Xavier University-Ateneo de Cagayan

College of Law

Evidence –A
Justice Edgardo Lloren

Group 9

Oguis, Reese
Okit, Michael
Pacana, Ma. Regina Corazon
Pedroza, Nikko Arnorld
Pelinggon, Rafael
 Table of Contents

1. OPINION RULE
Opinion of expert witness.
Opinion of ordinary witness.

2. CHARACTER EVIDENCE
Criminal cases.
Civil cases.

3. RULE ON EXAMINATION OF A CHILD WITNESS (A.M. 004-07-SC)

Applicability rule
Meaning of “child witness”
Competency of child witness
Live-link TV testimony of a child witness
Videotaped deposition of a child witness
Hearsay exception in child abuse cases
Sexual abuse shield rule
Protective orders

4. OFFER and OBJECTION

Offer of evidence
When to make an offer
Objection
Repetition of an objection
Ruling
Striking out of an answer
Tender of excluded evidence

2
 I. OPINION RULE

Opinion is an inference or conclusion drawn by a witness from facts some of which are
known to him and others assumed, or drawn from facts which, though lending probability
to the inference, do not evolve it by a process of absolutely necessary reasoning. (Black's
Law Dictionary)

The general rule:

The opinion of witness is not admissible. (Sec. 48, Rule 130 of the Rules of court)
Generally, opinions are not admissible because:
A. The making of an opinion is the proper function of the court. The witness is
supply the facts and for the court to form an opinion based on these facts.
B. Opinions are not reliable because they are often influenced by his own personal
bias, ignorance, disregard of truth, socio-cultural background, or religion, and
similar personal factors. Thus there may be as many diverse opinions as there are
witnesses.
C. The admission of opinions as evidence would open the floodgate to the
presentation of witnesses testifying on their opinion and not on facts.1

Exceptions:
(1) Opinion of an expert witness (Sec. 49, Rule 130)
(2) Opinion of an ordinary witness. (Sec. 50, Rule 130)

Opinion of an expert witness

Expert witness:
A person who belongs to the profession or calling to which the subject matter of the inquiry
relates to and who possesses special knowledge on questions on which he proposes to
express an opinion. (Black's Law Dictionary)

There is no definite standard of determining the degree of skill or knowledge that a witness
must possess in order to testify as an expert.

1
Batasnatin Philippine Law Library, RULE 130 Rules of Court - Admissibility of Evidence. Retrieved from
https://www.batasnatin.com/law-library/remedial-law/evidence/1089-rule-130-rules-of-court-admissibility-
of-evidence.html
3
It is sufficient that the following factors are present:
1. training and education
2. particular, first hand familiarity with the facts of the case
3. presentation of authorities or standards upon which his opinion is based.2

Expert evidence is admissible only if:

1. the matter to be testified requires expertise; and
2. The witness has been qualified as an expert.

Traditional areas where expert opinion is used:3

(i). Questions involving handwriting
(ii). Questioned documents
(iii). Fingerprints
(iv). Ballistics
(v). Criminal cases involving injuries and death
(vi). Drug cases
(vii). Value of properties
(viii). Blood groupings
(ix). DNA Profiling
(x) Forensics

Examples of opinion of Expert Witness:

1. Handwriting or document examination experts such as NBI and PNP crime
laboratory.
2. Opinion of expert witness belonging in the same general neighborhood and in the
same general line of practice as defendant such as physician or surgeon in medical
negligence or malpractice.
3. Expert opinion of a psychologist in a declaration of nullity of marriage on the
ground of psychological incapacity.

2
Tan, Ferdinand A., Evidence: A Compendium For The Bench And The Bar, Rex Bookstore (2014)
3
Batasnatin Philippine Law Library, supra.
4
1. Handwriting or document examination experts
The testimony of a handwringing expert is not indispensable in comparing or examining
handwritings and signatures.4 The purpose of examination of experts on certain contested
documents such as NBI, is to assist the court having jurisdiction over said litigation, in the
performance of its duty to settle correctly the issue relative to said documents. Even a non-
expert private individual may examine the same, if there are facts within his knowledge
which may help the court in the determination of said issue. Such examination, which may
properly be undertaken by a non-expert private individual, does not, certainly become null
and void when another examiner who is an expert and/or an officer of the NBI examines
the same.5 In the end, it is the court which has the discretion and the authority on whether
to give probative value of the results of the examination. (Sali v. Abubakar)

Probative value of testimony of an expert witness

The Supreme Court ruled that 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. A judge must conduct his own independent
examination of the signatures under scrutiny. The value of the opinion of a
handwriting expert depends not upon his mere statements of whether a writing is
genuine or false, but upon the assistance he may afford in pointing out
distinguishing marks, characteristics and discrepancies in and between genuine and
false specimens of writing which may be unnoticed by an unpracticed observer.6
(Tamani v. Salvador)

2. Opinion of Expert of Physician or Surgeon in Medical Negligence or Malpractice

The courts defer to the expert opinion of qualified physicians or surgeon because of the
courts’ realization that the physicians possess unusual technical skills which laymen in
most instances are incapable of intelligently evaluating.

The type of lawsuit which has been called medical malpractice or, more appropriately,
medical negligence, is that type of claim which a victim has available to him or her to
redress a wrong committed by a medical professional which has caused bodily harm. In
order to successfully pursue such a claim, a patient must prove that a health care provider,
in most cases a physician, either failed to do something which a reasonably prudent health
care provider would have done, or that he or she did something that a reasonably prudent

4
Equitable Cardnetwork, Inc Vs Josefa Borromeo Capistrani, Gr. 180157
5
Sali Vs Abubakar, G.R. No. L-24439
6
Tamani Vs Salvador, Gr 171497
5
provider would not have done; and that that failure or action caused injury to the patient.7
(Dr. Rubi Li v. Spouses Reynaldo and Lina Soliman)

In the case Davis v. Kraff , the U.S. Supreme Court stated that there are four essential
elements a plaintiff must prove in a malpractice action based upon the doctrine of informed
consent: (1) the physician had a duty to disclose material risks; (2) he failed to disclose or
inadequately disclosed those risks; (3) as a direct and proximate result of the failure to
disclose, the patient consented to treatment she otherwise would not have consented to; and
(4) plaintiff was injured by the proposed treatment. The gravamen in an informed consent
case requires the plaintiff to point to significant undisclosed information relating to the
treatment which would have altered her decision to undergo it. 8

3. Opinion of s Psychologist on Psychological Incapacity

There is no requirement that a party to be declared psychologically incapacitated should be
personally examined by a physician or a psychologist, there is nevertheless a need to prove
the psychological incapacity through independent evidence adduced by the person alleging
said disorder. The presentation of expert proof presupposes a thorough and in-depth
assessment of the parties by the psychologist or expert, for a conclusive diagnosis of a
grave, severe and incurable presence of psychological incapacity.9 (Jordan Paz vs. Jeanice
Pavon)

In Santos v. Court of Appeals, the court first declared that psychological incapacity must
be characterized by
(a) gravity;
(b) judicial antecedence; and
(c) incurability.

