EVIDENCE|RIANO NOTES | For the exclusive use of EH404 2016-2017

EVIDENCE of fact. Where the court is faced with a question of law, it may be
resolved by applying the relevant statutes.
Sec. 1, Rule 128. Evidence defined. Evidence is the means
sanctioned by these rules, of ascertaining in a judicial proceeding the 2. When Pleadings in a CIVIL CASE do not tender an issue of fact, a
truth respecting a matter of fact. trial need not be conducted since there is no more reason to
present evidence.
CONCEPT 3. Upon written agreement of the parties and submission of the case
1. Must be sanctioned or allowed by the Rules of Court. for judgment upon facts agreed upon.
4. On matters of judicial notice.
It is not evidence if it is excluded by law or by the rules even if it 5. When a law or rule presumes the truth of a fact
proves the existence or non- existence of fact in issue.
Application of the Rules on Electronic Evidence
2. Evidence is not as an end itself but merely as a means of
ascertaining the truth of a matter of fact.
Sec. 2. Cases covered. These Rules shall apply to all civil actions and
3. Evidence is a means ascertaining the truth not in all types of proceedings, as well as quasi-judicial and administrative cases.
proceedings but only in a judicial proceeding.
Rules on Electronic Evidence apply to all civil actions and proceedings as
4. The purpose of which is to ascertain the truth respecting a matter well as quasi-judicial and administrative cases but not to criminal actions
of fact in a judicial proceeding.
EVIDENCE IN CIVIL CASES DISTINGUISHED FROM EVIDENCE IN
The truth referred to is only judicial or legal truth. The limitations CRIMINAL CASES
of human judicial systems cannot always guarantee knowledge of
the actual or real truth. The findings of the court would depend on Civil Cases Criminal Cases
the evidence presented before it based on accepted rules of
Party having burden of proof The guilt of the accused has to
admissibility.
must claim by a be proven beyond reasonable
preponderance of evidence. doubt.
Under Sec 34, Rule 132, courts are not even authorized to
consider evidence which has not been formally offered. Offer of compromise is not an EXCEPT those involving quasi-
admission of any liability and offense (criminal negligence)
Scope and Applicability of the Rules of Evidence not admissible evidence or those allowed by law to be
The rules are guided by the principle of uniformity the rules shall be against the offeror. compromised, an offer of
the same in all courts and in all trials and hearings. compromise by accused may
be received in evidence as an
The rules, being components of the ROC, apply only to judicial implied admission of guilty.
proceedings.
The concept of presumption of The accused enjoys the
CASES WHEN RULES ARE NOT APPLICABLE innocence does not apply and constitutional presumption of
Sec. 4, Rule 128. In what cases not applicable. These Rules shall GENERALLY there is NO innocence.
not apply to election cases, land registration, cadastral, naturalization presumption for or against a
and insolvency proceedings, and other cases not herein provided for, party except in certain cases
except by analogy or in a suppletory character and whenever practicable provided by law such as
and convenient. common carriers (Art. 1756)
The Rules are not applicable in following cases:
1. Election cases DISTINCTION BETWEEN PROOF AND EVIDENCE:
2. Land registration
3. Cadastral Proof is not evidence itself. It is probative effect of evidence and is the
4. Naturalization persuasion of the mind from a consideration of the evidence.
5. Insolvency proceedings
6. Other cases Evidence is the means by which a fact is proved or disproved.

