any difference between sealed and unsealed duty upon the trial court.
private documents?
Q: May a party who has formally offered evidence withdraw
A: Whether the private document is sealed or unsealed its it?
admissibility as evidence is the same.
A: No, not as a matter of right. But it has been held that a
party may withdraw an offer of an exhibit any time before
the court has passed on its admissibility. The court may
Section 32. Documentary evidence in an official language refuse to permit a party to withdraw evidence he has elicited
on cross-examination. However when the evidence has been
Q: What are the documents written in an unofficial language admitted over objections, the party introducing it may
admissible in evidence? request to have it withdrawn, and the court may grant such
leave.
A: They are admissible in evidence when accompanied with a
translation into English, or Filipino. Thus, a writing in the Q: How should evidence which is offered as a whole and
Ilocano language is not admissible in evidence. part of it is inadmissible be received?
Q: Is the document accompanied by a translation in the A: It is discretionary with the court to reject the entire
official language admissible if no objection regarding its evidence or receive in evidence those parts which are
admissibility is raised by the party against whom it is admissible and reject the other parts. The court is not bound
offered? to separate the admissible from the inadmissible evidence,
but may reject it as a whole.
A: It is too late to invoke the rule for the first time on appeal.
Q: Is the rule on offer of evidence applicable to summary
Q: When are documents written in a foreign language proceedings?
admissible in evidence?
A: No since there is no full-blown trial. The rule on summary
A: It may be admitted in evidence in connection with a judgments is that the judge must base his decisions on the
showing of their meaning in English but are not admissible pleadings, depositions, admissions, affidavits and documents
without a translation into English, at least where the party on file with the court.

NOTES ON EVIDENCE
h. Illegal and immaterial
i. Illegal and incompetent
Section 35. When to make offer j. Insufficient
k. Prejudicial
Q: When must the offer of testimonial evidence be made?
2. Specific objection
A: It must be made at the time the witness is called to testify. a. Objection to the question for being leading
The party calling the witness must first give a gist of the b. Objection to the question for it calls for hearsay
proposed testimony and what it seekds to establish. This evidence
would enable the court to determine whetehr the intended c. Objection to the question for lack of basis, or it
testimony would ascertain the truth respecting a mattre of assumes a fact not established
fact that is in issue. d. Objection to the question for it invades the field of
confidential communications
Q: When must the offer of documentary and object e. Objection to the question for being vague
evidence be made? f. Objection to the question for it calls for a conclusion
of law
A: After all the witness have given their testimonues on the g. Objection to the question for it calls for a conclusion
witness stand, the documentary and object evidence are of fact
formally offered in evidence. This should be done orally and h. Objection to the question for being argumentative
the purpose for which they are being offered specified. i. Objection to the question for the proper foundation
However, the court may, upon motion, permit the offer to be has not been laid
made in writing as wheh voluminous documentary evidence j. Objection to the question for it calls for the opinion
are to be presented. of the witness
Q: When must the objection to evidence be made?
Section 36. Objection A:
Q: What is the purpose of an objection? 1. Evidence offered orally or in writing- must be made
immediately after the offer is made, stating
A: The office of an objection is to stop an answer to a specifically the grounds thereof. An offer of evidence
question put to a witness, or to prevent receipt of a in writing shall be objected to within 3 days after
document in evidence until the court has had opportunity to notice of the offer unless a different period is
make a ruling upon its admissibility; the objection lays the allowed by the court
foundation for an exception to an adverse ruling by the court, 2. Question propounded during oral examination- shall
warning both court and counsel that such adverse rulings be made as soon as the grounds therefor shall
may be the basis of appellate review. become reasonably apparent
Q: What is the proper practice to raise objections of the Failure to object

admissibility of evidence?
Q: What is the effect of failure to object?
A: The usual and proper practice to raise the question of the
admissibility of evidence is to object to the question asked A: It does not render other incompetent evidence admissible
the witness, stating the grounds. in corroboration thereof. It does not waive the right to object
to like evidence when it is offered at a later stage of the
Q: What are the classifications of objections? Give proceedings.
examples.
Q: May objection to evidence be made before the offer of
A: evidence?
1. General objection
a. Evidence is incompetent A: No. An objection cannot be made in advance of the offer
b. Incompetent and immaterial of the evidence sought to be introduced.
c. Incompetent and inadmissible
d. Incompetent, irrelevant and inadmissible Q: May an objection to evidence be raised for the first time
e. Incompetent, inadmissible, and highly prejudicial on appeal?
f. Inadmissible and immaterial
g. Improper A: No.

NOTES ON EVIDENCE
Section 39. Ruling
Q: May the court deprive the counsel to object?
Q: Are parties entitled to a ruling of their objection?
A: No.
A: A ruling on objections to evidence should be mae as soon
Q: Where a party is represented by several lawyers, who as possible, either at the time the objection is made, or
may object? during the trial and before the judgment is rendered in time
to give the opposite party the opportunity to meet the
A: Any or all of them may interpose objections, even though objection.
the rule prohibits more than one attorney from examining a
witness. So, where a question is answered before objection can be
made, and the motion to strike is then made, the court may
Q: May a party object to questions propounded by the allow the evidence to remain until later in the case when
judge? counsel can present authorities, and then strike it. The court
need not rule on objections to evidence until it is offered.
A: Yes.
Q: Is a rule admitting evidence conditionally allowed?
Q: May a judge object to a question propounded to witness?
A: Facts which are yet inasmissible when presented and
A: Yes. admissible only in dependence upon other facts, may be
admitted on the assurance of counsel that specif other facts
Q: When may objection to evidence be waived? will be duly presented at a suitable opportunity before the
close of the case.
A: In case of implied waivers, the usual instance is that of
failure to make the objection at the proper time. Also, the Q: How must the ruling of the court be made?
curing of an error of admission by the opponents subsequent
use of evidence similar to that already objected to; and A: Rulings should be unequivocal and so definite in character
perhaps, the prior use of similar inadmissible evidence. as to leave no room for doubt as to what evidence is
admitted and what excluded.
Q: Must the court state the reason for its ruling?