It must be confined to the most serious cases of personality disorders clearly demonstrative
of an utter insensitivity or inability to give meaning and significance to the marriage. 10

In Dimayuga-laurena v. Court of appeals, court explained:

(a) gravity it must be grave and serious such that the party would be incapable of carrying
out the ordinary duties required in a marriage;

7
Dr. Rubi Li v. Spouses Reynaldo and Lina Soliman, G.R. No. 165279
8
Davis v. Kraff, N.E.2d 2010 WL 4026765 Ill.App. 1 Dist., 2010, citing Coryell v. Smith, 274 Ill.App.3d
543, 210 Ill.Dec. 855, 653 N.E.2d 1317 (1995)
9
Jordan Paz v. Jeanice Pavon Paz, GR NO. 166579
10
Santos v. Court of appeals 310 Phil. 21 (1995).
6
(b) judicial antecedence it must be rooted in the history of the party antedating the marriage,
although the overt manifestations may emerge only after the marriage; and
(c) incurability it must be incurable, or even if it were otherwise, the cure would be beyond
the means of the party involved.11

Opinion of an Ordinary witness

Ordinary Opinion Evidence:

that which is given by a witness who is of ordinary capacity and who has by opportunity
acquired a particular knowledge which is outside the limits of common observation and
which may be of value in elucidating a matter under consideration.

An opinion of an ordinary witness maybe admitted as evidence only with respect to

(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.
(d) The witness may also testify on his impressions of the emotion, behavior, condition
or appearance of a person. (Sec. 50, Rule 130)

Opinion on handwriting
An opinion of a non-expert as to handwritings may be admitted provided the same is he
has sufficient familiarity The testimony of a handwringing expert is dispensable in
comparing or examining handwritings and signatures. Even a non-expert private
individual may examine the same, if there are facts within his knowledge which may help
the court in the determination of said issue.12 (Sali v. Abubakar)

a) By the fact that he has seen writing purporting to be that of the other person upon
which he has acted or been charged.
Example: persons in receipt of demand letters, notices, purchase orders, letters of
inquiry, directive, memorandum, letters of authority13

b) Familiarity has been acquired due to close personal, business, social or professional
relations which include the regular receipt, sending and reading of mutual written
hand-written communications between the witness and the other person.

11
Dimayuga-laurena v. Court of appeals G.R. No. 159220
12
Sali Vs Abubakar, G.R. No. L-24439
13
Batasnatin Philippine Law Library, supra.
7
 Examples are (i) Personal or social relations such as pen-pals, spouses, lovers,
classmates (ii) Business such as between the employee such as secretary and
employer, teacher and student14

Opinion on mental sanity

When mental sanity of a person is at issue, an expert testimony is not necessary. The
observations of a judge coupled with other evidence such as opinion of an ordinary witness
will suffice to establish the state of mental sanity of a person. 15

There are two instances when an ordinary person may testify on the mental sanity or state
of mind of a person:

1. Under the Civil Code it permits the opinion of a subscribing witness to a writing the
validity of which is in dispute in that the sanity or state of mind of a party thereto is put in
issue. Examples: (a). An attesting witness to a will may give his opinion on whether the
testator was of sound and disposing mind (b) A subscribing witness to a contract may give
his opinion that the party was fully conscious and aware of the nature of his acts.16

2. Under section 50 of Rule 130 in that it allows the opinion of an intimate acquaintance
who may give his opinion based on the external conduct of a person. Examples are family
members, immediate neighbors, house hold helps, office and business acquaintances. Thus
where the accused puts up insanity as a defense, his friends, relatives and family members
are competent to testify on his mental sanity. But not strangers or casual acquaintances. 17

Opinions on the emotions, behavior, conduct or appearance of a person.

1. Examples: (a) emotions: that a person is angry, agitated, exited, tense, nervous,
hesitant. Happy, elated, grateful, afraid (b) condition or appearance- as unkempt, dirty, well
groomed, drunk, tired, sleepy, haggard, sickly.18

2. However, a witness may not give his opinion on the motive, reason or purpose why
a person did or did not do an act unless these were communicated to the witness, such as
jealousy or revenge, or financial reward.19

14
Ibid.
15
Tan, Ferdinand A., Evidence: A Compendium For The Bench And The Bar, Rex Bookstore (2014)
16
Ibid, 13.
17
Batasnatin Philippine Law Library, supra.
18
Ibid.
19
Ibid.
8
 II. CHARACTER AS EVIDENCE

Character:
The aggregate of the moral qualities which belong to and distinguish an individual person;
the general result of the-one’s distinguishing attributes. That moral predisposition or habit,
or aggregate of ethical qualities, which is believed to attach to a person, on the strength of
the common opinion and report concerning him. (Black's Law Dictionary)

The General Rule:

The character evidence is not admissible. (Sec 51, Rule 130).

The rule is that the character or reputation of a party is regarded as legally irrelevant in
determining a controversy, so that evidence relating thereto is not admissible. Ordinarily,
if the issues in the case were allowed to be influenced by evidence of the character or
reputation of the parties, the trial would be apt to have the aspects of a popularity contest
rather than a factual inquiry into the merits of the case. After all, the business of the court
is to try the case, and not the man; and a very bad man may have a righteous cause. 20There
are exceptions to this rule however and Section 51, Rule 130 gives the exceptions in both
criminal and civil cases.21

Exceptions:
1. In criminal cases provided in first paragraph of Section 51 of Rule 130 of the rules
of court.
2. In civil cases provided in second paragraph of Section 51 of Rule 130 of the rules
of court.

Criminal Cases
1. Accused may prove his good moral character which is pertinent to the moral trait
involved in the offense charge;
2. The prosecution may not prove bad moral character of the accused unless in rebuttal
when the latter opens the issue by introducing evidence of his good moral character;
3. As to the offended party, his good or bad moral character may be proved as long as it
tends to establish the probability or improbability of the offense charged. (Sec 51, Rule
130)

20
Jones on Evidence, Civil and Criminal, vol. I, 5 th ed., Sec. 165, p. 294 [1958] citing Thompson v. Church,
1 Root (Conn) 312, and other cases; also cited in O. Herrera, Remedial Law, vol. V, p. 834 [1999]
21

9
 I. In criminal cases, sub-paragraph 1 of Section 51 of Rule 130 provides that the
accused may prove his good moral character which is pertinent to the moral
trait involved in the offense charged. When the accused presents proof of his
good moral character, this strengthens the presumption of innocence, and where
good character and reputation are established, an inference arises that the
accused did not commit the crime charged. This view proceeds from the theory
that a person of good character and high reputation is not likely to have
committed the act charged against him.22

Examples:23
(i) In estafa or embezzlement or malversation the moral trait is that of
dishonesty and deceit. Hence the accused may introduce evidence of his
honesty, fairness and openness in his personal and business deals or transactions

(ii) In physical assault cases the moral trait is violence hence the accused may
introduce evidence of his peaceable nature, his being friendly or of his passivity

(iii) In rape, he may prove his chaste character.