Administrative bodies Factum Probans and Factum Probandum

They are not bound by the technicalities of the rules of procedure and
evidence.
Evidence signifies a relationship between two facts factum probandum
Bantolino vs Coca Cola Bottlers and factum probans
The rules of evidence do not apply to administrative or quasi- judicial
proceedings. Factum probandum
The fact or proposition to be established
Sasan, Sr. v NLRC
Technical rules of evidence do not apply to labor proceedings before It is a fact to be proved; the fact which is in issue and to which evidence
is directed
When Evidence not required In civil case, factum probandum refers to the elements of a cause of
action from the point of view of the plaintiff and the elements of the
1. Where no factual issue exists in a case, there is no need to present defense from the standpoint of the defendant.
evidence.
In criminal case, the factum probandum includes all matters that the
Evidence is a means of proving a fact. There is a need for the prosecution must prove beyond reasonable doubt in order to justify a
introduction of evidence when the court has to resolve a question conviction when the accused pleads not guilty.
1| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
EVIDENCE|RIANO NOTES | For the exclusive use of EH404 2016-2017
Factum probans
The facts or material evidencing the fact or proposition to be established.
It is probative or evidentiary fact tending to prove the fact in issue.
Liberal Construction of the Rules on Evidence
Rule of procedure are mere tools intended to facilitate rather than
frustrate the attainment of justice. It must be liberally interpreted and
applied so as not to frustrate substantial justice.
Absence of a vested right in the Rules on evidence
Said rules are subject to change by the SC pursuant to its powers to
promulgate rules concerning pleading, practice and procedure. The
change in the rules is subject to the constitutional limitation on the
enactment of ex post facto law.1
Waiver
The rules may be waived. When an objectionable evidence is not
objected to, the evidence becomes admissible.
Admissibility of Evidence
Sec 3, Rule 128. Admissibility of evidence. Evidence is admissible
when it is relevant to the issue and is not excluded by law or these rules.
Requisites for the admissibility of evidence:
1. The evidence is relevant, and
2. The evidence is not excluded by the rules(competent)
Wigmores two axioms of admissibility
(a) That none but facts having rational probative value are
admissible (the axiom of relevance) ; and
(b) That all facts having rational probative value are admissible
unless some specific rule forbids them (axiom of competence)
Relevant Evidence
Sec. 4.Relevancy; collateral matters. Evidence must have such a
relation to the fact in issue as to induce belief in its existence or non-
existence. Evidence on collateral matters shall not be allowed, except
when it tends in any reasonable degree to establish the probability or
improbability of the fact in issue. (4a)
Concept
Evidence to be relevant must have such a relation to the act in issue as
to induce the belief in its existence or nonexistence.
It is one of logic. It deals with the rational relationship between the
evidence and the fact to be proved. Thus, the evidence adduced should
be directed to the matters in dispute and any evidence which has neither
direct nor indirect relationship to such matters must be set aside as
irrelevant.
NOTE: The matter of relevance requires the existence of a fact in issue.
This fact in issue must be a disputed fact. Thus, it is obvious that the
evidence offered to prove an undisputed fact is irrelevant, and as such,
is inadmissible. Where there is no issue as to a matter of fact, there
exists no purpose for an item of evidence.
Bar 1981: S is indebted to bank. When the obligation falls due, he
fails to pay and the bank sues for collection. As part of the evidence of
BDO, the accountant of S is placed on the stand and in the course of
1
An ex post facto law includes that which alters the rules on evidence and receives
less or different testimony than that required at the time of the commission of the
offense in order to convict the accused.
2| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
his examination he asked if he, in turn, is also indebted to bank. The
lawyer of C interposes an objection to the question that it is impertinent.
How would you rule on the objection?
Suggested Answer: The objection of S that the question is impertinent
or irrelevant should be sustained. The issue in this case is the
indebtedness of the defendant to the bank and not the indebtedness of
the accountant of S to the bank.
Test for determining relevancy of evidence
The determination of relevance is a matter of inference and not of law.
The test is, therefore, one of logic, common sense and experience. The
existence of the relationship between the fact in issue and the offered
evidence is one that is perceived only by the mind without reference to
a statute or rule. It is a matter of reasoning because relevance is a
matter of logic.
The relevance is a matter of relationship between the evidence and a
fact in issue. The determination of relevance is thus, a matter of
inference and not of law. The test would therefore be one of logic,
common sense and experience.
People v. Galleno, 291 SCRA 761
There is no precise and universal test of relevancy provided by law.
However, the determination of whether particular evidence is relevant
rests largely at the discretion of the court, which must be exercised
according to the teachings of logic and everyday experience.
Collateral Matters
A matter is collateral when it is on a parallel or diverging line, merely
additional or auxiliary. This term connotes an absence of a direct
connection between the evidence and the matter in dispute.
Example: Motive of a person or his reputation
WHEN COLLATERAL MATTERS ARE ALLOWED
General Rule: Evidence on a collateral matte is not allowed. It is not
allowed because it does not have the direct relevance to the issue of the
case.
Exception: A collateral matter may be admitted if it ends in any
reasonable degree to establish the probability or improbability of the fact
in issue.
While the evidence may not bear directly on the issue, it will be admitted
if it has the tendency to induce belief as to the probability or
improbability of the issues of the case as when it would have the effect
of corroborating or supplementing facts previously established by direct
evidence.
Relevance of Evidence on the Credibility of Witness
In every proceeding, the credibility of the witness is always an issue.
The credibility of the witness has the inherent tendency to prove and
disprove the truthfulness of his assertion and consequently, the
probative value of the proffered evidence.
The importance of the credibility of a witness in a judicial proceeding is
highlighted by rules which allow the adverse party to test such credibility
through a process called cross examination
What if the credibility of a witness is found wanting?
Sec. 11 of Art. 132, authorizes his impeachment by contradictory
evidence, by evidence that in the past, he has made statements
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inconsistent with his present testimony or by evidence that his general
reputation for truth, honesty or integrity is bad.
How should the court assess the testimony of a witness?
The Court shall be guided by the rule that for evidence to be believed,
it must not only proceed from the mouth of credible witness, but must
be credible in itself such as the common experience of mankind can
approve as probable under the circumstances.
NOTE: The adverse party can test the credibility of the witness through
cross-examination not only on matters taken up in the direct
examination. The broad spectrum of the questions allowable in a cross
examination of a witness includes questions on matters connected with
those taken up by direct examination. It includes questions designed to
grant the cross-examiner sufficient fullness and freedom to test the
accuracy and truthfulness if the witness, his interest or bias, or the
reverse (Sec. 6, Rule 132).
What are the instances that questions of the crossexaminer are
circumscribed by the matters taken up in the direct examination and
thus questions outside the subject matter of direct examination are not
allowed?
1. An accused may testify as a witness on his own behalf but subject
to cross-examination on matters covered by direct examination
(Sec. 1 [d], Rule 115).
2. A hostile witness may be impeached and cross-examined by the
adverse party, but such cross examination must only be the subject
of his examination-in-chief (Sec. 12, Rule 132).
Competent Evidence
Competent evidence is one that is not excluded by law in a particular
case.
Test of competence
It is the law or the rules. If the law or a particular rule excludes the
evidence, it is incompetent.
Note: Competence, in relation to evidence in general, refers to the
eligibility of an evidence to be received as such. However, when applied
to a witness, the term competent refers to the qualifications of the
witness. In other words, competence refers to his eligibility to take the
stand and to testify. It is in the context that the term is normally
associated with.
Is objection on the ground that it is incompetent an accepted form of
objection?
No, because it is a general objection. The objection should specify the
ground for its incompetence such as leading, hearsay or parol.
Note that courts neither need nor appreciate generalities. General
objections are viewed with disfavor because specific objections are
required by Sec. 36, Rule 132. Thus, for purposes of trial objections,
evidence is never incompetent. It is people who are. It is a sloppy usage
to object to a testimony or a document as incompetent. Such term more
appropriately describes a witness who under evidentiary rules, does not
possess the qualifications of a witness or suffers from disqualification to
be one.
Competence of Electronic Evidence
Electronic evidence is competent evidence and is admissible if it complies
with the rules on admissibility prescribed by the Rules of Court and is
authenticated in the manner prescribed (Sec. 2, Rule 3, Rules on
Electronic Evidence).
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Admissibility and Weight (probative value) of the evidence,
Distinction
Admissibility of evidence refers to the question of whether or not the
evidence is to be considered at all
Probative value of evidence refers to the question of whether or not it
proves an issue.
Admissibility of evidence should not be equated with the weight of
evidence. The admissibility of evidence depends on its relevance and
competence while the weight of evidence pertains to its tendency to
convince and persuade.
MULTIPLE ADMISSIBILITY
There are times when a proffered evidence is admissible for two or more
purposes.
It may be inadmissible for one purpose but admissible for another.
Bar 2005: May a private document be offered and admitted in evidence
both a documentary evidence and as object evidence?
A: A private document may be offered and admitted in evidence both as
documentary evidence and as object evidence depending on the
purpose which the document is offered. If offered to prove its existence,
condition or for any purpose other than the contents of a document, the
same is considered as an object evidence. When the private document
is offered as proof of its contents, the same is considered as
documentary evidence.
Bar 1984: When A was stabbed on the chest during a street brawl, he
instinctively shouted for help. B, who was nearby, head the shout and
immediately ran towards A who upon inquiry by B, stated that C had
stabbed him. If A should die on account of the stab wound, upon what
rule or rules of evidence could B's testimony be received? Explain.
A: The testimony could be admitted either as a dying declaration or as
part of the res gestae.
Assuming that A was under the consciousness of an impending death
when he stated that C had stabbed him, the declaration may be admitted
as a dying declaration pursuant to Sec. 37 of Rule 130. If the statement
was made without such consciousness, it could be admissible as part of
the res gestae under Sec. 42 of Rule 130, since the same was made
immediately after a startling event, i.e. the stabbing.
CONDITIONAL ADMISSIBILITY (Bar 2011)
It happens frequently enough that the relevance of a piece of evidence
is not apparent at the time it is offered, but the relevance of which will
readily be seen when connected to other piece of evidence not yet
offered.
The evidence may be conditionally admitted in the meantime subject to
the condition that he is going to establish its relevancy and competency
at a later time. If not later shown to be connected, the court may, upon
motion, strike out from the record evidence.
CURATIVE ADMISSIBILITY
The doctrine allows a party to introduce otherwise inadmissible evidence
to answer the opposing party's previous introduction of inadmissible
evidence if it would be remove any unfair prejudice caused by the
admission of the earlier inadmissible evidence.
The principle of curative admissibility should not be made to apply where
the evidence was admitted without objection because the failure to
object constitutes a waiver of the inadmissibility of the evidence. In our
jurisdiction, inadmissible evidence not objected to becomes admissible.
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Only where the objection was incorrectly overruled, that the court should
allow the other party to introduce evidence to contradict the evidence
improperly admitted in order to cure the prejudice caused to the other
party against whom the offered evidence was erroneously admitted.
DIRECT AND CIRCUMSTANTIAL EVIDENCE
Direct evidence means evidence which if believed, proves the existence
of a fact in issue without inference or presumption.
Circumstantial evidence is evidence that indirectly proves a fact in issue
through an inference which the fact finder draws from the evidence
established.
CONVICTION BY CIRCUMSTANTIAL EVIDENCE
In a criminal case, circumstantial evidence may be sufficient for
conviction provided the following requisites concur:
There is more than one circumstance;
The facts from which the inferences are derived are proven; and
The combination of all circumstances is such to produce a conviction
beyond reasonable doubt.
Circumstantial evidence may be a basis for conviction and such
conviction can be upheld provided the circumstances proven constitute
an unbroken chain which leads to one fair and reasonable conclusion
that points to the accused to the exclusion of all others as the guilty
person.
A conviction based on circumstantial evidence must exclude each and
every hypothesis consistent with innocence.
Jurisprudence instructs that where the circumstances obtaining in a case
are capable of two inferences, one of which is consistent with the
presumption of innocence while the other may be compatible with the
finding of guilty, the court must acquit the accused because the evidence
does not fulfill the test of moral certainty and, therefore, is insufficient
to support a judgment of conviction.
Bar 1998: A was accused of having raped X. Evidence is presented
consisting of a pair of short pants allegedly left by A at the crime scene.
Rule on the admissibility of the evidence.
Suggested Answer: The evidence may be admissible as a circumstantial
evidence of his liability. Although not sufficient in itself to support a
conviction because there is only one circumstance.
CUMULATIVE EVIDENCE AND CORROBORATIVE EVIDENCE
Cumulative evidence refers to evidence of the same kind and character
as that already given and the tents to prove the same proposition.
Corroborative evidence is one that is supplementary to that already
given tending to strengthen or confirm it. It is additional evidence of a
different character. The term connotes evidence which tends to confirm,
validate or strengthen evidence already resented.
Corroborative evidence is necessary only when there are reasons to
suspect that the witness falsified the truth or that his observations are
inaccurate.
Positive and Negative Evidence
Both positive and negative evidence is used in testimonial evidence but
there is no rule precluding them from being used in other forms of
evidence.
Positive Evidence
When a witness affirms that a certain state of facts does exist or a
certain event happened. The presence of something.
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Example: Witness saw the accused fire a gun
In case of contradictory declarations, positive evidence are given greater
probative value. A testimony that asserts the existence of a fact is given
more credence.
Reason: one who testifies to a negative evidence may have forgotten
what actually happened
Negative Evidence
When the witness states that an event did not occur or the state of facts
alleged to exist does not actually exist.The absence of something
Example: The accused could not have fired the gun as he was not
carrying any gun at that time.
However, the negative finding in a paraffin test is not conclusive
evidence that one has not fired a gun as there can be other factors that
could have affected the result (e.g. sweating, washing of hands).
Types of Negative Evidence
1. Denial
Very weak form of defense and can never overcome an
affirmative or positive testimony especially if it is from a
credible witness.
Self-serving and with no evidentiary value. Standing alone, it
cannot overcome other evidence; must be coupled with
evidence of non-culpability. It must be substantiated or
corroborated with clear and convincing evidence
2. Alibi
Same as denial. It cannot overcome positive identifications or
declarations of witness who has no ill-motives in testifying.
Inherently weak, unreliable and easily fabricated.
Credibility of a Witness
Credibility
It is the quality which renders a witness worthy of belief. It
is the believability. It is different from competency. After the
competence is allowed, the determination of his credibility follows.
Admissible Evidence
Admissible Evidence
When it is:
a. Relevant to the issue
b. Not excluded by the law or rules
It is of that character that the court is bound to receive or allow it to be
introduced at trial. It does not guarantee credibility.
INADMISSIBLE EVIDENCE
Under the Anti- Wiretapping Law
Under RA 4200, evidence obtained in violation of the said act shall be
inadmissible in the following proceedings:
a. Judicial
b. Quasi-judicial
c. Legislative
d. Administrative hearing or investigation
Inadmissible if illegally obtained
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1. Any communication or spoken word
2. Existence, contents, substance, purport, or meaning of the
communication, or spoken word or any part thereof
3. Any info contained, obtained, or secured by any person in
violation of the act
The recording of open and public communications is not unlawful. The
law only protects private conversations.
Salcedo-Ortanez v. CA
Absent a clear showing that both the parties to the telephone
conversation allowed the recording, it is mandatory to render the
recording inadmissible.
Ramirez v. CA
The presentation in evidence of a verbatim transcript of a recording
made by the plaintiff of the conversation with her and the defendant is
not allowed. The recording and subsequent making of the transcript
violates the law and are therefore inadmissible.
People v. Navarro
The altercation between a reporter and a police officer that led to the
death of the former was recorded by a fellow reporter. The recording
was rendered admissible as it was not a private communication as it
occurred in the presence of other persons.
Considered Unlawful Acts
1. Secretly overhear
2. Intercept
3. Record private communications when no authority from all
the parties to such communication
4. To knowingly possess any tape record, wire record, disc
record, or any such record thereof of any communication or
spoken word secured, or obtained in a manner violating the
law
5. To replay to another person
6. To communicate the contents, verbally or in writing
7. Furnishing of transcriptions, complete or partial
8. Willfully or knowingly aid, permit, or cause to be done the acts
described
Modes of Recording
1. Tapping any wire or cable
2. Using a Dictaphone, dictagraph, detectaphone, walkie-talkie,
tape recorder, or any device otherwise described
Gaanan v. IAC
A person listening to a conversation through a telephone extension line
is not one of the devices mentioned in the act. Telephone party lines
were deleted from the final provisions of the law by Senate.
The acts prohibited does not constitute as a violation if done by a peace
officer authorized by a written court order in cases of:
a. Treason
b. Espionage
c. Provoking war and disloyalty in case of war
d. Piracy
e. Mutiny in the high seas
f. Rebellion
g. Conspiracy and proposal to commit rebellion
h. Inciting to rebellion
i. Sedition
j. Conspiracy to commit sedition
k. Inciting to sedition
l. Kidnapping
As defined in the RPC, Commonwealth Act 616 punishing espionage, and
other offenses against national security (Section3, RA 4200).
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Are illegally wiretapped recordings admissible in impeachment
proceedings?
It is not well-settled.
Francisco v. House of Representatives
Impeachment is sui generis, indigenous, or a kind of its own. It has been
shaped by our distinct political experience. It is not one of the
proceedings mentioned above. Thus, there is no reason that the
admission of illegally-procured recordings be prevented.
Under Human Security Act of 2007
RA 9372, Sec. 7
Notwithstanding RA 4200, a police or law enforcement official may listen
to, intercept, and record, any communication between the following:
a. Members of judicially declared and outlawed terrorist organization
b. Any person charged with or suspected of terrorism or conspiracy
to commit terrorism.
The officer may use any mode, form, or kind of electronic or other
surveillance equipment or interception and tracking devices, or with the
use of any other suitable ways and means for that purpose.
To be allowed, the following must concur:
1. Written order from a CA division
2. Upon written application by a police or law enforcement official (ex
parte application)
3. The official must be authorized by the Anti-Terrorism Council to file
such application.
4. Applicant and witnesses may be examined under oath.
Sec. 8. Applicant and witnesses may be examined on these
matters:
a. Probable cause to believe that terrorism or conspiracy to
commit such has been committed, or is about to be
committed.
b. There is probable cause to believe based on personal
knowledge of facts and circumstances that evidence essential
to the conviction or that would solve or prevent the crime, will
be obtained.
c. There is no other effective means readily available for
acquiring such evidence.
Sec. 9. Classified Info and Right to Information
The authorization, order of extension or renewal, and applications filed
are classified information.
The person under surveillance has the right to:
a. Be informed of the acts done by law enforcement
b. Challenge the legality of the interception.
The challenge shall be tackled before the CA who issued order.
Sec. 10. Written Order
The order shall be effective for a period not exceeding 30 days from the
receipt of the order by the applicant. This may be renewed for a non-
extendible period of 30 days from the expiration of the original period.
Arrests, Searches, and Seizures
These are often connected to the implementation of warrantless arrests.
People v. Aminnudin
Evidence can be inadmissible if there is a legal infirmity of an arrest
pursuant to inflagrante delicto.
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Facts: Two days before the arrest, officers received a tip that the
accused was on board an identified vessel to be arriving in a particular
date and time, and was allegedly carrying marijuana. When the accused
descended the gangplank, he was arrested and marijuana was
recovered.
Held: The marijuana are inadmissible as it is a product of an illegal
search as the search was not done as an incident to a lawful arrest. He
was not committing nor was about to commit a crime. He was merely
descending. Also, the officers had enough time to obtain a warrant and
they had all the information they need for such application.
People v. Molina
An arrest made on the basis of a reliable info that the accused was
carrying marijuana. He was arrested inside a pedicab despite no outward
indications that he is committing a crime.
Malacat v. CA
Warrantless arrest cannot be justified if no crime is being committed at
time of arrest. The mere fast movement of a persons eyes and looking
at every person passing by is not enough.
People v. Mengote
Facts: A call from an informer that suspicious looking men were at a
street corner in Tondo before noon led the police to check the place and
founf a man looking from side to side and clutching his abdomen. The
police introduce themselves but the men tried to run but they were
caught and a revolver was recovered.
Held: The requirements of a warrantless arrest were not complied. The
actions of the accused were not enough to constitute as overt acts. They
were just walking in the busy hour of the day.
People v. LLaguio, Jr.
Facts: Two men were arrested while they were about to hand over shabu
to a police. They told the arresting officers that they were working in
modeling agency of Wang. They did not mention that Wang is the source
of the drugs. The police conducted a surveillance and looked for Wang
in the apartment said by the 2 arrested. Wang stepped out from the car
and upon making sure that it was indeed Wang, they arrested him. While
being frisked, an unlicensed pistol was recovered. In the car, shabu,
huge amount of cash, electronic and mechanical scales, and another
unlicensed pistol was found.
Held: The facts and circumstances of the case did not manifest any
suspicious behavior on the part of Wang that would reasonably invite
attention of the police. He was merely walking and not committing any
visible offense.
Reliable info alone absent any overt act of a felonious enterprise in the
presence and within the view of the arresting officers is not a sufficient
probable cause.
Valdez v. People
Facts: Accused alighted from a mini bus and alleged to be looking
suspicious and searching for something. He then ran when tanods
approached him. Marijuana was recovered from him
Held: The accused did not object on the illegality of the arrest and even
participated in the trial of the case. Thus, he submitted to the courts
jurisdiction curing the defects of his. Warrantless arrests in itself is not
a basis for acquittal.
The accused was not committing a crime at the time of the arrest and
his act of looking around is but natural for someone who is finding his
way. His attempt to run upon approached by unknown persons at night
is a natural reaction. Flight is not a reliable indicator of guilt.
6| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
To determine the admissibility of the evidence, it is necessary to
ascertain whether the search is valid and lawful. A warrantless search is
justified only if it was incidental to a lawful arrest.
People v. Dela Cruz
Facts: The accused was inside the hut of the deceased allegedly fixing
his motorcycle. He was seen holding a shotgun and let it go upon order
of the police. Shabu, paraphernalias, ammunitions, and magazines were
also recovered. He admitted that he knew the contents of the bags were
the above things are found.
Held: Elements of Illegal Possession of Dangerous Drugs:
a. in possession of prohibited drug
b. possession is not authorized by law
c. freely and consciously possessed such drug
There must be animus possidendi or that the possession must be with
the knowledge of the accused.
In the case, the prosecution failed to prove actual or constructive
possession on the part of the accused. The fact that the items were on
the table where the deceased and accused were talking is not enough.
Constructive Possessions in Drug Cases
a. People v. Torres
Accused was not at home but the drugs were found in the
masters bedroom of his house.
b. People v. Tira
Drugs were found in the bedroom used by both accused.
c. Abuan v. People
Drugs found in drawer inside the bedroom of the accused.
People v. Lagman
Finding the drugs in house or building occupied by a particular person
raises presumption of knowledge and possession thereof. The illegal
possession of these items is mala prohibita and criminal intent is not an
element. However, there is still a need to prove the intent to possess.
Possession
It can be actual or constructive. It is Constructive Possession when:
a. The drug is under the dominion and control of the accused
b. He has the right to exercise such dominion or control over the
place where it was found.
Exclusive possession is not required. The fact that he shares the place
with another will not work for his favor.
PROBATIVE VALUE AND CREDIBILITY
Testimony of Witnesses
Serra v. Mumar
Evidence to be worthy of credit, must:
a. Come from credible source
b. Credible in itself
It must be natural, reasonable, and probable to believe. It must also
conform to knowledge and common experience of mankind.
People v. Cabtalan
Appellate courts do not disturb the findings of the trial courts with
regards to the credibility of the witness. The lower court had the chance
to witness thee conduct and attitude. Their findings are accorded great
respect and even conclusive effect.
It is natural for witnesses to give varying details as some may have
observed occurrences better than others. A perfect dovetailing of
narration could mean that these testimonies are fabricated.
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People v. Diu; GR No. 201449
The task of assigning values to their testimonies and weighing credibility
is the job of the trial court. This is done through first hand
impressions by observing the demeanor such as pauses, shivers,
tones, and looks can reveal the truth and falsity of their statements.
They have access to various indicia that can never be reflected on the
records.
People v. Sabadlab
If the findings of the trial courts are affirmed by the appellate court,
these shall be considered conclusive and binding unless it can be shown
that the trial court:
a. Has overlooked
b. Arbitrarily disregarded facts and circumstances of
significance.
People v. Cardenas
In criminal cases, the evaluation of the credibility of witnesses is
addressed to the sound discretion of the trial judge.
People v. Mangundayao
Findings of the trial court which are factual in nature and involve
credibility of witnesses are accorded respect, unless there are:
a. Errors
b. Misapprehension of facts
c. Speculative, arbitrary, and unsupported conclusions.
The rule even finds a more stringent application if findings are sustained
by CA.
For inconsistencies in testimonies to serve as basis for acquittal, it must
refer to significant facts vital to the guilt or innocence of accused for the
crime (i.e. elements of the crime).
Sison v. People
The trial court can better determine if witnesses are telling the truth as
they are in the ideal position to weigh conflicting testimonies, unless
certain facts of substance were overlooked which if considered might
affect the result of the case.
There can be a conviction based only on the sole testimony of the rape
victim as long as it is credible, natural, convincing, and consistent with
human nature and normal course of things.
People react differently under emotional stress. No standard form of
behavior especially if assailant is in front f him/her. Failure of
complainant to shout or run away cannot be construed as consent.
People v. Adallom
Once affirmed by the appellate court, said findings are general binding
upon the Court.
BPI v. Reyes
However, if the judge did not hear the testimonies himself, it would not
be in the better position to assess the credibility of the witness.
People v. Valdez
The following principles shall be applied when confronted with issue of
credibility of witnesses on appeal:
a. SC gives highest respect to trial courts evaluation of the
testimony of the witnesses as it is in the best position to
assess.
b. Absent any substantial reason such as having overlooked or
disregarded certain facts to justify the reversal of an
assessment, reviewing court is generally bound.
c. This rule is more stringently applied if CA concurred with RTC.
People v. Angelio
Once declared guilty, appellant has burden to prove on appeal that there
were errors made by trial court in the appreciation of evidence.
7| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
CIR v. Petron Corp.
It is not the function of SC to analyze or weigh evidence all over again
unless these are devoid of support or glaringly erroneous as to constitute
palpable error or grave abuse of discretion.
Valleno v. People; GR No. 192060
Factual findings are binding before the Court unless there is clear
showing that they are tainted with arbitrariness, capriciousness, or
palpable error.
Versoza, Jr. v. Carague
Factual findings of quasi-judicial agencies which are experts in their
respective jurisdictions are accorded with finality if supported by
substantial evidence.
Baylon v. Almo
Community tax receipt is not credible and reliable in proving identity of
person who wishes to have his document notarized.
Bastian v. CA
Witnesses are to be weighed and not numbered. The testimony of only
one witness, if credible and positive, is sufficient.
People v. Zeta
Experience dictates that because of the unusual acts of violence
committed before their eyes, witnesses can remember with a high
degree of reliability the identity of criminals.
People v. Camat
Minor inconsistencies not detract credibility of witness as long as as a
whole, they are coherent and intrinsically believable. It manifest
spontaneity and lack of scheming.
People v. Sabadlab
Inconsistencies on minor details or collateral matters are considered
badges of truthfulness as they demonstrate that the testimony is not
rehearsed.
People v. Suarez
These inconsistencies may have been the result of youngs and victims
being easily overwhelmed by the courts atmosphere.
Rape Victims; Youth and Immaturity
People v. Aycardo
Youth and immaturity are badges of truth and sincerity. No sane girl will
lie about rape, allow examination of her genitals, and subject herself to
public trial or ridicule if she is not really the victim. Her testimony can
only be countered by:
a. Physical evidence of the contrary
b. Indubitable proof that accused committed rape.
The rape victim must:
a. Show rape has been inflicted on her
b. Her testimony meets test of credibility.
People v. Aguilar
Testimonies of child victims are given full weight. Youth and immaturity
are badges of truth and it is a matter of judicial cognizance borne out of
human nature. This can be countered by evidence of improper motive
on victim to falsely testify.
People v. Rubio
Youth and immaturity strongly works in their favor as they are not yet
exposed to the ways of the world and would not impute crimes if they
were not true.
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People v. Santos
No girl will broadcast her violation if she is not impelled by redress. If
her testimony is plausible, spontaneous, convincing, and consistent with
human nature and ordinary course of things, it can establish the moral
certainty of the guilt of accused.
This can only be countered upon showing of:
a. Inconsistency in testimony of witness, or
b. Credible physical evidence
However, lapses in her recollection of peripheral details are expected as
this is a traumatic experience she wants to forget. This is still true even
if these inconsistencies involved her sworn statements and testimony in
open court as her ex parte affidavits are incomplete and are inferior to
her testimony in open court.
Testimony of victim that after she was raped, she stood and went home
does not work against her as people react differently on stress.
People v. Sandagon
The testimony of a girl or minor is not by itself sufficient for conviction.
There is still a need for the prosecution to establish that the
complainants story is by itself believable independently of the above
presumption. This is to uphold the accuseds right to be presumed
innocent until the contrary is prove.
People De los Santos, Jr.
If a child or woman says that she/he was raped, all that is necessary is
for her/him to show that rape was indeed committed. Youth and
immaturity are badges of sincerity.
People v. Navarette, Jr.
It is not proper to:
a. Expect uniform reactions from rape victims
b. To judge raped children by the norms of behavior expected
from adults.
Feuds, resentment, hatred, or revenge never swayed the court from
giving full credence to the testimony of rape victim. Ill motives become
inconsequential if there is an affirmative and credible declaration from
the victim which clearly establishes liability of the accused.
MISCELLANEOUS DOCTRINES
Falsus in uno, falsus in omnibus
Falsus in uno, falsus in omnibus- False in one thing, false in
everything.
If the testimony of a witness on a material issue is willfully false and
given with intention to deceive, the court may disregard all the witness
testimony. It is not an absolute rule of law and rarely applied.
The court favors flexibility; testimonies may be partly believed and not
depending on the evidence. It is still necessary to prove that witness
willfully falsified on a material point.
People v. Letigio
This doctrine does not lay down a categorical test of credibility. While
witnesses may differ in their recollections, it does not necessarily imply
falsity and render testimony worthless.
People v. Pacapac
Rule is not mandatory and merely gives sanctions. To disregard the
testimony, there must be proof that it was done consciously and
deliberately; to falsify a material point.
8| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Alibi; Denial
Alibi
This defense is inherently weak. It must be rejected if accused is
satisfactorily established and such witness has no ill-motive to testify
falsely against accused.
Denial
It is the usual refuge of offenders is the same as alibi. To merit
persuasion, must be corroborated by evidence of non-culpability.
These are self-serving negative evidence and can never prevail over
positive, spontaneous and credible testimonies. These are easy to
concoct.
Two Types of Positive Identification
1. By direct evidence
- Through an eye witness to the very commission of the act
2. By circumstantial evidence
- Where accused is last seen with victim immediately before or
after crime
For defense of alibi to prosper
The time and place must be strictly met. The accused must established
that it would be physically impossible for him to be at the crime scene
at the time crime was committed.
Physical Impossibility
The distance and the facility access between the situs criminis and the
place where he says he was when the crime was committed.
People v. Larranaga
It takes only an hour to travel by plane from Manila to Cebu and that
there are 4 airlines with several flights everytime.
People v. Cabtalan
Court did not appreciate the alibi of being 3 km away from murder scene.
People v. Castro
It is not physically impossible for accused to have committed robbery
and murder if he was in the same locality.
People v. Garcia
The accused being in place 7 km away from scene does not establish
such impossibility. Thus, the alibi was not recognized.
People v. Agustin
The distance of 1 km and a half does not work in favor of accused who
at that time was using a motor vehicle.
Alibi; not always false
Alibi is not always false and without merit
It is not always a weak defense. Sometimes, the truth is really with the
alibi. However, it must be airtight that it will admit no exception. It must
be established that the accused was:
a. Not at the scene when crime was committed
b. He is far away that it it physically impossible for him to be at
the scene.
Alibi may serve as basis for acquittal if it can be shown by clear and
convincing evidence. Its weakness does not change the burden of proof
of prosecution in criminal cases.
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Frame-up
Frame-ups
Allegations by police of frame-ups are common defenses in most drugs
cases. To prosper, must be coupled with clear and convincing evidence
to overcome presumption of regularity in the performance of an official
duty by the police.
It is not favored as it easily concocted. It is inherently weak. However,
it is not intended to shift the burden of proof to accused in criminal
cases. The issue of frame-ups are only considered with the prosecutions
evidence is shaky.
Delay and initial reluctance in reporting a crime
Delay in reporting a crime
This does not render testimonies false. The delay can be explained by
the natural reticence of most and abhorrence to be involved in cases.
There is inherent fear of reprisal is judicial notice to court.
Rape
Reluctance of victim to report is normal as she is only protecting herself
from the harsh public, unless the delay is unreasonable or cannot be
explained. The victim probably went through a state of denial which
is a way of coping with the overwhelming emotional stress.
It is also common that victim will conceal the incident to because of fear
of threats from assailant. People react differently to stimulus and no
standard response when confronted by a frightful experience. No hard
and fast rule on the effect of fear on the victim during and after the
incident.
Ingal v. People
It was only after 7 years from commission of crime that witness divulge
through a written statement to the police the incident. However, he
should not be faulted as this was only done out of fear. It does not affect
the witness credibility. This is within the bounds of expected human
behavior. The workings of the mind is unpredictable; no standard
behavioral response. As in this case, it was his first time to witness a
murder.
People v. Teehankee, Jr.
This is a case of double murder and frustrated murder where the natural
reticence of witnesses to get involved in cases is a judicial notice. In this
case, the witness even denied the happening of the crime due to the
reprisal of the accused being part of an influential family. It was only
after the consistent assurance of protection that he agreed.
People v. Sanidad
The victims of the ambush only reported the incident after several
weeks. However, the court declared that it was not uncommon. The
delay does not affect the witness credibility if the delay is justified. In
this case, the fear of the victims is immeasurable considering that one
of those who attacked them was a member of CAFGU.
People v. Ortoa
A delay in the reporting of a crime is justified especially in this case
where the perpetrator is the victims own father. The child was molested
by his own father. The victims are oftentimes overwhelmed by fear than
by reason especially in this case that the child was betrayed by the same
person whom he expected to have protected her from the evils of the
world. This magnified her sense of helplessness, fear and public ridicule.
People v. Satioquia
The victim of rape by her own stepfather is the Sangguniang Kabataan
officer in their area. Her report was prevented due to the constant
threats by the stepfather. Also, Filipinas especially those in rural areas
are shy and afraid of the idea that stigma will attach to them.
9| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Flight or non-flight of the accused
Non-flight
The non-flight of the accused does not signify innocence and cannot be
used as defense against prosecution. It is merely an inaction. It cannot
prevail as against weight of positive identification of witnesses.
Flight
This is determinative of guilt. But alone is not a reliable indicator of guilt.
However, if the accused escaped detention, it can be an indication of
guilt. It portrays a desire to evade responsibility and therefore a strong
indication of guilt.
Burden of Proof
Rule 131, Section 1. Burden of proof. Burden of proof is the duty
of a party to present evidence on the facts in issue necessary to establish
his claim or defense by the amount of evidence required by law.
It is also known as onus probandi, it refers to the obligation of a party
to the litigation to persuade the court that he is entitled to relief.
Supreme Transliner v. CA
The party, whether plaintiff or defendant, who asserts the affirmative of
the issue, has the burden of proof to obtain a favorable judgment. For
the defendant, an affirmative defense is one which is not a denial of an
essential ingredient in the plaintiffs, but one which, if established will
be a good defensei.e., an avoidance of the claim.
Ogawa c. Menigishi, July 9,2012
The burden of proof lies with the party who asserts his/her right.
Chua v. Westmont Bank, February 27, 2012
One who denies the due execution of a deed where ones signature
appears has the burden of proving that one never appeared before the
notary public and acknowledge the deed to be a voluntary act.
Clado-Reyes v. Limpe, 2008
A mere allegation is not evidence, and he who has the burden of proving
his allegation with the requisite quantum of evidence.
Note: The burden of proof lies with the party who alleges the existence
of a fact or thing necessary in the prosecution or defense of an action.
Important: It is not correct to say that the burden of proof solely rests
on the shoulders of the plaintiff. The burden of proof, under clear terms
of Sec. 1 of Rule 131 is the duty of a party to present evidence not only
to establish a claim but a defense. The rule states party not plaintiff.
Where lies the burden of proof?
The burden of proof lies on the party who wants to establish a legal right
in his favor. If he claims a right granted by law, he must prove his claim
by competent evidence, relying on the strength of his own evidence and
not upon the weakness of that of his opponent. (China Banking Corp. v.
Ta Fa Industries, 2008)
a. Divorce Law as a Defense
Vda. De Cataclan v. Catan-Lee, February 8, 2012
In civil cases, plaintiffs have the burden of proving the
material allegations of the complaint when those are denied
by the answer, and the defendants have the burden of proving
the material allegations in the answer when they introduce
new matters. Since the divorce law was a defense raised by
respondent, the burden of proving the pertinent law validating
it falls on him.
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b. Breach of Contract of Carriage
Viloria v. Continental Airlines, January 16, 2012
In an action based on breach of contract of carriage, the
aggrieved party does not have to prove that the common
carrier was at fault or was negligent since the latters
negligence was presumed by law. All that he has to prove are
1. the existence of the contract, and
2. the fact of non-performance by the carrier.
c. Civil Cases
BPI v. Sps. Royeca
In civil cases, the party having the burden of proof must
establish his case by preponderance of evidence, or evidence
which is more convincing to the court as worthy of belief than
that which is offered in opposition thereto.
Guidagen v. Wooden, February 15, 2012
He must rely on the strength of his own evidence and not on
the weakness of the opponent.
d. Nonpayment of Obligation
The burden of proof that a debt was contracted lies with the
creditor-plaintiff. He who asserts, not who denies, must prove.
If the defendant admits the debt but defends by alleging that
it has already been paid, waived or otherwise extinguished,
he has the burden to prove the extinguishment of the alleged
obligation.
Sugar Regulatory Administarion v. Tormon, December
4, 2012
The Court reiterated the rule that one who pleads payment
has the burden of proving it. Even where the creditor alleged
non-payment, the general rule is that the onus rests on the
debtor to prove payment, rather than on the creditor to prove
non-payment. The debtor has the burden of showing with
legal certainty that the obligation has been discharged by
payment.
However, if the debtor had introduced evidence that he has
already paid, the burden of going forward with the evidence
as distinct from the general burden of proof shifts to the
creditor, who is then under a duty of producing some evidence
to show nonpayment.
e. Eminent Domain Cases
JIL Christian Foundation v. City of Pasig
The local government that seeks to expropriate private
property has the burden to show the existence of compliance
with elements for the valid exercise of the right of eminent
domain have been complied with.
f. Termination of Employee
It rests upon the employer to show that the dismissal is for a
valid and just cause. A dismissed employee is not required to
prove his innocence of the charges leveled against him by his
employer. Even when the employer interposes the defense of
resignation, the employer still has to prove that such
resignation was voluntary.
g. Disbarment Cases
It rests on the complainant as held in Santos v. Dichoso.
Moreover, the case must be established by clear, convincing
and satisfactory proof. Indeed, considering the serious
consequences of the disbarment or suspension of a member
10| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
of the Bar, the SC has held that clearly preponderance of
evidence is necessary to justify the imposition of the
administrative penalty.
h. Accident Insurance
Vda. De Gabriel v. CA
The insureds beneficiary has the burden of proof in
demonstrating that the cause of death is due to the covered
peril. Once that fact is established, the burden then shifts to
the insurer to show any excepted peril that may have been
stipulated by the parties.
i. Constitutionality of a Law
Perez v. People, 2008
The one who attacks the constitutionality of a law has the
onus probandi to show why the law is repugnant to the
constitution. The reason for the rule is the presumption that
the legislature intended to enact a valid, sensible, and just law
and one which operates no further than may be necessary to
effectuate the specific purpose of the law.
j. Notarized Documents
Spouses Lehner v. Chua, March 20, 2013
Notarized documents enjoy the presumption of regularity,
which may only be rebutted by evidence so clear, strong, and
convincing as to extend all controversy as to falsity. The
burden of proof to overcome the presumption of the execution
of a notarized document lies on the one contesting the same.
k. Criminal Cases
Flores v. People, February 27, 2013
Generally, the burden lies upon the prosecution to prove the
guilt of the accused beyond reasonable doubt rather than
upon the accused that he was in fact innocent. If the
accused, however pleads self-defense, the burden of evidence
is shifted to him to prove by clear and convincing evidence all
the elements of that justifying circumstance.
l. Quasi-delict under Article 2176 of CC
1. Plaintiff needs to prove that the fault of negligence of the
defendant was the proximate cause of the injuries
2. Defendant needs to prove his defense when he claims that
the injuries were caused by a third person or by a caso
fortuito
m. Contracts
Plaintiff needs to prove the existence of a contract, the
obligations and breach of such by the defendant.
n. Administrative Proceedings
The complainant must be able to show by substantial
evidence that respondent committed the complained acts.
Note: The test for determining where the burden of proof lies is to ask
which party to an action or suit will fail if he offers no evidence
competent to show the facts averred as the basis for the relief he seeks
to obtain. (Aznar Brothers Realty v. Aying)
The burden of proof is fixed by the pleadings. The claim of the plaintiff,
which he must prove, is spelled out in his complaint. The defendants
defenses, which he must prove, are to be found in his answer to the
complaint.
Important: The burden of proof may shift from one side to the other
as the exigencies of the trial require and shifts with alternating
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frequency. As the trial progresses, one party may have presented
evidence that weigh heavily in his favor and sufficient to convince the
court of the justness of the claim. If this occurs, the other party has the
burden to come forward with his own evidence to counteract whatever
positive impression which the evidence of the other party may have been
created in the mind of the court. This duty, also called the burden of
coming forward with evidence.
Bar 2004: Distinguish burden of proof and burden of evidence.
BURDEN OF PROOF BURDEN OF EVIDENCE
The obligation of a party to The duty of the party to go
present evidence on the facts in forward with the evidence to
issue necessary to establish his overthrow any prima facie
claim or defense by the amount presumption against him.
of evidence required by law.
EQUIPOISE RULE OR EQUIPONDERANCE DOCTRINE
It refers to a situation where the evidence of the parties are evenly
balanced or there is doubt on which side the evidence preponderates or
weighs more heavily. In this case, the decision should be against the
party with the burden of proof.
It is based on Sec. 1 of Art. III of the Constitution which provides that
no one shall be deprived of life, liberty or property without due process
of law.
EQUIPOISE RULE OR EQUIPONDERANCE DOCTRINE APPLIED IN:
a. Criminal Cases
The Equipoise rule or equiponderance doctrine provides that
where the evidence is evenly balanced, the constitutional
presumption of innocence tilts the scales in favor of the
accused. Thus, where the inculpatory facts and circumstances
are capable of two or more explanations one of which is
consistent with the innocence of the accused and the other
consistent with his guilt, then the evidence does not fulfill the
test of moral certainty and is not sufficient to support a
conviction.
Note: When moral certainty as to culpability hangs in the
balance, acquittal on reasonable doubt inevitably becomes a
matter of right. (Malillin v. People)
Important: However, the rule does not apply where
evidence presented is not equally weighty, such as where the
evidence of the prosecution is overwhelming. (Malana v.
People)
It is better to acquit ten guilty individuals than to convict one
innocent person. Every circumstance against guilt and in favor
of innocent must be considered. Also, an accused should not
be convicted by reason of the weakness of his alibi. It is
fundamental that the prosecution must prove its case beyond
reasonable doubt and must not rely on the weakness of the
evidence of the defense. (Ubales v. People)
b. Labor Cases
Nicario v. NLRC
In labor cases, if doubt exists between the evidence presented
by the ER and the EE, the scales of justice must be tilted in
favor of the latter. The policy is to extend the doctrine to a
greater number of employees who can avail of the benefits
under the law, which is inconsonance with the avowed states
policy to give maximum aid and protection to labor.
11| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Presumptions
It is an assumption of fact resulting from a rule of law which requires
such fact to be assumed from another fact or group of facts founded or
otherwise established in the action. It is an inference of the existence or
non-existence of a fact which courts are permitted to draw from proof
of other facts.
Note: Presumptions are not evidence. They merely affect the burden of
offering evidence.
Important: A presumption is an inference, which is mandatory, unless
rebutted.
Differentiate inference from a presumption.
INFERENCE PRESUMPTION
It is a factual conclusion that It is an interference which is
can rationally be drawn from mandatory unless rebutted
other facts
One that is a result of the It is a rule of law directing that
reasoning process. It need not if a party proves basic facts at a
have a legal effect because it is trial or hearing, the fact finder
not mandated by law. must also accept an additional.
presumed fact as proven unless
rebutted
KINDS OF PRESUMPTIONS
1. Presumptions of law or presumption juris it is an assumption
which the law requires to be made from a set of facts
TN: This can either be conclusive or disputable.
2. Presumptions of fact or presumption hominis when the
assumption is made from the facts without any direction or
positive requirement of law
Important: The presumption that an accused is innocent until proven
guilty is categorized as a presumption of law. It is one embodied in the
Constitution. Sec. 14 [2], Art. III of the Constitution.
EFFECT OF A PRESUMPTION
A party in whose favor the legal presumption exists may rely on and
invoke such legal presumption to establish a fact in issue. One need not
introduce evidence to prove the fact for a presumption is prima facie
proof of the fact presumed.
Presumptions under the Rules of Court
1. Conclusive or presumptions et de jure
2. Disputable or disputable presumptions or presumptions juris
tantum
Conclusive Presumptions
Bar 2012: Rule 131, Section 2. Conclusive presumptions. The
following are instances of conclusive presumptions:
a. Whenever a party has, by his own declaration, act, or omission,
intentionally and deliberately led to another to believe a particular
thing true, and to act upon such belief, he cannot, in any litigation
arising out of such declaration, act or omission, be permitted to
falsify it;
b. The tenant is not permitted to deny the title of his landlord at the
time of commencement of the relation of landlord and tenant
between them.
Meaning of Conclusive Presumption (Bar 2012)
When the presumption becomes irrebuttable upon the presentation of
the evidence and any evidence tending to rebut the presumption is not
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admissible. Thus, Supreme Court taught that conclusive presumption
are inferences which the law makes so peremptory that it will not allow
them to be overturned by any contrary proof however strong.
Note: Such presumption rests upon grounds of expediency or public
policy so compelling in charter as to override the requirement of proof.
Important: The basis of the Conclusive presumptions under the Rules
of Court is the doctrine of estoppel. Under this doctrine, the person
making the representation cannot claim benefit from the wrong he
himself committed.
TN: The common term for the first conclusive presumption is Estoppel
in pais or estoppel by conduct.
Estoppel
It is an equitable principle rooted upon natural justice, prevents persons
from going back on their own acts and representations, to the prejudice
of others who have relied on them.
The essential elements of Estoppel in pais may be considered in relation
to the party sought to be estopped, and in relation to the party invoking
the estoppel in his favor.
ESSENTIAL ELEMENTS OF ESTOPPEL:
In Relation to the Party to be Estopped
a. Conduct amounting to false representation or concealment of
material facts; or at least calculated to convey the impression that
the facts are otherwise than, and inconsistent with, those which the
party subsequently attempts to assert;
b. Intent, or at least expectation, that this conduct shall be acted upon
by, or at least influence, the other party; and
c. Knowledge, actual or constructive of the real facts
In Relation to the Party Claiming the Estoppel
a. Lack of knowledge and of the means of knowledge of the truth as
to the facts in question;
b. Reliance, in good faith, upon the conduct or statements of the party
to be estopped;
c. Action or inaction based thereon of such character as to change the
position or status of the party claiming the estoppel, to his injury,
detriment or prejudice
Note: In estoppel, it is important that the person invoking it has been
influenced or relied on the representations or conduct of the person
sought to be estoppe. (Kalalo v. Luz)
Basis of Estoppel
It is based on the grounds of public policy, fair dealing, good faith and
justice, and its purpose is to forbid one to speak against his own act,
representations, or commitments, to the injury of one to whom they
were directed and who reasonably relied thereon. (Harold v. Aliba)
Bar 2012
As long as the lessor-lessee relationship between the parties exists, the
lessee cannot, by any proof, however strong, overturn the presumption
that the lessor has valid title to or better right of possession to the
subject leases premised than it has. (Datalift Movers, Inc. v. Belgravia
Realty & Development Corporation)
Disputable Presumptions
Meaning of Disputable or Rebuttable Presumption
If it may be contradicted or overcome by other evidence. They are
satisfactory, if uncontradicted, but may be contradicted and overcome
by other evidence.
12| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Note: If the evidence that rebuts the presumption is introduced, the
force of the presumption disappears.
Bar 2012: A significant example of a disputable presumption under the
Rules of Court is the presumption that official duty has been regularly
performed.
PERFORMANCE OF DUTIES
People v. Almodiel, September 5, 2013;
People v. Diwa, February 27, 2013
GR: It has been settled that credence is given to prosecution witnesses,
who are police officers, for they are presumed to have performed their
duties in a regular manner.
EXN: When there is evidence to the contrary suggesting ill motive on
the part of the police officers or deviation from the regular performance
of their duties. Hence, a mere allegation of frame-up and extortion,
without clear and convincing evidence to support the same, was not
deemed sufficient to rebut the presumption of regularity in the
performance of official duties. (People v. Velasquez, April 11, 2012)
Masagana Concrete Products v. NLRC
The presumption of regularity of court proceedings includes
presumptions of regularity of service of summons. The return is prima
facie proof of the facts indicated therein.
Note: The presumption that official duty has been regularly performed.
This includes the presumptions of regularity of service of summons.
Important: The above presumption does not apply in a petition for a
writ of amparo. Under Sec. 17 of the Rule on Writ of Amparo, the
respondent public official or employee cannot invoke the presumption
that official duty has been regularly performed to evade responsibility or
liability.
Note: The presumption of innocence of the accused prevails over the
presumption that law enforcement agents were in the regular
performance of their duty.
People v. Ong
To determine whether there was a valid entrapment or not, it is
incumbent upon the courts to make sure that the details of the operation
are clearly adequately laid out through relevant, material, and
competent evidence.
People v. Obmiranis
Also, the presumption of regularity in the performance of official duty
must be seen in the context of an existing rule of law or statute
authorizing the performance of an act or duty or procedure in the
performance thereof.
In-custody Investigation
It is incumbent upon the prosecution to prove during the trial that prior
to questioning, the confessant was warned of his constitutionally-
protected rights because the presumption of regularity of official acts
does not apply during in-custody investigation. (People v. Camat)
Examples of Disputable Presumptions (Bar 2011;2012)
Sec. 3 of Rule 131:
a. That a person is innocent of a crime or a wrong;
b. That an unlawful act was done with unlawful intent;
c. That a person intends the ordinary consequences of his voluntary
act;
d. That a person takes ordinary care of his business;
e. The evidence willfully suppresses would be adverse if produced;
f. That money paid by one another was due to the latter;
g. That a thing delivered by one to another belonged to the latter;
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h. That an obligation delivered up to the debtor has been paid;
i. That prior rents or installments had been paid when a receipt for
the latter ones is produced;
j. That a person acting in a public office was regularly appointed or
elected to it;
k. That official duty has been regularly performed;
l. That a court, or judge, acting as such, whether in the Philippines
or elsewhere, was acting in the lawful exercise of jurisdiction;
m. That private transactions have been fair and regular;
n. That the ordinary course of business has been followed;
o. That there was a sufficient consideration for a contract;
p. That a negotiable instrument was given or indorsed for a sufficient
consideration.
Presumption of Innocence
One of the most significant presumptions, which is at the same time a
constitutional right, is the presumption to be presumed innocent of a
crime or wrong.
People v. Alvario
The presumption of innocence is founded upon the first principles of
justice. Its purpose is to balance the scales in what could otherwise be
an uneven contest between the lone individual pitted against the People
and all the sources at their command. The accused must be acquitted
and set free if his guilt cannot be proved beyond the whisper of a doubt.
Accordingly, conflicts in evidence must be resolved upon the theory of
innocence rather than upon a theory of guilt when it is possible to do
so.
People v. Mingming
This constitutional presumption is enjoyed by the accused until final
conviction and in this regard, the prosecutions case must rise and fall
on its own merits and cannot draw its strength from the weakness of
the defense.
Blue Cross Health Care, Inc. v Olivares
The presumption that evidence when willfully suppresses would be
adverse if produced, does not apply if:
a. If the evidence is at the disposal of both parties;
b. If the suppression was not willful;
c. If it is merely corroborative or cumulative; and
d. If the suppression is an exercise of a privilege such as it is covered
by the privileged communication between physician and patient.
Buenaventura v. Court of Appeals
Intent is a state of mind, and is hidden from the judicial eye. Courts are
left to evaluate the overt acts, and on their basis to form a conclusion
as to the actors intentions. The reason behind this is men intend the
natural consequences of their voluntary acts and that unlawful acts are
done with unlawful intent.
Medina v. Greenfield Development Corporation
A document acknowledged before a notary public enjoys the
presumption of regularity. It is a prima facie evidence of the facts therein
stated. Accordingly, titles in the name of a person, having been
registered under the Torrens system, are generally a conclusive
evidence of the ownership of the land referred to therein and a strong
presumption exists at the titles are regularly issued and valid.
Barcelon Roxas Securities, Inc. v. CIR
When a mail is sent by registered mail, there exists a presumption that
it was received in the regular course of mail (Sec.3 (v), Rule 131). To
raise the presumption, the following facts must be proven:
a. That the letter was properly addressed with postage paid; and
b. That it was mailed.
13| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Note: A direct denial of the receipt of the letter shifts the burden upon
the party favored by the presumption to prove that the mailed letter was
indeed received by the addressee.
Cawaling v. COMELEC
Every statute has in its favor the presumption of constitutionality which
is rooted in the doctrine of separation of powers which enjoins upon the
three coordinate departments of the Government a becoming courtesy
for each others acts. The grounds for nullity of a statute must be beyond
reasonable doubt, for to doubt is to sustain.
Astro Electornics Corporation v. Philippine Export and Foreign
Guarantee Loan, Inc.
Bare allegations, when unsubstantiated by evidence, documentary or
otherwise, are not equivalent proof under our Rules of Court. Petitioner,
according to the court, is a businessman who is presumed to take
ordinary care of his concern. Absent any countervailing evidence, it
cannot be gained that he will not sign documents without first informing
himself of its contents and consequences.
Sevilla v. Cardenas
The absence of the logbook where marriage licenses are recorded is not
conclusive proof of non-issuance of marriage license. The rule is settled
that every intendment of the law or fact leans toward the validity of the
marriage, the indissolubility of the marriage bonds.
TN: The court is mindful of the constitutional policy to protect and
strengthen the family as the basic autonomous social institution, and
marriage as the foundation of the family. Thus, any doubt should be
resolved in favor of the validity of marriage.
Concepcion v. Court of Appeals
Article 164 of the Family Code is clear. A child who is conceived or born
during the marriage of his parents is legitimate. As a guaranty in favor
of the child and to protect his legitimacy status, Art. 167 of the FC
provides:
Article 167 of the Family Code: The child shall be considered legitimate
although the mother may have declared against its legitimacy or may
have been sentenced as an adultress.
The law requires that every reasonable presumption be made in favor
of legitimacy. It is based on the broad principles of natural justice and
the supposed virtue of the mother. It is also grounded on the policy to
protect innocent offspring from the odium of illegitimacy.
To overthrow this presumption on the basis of Article 166(1)(b) of the
Family Code, it must be shown beyond reasonable doubt that there was
no access that could have enabled the husband to father the child.
Sexual intercourse is to be presumed where personal access is not
disproved, unless such presumption is rebutted by evidence to the
contrary.
The presumption is quasi-conclusive and may be refuted only by the
evidence of physical impossibility of coitus between husband and wife
within the first 120 days of the 300 days which immediately preceded
the birth of the child.
Note: To rebut the presumption, the separation between the spouses
must be such as to make marital intimacy impossible.
Important: Under Art 166 of the Family Code, the physical impossibility
for the husband to have sexual intercourse with his wife within the first
120 days of the 300 days which immediately preceded the birth of the
child, is the only way to impugn the legitimacy of a child.
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Presumption of legitimacy of a child
Art. 164. Children conceived or born during the marriage of the parents
are legitimate.
Art. 167. The child shall be considered legitimate although the mother
may have declared against its legitimacy or may have been sentenced
as an adulteress.
Note: The law requires that every reasonable presumption be made in
favor of legitimacy. It is grounded on the policy to protect the innocent
offspring from the odium of illegitimacy.
WAYS TO IMPUGN LEGITIMACY OF A CHILD
Art. 166 Legitimacy of a child may be impugned only on the ff.
grounds:
1) That it was physically impossible for the husband to have sexual
intercourse with his wife within the first 120 days which
immediately preceded the birth of the child because of:
(a) the physical incapacity of the husband to have sexual
intercourse with his wife;
(b) the fact that the husband and wife were living separately in
such a way that sexual intercourse was not possible, or;
(c) serious illness of the husband, which absolutely prevented
sexual intercourse;
Note: It must be shown beyond reasonable doubt that there
was no access that could have enabled the husband to father
the child Sexual intercourse is to be presumed where personal
access is not disproved, unless such presumption is rebutted
by evidence to the contrary.
To rebut the presumption, the separation between the spouses must be
such as to make marital intimacy impossible. This may take place, for
instance, when they reside in different countries or provinces and they
were never together during the period of conception. Or, the husband
was in prison during the period of conception, unless it appears that
sexual union took place through the violation of prison regulations
(Concepcion v CA).
2) That it is proved that for biological or other scientific reasons, the
child could not have been that of the husband, except in the
instance provided in the second paragraph of Art. 164; or
3) That in case of children conceived through artificial insemination,
the written authorization or ratification of either parent was
obtained thru mistake, fraud, violence, intimidation, or undue
influence.
Tender-age Presumption
Art. 213 xxx No child under seven years of age shall be separated
from the mother unless the court finds compelling reasons to order
otherwise.
Note: The so-called "tender-age presumption" under Article 213 of
the Family Code may be overcome only by compelling evidence of the
mother's unfitness.
Instances where mother is presumed to be unsuitable to have
custody of her children:
1. Neglect
2. Abandonment
3. Unemployment
4. Immorality
5. Habitual drunkenness
14| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
6. Drug addiction
7. Maltreatment of a child
8. Insanity
9. Affliction with a communicable disease
Presumption of ordinary diligence and fairness
GR: Whoever alleges fraud or mistake in a transaction must prove the
same since it is presumed that a person ordinarily takes care of his
concerns (Sec. 3[d], Rule 131) and private transactions have been fair
and regular.
XPN: If mistake or fraud is alleged, and one of the parties is unable to
read, or if the contract is in a language not understandable to him, the
person enforcing the contract must show that the terms thereof have
been fully explained to the former (Art. 13332, NCC).
Fraud of Creditors
The law presumes that there is fraud of or intent to defraud creditors
when:
1. There is alienation of property by gratuitous title by the debtor
who has not reserved sufficient property to pay his debts
contracted before such alienation; or
2. There is alienation of property by onerous title made by a
debtor against whom some judgment has been rendered in
any instance or some writ of attachment has been issued.
TN: The decision or attachment need not refer to the property
alienated and need not have been obtained by the party
seeking rescission.
Remedy of the defrauded creditor: Rescission of the contract (Art.
1381[3], CC).
Presumption of Capacity to Contract
A person is not incapacitated to contract merely because of advanced
years or by reason of physical infirmities. Only when such age or
infirmities impair her mental faculties to such extent as to prevent one
from properly, intelligently, and fairly protecting her property rights, is
one considered incapacitated.
A person is presumed to be of sound mind at any particular time and
the condition is presumed to continue to exist, in the absence of proof
to the contrary.
Competency and freedom from undue influence, shown to have existed
in the other acts done or contracts executed, are presumed to continue
until the contrary is shown.
No presumption of compensability of an ailment
GSIS v Nonoy
This case originated from a claim for compensation, income, and
hospitalization benefits filed by the respondent before the petitioner due
to Rheumatic Heart Disease (RHD) and Pulmonary Tuberculosis Minimal.
The GSIS, as affirmed by the Employees Compensation Commission,
ruled that RHD is not a compensable ailment under PD 626, as amended;
that the respondent failed to prove by substantial evidence that the risk
of contracting said ailment had been increased by his working
conditions; and that respondent failed to show any causal relation
between his ailment and his working conditions.
Respondent appealed to the CA which held that the claim is meritorious
and directed the payment of the same.
SC reversed Cas ruling, prompted by the failure of the facts to show
that the respondent discharged his burden of proof, under the measure
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of substantial evidence, that his working conditions increased the risk of
contracting RHD. The records show no medical info establishing etiology
of RHD that would enable the Court to evaluate whether there is causal
connection between the respondents employment and his illness.
Citing the earlier case of GSIS v CA, the Court instructed:
First, PD 626 abandoned the presumption of compensability and
the theory of compensability and the theory of aggravation
under the Workmens Compensation Act.
Second, for the sickness and resulting disability or death to be
compensable, the claimant must prove either of two (2) things:
(a) That the sickness was the result of an occupational disease
listed under Annex A of the Rules on Employees
Compensation; or
(b) If the sickness is not so listed, that the risk of contracting the
disease was increased by the claimants working conditions.
Third, the claimant must prove this causal relation between the ailment
and the working conditions by substantial evidence, since the
proceeding is taken before the ECC, an administrative or quasi-judicial
body.
Contract Presumed as Equitable Mortgage
Under Article 1602 of the New Civil Code, a contract shall be presumed
to be an equitable mortgage in any of the following cases:
(a) When the price of a sale with right to repurchase is unusually
inadequate;
(b) When the vendor remains in possession as lessee or
otherwise;
(c) When upon or after the expiration of the right to repurchase
another instrument extending the period of redemption or
granting a new period is executed;
(d) When the purchaser retains for himself a part of the purchase
price;
(e) When the vendor binds himself to pay the taxes on the thing
sold;
(f) In any other case where it may be fairly inferred that the real
intention of the parties is that the transaction shall secure the
payment of a debt or the performance of any other obligation.
REQUISITES FOR THE PRESUMPTION TO APPLY
1. that the parties entered into a contract denominated as a sale; and
2. that their intention was to secure an existing debt by way of
mortgage.
TN: When there is no debt, there can be no mortgage; for if there is
nothing to secure, there can be no security.
Note: The rule is that he who alleges that a contract does not reflect
the true intention of the parties thereto may prove the same by
documentary or parol evidence.
The petitioner is burdened to prove, by clear and convincing evidence,
that the terms of the writings, not by simple declarations of the parties,
but by proof of facts and circumstances, are inconsistent with the rule
of absolute purchase, otherwise, the solemnity of deeds would always
be exposed to the slippery memory of witnesses.
Reason behind the rule
The presumption is that the contract is what it purports to be; and to
establish its character as a mortgage, the evidence must be clear,
unequivocal and convincing which reasons tending to show that the
transaction was intended as a security for debt; and thus to be a
mortgage must be sufficient to satisfy every reasonable mind without
hesitation.
If there is doubt as to the fact whether the transaction is in the nature
of a mortgage, the presumption, in order to avoid a forfeiture is always
in favor of a position to redeem, to subserve abstract justice and avert
injurious consequences.
15| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Possessor as forger
In the absence of satisfactory explanation, one found in possession of
and who used a forged document is the forger and therefore, guilty of
falsification.
A judgment or final order by a foreign tribunal against a person
is presumptive evidence of a right between parties and their
successor-in-interest
If the judgment is upon a specific thing, said judgment or final order is
conclusive upon the title to the thing.
Judgment/final order may be repelled by:
1. Want of jurisdiction
2. Want of notice to the party
3. Collusion
4. Fraud
5. Clear mistake of law or fact
Common Carriers
Presumption of negligence
Common carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extra-ordinary
diligence as required by Art. 1733 of the Civil Code.
In case of death of, or injuries to passengers, common carriers are
presumed to have been at fault or to have acted negligently, unless they
prove that they observed extraordinary diligence as prescribed under
Arts. 1733 and 1755 of the Civil Code.
Presumption of negligence of employers
Whenever an employees negligence causes damage or injury to
another, there instantly arises a presumption juris tatum that the
employer failed to exercise diligentissimi patris familias in the selection
or supervision of its employees (Macalinao v Ong).
Negligent driver
A driver is presumed to be negligent if he had been found guilty of
reckless driving or violation of traffic regulations at least twice within the
next preceding two months (Art. 2184, Civil Code).
Death/injury from dangerous weapons/substances
There is prima facie presumption of negligence if the death or injury
results from his possession of dangerous weapons or substances, such
as firearms and poison, except when the possession or use thereof is
indispensable in his occupation or business (Art. 2188, Civil Code).
DOCTRINE OF RES IPSA LOQUITUR
The doctrine establishes a presumption of negligence against the
defendant and furnishes a substitute for a specific proof of negligence.
Requisites for the doctrine of res ipsa loquitur to apply
1. The accident is of a kind which ordinarily does not occur in
the absence of someones negligence
2. It is caused by an instrumentality within the exclusive control
of the defendant or defendants
3. The possibility of contributing conduct which would make the
plaintiff responsible is eliminated (Ramos v. CA, 321 SCRA
584).
Presumptions of Death (Bar 2011)
1. Absence of 7 years
If it is unknown whether or not the absentee is still alive, he
is considered dead for all purposes but not for the purpose of
succession (Sec. 3[w], Rule 131, Rules of Court).
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2. Absence of 10 years
The absentee shall be considered dead for the purpose of
opening his succession only after an absence of 10 years.
Before the lapse of 10 years, he shall not be considered dead
if the purpose is the opening of his succession (Ibid.)
3. Absence of 5 years
In relation to the immediately preceding number, if the
absentee disappeared after the age of 75 years, his absence
for 5 years is sufficient for the purpose of opening his
succession in which case, it is not necessary to wait for the
lapse of 10 years (Ibid.)
4. Absence of 4 years
A person is deemed considered dead for all purposes even for
the purpose of the division of his estate among his heirs under
certain extraordinary circumstances after a relatively shorter
time than any of the above periods, in any of the following
cases:
(a) If the person is on board a vessel that was lost during a
sea voyage, or an aircraft which is missing, and has not
been heard of for 4 years since the loss of the vessel or
aircraft;
(b) If the person is a member of the armed forces who has
taken part in armed hostilities, and has been missing for
4 years;
(c) If the person has been in danger of death under other
circumstances and whose existence has not been known
for 4 years;
(d) If the person is married and has been absent for 4
consecutive years, the spouse present may contract a
subsequent marriage if he or she has a well-founded
belief that the absent spouse is already dead. In case of
disappearance, where there is danger of death provided
above, an absence of only two years shall be sufficient
for the purpose of contracting a subsequent marriage.
Note: However, in any case, before marrying again, the spouse present
must institute a summary proceeding as provided in the Family Code
and in the rules for a declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the absent spouse.
Absence of Presumption of Legitimacy or Illegitimacy
There is no presumption of legitimacy or illegitimacy of a child born after
300 days following the dissolution of the marriage or the separation of
the spouses.
Whoever alleges the legitimacy or illegitimacy of such child must prove
his allegation (Sec. 4, Rule 131, RoC).
QUANTUM OF EVIDENCE (Weight and Sufficiency)
Proof Beyond Reasonable Doubt
Sec. 2, Rule 133. Proof beyond reasonable doubt. In a criminal
case, the accused is entitled to an acquittal, unless his guilt is shown
beyond reasonable doubt. Proof beyond reasonable doubt does not
mean such a degree of proof as, excluding possibility of error, produces
absolute certainty. Moral certainty only is required, or that degree of
proof which produces conviction in an unprejudiced mind.
CRIMINAL CASES
The burden of proof as to the guilt of the accused lies with the
prosecution because of the presumption that the accused is presumed
16| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
innocent until the contrary is proven (Sec. 14[2], Art. III, Bill of Rights,
Philippine Constitution).
TN: Proof beyond reasonable doubt does not mean such a degree of
proof that excludes all possibility of error. Only moral certainty is
required.
Reasonable doubt
That state of the case which, after a comparison of all the evidence,
does not lead the judge to have in his mind, a moral certainty of the
truth of the charge. Where there is reasonable doubt as to the guilt of
the accused, there must be an acquittal.
Basiilo v PP
Well-entrenched in jurisprudence is the rule that the conviction of the
accused must rest, not on the weakness of the defense, but on the
strength of the prosecution. The burden is on the prosecution to prove
guilt beyond reasonable doubt, not on the accused to prove his
innocence.
TN, however PP v Santiago
When a prima facie case is established by the prosecution in a criminal
case, the burden of proof does not shift to the defense. Xxx It is the
burden of evidence which shifts from party to party depending upon the
exigencies of the case in the course of the trial. This burden of going
forward with evidence is met by evidence which balances that
introduced by the prosecution. xxx
A prima facie case need not be countered by a preponderance of
evidence of greater weight of plaintiffs evidence nor by evidence of
greater weight. Defendants evidence which equalizes the weight of
plaintiffs evidence or puts the case in equipoise is sufficient. As a result,
plaintiff will have to go forward with the proof.
Should it happen that at the trial the weight of evidence is equally
balanced or at equilibrium and the presumptions operate against plaintiff
who has burden of proof, he cannot prevail.
BURDEN OF PROOF SHIFTS TO THE DEFENSE
However, when the accused invokes a justifying circumstance like for
instance, self-defense, the burden of proof rests upon the defense to
prove that the killing was justified.
Preponderance of Evidence
Section 1. Preponderance of evidence; how determined. In
civil cases, the party having the burden of proof must establish his case
by preponderance of evidence. In determining where preponderance or
superior weight of evidence on the issues involved lies, the court may
consider all the facts and circumstances of the case, the witnesses'
manner of testifying, their intelligence, their means and opportunity of
knowing the facts to which they are testifying, the nature of the facts to
which they testify, the probability or improbability of their testimony,
their interest or want of interest, and also their personal credibility so far
as the same may legitimately appear upon the trial. The court may also
consider the number of witnesses, though the preponderance is not
necessarily with the greater number.
CIVIL CASES
The term, "preponderance of evidence" is a quantum of evidence
applicable to civil cases. It means the "greater or superior weight of
evidence."
Preponderance of evidence means that the evidence adduced by one
side is, as a whole, superior to or has greater weight than that of the
other.
It is the evidence that is more convincing and more credible than the
one offered by the adverse party.
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In determining whether or not there is preponderance of
evidence, the court may consider the following:
a. all the facts and circumstances of the case;
b. the witnesses' manner of testifying, their intelligence, their means
and opportunity of knowing the facts to which they are testifying,
the nature of the facts to which they testify, the probability or
probability of their testimony;
c. the witnesses' interest or want of interest, and also their personal
credibility so far as the same may ultimately appear in the trial;
d. the number of witnesses, although it does mean that preponderance
is necessarily with the greater number (Sec. 1, Rule 133, Rules of
Court).
Substantial Evidence
Sec. 5. Substantial evidence. In cases filed before administrative
or quasi-judicial bodies, a fact may be deemed established if it is
supported by substantial evidence, or that amount of relevant evidence
which a reasonable mind might accept as adequate to justify a
conclusion.
In what cases does this degree of evidence apply?
This applies to administrative cases those filed before administrative
and quasi-judicial bodies and which requires that in order to establish a
fact, the evidence should constitute that amount of relevant evidence
which a reasonable man might accept as adequate to support a
conclusion (Sec. 5, Rule 133).
Tongko v. ManuLife Insurance Co.
The settled rule in administrative and quasi-judicial proceedings is that
proof beyond reasonable doubt is not required in determining the
legality of an employer's dismissal of an employee, and not even a
preponderance of evidence is necessary as substantial evidence is
considered sufficient.
Substantial evidence is more than a mere scintilla of evidence or relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion, even if other minds, equally reasonable, might conceivably
opine otherwise.
XPN: Administrative proceedings which are highly penal in character
Alcuizar v Carpio
Xxx While substantial evidence would ordinarily suffice to support a
finding of guilt, the rule is different where the proceedings involve
judges charged with grave offense. Administrative proceedings against
judges are highly penal in character and are to be governed by the rules
governing criminal cases. Accordingly, the quantum of evidence required
to support administrative charges or to establish the grounds/for the
removal of a judicial officer should thus, be more than substantial; they
must be proved beyond reasonable doubt.
Bar 2003: Distinguish preponderance of evidence from substantial
evidence.
Suggested answer:
The term, "preponderance of evidence" applies to civil cases. It means
the "greater or superior weight of evidence." It is the evidence that is
more convincing and more credible than the one offered by the adverse
party. It means that the evidence as a whole adduced by one side is
superior to that of the other (Republic v. Sandiganbayan, 416 SCRA
133).
'Substantial evidence' applies to cases filed before administrative or
quasi-judicial bodies and which requires that in order to establish a fact,
the evidence should constitute that amount of relevant evidence which
a reasonable mind might accept as adequate to support a conclusion.
17| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Quantum of Evidence in a Petition for a Writ of Amparo
In a petition for a writ of amparo, the parties shall establish their claims
by substantial evidence.
Dismissal of criminal case not a bar to administrative action
involving the same facts
Paredes v CA
Administrative cases are independent from criminal actions for the same
act or omission. Thus, an absolution from a criminal charge is not a bar
to an administrative prosecution, or vice versa.
Considering the difference in the quantum of evidence, as well as the
procedure followed and the sanctions imposed in criminal and
administrative proceedings, the findings and conclusions in one should
not necessarily be binding on the other. The evidence presented in the
administrative case may not necessarily be the same evidence to be
presented in the criminal case. The prosecution is certainly not
precluded from, adducing additional evidence to discharge the burden
of proof required in the criminal case.
Conversely we have also ruled that the dismissal of the criminal case is
not per se a bar to administrative sanctions.
Clear and Convincing Evidence
Evidence is clear and convincing if it produces in the mind of the trier of
fact a firm belief or conviction as to allegations sought to be established.
It is intermediate, being more than preponderance, but not to the extent
of such certainty as is required beyond reasonable doubt as in criminal
cases (Blacks Law Dictionary).
Govt of HK Special Administrative Region v Olalia, Jr
In his separate opinion in Purganan, former Chief Justice Reynato S.
Puno, proposed that a new standard which he termed clear and
convincing evidence should be used in granting bail in extradition cases.
According to him, this standard should be lower than proof beyond
reasonable doubt but higher than preponderance of evidence. The
potential extradite must prove by clear and convincing evidence that
he is not a flight risk and will abide with the orders and the processes of
the extradition court.
Instances requiring clear and convincing evidence
a) To overcome presumption of regularity of a notarized instrument
(Chua v Westmont Bank)
b) To prove bad faith (Belle Corporation v De Leon-Banks)
Note: A person claiming moral damages must prove the existence
of bad faith by clear and convincing evidence for the law presumes
good faith.
c) To prove the charge of bias and partiality of the judge (Elefant v
Inting)
d) To prove fraud (Alfonso v Cebu Country Club, Inc.,)
Caveat: Under Art. 1387 of the Civil Code, certain alienations of
property are presumed fraudulent (pls. refer to the enumeration
under the topic fraud of creditors above)
e) To prove forgery (Sumbad v CA)
f) To establish ownership of the land in actions for annulment or
reconveyance of title (Manotok Realty, Inc. v CLT Realty Devt.
Corp.)
Republic v Imperial Credit Corp.
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It is doctrinally settled that a person who seeks confirmation of an
imperfect or incomplete title to a piece of land on the basis of possession
by himself and his predecessors-in-interest shoulders the burden of
proving by clear and convincing evidence, compliance with the
requirements of the applicable law.
g) To substantiate defense of instigation, frame-up and extortion by
police officers in dangerous drugs cases (PP v Boco)
PP v Tomolin
It is a well-settled doctrine that when an accused invokes self-defense,
the onus is on him to establish by clear and convincing evidence his
justification for the killing. He must rely on the strength of his own
evidence and not on the weakness of the evidence of the prosecution.
For self-defense to prevail, three (3) requisites must concur, to wit:
1) Unlawful aggression;
2) Reasonable necessity of the means employed to prevent or
repel it;
3) Lack of sufficient provocation on the part of the person
defending himself
Shopworn rule
The shopworn rule is that for alibi to prosper, it is not enough that the
accused was at someplace else at the time of the commission of the
crime. It must also be proved by clear and convincing evidence that
it was physically impossible for him to have been at the scene of the
crime at the time of its commission and commit the crime (PP v Agunos).
Note: Denial is a weak form of evidence, particularly when it is not
substantiated by clear and convincing evidence.
Evidentiary Weight of Electronic Evidence
Factors to be considered in assessing the evidentiary weight of
Electronic Evidence:
(a) The reliability of the manner in which it was generated, stored
or communicated
(b) The reliability of the manner in which its originator was
identified.
(c) The integrity of the information and communication system
(d) The familiarity of the witness or the person who made the
entry with the communication and information system
(e) The nature and quality of the information which went into the
communication and information system
(f) Other factors which the court may consider (Sec.1, Rule 7,
Rules on Electronic Evidence).
How may matters relating to the admissibility and evidentiary
weigh of an electronic document be established
By an affidavit stating facts of direct personal knowledge of the affiant
or based on authentic records. The affidavit must affirmatively show the
competence of the affiant to testify on the matters contained therein
(Sec. 1, Rule 9, Rules on Electronic Evidence).
The affiant shall be made to affirm the contents of the affidavit in open
court and may be cross-examined as a matter of right by the adverse
party (Sec. 2, Rule 9, Rules on Electronic Evidence).
JUDICIAL NOTICE
SECTION 1. Judicial notice, when mandatory. A court shall take
judicial notice, without the introduction of evidence, of the existence and
territorial extent of states, their political history, forms of government
and symbols of nationality, the law of nations, the admiralty and
maritime courts of the world and their seals, the political constitution
and history of the Philippines, the official acts of the legislative, executive
18| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
and judicial departments of the Philippines, the laws of nature, the
measure of time, and geographical divisions.
Sec. 2. Judicial notice, when discretionary. A court may take
judicial notice of matters which are of public knowledge, or are capable
of unquestionable demonstration or ought to be known to judges
because of their judicial functions.
Sec. 3. Judicial notice, when hearing necessary. During the
trial, the court, on its own initiative, or on request of a party, may
announce its intention to take judicial notice of any matter and allow the
parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper court, on
its own initiative or on request of a party, may take judicial notice of any
matter and allow the parties to be heard thereon if such matter is
decisive of a material issue in the case.
Judicial notice all matters which the court may take cognizance of
without evidence; based on the maxim what is known need not be
proved, hence, when this rule is invoked, the court may dispense with
the presentation of evidence on judicially cognizable fact (Thayer,
Preliminary Treatise on Evidence).
Function of judicial notice
To abbreviate litigation by the admission of matters that need no
evidence because judicial notice is a substitute for formal proof of a
matter by evidence (PP v Rowland, 4 Cal 4th 238). It takes the place of
proof and is of equal force. Evidence shall be dispensed with because
the matter is so well known and is of common knowledge not to be
disputable.
Note: Judicial notice cannot be used to fill in the gaps in the partys
evidence. It should not be used to deprive an adverse party of the
opportunity to prove a disputed fact.
KINDS OF JUDICIAL NOTICE
a. Mandatory
No motion or hearing is necessary for the court to take judicial
notice of a fact because this is a matter which a court ought
to take judicial notice of.
b. Discretionary
MATTERS SUBJECT TO MANDATORY JUDICIAL NOTICE
1. existence and territorial extent of states;
2. political history, forms of government and symbols of nationality of
states;
3. law of nations;
4. admiralty and maritime courts of the world and their seals;
5. political constitution and history of the Philippines;
6. official acts of the legislative, executive and judicial departments of
the Philippines;
7. laws of nature;
8. measure of time; and
9. geographical divisions.
Siena Realty Corporation v. Gal-lang
Even if petitioners did not raise or allege the amendment of the Rules of
Court in their motion for reconsideration, the CA should have taken
mandatory judicial notice of the SCs resolution in AM no. 00-02-03-SC.
Under Sec.1 of Rule 129, a court shall take judicial notice among others,
of the official acts not only of the legislative and executive departments
but also of the judicial department.
DENR v. DENR Region 12 Employees
A court has the mandate to apply relevant statutes and jurisprudence in
determining whether the allegation in a complaint establish a cause of
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action. A court cannot disregard decisions material to the proper
appreciation of the questions before it.
NO JUDICIAL NOTICE OF AFFIDAVITS ATTACHED IN PLEADINGS
Candido v. Court of Appeals
A document, or any article for that matter, is not evidence when it is
simply marked for identification; it must be formally offered, and the
opposing counsel given an opportunity to object to it or to cross-examine
the witness called upon to prove or identify it.
A formal offer is necessary since judges are required to base their
findings of fact and judgment only and strictly upon the evidence offered
by the parties at the trial. To allow a party to attach any document to
his pleading and then expect the court to consider it as evidence may
draw unwarranted consequences. The opposing party will be deprived
of his chance to examine the document and object to its admissibility.
The appellate court will have difficulty reviewing documents not
previously scrutinized by the court below. The pertinent provisions of
the Revised Rules of Court on the inclusion on appeal of documentary
evidence or exhibits in the records cannot be stretched as to include
such pleadings or documents not offered at the hearing of the case"
Suplico v. NEDA
Petitioners contended that the declaration of the President of the
Philippines that she informed China's President that the Philippine
Government had decided not to continue with the ZTE-National
Broadband Network (ZTE-NBN) Project due to several reasons and
constraints and similar declarations by officials of the executive branch
are self-serving and hence, inadmissible in evidence.
Brushing aside the contention, the Court held that it had no alternative
but to take judicial notice of the declaration of the President as an official
act and thus, is a matter of mandatory judicial notice under Sec. 1 of
Rule 129.
JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
Judicial Notice
Rule 129, Section 1. Judicial notice, when mandatory. A court shall
take judicial notice, without the introduction of evidence, of the
existence and territorial extent of states, their political history, forms of
government and symbols of nationality, the law of nations, the admiralty
and maritime courts of the world and their seals, the political constitution
and history of the Philippines, the official acts of legislative, executive
and judicial departments of the Philippines, the laws of nature, the
measure of time, and the geographical divisions.
Section 2. Judicial notice, when discretionary. A court may take
judicial notice of matters which are of public knowledge, or are capable
to unquestionable demonstration, or ought to be known to judges
because of their judicial functions.
Section 3. Judicial notice, when hearing necessary. During the trial,
the court, on its own initiative, or on request of a party, may announce
its intention to take judicial notice of any matter and allow the parties to
be heard thereon.
After the trial, and before judgment or on appeal, the proper court, on
its own initiative or on request of a party, may take judicial notice of any
matter and allow the parties to be heard thereon if such matter is
decisive of a material issue in the case.
FUNCTION
The function is to abbreviate litigation by admission of matters that need
no evidence because judicial notice is a substitute for formal proof of a
matter by evidence.
19| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Judicial notice takes the place of proof and is of equal force. It displaces
evidence.
While the court as the power to dispense with proof of judicially
cognizable facts when judicial notice is invoked, judicial notice cannot
be used to fill in the gaps in the partys evidence and should not be used
to deprive an adverse partys opportunity to prove a disputed fact.
WHEN MANDATORY
No motion or hearing is necessary for the court to take judicial notice on
these matters:
a. existence and territorial extent of states;
b. political history, forms of government and symbols of nationality of
states;
c. law of nations;
d. admiralty and maritime courts of the world and their seals;
e. political constitution and history of the Philippines
f. official acts of the legislative, executive and judicial departments of
the Philippines
g. laws of nature;
h. measure of time; and
i. geographical divisions.
Notes:
1. It is error for a court not to take judicial notice of an amendment
to the Rules of Court. Even if petitioners did not raise or allege the
amendment of the ROC in their MR, the CA should have taken
mandatory judicial notice of the Supreme Courts resolution in A.M.
00-02-03-SC (Siena Realty Corp. v. Gal-lang)
2. Trial court should take cognizance of the official acts of the
legislative, executive and judicial departments because they are
proper subjects of mandatory judicial notice. (DENR v. DENR
Region 12 Employees)
3. Every court must take judicial notice of decisions of the Supreme
Court. In MCIA v. Heirs of Marcelia Sero:
CA failed to consider the decision of the court in MCIAA v.
CA which settles the issue of whether the properties
expropriated will be reconveyed to the original owners if
the purpose for which it was expropriated in ended or
abandoned or if the property was to be used other than the
expansion or improvement of the Lahug airport.
Had the appellate court considered the ruling, it would
have found that Respondents can invoke no right against
Petitioner since the subject lands were acquired by the
State in fee simple.
4. An affidavit that is attached to the pleading but not formally offered
in evidence is not among the matters which the rule mandatorily
requires to be judicially noticed.
A formal offer is necessary. he provisions of the Revised Rules of
Court on the inclusion on appeal of documentary evidence or
exhibits in records cannot be stretched as to include such pleadings
or documents not offered at the hearing of the case. (Candido v.
CA)
5. Courts should take judicial notice of the declaration of the President,
that she informed Chinas President that Philippines decided not to
continue the ZTE-NBN project, as an official act and thus is a matter
of mandatory judicial notice.
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WHEN DISCRETIONARY
Requisites:
a. matter must be of common knowledge;
b. must be settled beyond reasonable doubt
c. knowledge must exist within the jurisdiction of the court
Principal guide in determining what facts may be assumed to be
judicially known: notoriety.
Judicial notice is limited to facts evidenced by public records and facts
of general notoriety.
Judicially-noticed fact must be:
1. Generally known within the territorial jurisdiction of the trial court; or
2. Capable of accurate and ready determination by resorting to sources
of whose accuracy cannot reasonably be questionable.
Common knowledge
Matters coming to the knowledge of men generally in the course of
ordinary experiences of life.
Matters which are generally accepted by mankind as true and are
capable of ready and unquestioned demonstration.
A court cannot take judicial notice of any fact which, in part, is
dependent on the existence or non-existence of a fact of which the court
has no constructive knowledge. (Expertravel and Tours, Inc. v. CA)
Matters capable of unquestionable demonstration fields of
professional and scientific knowledge
Matters which ought to be known to judges because of their
judicial functions example are facts which are ascertainable from
the records of the proceedings,
Before taking judicial notice, the court must allow parties to be heard.
There can be on judicial notice on the rental value of the premises in
question without supporting evidence. (Herrera v. Ballos)
Any reasonable doubt on the matter sought to be judicially noticed must
be resolved against the taking of judicial notice. (State Prosecutors v.
Muro)
Judicial notice and knowledge of the judge
Judicial notice is not judicial knowledge.
Mere personal knowledge of the judge is not judicial knowledge of the
court and he is not authorized to make his individual knowledge of fact,
not generally or professionally known, as the basis of his action. (State
Prosecutors v. Muro)
BAR 1980: An American made a will in accordance with Massachusetts
law, instituting his Filipino widow as sole heir, which is not valid in RP
law. Upon probate, this was objected by testators relatives. The Judge,
who studied in Harvard and familiar with Massachusetts law, granted
probate without introduction of formal evidence, stating that it was
indeed in accordance with Massachusetts law.
Answer:
Mere personal knowledge of the judge is not judicial knowledge of the
court and the judge is not authorized to make his individual knowledge
of a fact the basis of his action. It is basic rule that courts will not take
judicial notice of the law prevailing in another country. Foreign laws must
be alleged and proved.
20| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Stage when judicial notice may be taken
1. During trial
The court may announce its intention to take judicial notice of any
matter, on its own initiative or on the request of any party.
2. After trial and before judgment
On its own initiative or on the request of any party.
3. On appeal
On its own initiative or on the request of any party.
Doctrine of processual presumption
Our courts cannot take judicial notice of foreign laws. They must be
alleged and proved. In the absence of proof, foreign law will be
presumed to be the same as the laws of the jurisdiction hearing the
case.
EXN:
a. when the foreign law is within the actual knowledge of the court and
the law is generally well-known (PCIB v. Escolin)
b. when foreign law is part of a published treatise, periodical or pamphlet
and the writer is recognized in his profession or calling as expert in
the subject
Judicial notice of the law of nations
Under the constitution, Philippines adopts the generally accepted
principles of international law as part of the law of the land. being parts
of the law of the land, they are therefore, technically, in the nature of
local laws and hence, are subject to a mandatory judicial notice.
Judicial notice of municipal ordinances
1. MTCs should take judicial notice of municipal ordinances in
force in the municipality in which they sit. (US v. Blanco)
2. RTC should take judicial notice of municipal ordinances in
force in the municipalities within their jurisdiction but only
when required by law. (City of Manila v. Garcia).
3. RTC must take judicial notice also of municipal ordinances in
cases on appeal to it from the inferior court in which the latter
took judicial notice of.
4. CA may take judicial notice judicial notice of municipal
ordinances because nothing in the Rules prohibits it. (Gallego
v. People)
Judicial notice of a courts own acts and records
A court will take judicial notice of its own acts and records in the same
case.
GR: Courts are not authorized to take judicial notice of the contents of
records of another case, even if its tried/pending in the same court,
notwithstanding that both cases are heard/pending before the same
judge.
EXN:
a. in the absence of any objection and with knowledge of opposing
party, contents of other case are clearly referred to by title and
number in the pending action and adopted or read into the record
of the latter;
b. when the original record of the other case or any part of it is actually
withdrawn from the archives at courts discretion upon the
request/with consent of the parties and admitted as part of the
record of the pending case.
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Judicial notice of proprietary act GOCCs
Management contract entered into by a GOCC is not among the matters
which the courts can take judicial notice of. It cannot be considered an
official act of the executive department because it was entered into while
performing a proprietary function. (Asian Terminals, Inc. v. Malayan
Insurance Co. Inc.)
Judicial notice of banking practices
The court has taken judicial notice of practices of banks and other
financial institutions.
It is their uniform practice, before approving a loan, to investigate,
examine and assess would-be borrowers credit standing or real estate
offered as security for the loan applied for. (Solidbank Corp. v. Mindanao
Ferroalloy Corp.)
Judicial notice of presidential powers
Courts should take judicial notice of RA 6734 implemented by EO 429,
as legal basis of Presidents power to reorganize the executive
department. (DENR v. DENR Region 12 Employees)
Judicial notice of other matters
1. Courts can take judicial notice of the general increase in rentals of
real estate. (Catungal v. Hao)
2. But the reasonable amount of rent may not be determined by
judicial notice but by supporting evidence.
3. Court can take judicial notice of an administrative regulation or of
a statute that is not yet effective. Reason: A law which is still
inexistent cannot be of common knowledge capable of ready and
unquestionable demonstration. (State Prosecutors v. Muro)
4. MTC and MTCC judges may act as notaries public ex officio in the
notarization of documents connected only with the exercise of their
official functions and duties.
EXN: In municipalities with neither lawyers nor notaries public,
these judges may perform acts within the competency of regular
notary public.
5. Circumstances of minority and relationship in the RPC are special
qualifying circumstances which must be alleged in the information
and duly proven by prosecution. (Pp v. Metin)
6. Courts may take judicial notice that business transactions may be
made by individuals through teleconferencing.
7. It can be judicially noticed that the scene of the rape is not always
nor necessarily isolated or secluded, for lust is no respecter of time
or place. (Pp v. Tundang)
8. Court has taken judicial notice of the Filipinas inbread modesty and
shyness, and her antipathy in publicly airing acts which blemish her
honor and virtue.
9. Judicial notice can be taken of the fact that testimonies during trial
are much more exact and elaborate than those stated in sworn
statements
10. Court cannot be expected to take judicial notice of the new address
of a lawyer who has moved or ascertain on its own whether or not
the counsel of record has been changed, if such be changed
without informing the court. (Karen and Khristy Fishing industry v.
CA)
Facts of common knowledge
21| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Those facts that are so commonly known in the community as to make
it unprofitable to require proof, and so certainly known to as to make it
indisputable among reasonable men.
Judicial Admissions
Section 4. Judicial admissions. An admission, verbal or written, made
by the party in the course of the proceedings in the same case, does not
require proof. The admission may be contradicted only by showing that
it was made through palpable mistake or that no such admission was
made.
A judicial admission requires no proof.
Elements:
1. made by a party to the case
2. made in the course of the proceedings in the same case
3. verbal or written admission (form is immaterial)
A party may make judicial admissions in:
a. the pleadings
b. during the trial
c. in other stages of judicial proceeding
Stipulation of facts at the pre-trial of a case constitutes judicial
admissions.
Admissions in drafted documents
Admissions made in a document drafted for purposes of filing a pleading
but never filed is not a judicial admission.
If this be signed by the party, it is deemed an extrajudicial admission.
Admission in pleadings and motions
Admissions made in the pleadings of the party are deemed judicial
admissions and are binding upon him.
EXN: (Sps. Santos v. Sps. Lumbao)
a. an answer is a mere statement of fact which a party expects to
prove, but it is not evidence
b. (in spite of presence of judicial admission in partys pleading), trial
court is still given leeway to consider other evidence presented.
Admissions made by respondent in the complaint are judicial admissions
which cannot be contradicted.
EXN:
a. there is showing that it was made through palpable mistake;
b. that no such admission was made
Averments in pleadings which are not deemed admissions
a. immaterial allegations
b. conclusions
c. non-ultimate facts in pleading
d. amount of unliquidated damages
Implied admissions of allegations of surgery
Failure to make the proper denial under oath would involve implied
admission of the allegation of usury.
Implied admissions of actionable documents
When an action/defense is founded upon a written instrument, the
genuineness and due execution of the same instrument shall be deemed
admitted unless the adverse party, under oath, specifically denies them
and sets forth what he claims to be the facts. Failure to deny the
genuineness and due execution amounts to judicial admission. (PNB v.
Refrigeration Industries, Inc.)
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In resolving a demurer, the court should not only consider the plaintiffs Admissions made for the purpose of dispensing with proof of some facts
evidence, it should also include judicial admissions, matters of judicial are in the nature of judicial admissions.
notice, stipulations made during the pre-trial, admissions, and
presumptions. (Casent Realty Development Corp. v. PhilBanking Corp.) EFFECT OF JUDICIAL ADMISSIONS

