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RULES OF EVIDENCE Based on the Book of Regalado


Sec 1. Evidence defined.

Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. (1)

Sec. 2. Scope.

The rules of evidence shall be the same:

- in all courts and

- in all trials and hearings,

- EXCEPT as otherwise provided by law or these rules. (2a)


Evidence, defined: Bustos v. Lucero: Evidence is the mode and manner of proving competent facts in judicial proceedings. Proof is the result or effect of evidence.

- This is the result when the requisite quantum of evidence of a particular fact has been duly admitted and given weight. Factum Probandum

- Ultimate fact or the fact sought to be established

- Refers to the proposition

Factum Probans

- The evidentiary fact or the fact by which the factum probandum is to be established.

- Refers to the materials which established the proposition

Rules of Evidence as Procedural Law

- Amendments in such rules may validly be made applicable to cases pending at the time of such change. Parties have no vested right in the rules of evidence.

- HOWEVER, in criminal cases, if the amendment would permit the reception of a lesser quantum of evidence to convict, retroactive application would be unconstitutional for being ex post facto.

Other Laws Governing Evidence

- GR: Rules of evidence is governed by the Rules of Court (RoC)

- EXC: Application of other laws Examples:

- RA 4200 (Anti Wiretapping),

- Code of Commerce (weight of entries in merchant books)

- Electronic Commerce Act


- Constitution: Bill of Rights - Art III


Sec 2: The right of people against unreasonable searches and seizures


Sec 3: The privacy of communication and correspondence shall be inviolable (EXC. By order of court or when provided by law for safety and public order)

o Evidence obtained in violation of such provisions shall be INADMISSIBLE Applicability of the Rules of Evidence:

- GR: Applicable ONLY in judicial proceedings

- EXC: In quasi-judicial proceedings


The same apply by analogy, or in a suppletory character and whenever practicable and convenient.(Rule 1 Section 4)


It shall apply also when the governing law of such proceeding specifically adopts such rules

o Note: NOT applicable in agrarian cases Classification of Evidence According to Form

1. Object (Real) Evidence: directly addressed to the senses of the court

and consist of tangible things exhibited or demonstrated in open court, in an ocular inspection, or at place designated by the court for its view or observation of an exhibition, experiment or demonstration.

- This is referred to as “autoptic proference” since it proffers or presents in open court the evidentiary articles for observation or inspection

2. Documentary Evidence: Evidence supplied by written instruments or

derived from conventional symbols, such as letters, by which ideas are represented on material substances

- Rule 130 Sec 2: writings or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents

3. Testimonial Evidence: That which is submitted to the court through the testimony or deposition of a witness.

Other Classification of Evidence:

1. Relevant, Material, and Competent Evidence

- Relevant: evidence having any value in reason as tending to prove

6. Positive and Negative Evidence

- Positive: when the witness affirms that a fact did or did not occur.

o Entitled to a greater weight since the witness represents of his personal knowledge the presence or absence of a fact.

- Negative Evidence: when the witness did not see or know of the occurrence of a fact.

any matter provable in an action.


Lesser weight since there is a total disclaimer of personal

It is admissible only if it tends to contradict positive


TEST: The logical relation of the evidentiary fact to the fact

knowledge, hence without any representation that the fact

in issue, whether the former tends to establish the probability or improbability of the latter.


could or could not have existed or happened.

- Material: evidence directed to prove a fact in issue as determined by the rules of substantive law and pleadings.

evidence of the other side or would tend to exclude the existence of fact sworn to by the other side.


TEST: w/n the fact it intends to prove is an issue or not.



W/N a fact is in issue: Determined by substantive law, pleadings, pre-trial order and by admissions or confessions on file.

Sec. 3. Admissibility of evidence.

Evidence is admissible when:


Evidence may be relevant BUT may be immaterial.

- it is relevant to the issue AND

- Competent: one that is not excluded by the Rules, statutes or the Constitution.

- is not excluded by the law or these rules. (3a)


2. Direct and Circumstantial Evidence

Sec. 4. Relevancy; collateral matters.