Section 37. When repetition of objection unnecessary
A: No. However, if the objection is based on 2 or more
Q: Must an objection be constantly repeated when grounds, a ruling sustainig the objection on one or some of
subsequent offers of the same class of evidence are made? them must specify the grounds relied upon.
A: When an objectio to evidence is distinctly made and Q: Is an erroneous ruling as to the question of admissibility
overruled it need not be repeated to the same class of of evidence or its rejection a ground for new trial?
evidence subsequently received, although the evidence is
given by or the question asked of, another witness. A: No, if it appears that there was sufficient evidence to
justify the decision or that if the rejected evidence has been
Q: What are the exceptions? receivd, it would not have varied the decision.
A: Q: What is the effect of the ruling sustaining or overruling

1. Where subsequent evidence is not of the same kind an objection to evidence?
2. Where question has not been answered
3. Where incompetency of evidence is shown later A:
4. Where objection refers to preliminary question
5. Where objection to evidence was sustained but re- SUSTAINED OVERRULED
offered at a later stage of trial The court declares the The court declares the
6. Where evidende admitted on condition question improper and the question proper and the
7. Where the court reserves ruling on objection witness ought not to answer witness must answer it.
it
Section 39.Striking out answer

NOTES ON EVIDENCE
Q: When is a motion to strike out evidence necessary? Q: May the court upon its own motion strike out evidence
improperly admitted?
A: An objection must be interposed as soon as the grounds
therefor becomes evident. Counsel must be ever vigilant so A: Yes.
that incompetent evidence is not allowed to creep into the
recotds.
A motion to strike out should be made where a witness Section 40. Tender of excluded evidence
answers a question after an objectiob has been sustained;
where the irrelevancy of evidence becomes apparent after an Q: What is meant by tender of excluded evidence?
objection has been overruled, or where a witness answers a
question before an attorney can object. A: Where the court refuses to permit the counsel to present
testimony which he thinks is competent, material and
Q: Why is a motion to strike out evidence necessary? necessary to prove his case, the method of properly
preserving the record to the end that the question may be
A: It is necessary in order to preserve the right of the saved for the purposes of review, is through the making of an
objecting party to a review of the ruling of the trial court on offer of proof.
appeal.
Q: What is its purpose?
NOTE: A motion to strike may be directed specifically to the
evidence which the moving party desires to have eliminated, A:
and it should specify the grounds upon which it is based; 1. To inform the court what is expected to be proved
where grounds are specified, all other grounds are thereby 2. Procuring exceptions to the exclusion of the offered
waived. evidence so that the upper court may determine
from the record whether the evidence is competent.
Q: May a party who has elicited a statement from a witness
move to strike it out because it proves unfavorable to him? Q: If the excluded evidence is documentary or object, how is
the offer made?
A: No.
A: The offeror may have the same attached to or made part
Q: What must be the form of a motion to strike? of the record.
A: It must be directed with precision to the matter sought to Q: What if it is oral?

be stricken out and not impose on the court the duty of
sifting through the evidence to pick out matters within a A: The offeror may state for the record the name and other
general description. personal circumstances of the witness and the substance of
the proposed testimony. This is termed as offer of proof.
Q: When must a motion to strike out evidence be made?
Q: Is an offer of evidence without calling the witness
A: There is no strict rule, it may depend on the situation sufficient?
presented in a given case. However, inexcusable delay in
moving to strike objectionable evidence is ground fro denying A: When the court rules that it would not accept any
the motion. evidence regarding certain facts, which evience consists in
the testimony of witnesses, counsel must make an offer to
Ordinarily, a motion to strike objectionable testimony must prove. But without having the witness present and calling
be made at the time the testimony is given and the them, or asking to call them, an offer to prove is not
impropriety of the testimony is then apparent. If the sufficient.
impropriety is not apparent, it should be made immediately
after its impropriety becomes apparent, as where the ground
for the exclusion of the evidence appears for the first time on
cross-examination.
WEIGHT AND SUFFICIENCY OF EVIDENCE
Q: When must the ruling of the court on the motion to strike RULE 133
out evidence be made?
Section 1. Preponderance of evidence, how determined
A: It should be acted upon seasonably.

NOTES ON EVIDENCE
Q: What is the degree of proof required in civil cases?
A:
A: By preponderance of evidence.
1. Actor Rule
Q: What is meant by preponderance of evidence?
Q: What is the Actor Rule?
A: It means the evidence as a whole adduced by one side is
superior to that of the other. It means greater weight of the A: This rule maintains that a persons recollection of his own
evidence, that it outweighs the evidence of the adverse party. act and of the attendant circumstances is more definite and,
There are no degrees of preponderance required or trustworthy than another persons recollection of it,
recognized by law. When the equilibrium of proof is especially if it was an act done in the performance of a duty,
destroyed, and the beam inclines toward him who has the or if the other persons testimony is little more than an
burden, however, slightly, he has satisfied the requirement of expression of opinion or judgment.
the law and is entitled to a verdict.
Apart from comparative tenacy of memory, the actor usually
In the determinaion of values and credibilty of evidence, knows better than anyone else what he did or did not do, and
witnesses are weighed and not numbered. The testimony of his testimony is generally, but not always entitled to superior
one witness, if credible and positive and if it satisfies the weight on that account.
court is sufficient to convict.
2. The witness who had the greater interest in noticing and
Q: Are the rules for determining preponderance of evidence remembering the facts is to be believed in preference to
in civil cases applicable to criminal cases? the one that had a slighter interest to observe or was
wholly indifferent. Interest has the effect on the power
A: Yes. of observation of witnesses. It has been held that it was
not remarkable that witnesses would not have observed
Q: Is preponderance of evidence required to prove the trace of blood along the route through which the
prima facie case established by the party having the burden deceased was taken because said witnesses had no
of proof? reason to suspect that the crime was not committed in
the place where the dead body was found.
A: No, but it is sufficient if such evidence is co-equal, leaving 3. The witnesss who gives reasons for the accuracy of his
the proof in equilibrium. observations is preferred to him who merely states the
facts to be so, without adverting to any circumstances
Q: What is the effect where the evidence on disputed facts showing that his attention was particularly called to it.
are in equipoise? 4. The witness in a state of excitement, fear or terror is
generally incapable of observing accurately.
A: The party having the burden of proof upon that issue. 5. Intoxication tends to impair accuracy both of observation
and accuracy of the memory of a witness.
Q: How is the preponderance of evidence in civil cases
determined? Q: What factors should the court consider in evaluating the
certainty or uncertainty of the memory of a particular
A: The court may take into consideration the ff. factors: witness?
I. Facts and circumstances of the case A:

1. Revivial of memory by association of ideas
II. Demeanor of the witness 2. Relation of attention and interest to good memory
3. Important, impressive, and unusual events and their
III. Intelligence of the witness relation to memory
4. Leading questions as tending to deceive memory
IV. Opportunities of observation
Q: Give specific matters which may affect the memory of a
witness?
V. Memory A:
1. Oral statements- it is difficult to remember and
Q: In the determination of the extent of witness means and repeat the precise words of a conversation that is
opportunity of knowing the facts to which they testify, the being detailed
court must consider certain considerations.