Admissions in the pre-trial of civil cases 1. do not require proof;

Admissions made in the pre-trial, as well as those made during the
depositions, interrogatories or requests for admission, are all deemed
judicial admissions because they are made in the course of the
proceedings of the case. (SCC Chemicals Corp. v. CA)
Admissions in the pre-trial of criminal cases
Section 2. Pre-trial agreement. All agreements or admissions made
or entered during the pre-trial conference shall be reduced in writing
and signed by the accused and counsel, otherwise, they cannot be used
against the accused. The agreements covering the matters referred to
in section 1 of this Rule shall be approved by the court.
For an admission made by the accused in a pre-trial of a case be
admissible against him, it must be:
2. cannot be contradicted ( because they are conclusive upon the
party making it)
Judicial admissions cannot be contradicted by the admitter who is the
party himself and binds the person who makes the same.
A party who judicially admits a fact cannot later challenge that fact, as
judicial admissions are a waiver of proof; production of evidence is
dispensed with.
Judicial admission removes the admitted fact from the field of
controversy. All proofs to the contrary of the admission should be
ignored.
How judicial admissions may be contradicted:

1. in writing 1. by showing that the admission was made through palpable

2. signed by the accused ad counsel mistake;

BAR 2008: Bembol was charged with rape. During the pre-trial, Bembol Palpable mistake
personally offered to settle the case for 1M to the private prosecutor, A mistake that is clear to the mind or plain to see.
who immediately put the offer on record in the presence of the trial
judge, Is Bembols offer a judicial admission of his guilt? 2. by showing that no such admission was made

Suggested answer:
Bembols offer is a judicial admission. A judicial admission is one that is
verbal or written, made by a party in the course of the proceedings of
the same case. Offer of compromise by the accused could be considered
as an implied admission of guilt.
Admissions in amended pleadings
When a pleading is amended, the amended pleading supersedes the
pleading that it amends and the admissions in the superseded pleading
may be received in evidence against the pleader.
The admissions in the superseded pleading are considered as
extrajudicial admissions which must be proven. (Torres v. CA)
Admissions in dismissed pleadings
Admissions made in pleadings that have been dismissed are merely
extrajudicial admissions. (Servicewide Specialists, Inc. v. CA)
This may be invoked when the statement of a party is taken out of
context or that his statement was made not in the sense it is made
to appear by the other party. (Maxicare v. Estrada/Cara Health
Services, supra)
OBJECT EVIDENCE
Section 1. Rule 130. Object as evidence. Objects as evidence are
those addressed to the senses of the court. When an object is relevant
to the fact in issue, it may be exhibited to, examined or viewed by the
court.
OBJECT EVIDENCE
It refers to the actual thing involved in the crime.
EX: gun, broken glass, bolo used in the crime, etc.

Hypothetical admissions in a motion to dismiss Note: It does not refer to the perception of the witness and a
A motion to dismiss hypothetically admits the truth of the allegations of recollection of that perception.
the complaint. It partakes of demurrer which hypothetically admits the
truth of the actual allegations. An object evidence is weighed in relation to the testimony of a witness

However, admission extends only to such matters of fact that have been Requisites for Admissibility
sufficiently pleaded, not to mere epithets charging fraud, allegations of 1. Relevant
legal conclusions or erroneous statements of law, inferences from facts
not stated, amtters of evidence or irrelevant matters. (De Dios v. Bristol It must have a relationship to the fact in issue.
Laboratories)
2. Competent
Admissions by counsel
GR: Admissions by a counsel are generally conclusive upon a client. It must not be excluded in the rules.

EXN: 3. It must pass the test of authentication

1 reckless or gross negligence of counsel deprives client of due
process of law It must be shown that it is the real thing that is the object of
2 when application will result in outright deprivation of clients liberty the crime. It answers the question, is it the real thing it claims
or property to be?
3 when interests of justice so require
4. It must be authenticated by a competent witness

22| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW

EVIDENCE|RIANO NOTES | For the exclusive use of EH404 2016-2017
A competent witness is one who has actual and personal
knowledge of the exhibit he is presenting.
5. The object must be formally offered in evidence
The right to self incrimination cannot be invoked against object
evidence.
DEMONSTRATIVE EVIDENCE
It does not refer to the actual thing, however it demonstrates or
represents the actual or real thing.
TN: The basic question to ask is, Does this type of evidebce sufficiently
and accurately represent the object it seeks to demonstrate or
represent? if it does, then the object shall be admissible.
PHOTOGRAPHS
It shall be admissible so long as it is relevant and competent.
It is deemed competent when it is properly authenticated by a witness
who is familiar with the scene or person portrayed, and who testifies
that the photograph faithfully depicts what really transpired.
Sison vs People
The witness need not be the photographer. The same can be admitted
by a witness who is familiar with the scene portrayed.
Under the Electronic Rules of Evidence
Photographic evidence shall be admissible, provided:
1. It shall be presented, displayed and shown to the court
2. It shall be identified, explained and authenticated by either:
a. The person who took the photo, or
b. Some other person competent to testify on the accuracy
thereof.
MOTION PICTURES AND RECORDINGS
The same rule applies to photographs
In case of a tape recording
The witness should identify the speakers and state how he / she
recognizes their voice/s and how it does not violate the anti-wiretapping
law.
Under the rules pf Electronic Evidence, the authentication process need
not involve the person who actually made the recording.
DIAGRAMS, MODELS AND MAPS
They are presented to indicate the relative locations or positions of
subject and persons.
It must be identified by a witness who is familiar with what the evidence
depicts, and that the same is an accurate representation of the scene ot
portrays.
X-RAY PICTURES
Are admissible when it is shown that the same were made under the
circumstances as to assure accuracy ad relevancy
They are properly authenticated by the x-ray technician of the physician
who testifies to the competence of the person taking it, the procedure
taken and that the x-ray picture shown is that of a person, the
anatomical part or the object involved in the case.
SCIENTIFIC TESTS, DEMOMSTRATIONS AND EXPERIMENTS
It is admissible to help illustrate the testimony of the witness.
23| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
VIEW OF AN OBJECT OR SCENE
Courts have recognized that there are instances when an object cannot
be brought in court, hence, the court may grant an order to view a place.
Should be ade in the presence of the Parties
The viewing may be done inside or outside the courtroom. If done
outside, it should be made in the presence of the parties or at least with
previous notice to them. It is improper for it to be done without the
knowledge of the parties.
CATEGORIES OF OBJECT EVIDENCE
1. Objects that have readily identifiable marks (unique objects)
Ex: Objects with unique characteristic like serial umber of a
.45 caliber pistol
Witness shall testify that the object has a unique
characteristic, he saw the object on the relevant date,
remembers its unique characteristic saw the object on the
relevant date, remembers its characteristics, asserts that the
object shown to him in court is the same condition as when
he first saw it and alleges that those characteristics are those
of the object he is identifying in court.
2. Objects that are made readily identifiable (Objects made
unique)
Witness has to testify as to what he did to make the object
identifiable and that the object presented in court has the
characteristics he made on the object.
3. Objects with no identifying marks and cannot be marked (non-
unique objects)
Those that are not readily identifiable
Ex: drops of blood, oil, drugs in powder form
Under this situation, the proponent of the evidence must
establish a chain of custody.
CHAIN OF CUSTODY
PURPOSE
Guaranty the integrity of the evidence and prevent the introduction of
the evidence which is not authentic
Links to the Chain
There must be links to the chain. The links refer to the people who
actually handled or had custody of the object.
Each of the links in the chain must show how he received the object,
how he handled it to prevent substitution and how it was transferred to
another. Each of the handlers must testify (this is just the ideal situation,
but is not however required).
Not all custodian need to testify as witness
What is required is that the testimony of a witness eliminates the
possibility that said evidence is tampered.
Unless otherise provided by law, the investigator need not testify the
process of sealing the evidence and the submission
TN: Not every link of the chain has to testify as long as the testimony of
one negates the possibility of tampering and integrity of the evidence is
preserved, then one may testify.
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CHAIN OF CUSTODY IN DRUGS CASES
The Philippines requires additional requirements for the chain of custody
involving drugs cases.
Section 21. Custody and Disposition of Confiscated, Seized, and/or
Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment.
The PDEA shall take charge and have custody of all dangerous drugs,
plant sources of dangerous drugs, controlled precursors and essential
chemicals, as well as instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered, for proper
disposition in the following manner:
(1) The apprehending team having initial custody and control of the
drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused or
the person/s from whom such items were confiscated and/or seized, or
his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory and be given a copy
thereof;
(2) Within twenty-four (24) hours upon confiscation/seizure of
dangerous drugs, plant sources of dangerous drugs, controlled
precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment, the same shall
be submitted to the PDEA Forensic Laboratory for a qualitative and
quantitative examination;
(3) A certification of the forensic laboratory examination results, which
shall be done under oath by the forensic laboratory examiner, shall be
issued within twenty-four (24) hours after the receipt of the subject
item/s: Provided, That when the volume of the dangerous drugs, plant
sources of dangerous drugs, and controlled precursors and essential
chemicals does not allow the completion of testing within the time
frame, a partial laboratory examination report shall be provisionally
issued stating therein the quantities of dangerous drugs still to be
examined by the forensic laboratory: Provided, however, That a final
certification shall be issued on the completed forensic laboratory
examination on the same within the next twenty-four (24) hours;
(4) After the filing of the criminal case, the Court shall, within seventy-
two (72) hours, conduct an ocular inspection of the confiscated, seized
and/or surrendered dangerous drugs, plant sources of dangerous drugs,
and controlled precursors and essential chemicals, including the
instruments/paraphernalia and/or laboratory equipment, and through
the PDEA shall within twenty-four (24) hours thereafter proceed with
the destruction or burning of the same, in the presence of the accused
or the person/s from whom such items were confiscated and/or seized,
or his/her representative or counsel, a representative from the media
and the DOJ, civil society groups and any elected public official. The
Board shall draw up the guidelines on the manner of proper disposition
and destruction of such item/s which shall be borne by the offender:
Provided, That those item/s of lawful commerce, as determined by the
Board, shall be donated, used or recycled for legitimate purposes:
Provided, further, That a representative sample, duly weighed and
recorded is retained;
(5) The Board shall then issue a sworn certification as to the fact of
destruction or burning of the subject item/s which, together with the
representative sample/s in the custody of the PDEA, shall be submitted
to the court having jurisdiction over the case. In all instances, the
representative sample/s shall be kept to a minimum quantity as
determined by the Board;
(6) The alleged offender or his/her representative or counsel shall be
allowed to personally observe all of the above proceedings and his/her
presence shall not constitute an admission of guilt. In case the said
24| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
offender or accused refuses or fails to appoint a representative after due
notice in writing to the accused or his/her counsel within seventy-two
(72) hours before the actual burning or destruction of the evidence in
question, the Secretary of Justice shall appoint a member of the public
attorney's office to represent the former;
(7) After the promulgation and judgment in the criminal case wherein
the representative sample/s was presented as evidence in court, the trial
prosecutor shall inform the Board of the final termination of the case
and, in turn, shall request the court for leave to turn over the said
representative sample/s to the PDEA for proper disposition and
destruction within twenty-four (24) hours from receipt of the same; and
(8) Transitory Provision: a) Within twenty-four (24) hours from the
effectivity of this Act, dangerous drugs defined herein which are
presently in possession of law enforcement agencies shall, with leave of
court, be burned or destroyed, in the presence of representatives of the
Court, DOJ, Department of Health (DOH) and the accused/and or his/her
counsel, and, b) Pending the organization of the PDEA, the custody,
disposition, and burning or destruction of seized/surrendered dangerous
drugs provided under this Section shall be implemented by the DOH.
Identity must be established beyond Doubt
It must be establushed that the substance said to be illegally possessed
is the very same substance offered in court as exhibit must be
established.
PROCEDURE IN HANDLING SEIZED DANGEROUS DRUGS
1. Physical Inventory
The law requires the apprehending team having initial custody of the
drugs to conduct a physical inventory of the drugs as well as to
photograph the same in the presence of the following:
- Accused or person/s from whom such items were confiscated
or his/her personal representative or counsel
- And a representative of the media
- And a representative of the DOJ
- And any elected public official
Such acts are to be done immediately and in the presence of the person
enumerated in the law as witnesses. The representative of the
media, DOJ, and any elected public are required to sign the copies
of the inventories and each shall be given a copy of the same.
2. Qualitative and Quantitative Examination
Within twenty-four (24) hours upon confiscation/seizure of dangerous
drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or
laboratory equipment, the same shall be submitted to the PDEA Forensic
Laboratory for a qualitative and quantitative examination.
The forensic lab examiner is required to issue within 24 hours after the
receipt if the drugs, a certification of the forensic laboratory examination
results which shall be done under oath.
3. Ocular Inspection
After the filing of the criminal case, the court shall within 72 hours
conduct an ocular inspection of the conficated drugs, and through the
PDEA, shall within 24 hours shall proceed with the destruction of the
same in the presence of the accused or the person from whom the drugs
were conficated, his representative or counsel, a representative from the
media and the DOJ, civil society groups and any elected prublic official.
Importance of the Marking of Evidence
This is the first stage in the chain of custody.
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It is the affixing of the dangerous drugs or related items by the
apprehending officer or the poseur buyer of his initials or signature or
other identifying signs, should be made in the presence of the accused
upon arrest.
The marking sets the evidence apart from all others. It will also serve as
reference for those who will subsequently have possession over the
drugs.
The marking is indispensable in the integrity and preservation of the
evidence.
Non-Compliance with Sec. 21 of RA 9165 would not render the
arrest of the accused as illegal
The non-compliance will not render the drugs illegal / inadmissible as
evidence. The issue if there is non-compliance is not admissibility, but
that of weight evidentiary merit or probative value. Non-compliance
would not render the arrest of the accused illegal or the items seized
from him as inadmissible.
Justifiable grounds for non-compliance
Non-compliance with these requirements under justifiable grounds, as
long as the integrity and the evidentiary value of the seized items are
properly preserved by the apprehending officer/team, shall not render
void and invalid such seizures of and custody over said items
contraband to the poseur buyer and the receipt of the marked money
consumates the buy-bust transaction
People vs Almodiel
In the prosecution for the sale of the dangerous drugs, the absence of
marked money does not create a hiatus in the evidence for the
prosecution as long as the sale of dangerous drug is adequately proven
and the drug subject of the transation is presented before the court.
Neither law nor jurisprudence requires the presentation of any money
used in the buy-bust operation.
DNA EVIDENCE
The Court has established that DNA testing is a valid means of
determining paternity.
Tijing vs CA
While not used in this case, the court held that the court should not
hesitate to rule on the admissibility of DNA evidence. Courts should apply
the results of science when competently obtained in aid of situations
presented, since to reject the said result is to deny progress.
People vs Vallejo
Lays down the guidelines to be used by courts in assessing the probative
value of DNA Evidence.

The Implementing Rules makes it clear that in case of non-compliance, 1. How samples were collected
the following must be observed: 2. How they were handled
3. The possibility of contamination of the samples
1. That the non-compliance must be made on justifiable grounds 4. The procedure followed in analyzing the samples
5. Whether the proper standards and procedures were followed
2. That the apprehending officer / team must have properly in conducting the tests
preserved the integrity and evidentiary value of the seized 6. The qualification of the analyst who conducted the test
items.
In re Estate of Rogelio Ong vs Diaz
The prosecution must be able to prove through records or Even the death of Rogelio cannot bar the conduct of DNA testing
testimony, the wehreabouts of the dangerous drugs from the
time these were seized from the accused by the arresting People vs Yatar
officers, turned over to the investigating officer, forwarded to The Supreme Court upheld the constitutionality of DNA testing and
the laboratory for determination of their composition, and up rejected the contention that it infringes upon the rights of self-
to the time these were offered in evidence. incrimination.

Note: There must be enogh ecidence establishing that the integrity and RULE ON DNA EVIDENCE
the evidentiary value of the evidence has been preserved. The rule on DNA Evidence is the primary rule to be applied whenever
DNA evidence is offered, used or proposed to be offered or used as
evidence in:
The Drugs must be presented as Evidence
The dangerous drugs is the corpus delicti of the crime. Therefore, non- 1. Criminal Actions
presentation of which would be fatal to the case. 2. Civil Actions, and
3. Special proceedings
People vs Umipang
There must also be showing that the police officers intended to faithfully How May an Order for DNA Testing be Obtained
comply with the procedure but were thwarted by some justifiable A person who has legal interest in the litigation may file an application
reasons. Where the officers deliberately disregarded the legal for DNA testing order before the appropriate court, at any time.
safeguards of the law, the procedural lapses effectively produce serious
doubts on the integrity and identity of the corpos delicti. For the order to be issued, there must be a further showing that:

Elements to be established in the prosecution for sale of the 1. A biological sample exists that has relevance to the case
Dangerous Drugs 2. The biological sample:

1. The identity of the buyer and the seller a) Was not previously subjected to DNA testing
b) If it was previously subjected to DNA testing, the
2. The delivery of the thing sold and the payment results may require confirmation for good reason

There must be proof that the tranbsaction or sale actually took place 3.
and that the corpus delicti be presented in court.
What is material is that the transaction or sale actually transpired,
coupled with the presentation of the corpus delicti. The delivery of the
The DNA testing has the scientific potential to produce new
information that is relevant to the proper resolution of the
case.

25| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW

EVIDENCE|RIANO NOTES | For the exclusive use of EH404 2016-2017
4. The existence of other factors, if any, which the court may
consider as potentially affecting the accuracy and integrity of
the DNA testing
If the court finds that the above requirements are met, the court shall
now issue an order, if appropriate, to:
a) Take biological samples from any person or crime scene
evidence
b) Impose reasonable conditions on the testing to protect the
integrity of the biological sample and the liability of the test
results.
TN: The court may motu proprio order the a DNA testing.
Court Order is NOT always required
Court order is not required if the test is done before a suit or proceeding
is commenced at the request of any party, including law enforcement
agencies.
A litigation need not exist prior to DNA testing.
Thus, court order is only required if there is a pending litigation, but not
prior to litigation.
DNA Order is NOT Appealable
It is not appealable and is immediately executory. Hence, the proper
remedy is certiorari
However, under Sec. 5 of the Rules, certiorari does not stay the
implementation of the order, unless the court issues an injunctive order.
Not an automatic Admission
The grant of the DNA testing application shall not be construed as an
automatic admission into evidence of any component of the DNA
evidence that may be obtained as a result of the testing.
The court therefore still has to evaluate the probative value of the
proposed evidence before its admission.
The determination of the probative value of the DNA evidence rests upon
judicial assessment taking into consideration the follwing matters:
a) The chain of custody, including how the biological samples
were collected, how they were handled, and the possibility of
the contamination of the samples.
b) The DNA testing methodology, including the procedure
followed in analyzing the samples, the advantages and
disadvantages of the procedure, and compliance with the
scientifically valid standards in conducting the tests.
c) The forensic DNA laboratory, including its accreditation and
the qualification of the analyst who conducted the test.
If the laboratory is not accredited, the court shall consider the
relevant experience of the laboratory in forensic casework and
its credibility shall be properly established.
d) The reliability of the testing result
Post Conviction DNA Testing
DNA testing may still be conducted even after the person is convicted.
It maybe available to either the prosecution or the convictee provided
the following are present:
1. A biological sample exists
2. The sample is relevant to the case
26| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
3. The testing would result to the modification of the judgment
of conviction.
Such post conviction DNA testing may be done even without a court
order.
Remedy to convict if DNA result of the post DNA Testing are Favorable:
The convict may file a petition for the writ of habeas corpus in the court
of origin.
The court shall then conduct a hearing and in case the court finds, after
due hearing, that the petition is meritorious, it shall reverse or modify
the judgment of conviction and order the release of the convict, unless
his detention is justified for a lawful cause.
The writ may als be filed in the CA or the in SC or with any of the
members of the said court. The said courts may conduct a hearing or
remand the case back to the court of origin.
DNA results are confidential
The results can only be available to the following:
1. The person from whom the samples were taken
2. Lawyers representing parties in the case or action where the
DNA evidence is offered and presented or sought to be offered
and presented.
3. Lawyers of private complainant in a criminal action
4. Duly authorized law enforcement agencies
5. Other persons as determined by the court.
The person to whom the DNA samples were taken may also request that
his DNA testing be disclosed to the person designated in his request.
The said request may be in writing and verified and filed with the court
that allowed DNA testing.
Paraffin Tests
They are inconclusive by the court. Scientists themselves admit that
paraffin tests have proven to be unreliable.
It test only establishes the presence or absence of nitrates on the hand,
but the test alone does not determine whether the source of the nitrates
was the discharge of the firearm.
The presence of the nitrates should only be taken as an indication of a
possibility or even a probability but not of infallibility that a person has
fired a gun.
A person who tests positive may have handed one or more substances
with the same positive reaction for nitrates such as explosives, fireworks,
fertilizers, pharmaceuticals, tobacco and leguminous plants.
The negative findings of a paraffin test do not conclusively show that a
person did not discharge a gun, if he fired a gun with a glove on, or if
he thoroughly washed his hands thereafter.
Paraffin test is merely a corroborative evidence, neither proving nor
disapproving that a person indeed fired a gun. Test can be influenced
by certain factors such as perspiration of hands, climate condition, wind
velocity, length of the barrel of the firearm.
Polygraph Tests (Lie Detector Tests)
It operates on the principle that stress causes psychological changes in
the body which can be measured to indicate whether the subject is
telling the truth. Sensors are attached to the subject so that it can
EVIDENCE|RIANO NOTES | For the exclusive use of EH404 2016-2017
mechanically record the subjects physiological responses to a series of
questions.
Courts reject the results of the polygraph tests when offered in evidence
for the purpose of establishing the guilt of a person because it has not
yet attained scientific acceptance as a reliable and accurate means of
ascertaining the truth or deception.
DOCUMENTARY EVIDENCE
Section 2, Rule 130. Documentary evidence. Documents as
evidence consist of writing or any material containing letters, words,
numbers, figures, symbols or other modes of written expression offered
as proof of their contents.
Document as Evidence
They do not exclusively refer to written documents. They may refer to
any other material like objects as long as it contains words, letters,
numbers, figures, symbols or other modes of written expression and
offered as proof of their contents.
Two Categories of Documents
1. Writing.
Refers to instantly recognizable documents like written
contracts and wills
2. Any other material containing modes of written expression
Those which are not traditionally considered as writings but
are actually objects which contain modes of written
expressions.
Documents must be offered as proof of their contents
Being writings or materials containing modes of written expressions do
not ipso facto make such documentary evidence. For such writings or
materials to be deemed documentary evidence, the same must offered
as proof of their contents.
If offered for some other purpose, the writings or materials would not
be deemed documentary evidence but merely object evidence.
Example: When a contract is presented in the court to show that it exists
or simply to establish its condition, it is not offered to prove its contents.
The contract therefore is not considered a documentary evidence, but
an object or real evidence.
Example: Photocopy of marked bills used in buy-bust operation
The photocopy is a real (object) evidence and not a documentary
evidence. Although it is conceded that the bills contain letters, words,
numbers and other modes of written expression, these facts alone do
not make the bills documentary evidence. The bills were obviously
presented to show that money exchanged hands in the buy-bust
operations and not to prove anything on the bills.
A private doc may be offered both as documentary and object
If offered to prove existence, or other than contents, it is considered as
object evidence. When offered as proof of contents, then considered as
documentary. The document may be offered for both purposes under
the principle of multiple admissibility.
Rules on Electronic Evidence
Section 1 (h), Rule 2 of the Rules on Electronic Evidence. Electronic
document refers to information or the representation of information,
data, figures, symbols or other modes of written expression, described
or however represented, by which a right is established or an obligation
27| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
extinguished, or by which a fact may be proved and affirmed, which is
received, recorded, transmitted, stored processed, retrieved or
produced electronically. It includes digitally signed documents and any
print-out or output, readable by sight or other means, which accurately
reflects the electronic data message or electronic document. For
purposes of these Rules, the term electronic document may be used
interchangeably with electronic data message.
Electronic Document
It does not only refer to the information itself. It also refers to the
representation of that information. For a document to be qualified as
electronic, it is important that it be received, recorded, transmitted,
stored, processed, retrieved or produced electronically.
The rule does not absolutely require that the electronic document be
initially generated or produced electronically.
Example: A contract prepared through the traditional written way may
be converted to an electronic document if transmitted or received or
later recorded electronically.
Use of Electronic Document
The electronic document is one that may be used for any of the
following:
1. To establish a right
2. To establish an obligation
3. To approve or affirm a fact
Electronic documents are the functional equivalents of paper based
documents.
Sec 1, of Rule 3 of the Rules on Electronic Evidence. Whenever a rule
of evidence refers to the term of writing, document, record, instrument,
memorandum or any form of writing, such term shall be deemed to
include an electronic document as defined in these rules.
Suppletory Application
The rules of evidence in the rules of court including statutes involving
rules of evidence to be applied suppletorily to the rules on electronic
evidence in all matters not specifically covered by the latter.
Sec. 1, Rule 5. Burden of proving authenticity. The person seeking
to introduce an electronic document in any legal proceeding has the
burden of proving its authenticity in the manner provided in this Rule.
Burden of Proof
Under the said rule, the person offering the document has the burden
to prove its authenticity.
Sec. 2, Rule 5. Manner of authentication. Before any private
electronic document offered as authentic is received in evidence, its
authenticity must be proved by any of the following means:
(a) by evidence that it had been digitally signed by the person
purported to have signed the same;
(b) by evidence that other appropriate security procedures or
devices as may be authorized by the Supreme Court or by law
for authentication of electronic documents were applied to the
document; or
(c) by other evidence showing its integrity and reliability to the
satisfaction of the judge.
Only applies to PRIVATE electronic Document
The rule only applies when the document is a private document and the
same is offered as an authentic document.
EVIDENCE|RIANO NOTES | For the exclusive use of EH404 2016-2017
If the electronic document is offered simply for what it is or for what it
is claimed to be without regard to whether or not it is authentic, Sec 2
of Rule 5 finds no relevance.
If a document is electronically notarized, then the rules on
authentication in Sec 2 Rule 5 does not apply because it is transformed
as a public instrument. It is to be proved not in accordance with the
rules on electronic evidence but in accordance with the rules of court.
Sec 3, Rule 5 of REE. Proof of electronically notarized document. A
document notarized in accordance with the rules promulgated by the
Supreme Court shall be considered as a public document and proved as
notarial document under the Rules of Court.
Evidentiary Concepts
The said evidence must be relevant and competent. It is also subject to
general exclusionary rules on hearsay, best evidence rule and parole
evidence rule.
If evidence is documentary, the best evidence, parol evidence and
hearsay rules apply.
If evidence is object, the best evidence, parol and hearsay finds no
application.
Requisites for Admissibility of Documentary Evidence:
1. The document must be relevant
2. It must be authenticated
3. It must be authenticated by a competent witness
4. The document must be formally offered in evidence
Best Evidence Rule
Section 3.Original document must be produced; exceptions. When
the subject of inquiry is the contents of a document, no evidence shall
be admissible other than the original document itself, except in the
following cases:
a) When the original has been lost or destroyed, or cannot be
produced in court, without bad faith on the part of the offeror;
b) When the original is in the custody or under the control of the
party against whom the evidence is offered, and the latter fails
to produce it after reasonable notice;
c) When the original consists of numerous accounts or other
documents which cannot be examined in court without great loss
of time and the fact sought to be established from them is only
the general result of the whole; and
d) When the original is a public record in the custody of a public
officer or is recorded in a public office.
Rationale (Requirement of the production of the Original Writing)
1. Substantial hazard of inaccuracy in the human process of
making a copy
2. As respects oral testimony purporting to give from memory
the terms of a writing, there is risk or error
3. Possible inaccuracy in the process of copying and the danger
of erroneous transmission of the original
Best Evidence as a Misnomer
Despite being the best, the rule does not proclaim itself as the highest
and most reliable evidence in the hierarchy of evidence. It has nothing
to do with the degree of probative value. It is not intended to mean the
most superior evidence. More accurately, it is the original document
rule or the primary evidence rule.
28| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
The Content must be in Issue
The said rule cannot be invoked unless the contents of the writing is the
subject of judicial inquiry, in which case, the best evidence is the original
document itself.
If the issue is the existence of the document, then the rule on best
evidence does not apply.
Example: The defense of lack of consideration and that the signature in
the note was not made in the personal capacity of the respondent are
defences which do not question the precise wordings of the promissory
note.
Where the issue is the issue is the execution or existence of the
document or the circumstances surrounding the execution, the best
evidence rule does not apply.
Where the truthfulness is in issue, then the BER will no longer apply, but
that of the hearsay rule.
REQUISITES:
1. Subject matter involves a document
2. Subject of the inquiry is the contents of the document
The subject of the inquiry under best evidence is the contents of the
writing and not the truth thereof. Where the truth is in issue, the hearsay
rule will now be involved.
The best evidence applies only to documentary evidence and does not
apply to object evidence.
Where the document is merely collaterally in issue
It is collaterally is issue when the purpose of introducing the document
is not to establish its terms, but to show facts that have no reference to
its contents like its existence, condition, execution and delivery.
Reason for Best Evidence
There is a need to present to the court the exact words of a writing
where a slight variation of words may mean a great difference in rights.
If the party is in possession of such evidence and withholds it and
presents inferior or secondary evidence in its place, the presumption is
that the latter evidence is withheld from the court and the adverse party
for a fraudulent purpose which its production would expose and defeat.
Waiver of the Rule
The BER may be waived if not properly raised in the trial.
How to Apply Best Evidence Rule
Determine the matter inquired into:
1. If it involves the contents of the document, best evidence rule
applies. So long as the original is available, no other evidence
can be substituted.
2. If original cannot be presented, there must be:
a. finding an adequate legal excuse for such failure to
present the original
b. present secondary evidence sanctioned by the court
Instances Original Need Not Be Produced
Sec 3, Rule 130 ROC. Original document must be
produced; exceptions. When the subject of inquiry is the contents of
a document, no evidence shall be admissible other than the original
document itself, except in the following cases:
a. When the original has been lost or destroyed, or cannot be
produced in court, without bad faith on the part of the offeror;
b. When the original is in the custody or under the control of the
party against whom the evidence is offered, and the latter fails
to produce it after reasonable notice;
c. When the original consists of numerous accounts or other
documents which cannot be examined in court without great loss
EVIDENCE|RIANO NOTES | For the exclusive use of EH404 2016-2017
of time and the fact sought to be established from them is only
the general result of the whole; and
d. When the original is a public record in the custody of a public
officer or is recorded in a public office.
Requisites for the Introduction of Secondary Evidence when
document is lost
Sec. 5, Rule 130. When original document is unavailable. When the
original document has been lost or destroyed, or cannot be produced in
court, the offeror, upon proof of its execution or existence and the cause
of its unavailability without bad faith on his part, may prove its contents
by a copy, or by a recital of its contents in some authentic document, or
by the testimony of witnesses in the order stated.
The exception not only covers loss or destruction but also other reasons
for the failure to produce the original as when the original is beyond the
territorial jurisdiction of the court or inscriptions on immovable objetcs
such as tombstones.
Requisites:
1. The offeror must prove the execution and existence of the
original document
2. The offeror must show the cause of the unavailability
3. The offeror must show that the unavailability was not due to
bad faith
Note: Order of proof: existence, execution, loss and contents (but order
may be changed at the discretion of the court)
Due Execution
It may be proven by either:
a. By anyone who saw the document executed or written
b. By evidence of the genuineness of the signature or
handwriting of the maker
Important: Before secondary evidence can be presented, it is
imperative that all the originals of the deed must be accounted for.
Paylagao vs Jarabe
The loss of the original need not be shown to be beyond all possibility
of mistake. A reasonable probability of its loss is sufficient like by
showing that there was a bona fide and diligent but fruitless search for
the document.
Order of the Presentation of Secondary Evidence
a) Copy of the original
b) Recital of the contents of the document in some authentic
document
c) Testimony of the witness
Note: The hierarchy must be strictly followed.
Presentation of the original may be waived. If the party against whom
the secondary evidence is offered does not object when the same is
offered, the secondary evidence becomes the primary evidence.
Introduction of Secondary Evidence when the original is in the
custody or control of the Adverse Party
Sec.6, Rule 130. When original document is in adverse party's custody
or control. If the document is in the custody or under the control of
adverse party, he must have reasonable notice to produce it. If after
such notice and after satisfactory proof of its existence, he fails to
produce the document, secondary evidence may be presented as in the
case of its loss.
29| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
A showing that the original document is in the possession of the other
party does not ipso facto authorize the introduction of secondary
evidence to prove its contents.
The following must first be proven:
1. That the original exists
2. That said document is under the possession of the adverse
party
3. That the proponent of secondary evidence has given the
adverse party reasonable notice to produce the original
document
4. That the adverse party failed to produce the original
document despite the reasonable notice.
Magdayao vs People
The offeror must prove that he has done all in his power to secure the
best evidence by giving notice to the said party to produce the
document. The notice must be in the form of a motion for the production
of the original, or made in open court in the presence of the adverse
party, or via subpoena duces tecum, provided that the party in custody
of the original has sufficient time to produce the same. When such party
has the original of the writing and does not voluntarily offer to produce
it or refuses to produce it, secondary evidence may be admitted.
Requisites for Introduction of Secondary Evidence when
Original Consists in Numerous Accounts:
1. The original consists or numerous accounts or other
documents
2. They cannot be examined in court without great loss of time
3. The fact sought to be established from them is only the
general result of the whole.
They may be presented in the form of a summary of a number of
documents or the summary itself may be admitted. They may also be
presented in the form of charts or calculations.
Example: The accountants summary for the 150,000 sales invoice
Availability of Documents
The voluminous records however must be made accessible to the
adverse party so that the correctness of the summary may be tested n
cross examination.
Requisites when the original Document is a public record
Sec. 7, Rule 130. Evidence admissible when original document is a
public record. When the original of document is in the custody of
public officer or is recorded in a public office, its contents may be proved
by a certified copy issued by the public officer in custody thereof.
Public records are generally not to be removed from the places where
they are recorded and kept. The proof of the contents of a public record
may be done by secondary evidence. This evidence is a certified true
copy of the original. This certified true copy is to be issued by the public
officer in custody of the public records.
Effect of Not Offering a Document in Evidence after Calling for
its Production and Inspection
Sec. 8 of Rule 130. Party who calls for document not bound to offer
it. A party who calls for the production of a document and inspects
the same is not obliged to offer it as evidence.
If a party who calls for the production of the document does not offer
the same in evidence, no unfavorable inference may be drawn from such
failure. This is because the law provides that a party who calls for the
production of the document is not required to offer it.
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Meaning of Original
Sec. 4 of Rule 130. Original of document.
a) The original of the document is one the contents of which are
the subject of inquiry.
b) When a document is in two or more copies executed at or
about the same time, with identical contents, all such copies
are equally regarded as originals.
c) When an entry is repeated in the regular course of business,
one being copied from another at or near the time of the
transaction, all the entries are likewise equally regarded as
originals.
To be considered as original under Section 4 (c), the following requisites
must be complied with:
1. There must be entries made and repeated in the regular curse
of business
2. The entries must be made at or near the time of transaction
Note: There need not be one original. There are instances under the
Rules of Court where subsequent documents are also regarded as
original documents.
Examples:
a. Lawyers who make more than on copy of a pleading all
pleadings are considered as original documents.
b.
c. Writings with identical contents made by printing, lithography
and other similar method executed at the same time.
(Newspapers sold are all considered as original document)
d. When carbon sheets are inserted in between pages and all
pages are signed, then all copies are deemed original.
e. If several copies are reproduced, but there is only one
document signed only the signed copy is the original
document.
Note: When the rule speaks of an original, it does not refer to the
original of an object evidence but an original of a documentary evidence.
They have to be executed at the same time.
ORIGINALS UNDER THE RULES ON ELECTRONIC EVIDENCE
Sec. 1, Rule 4 of the Rules on Electronic Evidence. Original of an
electronic document. An electronic document shall be regarded as the
equivalent of an original document under the Best Evidence Rule if it is
a printout or output readable by sight or other means, shown to reflect
the data accurately.
Identical contents
The copies of the printout or output readable by sight referred to in the
immediately preceding paragraph are also deemed originals where the
copies were executed at or about the same time with identical contents,
or is a counterpart produced by the same impression as the original or
from the same matrix, or by other means and which accurately
reproduce the original.
Sec. 2, Rule 4. Copies as equivalent of the originals. When a document
is in two or more copies executed at or about the same time with
identical contents, or is a counterpart produced by the same impression
as the original, or from the same matrix, or by mechanical or electronic
re-recording, or by chemical reproduction, or by other equivalent
techniques which is accurately reproduces the original, such copies or
duplicates shall be regarded as the equivalent of the original.
30| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Notwithstanding the foregoing, copies or duplicates shall not be
admissible to the same extent as the original if:
(a) a genuine question is raised as to the authenticity of the
original; or
(b) in the circumstances it would be unjust or inequitable to
admit a copy in lieu of the original.
Original Printout of Facsimile Transmission
MCC vs Ssangyong
The terms electronic data message and electronic document as
defined under the electronic commerce act do not include the facsimile
transmission and cannot be considered as electronic evidence. It is not
the functional equivalent of an original under the Best evidence Rule and
is not admissible as electronic evidence.
It is not considered an original copy because in an ordinary facsimile
transmission, there exists an original paper-based information or data
that is scanned, sent through a phone line and reprinted at a receiving
end.
Parol Evidence Rule
Section 9, RULE 130. Evidence of written agreements. When the
terms of an agreement have been reduced to writing, it is considered as
containing all the terms agreed upon and there can be, between the
parties and their successors in interest, no evidence of such terms other
than the contents of the written agreement.
However, a party may present evidence to modify, explain or add to the
terms of written agreement if he puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the written
agreement;
(b) The failure of the written agreement to express the true
intent and agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their
successors in interest after the execution of the written
agreement.
The term "agreement" includes wills.
Agreements reduced to writing
As a general rule, contracts need not be in writing, however, when an
agreement is reduced into writing, then the rules on parole evidence
ipso facto come into play.
The term "parol" evidence means something 'oral' or verbal but with
reference to contracts, "parol evidence" means extraneous evidence or
evidence aliunde. But in the Rules of Court parol refers not only to oral
but also written evidence outside or extraneous to the written contract
between the parties.
When Applicable
The parole evidence rule becomes operative when the issues in the
litigation involves the terms of a written agreement.
In American Jurisprudence, when the entire agreement is not embodied
in the written agreement, then parole evidence may be allowed.
However, when the written agreement is already complete, then parole
evidence may no longer be allowed.
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Under the Rules of Court, the written agreement is considered to contain
all the things agreed upon. Being the final agreement, extraneous /
parole evidence are not allowed to modify, explain or add to the terms
of the written agreement.
Parol evidence forbids any addition to, or contradiction of, the terms of
a written agreement by testimony or other evidence purporting to show
that different terms were agreed upon by the parties, varying the
purport of the written contract (SeaOil Petroleum Corporation v.
Autocorp Group)
Whatever is not found in the writing is understood to have been waived
and abandoned (Edrada v. Ramos).
It applies to any kind of written agreement it may be a private or a
public instrument, so long as it is in writing. Thus, for the parol evidence
rule to apply, a written contract need not be in any particular form, or
be signed by both parties. (Inciong, Jr. v.CA)
It does not apply to oral agreements.
But writings that do not embody an agreement will NOT trigger the
application of the parol evidence rule. However, the WILL which
although not legally an agreement is considered to be one for purposes
of the application of the parol evidence rule.
Applicable to parties and their successors in interest
A total stranger is therefore not bound by the written agreement and he
is allowed to introduce extrinsic evidence against efficacy of the writing.
(Lechugas v. CA)
A written document can only bind the parties and their successors in
interest.
Application of the Rule to Wills
GR: Parol evidence applies to contractual obligations.
XPN: By explicit provision of section 9, the parole evidence rule also
applies to wills.
While parole evidence applies to wills, an express trust concerning an
immovable or any interest therein may not be proved by parol evidence.
Bar 1978: X was hired by a Corporation for its oil exploration venture
in Palawan. The employment contract expressly provided that X was to
receive salary of P10,000/mo plus representation and traveling expenses
of P5,000/mo. Corp. failed to pay and so X filed an action for specific
performance. At the trial, Corp., attempted to prove, by oral testimony,
that the payment of salary to X was subject to the condition that the
exploration was already successful.
Is such oral testimony admissible? Reasons.
Suggested Answer: The oral testimony is not admissible. Under the parol
evidence rule, no evidence of the terms of a writing are admissible other
than the contents of the written agreement. Such contents cannot be
modified, altered or explained by extrinsic or parol evidence like oral
testimony (Sec. 9, Rule 130, Rules of Court).
Bar 1981
"Q" and "R" entered into a contract covering the processing and refining
of "R's" products. As part of their written contract, the parties agreed
that "Q" could sell the finished goods at his discretion without telling "R"
and apply the proceeds of the sale towards the payment of the
processing and refining costs, and then turn over the balance
of the sales price to "R." This "Q" did, but now "R" complains that the
price "Q" secured was too low and his consent to the sale should have
been first secured.
In the presentation of evidence, should this evidence of "R" be allowed,
and why?
31| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Suggested Answer: The evidence of "R" should not be allowed. Under
the parol evidence rule, no evidence of the terms of a writing are
admissible other than the contents of the written agreement (Sec. 9,
Rule 130, Rules of Court).
Bar 1983: In its answer, for an action for rescission of a deed of sale
over a piece of land that the plaintiff sold to the defendant, the
defendant denied all the material allegations of the complaint. During
the trial, plaintiff testified on his behalf and was asked what other
agreement did he contracted with defendant. While he was testifying,
the counsel of the defendant objected. If you were the counsel for the
defendant, what would your explanation be?
Suggested Answer: The question is objectionable under the parol
evidence rule. When an agreement is reduced into writing, it is
considered to contain all the terms agreed upon by the parties, and there
can be no evidence of such terms other than the contents of the written
agreement. Hence, a party cannot introduce any evidence as to the
terms of the agreement other than those found in the deed of sale (Sec.
9, Rule 130, Rules of Court).
When and How to Introduce Parol Evidence
GR: A party cannot introduce extraneous evidence to prove the contents
of a written agreement
XPN: A party may present extrinsic or extraneous evidence that would
modify, explain or add to the terms of the written agreement by showing
any of the following:
a. An intrinsic ambiguity, mistake or imperfection in the written
agreement
b. The failure of the written agreement to express the true intent
and agreement of the parties thereto
c. The validity of the written agreement
d. The existence of other terms agreed to by the parties or the
successors-in-interest after the execution of the written
agreement.
Important: Parol evidence may only be allowed, if any of the matters
mentioned above (from "a" to "d") is put in issue in the pleadings.
Without complying with this requirement putting in issue in the
pleadings parol evidence cannot be introduced. Unless duly pleaded,
a party will be barred from offering extrinsic evidence over the objection
of the adverse party.
Sps. Sabio vs International Corporate Bank
If the agreement was reduced to writing, such agreement is deemed to
contain all its terms and there cannot be, between the parties and their
successors-in-interest, any evidence of the terms of the written
agreement other than the contents of the agreement itself. It is only
where the party puts in issue in the pleadings the failure of the written
agreement to express the true intent of the parties thereto that said
party may present evidence to modify, explain or add to the terms of
the written agreement.
Prior, Contemporaneous and Subsequent Agreement
Previous jurisprudence provides that subsequent agreement need not
be put in issue in the pleadings. However, the same no longer applies
today. The amended Rules of Evidence added subsequent agreements
as among those matters that need to be put in issue.
The addition of a subsequent agreement as an exception does not
square with previous jurisprudence (Dela Rama v. Ledesma, 143 SCRA
1; Canuto v. Mariano, 37 Phil. 840) on the matter.
Intrinsic Ambiguity of the Writing
It must be raised in issue in the pleadings. Intrinsic or latent ambiguity
is one that is not apparent on the face of the document but which lies
in the person or thing that is the subject of the document. Some matter
extraneous to the writing creates the ambiguity.
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DISTINCTION BETWEEN PAROL EVIDENCE RULE AND BEST EVIDENCE

Example: BEST EVIDENCE RULE PAROL EVIDENCE
Testator bequeathes to Navidad his parcel of land in Cebu City, however,
it was later found out that he has 2 lands in Cebu City. Establishes a preference for the Not concerned with the primacy
original document over the of the evidence but presupposes
Testator bequeathes to his grandson Navidad his parcel of land in Cebu secondary evidence that the original is available
City, however, it was later found out that he has 2 grandsons named
Navidad. Precludes admission of Precludes the admission of
secondary evidence if the other evidence to prove the
When the ambiguity is extrinsic or patent, one that appears on the very original is available terms of a document other than
face of the instrument, parol evidence will not be admitted even if put the contents of the document
in issue, otherwise, it would somehow result in the court construing the itself for the purpose of varying
contract. the terms of the writing

Example of Extrinsic ambiguity Can be invoked by anyone Can only be invoked by the
Donor writes that he will give to Anton one of his cars. Without whether he or she is a party or parties / their successors in
describing the specific car, there is a patent ambiguity (when he has not interest
many cars).
Applies to all forms of writing Applies only to written
Mistake or Imperfection in the writing and failure to Express agreements (contracts) and
the True Agreement of the Parties wills
The mistake must be put in issue in the pleadings. BUT, failure of the
writing to express the true agreement of the parties, does not mean
however, that the mistake or imperfection prevented the meeting of the Waiver of the Parol Evidence Rule
minds between the parties. It can be waived by failure to invoke the benefits of the rule. The waiver
may be done by the failure to object to the introduction of evidence
Substantive laws sumerate some reasons for the failure of the aliunde.
instrument to express the true intention of the parties like fraud,
inequitable conduct or accident (Art. 1359, Civil Code), ignorance, lack Probative Value
of skill, negligence or bad faith on the part of the person drafting the Even if parol evidence is admitted, such admission would not mean that
instrument (Art. 1364, ibid.). the court would give probative value to the parol evidence. Admissibility
is not the equivalent of probative value or credibility.
SeaOil Petroleum Corporation v. Autocorp Group
Although parol evidence is admissible to explain the meaning of a
contract, it cannot serve the purpose of incorporating into the contract Authentication and Proof of Documents
additional contemporaneous conditions which are not mentioned at all
in the writing unless there has been fraud or mistake. AUTHENTICATION
The object must be shown to the satisfaction of the court that the
When there is a meeting of the minds between the parties but their true weapon is the very same weapon found in the crime scene. Not only
intention is not expressed in the instrument by any of the objects but also documents introduced in evidence need to be
aforementioned causes, one of the parties may ask for the reformation authenticated.
of the instrument (Art. 1359, Civil Code). It is the preliminary step in showing the admissibility of an evidence.

In an action for reformation of the instrument under Art. 1359 of the
Civil Code, the plaintiff may introduce parol evidence to show the real
intention of the parties. An action for reformation presupposes that a
meeting of the minds exists between the parties. It is not an action
brought to reform a contract but to reform the instrument evidencing
the contract
If there is no meeting of the minds between the parties because of
mistake, fraud, inequitable conduct or accident, the proper remedy is
not reformation of the instrument but an action for annulment (Art.
1359, Civil Code) because the contract is rendered voidable by the
vitiation of the consent of a party (Art. 1390, ibid.).
Madrigal v. Court of Appeals
Even when a document appears on its face to be a sale, the owner of
the property may prove that the contract is really a loan with mortgage
by raising as an issue the fact that the document does not express the
true intent of the parties. In this case, parol evidence then becomes
competent and admissible to prove that the instrument was in truth and
in fact given merely as a security for the repayment of a loan.
Ayson, Jr. v. Paragas
the courts will enforce the agreement or understanding, in accord with
the true intent of the parties at the time the contract was executed, even
if the conveyance was accompanied by registration in the name of the
transferee and of a new certificate of title in his name
32| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Unless a document is considered self-authenticating, it will not be
admitted in evidence without a prior authentication. The presumption in
our law is that: That objects and documents presented in evidence, are
as a rule, counterfeit.
There shall be no difference between sealed and unsealed private
documents insofar as their admissibility as evidence is concerned (Sec.
32, Rule 132, Rules of Court).
Concept of Document
Document is a deed, instrument or other duly authorized paper by which
something is proved, evidenced or set forth. (Bermejo v. Barrios, People
v. Camacho, U.S. v. Orera).
For it to be considered as evidence, it must first be offered as proof of
their contents. (Sec. 2, Rule 130, Rules of Court). If the document is not
offered for that purpose, the document is mere object evidence as when
the purpose is merely to prove its existence.
Public and Private Documents
Classes of Documents
Section 19. Classes of Documents. For the purpose of their
presentation evidence, documents are either public or private.
Public documents are:
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(a) The written official acts, or records of the official acts of
the sovereign authority, official bodies and tribunals, and
public officers, whether of the Philippines, or of a foreign
country;
(b) Documents acknowledge before a notary public except
last wills and testaments; and
(c) Public records, kept in the Philippines, of private
documents required by law to the entered therein.
All other writings are private.
Written Official Acts
The written official acts do not only refer to those of the Philippines, they
also refer to those of the foreign country.
Assumed to be included in this class of public document are those
acknowledged before an officer, other than a notary public, authorized
to administer oaths.
BAR 2011
In the case of a public record of a private document required by law to
be entered in a public record, the public document does not refer to the
private document itself but the public record of that private document.
Proof of a Private Document
Section 20.Proof of private document. Before any private document
offered as authentic is received in evidence, its due execution and
authenticity must be proved either:
1. By anyone who saw the document executed or written; or
2. By evidence of the genuineness of the signature or
handwriting of the maker.
Any other private document need only be identified as that which it is
claimed to be.
When authentication of a Private document is Proper
Where the private document is offered in evidence as authentic,
there is a need to prove its due execution and authenticity. If the
document or writing is not offered as authentic, it only needs to be
identified as that which it is claimed to be.
Authentication is only needed where the document is offered as
authentic as when it is offered to prove that the document was truly
executed by the person purported to have made the same.
Two Ways of Authenticating Document under Sec. 20
a) Rely on the personal knowledge of the witness
Here, the witness attests to the genuineness of the document
because it was signed in his presence. He personally
witnessed the execution or writing of the document.
b) Witness testifies or shows evidence that the signature or
handwritng of the maker is genuine
It is not required that the document be executed in the
presence of the witness.
When Authentication NOT required
a) When the document is an ancient one in the context of Sec.
21, Rule 132
33| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
b) When the genuineness and authenticity of an actionable
document have not been specifically denied under oath by the
adverse party under Sec. 8 of Rule 8 of the Rules of Court
c) When the genuiness and authenticity of the documents have
been admitted under Sec.4 of rule 129
d) When the document is not being offered as authentic as
implied from Sec.20, rule 132 which requires authentication
only when the document is offered as authentic
Ancient Documents
A private document is considered ancient when it is more than thirty
(30) years old, is produced from a custody in which it would naturally
be found if genuine, and is unblemished by any alterations or
circumstances of suspicion. BAR 2011
When all these are done, no other evidence of its authenticity need be
given.
When evidence of authenticity of document not necessary
Section 21.When evidence of authenticity of document not necessary.
Where a private document is more than thirty years old, is produced
from a custody in which it would naturally be found if genuine, and is
unblemished by any alterations or circumstances of suspicion, no other
evidence of its authenticity need be given.
Bar 1990
In the trial of a case on July 5,1990, plaintiff offered in evidence a
receipt, without any blemish or alteration, dated July 7, 1959 issued by
defendant company which was found in a cabinet for receipts of
payment. No witness testified on the authenticity of the document,
defendant moved for the exclusion of this receipt notwithstanding that
it is a private writing.
Should the said motion be granted?
Suggested answer: The motion should not be granted. There is no
need for a witness to testify as to its execution and authenticity. The
testimony will only be for the purpose of identifying the document and
not to prove its authenticity. This is one of the exception to the rule
requiring proof of the genuineness and due execution of a private
document. The exception in the instant case is it being an "ancient
document
IMPT: While a witness is not needed to prove the due execution and
authenticity of the document, a witness is needed to identify the same.
IMPT: Even if not an ancient document, it is submitted that a private
document, the authenticity of which has been admitted by the parties
requires no further authentication.
How to Prove Genuineness of a Handwriting
Section 22. How genuineness of handwriting proved. The
handwriting of a person may be proved by any witness who believes it
to be the handwriting of such person because he has seen the person
write, or has seen writing purporting to be his upon which the witness
has acted or been charged, and thus has acquired knowledge of the
handwriting of such person. Evidence respecting the handwriting may
also be given by a comparison, made by the witness or the court, with
writings admitted or treated as genuine by the party against whom the
evidence is offered, or proved to be genuine to the satisfaction of the
judge.
SEC. 22 does NOT require expert testimony to prove the handwriting of
a person.
Proven by any witness
It may be proven by any witness who believes it to be the handwriting
of a person because:
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(1) he has seen the person write; or
(2) he has seen writing purporting to be his upon which the witness
has acted or been charged, and has thus acquired knowledge of
the handwriting of such person;
(3) by a comparison made by the witness or the court, with writings
admitted or treated as genuine by the party against whom the
document is offered, or proved to be genuine to the satisfaction of
the judge. (Heirs of Amado Celestial v. Heirs of Editha G. Celestial).
Importance of Knowing Whether a Document is Public or
Private; proof of notarial documents
Private document offered as authentic- before its admission in evidence
, its due execution and authenticity must be proved
Public document- admissible without further proof of its due execution
and genuineness
Example:
a. Notarized document may be presented in evidence without
further proof, the certificate of acknowledgment being prima
facie evidence of the execution of the instrument or document
involved. (Domingo v. Robles)
b. Notarial seal converts a private document to a public
instrument, after which it may be presented in evidence
without further proof of its genuineness and due execution
(Maria v Cortez, 2012)
However, the irregular notarization or lack of notarization
does not necessarily affect the validity of the contract
reflected in the document. (Bangayan v RCBC,2011)
Proof of notarial documents.
Section 30. Proof of notarial documents. Every instrument duly
acknowledged or proved and certified as provided by law, may be
presented in evidence without further proof, the certificate of
acknowledgement being prima facie evidence of the execution of the
instrument or document involved.
Public documents are self- executing
Public documents since it has been acknowledged by a notary public
(except notarial will) or a competent public official following formalities
required by law, or it is a public record of a private writing authorized
by law, is self- executing and requires no further authentication to be
presented as evidence in court.
It enjoys the presumption of regularity. It is a prima facie evidence of
the truth of the facts stated therein and a conclusive presumption of its
existence and due execution. To overcome this presumption, there must
be presented evidence that is clear and convincing. Absent such
evidence, the presumption must be upheld. (Chua v Westmont, 2012)
In addition, one who denies the due execution of a deed where one's
signature appears has the burden of proving that contrary to the recital
in the jurat, one never appeared before the notary public and
acknowledged the deed to be a voluntary act. Denials without clear and
convincing evidence to support the claim of fraud and falsity are not
sufficient to overthrow the abovementioned presumption (Spouses
Santos v. Spouses Lumbao)
Private documents are any other writing, deed or instrument executed
by a private person without the intervention of the notary public or other
person legally authorized. Lacking the official or sovereign character of
a public document, it requires the authentication under the Rules of
Court before it is accepted as evidence in court (Patula v PP, 2012; Sps
Lehner v Chua, 2013)
34| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Public document as evidence
Section 23. Public documents as evidence. Documents consisting of
entries in public records made in the performance of a duty by a public
officer are prima facie evidence of the facts therein stated. All other
public documents are evidence, even against third persons of the facts
which gave rise to their execution and of the date of the latter.
When a public officer in the performance of his duty, makes an entry in
the public record, the document of such entry is deemed prima facie
evidence of the facts stated in the entry
For other public documents, the facts stated therein constitute evidence
of the facts that gave rise to the execution of the documents and of its
date of the execution.
Proof of Official Records; Attestation of a copy
Even if a public document does not require authentication. There is a
necessity for showing to the court that indeed a record of the official
acts of official bodies, tribunals or of public officers exists.
Proof of official record
Section 24. The record of public documents referred to in paragraph
(a) of Section 19, when admissible for any purpose, may evidenced by:
(a) An official publication thereof; or
(b) By a copy of the document attested by the officer having
legal custody of the record or by the attestation of his deputy;
if the record is not kept in the Philippines, the attestation must
be accompanied by a certificate that such officer has the
custody; if the office in which the record is kept is in a foreign
country, the certificate maybe made by a secretary of the
embassy or legation, consul general, consul, vice-consul, or
consular agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the record
is kept, and authenticated by the seal of his office.
Attestation of copy must state
Section 25. Whenever a copy of a document or record is attested for
the purpose of evidence, the attestation must state, in substance, that
the copy is a correct copy of the original or a specific part thereof, as
the case may be. The attestation must be under the official seal of the
attesting officer, if there be any, or if he be the clerk of a court having
a seal, under the seal of such court.
Irremovability if the public record
Section 26. Any public record, an official copy of which is admissible in
evidence, must not be removed from the office in which it is kept, except
upon order of a court where the inspection of the record is essential to
the just determination of a pending case.
Since the general rule is that public records cannot be removed from the
office in which it is kept the certificate and attestation are required.
Special Power of Attorney Executed Abroad (BAR 2011)
A Special Power of Attorney executed by a notary public in a foreign
country without the certificate of authentication by either of the officers
mentioned in Section 24 of Rule 132 of the Rules of Court, will render
the special power of attorney inadmissible in evidence.
The Court held that a notary public in a foreign country is not one of
those who can issue the certificate mentioned in Section 24 of Rule 132
of the Rules of Court. The non- compliance will render the special power
of attorney inadmissible in evidence. Not being duly established in
evidence, the special power of attorney cannot be used to file a suit in
representation of another.
The argument that the lack of consular authentication is a mere
technicality that can be brushed aside in order to uphold substantial
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justice was also considered as untenable. The failure to have the special
power of attorney authenticated according to the Court, is not a mere
technicality but a question of jurisdiction. (Lopez v. CA)
Public Record of a Private Document
Section 27. An authorized public record of a private document may be
proved by:
a) the original record, or
b) by a copy thereof, attested by the legal custodian of the
record, with an appropriate certificate that such officer has
the custody.
Proof of Lack of Record
Section 28. A written statement signed by an officer having the custody
of an official record or by his deputy that after diligent search no record
or entry of a specified tenor is found to exist in the records of his office,
accompanied by a certificate as above provided, is admissible as
evidence that the records of his office contain no such record or entry
Sometimes the litigation centers on the absence of an official record and
not the existence of the record.
How absence of a record be proven?
A written statement signed by the officer having custody of an official
record or by his deputy. The written statement is accompanied by a
certificate that such officer has the custody of official records.
The written statement must contain:
a) There has been a diligent search of the record ;
b) that despite diligent search, no record or entry of a specified
tenor is found to exist in the records of his office.
Last Wills and Testaments
Last wills and testaments must undergo an authentication process even
if they are notarized in accordance with Art. 806 of the Civil Code. Also,
the law provides that no will shall pass either real or personal property
unless proved and allowed in the proper court (Art. 838, Civil Code).
This rule is also echoed in Sec. 1,Rule 75 of the Rules of Court.
Section 1, RULE 75. Allowance of will necessary. Conclusive as to
execution. No will shall pass either real or personal estate unless it is
proved and allowed in the proper court. Subject to the right of appeal,
such allowance of the will shall be conclusive as to its due execution.
Explaining alterations in a document
Section 31. The party producing a document as genuine which has
been altered and appears to have been altered after its execution, in a
part material to the question in dispute, must account for the alteration.
He may show that the alteration was made by another, without his
concurrence, or was made with the consent of the parties affected by it,
or was otherwise properly or innocent made, or that the alteration did
not change the meaning or language of the instrument. If he fails to do
that, the document shall not be admissible in evidence.
When a party produce a document as genuine but bears alteration after
its execution, he must account for any alteration found in the document.
For such purpose, he may show any of the following:
a) that the alteration was made by another without his
concurrence; or
b) that the alteration was made with the consent of the parties
affected by it;
c) that the alteration was otherwise properly or innocently made;
or that the alteration did not in any way change the meaning
or language of the instrument. Failure to do any of the above
will make the document inadmissible in evidence.
35| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Proof of Documents in an Unofficial Language
Section 33
Documents written in an unofficial language shall not be admitted as
evidence, unless accompanied with a translation into English or Filipino.
To avoid interruption of proceedings, parties or their attorneys are
directed to have such translation prepared before trial
The rule is clear, a document written in an unofficial language must be
accompanied by a translation into English or Filipino.
Impeachment of Judicial Record
Section 29. Any judicial record may be impeached by evidence of:
a. want of jurisdiction in the court or judicial officer,
b. collusion between the parties, or
c. fraud in the party offering the record, in respect to the
proceedings.
Judicial Record
It refers to the record of judicial proceedings, official entries or files or
the official acts of a judicial officer and the judgment of the court.
Registration of Contracts
In order for certain contracts to be valid it must be registered in a public
instrument when the law requires.
Examples:
a. Contracts which have for their object the creation,
transmission, modification or extinguishment of real rights
over immovable property must appear in a public instrument
(Art. 1358, Civil Code)
b. A donation of an immovable (Art. 749, ibid)
c. A donation of a movable with a value exceeding five thousand
pesos
d. (Art. 748, ibid)
e. A partnership where immovable property or real rights are
contributed (Art. 1771, ibid.)
Foreign Judgments; divorces
Before a foreign judgment is given presumptive evidentiary value, it
must be presented and admitted in evidence.
The best evidence of the divorce is the decree itself, the judgment. It
must refer to a written act of an official body of the foreign country.
Divorce decree can be proven as a public or official record of a foreign
country under Sec. 24 and Sec. 25 of Rule 132
1. An official publication thereof; or
2. By a copy of the document attested by the officer having
legal custody of the record or by the attestation of his deputy;
If the record is not kept in the Philippines, the attestation must be:
a. accompanied by a certificate that such officer has the
custody; if the office in which the record is kept is in a
foreign country, the certificate maybe made by a
secretary of the embassy or legation, consul general,
consul, vice-consul, or consular agent or by any officer
in the foreign service of the Philippines stationed in the
foreign country in which the record is kept, and
b. authenticated by the sea0l of his office. (Vda. De
Catalan v Catalan-Lee, 2012
Church Registries (BAR 2011)
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Llemos v. Llemos
Church registries of births, marriages and deaths made subsequent to
the promulgation of General Orders No. 68, promulgated on December
18, 1889, and the passage of Act No. 190, enacted on August 7, 1901,
are no longer public writings, nor are they kept by duly authorized public
officials. They are private writings and their authenticity must therefore
be proved, as are all other private writings in accordance with the Rules
of Evidence.
TESTIMONIAL EVIDENCE
Testimonial or Oral Evidence
It is evidence elicited from the mouth of a witness as distinguished from
real and documentary evidence. It is also called as viva voce evidence
which means living voice or by word of mouth. In this evidence, a
human being is called to the stand, is asked questions, and answers the
questions asked of him. He is called the witness.
Competent witness means evidence that is not excluded by law or by
rules. As applied to a witness, competence means that the witness is
qualified to take a stand and testify. It means that he is fit or he is
eligible to testify on a particular matter in a judicial proceeding.
If a witness cannot perceive or even if he can perceive he cannot
remember what he has perceived, he is incompetent to testify. If he has
no personal knowledge of an event the truth of which he wants to prove,
he is also incompetent to testify. Competence of a witness therefore,
refers to his personal qualifications to testify. Competence also includes
the absence of any factor that would disqualify him from being a witness.
The presentation and introduction of every kind of evidence needs the
intervention of a witness. It is a legal truth that identification precedes
authentication. Being inanimate, a document or an object cannot speak
for itself.
Presumption
A person who takes the stand as a witness is presumed to be qualified
to testify. A party who desires to question the competence of a witness
must do so by making an objection as soon as the facts tending to show
incompetency are apparent.
QUALIFICATIONS OF A WITNESS
Sec. 20, Rule 130, ROC. Witnesses; their qualifications. Except as
provided in the next succeeding section, all persons who can perceive,
and perceiving, can make their known perception to others, may be
witnesses.
Religious or political belief, interest in the outcome of the case, or
conviction of a crime unless otherwise provided by law, shall not be
ground for disqualification.
QUALIFICATIONS OF A WITNESS
1. He must take either an oath or an affirmation (Section 1, Rule
132, ROC);
2. He can perceive;
3. In perceiving, he can make known his perception to others;
and
4. He must not possess the disqualifications imposed by law or
the rules.
36| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Taking of oath or affirmation
Section 1, Rule 132, ROC. Examination to be done in open court.
The examination of witnesses presented in a trial or hearing shall be
done in open court, and under oath or affirmation. Unless the witness is
incapacitated to speak, or the questions calls for a different mode of
answer, the answers of the witness shall be given orally.
The willingness to take an oath or affirmation is an essential qualification
of a witness. No court would and should allow the testimony of someone
who desires to testify but who refuses to swear or to make an
affirmation.
A person is not qualified to be a witness if he is incapable of
understanding the duty to tell the truth. An oath or affirmation is
necessary for the witness to recognize the duty to tell the truth. It
signifies that he is swearing to the Creator to tell the truth and nothing
but the truth and that if he does not, he will later on answer for all the
lies he is guilty of.
The issue which a judge must resolve before a witness is allowed to take
the stand is whether the witness understands the nature of the oath,
realizes the moral duty to tell the truth, and understands the prospects
of being punished for a falsehood. This understanding is not necessarily
inferred from the age of the witness. People v. Berry ruled that it is not
required that the understanding of the importance of an oath be a
detailed one.
Whether or not the witness is capable of understanding the duty to tell
the truth is an issue of fact that must be addressed through judicial
determination.
Ability to Perceive
Section 36, Rule 130. Testimony generally confined to personal
knowledge; hearsay excluded. A witness can testify only to those facts
which he knows of his personal knowledge; that is, which are derived
from his own perception, except as otherwise provided in these rules.
A witness must be able to perceive an event. It would be absurd to ask
a blind man what he saw, or of a deaf person what he heard. The
witness must also have personal knowledge of the facts surrounding the
subject matter of his testimony. Otherwise, he lacks the competence to
testify.
Ability to make known the perception to others
FACTORS INVOLVING THE ABILITY TO MAKE KNOWN THE
PERCEPTION OF THE WITNESS TO THE COURT?
1. Ability to remember what has been perceived; and
2. The ability to communicate the remembered perception.
People v. Tuangco
Deaf-mutes are not necessarily incompetent as witnesses. They are
competent where they can:
1. Understand and appreciate the sanctity of an oath;
2. Comprehend facts they are going to testify to; and
3. Can communicate their ideas through a qualified interpreter.
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Competency and Credibility
Competency of a witness has reference to the basic qualifications of a
witness as his capacity to perceive and communicate his perception to
others. It also includes the absence of any of the disqualifications
imposed upon a witness. Credibility of a witness refers to the
believability of a witness and has nothing to do with law or the rules. It
refers to the weight and trustworthiness or reliability of the testimony.
(Bar 2004)
Notes:
1. Prevaricating witness or one who has contradicting testimony is still
a competent witness. Although his testimony may not be given
much weight by the court or no weight at all if the court deems him
not worthy of belief.
2. Bias is not a basis for declaring a witness incompetent.
3. The DMS rule is directed to the issue of competency of a witness,
not to his credibility.
4. Drug abuse will not render a person incompetent to testify.
GR: The findings of the trial courts on the credibility of witnesses
deserve a high degree of respect and will not be disturbed.
XPN: When the trial court had overlooked, misunderstood, or
misapplied some facts or circumstances of weight and substance which
could reverse a judgment of conviction.
Reason for the general rule:
The trial courts had observed the witnesses deportment and manner of
testifying, the furtive glance, blush of conscious shame, hesitation,
flippant or sneering tone, calmness, sigh, or the scant or full realization
of an oathall of these are useful aids for an accurate determination of
a witness honesty and sincerity.
OTHER FACTORS THAT DO NOT AFFECT THE COMPETENCY OF
WITNESS:
Sec. 20 of Rule 130:
1. Religious or
2. political belief,
3. interest in the outcome of the case, or
4. conviction of a crime unless otherwise provided by law
Conviction of a crime unless otherwise provided by law,
example.
Those who have been convicted of falsification of a document, perjury
or false testimony are disqualified from being witnesses at a will (Art.
821, NCC). As a consequence, these persons may not also testify as
witnesses in the probate of a will where the subject of the testimony is
the very fact of execution of the will in their presence.
Notes:
1. Relationship of a witness with a party does not render him,
ipso facto, biased. (Northwest Airlines v. Chiong, 2008)
Suggested answer in Bar 1994 also discussed that this may
fall under #3 of Section 20, Rule 130.
2. Previous conviction for perjury is not a ground for
disqualification as it is not provided in the law.
Disqualification of a Witness
Section 21, Rule 130, ROC. Disqualification by reason of mental
incapacity or immaturity. The following persons cannot be witnesses:
(a)Those whose mental condition, at the time of their production for
examination, is such that they are incapable of intelligently making
known their perception to others; (b)Children whose mental maturity is
such as to render them incapable of perceiving the facts respecting
which they are examined and of relating them truthfully.
37| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
DISQUALIFICATIONS
1. Mental incapacity
2. Immaturity
3. Death
4. Marital Disqualification
5. Privileged Communication
Mental Incapacity
Requisites:
a. The person must be incapable of intelligently making known
their perception to other; and
b. His incapacity must exist at the time of his production for
examination.
Important: Mental incapacity at the time of the perception of the
events subject of the testimony does not affect his competency. This
would however, concededly, affect his credibility.
Immaturity
Requisites:
a. Mental maturity of the witness must render him incapable of
perceiving the facts respecting which he is examined;
b. He is incapable of relating his perception truthfully.
c. Immaturity must exist at the time he perceives the event
including his incapability to relate his perceptions truthfully.
Child witness, definition.
Any person who at the time of giving testimony is below the age of 18
years old (Sec. 4 [a], Rule on Examination of a Child Witness, A.M. No.
004-07-SC).
A person over 18 years of age may be considered a child if he is found
by the court as unable to fully take care of himself or protect himself
from abuse, neglect, cruelty, exploitation or discrimination because of
physical or mental disability or condition (Sec. 4 [a], Rule on Examination
of a Child Witness, A.M. No. 004-07-SC).
COMPETENCY OF A CHILD WITNESS
Every child is presumed qualified to be a witness and the burden of proof
to rebut this is upon the party challenging the childs competence. (Sec.
6, Rule on Examination of a Child Witness, A.M. No. 004-07-SC.)
Note: When the court finds that substantial doubt exists regarding the
ability of the child to perceive, remember, communicate, distinguish
truth from falsehood, or appreciate the duty to tell the truth in court,
the court shall conduct a competency examination of a child motu propio
or on motion of a party.
Important: Proof of necessity of a competency examination must be
presented and grounded on reasons other than age as it is not a
sufficient basis for a competency examination.
The examination is not open to the public and may only be attended by
the following:
1. The judge and necessary court personnel
2. The counsel for the parties
3. The guardian ad litem
4. One or more support persons for the child
5. The defendant, unless the court determines the competence
can be fully evaluated in his absence.
Who shall conduct the competency examination of a child?
Only the judge. If counsels of the parties desire to ask questions, they
cannot do so directly. They are allowed to submit questions to the judge
which he may ask the child in his discretion.
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Nature of the questions asked
They shall be appropriate to the age and developmental level of the
child. The questions shall not be related to the issues at the trial but
shall focus on the ability of the child to remember, to communicate, to
distinguish between truth and falsehood and to appreciate the duty to
testify truthfully (Sec. 6, [e] Rule on Examination of a Child Witness,
A.M. No.
004-07-SC).
Note: The assessment is designed to be a continuing one.
Bar Question: When may the court order that the testimony of
a child be taken by live-link television?
If there is a substantial likelihood that the child would suffer trauma from
testifying in the presence of the accused, his counsel or the prosecutor
as the case may be.
Nature of trauma required.
Such that would impair the completeness or truthfulness of the
testimony of the child.
Dead Mans Statute
Section 23.Disqualification by reason of death or insanity of adverse
party. Parties or assignor of parties to a case, or persons in whose
behalf a case is prosecuted, against an executor or administrator or
other representative of a deceased person, or against a person of
unsound mind, upon a claim or demand against the estate of such
deceased person or against such person of unsound mind, cannot testify
as to any matter of fact occurring before the death of such deceased
person or before such person became of unsound mind.
Where does this rule apply?
1. Civil case over the estate of a deceased or insane person
2. Special proceeding over the estate of a deceased or insane
person
Elements:
1. The defendant in the case is the executor or administrator or
other representative of a deceased person, or against a
person of unsound mind,
2. The suit is upon a claim or demand against the estate of such
deceased person or against such person of unsound mind
3. The witness is the plaintiff or an assignor of that party, or a
person in whose behalf the case is prosecuted
4. The subject of the testimony is as to any matter of fact
occurring before the death of such deceased person or before
such person became of unsound mind.
What is the purpose of this rule?
To level the playing field between the lucky survivor and the poor
deceased, the law-makers devised a rule that would seal the lips of the
survivor by declaring him incompetent to testify on the transaction
between him and the deceased. The rule does not protect the survivor
even at the risk of not paying a just and valid claim because it is the
survivor who has the stronger reason to file a false claim. The rule is for
the protection of the guy who died (Tan v. CA, 2013).
How will the rule be applied?
1. Determine first who the parties are. The plaintiff is the person
who has a claim against the estate of the decedent or the
person of unsound mind.
The defendant is the executor or administrator or other
representative of a deceased person, or against a person of
unsound mind.
38| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
The rule will not apply if the plaintiff is the executor or
administrator or other representative of a deceased person or
of unsound mind.
2. The rule contemplates a suit against the estate and not
against the executor or administrator.
3. When a counterclaim set up by the executor or administrator
of the estate, the case is removed from the operation of the
dead mans statute.
4. The rule does not apply when the action brought is not
against the estate or not upon a claim or demand against the
estate.
Nature of the case involved
It is a civil case, not criminal because the estate itself cannot be
criminally liable.
Parties, Assignor of parties, or persons in whose behalf a case
is prosecuted
These are the persons who had previous dealings with the deceased or
the person of unsound mind. It does not prohibit a testimony by a mere
witness to the transaction.
Thus, offering a disinterested witness is not a transgression of the rule
since the prohibition extends only to the party or his assignor or the
person in whose behalf the case is prosecuted.
Matters involved in DMS
On any matter of fact occurring before the death of such deceased
person or before such person became of unsound mind. Hence, if the
subject of the testimony is on some other matter, the witness may testify
on such matter as when the subject of the testimony is on a fact which
transpired after the death of such person.
Important: The DMS does not operate to close the mouth of a witness
as to any matter of fact coming to his knowledge in any other way than
through personal dealings with the deceased person, or communication
made by the deceased to the witness.
Note: A testimony favorable to the estate or to the insane person is not
barred since the rule is designed to protect the interest of the estate or
to the insane person.
WAIVER
The rule may be waived by:
a. Failing to object to the testimony
b. Cross-examining the witness on the prohibited testimony
(Santos v. Santos, 366 SCRA 395)
c. Offering evidence to rebut the testimony.
Rianos comment: The rule raises legitimate questions on the justness
of the rule. In trying to avoid fictitious claims against the estate, it
ignores the rights of persons with legitimate claims and protects those
whose lips are sealed because of a transaction conducted without any
third person as witness or any other evidence to prove the claim.
Bar 2007: (T/F) The surviving parties rule bars Maria from
testifying for the claimant as to what the deceased Jose has
said to her, in a claim filed by Pedro against the estate of Jose.
False. The rule bars only a party plaintiff or his assignor or a person in
whose behalf a case is prosecuted. Maria is merely a witness and is not
one of those enumerated as barred from testifying.
Marital Disqualification Rule
Sec. 22, Rule 130, ROC. Disqualification by reason of marriage.
During their marriage, neither the husband nor the wife may testify for
or against the other without the consent of the affected spouse, except
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in a civil case by one against the other, or in a criminal case for a crime
committed by one against the other or the latter's direct descendants or
ascendants.
What is the purpose of this rule?
It is based on the societys intent to preserve the marriage relations and
promote domestic peace. A spouse testifying against the other creates
an ugly sight inimical to societys interests. It is intended to discourage
the commission of perjury.
Alvarez v. Ramirez
1. There is identity of interests between the husband and wife;
2. If one were to testify for or against the other, there is a
consequent danger of perjury;
3. The policy of law is to guard the security and confidences of
private life, even at the risk of an occasional failure of justice,
and to prevent domestic disunion and unhappiness; and
4. Where there is want of domestic tranquility there is danger of
punishing one spouse through the hostile testimony of the
other.
Scope of the rule
The rule forbids each spouse to testify for or against the other without
the consent of the affected spouse except in cases authorized by the
rule. The prohibition extends not only to a testimony adverse to the
spouse but also in favor. It also extends both criminal and civil cases
because the rule does not distinguish.
Notes:
1. It is essential that they be validly married. It requires not only a
valid marriage but the existence of that valid marriage at the
moment the witness-spouse gives the testimony. This rule does
not apply to an illicit cohabitation.
2. The prohibited testimony is one that is given or offered during the
existence of the marriage. Thus, it no longer applies after the
marriage is dissolved.
3. It does not matter if the facts subject of the testimony occurred or
came to the knowledge of the witness before the marriage. The
affected spouse may still invoke the rule by objecting to the
testimony as long as the testimony is offered during the marriage.
4. The testimony is admissible where no objection is interposed by
the spouse who has the right to invoke the prohibition. Hence it
may be waived, expressly or impliedly.
5. The rule applies whether or not the witness spouse is a party to
the case but the affected spouse must be a party is evident from
the phrasing of the law.
6. The rule also covers production of documents (State v. Bramlet).
EXCEPTIONS TO THE MARITAL DISQUALIFICATION RULE
1. in a civil case by one against the other, or
2. in a criminal case for a crime committed by one against the
other or the latter's direct descendants or ascendants
Note: The phrase or the latters direct descendants or ascendants did
not appear in the old rules.
Ordoo v. Daquigan, 62 SCRA 270
The court allowed the wife to testify against her husband who was
accused of raping her daughter. Accordingly, The better rule is that,
when an offense directly attacks or directly and vitally impairs the
conjugal relations, it comes with the exception to the statute. The rule
that the injury must amount to physical wrong upon the person is too
narrow.
Rule regarding a spouse testimony in a civil case
39| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
It contemplates of a situation where one spouse is a plaintiff or a
petitioner and the other spouse is a defendant or respondent; or
Note: When civil case is between a spouse and the direct ascendants or
descendants of the other, the marital disqualification rule still applies. In
other words, it does not fall under the exception.
Rule regarding a spouse testimony in a criminal case
The privilege of one to testify against the other is not confined to crimes
committed by one against the other, but covers crimes committed by
one against the direct descendants or ascendants of the latter such as
the child or the parents. Crimes against other relatives are not covered.
Note: When a crime was committed against the wifes stepson, the wife
may testify as he is a direct descendant of wife. He need not be a
descendant of the affected spouse, the husband.
TESTIMONY WHERE SPOUSE IS ACCUSED WITH OTHERS
The disqualification is between the husband and the wife. The rule does
not preclude the wife from testifying when it involves other parties or
accused. Hence, the wife could testify in a murder case against brothers
who were jointly tried with the husband, but her testimony in reference
to her husband must be disregarded upon timely objection. The court
stressed that the testimony cannot be used against the husband directly
or through the guise of taking judicial notice of the proceedings in the
murder case without violating the marital privilege. What cannot be
done directly cannot be done indirectly. (People v. Quidato)
TESTIMONY BY THE ESTRANGED SPOUSE
When the marital and domestic relations are so strained that there is no
more harmony to be preserved nor peace and tranquility which may be
disturbed, the reason based on such harmony and tranquility fails. In
such case, identity of interests disappears and the consequent danger
of perjury based on the identity is non-existent. Likewise, in such a
situation, the security and confidences of private life, which the law aims
at protecting, will be nothing but ideals, which through their absence,
merely leave a void in the unhappy home. (Alvarez v. Ramirez, 2005;
People v. Castaeda)
Privileged Communication
1. Marital Privileged Communication
2. Attorney- Client Communication
3. Physician- Patient Communication
4. Priest- Penitent Communication
5. Public Officers Communication
Marital Privileged Communication
Sec. 24, Rule 130. Disqualification by reason of privileged
communication. The following persons cannot testify as to matters
learned in confidence in the following cases:
(a)The husband or the wife, during or after the marriage, cannot be
examined without the consent of the other as to any communication
received in confidence by one from the other during the marriage except
in a civil case by one against the other, or in a criminal case for a crime
committed by one against the other or the latter's direct descendants or
ascendants;
Bar 2010: There are two independent codal provisions which cover
marital disqualifications:
a. Disqualification by reason of marriage (Section 22, Rule 130)
b. Disqualification by reason of marital privileged communication
(Section 24 a, Rule 130)
Requisites:
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1. There must be a valid marriage between the husband and wife.