- Direct: that which proves the fact in dispute w/o the aid of any inference or presumption

Evidence must have such a relation TO:

- Circumstantial: proof of a fact or facts from which, taken either singly or collectively, the existence of a particular fact in dispute may be inferred as a necessary or probable consequence.

the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters:


- shall NOT be allowed,

3. Cumulative and Corroborative Evidence

- Cumulative: evidence of the same kind and to the same state of facts.

- EXCEPT when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. (4a)


- Corroborative: additional evidence of a different character to the same point.

4. Prima Facie and Conclusive Evidence


Evidence is ADMISSIBLE when: 2 Requisites (see codal)

- Prima Facie: that which, standing alone, unexplained or

- Conclusive: the class of evidence which the law does not allow to be

- When it is Relevant

uncontradicted, is sufficient to maintain the proposition affirmed.


it must have a relation to the fact in issue as to induce belief of its existence or non-existence



Determined by the rules of logic and human experience.

5. Primary and Secondary Evidence

- When it is Competent

- Primary: that which the law regards as affording the greatest


When not excluded by the law or by the RoC

certainty of the fact in question. Also known as “best evidence”.


Determined by the prevailing exclusionary rules on evidence

- Secondary: that which is inferior to the primary evidence and is permitted by law only when the best evidence is not available. Also known as “substitutionary evidence”.

Note: The weight however of admissible evidence depends on judicial

evaluation within the Rule 133 and rules of the SC.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

2 | Patiño,Erica


While evidence is admissible, it may be entitled to little or no weight at all.


REQUISITE: There should be no bad faith on the part of the proponent. (necessary to avoid unfair surprises)


Conversely, evidence of great weight may also be

2. Multiple Admissibility


- When the evidence is relevant AND competent for two or more purposes, such evidence should be admitted for any or all the purposes for which it is offered

Requisites of Admissibility of Evidence According to Professor Wigmore

1. That none but facts having rational probative value are admissible &

2. That all facts having rational probative value are not forbidden by specific rules

Note: Here, Relevant Evidence means any class of evidence which has “rational probative value” to establish the issue in controversy

- PROVIDED it must satisfy all the requirements for its admissibility.

3. Curative Admissibility

- The right of the party to introduce incompetent evidence in his behalf where the court has admitted the same kind of evidence adduced by the adverse party.

- 3 Theories of Curative Admissibility cited by Wigmore

When is admissibility determined? – At the time it is OFFERED to the court


American rule – the admission of incompetent evidence w/out objection by the opponent, does not justify rebutting it by similar incompetent evidence.

- Real Evidence: offered



English rule – if inadmissible evidence is admitted, the adverse party may resort to similar inadmissible evidence



when the same is presented for its view or evaluation

when the party rests his case and the real evidence consists of objects exhibited in court

- Testimonial Evidence: offered by the calling of the witness to the stand



Massachusetts rule –similar incompetent evidence may be admitted in order to avoid a plain and unfair prejudice caused by the admission of the other party’s evidence

- Documentary







- What should be determined to apply the curative admissibility rule?

before he rests his case

When should admissibility be objected?

- At the time evidence is offered to the court OR

- As soon thereafter as the objection to its admissibility shall have become apparent

o Objection to the qualification of the witness: made at the time such person is called to the stand

o Objection to the testimony: made at the time the question is asked or after the answer is given when the objectionable features become apparent by reason of the answer Note: if not done within such time – right to object is deemed WAIVED

Doctrines and Rules of Admissibility Sanctioned by the Supreme Court

1. Conditional Admissibility

- When the evidence at the time it is offered appears to be immaterial or irrelevant, such evidence may be received on condition that the other facts will be proved thereafter

- IF not proved subsequently: evidence given will be stricken out.