NOTES ON EVIDENCE
2. Dead mans statements- of all evidence, the b. Police officers- given full credit as a whole in the
narration of a witness of his conversation with a absence of any showing as to motive which would
dead person is esteemed in justice the weakest. impel them to distort the truth.
3. Dates- the more remote the date to which a witness c. Tutored witness- cannot be relied as such; and when
testifies, the less inclined is the trier of facts to in other respects the testimony of such witness
receive the statement as absolutely true, particularly appears exagerrated, self-contradictory, evasive, and
where the witness admits that his memory is fickle otherwise denotes lack of sincerity and candor, it is
as to dates certainly not safe for the court to accept it for any
purpose and much less as a basis for conviction
VI. Inherent improbabilities of testimony in general d. Accomplices- admissible and competent. Yet, such
testimony comes from poluuted source, thus, it is
Where it is contrary to natural or physical laws, opposed to scrutinized with care.
common knowledge, or somewhat contradictory in itself, e. Clergymen- piety is not a guaranty of accuracy of
especially where the witness is a party or interested: observation or memory.
a. Repugnant to common experience in the f. Lawyers- distinction should be made between
ordinary course of human conduct lawyers testifying as witnesses for a party for whom
b. Contrary to natural laws they are counsel and lawyers testifying as
c. Mathematical improbabilities disinterested witnesses.
d. Statistical improbability g. Decoyed witnesses- when the evidence by the
witness for the Government in a criminal case shows
VII. Affirmative and negative testimony that he actually induced the defendant to commit
the alleged crime, the probative force of such
In general, all other things being equal, affirmative testimony testimony is thereby destroyed, and such conduct is
is stronger than negative. most reprehensible and should be reproved and not
VIII. Number of witnesses not encouraged by the courts.
IX. h. Witnesses related to parties- the mere fact that a
The number of witnesses testifying upon one side of a case is witness is related to any of the parties does not
unimportant and affords no guide for the determination of necessarily indicate that said witness has falsely
the weight of the evidence. Witnesses are to be weighed, not testified; if the witness testimony is found to be
numbered. reasonable and consistent, and not contradicated by
evidence from any reliable source.
X. Written evidence is superior than oral i. Girls admitting ignominy- presumed as absolutely
truth. This is so because it is hard to conceive that
Oral testimony as to a certain fact, depending as it does girls of good reputation would make such an
exclusively on human memory is not as reliable as written or admission if they were not true considering the
documentary evidence. possible social ostracism that may follow such
relevation.
XI. Credibility of witness in general j. Party to a suit- generally, the credibility of a witness
who is a party to the action, and therefore,
Q: What do you mean by credibility of witness? interested in results, depends upon the courts. This
is not however an absolute truht.
A: It means their disposition and intention to tell the truth in
the testimony they have given. It refers only to integrity, and XIII. Uncontradicted testimony in general
to the fact that he is worthy of belief.
When a disinterested witness who is in no way discredited,
It is not equivalent to credibility of testimony. testifies to a fact within his own knowledge, which is not
improbable or in conflict with other evidence, the witness to
XII. Credibility of particular witnesses be believed and the fact is to be taken as legally established.
a. Childern childeren of sound mind are likely to be XIV. Self-contradictions of witness

more observing of incidents which take place within
their view than older persons, and their testimony is Inquiry should be made as to whether they are due to a mere
therefore likely to be more correct in detail than of mistake or to a deliberate falsehood. The nature of the
older persons, and when once established that they contradictions as to whetehr they are material or merely
understand the nature and character of an oath, full refer to minor details is also relevant.
faith and credit should be given to their testimony.
XV. Falsus in uno, falsus in omnibus

NOTES ON EVIDENCE
the question, should be taken into consideration of
A witness willfully falsifying the truth in one particular, when the construction of his testimony.
upon oath, ought never to be believed upon the strength of 5. When the testimony of a party is self-contradictory
his own testimony whatever he may assert. the courts are fully justified in taking against him
that version of his testimony
This is no longer applied. The rule now is that where a 6. Technical meaning of words is not necessarily
witness has willfully falsified the truth at one point, his controlling.
testimony in other points may be disregarded unless
corroborated by circumstances or other unimpeached Q: What are the presumptions that are frequently
evidence. considered in judging comparative weight of evidence?
Q: What are the limitations to the rule? A:

1. Presumption of care to avoid injury
A: 2. Presumption from non-production of evidence
1. The testimony concerning which the witness has 3. Presumption from failure to produce better evidence
sworn falsely, must relate to a material point in issue or corroboration
2. Such testimony must have been given by the witness 4. Presumption from partys failure to testify
intentionally and he must have known it to be false. 5. Presumption from partys failure to deny charge of
fraud
Q: Is the maxim madatory in character? 6. Presumpion from partys failure to deny alleged oral
administrations
A: No. The court may exact such of the witness testimony as 7. Presumption from party testifying but refusing to
it may deem proper notwithstanding his false statements. If answer material questions
part of the witness testimony is found true, it cannot be 8. Presumption from committing witnesses by affidavit
disregarded entirely.
Q: What presumptions arises from non-production of
XVI. Contradiction between witnesses evidence?
If there is irreconcilable difference between their testimonies A: It gives rise to an unfavorable inference against the party.
as to essential circumstances, the partys caused is not
advanced by their testimony. And disagreement between Q: What are the instances when the presumption of
witnesses as to prominent collateral facts may be cogent suppresion of evidence?
evidence of perjury. But, it is natural that in relating their
impression, they are liable to disagree on the minor details A:
resulting in contradictions in their testimony. But such is not a 1. If a party fails to present all the eyewitnesses to an
sufficient grount to impeach their credibiity. act
2. When the evidence ommitted is at the disposal of
Construction of testimony both parties
3. When it is a privilege for a party to omit a certain
Q: What are the rules on the construction of testimony? piece of evidence
A: Conflicting testimonies
1. The testimony should be taken in its natural import
and meaning. It will be construed to mean and The Reconciliation Rule
include what a sensible person would naturally
understand it to mean. The first step is the process of inquiry to ascertain whether
2. Testimony must be considered as a whole, and the the apparent inconsistencies it presents may not without
true meaning of answers to isolated questions is to violence be reconciled.
be ascertained by due consideration of all the
questions propounded to the witness and his Courts must look at the conditions and surroundings of the
answers thereto. respective parties.
3. Courts must subordinate the literal terms used by a
witness to the substance and effect of his testimony. The Admitted Facts Rule
4. Where the question put to a witness is long and
contains more than one point, the common habit of Evidence of whatever description must yield to the extent
witness to answer only the last point mentioned in that it conflicts with admitted clearly established facts.
Having ascertained what facts are indisputably proved or