II. Sub-paragraph 2 provides that the prosecution may not prove the bad moral
character of the accused except only in rebuttal and when such evidence is
pertinent to the moral trait involved in the offense charged. This is intended to
avoid unfair prejudice to the accused who might otherwise be convicted not
because he is guilty but because he is a person of bad character. 24 (People vs
Lee)

The accused may present evidence of his good moral character only then the
prosecution can provide evidence for the bad moral character on its rebuttal. It
prevents the conviction on the account of his being a “bad man” instead of
anchoring the conviction on the evidence of his guilt. 25

22
29 Am Jur 2d, Evidence, Sec. 367 [1994 ed.]
23
Batasnatin Philippine Law Library, supra.
24
McCormick, Evidence, vol. I, 4th ed., Sec. 190, p. 797 [1992]; see also People v. Rabanes, 208 SCRA
768, 780 [1992], see also People vs Lee G.R. No. 139070
25
Riano, Willard, Evidence: The Bar Lectures Series (2013)
10
 III. Sub-paragraph (3) of Section 51 of the said Rule refers to the character of the
offended party. Character evidence, whether good or bad, of the offended party
may be proved if it tends to establish in any reasonable degree the probability
or improbability of the offense charged. Such evidence is most commonly
offered to support a claim of self-defense in an assault or homicide case or a
claim of consent in a rape case.26 (People vs Lee)

Examples:27
(i). In assault or homicide cases where he sets self-defense, or in cases of the
Battered Wife Syndrome defense, the accused may prove the victim is of a
violent character, quarrelsome, trouble seeker or pugnacious.
(ii) In sex crimes involving unchaste acts of the accused, where the willingness
of the woman is material.

(iii) In murder and in other heinous crimes, evidence of the bad moral character
of the victim is irrelevant

Bad Moral Character of the Victim

In the case of People vs Lee, proof of the bad moral character of the victim is irrelevant to
determine the probability or improbability of his killing. Accused-appellant has not alleged
that the victim was the aggressor or that the killing was made in self-defense. There is no
connection between the deceased’s drug addiction and thievery with his violent death in
the hands of accused-appellant. In light of the positive eyewitness testimony, the claim that
because of the victim’s bad character he could have been killed by any one of those from
whom he had stolen, is pure and simple speculation.

Moreover, proof of the victim’s bad moral character is not necessary in cases of murder
committed with treachery and premeditation.28

Exception to this exception:

In prosecution for rape, evidence of complainant’s past sexual conduct, opinion
thereof or of his/her reputation shall not be admitted unless, and only to the extent

26
R. Lempert & S. Saltzburg, A Modern Approach to Evidence, American Casebook Series, p. 238 [1982];
McCormick on Evidence, vol. I, 4th ed., Sec. 193, pp. 820-822 [1992] at Sec. 193, pp. 820-822; see also
People vs Lee G.R. No. 139070
27
Batasnatin Philippine Law Library, supra.
28
People vs Lee G.R. No. 139070
11
 that the court finds that such evidence is material and relevant to the case. (Rape
Shield, RA 8505Section 6)

In the case of People Vs Avelino Felan, the Spureme Court ruled that discrediting
a witness because of illegal drugs use and prostitution, even if true, does not destroy
the credibility of a witness or negate the rape.

Indeed, the Court has ruled that the victim’s moral character was immaterial in the
prosecution and conviction of an accused for rape, there being absolutely no nexus
between it and the odious deed committed. Moreover, even a prostitute or a woman
of loose morals could fall victim of rape, for she could still refuse a man’s lustful
advances. 29

Civil cases

The moral character of either party thereto CANNOT be proved UNLESS it is pertinent to
the issue of character involved in the case.

Evidence of Good character of witness

Both criminal and civil, the bad moral character of a witness may always be proved by
either party (Section 11, Rule 132) but not of his good moral character, unless such
character has been impeached. (Section 14)

Examples:30
i. Action for damages for injury to plaintiff’s reputation as in libel cases
ii. Actions which impute moral turpitude such as the employment of deceit,
misrepresentation or fraud
iii. Actions for damages due to seduction
iv. Legal separation or annulment of marriage based on reasons grounded on the
character of the spouses, such as psychological incapacity
v. Action for damages for breach of promise to marry where the bad character of
plaintiff maybe used as a defense
vi. As a defense in actions for Alienation of Affection
vii. In actions involving custody of children

29
People Vs Avelino Felan, Gr 176631
30
Batasnatin Philippine Law Library, supra.
12
viii. Opposition to the appointment of a guardian, or administrator of the property of
another

III. RULE ON EXAMINATION OF A CHILD WITNESS (A.M. 004—07-SC)

A. Applicability of the rule

1. Unless otherwise provided, the Rule on Examination of a Child Witness shall

govern the examination of the following witnesses:
a. Child witnesses who are victims of a crime;
b. Child witnesses accused of a crime; and
c. Child witnesses to a crime.
2. The rule does not only apply to criminal proceedings. It also applies to non-criminal
proceedings as long as such proceedings involve child witnesses.31

B. Meaning of a child witness

1. A “child witness” is any person who at the time of giving testimony is below the
age of eighteen (18) years. Whether or not a person is a child witness is determined
as of the time of the giving of testimony.
2. The above definition is qualified by the rule that, a child over 18 years may be
considered a child. This rule applies only in child 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 fully take care of himself, or protect himself from abuse, neglect, cruelty,
exploitation, or discrimination.32

C. Competency of a child witness

1. A presumption exists under sec. 6 of the Rule on Examination of a Child Witness

that every child is qualified to be a witness. Unless a child’s testimony is punctured
with serious inconsistencies as to lead one to believe that he was coached, if he can
perceive and make known his perception, he is considered a competent witness
(People vs. Cidro).33
2. This presumption, however, does not preclude the court from conducting a
competency examination of the child. Such examination shall be conducted when
the court finds that there is a substantial doubt on the following matters:

31
Sec. 1, Rule on Examination of a Child Witness, A.M. 004-07-SC
32
Sec. 4(a), Rule on Examination of a Child Witness, A.M. 004-07-SC
33
People Vs Cidro, 105 Phil. 238; People vs Gacho, G.R. No. 60990, Sept. 23, 1983
13
 a. The ability of the child to perceive
b. The ability of the child to remember
c. The ability of the child to communicate
d. The ability of the child to distinguish truth from falsehood; or
e. The ability of the child to appreciate the duty to tell the truth in court.
3. The doubt that will justify a competency examination must be a substantial one.
The substantial doubt must refer to certain specific matters mentioned in Sec. 6,
like among others, the ability of the child to appreciate the duty to tell the truth in
court.
4. The court in determining the competency of a child witness, must consider his
capacity (a) at the time the fact to be testified to occurred such that he could receive
correct impressions thereof, (b) to comprehend the obligation of an oath, and (c) to
relate those facts truly at the time he is offered as a witness. Otherwise stated, the
court should take into account his capacity for observation, recollection and
communication (Republic vs. CA).34
5. Under sec. 6 of the Rule, the examination may be conducted motu proprio by the
court or on motion of a party.