1. w/n the incompetent evidence was seasonably objected to Lack of objection: waiver of the right to object admissibility BUT does NOT deprive him to introduce similar rebutting evidence

2. w/n the admission of such evidence will cause a plain and unfair prejudice to the party against whom it was admitted When the admissible evidence has been improperly excluded, the other party should not be permitted to introduce similar evidence

Stonehill, et al. v. Diokno: Documentary evidence illegally obtained, is inadmissible on a timely motion or action to suppress. (Applies to illegally obtained confessions)

Collateral Matters, defined: Matters other than the facts in issue and which are offered as a basis for inference as to the existence or non-existence of the facts in issue

- GR: Collateral matters are INADMISSIBLE or not allowed

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

3 | Patiño,Erica

- EXC: when it tends in any reasonable degree to establish the probability or improbability of the fact in issue (“Circumstantial Evidence” or evidence of relevant collateral facts) Note: What is prohibited – IRRELEVANT collateral facts

4 Main Divisions of the Rules of Evidence: (1) Admissibility of Evidence Rule 130; (2) Burden of proof and what need not be proved Rule 131 & 129; (3) Presentation of Evidence Rule 132; (4) Weight and Sufficiency of Evidence Rule 133; Note: Rule 134 has been transposed to Part I as Rule 24 [RULE 129] WHAT NEED NOT BE PROVED

Sec 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 RP,

- the official acts of legislative,

- executive and judicial departments of the RP,

- the laws of nature,

- the measure of time, and

- the geographical divisions. (1a)

Sec. 2. Judicial notice, when discretionary.

A court MAY take judicial notice of matters which:

- are of public knowledge, or

- are capable to unquestionable demonstration, or

- ought to be known to judges because of their judicial functions.


Sec. 3. Judicial notice, when hearing necessary.

During the trial, the court:

- on its own initiative, OR on request of a party,


- 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,


- 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 (JN), Defined: cognizance of certain facts which judges may properly take and act on without proof.

- JN is based on convenience and expediency.

- JN relieves the parties from the necessity of introducing evidence to prove the fact noticed. The fact is proven by JN.

- The stipulation and admission of the parties or counsel cannot prevail over the operation of the doctrine of judicial notice, and such are all subject to the operation of the doctrine. Two kinds of JN:

- Mandatory

- Discretionary

How JN May be Taken by the Court:

1. On its own initiative or motion

2. When it is requested or invited by the parties

Note: In Either Case, the court may allow the parties to be heard on the matter in question

- The purpose of the hearing: NOT for the presentation of evidence

o but to afford the parties reasonable opportunity to present information relevant to the propriety of taking such JN or to the tenor of the matter to be noticed

o Also to notify them of the court’s intention to take JN (no notice = improper JN) What stage may the court take judicial notice of a fact?

- During trial;

- After trial and before judgment;

- On Appeal

Republic v. CA: JN must be exercised with caution and every reasonable doubt on the subject must be resolved in the negative.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

4 | Patiño,Erica

Judicial Notice of Laws

- GR: courts of justice are required to take JN of the laws

- EXC: In case of ORDINANCES, the rule is different

They have been actually ruled upon in other cases before it and none of the parties object

How WRITTEN Foreign Law May be Proved


MTCs: Required to take JN of the ordinances of the

- Requirements in Sec 24 and 25 of rule 132 must be complied w/:

municipality or city wherein they sit.


BY an official publication


RTC however, they must take such JN ONLY when:


BY a duly attested and authenticated copy thereof

Required to do so by statute (ex. city charter); and

In a case on appeal before them and wherein the inferior court took JN of an ordinance involved in said case. (only to determine the propriety of taking JN)

- Appellate courts may also take JN of municipal and city ordinances not only where the lower courts took JN BEC these are facts capable of unquestionable demonstration.

- For the same reason, Courts may take judicial notice of administrative regulations

Rule on JN of Decisions of Courts

- ALL courts are required to take judicial notice of the decisions of the Supreme Court

- Lower courts are to take JN of decisions of higher courts (ex. CA) BUT NOT of the decisions of coordinate trial courts NOR even of a decision or the facts involved in another case tried by the same court

o EXCEPT when:

Parties introduce the same in evidence

The court as a matter of convenience, decides to do so

Judicial Notice vs. Personal Knowledge of a Judge

- The 2 should not be confused

- It is not essential that matters of JN be actually known to the judge. The judge may at his discretion, inform himself in any way which may seem best to him, and act accordingly.