NOTES ON EVIDENCE
admitted on the one side and on the other, care must be A: It is based upon broad principles of humanity, which forbid
taken to make doubtful matters conform to those facts. the infliction of punishment until the commission of crime is
to a reasonable certainty established.
Clear and distinct testimony is more persuasive than which is
loose and confused or self-contradictory. The affirmative Q: What is the reason for requiring proof beyond
testimony is superior than a negative one. reasonable doubt?
Q: What matters may be taken into account as bases for A: Because of the unlimited command of means; with counsel
evaluating conflicting testimonies? usually of authority and capacity, who are regarded as public
officers, and with an attitude of tranquil majesty often in
A: striking contrast to that of the defendant engaged in
1. Probabilities perturbed and distracting struggle for liberty if not for life.
2. Motive for telling the truth
3. Character or reputation of witness Q: What is meant by reasonable doubt?
Q: What is the weight accorded by appellate court to trial A: It does not mean such degree of proof as excluding the
courts findings of fact as credibility of witness? possibility of error, produceses absolute certainty. Moral
certainty is required, or that degree of prood which produces
A: In civil case, it is well-settled that the appellate court will conviction in an unprejudiced mind.
not reverse a finding of fact by the trial court will not reverse
a finding of fact by the trial court made upon conflicting Q: What is meant by moral certainty?
testimony and depending largely upon the credibility of
witnesses who testified in the presence of the court, unless A: It is that degree of certainty which will justify the trial
the Court failed to take into consideration some material judge in grounding on his verdict. It is certainty that convinces
facts and circumstances presented to it for consideration. and directs the understanding and satisfies the reason and
judgment of those who are bound to act conscientiously
Q: When may actual findings of the court of appeals be set upon it.
aside?
Q: Distingusih presumption of innocence from reasonable
A: doubt.
1. When the conclusion is a finding grounded entirely
on speculation, surmises or conjectures A:
2. When the inference made is manifestly mistaken, PRESUMPTION OF REASONABLE DOUBT
absurd, or impossible INNOCENCE
3. Where there is a grave abuse of discretion Conclusion drawn by law in Condition of mind produced
4. When the judgment is based on a misapprehension favor of citizens by proof resulting from
of facts evidence in the case
5. When the court went beyond the issues of the case Evidence introduced by the Result of insufficient proof
and the same is contrary to the admission of both law
parties
Q: Is evidence giving rise to conjecture or suspicion of guilt
sufficient to warrant conviction?
Section 1. Proof beyond reasonable doubt A: No. Suspicion cannot give probative force to testimony
whcich in itself is insufficient to establish or justify an
Q: What is the degree of proof required in criminal cases? inference.
Q: Must all the elements of the offense charged be proved

A: The state is required to establish by proof beyond beyond reasonable doubt?
reasonable dout that the accused is guilty of that crime; and
in the absence of such degree, he is entitled to an acquittal, A: Yes.
regardless of whether his character is good or bad.
Q: May the testimony of a single witness be sufficient for
Q: What is the basis of such? conviction?

NOTES ON EVIDENCE
A: Yes, if such evidence convinces the court beyond Q: Will an extra-judicial confession suffice to establish
reasonable doubt that the defendant committed the crime corpus delicti?
charged.
A: No.
Q: What is the degree of proof to establish matters of
defense? Q: Who has the burden of proving the corpus delicti?
A: As a general rule, the doctrine of reasonable doubt applies A: On the prosecution.

only to incriminitive, not exculpatory facts; accused is not
required to establish matters in litigation or defense beyond Q: How may corpus delicti be proved?
reasonable doubt. It is sufficient if he satisfies the court of
their truth by credible or preponderating evidence. A:
1. By directing evidence or
Q: How about self-defense? 2. by circumstancial evidence, provided direct evidence
is not available
A: It is well-settled that one who sets up self-defense must
rely on the strength of his own evidence and not on the
weakness of that of the prosecution.
Section 4. Circumstantial evidence; when sufficient
Q: How about alibi?
Q: What is circumstantial evidence?
A: It must be proved by positive, clear and satisfactory
evidence. A: It is that which relates to a series of other facts than in the
fact in issue, which by experience have been found so
associated with the fact that in the relation of cause and
effect they lead to a satisfactory conclusion.
Section 3. Extrajudicial confession, not sufficient ground for
conviction Q: Distinguish circumstantial from direct evidence.
Corpus delicti A:
Q: What is corpus delicti? CIRCUMSTANTIAL DIRECT

Without going directly to Proved the existence of the
A: It means the body or substance of the crime, and may be prove the existence of a fact, fact in issue without any
defined in its primary sense as the fact that a crime actually give rise to a logical inference inference or presumption
has been committed. It means the actual commision by that such fact exist
someone of the particular crime charged.
Q: What is the basis of circumstantial evidence?
Q: What are the elements of corpus delicti?
A: Logic.
A:
1. That a certain result has been produced Q: When is circumstantial evidence sufficient for conviction?
2. That some person is criminally responsible for the
act A:
1. there must be more than one circumstance to
Q: Is plea of guilty in open court sufficient without proof of convict
corpus delicti? 2. facts on which the inference of guilt is based must
be proved
A: Yes. But an extrajudicial confession made by a defendant 3. the combination of all the circumstances is such as
does not warrant a conviction unless corroborated by to produce a conviction beyond reasonable doubt
independent evidence of the corpus delicti.
Q: What is the reason for the rule?

Section 5. Substantial evidence
A: It is intended to guard against convictions upon false
confession of guilt. Q: What is substantial evidence?