D. Examination of a child witness

1. The examination of a child witness shall be done in open court when the child is
presented in a hearing or any proceeding.
2. The answer of the witness shall be given orally, except if the witness is
incapacitated to speak or the question calls for a different mode of answer.
3. The party who presents a child witness or the guardian ad litem of such child
witness, may move the court that he may be allowed to testify in the manner
provided for under the Rules.35
4. An interpreter may be appointed by the court, motu proprio or upon motion, to
interpret for the child when said child does not understand the English or Filipino
language, or is unable to communicate in said languages due to his developmental
level, fear, shyness, disability, or other similar reasons.36
5. A facilitator may be appointed by the court, motu proprio or upon motion, if the
court determines that the child is unable to understand or respond to questions
asked. The facilitator may be any of the following:
a. A child psychologist

34
Republic vs CA, et al., G.R. No. 116372, Jan. 18, 2001
35
Sec. 8, Rule on Examination of a Child Witness, A.M. 004-07-SC
36
Sec. 9, Rule on Examination of a Child Witness, A.M. 004-07-SC
14
 b. Psychiatrist
c. Social worker
d. Guidance counselor
e. Teacher
f. Religious leader
g. Parent
h. Relative.37
6. 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
emotional support.38
7. As a rule, a leading question is not allowed in direct examination.39 However, under
Sec. 20 of the Rule on Examination of a Child Witness, the court may allow leading
questions in all stages of examination of a child if the same will further the interests
of justice.

E. Live Link Television Testimony of A Child Witness

A. An order that the testimony of the child be taken in a room outside the courtroom
and be televised to the courtroom by live-link television may be applied for by:
(1) the prosecutor;
(2) counsel; or
(3) guardian ad litem where the child is a victim or a witness.

B. Before the application for an order under this section by guardian ad litem
(1) he shall consult the prosecutor or counsel; and
(2) defer to the judgment of the prosecutor or counsel regarding the necessity
of applying an order.
(3) Such rule is not, however, an absolute one because in case the guardian ad
litem is convinced that the decision of the prosecutor or counsel not to apply
will cause the child serious emotional trauma, he himself may apply for the
order.

C. The court may, motu propio, hear and determine with notice to the parties, the need
for taking the testimony of the child through live-link television.

37
Sec. 10, Rule on Examination of a Child Witness, A.M. 004-07-SC
38
Sec. 11, Rule on Examination of a Child Witness, A.M. 004-07-SC
39
Sec. 10, Rule 130, Rules of Court
15
 D. The judge may question the child in chambers, or in some comfortable place other
than the courtroom, in the presence of:
(1) the support person;
(2) guardian ad litem
(3) Prosecutor; and
(4) counsel for the parties.
(5) The questions of the judge shall not be related to the issued at trial but to
the feelings of the child about testifying in the courtroom.

E. The court shall issue an order granting or denying the use of live-link television but
is required to state the reasons for such order.
F. In issuing the order, it shall consider certain factors such as
(1) The age and level of development of the child
(2) his mental and physical health including any mental or physical disability
(3) any physical, emotional, or psychological injury experienced by him;
(4) the nature of the alleged abuse;
(5) any threats against the child;
(6) his relationship with the accused or adverse party;
(7) his reaction to any prior encounters with the accused in court or elsewhere;
(8) His reaction prior to trial when the topic od testifying was discussed with
him by parents or professionals;
(9) Specifying symptoms of stress exhibited by the child in the days prior to the
testifying;
(10) Testimony of expert or lay witness;
(11) The custodial situation of the child and the attitude of the members
of his family regarding the events about which he will testify; and
(12) Other relevant factors, such as court atmosphere and formalities of
court procedure.40

G. The court may order that the testimony of the child be taken by live-link television
if there is a substantial likelihood that the child would suffer trauma from testifying
in the presence of the accused, his counsel or the prosecutor as the case may be.
H. The trauma must be a kind of which would impair the:
(1) completeness, or
(2) truthfulness of the testimony of the child.41

40
Sec 25(E), Rule On Examination Of Child Witness
41
Sec 25(F), Rule On Examination Of Child Witness
16
 I. If the court orders the taking of the testimony by live-link television:
a. The child shall testify in a room separate from the courtroom in the presence of
(1) the guardian ad litem;
(2) one or both his support persons;
(3) the facilitator and interpreter, if any;
(4) a court officer appointed by the court;
(5) persons necessary to operate the closed-circuit television equipment; and
(6) other persons whose presence are determined by the court to be necessary to the
welfare and well-being of the child.

b. The judge, prosecutor, accused, and the counsel for the parties 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:
(1) the judge;
(2) prosecutor;
(3) counsel for the parties;
(4) accused
(5) victim; and
(6) the public, unless excluded.

c. If it is necessary for the child to identify the accused at the trial, the court may:
(1) allow the child to enter the courtroom for the limited purpose of identifying the
accused, or
(2) allow the child to identify the accused by observing the image of the latter on a
television monitor. 42

F. Videotaped Deposition of A Child Witness

(Sec 27 of the Rule on Examination of a Child Witness)

42
Sec 25(G), Rule On Examination Of Child Witness
17
 ● The prosecutor, counsel, or guardian ad litem may apply for an order that a
deposition be taken of the testimony of the child and that it be recorded and
preserved on videotape. 43
● The court shall issue an order that the deposition of the child be taken and preserved
by videotape if it finds out that the child will not be able to testify in open court at
the trial.44 (sec 27b)
● The judge shall preside at the videotaped deposition of a child.
● Objections to deposition testimony or evidence, or parts thereof, and the grounds
for the objection shall be stated and shall be ruled upon at the time of the taking of
the deposition.
● The other persons who may be permitted to be present at the proceeding are:
a. The prosecutor
b. The defense counsel
c. The guardian ad litem
d. The accused, subject to subsection (e)
e. Other persons whose presence is determined by the court to be necessary to the
welfare and well-being of the child;
f. One or both of his support persons, the facilitator, and the interpreter, if any
g. The court stenographer and
h. Persons necessary to operate the videotape equipment.45

● The rights of the accused during the trial, especially the right to counsel and to
confront and cross-examine the child shall not be violated during the deposition.46
● The court may direct the accused to be excluded from the room in which the
deposition is conducted if the order of the court is based on evidence that the child
id unable to testify in the physical presence of the accused.
● If the accused is excluded from the deposition, it is not necessary that the child be
able to view an image of the said accused if the court orders that the testimony of
the child be taken by live-link television.47

● The videotaped deposition shall be preserved and stenographical recorded.

43
Sec 27(A),Rule On Examination Of Child Witness
44
Sec 27(B),Rule On Examination Of Child Witness
45
Sec 27(C),Rule On Examination Of Child Witness
46
Sec 27(D),Rule On Examination Of Child Witness
47
Sec 27(E),Rule On Examination Of Child Witness
18
 ● The videotape and the stenographic notes shall be transmitted to the clerk of the
court where the case is pending for safekeeping and shall be made part of the
record.48

● The videotaped deposition an stenographic notes shall be subject to protective order

as provided in Sec 31(b), Rule on Examination of Witness.49

● If, at the time of trial the court finds that the child is unable to testify for a reason
stated in Sec 25(f) of this Rule, or is unavailable for any reason described in Sec
4(c), Rule 23 of the 1997 Rules of Civil Procedure, the court may admit into
evidence the videotaped deposition of the child in lieu of his testimony at the trial.
The court shall issue an order stating the reasons therefor.50

● There must be substantial likelihood that the child would suffer trauma from
testifying in the presence of the accused, his counsel of the prosecutor.