Foreign Laws may NOT be Taken Judicial Notice

- Existence of foreign laws is one of FACT and NOT of LAW

- It MUST BE PROVED like any other fact:

o EXCEPT: when the laws are within the actual knowledge of the court either because:

They are generally known OR

- Absent the above evidence: The Doctrine of Processual Presumption shall apply

o The foreign law is presumed to be the same as that in the RP

- Note: Exceptions to the required proof in Sec 24 and 25:

o Testimony of a witness who was an active member of the California Bar and who is familiar with the laws with a full quotation of the cited law was accepted as sufficient proof.

o An affidavit of an US attorney which does not state the specific law but merely contained his interpretation of the facts of the case is NOT sufficient proof. How UNWRITTEN Foreign Law May be Proved

- Rule 130, Sec 46: A published treatise, periodical or pamphlet on a subject of such law or a testimony of a written expert

Sec. 4. Judicial admissions.

An admission verbal or written,

- made by the party in the course of the proceedings in the same case, does not require proof.

The admission may be contradicted ONLY by showing:

- that it was made through palpable mistake or

- that no such admission was made. (2a)


Judicial Admissions May be Made IN:

1. The pleadings filed by the parties

2. In the course of the trial either by verbal or written manifestations or stipulations

3. In other stages of the judicial proceeding, as in pre-trial of the case

Note: Depositions, written interrogatories, or requests for admission are also

considered judicial admissions

To be considered a judicial admission:

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

5 | Patiño,Erica

- GR: It must be made in the SAME case in which it is offered


No such admission was made or

- EXC: It may be made in another case or another court PROVIDED:


In the case of a pre-trial admission in a civil case, to prevent


It be proved as in the case of any other fact IF the judicial admission was made in a judicial proceeding, it is entitled to greater weight.

manifest injustice (Sec 7, Rule 18) – Note: applies to criminal cases if the pre-trial admission is reduced into writing and signed by the accused and his counsel.


It is pertinent to the issue involved


There must be no objection

- EXC to EXC:

1. The said admissions were made only for purposes of the first case as in the rule on implied admissions and their effects under

Rule 26

2. The same were withdrawn with the permission of the court therein

3. The court deems it proper to relieve the party therefrom.

Judicial Admissions v. Extrajudicial Admissions:

- Judicial: Those so made in the pleadings filed or in the progress of a trial.

- Extrajudicial: Those made out of court, or in a judicial proceeding other than the one under consideration

Rules on Extrajudicial Admissions:

- Extrajudicial admissions or other admissions are, as a rule and where elements of estoppel are not present, disputable.

- Admissions in a pleading withdrawn are considered extrajudicial admissions – must be proved by a formal offer in evidence of the original pleading

- Admissions in a pleading superseded by an amended pleading although filed in the same case are:

o judicial admissions (Note: Based on Regalado on his interpretation of Sec 4 as amended, p. 792)

o still extrajudicial (If based on Torres v. CA, et al. G.R. No. L-37420-21, July 31, 1984) – also Judge B. Note: When the parties agree on what the foreign law provides, these are admission of facts that the court may rely upon, and hence, they are in estoppel to take a contrary position.

Rules on Contradicting Judicial Admissions

- GR: Judicial Admissions cannot be contradicted by the admitter who is the party himself

- EXC: May be contradicted when:

o Such is made through palpable mistake or

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

6 | Patiño,Erica



- An OI conducted by the judge w/o notice to or the presence of the parties is invalid, as an OI is part of the trial.

- W/N an OI is to be made lies in the discretion of the court.

When can a Court Refuse the Introduction of Object (real) Evidence and Rely on Testimonial Evidence Alone:

1. When the exhibition of such object is contrary to public policy, morals or decency

2. When to require its being viewed in court or in an ocular inspection would result in delay, inconvenience, unnecessary expense out of proportion to the evidentiary value of such object

3. When such object (real) evidence would be confusing or misleading, as when the purpose is to prove the former condition of the object and there is no preliminary showing that there has been no substantial change in said condition

4. The testimonial or documentary evidence already presented clearly portrays the object in question as to render a view thereof unnecessary

When may object (real) evidence which is repulsive or indecent still be viewed by the court?



IF the view of the same is necessary in the interest of justice


Sec 1. Object as evidence.


In such case, the court may exclude the public from such view


Note: The view may NOT be refused IF the indecent or immoral objects constitute the very basis of the criminal or civil actions (ex. case against obscene exhibits)

Objects as evidence are:


those addressed to the senses of the court.