NOTES ON EVIDENCE
A: It is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion. PERPETUATION OF TESTIMONY
Rule 134
It does not import preponderant evidence, as is required in
an ordinary civil case. Section 1. Petition
Section 1. Petition. A person who desires to perpetuate his own

testimony or that of another person regarding any matter that may be
cognizable in any court of the Philippines, any file a verified petition in the
Section 6. Power of the court to stop further evidence court of the province of the residence of any expected adverse party.
Q: May the court limit the number of witnesses to establish Q: What is the reason for the rule?
a particular fact?
A: Whenever there is reasonable cause to apprehend future
A: Yes. in regard a particular subject or matter and the person
threatened with or exposed to suit himself is unable to bring
Q: If a party has rested his case may he be allowed to the issue to an immediate judicial proceeding, or when he
introduce additional evidence? himself intends to institute an action but is unable by reason
of some legal impediment, a court of equity will entertain a
A: It lies on the sound discretion of the court, and this bill or petition to perpetuate by taking and filing their
discretion cannot be reviewed except in clear case of abuse. dispositions.
Q: What are the situations contemplated by the rule?
Section 7. Evidence on motion A:

1. deposition taken pending an action
Q: What is a motion? 2. deposition taken pending appeal
3. deposition taken in contemplation of a forthcoming
A: It is an application made to a court or judge for the action
purpose of obtaining a ruling or order directing some act to
be done in favor of the applicant. Q: Is deposition before action a mode of discovery?
Q: Are motions regarded as pleadings? A: No.
A: Not in the ordinary or technical sense, even when they are Q: May perpetuation of testimony be used for framing a
reduced into writing. complaint?
Q: When may a motion be heard by affidavits or A: Yes but only for the purpose of preserving known
depositions? testimony against danger of loss.
A: Section 7 of Rule 133. The purpose of the rule is not to enable a prospective litigant
to discover facts upon which to frame a complaint.
Section 7. Evidence on motion. When a motion is based on facts
not appearing of record the court may hear the matter on affidavits Q: Does perpetuation of testimony include inspection of
or depositions presented by the respective parties, but the court property?
may direct that the matter be heard wholly or partly on oral
testimony or depositions. (7)
A: No.
Q: Distinguish affidavit and deposition.
A:
Section 2. Contents of petition
AFFIDAVIT DEPOSITION
Always taken ex parte The opposite party has an Q: What does the petition contain?
opportunity to cross-examine
the witness A:
1. expectancy of action
NOTES ON EVIDENCE
2. subject matter of the expected action and
petitioners interests therein
3. the facts which petitioner desires to establish by the
proposed testimony and his reasons thereof Section 5. Reference of court
4. names of expected adverse parties and their
addresses Section 5. Reference to court. For the purpose of applying Rule 24 to
5. identity of persons to be examined and nature of depositions for perpetuating testimony, each reference therein to the court
in which the action is pending shall be deemed to refer to the court in which
their expected testimony the petition for such deposition was filed.
6. prayer for relief
Section 6. Use of deposition
Q: Must the petition show that the court before whom it is
filed had jurisdiction over the contemplated action? Q: To what actions may the deposition be used?
A: Yes. A: In any action involving the same subject matter

subsequently brought.
Section 3. Notice and service Q: What is the probative value of depositions to perpetuate
testimony?
Q: May the proceeding to perpetuate testimony be
conducted ex parte? A: It does not prove the existence of any right. It can refer to
nothing but facts, it consisting only of the mere declaration of
A: No. It requires filing of petition and the service of process witnesses.
in the usual manner upon the defendants interested.
Q: When must a copy of the petition be served?

Section 7. Depositions pending appeal
A: Same as under Rule 14. It must be served at least 20 days
before the date of the hearing of the petition. Q: When may deposition pending appeal be taken?
A:
1. If an appeal has been taken from a judgment of a
Section 4. Order of examination RTC
2. Before the taking of an appeal if the time therefor
Q: What is meant by failure or delay of justice? has not expired.
A: It is made more specific by the items which the Rule Q: For what purpose may the deposition taken pending the
requires to appear on the petition. appeal be used?
Q: Is hearing of the petition necessary? A: Depositions de bene esse may be taken during the
pendency of an appeal or review proceeding for use in the
A: No. trial court in the event the cause is remanded for a new trial.
Q: What are the grounds for granting or denying the Q: What is the nature of the hearing on the motion for leave
petition? to perpetuate testimony pending appeal?
A: If the court is satisfied that the perpetuation of the A: It is summary, similar to a hearing of any motion and
testimony may prevent a failure or delay of justice, it may would ordinarily be heard on affidavit.
grant.
The application will not be allowed unless proper grounds

exist at the time and it appears that the testimony is material REFERENCE:
and will be competent evidence
Francisco, Ricardo J., Evidence: Rules of Court in the
Q: Is an order to perpetuate testimony ordering Philippines Rules 128-134. Third Edition. 1996. Rex Printing
perpetuation appealable? Company, Inc.
A: Yes, it is appealable as a final decision.

NOTES ON EVIDENCE
SUPPLEMENTARY NOTES Q: How are electronic signatures authenticated?

RULES ON ELECTRONIC EVIDENCE
A:
Q: What is the scope of the rules on evidence?
a. By evidence that a method or process was utilized to
A: Unless otherwise provided herein, these Rules shall apply establish a digital signature and verify the same;
whenever an electronic document or electronic data message b. By any other means provided by law; or
is offered or used in evidence. c. By any other means satisfactory to the judge as
establishing the genuineness of the electronic
Q: To what cases do these rules apply? signature.
A: All civil actions and proceedings, as well as quasi-judicial Disputable presumptions relating to e-signatures
and administrative cases.
Q: What are the disputable presumptions relating to e-
Q: What is an electronic data message? signatures?
A: It is any information generated, sent, received or stored by A:

electronic, optical or similar means.
a. The electronic signature is that of the person to
ELECTRONIC AND DIGITAL SIGNATURES whom it correlates;
b. The electronic signature was affixed by that person
Q: What is an electronic signature? with the intention of authenticating or approving the
electronic document to which it is related or to
A: It refers to any distinctive mark, characteristic and/or indicate such persons consent to the transaction
sound in electronic form, representing the identity of a embodied therein; and
person and attached to or logically associated with the c. The methods or processes utilized to affix or verify
electronic data message or electronic document or any the electronic signature operated without error or
methodology or procedure employed or adopted by a person fault.
and executed or adopted by such person with the intention of
authenticating, signing or approving an electronic data Disputable presumptions relating to digital signatures
message or electronic document.
Q: Disputable presumptions relating to digital signatures?
Q: What is a digital signature?
A:
A: It refers to an electronic signature consisting of a
transformation of an electronic document or an electronic a. The information contained in a certificate is correct;
data message using an asymmetric or public cryptosystem b. The digital signature was created during the
such that a person having the initial untransformed electronic operational period of a certificate;
document and the signers public key can accurately c. No cause exists to render a certificate invalid or
determine: revocable;
d. The message associated with a digital signature has
a. Whether the transformation was created using the not been altered from the time it was signed; and,
private key that corresponds to the signers public key; and, e. A certificate had been issued by the certification
authority indicated therein.
b. Whether the initial electronic document had been
altered after the transformation was made. Electronic Document
Q: What do you mean by digitally signed? Q: What is an electronic document?
A: It refers to an electronic document or electronic data A: It refers to any information or the representation of
message bearing a digital signature verified by the public key information, data, figures, symbols or other modes of written
listed in a certificate. expression, described or however represented, by which a
right is established or an obligation extinguished, or by which
NOTE: Electronic signature or digital signatures are admissible a fact may be proved and affirmed, which is received,
in evidence as the functional equivalent of the signature of a recorded, transmitted, stored, processed, retrieved or
person on a written document. produced electronically.