2. There is a communication received in confidence by one from the Marital Privileged Marital Disqualification Rule
other. Communication Rule Section 22
3. The confidential communication was received during the marriage. Section 24(a)

Zulueta v. CA
Applies only to testimonies of a Includes facts, occurrences or
The law insures absolute freedom of communication between the confidential nature received by information even prior to the
spouses by making it privileged. Neither may be examined without the
one spouse from the other marriage unlike Section 24(a)
consent of the other as to any communication received in confidence by during the marriage and which applies only to
one from the other during the marriage, save for specified exceptions. obviously does not include acts confidential information during
merely observed by one spouse the marriage.
Since the application of the rule requires confidential information unless such acts are intended as
received by one spouse from the other during the marriage, information a means of conveying
acquired by a spouse before the marriage even if received confidentially Section 22 is broader because it
communication by one to the
will not fall squarely with Section 24(a) but divulging the same may be prevents testimony for or
other.
objected to under Marital Disqualification Rule (Section 22 of Rule 130). against the spouse on any fact
The tenor of Section 22 does not distinguish as to when the information and not merely disclosure of
subject of the testimony was acquired and thus, may cover matters confidential information.
which occurred or adverse information acquired prior to the marriage. It
is sufficient that the witness-spouse testifies during the marriage. It is The spouse affected by the Can no longer be invoked once
unlike Section 22(a) which requires that the confidential information be disclosure of the information or marriage is dissolved. It may be
received during the marriage. testimony may object even after asserted only during the
the dissolution of the marriage. marriage.
Note: Section 22 (a) is clear: confidential information received from a The privilege does not cease
third person is not covered by the privilege. just because the marriage has
ended.
CONFIDENTIAL COMMUNICATION
Requires that the spouse for or
For the information to be confidential, it must be made during and by Applies regardless of whether against whom the testimony is
reason of the marital relations and is intended not to be shared with
the spouses are parties or not. offered is a party to the action.
others. Otherwise, it is not confidential. Communications in private
between husband and wife are presumed to be confidential.
Prohibits examination of a Prohibits testimony for or
But if a third person is present with the knowledge of the communicating spouse as to matters received in against the other.
spouse, this stretches the web of confidence beyond the marital pair, confidence by one from the
and the communication is unprivileged. If the children are present this other during the marriage.
also deprives the conversation of protection unless the children are too
young to understand what is said. BAR 1995: Suppose the legal wife of Basilio sued for legal separation on
sexual infidelity in view of Basilios love affair with Narita who is now
Yet, this may be waived by failure of the claimant to object timely to its dead. At the trial, the legal husband of Narita was called by Basilios wife
presentation or by any conduct that may be construed as implied to testify that Narita confided to him in confidence that Narita had a child
consent (Lacurom v. Jacoba, A.C. No. 5921). with Basilio. As counsel for Basilio, can you validly object the
presentation of Allan as witness for the plaintiff?
May the court admit the testimony and affidavits of the wife
against her husband in the criminal case involving child U.P Law Center: Yes. I would validly object to the presentation of Allan
prostitution? as a witness on the ground that the communication of Narita was a
If the testimony and affidavit are evidence of the case against her privileged communication which could be invoked during or after her
husband for child prostitution involving her daughter, the evidences are marriage with Allan.
admissible. The marital privileged communication rule under Sec. 24 of
Rule 130 and the marital disqualification rule under Sec. 22 of the same Rianos comment: The testimony cannot be validly objected on the
rule do not apply to and cannot be invoked in a criminal case committed basis of the marital privileged communication as Basilio does not own
by a spouse against the direct descendants of the other. (Ordono v. the privilege. The prerogative to object to a confidential communication
Daquigan). between the spouses is vested upon the spouse themselves, particularly
the communicating spouse, not a third person.
DISTINCTION BETWEEN MARITAL DISQUALIFICATION RULE
AND MARITAL PRIVILEGED COMMUNICATION RULE Attorney- Client Privilege

Sec. 24(a) has reference to confidential communications received by one

spouse from the other during the marriage. Sec.22 does not refer to
confidential communication between spouses. It will not come into play
when the fact pattern in a problem makes reference to confidential
communications between husband and wife during the marriage. Sec.
24(a) will instead apply.
Yet, communications that are not intended to be confidential because
they were uttered in the presence of third parties are not deemed
confidential even when made during the marriage, but Sec. 22 could
apply instead of Sec. 24 (a) when used as parts of a testimony for or
against the party-spouse.
Sec. 24 (b). An attorney cannot, without the consent of his client, be
examined as to any communication made by the client to him, or his
advice given thereon in the course of, or with a view to, professional
employment, nor can an attorney's secretary, stenographer, or clerk be
examined, without the consent of the client and his employer,
concerning any fact the knowledge of which has been acquired in such
capacity.
Requisites:
1. There must be a communication made by the client to his attorney
or an advice given by the attorney to his client;
2. The communication or advice must be given in confidence; and

40| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW

EVIDENCE|RIANO NOTES | For the exclusive use of EH404 2016-2017
3. The communication or advice must have been given either in the
course of the professional employment or with a view to
professional employment.
Does the rule require a perfected relationship?
No. Also, the communication between the attorney and client no longer
need to be in the course of an actual professional employment. It is
enough that the communication or advice be with a view to
professional employment. Thus, privilege is extended to
communications made for the purpose of securing the services of
counsel even if the counsel later refuses the professional relationship.
This includes preliminary negotiations within the privilege.
The relationship between the attorney and the client is said to exist
where a person employs the professional services of an attorney or
seeks professional guidance, even though the lawyer declines to handle
the case (Kier v. State).
The privilege is predicated upon the clients belief that he is consulting
a lawyer in that capacity and has manifested his intention to seek
professional legal advice. There is authority to support the theory that it
is enough if he reasonably believes that the person consulted is a lawyer
although in fact he is not, as in the case of a detective pretending to be
a lawyer. (People v. Barker)
For the privilege to exist, payment of a fee is not essential. (United
States v. Landorf)
US v. Tedder
Where a person consults an attorney not as a lawyer but merely as a
friend, or a participant in a business transaction, the consultation would
not be one made in the course of a professional employment or with a
view to professional employment would not be within the ambit of the
privilege.
The privilege is also not confined to communications regarding actual
pending cases. It may refer to anticipated litigations or may not refer to
any litigation at all. It is sufficient that the statements have been made
in the course of legitimate professional relationship between the
Attorney and the client.
The communication may be oral or written but it also extends to other
forms of conduct like physical demonstration as long as they are
intended to be confidential. Furthermore, the communication is not
deemed lacking in confidentiality solely because the communication is
transmitted by facsimile, cellular telephone, or other electronic means.
Privilege does not extend to communications where (1) the clients
purpose is the furtherance of a future intended crime or fraud or (2) for
the purpose of committing a crime or a tort or (3) or those made in
furtherance of an illicit activity.
However, the discussion of the communications in confidence with the
lawyer after the crime has been committed may still be privileged even
though the earlier ones were not.
Does the privilege preclude inquiries into the fact that the
lawyer was consulted?
The rule is that an inquiry into the fact of consultation or employment is
not privileged. Even the identity of the client and the lawyer is not
privileged. However, under the last link doctrine, non-privileged
information, such as the identity of the client, is protected if the
revelation of such information would necessarily reveal privileged
information.
The statements of the client need not be made to the attorney in person.
Those made to the attorneys secretary, clerk, stenographer for
transmission to the attorney for the purpose of the professional
relationship, or with a view to such relationship, or those knowledge
acquired by such employees in such capacity are covered by the
41| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
privilege. Thus, these persons cannot be examined as to the
communication made by the client or the advice given by the attorney
without the clients consent and their employers consent.
Statements of the client and advice of the attorney should be intended
to be confidential. Confidentiality is the essence of the privilege. Matters
communicated to the attorney are evidently not intended to be
confidential when they were made to the lawyer but in the presence of
third persons who neither stand in a position of peculiar confidence to
the client nor are not agents of the attorney. Here, the intention of
secrecy does not appear. In the case of persons overhearing without the
knowledge of the client, it seems that the more reasonable view is one
which would protect the client against disclosure unless he has failed to
use ordinary precautions against overhearing.
Does the privilege apply in suits between the attorney and client? When
the attorney and client become embroiled in a controversy between
themselves (i.e. payment of attorneys fees, damages against attorneys
negligence, etc.) the privilege is removed from the attorneys lips. This
is only applicable when the suit is made to apply only where the suit is
between the attorney and his client.
The privilege is owned by the client. It is only he who can invoke the
privilege. Every communication arising from the professional relationship
cannot be disclosed without his consent. If the client waives the
privilege, no one, including the attorney, can invoke it. A client waives
his privilege when he is asked on cross examination regarding the
communication with his attorney and reveals the same or when he fails
to object to his attorneys testimony on the communication.
The protection of the privilege will generally survive the death of the
client. However, there had been cases where the privilege was not made
to apply in cases involving the validity or interpretation of the clients
will. Where there is an attack on the validity of the will, communications
made to the attorney on the drawing of the will, while confidential during
the lifetime of the client, are not intended to require secrecy after his
death.
A lawyer is bound to comply with Canon 21 of the Code of
Professional Responsibility which provides that a lawyer shall
preserve the confidences and secrets of his client even after the
attorney-client relationship is terminated. The relation of an attorney
and his client is one of trust and confidence of the highest degree.
Mercado vs. Vitriolo:
In engaging the services of an attorney, the client reposes on him special
powers of trust and confidence. Their relationship is strictly personal and
highly confidential and fiduciary.
The hypothesis is that abstinence from seeking legal advice in a good
cause is an evil which is fatal to the administration of justice. Thus, the
preservation and protection of that relation will encourage a client to
entrust his legal problems to an attorney, which is of paramount
importance to the administration of justice. One rule adopted to serve
this purpose is the attorney-client privilege: an attorney is to keep
inviolate his client's secrets or confidence and not to abuse them.
Thus, the duty of a lawyer to preserve his client's secrets and confidence
outlasts the termination of the attorney-client relationship, and
continues even after the client's death.
Now, we go to the rule on attorney-client privilege. Dean Wigmore cites
the factors essential to establish the existence of the privilege, viz:
(1) Where legal advice of any kind is sought
(2) from a professional legal adviser in his capacity as such,
(3) the communications relating to that purpose,
(4) made in confidence
(5) by the client,
(6) are at his instance permanently protected
EVIDENCE|RIANO NOTES | For the exclusive use of EH404 2016-2017
(7) from disclosure by himself or by the legal advisor,
(8) except the protection be waived
In fine, the factors are as follows:
(1) There exists an attorney-client relationship, or a
prospective attorney-client relationship, and it is by reason of
this relationship that the client made the communication.
Matters disclosed by a prospective client to a lawyer are protected by
the rule on privileged communication even if the prospective client does
not thereafter retain the lawyer or the latter declines the employment.
The reason for this is to make the prospective client free to discuss
whatever he wishes with the lawyer without fear that what he tells the
lawyer will be divulged or used against him, and for the lawyer to be
equally free to obtain information from the prospective client.
On the other hand, a communication from a (prospective) client to a
lawyer for some purpose other than on account of the (prospective)
attorney-client relation is not privileged. Instructive is the case of
Pfleider v. Palanca, where the client and his wife leased to their
attorney a 1,328-hectare agricultural land for a period of ten years. In
their contract, the parties agreed, among others, that a specified portion
of the lease rentals would be paid to the client-lessors, and the
remainder would be delivered by counsel-lessee to client's listed
creditors. The client alleged that the list of creditors which he had
"confidentially" supplied counsel for the purpose of carrying out the
terms of payment contained in the lease contract was disclosed by
counsel, in violation of their lawyer-client relation, to parties whose
interests are adverse to those of the client. As the client himself,
however, states, in the execution of the terms of the aforesaid lease
contract between the parties, he furnished counsel with the
"confidential" list of his creditors. We ruled that this indicates that client
delivered the list of his creditors to counsel not because of the
professional relation then existing between them, but on account of the
lease agreement. We then held that a violation of the confidence that
accompanied the delivery of that list would partake more of a private
and civil wrong than of a breach of the fidelity owing from a lawyer to
his client.
(2) The client made the communication in confidence.
The mere relation of attorney and client does not raise a presumption
of confidentiality. The client must intend the communication to be
confidential.
A confidential communication refers to information transmitted by
voluntary act of disclosure between attorney and client in confidence
and by means which, so far as the client is aware, discloses the
information to no third person other than one reasonably necessary for
the transmission of the information or the accomplishment of the
purpose for which it was given.
Our jurisprudence on the matter rests on quiescent ground. Thus, a
compromise agreement prepared by a lawyer pursuant to the instruction
of his client and delivered to the opposing party, an offer and counter-
offer for settlement, or a document given by a client to his counsel not
in his professional capacity, are not privileged communications, the
element of confidentiality not being present.
(3) The legal advice must be sought from the attorney in his
professional capacity.
The communication made by a client to his attorney must not be
intended for mere information, but for the purpose of seeking legal
advice from his attorney as to his rights or obligations. The
communication must have been transmitted by a client to his attorney
for the purpose of seeking legal advice.
42| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
If the client seeks an accounting service, or business or personal
assistance, and not legal advice, the privilege does not attach to a
communication disclosed for such purpose.
Bar Question: A tugboat owned by Speedy Port Service, Inc. (SPS)
sank in Manila Bay while helping tow another vessel, drowning five (5)
of the crew in the resulting shipwreck. At the maritime board inquiry,
the four (4) survivors testified. SPS engaged Atty. Ely to defend it against
potential claims and to sue the company owning the other vessel for
damages to the tug. Ely obtained signed statements from the survivors.
He also interviewed other persons, in some instance making
memoranda. The heirs of the five (5) victims filed an action for damages
against SPS.
Plaintiffs' counsel sent written interrogatories to Ely, asking whether
statements of witnesses were obtained; if written, copies were to be
furnished; if oral, the exact provisions were to be set forth in detail. Ely
refused to comply, arguing that the documents and information asked
are privileged communication. Is the contention tenable? Explain.
Suggested Answer:
The contention is not tenable. The documents and information sought
to be disclosed are not privileged. They are evidentiary matters which
will eventually be disclosed during the trial. What is privileged, under
Section 24(b) of Rule 130, is (a) the communication made by the client
to the attorney, or (b) the advice given by the attorney in the course of,
or with the view to professional employment. The information sought is
neither a communication by the client to the attorney nor an advice by
the attorney to his client.
Physician-Patient Privilege
Section 24, Rule 130. Disqualification by reason of privileged
communication. The following persons cannot testify as to matters
learned in confidence in the following cases:
(c) A person authorized to practice medicine, surgery or obstetrics
cannot in a civil case, without the consent of the patient, be examined
as to any advice or treatment given by him or any information which he
may have acquired in attending such patient in a professional capacity,
which information was necessary to enable him to act in capacity, and
which would blacken the reputation of the patient;
The privilege applies only to civil cases whether the patient is a party or
not.
The privilege cannot be claimed in a criminal case presumably because
the interest of the public in criminal prosecution should be deemed more
important than the secrecy of the communication.
The rationale behind this privilege is to encourage the patient to freely
disclose all the matters which may aid in the diagnosis in the treatment
of a disease or an injury. This privilege protects the interest of the
patient. Thus, it is the patient who holds this privilege.
The person against whom the privilege is claimed is a person duly
authorized to practice medicine, surgery or obstetrics.
The information, which cannot be disclosed, refers to:
a) Any advice given to the client
b) Any treatment given to the client
c) Any information acquired in attending such patient provided
that the advice, treatment, or information was made or
acquired in a professional capacity and was necessary to
enable him to act in that capacity;
d) The information sought to be disclosed would tend to blacken
the reputation of the patient.
Also, the rule does not require that the relationship between the
physician and the patient be a result of a contractual relationship. It
EVIDENCE|RIANO NOTES | For the exclusive use of EH404 2016-2017
could be the result of a quasi-contractual relationship as when the
patient is seriously ill and the physician treats him even if he is not in a
condition to give his consent as in the situation described in Art. 2167
of the Civil Code.
It is necessary that the physician is acting in his professional capacity
and that the advice or treatment is given or acquired in such capacity.
The physician may be said to be acting in a professional capacity when
he attends to the patient for either curative or preventive treatment.
Hence, the results of autopsies may not be covered under this privilege
as they are not intended for treatment.
The privilege does not apply to:
a) Autopsies
b) Shield the commission of a crime or when the purpose is an
unlawful one as to obtain narcotics or prohibited drugs in
violation of the law
c) Having ones appearance disguised by cosmetic or plastic
surgery to escape apprehension
All these cases are deemed outside the coverage of the privilege
because the purpose is not for treatment or prevention of any disease
or injury.
Death does not permit the living to impair the deceaseds name by
disclosing communications held confidential by the law or any
communication that would tend to blacken the reputation of the patient
even after his death.
The patient may expressly or impliedly waive the privilege. The waiver
may be made by a contract (i.e. life or medical insurance), or by
disclosure by the patient of the information or when the patient answers
questions on matters which are supposedly privileged on cross-
examination. The waiver could also be by operation of law or the Rules.
Under Rule 28 of the Rules of Court (ROC), the court in which the
action is pending may, in its discretion, order a party to submit physical
or mental examination. This happens when the mental or physical
condition of a party is in dispute. The party examined may request a
report of the examination and by doing so, he waives any privilege.
Bar Question: C is the child of H and W. H sued his wife for judicial
declaration of nullity of marriage under Art. 36 of the Family Code. In
the trial, the following testified over the objection W: C, H and D, a
doctor of medicine who used to treat W. Rule on Ws objection.
Suggested Answer:
(c) D cannot testify against her because of the doctrine of privileged
communication where the subject of the testimony is the advice or
treatment given by him or any information which he may acquire in
attending to W in his professional capacity.
Priest/Minister-Penitent Privilege
Section 24, Rule 130. Disqualification by reason of privileged
communication. The following persons cannot testify as to matters
learned in confidence in the following cases:
(d) A minister or priest cannot, without the consent of the person
making the confession, be examined as to any confession
made to or any advice given by him in his professional
character in the course of discipline enjoined by the church to
which the minister or priest belongs;
The person making the confession holds the privilege, and the priest or
minister hearing the confession in his professional capacity is prohibited
from making a disclosure of the confession without the consent of the
person confessing.
43| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
The privilege also extends not only to a confession made by the penitent
but also to any advice given by the minister or the priest. The confession
and the advice must be made or given pursuant to the course of
discipline of the denomination or sect to which the minister or priest
belongs. Thus, the minister or priest must be duly ordained or
consecrated by his sect.
Not every communication made to a minister or priest is privileged. The
communication must be made pursuant to confessions of sins and the
advice given as a result of the confession must be made in the ministers
professional character or his spiritual capacity.
Privileged Communications to Public Officers
Section 24, Rule 130. Disqualification by reason of privileged
communication. The following persons cannot testify as to matters
learned in confidence in the following cases:
e. A public officer cannot be examined during his term of office
or afterwards, as to communications made to him in official
confidence, when the court finds that the public interest would
suffer by the disclosure. (21a)
Under the above rule, communications made to a public officer in official
confidence are privileged when the court finds that the disclosure would
adversely affect the public interest. Hence, the disclosure or non-
disclosure depends on the determination by a competent court and not
on the officer. The privilege may be invoked not only during the term
of office of the public officer but also afterwards.
National security matters and State secretes are confidential and a court
will most likely uphold the privilege. There is also authority supporting
the theory that the protection must be given to the identity of individuals
who provide information to the government.
The privilege has been described as the power of the government to
withhold information from the public, the court and the Congress.
Almonte vs. Vasquez:
The court acknowledged certain types of information which the
government may withhold from the public like military, diplomatic and
national security secrets.
Chavez vs. PCGG and Chavez vs. Public Estates Authority:
There is a privilege against disclosure on certain matters involving state
secrets regarding:
a. Military
b. Diplomatic
c. Other national security matters
d. Information on investigations of crimes by law enforcement
agencies before the prosecution of the accused
e. Presidential conversations, correspondences, and discussions in
closed-door cabinet meetings.
Senate of the Philippine vs. Ermita:
This case involved the constitutionality of EO 464 issued by the President
of the Philippines for the purpose of Ensuring Observance of the
Principle of Separation of Powers, Adherence to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing in
Legislative Inquiries in Aid of Legislation under the Constitution, and for
Other Purposes.
The order was issued at the height of the Senate Investigations on the
North Rail Project and allegations of fraud in the 2004 elections involving
the controversial taped conversations between the President and a
former Comelec Commissioner.
EO 464 considered the executive privilege to cover all confidential and
classified information between the President and the public officers
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enumerated in the executive order. It required that all public officials
enumerated above shall secure consent of the President prior to
appearing before either the House of Congress to give effect to the
purpose of the executive order.
Relying on EO 464, various government officials failed to appear in
Senate hearings.
The Court, in resolving the issues, gave recognition to the power of
inquiry of congress in aid of legislation. It held that matters which may
be a proper subject of legislation and investigation are one and because
the operation of government could be a subject of legislation, it could
also be a subject of investigation.
The Court also noted that EO 464 cover persons which is a misuse of
the doctrine because the privilege is to be properly invoked only in
relation to specific categories of information and not to categories of
persons.
When Congress exercises its powers of inquiry, the department heads
are not exempt by the mere fact that they are department heads. Only
one executive official may be exempted from the power of inquiry of
Congress The President.
The requirement to secure presidential consent under Sec. 1 of EO 464
is limited only to appearances in the question hour, and is valid on its
face. However, the court declared this section as not applicable to
appearances of department heads in inquiries in aid of legislation and
Congress is not bound to respect the refusal of the department heads in
such inquiry, unless a valid claim of privilege is subsequently made by
the President or by the Executive Secretary.
If the executive branch wants to claim the privilege, it must formally
assert the same and state the reasons for the claim. For the court,
Congress has the right to know why the executive considers the
requested information privileged. The Philippine Constitution recognizes
the right of the people to information on matters of public concern and
guarantees access to official records, documents, and papers pertaining
to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, subject to such
limitations as may be provided by the law.
WHAT MATTERS ARE TO BE DISCLOSED IN RELATION TO THE RIGHT
INFORMATION ON MATTERS OF PUBLIC POLICY CONCERN
Akbayan vs. Aquino
Petitioners sought a petition for mandamus and prohibition to obtain
from respondents, the full text of the Japan-Philippine Economic
Partnership Agreement (JPEPA), information which the government
previously refused to disclose. The petitioners assert their right to
information on matters of public concern while the respondents assert
that diplomatic negotiations are covered by the doctrine of executive
privilege. Here, the petitioners counter-argued that diplomatic
negotiations are entitled to a reasonable amount of confidentiality as not
to jeopardize the diplomatic process but are confidential only at a certain
stages of the negotiating process after which such information must be
revealed to the public.
The Court reiterated that what it held in previous cases that the
information on inter-government exchanges prior to the conclusion of
treaties and executive agreements may be subject to reasonable
safeguards for the sake of national interest. The Court held that while
the final text if the JPEPA may not be left confidential but the offers
exchanged by the parties during the negotiations continue to be
privileged, even after the JPEPA is published. Disclosing these exchanges
could impair the ability of the Philippines to deal with Japan and other
foreign governments as well.
Information does not cover recognized exceptions like privileged
information, military and diplomatic secrets and matters involving
44| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
national interest. The matters under these exceptions cannot be
disclosed even if they constitute definite propositions. Petitioners need
to sufficiently show the existence of a public interest sufficient to
overcome the privilege. They must show that the information is vital,
not simply for the satisfaction of curiosity, but for its ability to effectively
and reasonable participate in social, political and economic decision-
making.
Neri vs. Senate Committee on Accountability of Pubic Officers
and Investigations
Neri, then director of NEDA, was said to have discussed with the
President of the Philippines regarding the ZTE-NBN deal. Neri testified
on the ZTE-NBN contract and the bribe offers in connection with the
deal. When asked on the details of the matters he discussed with the
President after he divulged to the latter the bribe officers, petitioner
declined to disclose the details of their conversation invoking the
privileged nature of the conversation on three questions:
1) Whether the President followed uo the NBN project;
2) Whether Neri was dictated upon to follow up the project;
3) Whether the President said to go ahead and approve the
project being told of the alleged bribe.
The Court, started with the premise recognizing the power of Congress
to conduct inquiries in aid of legislation. The only way for them to be
exempted from the compulsory process of Congressional subpoena is
through a valid claim of executive privilege. The Court declared that the
three questions are covered by the presidential communication privilege.
The court enumerated the following elements of the presidential
communications privilege:
a) The protected communication must related to a quintessential
and non-delegable presidential power.
b) The communication must be authored or solicited and
received by a close adviser of the President or the President
himself.
The advisor must be in operational proximity with the
President.
c) The presidential communications privilege remains a qualified
privilege that may be overcome by a showing of adequate
need, such that the information sought likely contains
important evidence and by the unavailability if the
information elsewhere by an appropriate investigating
authority.
The Court then concluded that the communications between the
petitioner and the President fall within the privilege based on the
following reasons:
a) The communications relate to a quintessential and non-
delegable power of the president (i.e. power to enter in an
executive agreement with other countries)
b) The communications are received by a close advisor of the
president
c) There is no adequate showing of a compelling need that
would justify the limitation of the privilege and of the
unavailability of the information elsewhere by appropriate
investigating authority.
The Court also declared that the need for evidence in a pending criminal
trial outweighs the Presidents generalized interest in confidentiality.
The right of Congress to obtain information in aid of legislation cannot
be equated with the peoples right to public information.
The Neri case reiterated the rule that for the claim of executive privilege
to be invoked, there must be a formal claim of the privilege, lodged by
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the head of the department which has control of the matter, and that a
formal and proper claim of the privilege requires a precise and certain
reason for preserving confidentiality, but Congress must not require the
executive to state the reasons for the claim with such particularity as to
compel the disclosure of the information which the privilege is meant to
protect. This is a matter of respect for a coordinate and co-equal
department.
Privileged Communications in Electronic Evidence
Privileged communications apply even to electronic evidence. Under
Section3, Rule 3 of the Rules on Electronic Evidence (REE), the
confidential character of a privileged communication is not lost solely on
the ground that it is in the form of an electronic document.
Parental and Filial Privilege
Section 25, Rule 130. Parental and filial privilege. No person may
be compelled to testify against his parents, other direct ascendants,
children or other direct descendants.
The two privileges are embodied under Section 25, Rule 130, namely:
1. Parental privilege rule (PPR)
A parent cannot be compelled to testify against his child or
other direct descendants.
2. Filial privilege rule (FPR)
A child may not be compelled to testify against his parents,
or other direct ascendants.
A person may however testify against his parents or children voluntarily
but if he refuses to do so, the rule protects him from any compulsion.
This rule applies to both civil and criminal cases.
Bar Question: C is the child of H and W. H sued his wife for judicial
declaration of nullity of marriage under Art. 36 of the Family Code. In
the trial, the following testified over the objection W: C, H and D, a
doctor of medicine who used to treat W. Rule on Ws objection.
Suggested Answer:
(b) C cannot testify against her because of the doctrine on parental
privilege. W cannot invoke the privilege that belongs to the child. C may
testify if he wants to although he may not be compelled to do so.
In criminal cases, the Family Code of the Philippines lays down, as a
general rule, a policy substantially the same as Section 25, Rule 130
ROC. The Family Code states that no descendant shall be compelled, in
a criminal case, to testify against his parents and grandparents. The
Code provides for exceptions:
a) When such testimony is indispensable in a crime committed
against such descendant, or
b) In a crime committed by ones parent against the other. //
Art. 215, Family Code:
Art. 215. No descendant shall be compelled, in a criminal case, to testify
against his parents and grandparents, except when such testimony is
indispensable in a crime against the descendant or by one parent against
the other.
45| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Other Privileged Communication
There are other privileged matters not mentioned in Rule 130. Among
them are the following:
a) Editors may not be compelled to disclose the source of
published news;
b) Voters may not be compelled to disclose for whom they voted
c) Trade secrets
d) Information contained in tax census returns;
e) Bank deposits
f) Information and statements made at conciliation proceedings
shall be treated as confidential (Labor Code)
g) Institutions covered by the law and its officers and employees
who communicate a suspicious transaction to the Anti-Money
Laundering Council are barred from disclosing the fact of such
report, that such report was made and other related
information.
EXAMINATION OF WITNESSES
Section 1, Rule 132, ROC provides for the examination of the witness
in open court and unless the question calls for a different mode, the
answer of the witness shall be given orally. This method allows the court
the opportunity to observe the demeanor of the witness and also allows
the adverse party to cross-examine the witness.
There are testimonies, which need not be given in open court. Under
the Rule on Summary Procedure, the affidavits of the parties shall
constitute the direct testimonies of the witnesses who executed the
same. In civil cases, parties are required to submit the affidavits of their
witnesses and other pieces of evidence on the factual issues, together
with their position papers. Likewise, depositions need not be taken in
open court.
In a criminal case, either party may utilize the testimony of a witness
who is deceased, out of the country, or unavailable, or unable to testify
despite the exercise of due diligence, even if the testimony was one used
in another case or proceeding, judicial or administrative, provided that
said proceedings involved the same parties and subject matter and that
the adverse party had the opportunity to cross-examine the witness.
Under the Judicial Affidavit Rule, judicial affidavit shall take the place of
direct testimonies of witnesses.
OATH OR AFFIRMATION
The witness must take either an oath or an affirmation. This option is
given to the witness and not the court.
An oath an outward pledge made under an immediate sense of
responsibility to God or a solemn appeal to a Supreme Being in
attestation of the truth of some statement.
An affirmation a substitute for an oath and is a solemn and formal
declaration that the witness will tell the truth.
Where the witness refuses to take an oath or give any affirmation, the
testimony may be barred. The rule requiring oath or affirmation is
satisfied when the court takes pains to impress on the witness the need
to testify truthfully and the witness says he would. It is an abuse of
discretion to refuse to allow the accused to testify pursuant to an oath,
which he had drafted, by which he swore to testify honestly.
The examination of witnesses presented in a trial or hearing shall be
done in open court and under oath or affirmation. The answers of the
witness shall be given orally except:
a) Witness is incapacitated to speak
b) Question calls for a different mode of answer
EVIDENCE|RIANO NOTES | For the exclusive use of EH404 2016-2017
Bar Question: After the accused himself had testified in his defense in
a murder case, the trial judge, over the objection of the fiscal, allowed
the defense counsel to file and merely submit the affidavits of the other
witnesses of the accused in lieu of their direct testimony but subject still
to cross-examination by the prosecution. The fiscal thus filed with the
Supreme Court a petition for certiorari and prohibition to nullify the order
of the trial judge allowing such a procedure. Should the petition be
granted?
Suggested Answer:
The petition should be granted. The provisions of the ROC require that
the examination of the witnesses shall be done in open court and their
answer be give orally, not in writing unless the exceptions mentioned
therein apply: (a) witness is incapacitated to speak and (b) question calls
for a different mode of answer. None of the exceptions apply to the case
under consideration. The court therefore, acted in excess of jurisdiction
amounting to lack of jurisdiction when it allowed the presentation of the
affidavits without an oral examination of the witnesses. //
The questions propounded to a witness and his answers thereto,
statements made by the judge, statements of any of the parties and
their counsels shall be recorded by shorthand, stenotype or any other
means of recording found suitable by the court.
The official stenographer, stenotypist or recorder shall make a transcript
of the record of the proceedings and shall be certified by him as correct.
The transcript shall be deemed prima facie a correct statement of such
proceedings.
RIGHTS AND OBLIGATIONS OF A WITNESS
As a rule, the witness has an obligation to answer questions, although
his answer may tend to establish a claim against him.
There are also questions which he is not bound to answer. The witness
has certain rights such as:
a) Not to give an answer which will tend to subject him to a
penalty for an offense unless otherwise provided by law;
1. The right of a person against self-incrimination
b) To be protected from irrelevant, improper, or insulting
questions, and from harsh or insulting demeanor;
c) Not to be examined except only as to matters pertinent to the
issue
d) Not to be detained longer than the interest of justice requires
e) Not to give an answer which will tend to degrade his
reputation, unless it be the very fact at issue or to a fact from
which the fact in issue would be presumed
Under RA 6981, a witness admitted into the witness protection program
cannot refuse to testify or give evidence or produce books, documents
or records or writings necessary for the prosecution of the offense or
offenses for which he has been admitted on the ground of the right
against self-incrimination.
Bar Question: Under Republic Act No. 8353, one may be charged with
and found guilty of qualified rape if he knew on or before the commission
of the crime that he is afflicted with Human Immuno-Deficiency Virus
(HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other
sexually transmissible disease and the virus or disease is transmitted to
the victim.
Under Section 17(a) of Republic Act No. 8504 the court may compel the
accused to submit himself to a blood test where blood samples would
be extracted from his veins to determine whether he has HIV.
a) Are the rights of the accused to be presumed innocent of the crime
charged, to privacy, and against self-incrimination violated by such
compulsory testing? Explain.
46| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Suggested Answer:
The rights of the accused are not violated by such testing. There is no
testimonial compulsion involved by extracting blood from the accused
for testing purposes. There is hence, no violation of the right to privacy
and the right to be presumed innocent.
Bar Question: At scene of a heinous crime, the police recovered a
mans shorts with blood stains and strands of hair. Shortly afterwards, a
warrant was issued and the police arrested the suspect, AA. During his
detention, a medical technician extracted blood sample from his finger
and cut a strand from his hair, despite AAs objections,
During the trial, the prosecution sought to introduce DNA evidence
against AA, based on forensic matching of the materials found at the
crime scene and AAs hair and blood samples. AAs counsel objected,
claiming that such DNA evidence is inadmissible because the materials
taken from AA were in violation of his constitutional rights against self-
incrimination as well as his privacy and personal integrity. Should the
DNA evidence be admitted or not?
Suggested Answer:
The DNA evidence should be admitted. The right against self-
incrimination applies only to testimonial evidence. Extracting blood
sample and cutting strands of hair do not involve testimonial
compulsions but purely mechanical acts.
Bar Question: A was accused of having raped X. Rule on the
admissibility of the following pieces of evidence:
2) a pair of short pants allegedly left by A at the crime scene which the
court, over the objection of A, required him to put on and when he did,
it fit him well.
Suggested Answer:
The pair of short pants may be considered as circumstantial evidence
when taken with other circumstances. No valid objection may be
interposed over the order of the court to put on the short pants. The
right against self-incrimination does not apply to a physical and
mechanical act. It applies only to testimonial compulsion which is not
the case under the facts.
The witness also has the right against self-incrimination, a witness
likewise has the right against being degraded. This refers to his right not
to give an answer that will degrade him. However, if the answer is
degrading to his reputation, he must answer the question if the
degrading answer:
a) Is the very fact in issue
b) Refers to fact from which the fact in issue would be presumed
The witness however, must answer must answer to the fact of his
previous final conviction for an offense.
I the witness is the accused, he may totally refuse to take the stand. A
mere witness cannot altogether refuse to take the stand. Before he
refuses to answer, he must wait for the incriminating question. Counsel
must also always come to the aid of his witness being subjected to
intimidation, harassment, and embarrassment. Such are objectionable
and a timely objection should be raised.
EXAMINATION OF A CHILD WITNESS
Examination of a child witness shall be done in open court. The answer
of the witness shall be given orally unless the witness is incapacitated to
speak or the question calls for a different mode of answer. The
examination does not refer to the competency examination of the child
but to a situation where the child is already testifying in court. Under
Section 6(c), only specified persons are allowed to attend the
competency examination of the child and is obviously not an open court
examination.
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When the child is testifying, the court may exclude the public and
persons who do not have a direct interest in the case, including members
of the press. The order shall be made if the court determines on the
record that to testify in open court would cause psychological harm to
him, hinder the ascertainment of truth, or result in his inability to
effectively communicate due to embarrassment, fear or timidity. The
court my also motu proprio exclude the public from the courtroom if the
evidence to be produced during trial is of an offensive character to
decency or public morals. The court may also, on motion of the accused,
exclude the public from trial except court person and the counsel of the
parties. The court may order that persons attending the trial shall not
enter or leave the courtroom during the testimony of the child.
When a child does not understand the English or Filipino language or is
unable to communicate, an interpreter ay be appointed by the court,
motu proprio or upon motion, to interpret for the child. Being another
witness in the same case or a member of the family of the child js not
in itself a disqualification. If the witness is also an interpreter, he shall
testify ahead of the child.
If the court determines that the child is unable to understand or respond
to questions asked, the court may motu proprio or upon motion, appoint
a facilitator. The facilitator may be a child psychologist, psychiatrist,
social worker, guidance counselor, teacher, religious leader, parent, or
relative.
e) Agents of investigating law enforcement agencies
f) Other persons as determined by the court
Whoever publishes or causes to be published in any format the name,
addresses, telephone number, school or other identifying information of
a child who is or is alleged to be a victim or accused of a crime or a
witness thereof, or an immediate family of the child shall be liable to the
contempt power of the court.
Where a youthful offender has been charged before any city or provincial
prosecutor or any municipal judge and the charges have been dropped,
all the records of the case shall be considered as privileged and may not
be disclosed directly or indirectly to anyone for any purpose whatsoever.
If he is charged and acquitted or the case is dismissed, the records are
also privileged.
The youthful offender, who fails to acknowledge the case against him or
to recite any fact related thereto in response to any inquiry made to him
for any purpose, shall not be held under any provision of law to be guilty
of perjury or of concealment or misrepresentation.
KINDS OF EXAMINATIONS
1. Direct Examination