When an object is relevant to the fact in issue:



it may be exhibited to, examined or viewed by the court. (1a)

What does object (real) evidence include?


- Such evidence includes any article or object which may be known or perceived by the use of any of the senses of: hearing (auditory), touch (tactile), taste (gustatory) or smell (olfactory)and sight

- It may include:

- When an object is relevant to a fact in issue, the court may acquire knowledge thereof by actually viewing the object – the object is called real evidence

- Also known as autoptic proference, physical or demonstrative evidence



Examination of the anatomy of a person or any substance taken therefrom


Conducting tests, demonstration or experiments

- It is the highest form of evidence


Examination of representative portrayals of the object in question provided the same are properly authenticated (ex. maps, diagrams, sketches, pictures, audio-visual records)

- Even if other evidence have been introduced, it will not prevent the court from viewing an object to resolve the issue


- Also, the fact that an ocular inspection has been held does not preclude a party from introducing other evidence on the same issue. Requirements of an Ocular Inspection (OI)

- Note: Such real evidence may be amplified by interpretations afforded by testimonial evidence especially by experts (x-ray interpreted by doctors)

Documents are Considered:

- Object (real) Evidence IF their Purpose is: To prove their


When the original:

existence or condition, or the nature of the handwritings thereon or to determine the age of the paper used, or the blemishes or alterations

- 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;

- Otherwise, They are Considered Documentary Evidence IF their Purpose is: to establish the contents or tenor thereof.


When the original:

Physical Examination of a Person May be Conducted:

- consists of numerous accounts or other documents which cannot be examined in court without great loss of time and

- BY the court OR under its direction

- TO show the nature, extent or location of injuries, facial features, his resemblance or possibility of relationship to another, or his racial

- the fact sought to be established from them is only the general result of the whole; and

origin, his probable age, fact of pregnancy


When the original:

- is a public record

- in the custody of a public officer OR is recorded in a public office.




Sec. 4. Original of document.


Sec. 2. Documentary evidence.



The original of the document is:

Documents as evidence consist of:


one the contents of which are the subject of inquiry.

- writing or


- any material containing letters, words, numbers, figures, symbols or


When a document:

other modes of written expression offered as proof of their contents. (n)



is in two or more copies executed at or about the same time, with identical contents,


all such copies are equally regarded as originals.


BEST EVIDENCE RULE (Primary Evidence Rule)



When an entry:


Sec. 3. Original document must be produced; exceptions.



is repeated in the regular course of business,

When the subject of inquiry is the contents of a document:


one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. (3a)


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;

Document, defined: A deed, instrument or other duly authorized paper by which something is proved, evidenced or set forth. Documentary Evidence, defined: That which is furnished by written instruments, inscriptions and documents of all kinds.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

8 | Patiño,Erica

Best Evidence Rule, defined: that rule which requires the highest grade of evidence obtainable to prove a disputed fact.

When “Other Copies of a Document” are Considered Originals (Sec 4)

- It includes regular entries in journals and ledgers.



A signed carbon copy executed at the same time as the original is

Purpose: To prevent fraud, perjury, and To exclude uncertainties in the contents of a document

Best Evidence Rule is Applied to Documentary Evidence ONLY

known as a “duplicate original” and may be introduced w/o the original


Operates as a rule of exclusion

Rules on Carbon Copies Considered as Originals


GR: Original writing itself must be produced in court. Secondary/substitutionary evidence cannot inceptively be introduced

- Documents prepared in several copies through the use of carbon sheets are considered originals:


Effect: The non-production of the original document gives rise to the presumption of suppression of evidence (Sec 131)


PROVIDED that the writing of a contract upon the outside sheet, including the signature of the party sought to be


EXC: Secondary evidence may be produced in 4 Instances in Sec 3


charged thereby, produces a facsimile upon the sheets


In case of real evidence, secondary evidence may be introduced w/o

beneath, such signature being thus reproduced by the SAME

having to account for the non-production of such primary evidence

Best Evidence Rule is Applicable ONLY: when the contents of the document is the subject of inquiry.