NOTES ON EVIDENCE
2. If in the circumstances it would be unjust or
Includes digitally signed documents and any printout or inequitable to admit the copy in lieu of the original.
output, readable by sight or other means, which accurately
reflects the electronic data message or electronic document. RULES ON THE AUTHENTICATION OF DOCUMENTS
NOTE: For purposes of these Rules, the term electronic Q: Give the rules to be applied in the authentication of
document may be used interchangeably with electronic electronic documents?
data message.
A:
Functional equivalent of paper-based documents
1. Burden of proving authenticity
Admissible in evidence if it complies with the rules on
admissibility prescribed by the Rules of Court and related Q: Who has the burden to prove the authenticity of such
laws and is authenticated in the manner prescribed by these documents?
Rules.
A: The person seeking to introduce an electronic document in
Q: Is an electronic document confidential in character? any legal proceeding has the burden of proving its
authenticity.
A: Confidential character of a privileged communication is not
lost solely on the ground that it is in the form of an electronic 2. Manner of authentication
document.
Before any private electronic document offered as authentic
BEST EVIDENCE RULE is received in evidence, its authenticity must be proved by
any of the following means:
Q: Under what instances can an electronic document be
regarded as an original document? a. By evidence that it had been digitally signed by the
person purported to have signed the same;
A: An electronic document shall be regarded as the b. By evidence that other appropriate security
equivalent of an original document under the Best Evidence procedures or devices as may be authorized by the
Rule: Supreme Court or by law for authentication of
electronic documents were applied to the
a. If it is a printout; or document; or
b. Output readable by sight or other means, shown to c. By other evidence showing its integrity and reliability
reflect the data accurately. to the satisfaction of the judge.
Q: When can the copies and duplicates be regarded as 3. A document electronically notarized in accordance
originals? with the rules promulgated by the Supreme Court
shall be considered as a public document and proved
A: as a notarial document under the Rules of Court.
1. When a document is in two or more copies executed EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS
at or about the same time with identical contents, or
Q: What are the factors for assessing the evidentiary weight
2. Is a counterpart produced by the same impression as of electronic documents?
the original, or from the same matrix, or by
mechanical or electronic re-recording, or by A:
chemical reproduction, or by other equivalent
techniques that accurately reproduces the original. a. The reliability of the manner or method in which it
was generated, stored or communicated, including
Q: Conversely, when can the copies or duplicates shall not but not limited to input and output procedures,
be admissible to the same extent as the original? controls, tests and checks for accuracy and reliability
of the electronic data message or document, in the
A: light of all the circumstances as well as any relevant
agreement;
1. If a genuine question is raised as to the authenticity b. The reliability of the manner in which its originator
of the original; or was identified;

NOTES ON EVIDENCE
c. The integrity of the information and communication method or circumstances of the preparation, transmission or
system in which it is recorded or stored, including storage thereof.
but not limited to the hardware and computer
programs or software used as well as programming Q: How are matters relating to the admissibility and
errors; evidentiary weight of an electronic document established?
d. The familiarity of the witness or the person who
made the entry with the communication and A: By an affidavit stating facts of direct personal knowledge
information system; of the affiant or based on authentic records.
e. The nature and quality of the information which
went into the communication and information NOTE: The affidavit must affirmatively show the competence
system upon which the electronic data message or of the affiant to testify on the matters contained therein.
electronic document was based; or
f. Other factors which the court may consider as Cross-examination of deponent
affecting the accuracy or integrity of the electronic
document or electronic data message. The affiant shall be made to affirm the contents of the
affidavit in open court and may be cross-examined as a
Integrity of an information and communication system matter of right by the adverse party.
In any dispute involving the integrity of the information and EXAMINATION OF WITNESSES
communication system in which an electronic document or Electronic testimony
electronic data message is recorded or stored, the court may
consider, among others, the following factors: a. After summarily hearing the parties pursuant to Rule
9 of these Rules, the court may authorize the
a. Whether the information and communication presentation of testimonial evidence by electronic
system or other similar device was operated in a means. Before so authorizing, the court shall
manner that did not affect the integrity of the determine the necessity for such presentation and
electronic document, and there are no other prescribe terms and conditions as may be necessary
reasonable grounds to doubt the integrity of the under the circumstances, including the protection of
information and communication system; the rights of the parties and witnesses concerned.
b. Whether the electronic document was recorded or b. When examination of a witness is done
stored by a party to the proceedings with interest electronically, the entire proceedings, including the
adverse to that of the party using it; or questions and answers, shall be transcribed by a
c. Whether the electronic document was recorded or stenographer, steno typist or other recorder
stored in the usual and ordinary course of business authorized for the purpose, who shall certify as
by a person who is not a party to the proceedings correct the transcript done by him. The transcript
and who did not act under the control of the party should reflect the fact that the proceedings, either in
using it. whole or in part, had been electronically recorded.
c. The electronic evidence and recording thereof as
EXCEPTION TO THE HEARSAY RULE well as the stenographic notes shall form part of the
record of the case. Such transcript and recording
A memorandum, report, record or data compilation of acts, shall be deemed prima facie evidence of such
events, conditions, opinions, or diagnoses, made by proceedings.
electronic, optical or other similar means at or near the time
of or from transmission or supply of information by a person Ephemeral electronic communication
with knowledge thereof, and kept in the regular course or
conduct of a business activity, and such was the regular Q: What is an ephemeral electronic communication?
practice to make the memorandum, report, record, or data
compilation by electronic, optical or similar means, all of A: It refers to telephone conversations, text messages,
which are shown by the testimony of the custodian or other chatroom sessions, streaming audio, streaming video, and
qualified witnesses, is excepted from the rule or hearsay other electronic forms of communication the evidence of
evidence. which is not recorded or retained.
Q: How can this presumption be overcome? Q: How should it be proven?
A: This presumption may be overcome by evidence of the A: It shall be proven by the testimony of a person who was a
untrustworthiness of the source of information or the party to the same or has personal knowledge thereof. In the