● After the original videotaping but before or during trial, any party may file any
motion for additional videotaping on the ground of newly discovered evidence.
● The court may order an additional videotaped deposition to receive the newly
discovered evidence.

G. Exception to the Hearsay Rule Om Child Abuse Cases

● Hearsay statement of a child, which under the Rules of Court, is not admissible for
being hearsay because the facts testified to are not within his personal knowledge,
may be admitted in evidence in any criminal or non-criminal proceeding.51

● The testimony is admissible provided the same be offered in child abuse cases and
the statement made by the child is one describing any act or attempted act of child
abuse.

● Aside from the above requirements, the following must likewise be complied with:

48
Sec 27(F),Rule On Examination Of Child Witness
49
Sec 27(H),Rule On Examination Of Child Witness
50
Sec 27(I),Rule On Examination Of Child Witness
51
Sec 28,Rule On Examination Of Child Witness
19
 a. The proponent shall make known to the adverse party the intention to offer such
statement and its particulars to provide him a fair opportunity to object before the
hearsay statement may be admitted.
b. If the child is available, the court shall upon motion of the adverse party, require
the child to be present at the presentation of the hearsay statement for cross-
examination of the adverse party; and
c. When the child is unavailable (as when the child is:
(1) Deceased;
(2) suffers from physical injury;
(3) mental illness;
(4) loss of memory;
(5) or because the child will be exposed to severe psychological injury), the fact of
such circumstance must be proved by the proponent and the hearsay testimony
shall be admitted only if corroborated by other admissible evidence.52

● In ruling on the admissibility of the hearsay statement, the court shall consider the:
(a) time;
(b) content; and
(c) circumstances surrounding the making of the statement which would provide
sufficient indicia od reliability.53

● Certain factors are also to be considered by the court before deciding to admit the
statement such as:
(a) the motive to lie;
(b) the general character of the declarant child;
(c) the number of persons who heard the statement;
(d) the spontaneity of the making of the statement;
(e) the timing of the making of the statement;
(f) the relationship between the declarant child and the witness;
(g) the remoteness of the possibility of faulty recollection; and
(h) other circumstances surrounding the statement.

H. Character Evidence in Child Abuse Cases (Sexual Abuse Shield Rule)

52
Sec 28 (A),Rule On Examination Of Child Witness
53
Sec 28 (B),Rule On Examination Of Child Witness
20
Under the sexual abuse shield rule, as provided for in Sec 30 of the Rule on Examination
of a Child Witness, the following are not admissible in ANY criminal proceeding involving
alleged sexual child abuse:
1. Evidence offered to prove that the alleged victim engaged in other sexual behavior;
and
2. Evidence offered to prove the sexual predisposition of the alleged victim.
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.54

I. Protective orders

Section 31, paragraph b, subparagraphs 1 to 7 on the Rule on Examination of a

Child Witness (A.M. 004-07-SC) provides for protective orders concerning any videotape
or audiotape of a child that is part of the court record. This protective order shall remain in
full force and effect until further order of the court.

According to said provisions, the tapes may be viewed only by the parties, their
counsel, their expert witness, and the guardian ad litem except as may be necessary for the
trial. Such tapes cannot be given, loaned, sold, or shown to any person except as ordered
by the court.

Such persons granted access to the tapes, its transcriptions or any part thereof must
sign a written affirmation containing the following terms and conditions:
a) That he has received and read a copy of the protective order.
b) That he submits to the jurisdiction of the court with respect to the protective order.
c) That in case of violation thereof, he will be subject to the contempt power of the court.

The tape cassettes and transcripts made available to the parties, their counsel, and
respective agents shall bear the following cautionary notice:
“This object or document and the contents thereof are subject to a protective order
issued by the court in (case title), (case number). They shall not be examined, inspected,
read, viewed, or copied by any person, or disclosed to any person, except as provided in
the protective order. No additional copies of the tape or any of its portion shall be made,

54
Sec 30 (B),Rule On Examination Of Child Witness
21
given, sold, or show to any person without prior court order. Any person violating such
protective order is subject to the contempt power of the court and other penalties prescribed
by law.”

Within thirty (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.

Paragraph c of the same section provides that the court may, motu propio or on
motion of any party, the child, his parents, legal guardian or the guardian ad litem, issue
additional orders to protect the privacy of the child.

22
 IV. OFFER and OBJECTION

(A) OFFER OF EVIDENCE

A. Sec. 34, Rule 132 of the Rules of Court states that:
Sec. 34. Offer of evidence. – The court shall consider no evidence which has not
been formally offered. The purpose for which the evidence is offered must be specified.

B. General Rule.
As provided in the case of People vs. Whipkey, “offer of evidence” as used in Sec.
34 of the Rules of Court must be understood to mean presentation or introduction of
evidence. Hence, a document or article is not evidence when it is simply marked for
identification, it must be formally offered as evidence.55
The rules of procedure and jurisprudence do not sanction the grant of evidentiary
value to evidence which was not formally offered. “It is well to remember that good
intentions do not win cases, evidence does.”56
In the case of Marquez vs. Sandiganbayan, the Supreme Court held that while it is
true that the appreciation of whether the signatures of Marquez are genuine or not is subject
to the discretion of the graft court, this discretion, by the very nature of things, may rightly
be exercised only after the evidence is submitted to the court at the hearing. Evidence
cannot properly be weighed if not exhibited or produced before the court. Only after
evidence is offered and admitted that the court can appreciate and evaluate it.57
Thus, offer of evidence means presentation or introduction of evidence before the
trial court.

C. Exceptions.
As provided in the case of Star Two vs. Howard Ko, the exception to the rule that
courts cannot consider evidence which has not been formally offered is that where the
evidence has been identified by testimony duly recorded and that it has been incorporated.58
Likewise, in the case of Barut vs. People, the Supreme Court held that the rule that
only evidence formally offered before the trial court can be considered is relaxed where
two requisites concur, namely: one, the evidence was duly identified by testimony duly
recorded; and, two, the evidence was incorporated in the records of the case.

55
People vs. Whipkey, 12590-CR, February 6, 1973
56
Jose R. Catacutan vs. People of the Philippines, G.R. No. 175991, August 31, 2011
57
Marquez vs. Sandiganbayan, G.R. No. 187912-14, January 31, 2011
58
Star Two [SPV-AMC], Inc. vs. Howard Ko, G.R. No. 1855454, March 23, 2011
23
 Thus, the exceptions to the rule that courts cannot consider evidence which has not
been formally offered are:
1. The evidence was duly identified by testimony duly recorded.
2. The evidence was incorporated in the records of the case.
Other instances where the rule has no application are:
1. Where the court takes judicial notice of adjudicative facts pursuant to Section 2, Rule
129 of the Rules of Court.
2. Where the court relies on judicial admissions or draws inferences from such judicial
admissions within the context of Section 4, Rule 129 of the Rules of Court.
3. Where the trial court, in judging the demeanor of witnesses, determines their credibility
even without the offer of the demeanor as evidence.59

D. Reason why evidence should be formally offered.

The introduction of evidence is intended to inform the court what the party making
the offer intends to prove, so that the court may rule intelligently upon the objections to
questions which have been asked, and may be necessary in order to preserve an exception
to a ruling of the trial court excluding evidence.60
In the case of U.S. vs. Solana, the Supreme Court held that such a formal offer is
necessary because it is the duty of the judge to rest his findings of facts and his judgment
only and strictly upon the evidence offered by the parties at the trial. The offer may be
made in any form sufficient to show that the party is ready and willing to submit the
evidence to the court.61

(B) WHEN TO MAKE AN OFFER

A. Sec. 35, Rule 132 of the Rules of Court provides that:
Sec. 35. When to make offer. – As regards the testimony of a witness, the offer
must be made at the time the witness is called to testify.
Documentary and object evidence shall be offered after the presentation of a
party’s testimonial evidence.