- It does NOT apply when the issue is only as to:

stroke of the pen

- Even if the signature was made through separate acts or separate occasions, ALL the CARBON COPIES are considered originals

o IF each copy was intended as a repository of the same legal act of the party thereto.


w/n the document exists or w/n it was actually executed or

- BUT imperfect carbon copies are merely secondary evidence


the circumstances relevant to or surrounding its execution

even if the text was made at the same time as the signed original

Note: Here, testimonial evidence or other evidence will suffice.

When a document is presented to prove existence or condition – It is offered as REAL evidence, NOT documentary evidence

- Parol evidence of the fact of execution is allowed

o Ex. incomplete signatures, something else is left to be done in order that a document could evidence a binding obligation

Rules on Telegrams and Cables – W/N the dispatch sent or the dispatch received is the best evidence of the message (depends on the issue)

- HOWEVER, in criminal cases, where the issue is not only with

- IF the issue is the contents of the telegrams

respect to the contents of the document but also as to whether such document actually existed with the participation as imputed to the


as received by the addressee - original dispatch received is the best evidence

accused – the original must be produced (ex. in libel, the


as sent by the sender – the original is the message delivered

newspaper must be presented)

- IF the issue is the inaccuracy of the transmission



In this case, the presentation of the original should affect ONLY the weight of the evidence intended to establish the execution of the document



BOTH the sent and received dispatch are originals.


Provincial Fiscal of Pampanga v. Reyes: in case of libel IF the issue is:


On the contents of the articles sent by the accused for publication



The manuscript is the best evidence

Affidavits and depositions are not best evidence and hence not


On what was actually published

admissible, IF the affiants or deponents are available as witnesses



A copy of the newspaper is the best evidence


It is not best evidence ONLY when the contents of the affidavits or


depositions are NOT the issues in the case BUT are merely used to establish the issues in controversy





Affidavits are regulated by the hearsay evidence rule (Rule 130 Sec 26) to safeguard the right of cross examination.

Sec. 5. When original document is unavailable.


Depositions are regulated by Rule 23 Sec 4

When the original document:

- has been lost or destroyed, or

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

9 | Patiño,Erica

- 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:

What Constitutes Secondary Evidence? (Note: Applies to BOTH 1 st and 2 nd Exceptions to the Primary Evidence Rule)

1. A copy of said document

2. A recital or its contents in an authentic document or


by a copy, or

3. The recollection of witnesses


by a recital of its contents in some authentic document, or

GR: Availment of such secondary evidence MUST be in the aforesaid


by the testimony of witnesses in the order stated. (4a)



EXC: Definite Evidentiary Rule When the law specifically provides for the class and quantum of secondary evidence to establish the contents of a document or bars secondary evidence such requirement is controlling

1 st Exception to the Best Evidence Rule: When the original is lost or destroyed

What Must be Proved by Satisfactory Evidence in Order for Secondary Evidence May be Admissible:

1. Due execution of the original : proved through the testimony of either:

a. The person/s who executed it

b. The person before whom its execution was acknowledged or

c. Any person who was present and saw it executed and delivered or who thereafter saw it and recognized the signatures, or

d. One to whom the parties previously confessed its execution

2. Loss, destruction or unavailability of all such originals

- Example. Lost holographic will must be proved only by a copy, lost notarial will may be proved by the testimony of credible witnesses

Contents of a Document may be Proven BY:

1. Any person who read it

2. Any person who heard it read knowing or it being proved from other sources that the document so read was the one in question

3. Any person who was present when the contents of the document were talked over between the parties thereto to such an extent as to give him reasonably full information as to its contents

4. Any person to whom the parties to the instrument have confessed or stated the contents thereof.

- The cause must NOT be due to the offeror’s bad faith


- Loss or Destruction may be Proved BY:

Sec. 6. When original document is in adverse party's custody or control.


Any person who knew of such fact


Anyone who, in the judgment of the court had made a sufficient examination in the places where the document or papers of similar character are usually kept by the person in whose custody the document was and had been unable to find it

IF the document is in the custody or under the control of adverse party:


he must have reasonable notice to produce it.

IF after such notice AND after satisfactory proof of its existence, he fails to produce the document:


secondary evidence may be presented as in the case of its loss. (5a)


Anyone who has made any other investigation which is sufficient to satisfy the court that the document is indeed lost.