NOTES ON EVIDENCE
absence or unavailability of such witnesses, other competent A: DNA means deoxyribonucleic acid, which is the chain of
evidence may be admitted. molecules found in every nucleated cell of the body. The
totality of an individuals DNA is unique for the individual,
Audio, photographic and video evidence except identical twins.
Q: When are audio, photographic and video evidence Q: What is DNA evidence?
admissible?
A: DNA evidence constitutes the totality of the DNA
A: Audio, photographic and video evidence of events, acts or profiles, results and other genetic information directly
transactions shall be admissible provided: generated from DNA testing of biological samples;
a. It shall be shown, presented or displayed to the Q: What is DNA profile?

court; and
b. shall be identified, explained or authenticated by the A: DNA profile means genetic information derived from
person who made the recording or by some other DNA testing of a biological sample obtained from a person,
person competent to testify on the accuracy thereof. which biological sample is clearly identifiable as originating
from that person.
NOTE: Same rule covers a recording of the telephone
conversation or ephemeral electronic communication shall be Q: What is DNA testing?
covered by the immediately preceding section.
A: DNA testing means verified and credible scientific
If ephemeral, audio, photographic and video evidence are methods which include the extraction of DNA from biological
recorded or embodied in an electronic document, then the samples, the generation of DNA profiles and the comparison
provisions authentication electronic documents apply. 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 more distinct biological samples originates from the
RULE ON DNA EVIDENCE same person (direct identification) or if the biological samples
A.M. No. 06-11-5-SC originate from related persons (kinship analysis); and
Q: What is the scope of the rule on DNA evidence? Q: What is probability of parentage?
A: This Rule shall apply whenever DNA evidence, as defined in A: Probability of Parentage means the numerical estimate
Section 3 hereof, is offered, used, or proposed to be offered for the likelihood of parentage of a putative parent compared
or used as evidence in all criminal and civil actions as well as with the probability of a random match of two unrelated
special proceedings. individuals in a given population.
Q: Will the Rules on Evidence be applicable in cases of

presentation of DNA evidence?
Application for DNA Testing Order
A: In all matters not specifically covered by the Rule, the
Rules of Court and other pertinent provisions of law on Q: Discuss the procedure for the application of the DNA
evidence shall apply. Testing order.
A: The appropriate court may, at any time, either:

a. motu proprio or
Definition of Terms b. on application of any person who has a legal interest
in the matter in litigation,
Q: What is biological sample? order a DNA testing. Such order shall issue after due hearing
and notice to the parties upon a showing of the following:
A: Biological sample means any organic material 1. A biological sample exists that is relevant to the
originating from a persons body, even if found in inanimate case;
objects, that is susceptible to DNA testing. This includes 2. The biological sample: (i) was not previously
blood, saliva and other body fluids, tissues, hairs and bones. subjected to the type of DNA testing now requested;
or (ii) was previously subjected to DNA testing, but
Q: What is DNA? the results may require confirmation for good
reasons;

NOTES ON EVIDENCE
3. The DNA testing uses a scientifically valid technique;
4. The DNA testing has the scientific potential to Post-conviction DNA Testing
produce new information that is relevant to the
proper resolution of the case; and Q: When may a Post-conviction DNA Testing be availed of?
5. The existence of other factors, if any, which the
court may consider as potentially affecting the A: Post-conviction DNA testing may be available, without
accuracy of integrity of the DNA testing. need of prior court order, to the prosecution or any person
convicted by final and executory judgment.
DNA Testing Order
Q: What are the conditions or requisites?
Q: When will the court issue a DNA Testing Order?
A: Provided that
A: If the court finds that the requirements in Section 4 hereof a. a biological sample exists,
have been complied with, the court shall b. such sample is relevant to the case, and
a. Order, where appropriate, that biological samples be c. the testing would probably result in the reversal or
taken from any person or crime scene evidence; modification of the judgment of conviction.
b. Impose reasonable conditions on DNA testing
designed to protect the integrity of the biological
sample, the testing process and the reliability of the
test results, including the condition that the DNA Assessment of probative value of DNA evidence
test results shall be simultaneously disclosed to
parties involved in the case; and Q: What are the factors to be considered in assessing the
c. If the biological sample taken is of such an amount probative value of the DNA evidence?
that prevents the conduct of confirmatory testing by
the other or the adverse party and where additional A: In assessing the probative value of the DNA evidence
biological samples of the same kind can no longer be presented, the court shall consider the following:
obtained, issue an order requiring all parties to the
case or proceedings to witness the DNA testing to be a. The chair of custody, including how the biological
conducted. samples were collected, how they were handled,
and the possibility of contamination of the samples;
Q: What is the effect of the order of granting of a DNA b. The DNA testing methodology, including the
Testing Order? May it be appealed? procedure followed in analyzing the samples, the
advantages and disadvantages of the procedure, and
A: An order granting the DNA testing shall be immediately compliance with the scientifically valid standards in
executory and shall not be appealable. conducting the tests;
c. The forensic DNA laboratory, including accreditation
Q: Will a petition for certiorari stay the implementation of by any reputable standards-setting institution and
the DNA Testing Order? the qualification of the analyst who conducted the
tests. If the laboratory is not accredited, the relevant
A: Any petition for certiorari initiated therefrom shall not, in experience of the laboratory in forensic casework
any way, stay the implementation thereof. and credibility shall be properly established; and
d. The reliability of the testing result, as hereinafter
Q: Is there an exception? provided.
A: Unless a higher court issues an injunctive order. Q: Will the provisions of the Rules of Court apply?
Q: Will the grant of DNA Testing Order have an effect of an A: The provisions of the Rules of Court concerning the
automatic admission into evidence of any component of the appreciation of evidence shall apply suppletorily.
DNA evidence?
Reliability of DNA Testing Methodology.
A: The grant of DNA testing application shall not be construed
as an automatic admission into evidence of any component Q: In evaluating whether the DNA testing methodology is
of the DNA evidence that may be obtained as a result reliable, what are the factors which the Court shall
thereof. consider?
A:

NOTES ON EVIDENCE
a. The falsifiability of the principles or methods used, NOTE: A similar petition may be filed either in the Court of
that is, whether the theory or technique can be and Appeals or the Supreme Court, or with any member of said
has been tested; courts, which may conduct a hearing thereon or remand the
b. The subjection to peer review and publication of the petition to the court of origin and issue the appropriate
principles or methods; orders.
c. The general acceptance of the principles or methods
by the relevant scientific community;
d. The existence and maintenance of standards and
controls to ensure the correctness of data Confidentiality
generated;
e. The existence of an appropriate reference Q: What is the nature o f the DNA profiles and all results or
population database; and other information obtained from DNA testing?
f. The general degree of confidence attributed to
mathematical calculations used in comparing DNA A: DNA profiles and all results or other information obtained
profiles and the significance and limitation of from DNA testing shall be confidential.
statistical calculations used in comparing DNA
profiles. Q: To whom should the results or information be released?
Evaluation of DNA Testing results A: Except upon order of the court, a DNA profile and all
results or other information obtained from DNA testing shall
Q: In evaluating the results of DNA testing, what are the only be released to any of the following, under such terms
factors that the court should consider? and conditions as may be set forth by the court:
a. Person from whom the sample was taken;
a. The evaluation of the weight of matching DNA b. Person from whom the sample was taken;
evidence or the relevance of mismatching DNA c. Lawyers of private complainants in a criminal action;
evidence; d. Duly authorized law enforcement agencies; and
b. The results of the DNA testing in the light of the e. Other persons as determined by the court.
totality of the other evidence presented in the case;
and that Q: What is the penalty in case of non-compliance of this
c. DNA results that exclude the putative parent from provision?
paternity shall be conclusive proof of non-paternity.
If the value of the Probability of Paternity is less than A: Whoever discloses, utilizes or publishes in any form any
99.9%, the results of the DNA testing shall be information concerning a DNA profile without the proper
considered as corroborative evidence. If the value of court order shall be liable for indirect contempt of the court
the Probability of Paternity is 99.9% or higher there wherein such DNA evidence was offered, presented or sought
shall be a disputable presumption of paternity. to be offered and presented.
Post-conviction DNA Testing NOTE: Where the person from whom the biological sample
was taken files a written verified request to the court that
Q: What is the purpose of the Post-conviction DNA Testing? allowed the DNA testing for the disclosure of the DNA profile
of the person and all results or other information obtained
A: It is a remedy if the Results Are Favorable to the Convict. from the DNA testing, the same may be disclosed to the
persons named in the written verified request.
Q; What is the procedure in the application for such?
A:
Preservation of DNA Evidence.
1. The convict or the prosecution may file a petition for
a writ of habeas corpus in the court of origin if the Q: Who shall preserve the DNA evidence?
results of the post-conviction DNA testing are
favorable to the convict. A: The trial court shall preserve the DNA evidence in its
2. In the case the court, after due hearing finds the totality, including all biological samples, DNA profiles and
petition to be meritorious, if shall reverse or modify results or other genetic information obtained from DNA
the judgment of conviction and order the release of testing.
the convict, unless continued detention is justified
for a lawful cause. NOTE: For this purpose, the court may order the appropriate
government agency to preserve the DNA evidence as follows:

NOTES ON EVIDENCE
a. In criminal cases:
i. for not less than the period of time that any
person is under trial for an offense; or
ii. in case the accused is serving sentence,
until such time as the accused has served
his sentence;
a. In all other cases, until such time as the decision in
the case where the DNA evidence was introduced
has become final and executory.
Q: When may the court order the destruction of a biological

sample?
A: The court may allow the physical destruction of a biological

sample before the expiration of the periods set forth above,
provided that:
a. A court order to that effect has been secured; or

b. The person from whom the DNA sample was
obtained has consented in writing to the disposal of
the DNA evidence.
NOTES


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NOTES ON EVIDENCE

Kenneth & King Hizon (3A) _____________________________________________

Ex: testimony of A that he saw B running away from

Facultad de Derecho Civil 1

Facultad de Derecho Civil 2

NOTE: In connection with evidence which may appear to be

Facultad de Derecho Civil 3

Q: Distinguish admissibility and weight of evidence. CURATIVE ADMISSIBILITY OF EVIDENCE

A: Q: State the rule regarding curative admissibility of

Facultad de Derecho Civil 4

Sec.4. Relevancy; collateral matters FACTS IN ISSUE FACTS RELEVANT TO THE

Facultad de Derecho Civil 5

XPN: Admissible when they tend in any reasonable degree to A:

Facultad de Derecho Civil 6

Facultad de Derecho Civil 7

RULES OF ADMISSIBILITY A: Physical evidence is one of the highest order. It speaks

Facultad de Derecho Civil 8

Facultad de Derecho Civil 9

Q: May accused be compelled to take dictation from the

Facultad de Derecho Civil 10

Facultad de Derecho Civil 11

Facultad de Derecho Civil 12

A: It is sufficient to show that it is deposited in a place from

Facultad de Derecho Civil 13

Q: What is the effect of the production of the original after

Oral testimony cannot prevail over a written agreement of

Facultad de Derecho Civil 14

Facultad de Derecho Civil 15

Facultad de Derecho Civil 16

Sec. 20. Witnesses; their qualifications

INTERPRETATION OF DOCUMENTS Q: What is meant by the term witness?

Facultad de Derecho Civil 17

Q: May an attorney be a witness?

A: When a lawyer is a witness for his client, except as to

Facultad de Derecho Civil 18

Facultad de Derecho Civil 19

1. The witness is a party or assignor of a party to a case or is A:

Facultad de Derecho Civil 20

A: Communications between husband and wife overheard by A:

Facultad de Derecho Civil 21

A: Q: Are professional communications for an unlawful

A: Yes. Q: To whom does the privilege belong?

Facultad de Derecho Civil 22

Q: Give instances of implied waiver? Q: When is a physician said to be professionally attending

A: A: The evidence does not fall within the inhibition of the

Facultad de Derecho Civil 23

Q: What is the reason why death of the patient does not A:

Q: May the privilege be waived? 2. The confession must be of a penitential character

A: Yes. Q: What do you mean by confession must be of a penitential

Facultad de Derecho Civil 24

Q: What is public interest? Q: What is the scope of the rule?

Q: What are the exceptions to the rule? A:

A: No. The rule is founded on sound reasons and good policy.

Facultad de Derecho Civil 25

ADMISSION CONFESSION Q: How may an admission of a party be introduced as

Facultad de Derecho Civil 26

Q: Are diaries admissible in evidence? If a statement forming part of an offer of compromise or

Facultad de Derecho Civil 27

A: It is not admissible. The payment or offer is usually made

Q: Is an express admission of liability coupled with an offer A:

Q: Are the declarations of a hostile or deceased partner

Facultad de Derecho Civil 28

In other words, what is done, by an agent, is done by the

A: A: Under the RPC, a conspiracy exists when two or more

Hizon Notes - Evidence (Francisco) (Erika Pineda's Conflicted Copy 2014-10-10)

Hizon Notes - Evidence (Francisco) (Erika Pineda's Conflicted Copy 2014-10-10)