59
Barut vs. People, 736 SCRA 313, G.R. No. 167454, September 24, 2014
60
Francisco, Ricardo J., Basic Evidence, Central Book Supply, Inc. (2017), p. 456 citing
53 Am. Jur. 88.
61
U.S. vs. Solana, 33 Phil. 582
24
 The party calling the witness must give a gist of the proposed testimony and what
it seeks to establish. This would enable the Court to determine whether the intended
testimony would ascertain the truth respecting a matter of fact that is in issue.62
The documentary and object evidence are formally offered in evidence after all the
witness have given their testimonies on the witness stand. This should be done orally and
the purpose for which they are being offered specified. However, the Court may, upon
motion, permit the offer to be made in writing as when voluminous documentary evidence
are to be presented.63

B. The purpose of the evidence must be specified.

The purpose for which the evidence is offered must be specified because such
evidence may be admissible for several purposes under the doctrine of multiple
admissibility, or may be admissible for one purpose and not for another, otherwise the
adverse party cannot interpose the proper objection. Evidence submitted for one purpose
may not be considered for any other purpose.64

C. Reason why the purpose for which the evidence is presented must be specified.
Evidence may be admissible for a special purpose, but not admissible generally; or
it may be admissible for one purpose but not for another; or it may be admissible against
one joint defendant but not against another.65
The trial court may exclude evidence, although admissible for certain purposes, if
it is inadmissible for which it is offered and its exclusion is not reversible error. This is true
especially where the purpose is improper. It is not the duty of the court to look beyond the
purpose for which evidence is offered, but if it is admissible for another purpose, it should
be offered for such purpose.66
The rule is that when a party offers evidence including many different propositions
grouped together and a part of the evidence offered is incompetent, irrelevant, or
immaterial, the court may reject the entire offer if no separate offer is made of such part of
the evidence as is admissible. This is particularly true where there is a large mass of
unrelated facts. The court is under no duty to separate the good from the bad, to permit the
introduction of that which is competent, and to exclude that which is incompetent.67

62
Francisco, Ricardo J., supra at 454
63
Id. at 455
64
People vs. Diano, [CA], 66 O.G. 6405
65
Francisco, Ricardo J., supra at 457
66
Id. at 458 citing 88 C.J.S., 188-189.
67
Id. at 459 citing 53 Am. Jur., 92-93
25
D. How to make an offer of evidence.
Such an offer shall be done orally unless allowed by the court to be done in
writing.68
Examples:
a. Sample Form: Formal Offer of Evidence (Sec. 35, Rule 132)
xxx
For Sum of Money with Damages
FORMAL OFFER OF EVIDENCE
COMES NOW, the PLAINTIFF, through the undersigned counsel and unto this
Honorable Court, most respectfully formally offers their documentary evidence:
Exhibits: Description

“A” Promissory Note executed by the plaintiff and the defendant.

“B” Demand letter sent to the defendant dated November 20, 2004
PURPOSE: The above documentary exhibits are being offered to prove that the
defendant is indebted to the plaintiff which is already due and demandable, and the latter
failed to pay despite demand.
WHEREFORE, premises considered, it is most respectfully prayed of this
Honorable Court that the above documentary evidences for the plaintiff be admitted, and
to form part of the testimony of the witnesses for the plaintiff.

After the admission of the above documentary evidences, plaintiff rests his case.
xxx
(Tan, Ferdinand A., Evidence: A Compendium for the Bench and the Bar, Rex Bookstore
(2014), p. 417):

b. Oral offer of testimony:

We are offering the testimony of the witness in order to prove that he is the
defendant in the above-entitled case; that from August 31, 1993 up to December 27, 1993,
he did not make an order of any veterinary products from the plaintiff, neither did he sign
any invoice coming from the plaintiff; that he did not receive any shipment of veterinary
products from the plaintiff nor signed any document from any shipping company; that he

68
Tan, Ferdinand A., Evidence: A Compendium for the Bench and the Bar, Rex
Bookstore (2014), p. 416
26
did not receive any demand letter from the plaintiff and such allied matters pertinent to the
case and the alleged claims.69

(C) OBJECTION
A. Sec. 36, Rule 132 of the Rules of Court provides that:
Sec. 36. Objection. – Objection to evidence offered orally must be made
immediately after the offer is made.
Objection to a question propounded in the course of the oral examination of a
witness shall be made as soon as the ground therefor shall become reasonably apparent.
An offer of evidence in writing shall be objected to within three (3) days after notice
of the offer unless a different period is allowed by the court.
In any case, the grounds for the objections must be specified.

The office of an objection is to stop an answer to a question put to a witness, or to

prevent the receipt of a document in evidence until the court has ruled as to its
admissibility.70 Its function is first to signify that there is an issue of law, and, secondly, to
give notice to the terms of the issue.71 When a party desires the court to reject the evidence
offered, he must so state in the form of an objection. Without such objection he cannot
raise the question for the first time on appeal.72
Objection to evidence offered orally must be made immediately after the offer is
made, stating specifically, the grounds thereof. The time for the objection to the
admissibility of evidence is when said evidence is being offered. Thus, in the event that the
documents allegedly seized illegally are not at all presented in evidence, then there will be
no occasion or reason for ruling upon their admissibility.73
The rule that the objection is to be made when the question is propounded to the
witness and before he gives his testimony must be reasonably applied. Its object is to
prevent a party from “gambling on the answer” by withholding his objection until he
discovers the effect of the testimony, and then interposing his objection if the testimony is
unfavorable.74

B. When to make an objection.

69
Tan, supra at 419
70
Francisco, Ricardo J., supra at 465 citing 53 Am. Jur., pp. 115-116
71
Ibid citing 1 Wigmore on Evidence, Sec. 18.
72
Asombra vs. Dorado, et al., 36 Phil. 883
73
Francisco, Ricardo J., supra at 465 – 466
74
Ibid citing Brownell vs. Moorehead, 165 P. 408, 65 Okl. 218.
27
 Objections to the admissibility of evidence cannot be raised for the first time on
appeal; when a party desires the court to reject the evidence offered, he must so state in the
form of objection. Without such objection, he cannot raise the question for the first on
appeal.75

C. Effect if evidence not objected.

The rule is that evidence not objected to is deemed admitted and may be validly
considered by the court in arriving at its judgment.76
It is a rule of evidence that any objection against the admission of any piece of
evidence must be made at the proper time and that if not so made it will be understood to
have been waived.77