A child testifying at a judicial proceeding or making a deposition shall
have the right to be accompanied by one or two persons of his own
choosing to provide him with emotional support. The support person
may even hold the hand of the child or provide other means of emotional
support to the child in the course of the proceedings but the court shall
instruct the support person not to prompt or sway or influence the child
during his testimony. The support person may be another witness but
the court shall disqualify him if it could be sufficiently established that
the attendance of such support person would pose a substantial risk of
influencing or affecting the content of the testimony of the child.
An application may be made for the testimony of the child to be taken
in a room outside the courtroom and be televised to the courtroom by
live-link television (LLTV). The application may be made by the
prosecutor, the counsel or guardian ad litem at least 5 days before the
trial date.
The examination-in-chief of a witness by the party presenting him
on the facts relevant to the issue. It is a procedure for obtaining
information from ones own witness in an orderly fashion. The
purpose is to elicit facts about the clients cause of action or
defense. This examination is now subject to the Judicial Affidavit
Rule.
2. Cross-Examination
The examination of the witness by the adverse party after said
witness has given his testimony on direct examination. As a rule,
the scope of the cross-examination is not confined to the matters
stated by the witness in the direct examination. The rule thus
allows questions designed to test the accuracy and truthfulness of
the witness, his freedom from interest or bias and to elicit all
important facts bearing upon the issue.

The court may order that the testimony of the child be taken by LLTV if
there is a substantial likelihood that the child would suffer trauma from
testifying in the presence of the accused, his counsel or the prosecutor.
The trauma should be of a kind which would impair the completeness or
truthfulness of the testimony of the child.
If the child is testifying by LLTV and it is necessary to identify the
accused at trial, the court may allow the child to enter the courtroom for
the limited purpose of identifying the accused, or the court may allow
the child to identify the accused by observing his image on the TV
monitor.
The testimony of the child shall be preserved on video tape, digital disc,
or other similar devices which shall be made part of the court record and
subject to a protective order.
To shield the child form the accused, the court may allow the child to
testify in such manner that the child cannot see the accused by testifying
through one-way mirrors and other devices.
3.
Reports regarding a child shall be confidential and kept under seal.
Except upon written request and order of the court, a record shall only
be released to the following:
a) Member of the Court staff for administrative use
b) Prosecuting attorney
c) Defense counsel
d) Guardian ad litem
a. Exception: where the witness is an unwilling or hostile
witness as so declared by the court, he may be cross-
examined only as to the subject matter of his
examination-in-chief. The same scope is imposed upon
the cross-examiner where the witness examined is an
accused because he is subject to cross-examination on
matters covered by the direct examination.
Cross-Examination has 2 basic purposes:
a. To bring out facts favorable to the counsels client not
established by the direct testimony
b. To enable counsel to impeach or to impair the credibility
of the witness
Why questions are not asked by the lawyers in cross
examinations as they allow the witness to explain their side or
position.
Re-direct Examination
Conducted after the cross examination of the witness. The party
who called the witness on direct examination may re-examine the
same witness to explain or supplement his answers given during
the cross-examination. It is done after cross-examination. The
counsel may elicit testimony to correct or repel any wrong
impression or inferences that may have been created in the cross-

47| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW

EVIDENCE|RIANO NOTES | For the exclusive use of EH404 2016-2017
examination. It may also be an opportunity to rehabilitate a witness
whose credibility has been damaged. In its discretion, the court
may even allow questions on matters not touched in the cross-
examination.
4. Re-cross Examination
This is conducted upon the conclusion of the re-direct examination.
The adverse party may question the witness on matters stated in
his re-direct examination and also on such matters as may be
allowed by the court in its discretion.
If the witness dies before his cross-examination is over, his testimony
on the direct may be stricken out only with respect to the testimony not
covered by the cross examination. The absence of the witness is not
enough to warrant striking out his testimony for failure to appear for
further cross-examination where the witness has already been
sufficiently cross-examined, and the matter on which the cross-
examination is sought is not in controversy.
If the witness was not cross-examined because of causes attributable to
the cross-examining party and the witness had always made himself
available for cross-examination, the direct testimony of the witness shall
remain in the record and cannot be ordered stricken off because the
cross-examiner is deemed to have waived the right to cross-examine the
witness.
If a witness has been examined by both sides, the witness cannot be
recalled without leave of court. Recalling a witness is a matter of
judicial discretion. The court shall, in its discretion, be guided by the
interest of justice.
Leading question
One that is framed in such a way that the question indicates to the
witness the answer desired by the party asking the question. Leading
questions are not appropriate in direct and re-direct examinations
especially when the witness is asked to testify about a major element of
the cause of action or defense. On the other hand, they are employed
in cross and re-cross examinations. They enable the counsel to get the
witness to agree with his clients version of the facts.
However, leading questions are allowed in a direct examination in the
ff. instances:
a) On preliminary matters
b) When the witness is ignorant, or a child of tender years, or
feeble-minded or a deaf-mute and there is difficulty in getting
direct and intelligible answers from such witness
c) When the witness is a hostile witness
d) When the witness is an adverse party or an officer, director,
or managing agent of a corporation, partnership or
association which is an adverse party.
As to a child witness, Section 20, Rule on Examination of a Child
Witness (which modified Section 10, Rule 132 ROC) states that the
Court may allow leading questions in all stages of examination of a child
under the condition that the same will further the interest of justice.
Thus, a leading question may be asked of a child only if there is difficulty
of eliciting from said child a direct and intelligible answer.
(For illustrations on leading questions, please refer to Rianos book,
pages 372-373).
Misleading Question
One which assumes as true a fact not yet testified to by the witness, or
contrary to that which he has previously stated. It is not allowed in any
type of examination.
(For an illustration on misleading questions, please refer to Rianos book,
pages 373).
48| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
IMPEACHMENT OF A WITNESS
A technique employed as part of the cross-examination to discredit a
witness by attacking his credibility. Destroying credibility is vital because
it is linked with a witness ability and willingness to tell the truth.
The rule enumerates certain guideposts in impeaching a witness:
a) The impeachment of a witness is to be done by the party
against whom the witness is called.
b) Subject to certain exceptions, the party producing the witness
is barred from impeaching his own witness. It is the adverse
party who holds the privilege of impeaching the witness.
c) However, if a witness is unwilling or hostile, the party calling
him may be allowed by the court to impeach the witness.
Whether or not a witness is hostile, is addressed to judicial
evaluation and the declaration shall be made only if the court
is satisfied that the witness possesses an interest adverse to
the party calling him or there is adequate showing that the
reluctance of the witness is unjustified or that he misled the
party into calling him as a witness. A party may also be
allowed to impeach his own witness when said witness is an
adverse party or is an officer, director, or managing agent of
a corporation, partnership or association which is an adverse
party.
d) It is improper for the party calling the witness to present
evidence of the good character of his own witness. However,
the same is allowed only if the character of the witness has
been impeached. Thus, evidence of the good character of the
witness is allowed only to rebut the evidence offered to
impeach the witness character. If he has been impeached,
then he can be rehabilitated by evidence of his good
character.
Sec. 11, Rule 132. Impeachment of adverse partys witness. A
witness may be impeached by the party against whom he was called, by
contradictory evidence, by evidence that his general reputation for truth,
honesty, or integrity is bad, or by evidence that he has made at other
times statements inconsistent with his present testimony, but not by
evidence of particular wrongful acts, except that it may be shown by the
examination of the witness, or the record of the judgment, that he has
been convicted of an offense.
How to impeach a witness
Under the Rules of Court, a witness may be impeached through the
following modes:
a) By contradictory evidence;
b) By evidence that his general reputation for truth, honesty or
integrity is bad; or
c) By evidence that he has made other times statements
inconsistent with his present testimony
Note: A witness cannot be impeached by evidence of particular
wrongful acts except evidence of his final conviction of an offense as
disclosed by his examination or the record of the judgment.
Important: An unwilling or hostile witness so declared by the court or
the witness who is an adverse party cannot be impeached by evidence
of his bad character (Sec. 12, ibid.).
Impeachment by contradictory evidence
One basic rule is the observance of fairness.
Note: Fairness demands that the impeaching matter be raised in the
cross-examination of the witness sought to be impeached by allowing
him to admit or deny a matter to be used as the basis for impeachment
by contradictory evidence.
EVIDENCE|RIANO NOTES | For the exclusive use of EH404 2016-2017
Normally, the basis of this mode of impeachment is a declaration made
by the witness in his direct testimony. The cross-examiners intention is
to show to the court that there were allegations made by the witness
that do not correspond to the facts of the case.
To contradict conclusions made by an expert witness, the adverse party
may call another expert witness to testify to a contrary conclusion.
Impeachment by prior inconsistent statements
Prior inconsistent statements are statements made by a witness on an
earlier occasion which contradict the statements he makes during trial.
It is the most commonly used method because of its simplicity and the
impact it makes when properly used.
Sec. 13. How witness impeached by evidence of inconsistent
statements. Before a witness can be impeached by evidence that he
has made at other times statements inconsistent with his present
testimony, the statements must be related to him, with the
circumstances of the times and places and the persons present, and he
must be asked whether he made such statements, and if so, allowed to
explain them. If the statements be in writing, they must be shown to
the witness before any question is put to him concerning them.
Note: Laying the predicate is a preliminary requirement before the
impeachment process based on this ground prospers. The elements of
this foundation are:
a) The alleged statements must be related to the witness
including the circumstances of the times and the places and
the persons present. If the statements are in writing, they
must be shown to him; and
b) He must be asked whether he made such statements and also
to explain them if he admits making those statements.
Important: Non-compliance with the foundational elements for this
mode of impeachment will be a ground for an objection based on
improper impeachment. Over a timely objection, extrinsic evidence of
a prior inconsistent statement without the required foundation is not
admissible.
The mere presentation of the prior declarations of the witness without
the same having been raised to him while testifying in court is
insufficient for the desired impeachment of his testimony, if he was not
given the ample opportunity to explain the supposed discrepancy. This
rule is founded, not only upon common sense, but is essential to protect
the character of the witness. (PP v De Guzman)
If the witness admits the prior inconsistent statement, the rule requires
that he be allowed to explain them. If the witness denies making the
statement, it is imperative for the impeaching party to be prepared to
present another witness who would contradict the witness being
impeached.
Impeachment by showing bad reputation
When a witness testifies, he puts his credibility at issue because the
weight of his testimony depends upon his credibility. One way to impair
his credibility is by showing a nots so pleasing reputation.
Note: Not every aspect of a persons reputation may be the subject of
impeachment. Evidence of bad reputation for the purpose of
impeachment should refer only to the following specific aspects:
a) For truth;
b) For honesty; or
c) For integrity
He cannot be impeached for his reputation on other grounds (i.e. for
being troublesome and abrasive).
49| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
No impeachment by evidence of bad character but by bad
reputation
TN: Sec. 11 does not allow impeachment by evidence of bad character
but by bad reputation.
Character is made up of the things an individual actually is and does,
whereas reputation is what people think an individual is and what they
say about him. Hence. A persons reputation is not necessarily his
character and vice versa.
Evidence of good character of the witness
Note: The party calling a witness, cannot initiate proof of his good
character. Thus, if the plaintiff in a civil case presents Mr. W to testify
on a vehicular collision, the counsel is not allowed to ask questions
tending to show the good character or reputation of the witness. Any
question to that effect can be validly objected to as improper character
evidence.
Because a witness is presumed to be truthful and of good character, the
party presenting him does not have to prove he is a good one. It is only
after his character has been attacked, can he prove his being good.
Sec. 14. Evidence of good character of witness. Evidence of the
good character of a witness is not admissible until such character has
been impeached.
Important: The rule that bars evidence of good character of the
witness, who has not yet been impeached, refers only to a mere witness.
It does not refer to the accused in a criminal case.
In a criminal case, the accused may prove his good moral character
relevant to the offense charged even before his character is attacked
(Sec. 51[a][1]], ROC).
GR: No impeachment by evidence of particular wrongful acts
XPN: Prior conviction of an offense shown
a) By examination of the witness, or
b) By presenting the record of his conviction
Impeachment of the adverse party as a witness
Note: Under the rule permitting the impeachment of an adverse
witness, although the calling party does not vouch for the witness
veracity, he is nonetheless bound by his testimony if it is not
contradicted or remains unrebutted (Gaw v Chua). The fact remains that
it was at his instance that his adversary was put on the witness stand.
Unlike an ordinary witness, the calling party may impeach an adverse
witness in all respects as if he has been called by the adverse party,
except by evidence of his bad character.
Exclusion and separation of witnesses
1. The judge may exclude from the court a witness who, at the
time of exclusion, is not under examination so that he may
not hear the testimony of other witnesses (Sec. 15, Rule 132)
2. The judge may also cause the witnesses to be kept separate
and be prevented from conversing with one another until all
shall have been examined (Ibid.).
When the witness may refer to a memorandum
1. During his testimony, in order to refresh his memory, a
witness may refer to a memorandum or anything written or
recorded by himself, or written or recorded by someone acting
under his direction. Such memorandum should be written at
the time the fact occurred or immediately thereafter or at any
time when the event or fact was fresh in his memory. Also,
the memorandum must be produced and may be inspected
by the adverse party (Sec. 16, Rule 132).
2. The witness may testify from the memorandum, writing or
record, although he has no more recollection of the facts
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written therein as long as he swears that the memorandum, An admission by a party may be given in evidence against him (Sec.
writing or record correctly stated the fact or the transaction 26, Rue 130). This rule is based on the notion that no man would make
when the recording was made. This type of evidence must, any declaration against himself, unless it is true (Republic v Bautista).
however, be received with caution (Ibid.).
Note: Declarations of a party favorable to himself are not admissible as
ADMISSIONS, CONFESSIONS AND THE proof of the facts asserted because it would be self-serving evidence.
RES INTER ALIOS ACTA RULE
Classifications of admissions
(Sections 26- 35, Rule 130)
1. Express a positive statement or act
ADMISSION DISTINGUISHED FROM CONFESSION: Implied one which may be inferred from the declarations
Admission Confession or acts of a person
An act, declaration or omission Declaration of an accused
of a party as relevant to the fact acknowledging of his guilt of the Important: A confession cannot be implied. Sec. 33 of Rule
(Sec. 26, Rule 130) offense charged, or of any 130 refers to a confession as a declaration which connotes
offense necessarily included an affirmative statement from the person making the
Voluntary acknowledgment therein (Sec. 33, Rule 130) confession
made by a party of the
existence of the truth of certain A statement by the accused that 2. Judicial made in the course of a judicial proceeding
facts which are inconsistent he engaged in a conduct which Extrajudicial made out of court or even in a proceeding
with his claims in an action constitutes a crime (294A Am Jur other than the one under consideration (Perry v Simpson)
(Blacks Law Dictionary) 2d, Evidence 708)
Note: A confession may be also judicial or extrajudicial (29A
There is merely a statement of There is an acknowledgment of Am Jur 2d, 711).
fact not directly involving an guilt.
acknowledgment of guilt or 3. Adoptive occurs when a person manifests his assent to the
criminal intent to commit the statements of another person. The admission may be received
offense with which one is in evidence if it can be shown that a party adopted the
charged (Ladiana v PP). statement as his own (Fed. Evid.R. 801[d][2][B])

An admission, in a general A confession is a specific type of Adoptive Admissions

sense, includes confessions, the
former being a broader term.
May be implied like an
admission by silence
admission which refers only to
an acknowledgment of guilt.
Cannot be implied
It should be a direct and
positive acknowledgment of
guilt.
An adoptive admission is a partys reaction to a statement or action by
another person when it is reasonable to treat the partys reaction as an
admission of something stated or implied by the other person (Estrada
v Desierto). By adoptive admission, a third persons statement becomes
the admission of the party embracing or espousing it.

Adoptive admission may occur when a party;

Ladiana v PP a) Expressly agrees to or concurs in an oral statement made by
When a person declares in his counter-affidavit that he performed an another;
act like shooting the victim but he denies that he did so with criminal b) Hears a statement and later on essentially repeats it;
intent because the shooting was done in self-defense, the declaration is c) Utters an acceptance or builds upon the assertion of another
merely an admission and not a confession. d) Replies by way of rebuttal to some specific points raised by
another but ignores further points which he or she has heard
Admissions Distinguished from Declarations Against Interest the other make; or
e) Reads and subsequently signs a written statement made by
Admission Declaration Against Interest another (Republic v Kenrick Development Corporation)
Admissible in evidence even if To be admitted, the declarant
the person making such is alive must be dead or unable to Estrada v Desierto
and is in court testify (Sec. 38, Rule 130) Examples of adoptive admissions are the alleged admissions made by
President Estrada when his options dwindled when, according to the
Made at any time, even during Generally made before the Angara Diary, the armed forces withdrew its support from him as
trial controversy arises President and Commander-in-Chief. Thus, Executive Secretary Angara
had to allegedly ask Senate President Pimentel to advise petitioner to
consider the option of dignified exit or resignation. According to the
Admissible as long as it is Generally made against ones
Court, his silence on this and other related suggestions can be taken as
inconsistent with his present pecuniary or moral interest
adoptive admissions by him.
claim or defense and need not
be against ones pecuniary or
Besides, he had several opportunities, according to the Court, to object
moral interest
the admissibility of the diary, but did not do so seasonably. The Angara
Diary also contains direct statements of the President which could be
Admissible only against the Admissible even against third
categorized as admissions of a party like: (a) his proposal for a snap
party making the admission persons
election in which he would not participate; (b) his statement that he
would leave by Monday if the second envelope would be opened by
Admissible not as an exception An exception to the hearsay rule
Monday; and (c) statements like: Pagod na pagod na ako sa red tape,
to any rule
bureaucracy, intriga. I just want to clear my name, then I will go. These
words were taken by the Court as admissions indicative of his
Effects of admissions resignation from office.

50| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW

EVIDENCE|RIANO NOTES | For the exclusive use of EH404 2016-2017
Effect of extrajudicial confession of guilt; corpus delicti
Note: While a judicial confession may sustain a conviction, an
extrajudicial confession is not sufficient for conviction. The rule requires
that the confession be corroborated by evidence of corpus delicti (Sec.
3, Rule 233, Rules of Court).
Corpus delicti body of the crime or the offense; the substance of
the crime; the fact that a crime has actually been committed. Strictly
speaking, it means the actual commission of the crime and someone
criminally responsible therefor (PP v Stoll).
Two elements of corpus delicti:
1. Proof of the occurrence of a certain event
2. Some persons criminal responsibility for the act
Corpus delicti may be proved by circumstantial evidence but such proof
must be convincing and compatible with the nature of the case
(Underhill, Criminal Evidence, 37).
In prosecution involving narcotics, the narcotic substance itself
constitutes the corpus delicti of the offense and its existence is vital to
sustain a judgment of conviction beyond reasonable doubt (Fajardo v
PP).
Note: In its legal sense, corpus delicti does not refer to the ransom
money in the crime of kidnapping or the body of the person murdered
or, to the stolen items in theft.
In theft, corpus delicti has two elements, namely: (1) that the property
was lost by the owner, and (2) that it was lost by feloniously taking. It
may be proven by testimonial evidence and whatever documentary
evidence is on record (Zapanta v PP).
In the crime of illegal possession of firearms, the corpus delicti is the
accuseds lack of license or permit to possess or carry the firearm, as
possession itself is not prohibited by law (Sayco v PP).
Note: The Court ruled that it is not necessary to recover the body or
show where it can be found in a case of murder or homicide. There are
cases like death at sea, where the finding or recovery of the body is
impossible. It is enough that the death and criminal agency causing it
be proven.
To establish the corpus delicti by circumstantial evidence, facts are
admissible to show the impossibility of rescue, as at sea, the existence
and extent of wounds, and the deceaseds condition of health; and that
the wound was sufficient to cause death and that the party as reported
dead.
Example: Death is sufficiently shown by the testimony of a witness that
he saw the flash and heard the report, and that the deceased fell to the
ground, declaring that he was shot and that the accused shot him (PP v
Sasota).
Important: The rule on extrajudicial confession in the ROC must be
considered together with applicable constitutional and substantive laws
which must be complied with for the confession to be admissible.
Bar 2006: What are the requirements in order that an admission of
guilt of an accused during a custodial investigation be admitted in
evidence?
Suggested answer:
(1) Any extrajudicial confession made by a person arrested,
detained, or under custodial investigation shall be in writing
and signed by such person in the person of his counsel, or in
the latters absence, upon a valid waiver, and in the presence
of any of the parents, older brothers and sisters, his spouse,
51| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
the municipal mayor, the municipal judge, district school
supervisor, or priest or minister of the gospel chosen by him;
otherwise, such extrajudicial confession shall be inadmissible
as evidence in any proceeding (Sec. 2[d], RA 7438).
(2) The confession must be corroborated by evidence of corpus
delicti (Sec. 3, Rule 133, Rules of Court).
Bar 2008: The mutilated cadaver of a woman was discovered near a
creek. Due to witnesses attesting that he was the last person seen with
the woman when she was still alive, Carlito was arrested within five (5)
hours after the discovery of the cadaver and brought to the police
station. The crime laboratory determined that the woman had been
raped.
While in police custody, Carlito broke down in the presence of the
attesting counsel and orally confessed to the investigator that he had
raped and killed the woman, detailing the acts he had performed up to
his dumping of the body near the creek. He was genuinely remorseful.
During the trial, the state presented the investigator to testify on the
oral confession of Carlito. Is the oral confession admissible as evidence
of guilt?
Suggested answer:
The oral confession is not admissible as evidence of the guilt. The
confession is in the nature of an extrajudicial confession before an
investigator while under custodial investigation. Hence, the statutory
provisions under RA 7483 (Sec.2[d]) will have to be complied with.
Under said law, any extrajudicial confession made by a person arrested,
detained, or under custodial investigation shall be in writing and signed
by such person in the presence of his counsel. An oral confession does
not comply with the mandatory provisions of the law. Under RA 7438,
the confession is inadmissible in evidence in any proceeding (Sec. 2[d],
RA 7438).
Important: The above rights refer to an extrajudicial confession of a
person arrested, detained or is under custodial investigation because a
confession made by the accused before he is placed under custodial
investigation need not comply with the above.
PP v Cabiles
If the accused talks to a person in a private meeting with a municipal
mayor spontaneously, fully and voluntarily confessing to his commission
of a crime, the constitutional requirements in a custodial investigation
does not apply. When the accused talked to the mayor as a confidant
and not as a law enforcement officer, the uncounseled confession did
not violate his constitutional rights.
Constitutional procedures on custodial investigation do not apply to
spontaneous statements, not elicited through questioning by authorities,
but given in an ordinary manner whereby the accused orally admitted
having committed the crime. Hence, such confession is admissible in
evidence against him, even when he did so without the assistance of
counsel.
Custodial investigation one which involves any question initiated
by law enforcement officers after a person has been taken into custody
or otherwise deprived of his freedom of in any significant way.
Aquino v Paiste
It is only after the investigation ceases to be a general inquiry into an
unsolved crime and begins to focus on a particular suspect, the suspect
taken into custody, and the police carries out a process of interrogations
that lend itself to eliciting incriminating statements, that the rule begins
to operate.
Note: RA 7438 (Sec. 2[f]) has extended the meaning of custodial
investigation to include the practice of issuing an invitation to a person
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who is investigated in connection with an offense he is suspected to
have committed.
PP v Ador
Voluntary admissions made by the accused such as his possession of the
firearm used in the commission of a crime and the subsequent surrender
of the firearm at a time when he was already under custodial
investigation are not admissible against the accused. At the time the
admissions were made, the police had already begun to focus on the
accused and were carrying out the process of interrogations that was
lending itself to eliciting incriminating statements and evidence. The
investigation was thus, no longer a general inquiry into an unsolved
crime as the accused was already being held as a suspect for the alleged
killing of the victims. Consequently, the rights of a person under
custodial investigation, including the right to counsel, have already
attached in his favor. XXX A suspects confession, whether verbal or non-
verbal when taken without the assistance of counsel or without a valid
waiver of such assistance regardless of the absence of such coercion, or
the fact that it had been voluntarily give, is inadmissible in evidence,
even if such confession were gospel truth.
ADMISSION BY SILENCE
Sec. 32. Admission by silence. An act or declaration made in the
presence and within the hearing or observation of a party who does or
says nothing when the act or declaration is such as naturally to call for
action or comment if not true, and when proper and possible for him to
do so, may be given in evidence against him.
The idea of the rule on admission by silence is that if an accusation is
made, and a reasonable person would have denied the same if it were
false, the failure to deny the accusation by the person accused may be
construed as an implied admission of the truth of the accusation and
may be given in evidence against him.
Note: Not every silence is an implied admission. For silence to be
deemed an admission, it is necessary that:
a. he heard and understood the statement;
b. he was at liberty to make a denial;
c. the statement was about a matter affecting his rights or in
which he was interested and which naturally calls for a
response;
d. the facts where within his knowledge; and
e. the fact admitted from his silence is material to the issue (PP v
Paragsa).
Res inter alios acta; branches
Expression if fully expressed reads: res inter alios acta alteri noceri non
debet which literally means that things done between strangers ought
not to injure those who are not parties to them (Blacks Law Dictionary).
Two branches of res inter alias acta rule:
1. The rule that the rights of a party cannot be prejudiced
by an act, declaration, or omission of another (Sec. 28,
Rule 130).
2. The rule that evidence of previous conduct or similar acts
at one time is not admissible to prove that one did or did
not do the same act at another time (Sec. 34, Rule 130).
Sec. 28. Admission by third-party. The rights of a party cannot be
prejudiced by an act, declaration, or omission of another, except as
hereinafter provided.
Sec. 34. Similar acts as evidence. Evidence that one did or did
not do a certain thing at one time is not admissible to prove that he did
or did not do the same or a similar thing at another time; but it may be
52| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
received to prove a specific intent or knowledge, identity, plan, system,
scheme, habit, custom or usage, and the like.
Note: Under the first branch, the statement of X should not affect or
prejudice Y and Z. This rule has reference only to extrajudicial
declarations. Hence, statements made in open court by a witness
implicating persons, aside from his own judicial admissions, are
admissible as declarations from one who has personal knowledge of the
facts testified to.
Distinctions between extrajudicial and judicial admissions
Extrajudicial confessions Judicial confessions
May be given in evidence Admissible against the
against the confessant but not declarants co-accused since the
against his co-accused as they latter are afforded opportunity
are deprived of the opportunity to cross-examine him.
to cross-examine him.
Yapyuco v Sandiganbayan
An extrajudicial confession or admission od one accused is admissible
only against said accused, but is inadmissible against the other accused.
But if the declarant or admitter repeats in court his extrajudicial
admission, and the other accused is accorded the opportunity to cross-
examine the admitter, the admission is admissible against both accused
because then it is transposed into a judicial admission.
Bar 2003: X and Y were charged of murder. Upon application of the
prosecution, Y was discharged from the information to be utilized as a
state witness. The prosecution presented Y as a witness but forgot to
state the purpose of his testimony much less offer it in evidence. Y
testified that he and X conspired to kill the victim but it was X who
actually shot the victim. The testimony of Y was the only material
evidence establishing the guilt of X. Y was thoroughly cross-examined
by the defense counsel. After the prosecution rested its case, the
defense filed a motion for demurrer to evidence based on the ff.
grounds:
b. Ys testimony is not admissible against X pursuant to the rule
on res inter alios acta.
Rule on the motion for demurrer.
Suggested answer:
b. The demurrer should be denied. The reliance on the rule on
res inter alios acta is misplaced. The rule applies only to
extrajudicial declarations and not to statements made in open
court. Y testified as a witness and was in fact, cross-examined.
Exceptions to the res inter alios acta rule (first branch)
Basis: The person making the statement is under the same
circumstances as the person against whom it is offered.
1. Admission by a co-partner or agent (Sec. 29, Rule 130);
2. Admission by a co-conspirator (Sec. 30); and
3. Admission by privies (Sec. 31)
Admissions by a co-partner or agent
An agent performs some service in representation or in behalf of his
principal (Art. 1868. Civil Code). The agent, is in legal contemplation, a
mere extension of the principal and unless the agent acts in his own
name, the principal must comply with all the obligations which the agent
may have contracted within the scope of his authority (Arts. 1883,
1910).
Hence, whatever is said by the agent to a third person, during the course
of the agency and within the scope of his actual or apparent authority,
relative to the business contemplated by the agency, is for legal
purposes, also the statement of the principal and is therefore, admissible
against said principal.
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The relationship among partners is on the same footing with the
relationship of an agent and his principal. Under the law, every partner
is an agent of the partnership for the purpose of its business and the act
of the partner in carrying out the usual course of the business binds the
partnership as a rule. Hence, under the same principle governing an
agency, the declarations of a partner may be admissible against the
other partners or the partnership.
For the admission of a co-partner or agent to be admissible against the
other partners or the principal, the ff. must concur:
(a) The declaration or act of the partner or agent must have been
made or done within the scope of his authority;
(b) The declaration or act of the partner or agent must have been
made or done during the existence of the partnership or
agency (while the person making the declaration was still a
partner or an agent); and
(c) The existence of the partnership or agency is proven by
evidence other than the declaration or act of the partner or
agent (Sec. 29, Rule 130).
Note: The above rules also apply to the declarations or acts of joint
owner, joint debtor or other persons jointly interested with the party
(Ibid.).
Admissions by co-conspirator
A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it (Art. 8,
RPC). Once the conspiracy is proven, the act of one is the act of all. The
statement therefore, of one maybe admitted against the other co-
conspirators as an exception to the rule of res inter alios acta.
Situation: Assume that two months after a successful bank robbery, A
was arrested as a direct participant in the crime. During a television
interview, he admitted his participation in the robbery. He also
implicated B & C as his other companions in in planning and executing
the robbery. Is his statement admissible?
Answer: The statement is admissible as to him but not as to B & C.
To be admissible against co-conspirators, the ff. must concur:
(a) The declaration or act be made or done during the existence
of the conspiracy;
(b) The declaration or act must relate to the conspiracy; and
(c) The conspiracy must be shown by evidence other than such
declaration or act (Sec. 30, Rule 130).
Explanation: Observe that the declaration of A was made long after the
conspiracy was over. In fact, at the time of the declaration, A was no
longer a co-conspirator. Even assuming that the conspiracy can be
proven by independent evidence and even if his statement was related
to the conspiracy, the declaration is not admissible as an exception to
the rule of res inter alios acta.
Important: The arrest of the declarant is often found to terminate the
declarants participation in the conspiracy so that the declarants post-
arrest statements do not qualify as admissible co-conspirator statements
(29A Am Jur, Evidence, 840).
Incriminating declarations of co-conspirators made in the absence of or
without the knowledge of the others after the conspiracy has come to
an end is inadmissible (US v Nerlinger).
Bar 1991: During custodial investigation at the Western Police District,
Mario Margal was informed of his constitutional right to remain silent
and to have competent and independent counsel. He decided to waive
his right to counsel and proceeded to make a statement admitting
commission of robbery. In the same statement, he implicated Antonio
53| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Carreon, his co-conspirator in the crime. Is the statement of Mario
Margal admissible against Carreon as an exception to the res inter alias
acta rule?
Suggested answer:
It is not admissible against Carreon. To be admissible against Carreon,
the ff. requisites must concur:
1. The declaration or act be made or done during the existence
of the conspiracy;
2. The declaration or act must relate to the conspiracy; and
3. The conspiracy must be shown by evidence other than such
declaration or act (Sec. 30, Rule 130).
Assuming that the conspiracy was shown by evidence other than the
extrajudicial statement of Maragl, the same was made by him after the
conspiracy had already ceased.
Note: The rule requiring the concurrence of the above elements does
not apply when the co-accused takes the witness stand and repeats his
extrajudicial confession as a witness. When he testifies as a witness, his
statement become judicial and are admissible not only against him but
also against his co-accused.
Important: If the only evidence of the conspiracy is the extrajudicial
declaration of the declarant, the statements are not admissible against
the others.
Admissions by privies
Privies persons who are partakers or who have an interest in any
action or thing, or any relation to another (Blacks Law Dictionary).
Examples:
a. A lessor and his lessee, a grantor and a grantee; an assignor and
an assignee are privies in an estate or a contract;
b. An executor or an administrator and the estate of the deceased
are privies in representation; or
c. An heir and his ascendant are privies in blood or succession.
Situation: Z inherits a house and lot from his father, X. Assume that X,
father of Z, while the former was alive, sold the property and openly told
his acquaintances that the same lot where his house stood had already
been sold to Y. Is this declaration by X necessarily admissible against Z?
Answer: No, because the statement was made after X held his title to
the land. For an admission of a predecessor-in-interest to be admissible
against the successor-in-interest, the ff. must be present:
(a) There must be an act, declaration, or omission by a
predecessor-in-interest;
(b) The act, declaration, or omission of the predecessor must
have occurred while he was holding (not after) the title to the
property; and
(c) The act, declaration, omission must be in relation to the
property (Sec. 31, Rule 130).
Accordingly, when the former owner of the property made the
declaration after he ceased to be the owner of the property, the rule on
admission by privies does not apply. What applies is the general rule
that the rights of a party cannot be prejudiced by an act, declaration, or
omission of another (Gevero v IAC).
Offer of compromise in civil cases
In civil cases, an offer of compromise is not an admission of any liability,
and is not admissible in evidence against the offeror (Sec. 27, Rule 130).
Offer of compromise in criminal cases
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An offer of compromise by the accused may be received in evidence as
an implied admission of guilt (Ibid).
XPNs: No implied admission of guilt if the offer of compromise is in
relation to:
(a) Quasi-offenses (criminal negligence); or
(b) Cases allowed by law to be compromised (Ibid.).
Bar 1989: Pedro was charged with homicide for having hacked Ramon
to death. Before the case could be tried, the heirs of Ramon sought out
Pedro and discussed with him the possibility of settlement of the case.
Pedro agreed to a settlement. When the heirs asked how much he was
willing to pay, Pedro offered P30,000 which the heirs accepted. Is the
agreement to settle, as well as the offer to pay P30,000 by Pedro,
admissible in evidence?
Suggested answer:
The evidence is admissible. Under the Rules on Evidence, except those
involving quasi-offenses or those allowed by the law to be compromised,
an offer of compromise in a criminal case by the accused may be
received in evidence as an admission of guilt. Homicide is neither a
quasi-offense nor one of those cases allowed by law to be compromised
(Sec. 27, Rule 130, Rules of Court).
Bar 2008: Bembol was charged with rape. Bembols father, Ramil,
approached Artemon, the victims father, during the preliminary
investigation and offered P1 million to Artemon to settle the case.
Artemon refused the offer. During the trial, the prosecution presented
Artemon to testify on Ramils offer to settle. Admissible in evidence?
Suggested answer:
(a) The offer of Artemon is not admissible in evidence against
Bembol as an implied admission of guilt. To be an implied
admission of guilt, the offer must be an offer of
compromise by the accused (Sec. 27, Rule 130, Rules of
Court). The facts of the case do not indicate that it was
Bembol, the accused, who made the offer.
Plea of guilty later withdrawn
The Rule of Criminal Procedure (Sec.2, Rule 116) allows the accused,
at arraignment, to plead guilty to a lesser offense with the consent of
the offended party the prosecutor provided that the lesser offense is
necessarily included in the offense charged. He may also plead guilty to
a lesser offense even after arraignment but before trial, after
withdrawing his plea of not guilty.
In case the accused withdraws his guilty plea, that plea of gylty later
withdrawn is not admissible against the accused who made the plea
(Sec. 27, Rule 130).
Unaccepted plea of guilty to a lesser offense
The rule provides that an unaccepted plea of guilty to a lesser offense
is not admissible in evidence against the accused who made the plea or
offer (Ibid.).
Offer to pay or payment of medical, hospital or other expenses
An offer to pay or payment of medical, hospital or other expense
occasioned by an injury is not admissible in evidence as proof of civil or
criminal liability for the injury (Ibid.).
In other jurisdictions, this act of rendering aid is sometimes called the
good Samaritan rule.
Subsequent remedial measures
Situation: Assume that PP, while negotiating the stairs from the lobby of
a hotel to his third floor room, slipped and fell from the stairs and
sustained head injuries. The hotel owner, upon learning of the accident,
immediately ordered the maintenance department to install a non-
slippery material on every step of the of the stairway. In an action for
54| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
damages against the hotel owner by PP, may the latter introduce
evidence of the subsequent remedial measures taken to prove an
admission by the defendant of the hazardous conditions of the stairway
at the time of the incident?
Answer: No direct legal provision in this jurisdiction addresses the
question as it is. The US Federal Rules of Evidence (Rule 407) prohibits
the admission of evidence of subsequent remedial measures when
offered to prove the negligence of the defendant. Evidence of such
measures may however, be admissible to prove some other purpose like
the fact that the defendant had ownership or control over the same and
all the fixtures therein.
The rule is based on the policy of encouraging potential defendants to
remedy hazardous conditions without fear that their actions will be used
as evidence against them (Pau v Yosemite Park).
Evidence of similar conduct (second branch) (Bar 2011)
Situation: Assume that Mr. X is accused of physical injuries. Is evidence
that in the past he committed several acts constituting physical injuries
admissible to prove his propensity for committing such acts or that he
acted in conformity with his past acts?
Answer: The evidence is not admissible for the purpose for which its
offered. Sec 34 of Rule 130 clearly provides:
Sec. 34. Similar acts as evidence. Evidence that one did or did
not do a certain thing at one time is not admissible to prove that he did
or did not do the same or a similar thing at another time; but it may be
received to prove a specific intent or knowledge, identity, plan, system,
scheme, habit, custom or usage, and the like.
The rule prohibits the admission of the so-called propensity
evidence which is evidence that tends to show that what a person has
done at one time is probative of the contention that he has done a similar
act at another time. The evidentiary rule guards the practical
inconvenience of trying collateral issues and protracting the trial and
prevents surprise or other mischief prejudicial to litigants (Cruz v CA).
Evidence of collateral offenses must not be received a s substantive
evidence of the offenses on trial (PP v Santos).
Ex: In an action to collect a sum of money, evidence that the debtor had
contracted debts with various persons in the past and had not paid such
debts despite demand, is not admissible to show that the debtor did not
pay his obligation to the plaintiff in the present case. In a similar vein,
evidence that Jose was cleared of a previous charge of robbery or that
he was never involved in any robbery in the past is not admissible to
prove that he could not have committed the robbery for which he is
presently charged.
XPN: When evidence of similar acts or previous conduct is
admissible
Evidence of similar acts is admissible for any of the ff. purposes:
(a) Specific intent;
(b) Knowledge
(c) Identity;
(d) Plan;
(e) System
(f) Scheme;
(g) Habit;
(h) Custom;
(i) Usage; and
(j) The like (Sec. 34, Rule 130)
Evidence of similar acts may frequently become relevant, especially in
actions based on fraud and deceit, because it sheds light on the state of
mind or knowledge of a person, his motive or intent, or they may
uncover a scheme, design or plan (Cruz v CA).
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a. MeTC, MTCC, MTC, MCTC and Sharia Circuit Courts, but shall
Example: Evidence of the other similar crimes, acts or wrongs previously not apply to small claims cases;
committed by the accused are admissible to show the signature or b. RTC and Sharia District Courts;
handiwork of the accused, or because of identical modus operandi. c. Sandiganbayan, CTA, CA and Sharia Appellate Court
d. Investigating officers and bodies authorized by SC to receive
IOW, the similar acts may be offered to show that they share distinctive evidence, including IBP; and
features as the offense for which the accused is currently charged with, e. Special courts and quasi-judicial bodies, whose rules of
but the evidence cannot be offered to show that the accused is likely to procedure are subject to disapproval of SC
be guilty of the charge for having committed the same or similar acts
before his present indictment. Applicability of the JAR to criminal cases
It shall apply to criminal cases where the maximum of the imposable
When evidence of similar acts or previous conduct is admissible. penalty does not exceed six years. In other cases the use of JA will
It is admissible for any of the following purposes: depend on the accused.
a. Specific intent;
b. Knowledge; The Rule will apply, irrespective of the penalty involved, where the
c. Identity; accused agrees to the use of the JA.
d. Plan
e. System; With respect to the civil aspect2 of the criminal action, the JAR shall
f. Scheme; apply, irrespective of the penalty involved.
g. Habit;
h. Custom; Contents of JA (Section 3)
i. Usage; and
j. The like (Sec 34. Rule 130, ROC)
1. JA must be prepared in the language known to the witness. If the
Evidence of similar acts may frequently become relevant, especially in affidavit is not in English or Filipino, it shall be accompanied by a
actions based on fraud or deceit as it shed lights on the state of mind or translation in either language
knowledge of a person, his motive or intent, or they may uncover a
scheme, design or plan (Cruz vs CA, 293 SCRA 239). 2. The JA shall contain the name, age, residence or business address
and occupation of the witness
The admissibility of similar acts or previous conduct would depend on
the purposes for which such acts or conduct are offered. 3. It must also contain a statement that the witness is answering the
questions asked of him, fully conscious that he does so under oath,
Judicial Affidavit Rule (A.M. 12-8-8-SC) and that he may face criminal liability for false testimony or perjury.
4. It must also contain the name and address of the lawyer because
the examination of the witness shall be conducted and supervised
Rationale by a lawyer
To decongest the courts of cases and to reduce delays in the disposition
of cases. 5. It must indicate the place where the examination is being held.