D. Objections to Admissibility of Deposition.

Sec. 6, Rule 23 of the 1997 Rules on Civil Procedure provides that:
Sec. 6. Objection to admissibility. – Subject to the provisions of Sec. 29 of this
Rule, objection may be made at the trial or hearing to receiving in evidence any deposition
or part thereof for any reason which would require the exclusion of the evidence if the
witness were then present and testifying.
Under this rule, objection to the admissibility of deposition can be made if there are
certain errors and irregularities in depositions, as provided by Section 29, Rule 23, of the
Rules of Court, as to:
1. Notice for taking a deposition;
2. Disqualification of officer before whom it is to be taken;
3. Competency of a witness or the competency, relevancy, or materiality of testimony;
4. Manner of taking the deposition, in the form of the questions or answers, in the oath or
affirmation, or in the conduct of the parties and errors of any kind;
5. Form of written interrogatories.
6. The manner in which the testimony is transcribed or the deposition is prepared, signed,
certified, sealed, indorsed, transmitted, filed or otherwise dealt with by the officer under
Sections 17, 19, 20, 26 of this Rule.
However, as provided in the same section, these errors and irregularities can also
be waived. Thus errors and irregularities:
1. As to notice: waived unless written objection is promptly served upon the party giving
the notice.

75
People of the Philippines vs. Baida Salak, G.R. No. 181249, March 14, 2011
76
People of the Philippines vs .Roberto Lopez, G.R. No. 188902, February 16, 2011
77
People of the Philippines vs. Alvin Del Rosario, G.R. No. 189580, February 9, 2011
28
2. As to disqualification of officer: waived unless made before the taking of the deposition
begins or as soon thereafter as the disqualification becomes known or could be discovered
with reasonable diligence.
3. As to competency or relevancy of evidence: not waived by failure to make them before
or during the taking of the deposition, unless the ground of the objection is one which might
have been obviated or removed if presented at that time.
4. As to oral examination and other particulars: waived unless reasonable objection thereto
is made at the taking of the deposition.
5. As to form of written interrogatories: waived unless served in writing upon the party
propounding them within the time allowed for serving succeeding cross or other
interrogatories and within three (3) days after service of the last interrogatories authorized.
6. As to manner of preparation: waived unless a motion to suppress the deposition or some
part thereof is made with reasonable promptness after such defect is, or with due diligence
might have been, ascertained.

E. Kinds of Objections:
1. As to form:
a. Oral objection – objection made orally
b. Written objection – objection which is made in writing
2. As to the reasons relied upon:
a. Specific objection – an objection which states the specific ground relied upon
such as Hearsay evidence rule and Parol evidence rule.
b. General or “broadside” objection – is an objection when on its face there appears
no purpose whatsoever for which it could have been admissible such as Irrelevant and
Immaterial.
3. As to the main objects of the objections:
a. Objection as to exhibits or documents or objects – objection to the documentary
evidence or object evidence being offered orally or in writing.
b. Objection as to questions asked by the proponent during trial – objection during
the taking of the testimony of the witness.
4. As to the number of objection/s:
a. Seasonable or single objection – objection which is raised every opportune time
on every question propounded when circumstances calls for it.
b. Continuing objection – when repetition on the line of questioning is unnecessary.
5. As to the actions taken by the court on the objection raised:
a. Overruled objections – objection which is denied by the court.
b. Sustained objections – objection which is granted by the court.
29
 c. Noted and deferred objection – objections in which the ruling by the court is
reserved. (Tan, Ferdinand A., Evidence: A Compendium for the Bench and the Bar, Rex
Bookstore (2014), p. 423-424)

F. Examples of making objections:

Question in the Judicial Ground for objection Reason for the objection
Affidavit
1. “Did you do the acts “Your honor, the question Because the question of the
complained of?” is leading.” proponent suggests to the
witness the answer which
he desires.
2. “You stated a while ago “Your honor, the question Because the question is
that the accused was is misleading.” contrary to his previous
wearing eyeglasses at the testimony.
time of the incident. Why
are you now claiming that
he is not wearing
eyeglass?”
3. “What is the relation of “Your honor, the question Because the question has no
the plaintiff and the is irrelevant/immaterial.” relation or relevance to the
defendant?” fact in issue.
4. “What can you say about “Your honor, the question Before the question may be
the agreement executed has no basis.” asked about the agreement,
between you and the the proponent must first
defendant?” establish by preliminary
questions the existence of
the agreement, its
authenticity, truthfulness
and genuineness, and
signed by the party himself.
5. “Showing to you a Xerox “Objection your honor, the “If the subject of the inquiry
copy of the Deed of best evidence is the original is the contents of the
Absolute Sale the contents of the document.” document there can be no
of which is subject matter other evidence except the
of this action, is this the one original of the document.”
you are referring to?”

30
6. “Is this the same “Your honor, objection on When the agreement of the
Kasunduan which was the ground of parol parties are reduced into
executed by the parties after evidence.” writing, there can be no
the Deed of Absolute Sale other evidence as between
was made?” the parties and their
successor in interest except
the written agreement itself
if he puts it in issue in his
pleading.
7. “What did Mr. Reyes told “Objection your honor on Witness can only testify on
you when you had a the ground of hearsay those matters which are
conversation with him?” evidence rule.” based on his personal
knowledge or derived from
his own perception.
8. “You are testifying “Objection your honor on Witness cannot be
before this Honorable Court the ground of parental compelled to testify against
against your father the privilege.” his descendants,
accused in this case?” ascendants, and children.
9. “Do you agree with me “Objection your honor on Witness cannot be made to
Mr. Witness that the the ground that the question testify calling for a
agreement you entered with calls for a conclusion.” conclusion of law which is
the defendants is in subject only to the
violation of the law?” determination of the court.
10. “How would you “Objection your honor on Examiner cannot engage
reconcile your statements the ground that the question the witness in the
made during direct is argumentative.” discussions of the
testimony that the accused applicable law.
is present at the scene of the
crime and your statement
now that you are in Quiapo
Street on such date and
time?”
11. “Mr. Witness, what can “Objection your honor on Witness is not allowed to
you say on the statement of the ground that the question interpret the facts which he
the accused that he was not calls for an opinion.” has perceived or witnessed,
around at the scene of the

31
 crime on the date of the neither is he allowed to
incident?” interpret the law.
12. “How and why were “Objection your honor on Witness cannot be asked
you able to know the the ground that the question two or more questions at the
accused in this case?” are compounded.” same time as this might
result in confusion.
(Tan, Ferdinand A., Evidence: A Compendium for the Bench and the Bar, Rex Bookstore
(2014), p. 425-429):

G. Sample Form: Written Objection/Opposition to Plaintiff’s Formal Offer of Evidence.

xxx
For Sum of Money with Damages
OBJECTION OR OPPOSITION TO
PLAINTIFF’S FORMAL OFFER OF EVIDENCE
COMES NOW, the defendant, through the undersigned counsel and unto this Honorable
Court, most respectfully submits his comment/opposition to plaintiff’s Formal Offer of
Evidence, and avers:
Exhibit Reason/Ground
“A” The said documentary exhibit is being objected to for being
secondary evidence, and the defendant is not a privy to the same.
“B” It is being objected to for being a mere fabricated evidence, and the
defendant did not receive any demand letter from the plaintiff.