Effectivity: 6. Contain the questions asked of the witness and his answers to the
JAR took effect on January 1, 2013 question, all the consecutively numbered. The questions and
answers shall:
SIGNIFICANCE OF THE USE OF JA
It shall take the place of direct testimonies of witnesses doing away a. Show the circumstance under which the witness acquired the
with the usual oral examination of a witness in a direct examination. facts upon which he testifies;

To be attached to the JA are the documentary or object evidence of the b. Elicit from him those facts which are relevant to the issues
parties which shall be marked as Exhibits A, B and so on. that the case presents; and

The original document or object evidence need not be attached to the
JA but party or witness must warrant in his JA that the copy or
reproduction attached is a faithful copy or reproduction of the original.
7.
During preliminary conference, the party or witness is required to bring
the original document or object evidence for comparison with the 8.
attached copy. Failure to bring the originals for comparison, the
attached copy, reproduction shall not be admitted.
c. Identify the attached documentary and object evidence and
establish their authenticity
The JA must be signed by witness over his printed name.
It must contain a jurat, with the signature of the notary public who
administers the oath or officer who is authorized to administer the
same.

Effect of Non-Compliance with Content Requirements

SCOPE OF THE JAR The JA shall not be admitted by court in evidence (Sec 10[c]).
1. It will apply to all actions, proceedings, or incidents requiring the
reception of evidence (Sec 1) Submission of a compliant replacement JA may be allowed, provided the
following requirements are met:
2. It applies to all courts, except SC. The rule shall apply to the
following courts and bodies: 1. Replacement shall be submitted before the hearing or trial
2. The submission shall only be allowed only once
3. The delay is for a valid reason;

2
This refers to the action to recover civil liability arising from the offense charged
and which is deemed instituted with the criminal action.
55| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
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4. The delay would not unduly prejudice the opposing party; and
5. The public or private counsel responsible for the preparation and
submission of the affidavit pays a fine of not less than P1,000 nor
more than P5,000 at the discretion of court
Sworn Attestation of the Court
The JA must contain a sworn attestation at the end, executed by the
lawyer stating the following:
1. That he fitfully recorded or caused to be recorded the questions he
asked and corresponding answers that the witness gave; and
2. That neither he nor any other person present or assisting him
coached the witness regarding the latters answers
Effect of false attestation by lawyer
Subject the lawyer to disciplinary action, including disbarment.
Effect of non compliance with the attestation requirement
The JA shall not be admitted by court in evidence (Sec 10[c]).
But submission of a compliant replacement JA may be allowed, provided
the following requirements are met:
1. The submission shall only be allowed only once
2. The delay is for a valid reason;
3. The delay would not unduly prejudice the opposing party; and
4. The public or private counsel responsible for the preparation and
submission of the affidavit
Filing and Service of the JA and Exhibits
FILING AND SERVICE OF THE JA AND EXHIBITS
Filed by theAND
FILING parties with theOF
SERVICE court
THE and
JAserved on the adverse party, not
AND EXHIBITS
later than 5 days before pre-trial or preliminary conference or the
scheduled hearing, with respect to motions and incidents
The filing shall be done, not only personally, but also by licensed courier
service. Service by mail is not mentioned in the rule.
Rule in Criminal Cases
In criminal cases, the prosecution shall submit the JA of its witnesses
not later than 5 days before the trial. Copies of such shall be served
upon the accused. No further JA, documentary or object evidence shall
be admitted at the trial. It has to lay down on the table, all its evidence-
testimonial, documentary and object
The accused has the options to submit or not his JA. If he desires to be
heard on his defense after receiving the JA of the prosecution, the
accused may submit his JA as well as those of his witnesses, incl. his
documentary and object evidence within 10 days from receipt of the
affidavits of prosecution with service upon public and private prosecutor
EFFECTS OF FAILURE TO SUBMIT JA AND EXHIBITS ON TIME
Waiver of submissions
This waiver means that a party who failed to submit the JA of a particular
witness would have no direct testimony for that witness and the
documentary or object evidence integrated with such affidavit could not
be identified, marked as exhibit and authenticated. In effect the exhibit
could not be offered in evidence.
If the waiver extends to the required affidavits of all the witnesses of a
party because all the judicial affidavits were not filed and served, then
said party is deemed to have not presented in evidence-in-chief for his
case.
Remedy in case of late submission
56| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Failure to submit does not mean a permanent waiver to submit the JA.
File a motion that the late submission of the JA and its exhibits be
allowed.
The court may allow the late submission provided that the following
requirements are met:
a. The submission shall only be allowed only once
b. The delay is for a valid reason;
c. The delay would not unduly prejudice the opposing party; and
d. The public or private counsel responsible for the preparation
and submission of the affidavit
Offer of Testimony in the Judicial Affidavit
Instead of offering the oral testimony of the witness, the party using the
JA shall present such affidavit and state the purpose of the testimony
contained at the start of the presentation of the witness.
Objections to Testimony in the JA; Ruling of the Court
The presentation of the JA and the statement of the purpose of the
testimony will give the adverse party the opportunity to object the
testimony on the ground of inadmissibility, and can move to disqualify
the witness, strike out his affidavit or strike out any of the answers found
in the JA
The court is required to promptly rule on the motion of the adverse
party. If it grants the motion, any excluded answer shall be marked by
placing the same in brackets under the initials of an authorized court
personnel. The other may however make a tender of excluded evidence.
Appearance of the witness at the scheduled hearing
FILING AND SERVICE OF THE JA AND EXHIBITS
FILING AND SERVICE OF THE JA AND EXHIBITS
The rule still requires appearance of the witness at the scheduled
hearing to allow the adverse party to cross examine him. The cross-
examination shall be on his judicial affidavit and on attached exhibits.
Postponement of the cross examination is contrary to the spirit of the
rule because the JA had been filed before the scheduled hearing.
Element of the inquisitorial systems
The rule integrates an element of the inquisitorial systems which
allows the court to take active part in examining the witness to
determine the credibility of the witness and truth of his testimony and
elicit answers that it needs in resolving the case
EFFECT OF FAILURE OF A WITNESS AND OF THE COUNSEL TO APPEAR
AT THE SCHEDULED HEARING
Failure of a witness to appear
The court shall not consider the affidavit of such witness; it is as if no
JA has been executed by the absent witness. Such witness, hence shall
be deemed as not having given a direct testimony in the trial
Failure of counsel to appear
Failure of counsel to appear without a valid cause despite notice shall
be deemed to have waived his clients right to confront by cross-
examination the witnesses present.
When there is a need for the issuance of a subpoena
A requesting party may avail himself of the issuance of the subpoena ad
testificandum or duces tecum under Rule 21, ROC if a witness
unjustifiably declines to execute a JA, or refuses without just cause to
make the relevant books, documents, or other things under his control
available for copying, authentication and eventual production in court.
The rule governing the issuance of a subpoena to the witness shall be
the same when taking his deposition except that taking of JA shall be
understood to be ex parte.
Oral Offer and Objections to Exhibits
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A party shall immediately make an oral offer of evidence of his
documentary or object exhibits, piece by piece, in their chronological
order, stating the purpose or purposes for which he offers the particular
exhibit. The offer shall be made upon the termination of the testimony
of his last witness.
Simply cited by their markings during the offers, the objections and
rulings, dispensing with the description of each exhibit since the
documentary or object exhibits form part of the judicial affidavits that
describe and authenticate them.
After each piece of exhibits is offered, the adverse party shall state the
legal ground for his objection, if any, to its admissions and the court
shall immediately make its ruling respecting that exhibit.
JAR requires that the offer of a partys documentary or object exhibits
shall be made upon the termination of the testimony of his last witness
and the offer may be made only orally.
Hearsay Evidence
Sec 36, Rule 130. Testimony generally confined to personal
knowledge; hearsay excluded. A witness can testify only to those facts
which he knows of his personal knowledge; that is, which are derived
from his own perception, except as otherwise provided in these rules.
HEARSAY EVIDENCE
Evidence is called hearsay when its probative force depends, in whole in
part on the competency and credibility of some persons other than the
witness by whom it is sought to produce it (Estrada vs Desierto)
Basis of the reliability of a witness
It is based on the personal knowledge of the witness. If a witness
testifies on the basis of what others have told him, and not on facts
which he knows of his own personal knowledge, the testimony would be
excluded as hearsay evidence (Mallari v. People, 446 SCRA 74).
Personal knowledge of a witness
The personal knowledge of a witness is a substantive prerequisite for
accepting testimonial evidence that establishes the truth of a disputed
fact. A witness bereft of personal knowledge of the disputed fact cannot
be called upon for that purpose her testimony derives its value, not from
the credit accorded to her as a witness presently testifying, but from the
veracity and competency of the extrajudicial source of information.
Hearsay may be oral or written
The rules that excludes hearsay evidence applies to both written and
oral statement (D.M Consunji, Inc vs CA)
Bar 2007
1. What is the hearsay rule?
2. In relation to the hearsay rule, what do the following rules of
evidence have in common?
a. The rule on statements that are parts of the res
gestae
b. The rule on dying declarations;
c. The rule on admissions against interest.
Suggested answers:
1. See Sec 36, Rule 130.
2. They are exceptions to the rule that hearsay evidence is
inadmissible. They are, in other words, admissible hearsay.
Basis for Excluding Hearsay Evidence
It rests mainly on the ground that there is no opportunity to cross-
examine the outside declarant
57| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
In criminal cases, it will violate the constitutional right of the accused to
confront the witnesses testifying against him and cross-examine them
(People v. Mamalias, 328 SCRA 760).
Waiver
If not objected to, it is admissible. However, even if admitted, it has no
probative value (Mallari v. People, 446 SCRA 74).
When Evidence is Hearsay, how to determine
Note: It is the purpose for which the evidence is offered which would
determine whether the same is hearsay or not.
When the purpose is other than to prove the contents or entries, it is
not hearsay.
Robles vs Lizarraga- Hermanos
SC admitted unsigned statements of accounts not to prove the truth of
its entries but for the purpose of showing the possessors good faith in
making improvements on the property, and to show that such
improvements on the property, and to show that such improvements
were made pursuant to a verbal contract that the lease property will
eventually be sold to her.
Estrada vs Desierto
A ban on hearsay does not include statements which are relevant
independently of whether they are true or not, like statements of a
person to show, among others, his state of mind, mental condition,
knowledge, belief, intention, ill-will, and other emotions.
What is the problem under Sec. 36 of Rule 130?
It incompletely describes the essence of the hearsay rule because of its
failure to embody the element of purpose. As written, it appears more
to be a definition of the first-hand knowledge rule which although similar
to hearsay rule, is traditionally distinct from it.
What is the clearer definition of the hearsay rule under the
Federal Rules of Evidence?
It is a statement, other than the one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.
Elements to Constitute Hearsay
1) An out-of-court statement, oral, written or non-verbal conduct,
made by one other than the one made by the declarant or witness
testifying at the trial; and
2) The out-of-door court statement must be offered to prove the
truth of the matter asserted in out-of-court statement.
People v. De Marco
Hearsay is an out of court statement offered for the truth of the matter
asserted.
First element: Out of Court Statement
There must be an out-of-court statement. It may be oral or written. It
may even be a conduct, as long as that conduct is intended by the actor
as an assertion. The statement must not be made by the declarant in
the hearing or trial.
Implied from an out-of-court statement is the fact that the witness has
no personal knowledge of the matter testified too. It is someone outside
the court and who at the same time is not in the stand who has personal
knowledge of the facts. That someone outside the court cannot be
questioned. His perception cannot be tested. His capacity to remember
what he perceived cannot be accurately determined. Neither can his
capacity to communicate his remembered perceptions because he is not
in court and if he is not in court cannot be crossed-examined.
Second Element: Purpose of offering
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Statement made out of court is repeated and offered by the witness in
court to prove the truth of the matters asserted by the statement.
When the second element is absentthe out-of-court statement is not
offered to prove the truth of the matter asserted, it is said that the
statement is offered for a non hearsay purpose. If it is offered, it is
hearsay because it is offered to prove a hearsay purpose. Where a
statement is not offered for the truth of the matter asserted but is
offered for an evidentiary purpose not dependent on the truth of the
matters asserted, the statement is non-hearsay.
Why must a witness testify to matters of his personal
knowledge?
The witness credibility, accuracy of perception and recollection, can be
tested before the court through cross examination. Those of the out-of-
court declarant cannot. The latters statements are unreliable. His
statements lack the indicia of trustworthiness.
Bar 2004: Distinguish between hearsay evidence and opinion evidence.
Hearsay evidence is one that is not based on ones personal perception
but based on the knowledge of others to prove the truth of the matter
asserted in an out-of-court declaration.
An opinion evidence is based on the personal knowledge or personal
conclusions of the witness based on his skill, training or experience (Sec.
49, Rule 130).
Feria vs Court of Appeals, 325 SCRA 525
Newspaper articles amount to hearsay evidence, twice removed and
are therefore not only admissible but without any probative value at all
whether objected to or not, unless offered for a purpose other than
proving the truth of the matter asserted. In this case, the news article
is admissible only as evidence that such publication does exist with the
tenor of the news therein stated.
Examples of Non Hearsay Evidence
1. Statement that is not offered for the truth of the contents of the
conversation, but only to show that it was made.
Ex: A statement that is offered to show its patent falsity, so as to
suggest the defendants conscious guilt
2. Statements relating to the state of mind of the declarant and the
statements relating to the state of mind of the listener. This
constitute circumstantial evidence of an assertion and where the
making of the statement is the significant fact because it either
gives rise to the inference about the declarants state of mind or
indicates its effect on the hearer. The truth of the statement is not
the issue here.
Out of court statements offered to prove mental state of the
declarant
As long as an out-of-court statement is offered for a non hearsay
purpose (a purpose other than to prove the truth of the matter
asserted), the statement is admissible if it has relevance to the matter
in issue.
Example: A statement which demonstrates by inference from the tenor
of the statement the state of mind of the speaker or the declarant.
Out of-court statement offered to prove its effects on the
listener/hearer
An out-of-court statement may be offered not only to prove the state of
mind of the declarant. It may also be used to show the state of mind of
the hearer or listener. It described in terms of the effect of the
declarants statement on the hearer and why the listener acted in a
particular manner.
58| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
When the statement is offered for the truth of the matter asserted but
is offered to show the mental effect of the statement on the hearer, the
statement is not a hearsay. Words offered to prove the effect on the
hearer are admissible when they are offered to show their effect on one
whose conduct is at issue. It is the bearers reaction to the statement
which is sought to be proved. It is his reaction to the statement that is
relevant, not the truth of the assertion in the statement. Since the hearer
is present in court, he can be crossed-examined on whether or not he
heard the statement accurately, believed the statement to be true, and
whether or not he really acted in conformity with his belief.
Out of-court statement offered to prove that the statement
was made (Bar 2012)
Where the statement is not offered for the truth of the matter asserted,
but merely to show what was said, the statement is not hearsay.
Beyond the mere fact that the words were uttered, the statement proves
nothing as to its averments because the out-of-court declarations
relevance is independent of the truth of its assertion.
If an extrajudicial utterance if offered, not as an assertion to prove the
matter asserted but without reference to the truth of the matter
asserted, the hearsay rule does not apply.
The distinction is between (a) the fact that the statement was made, to
which the hearsay rule does not apply, and (b) the truth of the facts
asserted in the statement, to which the hearsay rule applies. (Patula vs
People)
Independently Relevant Statements
Bar 2011; 2009:
It is a rule that a declarants statement may have relevance to an issue
in a case from the mere fact that the words were spoken or written,
irrespective of the truth or falsity of the assertion. This is known as
independently relevant statements. These statements are admissible for
some relevant reason independent of their truth or falsity. They are
relevant because the statement itself is either the very fact in issue or
a circumstantial evidence of a fact in issue. Some authorities call such
statements as the operative acts which give rise to legal consequences.
They are not hearsay. Thus, a witness may be asked questions
concerning what the accused told him that other persons are involved
in the conspiracy if the purpose of the testimony is not to prove that
such persons were really involved but only to prove what the accused
had mentioned (People v. Cusi, Jr., 14 SCRA 944).
Their relevance to the matter in issue is not dependent on their truth or
falsity. Its relevance lies in its tenor or the fact that it was said.
Exmaple: Prior-out of court declarations of a witness inconsistent with
his testimony on the stand are admissible, not to prove the truth of what
was said. What is important is that the statements were uttered.
WHAT ARE THE TWO CLASSES OF INDEPENDENTLY RELEVANT
STATEMENTS AS HELD IN THE CASE OF ESTRADA VS DESIERTO?
First Class includes the following:
1. Those statements which are the very facts in issue; and
2. Those statements which are circumstantial evidence of fact in
issue.
Second Class includes the following:
1. Statements of a person showing his state of mind his mental
condition, knowledge, belief, intention, ill-will and other conditions;
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2. Statements of a person which shows his physical condition, as
illness and the like;
3. Statements of a person from which an inference may be made as
to the state of mind of another knowledge, belief, motive, good
or bad faith, etc. of the latter;
4. Statements which may identify the date, place and person on
question; and
5. Statements showing the lack of credibility of a witness.
Bar 2003: The prosecution presented in evidence a newspaper clipping
of the report to the reporter who was present during the press
conference stating that X admitted the robbery. Is the newspaper
clipping admissible?
The newspaper clipping is admissible as non-hearsay if offered for the
purpose of showing that the statement of X was made to a reporter
regardless of the truth or falsity of the statement. The admissibility
depends now on whether the fact that the statement was made is
relevant to the case. If it is relevant, it is admissible as an independent
relevant statement. It would be hearsay if offered to prove the truth
that X was the robber.
Note: The statement made by X to a reporter may be admitted as an
admission under Sec. 26, Rule 130. This answer should also be
considered by the examiner because it has a clear legal basis.
Exceptions to the Hearsay Rule
1. Dying Declarations (Sec 37, Rule 130)
2. Declaration against interest (Sec. 38, Rule 130);
3. Act or declaration against pedigree (Sec. 39, Rule 130);
4. Family reputation or tradition regarding pedigree
5. (Sec.40, Rule 130);
6. Common reputation (Sec.41, Rule 130);
7. Part of the res gestae (Sec.42, Rule 130);
8. Entries in the course of business (Sec.43, Rule 130);
9. Commercial lists and the like (Sec.45, Rule 130);
10. Learned treatises (Sec.46, Rule 130); and
11. Testimony or deposition at a former trial (Sec.47, Rule 130)
Exceptions to the hearsay rule are hearsay but admissible
Exceptions to the hearsay rule are hearsay but they are deemed
admissible hearsay for certain reasons. Under these circumstances, a
hearsay statement may possess circumstantial guarantees of
trustworthiness sufficient to justify non-production of the declarant in
person. Another justification may be simply dictated by the necessity to
admit an out-of-court statement.
Dying Declaration
Sec 37, Rule 130. The declaration of a dying person, made under the
consciousness of an impending death, may be received in any case
wherein his death is the subject of inquiry, as evidence of the cause and
surrounding circumstances of such death.
It is also known as the ante mortem statement. It is an evidence of the
highest order and is entitled to utmost credence since no person aware
of his impending death would make a careless and false accusation.
Reasons for its admissibility
1. Necessity. The declarants death renders it impossible his taking
the witness stand. Allowing it therefore, prevents a failure of
justice; and
2. Trustworthiness. The declaration is made in extremity, when the
party is at the point of death and when every motive to falsehood
59| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
is silenced and the mind is induced by the most powerful
considerations to speak the truth. The law considers the point of
death as a situation so solemn and awful as creating an obligation
equal to that which is imposed by an oath administered in court.
(People vs Cerilla)
In what proceedings is a dying declaration admissible?
A: As originally conceived, they are admissible only in criminal cases
particularly in homicide cases. However, because of the changes under
the Rules of Evidence in 1989, the law allowed the use of dying
declarations even in non-criminal cases. Today, the Rules of court no
longer places any limitation on the type of action in which a dying
declaration may be introduced. As long as the relevance is clear, a dying
declaration may now be used or introduced in a criminal or a civil action
and the relevance is satisfied where the subject of inquiry is the death
of the declarant himself
Objections to the presentation of this Evidence
Objection should be premised on any of the requisites for its admissibility
embodied under Sec. 37. Thus, a counsel who wants to exclude the
same must have to deal with the primary question of whether or not the
evidentiary foundations for the introduction of a dying declaration were
met.
Important: Section 37 requires that the declaration of a dying person,
made under the consciousness of an impending death.
Mere consciousness of death is not enough.
Every one of us, at one time or another, has become conscious of death.
The kind of death of which the declarant should be conscious is a death
that is impending. The declarant must be certain that death is near at
hand, and what is said must have spoken in the hush of its impending
presence.
People v. Brioso, 37 SCRA 336
To admit a dying declaration in evidence, it must be shown that the
declarant believed at the time the statement was made, that he was in
a dying condition and had given up the hope of surviving.
Notes: It is conceded that in determining the consciousness, the
attendant circumstances should be carefully weighed in determining the
consciousness of the impending death and the sincerity of such belief.
Example: the fatal quality of the wound, the statements made by the
physician that his situation is hopeless, etc.
Notes:
1. If the declarants statement is made under consciousness of an
impending death, a subsequent belief in recovery before his actual
death, does not bar admissibility of his statement.
The admissibility of the dying declaration depends upon whether at
the time the declaration was made the deceased believed that the
injury received would be fatal.
That he recovered sufficiently to engender the belief that he was
going to live does not render the declaration inadmissible, where
death in fact resulted from the same injury.
If witness died after uttering his last words which were: I do not
knowI do not knowthat one who stabbed me this can be
admitted to favor the accused. There is nothing in the rules which
prohibit the admission of a dying declaration that is favorable to the
accused.
Note: Dying declarations, which exculpate or exonerate an accused,
may be introduced by him and are admissible in his favor. Dying
declarations are not restricted to the use by the prosecution. It can
also be received on behalf of the accused.
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2. Requirement of a dying declaration: must relate to the cause and
the circumstances surrounding the declarants death.
Otherwise, it can be a source for counsels objection to the
admission of the declaration. It is not admissible when the subject
of the inquiry is the death of someone else.
3. Other declarations or distinct matter not related to the killing of the
defendant do not come within the purview of the exception.
ELEMENTS OF A DYING DECLARATION
Section 37 of Rule 130. Dying declaration. The declaration of a
dying person, made under the consciousness of an impending death,
may be received in any case wherein his death is the subject of inquiry,
as evidence of the cause and surrounding circumstances of such death.
1. The declaration is one made by a dying person
2. The declaration is made by said dying person under a
consciousness of his impending death
3. The declaration refers to the cause and circumstances
surrounding the death of the declarant and not of anyone else
4. The declaration is offered in a case where the declarants
death is the subject of inquiry.
5. The declarant is competent as a witness had he survived
6. The declarant should have died
A dying declaration is admissible as evidence of the cause and
surrounding circumstances of the death of the declarant, not merely
the cause of his injuries; and offered in evidence in any case wherein
his death is the subject of inquiry.
The death of the declarant should be an element of a dying declaration.
If declarant survives, his declaration may be admissible as part of the
res gestae.
The declaration may now be offered in any case, even in a civil case,
provided that the cause and circumstances of the death of the declarant
are the subjects of inquiry.
RATIONALE FOR THE ADMISSIBILITY OF A DYING DECLARATION
GR: When a person is at the point of death, every motive to falsehood
is silenced, and the mind is induced by the most powerful consideration
to speak the truth, and therefore, the statements under such
circumstances deserve weight.
It is evidence of highest order and is entitled to utmost credence since
no person aware of his impending death would make a careless and
false accusation.
The dying declaration need not be directed to a particular person
inquiring from the declarant as to the circumstances of his death since
anyone who has knowledge of what the declarant said, whether it be
directed to him or not, or whether he made inquiries from the declarant
or not, can testify thereto.
ASSAILING A DYING DECLARATION
The admissibility of a dying declaration does not create a conclusive
presumption of credibility of the admitted declaration. It may be
attacked in the same manner as one would do to a testimony in open
court.
Example:
a. By showing that prior to the admitted declaration, the
declarant had previously made a statement inconsistent with
his supposedly dying declaration.
b. By demonstrating that the declarant has no personal
knowledge of the identity of the assailant,
60| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
c. By pointing out that the declarant would not have been a
competent witness even if he had survived. (e.g. when
declarant had no opportunity to see the assailant)
If the declarant is incompetent under the rules if he were to appear in
court and in person, he would also be incompetent as a dying declarant.
Thus, if the court would adjudge him incompetent because of his
insanity if he were alive, there is no reason to consider him sane as a
dying declarant.
A dying declaration is not meant to confer competency on an otherwise
incompetent witness.
PARTS OF THE RES GESTAE
Res Gestae = things done
Rationale
It is the even that speaks for itself through the spontaneous words or
instinctive words or conduct of the witness, and not the witness speaking
for and about the event.
Definition
Those circumstances which are the undersigned incidents of a particular
litigated act and which are admissible when illustrative of such act.
It refers to the circumstances, facts, and declarations that grow out of
the main fact and serve to illustrate its character and are so spontaneous
and contemporaneous with the main fact as to exclude the idea of
deliberation and fabrication.
It encompasses the exclamations and statements made by either the
participants, victims, or spectators to a crime immediately before,
during, or immediately after the commission of the crime when the
circumstances are such that the statements were made as a
spontaneous reaction or utterance inspired by the excitement of the
occasion and there was no opportunity for the declarant to deliberate
and fabricate a false statement.
TEST OF ADMISSIBILITY OF EVIDENCE AS PART OF RES GESTAE
1. Whether the act, declaration, exclamation is so intimately
interwoven or connected with the principal fact or event that
it characterizes as to be regarded as a part of the transaction
itself
2. Whether it clearly negatives any premeditation or purpose to
manufacture testimony.
Res Gestae under the ROC
Section 42. Part of res gestae. Statements made by a person while
a starting occurrence is taking place or immediately prior or subsequent
thereto with respect to the circumstances thereof, may be given in
evidence as part of res gestae. So, also, statements accompanying an
equivocal act material to the issue, and giving it a legal significance, may
be received as part of the res gestae.
The use of res gestae is limited to two matters:
A. Spontaneous statements
B. Verbal acts
While the term remains in the rules, its application is restrictive and no
other statement, act or evidence may qualify as part of the res gestae.
In spontaneous exclamations or statements, the res gestae is the
startling occurrence, whereas in verbal acts, the res gestae are the
statements accompanying the equivocal act.
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Spontaneous Statements
Characteristics to be admitted as evidence:
1. There is a startling event or occurrence taking place
2. A statement was made, while the event is taking place or
immediately prior to or subsequent thereto
3. The statement was made before the declarant had the time
to contrive or devise a falsehood
4. The statement relates to the circumstances of the startling
event or occurrence, or that the statements must concern the
occurrence in question and its immediate attending
circumstances
When all conditions are met, we have a spontaneous statement
constituting an exception to the rules barring hearsay statements. Even
if the declarant is unavailable and cannot be cross-examined, the
evidence may be received in evidence.
Requisites for this rule to apply:
1. That the principal act, the res gestae, must be a startling
occurrence
2. The statements were made before the declarant had the time
to contrive or devise a falsehood
3. The statements must concern the occurrence in question and
its immediate attending circumstances.
The admissibility of a spontaneous statement is anchored on the theory
that the statement was uttered under circumstances where the
opportunity to fabricate is absent.
The statement is a reflex action rather than a deliberate act, instinctive
rather than deliberate. The perceived event produces nervous
excitement making fabrications about that event unlikely.
In the spontaneous statement part of the res gestae, the statement
and the event cannot be taken separately. The statement alone, without
the event, will not qualify for admission because it is the circumstances
surrounding the making of the statement which make said statement
admissible. The spontaneity of the utterance is the guaranty of its
trustworthiness.
Grounds for objecting presentation of a spontaneous statement:
One thing to consider is whether or not the event or occurrence is indeed
a startling one which is of such a nature as to cause an excited reaction
in an average individual.
Another is whether or not a declaration was made simultaneously with
the event or sometime after; that there was a time interval between the
event and the making of the statement which may cause the statements
reliability to be lost.
Lastly, is on the matter of credibility. It can be argued that perceptions,
observations and statements are clouded by strong emotions.
TN: Not every statement made under the influence of the startling even
is admissible even if it be spontaneous. The only spontaneous statement
made under stress of excitement of the startling even that qualifies for
admissibility is one that relates to the circumstances of the event. The
statement must describe the event perceived.
A declaration by a deceased person concerning the circumstances of his
death may not be considered a dying declaration if it cannot be
established that he uttered his statement while conscious of his
impending death but the utterance of the victim made immediately after
sustaining injuries may be considered the incident speaking through
the victim. While it may not qualify as a dying declaration, it may
nonetheless be admitted in evidence as part of the res gestae.
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Verbal Acts
Section 42. Part of res gestae. Statements made by a person while
a starting occurrence is taking place or immediately prior or subsequent
thereto with respect to the circumstances thereof, may be given in
evidence as part of res gestae. So, also, statements accompanying an
equivocal act material to the issue, and giving it a legal significance, may
be received as part of the res gestae.
A verbal act presupposes a conduct that is equivocal or ambiguous, one
which, in itself, does not signify anything when taken separately.
It only acquires a meaning, called legal significance, only because of the
statements that accompany the act.
It is the statement contemporaneous with the act that identifies or
indicates the character, purpose or motive of the act.
Requisites to be admissible under this category:
1. The principal act to be characterized must be equivocal
2. The equivocal act must be must be material to the issue
3. The statement must accompany the equivocal act
4. The statement gives a legal significance of the equivocal act
What to consider when objecting to the admissibility of verbal
acts:
1. Is there an act that is equivocal or ambiguous?
If the act is clear, it needs no explanation and so there is no
res gestae to speak of.
2. Will the statement accompanying the ambiguous or equivocal
act explain the act or give legal significance to it?
If it will not, then the statement is not admissible.
3. Is the equivocal act material to the issue?
Materiality is necessary for relevance.
4. Does the statement accompany the equivocal act?
A spontaneous statement may be prior to, simultaneous with,
or subsequent to the startling even or occurrence. However,
in verbal act, the statement in the latter must accompany the
equivocal act which evidently means that it must be
contemporaneous with the act.
Entries in the Courts of Business (Business Records Rule)
Section 43. Entries in the course of business. Entries made at, or
near the time of transactions to which they refer, by a person deceased,
or unable to testify, who was in a position to know the facts therein
stated, may be received as prima facie evidence, if such person made
the entries in his professional capacity or in the performance of duty and
in the ordinary or regular course of business or duty.
This exception is commonly encountered in breach of contract suits and
suits for collection of a sum of money.
The necessity for the admissibility of such evidence arises from the
absence of the person who has personal knowledge of the facts. He is
absent because he is dead, outside of the jurisdiction of the court, or
otherwise, unable to justify.
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Requisites for the Business Records Rule to apply:
1. The person who made the entry must be dead or unable to
testify
2. The entries were made at or near the time of the transactions
to which they refer
3. The entrant was in a position to know the facts stated in the
entries
4. The entries were made in his professional capacity or in the
performance of a duty, whether legal, contractual, moral, or
religious
5. The entries were made in the ordinary or regular course of
business or duty
The Rules on Electronic Evidence also expressly exempt business records
from the application of the hearsay rule.
Declarations Against Interest
Section 38. Declaration against interest. The declaration made by a
person deceased, or unable to testify, against the interest of the
declarant, if the fact is asserted in the declaration was at the time it was
made so far contrary to declarant's own interest, that a reasonable man
in his position would not have made the declaration unless he believed
it to be true, may be received in evidence against himself or his
successors in interest and against third persons.
Founded on:
a. People normally speak freely and even with untruth when the
statement is in their interest, but are usually unwilling to
speak falsely against their interest.
b. Necessity, on account of the impossibility of obtaining other
evidence from the same source, the declarant being
unavailable in person to testify on the stand on account of
death, absence from the jurisdiction or serious illness.
This exception refers to a declaration made by a person who, at the time
his declaration is presented in evidence, is already dead or is unable to
testify.
This declaration must be one which, when made, was known to the
declarant himself to be against his interest, pecuniary or moral, and
which would not have been made unless he believed it to be true.
It is not enough that a declaration against interest was made. It is
necessary that the declarant knew that the statement was against his
interest and which he would not have made had it not been true.
Note: This exception will not apply where the declarant is available as
a witness. The declarant must be dead or is unable to testify. Serious
physical or mental impairments may be grounds for considering a person
unavailable.
If the declaration is favorable to the interest of the declaration, it is a
mere self-serving statement and does not fall as an exception to the
hearsay rule.
General Rule: The interest against which the declaration may have
been made should be either a pecuniary or moral interest, but in our
jurisdiction, the declaration could possibly be against ones penal interest
because if one admits to a crime, he is also civilly liable, which is
pecuniary.
A declaration made by a deceased, or by one unable to testify, is
admissible even against the declarants successors-in-interest or even
against third persons.
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Declaration about Pedigree
Section 39. Act or declaration about pedigree. The act or declaration
of a person deceased, or unable to testify, in respect to the pedigree of
another person related to him by birth or marriage, may be received in
evidence where it occurred before the controversy, and the relationship
between the two persons is shown by evidence other than such act or
declaration. The word "pedigree" includes relationship, family
genealogy, birth, marriage, death, the dates when and the places where
these fast occurred, and the names of the relatives. It embraces also
facts of family history intimately connected with pedigree.
Requisites:
1. That the declarant is dead or unable to testify
2. The declarant is related by birth or marriage to the person
whose pedigree is in issue
3. The declaration was made before the controversy
4. The relationship between the two persons is shown by
evidence other than such act or declaration
Pedigree
a. Includes relationship, family genealogy, birth, marriage,
death, the dates when and the places where these facts
occurred, and the names of the relatives.
b. Also embraces facts of family history intimately connected
with pedigree.
FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE
Section 40. Family reputation or tradition regarding pedigree. The
reputation or tradition existing in a family previous to the controversy,
in respect to the pedigree of any one of its members, may be received
in evidence if the witness testifying thereon be also a member of the
family, either by consanguinity or affinity. Entries in family bibles or
other family books or charts, engravings on rings, family portraits and
the like, may be received as evidence of pedigree.
This involves:
1. A statement by a member of the family either by
consanguinity or affinity
2. The statement is about the reputation or tradition of the
family in respect to the pedigree of any member of the family
3. The reputation or tradition is one existing previous to the
controversy
COMMON REPUTATION
Section 41. Common reputation. Common reputation existing
previous to the controversy, respecting facts of public or general interest
more than thirty years old, or respecting marriage or moral character,
may be given in evidence. Monuments and inscriptions in public places
may be received as evidence of common reputation.
This is admissible where the reputation refers to a matter of public or
general interest, or respecting marriage or moral character and said
matter is more than 30 years old. The common reputation must be one
existing prior to the controversy.
This is admissible because of trustworthiness.
Although it may establish a matter of public or general interest, marriage
or moral character, it cannot establish pedigree, which is established by
reputation in the family and not in the community.
ENTRIES IN OFFICAL RECORDS
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Section 44. Entries in official records. Entries in official records made
in the performance of his duty by a public officer of the Philippines, or
by a person in the performance of a duty specially enjoined by law,
are prima facie evidence of the facts therein stated.
Requisites:
1. The entry was made by a public officer or by another person
specially enjoined by law to do so
2. It was made by the public officer, or by such other person in
the performance of a duty specially enjoined by law
3. The public officer or other person had sufficient knowledge of
the facts by him or her stated, which must have been acquired
by the public officer or other person personally or through
official information
COMMMERCIAL LISTS AND THE LIKE
Section 45. Commercial lists and the like. Evidence of statements of
matters of interest to persons engaged in an occupation contained in a
list, register, periodical, or other published compilation is admissible as
tending to prove the truth of any relevant matter so stated if that
compilation is published for use by persons engaged in that occupation
and is generally used and relied upon by them therein.
This is an exception to the hearsay rule provided they are made by
persons engaged in that occupation and are generally used and relied
upon by them and those lists and reports are published.
LEARNED TREATISES
Section 46. Learned treatises. A published treatise, periodical or
pamphlet on a subject of history, law, science, or art is admissible as
tending to prove the truth of a matter stated therein if the court takes
judicial notice, or a witness expert in the subject testifies, that the writer
of the statement in the treatise, periodical or pamphlet is recognized in
his profession or calling as expert in the subject.
Example: history books and published findings of scientists, provided
that an expert on the subject testifies to the expertise of the writer or
the court takes judicial notice of such fact.
TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING
Section 47. Testimony or deposition at a former proceeding. The
testimony or deposition of a witness deceased or unable to testify, given
in a former case or proceeding, judicial or administrative, involving the
same parties and subject matter, may be given in evidence against the
adverse party who had the opportunity to cross-examine him. (41a)
Testimony contemplated is one given in a former case or proceeding,
judicial or administrative, involving the same parties and subject matter.
The testimony was given by the deceased or one unable to testify.
It may be given as evidence against the adverse party provided the latter
had the opportunity to cross-examine the witness who gave the previous
testimony.
Requisites:
1. The witness is dead or unable to testify
2. His testimony or deposition was given in a former case or
proceeding, judicial or administrative, between the same
parties or those representing the same interests
3. The former case involved the same subject as that in the
present case, although on different causes of action
4. The issue testified to by the witness in the former trial is the
same issue involed in the present case
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5. The adverse party had an opportunity to cross-examine the
witness in the former case
Opinion Evidence
Section 48. General rule. The opinion of witness is not admissible,
except as indicated in the following sections. (42)
Section 49. Opinion of expert witness. The opinion of a witness on
a matter requiring special knowledge, skill, experience or training which
he shown to possess, may be received in evidence. (43a)
Section 50. Opinion of ordinary witnesses. The opinion of a witness
for which proper basis is given, may be received in evidence regarding
a. the identity of a person about whom he has adequate
knowledge;
b. A handwriting with which he has sufficient familiarity; and
c. The mental sanity of a person with whom he is sufficiently
acquainted.
The witness may also testify on his impressions of the emotion,
behavior, condition or appearance of a person. (44a)
General Rule: Opinion of a witness is inadmissible because when a
witness testifies, he does so with respect to facts personally observed
by him and it is for the court to draw conclusions from the facts testified
to.
Exceptions:
1. The opinion is that of an expert
The court is not bound by the opinion of an expert. It is
considered or weighted by the court, like any other testimony,
in the light of its own general knowledge and experience upon
the subject of inquiry.
The probative force does not lie in a mere statement of his
theory or opinion by rather in the aid that he can render to
the courts in showing the facts which serve as a basis for his
criterion and the reasons upon which the logic of his
conclusion is founded.
While credentials of an expert witness play a factor in the
evidentiary and persuasive weight of his testimony, the same
cannot be the sole factor in determining its value since the
judge must also conduct his own independent examination of
the signatures under security.
2. The opinion of an ordinary witness when the proper basis
of the opinion is given and the subject of the opinion is nay of
the following matters:
a. The identity of a person about whom the witness
has adequate knowledge
b. The handwriting of a person with which the witness
has sufficient familiarity
c. The mental sanity of a person with whom he is
sufficiently acquainted
d. The impressions of the witness of the emotion,
behavior, condition or appearance of a person
Character Evidence
Section 51. Character evidence not generally admissible; exceptions:
(a) In Criminal Cases:
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(1) The accused may prove his good moral character
which is pertinent to the moral trait involved in the
offense charged.
(2) Unless in rebuttal, the prosecution may not prove
his bad moral character which is pertinent to the
moral trait involved in the offense charged.
(3) The good or bad moral character of the offended
party may be proved if it tends to establish in any
reasonable degree the probability or improbability
of the offense charged.
(b) In Civil Cases:
1. Evidence of the moral character of a party in civil
case is admissible only when pertinent to the issue
of character involved in the case.
(c) In the case provided for in Rule 132, Section 14, (46a, 47a)
Character
It is the aggregate of the moral qualities which belong to and distinguish
an individual person; the general result of ones distinguishing attributes
Character Reputation
what a man is and
depends on the attributes which
depends on the
others believe one to possess
attributes he possesses
Signifies what is accepted to be
Signifies reality
reality at present
What he is supposed to be in
accordance with what people say
What a person really is
he is and is dependent on how
people perceive him to be
GR: character or reputation of a party is legally irrelevant in determining
a controversy, so that evidence relating thereto is not admissible.
EVIDENCE OF BAD MORAL CHARACTER OF THE ACCUSED
The prosecution may not offer evidence of the character of the accused
unless the accused himself has offered evidence of his good moral
character. It must wait until the accused puts his character in issue
during the proceedings.
The rule likewise discourages the presentation of propensity evidence
EVIDENCE OF GOOD MORAL CHARACTER OF THE ACCUSED
Section 51. Character evidence not generally admissible; exceptions:
(a) In Criminal Cases:
(1) The accused may prove his good moral character
which is pertinent to the moral trait involved in the
offense charged.
The accused may prove his good moral character when pertinent to the
moral trait involved in the offense charged.
The general rule against propensity evidence does not apply to the
accused who is allowed to offer evidence of his good character those
moral traits involved in the offense charged.
He may not prove his character by evidence of specific instances of good
conduct.
Proof of good moral character strengthens the presumption of innocence
and an inference arises that the accused did not commit the crime
charged.
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EVIDENCE OF CHARACTER OF THE OFFENDED PARTY
Section 51. Character evidence not generally admissible; exceptions:
(a) In Criminal Cases:
(1) The good or bad moral character of the offended
party may be proved if it tends to establish in any
reasonable degree the probability or improbability
of the offense charged.
The good or bad moral character of the offended party may be proved
by the accused if it tends to establish in any reasonable degree the
probability or improbability of the offense charged.
Note: this provision pertains only to criminal cases, not to administrative
offenses.
The character evidence must be limited to the traits and characteristics
involved in the type of offense charged.
CHARACTER EVIDENCE IN CIVIL CASES
Evidence of the moral character of a party is admissible only when
pertinent to the issue of character involved in the case.
EVIDENCE OF GOOD CHARACTER OF A WITNESS
This is not admissible until such character has been impeached.
RULE ON EXAMINATION OF A CHILD WITNESS
(A.M. 004-07-SC)
This rule will govern the examination of the following
witnesses:
1. Child witnesses who are victims of a crime
2. Child witnesses accused of a crime
3. Child witnesses to a crime
Note: This does not only apply to criminal proceedings but also, it
applies to non-criminal proceedings as long as such proceedings involve
child witnesses.
Definition of a child witness
It is any person who at the time of giving testimony is below the age of
18 years.
It is determined as of the time of the giving of testimony.
The above definition is qualified by the rule that a child over 18 may be
considered a child in abuse cases and if it is found by the court that the
person, due to his physical or mental disability or condition is unable to:
1. Fully take care of himself
2. Protect himself from
a. Abuse
b. Neglect
c. Cruelty
d. Exploitation
e. Discrimination
RULE ON EXAMINATION OF CHILD WITNESS
Applicability of the Rule
(AM 004-07-SC)
Rule on Examination of a Child Witness will govern examination of the
following witnesses:
1. Child witnesses who are victims of a crime
2. Child witnesses accused of a crime
3. Child witness to a crime
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Important: Rule applies to ANY proceedings as long as such Leading Questions

proceedings involve a child witness

DEFINITION OF CHILD WITNESS GR: leading questions are not allowed in direct examinations as per Sec.
10, rule 130, of ROC
GR: Any person who at the time of giving testimony is below 18
EXCEPTION: As per Sec. 20 of Rules on Examination of Child Witness:
EXCEPTION: A person may be considered child witnesses even if above The court may allow leading questions in all stages of examination of a
18 only in child abuse cases if such person, due to his physical or mental child if the same will further the interests of justice
disability/condition, is unable to:
1. Fully take care of himself Live-Link Television Testimony of Child Witness
2. Protect himself from abuse, neglect, cruelty, exploitation or
discrimination
Concept
Competency of Child Witness The testimony of a child can be taken in a live-link television method.
The child witness will be taken in a room outside the courtroom and
while giving his or her testimony, the child witness will be televised live
Presumption under Sec. 6 to the courtroom through a television in the courtroom
Every child is qualified to be a witness, but this does not preclude the
court from conducting a competency examination of the child when An order for the testimony to be taken through a live-link television can
there is a substantial doubt as to the ability of the child to: be applied for by:
1. Prosecutor
1. perceive 2. Counsel
2. remember 3. Guardian ad litem where the child is a victim/witness
3. communicate
4. distinguish truth from falsehood GR: The guardian ad litem shall consult with the prosecutor or counsel
5. appreciate the duty to tell the truth in court before asking for the order to be done and shall defer to the judgment
of the prosecutor or counsel regarding the necessity of applying for an
Important: Examination may be conducted motu proprio or upon order.
motion of a party,
EXCEPTION: If the guardian ad litem feels that the decision of the
Examination of a Child Witness prosecutor or counsel not to apply for a live-link television testimony will
cause the child serious emotional trauma, he may apply for the order
himself instead
The following rules must be followed:
1. Examination shall be done in open court when the child is Examination for Live-Link Method
presented in hearing or any proceeding The court may (motu proprio) hear and determine with notice to the
parties, the need for taking the testimony of the child with the live-link
2. Answers will be given orally EXCEPT if the witness is: method.
a. Incapacitated to speak or
b. The question calls for a different mode of answer To do this, the judge will question the child in chambers (in the presence
of the support person, guardian ad litem, counsel and prosecutor). The
3. Party who presents a child witness or guardian ad litem, may questions of the judge shall be about how the child feels about testifying
move the court that he be allowed to testify in the manner in the courtroom.
provided for under the Rules
Order for Live-Link Method
4. An interpreter may be appointed (motu proprio or motion) to The court shall issue an order granting or denying the use of live-link
interpret for the child if child: television but it is required to state the reasons for such order.
a. Does not understand English or Filipino
b. Unable to communicate in said language due to Factors to be considers to granting or denying such order are:
developmental level, fear, shyness, disability, or 1. Age and Developmental Level of the child
other similar reasons 2. Physical and Mental health (inc. mental/physical disability)
3. Physical, emotional, psychological injury experience by him
5. A facilitator may be appointed (motu or motion) if court 4. Nature of the alleged abuse
determines that the child is unable to understand/respond to 5. Threats against the child
questions asked. The following may be facilitators: 6. Relationship with accused or adverse party
a. Child psychologist 7. Reaction to any prior encounters with the accused in court or
b. Psychiatrist elsewhere
c. Social worker 8. Reaction prior to trial when the topic of testifying was
d. Guidance counselor discussed with him by parents or professionals
e. Teacher 9. Specific symptoms of stress exhibited by the child in the days
f. Religious leader prior to testifying
g. Parent 10. Testimony of expert or lay witnesses
h. Relative 11. Custodial situation of the child and the attitude of the
members of his family regarding the events about which he
6. A child witness in a proceeding or deposition has the right to will testify
be accompanied by one/two person (support persons) of his 12. Other relevant factors, such as court atmosphere and
own choosing to provide emotional support formalities of court procedure

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Important: furthermore, the substantial likelihood that the child would
suffer trauma from testifying in the presence of the accused, his counsel
or the prosecutor as the case may be will factor in the granting or denial
of the order. Trauma must be of the kind that would impair the (a)
completeness and (b) truthfulness of the testimony of the child.
How Live-Link is Done
1. the child will be testifying in a room separate from the
courtroom in the presence of the guardian ad litem, support
person(s), facilitator, interpreter, court officer appointed by
the court, persons necessary to operate the equipment, other
persons deemed by the court to be necessary.
2. The judge, prosecutor, accused, and counsel shall be in the
courtroom. The testimony of the child shall be transmitted by
live-link television into the courtroom for viewing and hearing
by the judge, prosecutor, counsel for the parties, accused,
victim, and public, unless excluded.
3. If the child needs to identify the accused, he or she may enter
the courtroom for that limited purpose or may also identify
the accused by observing the image of the latter on a
television monitor
Bar 2006: When may the trial court order that the testimony of the
child be taken by live-link television?
The substantial likelihood that the child would suffer trauma from
testifying in the presence of the accused, his counsel or the prosecutor
as the case may be taken into consideration to approve the order for
live-link television. Trauma must be of the kind that would impair the
(a) completeness and (b) truthfulness of the testimony of the child.
C Videotaped Deposition of Child Witness
Basic Features
Prosecutor, Counsel, or guardian ad litem may apply for an order to take
the deposition of a child by recording it on videotape. The court will
order it when it finds that the child will not be able to testify in open
court at the trial.
Role of the Judge
The judge shall preside during the videotaped deposition and will already
rule upon the objections and its grounds at the time of the taking of the
deposition.
Persons who may be present during the deposition
a) Prosecutor
b) Defense counsel
c) Guardian ad litem
d) Accused (subject to (e))
e) Other persons determined by the court be necessary for the
childs welfare
f) One/both support persons, facilitator, interpreter
g) Court stenographer
h) Persons necessary to operate the videotape equipment
Important: the rights of the accused during trial shall not be violated
during the deposition especially: right to counsel and to confront and
cross examine the child
Accused Exclusion
The accused may be excluded from the room during the deposition
taking if based on evidence the child will be unable to testify in the
physical presence of the accused. If the accused is excluded from the
deposition, the child need not see the image of the accused if the
testimony of the child is later taken through live-link television.
Videotape Preservation
The videotaped deposition will be preserved and stenographically
recorded. Both the video and stenographic notes will be transmitted to
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the clerk of court where the case is pending for safekeeping and shall
be made a part of the record.
When Videotaped Deposition Used
The deposition may be used if at the time of trial, the child is unable to
testify because:
a) Trauma (as per Sec. 25f)
b) Child is dead (sec.4c of Rule 23)
c) Child is 100 km away from court or out of the Philippines
(sec.4c of Rule 23)
d) Child is sick (sec.4c of Rule 23)
e) Childs attendance cant be procured by subpoena (sec.4c of
Rule 23)
IMPT: After the videotaping but before or during trial, any party may file
any motion for additional videotaping on the ground of newly discovered
evidence. The court may order an additional videotaped deposition to
receive the newly discovered evidence
EXN to the Hearsay Rule
Admissibility Requirements
Generally, hearsay statements are inadmissible as per the Rules of
Court.
However, hearsay statements of child are admissible provided:
a) It is used only in child abuse cases and the statement must
be made by the child describing any act or attempted act of
child abuse.
b) The proponent shall inform the adverse party the intention to
offer such statement and its particulars to provide the adverse
party a fair opportunity to object before the hearsay
statement may be admitted
c) If child is available, the court (upon motion) will require the
child to be present in court during the introduction of the
hearsay statement for cross-examination by the adverse party
d) If child is unavailable, the fact of such circumstance of
unavailability must be proved by the proponent and the
hearsay testimony shall be admitted only if corroborated by
other admissible evidence
In ruling the admissibility of the hearsay statement, the court will
consider the following circumstances in admitting the hearsay:
a) Time
b) Content
c) circumstances surrounding the making of the statement
d) motive to lie
e) general character of the declarant child
f) the number of persons who heard the statement
g) the spontaneity of the making of the statement
h) timing of the making of the statement
i) relationship between the declarant child and witness
j) remoteness of the possibility of a faulty recollection
k) other circumstances
Character Evidence in Child Abuse Cases
Under the sexual abuse shield rule, the following are not admissible in
any criminal proceeding involving alleged sexual child abuse:
a) Evidence offered to prove that the alleged victim engaged in
other sexual behavior
b) Evidence offered to prove the sexual predisposition of the
alleged victim
EXCEPTION:
Evidence of specific instances of sexual behavior by the alleged victim is
admissible to prove that a person other than the accused was the source
of semen, injury, or other physical evidence
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Confidentiality of the Records
Any record regarding a child shall be confidential and kept secret under
seal. The record shall be released only upon:
Written request
Order of the court to the following specified persons
a. Members of the court staff for administrative use
b. Prosecuting attorney
c. Defense counsel
d. Guardian ad litem
e. Agents of investigating law enforcement agencies
f. Other persons as determined by the court
Confidentiality of any record regarding a child is protected by the
contempt powers of the court
Protective Orders under the Rule on Examination of a
Child Witness
The videotape/audiotape of a child under court record is under
protective order of the court but may be viewed by:
a) Parties
b) Expert witnesses
c) Guardian ad litem
These persons can only be granted access to the tape, its transcription
or any part thereof if they sign a written affirmation that he or she has
received and red a copy of the protective order; that he submits to the
jurisdiction of the court with respect to the protective order, and that in
case of violation thereof, he will be held in contempt.
No portion of the tape should be divulged by the persons viewing it to
anyone else. Furthermore, no tape shall be given, loaned, sold or shown
to any person except as ordered by the court.
Within 30 days from receipt, all copies of the tape and any transcripts
thereof shall be returned to the clerk of court for safekeeping unless the
period is extended by the court on motion of a party.
The court may also issue additional protective orders to protect the
privacy of the child upon motion or motu proprio.
OFFER OF EVIDENCE AND TRIAL OBJECTIONS
Provisions (Section 34-40)
Section 34. Offer of evidence. The court shall consider no evidence
which has not been formally offered. The purpose for which the evidence
is offered must be specified. (35)
Section 35. When to make offer. As regards the testimony of a
witness, the offer must be made at the time the witness is called to
testify.
Documentary and object evidence shall be offered after the presentation
of a party's testimonial evidence. Such offer shall be done orally unless
allowed by the court to be done in writing. (n)
Section 36. Objection. Objection to evidence offered orally must be
made immediately after the offer is made.
Objection to a question propounded in the course of the oral
examination of a witness shall be made as soon as the grounds therefor
shall become reasonably apparent.
An offer of evidence in writing shall be objected to within three (3) days
after notice of the unless a different period is allowed by the court.
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In any case, the grounds for the objections must be specified. (36a)
Section 37. When repetition of objection unnecessary. When it
becomes reasonably apparent in the course of the examination of a
witness that the question being propounded are of the same class as
those to which objection has been made, whether such objection was
sustained or overruled, it shall not be necessary to repeat the objection,
it being sufficient for the adverse party to record his continuing objection
to such class of questions. (37a)
Section 38. Ruling. The ruling of the court must be given
immediately after the objection is made, unless the court desires to take
a reasonable time to inform itself on the question presented; but the
ruling shall always be made during the trial and at such time as will give
the party against whom it is made an opportunity to meet the situation
presented by the ruling.
The reason for sustaining or overruling an objection need not be stated.
However, if the objection is based on two or more grounds, a ruling
sustaining the objection on one or some of them must specify the
ground or grounds relied upon. (38a)
Section 39. Striking out answer. Should a witness answer the
question before the adverse party had the opportunity to voice fully its
objection to the same, and such objection is found to be meritorious,
the court shall sustain the objection and order the answer given to be
stricken off the record.
On proper motion, the court may also order the striking out of answers
which are incompetent, irrelevant, or otherwise improper. (n)
Section 40. Tender of excluded evidence. If documents or things
offered in evidence are excluded by the court, the offeror may have the
same attached to or made part of the record. If the evidence excluded
is oral, the offeror may state for the record the name and other personal
circumstances of the witness and the substance of the proposed
testimony.
Importance of Offer Evidence
Introduction
Evidence must be formally offered, otherwise the court shall not consider
it. The duty of the court is to rest its findings of fact and judgement only
and strictly upon the evidence offered by the parties. Otherwise if the
court is allowed to consider evidence not formally offered the following
consequences will occur:
1. Opposing parties will be deprived of their chance to examine
the document and to object to its admissibility
2. The appellate court will have difficulty reviewing documents
not previously scrutinized by the court below
No evidentiary value can be given to pieces of evidence submitted by
the BIR since these are not formally offered. Even if the CTA is not
strictly governed by the technical rules of evidence, presentation of the
BIR of evidence is NOT a mere procedural technicality considering that
this is the only means by which the CTA may ascertain and verify the
truth of the claims of the BIR (Dizon v. CTA)
A document submitted for the first time in the CA which was merely
attached to the motion for reconsideration should not be considered
since no evidence which has not been formally offered should be
considered. It should have been offered in the RTC (Spouses Tan v.
Republic)
However, where the absence of an offer of a testimonial evidence was
not objected to, the court must consider the testimony. As when the
witness was cross-examined by the adverse party despite failure of
counsel to make an offer of the testimony of the witness.
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Suggested Answer: The demurrer should be denied. While under the

A document, or any article for that matter, is not evidence when it is
simply marked for identification; it must be formally offered, and the
opposing counsel given an opportunity to prove or identify it.
Identification of Evidence Formal offer as an Exhibit
Rules of Court, the court shall consider no evidence which has not been
formally offered, this is true only when the failure to offer an evidence
has been objected to. The failure to object to the omission of the
prosecutor and the cross-examination of the witness by the adverse
party, taken together, constitute a waiver of the defect.

Done in the course if the trial
and is accompanied by the
marking of the evidence as an
exhibit
Done only when the party rests
When is Evidence to be Offered
its case
Testimony of Witness
The offer is made at the time the witness is called to testify (Sec. 35)

Documentary and Object Evidence

When Formal Offer of Evidence is not Required
Formal offer of Evidence NOT required in the following cases:
1. In a summary proceeding because it is a proceeding where
there is no fill-blown trial;
2. Documents judicially admitted or taken judicial notice of;
3. Documents, affidavits and depositions used in rendering a
summary judgment;
4. Documents or affidavits used in deciding quasi-judicial or
administrative cases;
5. Lost objects previously marked, identified, described in the
record, and testified by witness who had been subject of
cross-examination in respect to said objects.
People v. Matte
Even though the proceeding requires evidence to be offered, it may still
be allowed without formal offer provided:
1. The evidence must have been duly identified by testimony
duly recorded
2. The same must have been incorporated in the records of the
case.
People v. Libnao
Evidence of the prosecution in a crime involving drugs were considered
by the court even without it having been formally offered because the
evidence was properly identified by testimony duly recorded and
incorporated in the records of the case. Furthermore, the counsel for the
accused also cross-examined the witnesses testifying on the evidence.
Offered after the presentation of a partys testimonial evidence. The
offer is orally made unless allowed by the court to be in writing (Sec.
35)
Important: the presentation of a documentary or object evidence for
marking and identification during the course of the trial is NOT the offer
contemplated in the rules. Failure to object to the evidence at this time
should not be construed as a waiver of the objection to the evidence.
Macasiray v. People
Facts: Macasiray and two others were accused of murder. The
prosecution introduced two documents. At the time these two were
introduced for marking and identification, the accused did not object.
When offered at the close of prosecutions presentation of evidence, the
accused objected to the admissibility of the documents on the ground
that the documents were made without the assistance of counsel. Trial
court sustained it but the CA overruled the objection since it considered
the failure of the defense to object to the documents when they were
introduced for marking and identification, as a waiver object
Ruling: SC held that objections to a documentary evidence shall be made
after it is offered and the offer of such evidence shall be made after the
presentation of a partys testimonial evidence.
A party is not deemed to have waived objection to admissibility of
documents by his failure to object to the same when they were marked,
identified and then introduced during the trial, because objection to
documentary evidence must be made at the time it is formally offered
and not earlier.

Titan Construction Co. V. Uni-Field Enterprises Inc
Certain receipts and sales invoices was not formally offered by the
RESPONDENT but the same formed part of PETITIONERs formal offer.
Petitioner in this case assailed the propriety of the courts in using the
evidence HE offered as basis to award RESPONDENT damages. SC held
that it was proper to do so because the pieces of evidence were formally
offered anyway and hence can be considered by the courts below
Bar 2003: X and Y were charged with murder. Upon application by
prosecution, Y was discharged from the information to be used as a
state witness. Prosecutor presented Y as a witness but forgot to state
the purpose of his testimony much less offer it in evidence. Y testified
that he and X conspired to kill the victim but it was X who actually shot
the victim. The testimony of Y was the only material evidence
establishing the guilt of X. Y was thoroughly cross-examined by the
defense counsel. After prosecution rested its case, the defense filed a
motion for the demurrer to evidence based on the following grounds.
a) Testimony of Y should be excluded because its purpose was
not initially stated and it was not formally offered in evidence
as required by Sec. 34, Rule 132 of the Revised Rules on
Evidence
Rule on the motion of demurrer.
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Furthermore, a document or any article for that matter, is not evidence
when it is simply marked for identification it must be formally offered
(Candido v. CA)
The mere fact that a document is marked as an exhibit does not mean
that it has thereby already been offered as part of the evidence of a
party. Yet, where the accused fails to object to the admissibility of
certain items during their formal offer, he is deemed to have waived his
right against their admissibility. People v. Diaz (not in book)
How Offer of Evidence is Made
When a party makes a formal offer of his evidence, he must state the
nature or substance of the evidence, and the specific purpose for which
the evidence is offered.
The court shall consider the evidence solely for the purpose for which it
is offered, not for any other purpose.
Bar 1983: Atty. Felipe Malang was the counsel for the plaintiff in an
action to collect the alleged purchase price of a tractor. For his principal
defense, the defendant alleged that the true transaction between the
parties was only a lease of the tractor, not a sale thereof, and therefore,
the defendant, being a mere lessee, was not liable for the alleged
purchase price.
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In the course of the trial, Atty. Malang asked his witnesses to identify
certain documents which he marked as: Exhibt A, B-1, B-2 and B-3, and
C. After all of his witnesses had completed their respective testimony,
Atty. Malang made an offer of his documentary evidence as follows.
I offer in evidence Exhibits A, B, B-1, B-2, B-3 and C
Did Atty. Malang commit any error in the manner by which he made an
offer of the documentary evidence made by the plaintiff? Reasons
Suggested Answer: Atty. Malang committed errors in the manner by
which he offered his documentary evidence
Specific Objections
The Rule does not provide how specific objections are made. Practical
reasons however tell us that the objection must be specific enough to
adequately inform the court the rule of evidence or substantive law that
authorizes the exclusion of the evidence.
Examples of specific objections
a) Question calls for a hearsay answer
b) Witness cannot testify on a privileged communication
c) The question calls for a conclusion
d) The question is beyond the scope of the direct examination
e) Impeachment is improper

Under the rules, when a party makes a formal offer of his evidence, he Important: the objection irrelevant may seem general but it may be
must state the nature or substance of the evidence, and the specific considered as specific. This kind of objection states a distinct and
purposes for which the evidence is offered. Atty. Malang failed to do substantial ground for exclusion. When the evidence clearly is one which
these. does not prove a fact in issue, with no probative value and with no
relationship to the fact in issue, or inadmissible for any purpose and no
c OBJECTIONS other objection is possible, there is no other ground for objection except
to say that it is irrelevant.
Purpose
When a general objection be allowed
Purpose of objections The rule on specificity is dictated largely by the need to allow the court
a) Objections are made to keep out inadmissible evidence that to intelligently rule on the objection and give the other party an
would cause harm to a clients cause. The rules of evidence opportunity to withdraw the evidence or to correct an error in his
are not self-operating and hence, must be invoked by way of presentation.
an objection
b) Objections are interposed to protect the recordto present There is no compelling or an absolute need to specify the ground if the
the issue of inadmissibility of the offered evidence in a way ground is for exclusion should have been obvious to the judge or to
that if the trial court rules erroneously, the error can be relied counsel.
upon as a ground for a future appeal;
c) Objections may be made to protect a witness from being There are cases where the incompetency of the evidence is so palpable
embarrassed on the stand or from being harassed by the that a mere general objection is deemed sufficient, and where the
adverse counsel; portion of evidence objected to is clearly pointed out, and its illegality is
d) Objections are interjected to expose the adversarys unfair apparent on its face, then the objection must be allowed.
tactics like his consistently asking obviously leading questions;
e) Objections may be made to give the trial court an opportunity Formal and Substantive Objections
to correct its own errors and at the same time warn the court
that a ruling adverse to the objector may supply a reason to
invoke a higher courts appellate jurisdiction; and Bar 1997: What are the two kinds of objections? Explain each briefly.
f) Objections are made to avoid a waiver of the inadmissibility
of an otherwise inadmissible evidence. Formal Objections Substantive Objections
One directed against the alleged made and directed against the
General and Specific Objections defect in the formulation of the very nature of the evidence,
question. i.e., it is inadmissible either
because it is irrelevant or
An objection must point out the specific ground of the objection, and if incompetent or both
it does not do so, no error is committed in overruling it.
Ambiguous questions, leading Parol; not the best evidence,
Important: The objection should be specific. Hence, an objector must and misleading questions, hearsay privileged
be explicit as to the legal ground he invokes. He cannot simply manifest repetitious questions, multiple communication not
that he is interposing an objection. He has to precisely state the questions, argumentative authenticated, opinion, res
exclusionary rule that would justify his opposition to the proffered inter alios acta
evidence.

Examples of general objections.

a) Objection, the evidence is incompetent Timely Objections
b) Objection! Inadmissible!
c) Objection: Incompetent, irrelevant, and immaterial An objection must be made at the earliest opportunity. The earliest
d) Objection: Improper. opportunity depends on the manner the evidence is offered.

Note: These are general because they do not clearly indicate to the 1. If the evidence is offered orally
judge the ground upon which the objections are predicated. They assign Objection to the evidence must be made immediately after
no grounds to the objection. the offer is made.

An objection that evidence is incompetent, irrelevant, or immaterial is 2. Question propounded in the course of the oral examination of
ordinarily regarded in most jurisdictions, in the absence of any statutory the witness
provision to the contrary, as not sufficiently definite to present any Objected to as soon as the grounds therefor shall become
question for review. reasonably present.
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3. Evidence offered in writing
Objected to within 3 days after notice of the offer unless a
different period is allowed by the court.
Note: Objection must be timely raised since this will enable the adverse
party to meet the objection to his evidence, as well as grants to the trial
court the opportunity to pass upon and rule on the objection.
The objection to evidence cannot be made for the first time on appeal
because the party who has failed to timely object becomes estopped
from raising the objection afterwards AND to assail the judgment of the
lower court upon a cause as to which the lower court had no opportunity
to pass upon and rule is unfair.
It is presumed that an objection to the evidence before it is offered is
premature and no adverse inference may be had against a party who
does not object to the evidence before it is offered.
Illustration of Timely Objection
Q: Mr. Santos, can you tell this court what Mr. Cruz told you about how
the collision happened?
Counsel: OBJECTION, your Honor. Question calls for a hearsay answer!
COURT: Sustained.
The objection was timely raised since it succeeded in preventing a
hearsay answer from being introduced into the records of the case. The
nature of the question was asking for a hearsay answer and it is on this
ground can the question be objected to. If objection was made AFTER
the witness has answered, it would be TOO LATE.
Motion to Strike Answer or Testimony
What about witnesses with lightning-quick responses?
A: The counsel must nevertheless object, state his reason, and move to
strike out the answer. This is a technique which the lawyer avails when
he does not have the opportunity to object before the witness responds.
Sec. 39. Striking out answer. Should a witness answer the question
before the adverse party had the opportunity to voice fully its objection
to the same, and such objection is found to be meritorious, the court
shall sustain the objection and order the answer given to be stricken off
the record.
On proper motion, the court may also order the striking out of answers
which are incompetent, irrelevant, or otherwise improper. (n)
Motion to Strike may be availed of in the following instances:
a) When the answer is premature
b) When the answer of the witness is irrelevant, incompetent or
otherwise improper
c) When the answer is unresponsive
d) When the witness becomes unavailable for cross-examination
through no fault of the cross-examining party
e) When the testimony was allowed conditionally and the
condition for its admissibility was not fulfilled.
IMPORTANT: Sometimes an apparently unobjectionable question brings
out an objectionable and inadmissible response. The infirmity of the
response becomes apparent only after it is completed. If the answer to
a question is damaging, then relief may be obtained by a motion to
strike.
Illustration of Motion to Strike
Witness is examined by the prosecutor. The case is one for homicide
and the information says the crime was committed in Town A. The
witness is presented to testify that he knows that it was indeed the
accused who killed the victim.
70| UNIVERSITY OF SAN CARLOS COLLEGE OF LAW
Q: Where were you on the date and time when the killing of the victim
happened? (there is no apparent impropriety in this question)
A: I was in Town B (Opposing counsel does not have to react
immediately to the answer because counsel should allow the witness
lack of personal knowledge to have an impact on the listener)
Q: How do you know it was the accused who killed the victim?
A: A witness to the killing told me a day after the incident (the infirmity
of the question is now very apparent.)
Counsel: OBJECTION! Hearsay! I move to strike out the answer and
disqualify the witness from testifying on the details of the incident. It is
obvious that he is incompetent for lack of personal knowledge.
Qualification of Witness
An objection to a witness; disqualification in general must be made as
soon as he is called to the stand and before his examination begins,
provided his disqualification is then known.
Waiver of Objections: Belated Objections
Waiver implies the existence of a right a claim, a privilege, or something
one is entitled to. It is by its nature a unilateral act.
It is not always a positive act. A waiver may result from failure to
perform an act. When the claim, or privilege is abandoned, repudiated,
renounced, or not asserted, there is a waiver.
Applied to objections, there is a waiver there is failure to point out some
defect, irregularity, or wrong in the admission or exclusion of evidence.
If no objection is made when it should have been made, the objection
is deemed to have been waived by the party upon whom making the
objection is incumbent. A rule of evidence not invoked is waived.
If there is a continuing objection had been interposed on prohibited
testimony, the objection is deemed waived where the objecting counsel
cross-examined the witness on the very matters subject of the
prohibition
The acceptance of an incompetent witness in a civil suit as well as the
allowance of improper questions that may be put to him while on the
stand, is a matter within the discretion of the opposing litigant who may
assert his right by timely objection or he may waive it.
Note that the right to object is merely a privilege which the party may
waive. Thus, once admitted, the testimony is in the case for what it is
worth, and the judge has no power to disregard it for what it is worth,
and the judge has no power to disregard it for the sole reason that it
could have been excluded if objected to, nor can he strike it out on his
own motion (Marella v. Reyes. 12 Phil 1).
Extent of Waiver for Failure to Object
What is waived
What is waived are objections to its admissibility. The evidence becomes
admissible but the waiver involves no admission that the evidence
possesses the weight attributed to it by the offering party.
The waiver of objection should not be construed as an admission that
the evidence is credible. It does not also mean that the non-objecting
party waives his right to present controverting evidence. It only waives
objection the (a) relevance and the (b) competence of the evidence
Sec. 3. Admissibility of evidence- Evidence is admissible when it is
relevant to the issue and is not excluded by the law or these rules
Admissibility NOT equal to the Weight of the Evidence
The lack of objection merely makes an incompetent evidence admissible.
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The rule of waiver by failure to object applies also the admission of
documentary evidence. Failure to object waives an objection that there
was an irregularity in the taking of an affidavit or deposition, that the
document is not what it purports to be on its face, or that it is not
relevant. Introducing a note in evidence without objection dispenses
with the necessity of proving the signatures on the note or of its
execution.
The absence of an objection makes the hearsay evidence admissible
because it has assumed the character of an evidence, but other than
becoming evidence, no special characteristic is conferred upon it by the
waiver. Its inherent nature as wanting in the indicia of trustworthiness
required of a credible evidence remains. Which is why the SC has ruled
that hearsay evidence whether objected to or not has no probative
value.
The judge considers the question as improper and the witness will not
be allowed to answer the question. This means the exclusion of a
testimonial evidence.
Overruled
This means that for the court, the question is proper and the witness
will be allowed to answer.
Reptition of Objections
If the question a witness is being asked are of the same class as those
to which objection was sustained or overruled, it is no longer necessary
to repeat an objection when such becomes apparent. Instead of
repeating the objection, it is sufficient for the objection to be recorded
as a continuing objection to such class of objectionable questions.

Bar 2004: In a complaint for a sum of money filed before the Regional
Trial Court, plaintiff did not mention or even just hint at any demand for
payment made on defendant before commencing suit. During the trial,
plaintiff duly offered Exhibit A in evidence for the stated purpose of
proving the making of extrajudicial demand on defendant to pay P
500,000, the subject of the suit. Exhibit A was a letter of demand for
defendant to pay said sum of money within 10 days from receipt,
addressed to and served on defendant some two months before suit was
begun. Without objection from defendant, the court admitted Exhibit A
in evidence.
Answer: The admission of the evidence was correct. There was no
objection when Exhibit A was offered in evidence. It could have been
objected to on the ground that is not related to an issue raised in the
pleadings. However, it is a basic rule that inadmissibility of an evidence
may be waived.
Tender of Exclusive Evidence
Remedy if Objection to your Evidence is Sustained
If you know that your evidence has basis but the other counsel objects
to it which is sustained by the court, remedy is to tender excluded
evidence.
Note: See story in page 532, definitely worth your time to read.
Sec. 40. Tender of excluded evidence. If documents or things
offered in evidence are excluded by the court, the offeror may have the
same attached to or made part of the record. If the evidence excluded
is oral, the offeror may state for the record the name and other personal
circumstances of the witness and the substance of the proposed
testimony.

Purpose of Tender of Excluded Evidence

Rulings on Objections
Rulings on objections
The rulings of the court must be given immediately after the objection
is made except when the court desires to take a reasonable time to
inform itself on the question presented. However, the court must give
its ruling during the trial and at such time as will give a party an
opportunity to meet the situation presented by the ruling.
1. To allow the court to know the nature of the testimony or the
documentary evidence and convince the trial judge to permit
the evidence or testimony
2. Even if he is not convinced to reverse his earlier ruling, the
tender is made to create and preserve a record for appeal
How tender of excluded object/documentary evidence done
the offeror may have the same attached to or made part of the record.

If the court will merely take the objection into consideration and will
allow the witnesses to testify over the objection of the counsel for the
defendant, it would be prejudicial to the interests of a litigant since it
deprives the party against whom the ruling was made an opportunity to
meet the situation presented by the ruling.
People v. Singh
Facts: Singh allegedly extra-judicially confessed to a friend that he killed
the victim. The friend became a prosecution witness and testified as to
what Singh told him. Singh moved to strike out the testimony on the
ground of the absence of evidence that the alleged confession was made
freely and voluntarily. As in Lopez, the court in Singh did not rule on the
objection and merely took the motion under advisement
Ruling: The SC held if as a result of the failure of the trial court to
promptly rule upon a motion to strike a confession from the record, the
accused has been deprived of the opportunity to present evidence in
rebuttal of such confession, that fact should be brought to the attention
of the trial court through the appropriate motions
The offering counsel must produce, describe, identify the object or
document and in case of the latter, to state the contents of the
document that is sought to be admitted where the substance of the
same is not apparent on its face. Reading the substance of the document
is an accepted way of stating its contents for the record in states which
recognize a tender. A disclosure of the contents is necessary in order for
the court to determine its competence and relevance.
The next step is to state the purpose for which the object or document
sought to be attached is offered, and to ask that it be marked for
identification and have it attached to the record.
How tender of excluded testimonial evidence done
the offeror may state for the record the name and other personal
circumstances of the witness and the substance of the proposed
testimony.
TWO METHODS OF MAKING TENDER OF EXCLUDED TESTIMONIAL
EVIDENCE

Note: Words like submitted or the objections are noted or will be
taken into consideration are not appropriate rulings and neither
sustains or overrules the objections.
Sustained
First Method: where counsel tells the court what the proposed
testimony will be. Method prescribed in the rules of court. After stating
for the record the name and other personal circumstances of the
witness, counsel, for instance says:

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Defendant, Your Honor, makes this tender of excluded evidence. If

permitted to testify, the defendant will affirm that he was allowed by the
plaintiff to build a house in the formers land; that the witness knows
about this fact because the plaintiff granted this permission to him
personally; that the permission was given on (date), in (place) at
approximately (time), and in the presence of the plaintiffs neighbor and
wife who interposed no objection to the grant of permission.

Second Method: using the question and answer form. To illustrate:

Your Honor, if allowed to ask the question object to, the testimony
would have been as follows:
Q: Why did you construct a house on the plaintiffs land?
A: Because he allowed me to do so
Q: When and Where was the permission granted?
A: On (date), in (place) at around (time), sir
Q: How was the permission granted?
A: it was orally granted.
Q: Who were present, if any, when plaintiff gave you the permission to
build a house on the land?
A: (witness gives the names of the witnesses)

Important: Advantage of this method is brevity and efficient but it does

not create as clear a record as the second method. Whichever method
is to be used lies in the discretion of the trial court. Whichever method
of tender is used, the advocate must see to it that the offer must be
specific enough to contain the facts and circumstances of the matter
sought to be proved by the excluded evidence.

The tender is not meant to be a mere manifestation to the court in mere

general terms. It must not be in the form of conclusions of fact. The
offer must make reference to the details of the excluded testimony or
excluded document.

Objection to the manner of tender of excluded evidence

The rules are silent on this issue. However, there is no cogent reason
to disallow the objection. If the document tendered is not described, or
identified, its substance stated in vague and general terms or when the
purpose for which it is offered is not declared, then the evidence has to
be objected to. If the testimony is in the form of conclusion, thus, it fails
to disclose sufficient information to enable the court and the other party
to determine its admissibility, the same may be the target of an
objection.

Bar 1991: Distinguish formal offer of evidence from offer of proof.

Formal Offer of Evidence Offer of Proof

Offer of testimony of a witness
prior to the latters testimony
Offer of documentary and
object evidence after a party
has presented his testimonial
evidence
Process by which a proponent
of an excluded evidence tenders
the same. If what has been
excluded is testimonial
evidence, the tender is made by
stating for the record the name
and other peronsal
circumstances of the proposed
witness and the substance of
his proposed testimony
If the evidence excluded is
documentary or of things, the
offer of proof is made by having
the same attached to or made a
part of the record.

Additional Evidence After Case is Rested

The rules of court do not prohibit a party from requesting the court to
allow it to present additional evidence even after it has rested its case.

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