WHEREFORE, premises considered, it is most respectfully prayed of this

Honorable Court that the above documentary evidences for the plaintiff be not admitted
based on the above comment.
xxx
(Tan, Ferdinand A., Evidence: A Compendium for the Bench and the Bar, Rex Bookstore
(2014), p. 430)
5. Repetition of an objection

Sec. 37. When repetition of objection unnecessary.

When it becomes reasonably apparent in the course of the examination of a witness

that the questions 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.
32
 ● Otherwise known as a continuing objection.
● Refers to a single objection to a class of evidence (testimonial or documentary)
which when first offered is considered to encompass the rest of the evidence.78
● The purpose of allowing a continuing objection is to allow the judge to hear the
evidence without constant objections to every question or bit of testimony that
follows.79
● It shall not be necessary to repeat an objection when it becomes reasonably apparent
while the witness is being examined, that he is asked questions which are of the
same class as those which an objection has already been made, whether such
objection is overruled or sustained. Instead of repeating the objection, it is sufficient
for the objection to be recorded as a ‘continuing objection’80

Example:
When questions calling for a hearsay answer are repetitiously asked by the adverse
counsel, the recording of a continuing objection is in order after an initial objection
had already been made.

6. Ruling

Sec. 38. Ruling.

The ruling of the court must be given immediately after the objection is made,
unless the court desires to take a reasonable time to inform itself on the question
presented; but the ruling shall always be made during the trial and at such time as
will give the party against whom it is made an opportunity to meet the situation
presented by the ruling.

The reason for sustaining or overruling an objection need not be stated. However,
if the objection is based on two or more grounds, a ruling sustaining the objection
on one or some of them must specify the ground or grounds relied upon.

● Court rules on the Admissibility or Non- admissibility of evidence

● Must be given:
1. Immediately after the objection is made;

78
Interpacific Transit Inc., Vs Aviles, G.R. No. 86062, June 6, 1990
79
Https://Legaldictionary.Net/Objection/
80
Riano, Willard, Evidence: The Bar Lectures Series (2013)
33
 2. 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.81
● Effect if no ruling is made by the court during trial:
- Counsel would have no means of knowing whether or not he would be
compelled to meet any evidence at all, hence it would prejudice the
substantial rights of his client.82
● The failure of the court to make such ruling should be brought to its attention,
failing in which the case cannot be reopened for a new trial on that ground.83
● The reservation of a ruling made by the court on an objection to the admissibility
of evidence, without subsequently excluding the same, amounts to denial of said
objection.84
● Words like “submitted” or “the objections are noted” are, by common reason, not
appropriate rulings and neither sustains or overrules the objection.85

Example:
The plaintiff wants to prove the contents of a contract through an offer of a
photocopy of the same. Without laying the basis for the admissibility of the copy,
counsel seeks to offer the copy in evidence. The opposing counsel objects and said
objection is sustained. This means that the court considers the document inadmissible
because it is incompetent based on the “best evidence” rule which requires the offer of
the original document.

7. Striking out of an answer

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.

81
Tan, Ferdinand. Evidence: A Compendium For The Bench And The Bar. (2014)
82
Lopez, Etc. Vs. Valdez, 32 Phil. 644
83
People Vs. Singh, Et Al., 45 Phil. 676
84
People Vs. Tavera, Et Al., 47 Phil 645
85
Riano, Willard, Evidence: The Bar Lectures Series (2013)
34
 ● A motion to strike may be availed of in the following instances:
○ When the answer is premature;
○ When the answer of the witness is irrelevant, incompetent or otherwise
improper;
○ When the answer is unresponsive;
○ When the witness becomes unavailable for cross-examination through no
fault of the cross-examining party; or
○ When the testimony was allowed conditionally and the condition for its
admissibility was not fulfilled.
 Sometimes, an apparently unobjectionable question brings out an objectionable and
inadmissible response. But the infirmity of the response becomes apparent only
after it is completed. If the answer is damaging, then the relief may be obtained by
a motion to strike.86
● A fact elicited from a witness during testimony cannot be considered in the
disposition of the case if it has been ordered stricken out, unless it is established by
any other evidence on record.87

Example:
In a criminal case:
Counsel: How do you know it was the accused who killed the victim?
Witness: A witness to the killing told me a day after the incident.
Opposing Counsel: I object, your Honor! Hearsay! I move to strike out the answer and
disqualify the witness from testifying on the details of the incident.

8. Tender of excluded evidence

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.

● Why make a tender of excluded evidence?

86
Riano, Willard, Evidence: The Bar Lectures Series (2013)
87
Metrobank Vs. Custodio, G.R. No. 173780, March 21,2011
35
 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. To create and preserve a record for appeal.88
● Before tender of excluded evidence is made, the evidence must have been formally
offered before the court. And before formal offer of evidence is made, the evidence
must have been identified and presented before the court.89
● Evidence formally offered by a party may be admitted or excluded by the court. If
a party's offered documentary or object evidence is excluded, he may move or
request that it be attached to form part of the record of the case. If the excluded
evidence is oral, he may state for the record the name and other personal
circumstances of the witness and the substance of the proposed testimony. These
procedures are known as offer of proof or tender of excluded evidence and are made
for purposes of appeal. If an adverse judgment is eventually rendered against the
offeror, he may in his appeal assign as error the rejection of the excluded evidence.90
● Where documentary evidence was rejected by the lower court and the offeror did
not move that the same be attached to the record, the same cannot be considered by
the appellate court.91
● There are two methods of making a tender of excluded oral evidence:
1. The counsel tells the court what the proposed testimony will be. This is the
method prescribed in the Rules of Court.
Ex:
After stating for the record the name and other personal circumstances of
the witness, counsel says:
“Defendant, Your Honor, makes this tender of excluded evidence. If permitted
to testify, defendant will affirm that he was allowed by the plaintiff to build a
house in the former’s 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
plaintiff’s neighbor and wife who interposed no objection.

2. Using the question and answer form

Ex:
Counsel: Your Honor, if allowed to ask the question objected to, the
testimony would have been as follows:

88
Riano, Willard, Evidence: The Bar Lectures Series (2013)
89
Yu Vs. Court Of Appeals G.R. No. 154115, Nov. 29, 2005
90
Cruz-Arevalo Vs. Judge Querubin-Layosa, A.M. No. Rtj-06-2005, Jul. 14, 2006
91
Banez V. Court Of Appeals, 158 Phil. 16, 32 (1974)
36
 Q: Why did you construct a house on the plaintiff’s land?
A: Because he allowed me to do so, Sir.
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?
A: (names of witnesses)

Example of making a tender of excluded documentary evidence:

“Your Honor, this document is a deed of sale executed between the plaintiff and
defendant on (date) in the presence of both the town mayor and vice-mayor who signed the
deed as witnesses, and notarized before Notary Public (Name). The document reads…
With this document, we intend to prove that the defendant bought the parcel of land herein
described prior to taking possession of the property as owner on (date). We request that
this document be marked and attached to and form part of the records of this case.”

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