- Duplicates must be accounted for: Only when ALL cannot be presented can it be considered unavailable/lost/destroyed

3. Reasonable diligence and good faith in the search for or attempt to produce the original

PNB v. Olila: When the original is OUTSIDE the jurisdiction of the court (ex. Abroad), secondary evidence is ADMISSIBLE

2 nd Exception to the Best Evidence Rule: Original is in the custody or under the control of the adverse party who fails to produce it

Facts Which Must be Shown by the Party Offering Secondary Evidence

1. The adverse party’s custody or control of the original document;

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

10 | Patiño,Erica

o No need to prove actual possession. It is enough to show the circumstances that would indicate his possession.

2. That reasonable notice was given to the adverse party who has the custody or control of the document;

3. Satisfactory proof of the document’s existence;

4. Failure or refusal by the adverse party to produce it in court.

Requirement of “Notice” Demanding the Original Document:

- No particular form of notice is required, as long as it fairly apprises the other party as to what papers are desired. Even an oral demand in court will suffice.

- HOWEVER, notice must be given to the adverse party or his attorney even if the document is in the actual possession of a 3 rd party

- Notice is done by: Motion or Subpoena duces tecum

Notice is NOT Required:

- When the receipt of the original document is acknowledged on a carbon copy. (The duplicate itself is an original copy and the only issue is the receipt of the original)

- When the nature of the action is in itself a notice, as when it is for the recovery or annulment of documents wrongfully obtained or withheld by the other party

*See Notes on Section 8 as it relates to Section 6

Effect of JUSTIFIED Refusal of the Adverse Party to the Produce the Document

- Does NOT give rise to the presumption of suppression of evidence or create an unfavorable inference against him

- IT only authorizes the introduction of secondary evidence

Rules on Production of Documents: Rule 130 v. Rule 27

Rule 130


Rule 27


Production is procured by mere notice to the adverse party

Production is in the nature of a mode of discovery

Requirements of notice must be fulfilled as a condition precedent for the subsequent presentation of secondary evidence

Can be sought only by proper motion and only upon good cause

Presupposes that the evidence to be





produced is intended as evidence

the document is either assumed to be favorable to the party in possession thereof or that the party seeking its production is not sufficiently informed of the contents of the same

3 rd Exception to the Best Evidence Rule: When the original consists of numerous accounts or other documents which cannot be examined in court w/out great loss of time

Requisites for the 3 rd Exception to Apply:

1. The voluminous character of the records must be established and

2. Such records must be made accessible to the adverse party so that their correctness may be tested on cross examination

Instances When the Original Must STILL be Produced

1. When the detailed contents of the records of accounts are challenged for being hearsay or

2. Issues are raised as to the authenticity or correctness of the detailed entries

Note: Here, a summary of the voluminous records can be considered as secondary evidence

Sec. 7. Evidence admissible when original document is a public record.

When the original of document:

- is in the custody of public officer or

- is recorded in a public office,

its contents may be proved:

- by a certified copy issued by the public officer in custody thereof.



4 th Exception to the Best Evidence Rule: When the original is a public record in the custody of a public officer or is recorded in a public office

Such Document may be Evidenced BY:

(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.


- An official publication or

- A copy attested by the officer having legal custody and

- In the case of an authorized public record, by a copy thereof attested by its legal keeper


Sec. 8. Party who calls for document not bound to offer it.


The term "agreement" includes wills. (7a)


party who calls for the production of a document and inspects the same



is not obliged to offer it as evidence. (6a)




Parol Evidence, defined: Any evidence aliunde (oral or written), which is intended or tends to vary or contradict a complete and enforceable agreement in a document

When the document is produced, it must fulfill the requisites of admissibility

to be admitted. The party demanding it is also NOT obliged to offer it.


Sec. 9. Evidence of written agreements.

When the terms of an agreement have been reduced to writing:

- it is considered as containing all the terms agreed upon and

- there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. HOWEVER, a party may present evidence to:

- modify, explain or add to the terms of written agreement

- IF he puts in issue in his pleading:

Basis and Effect of the Parol Evidence Rule

- Basis: When the parties have reduced their agreement into writing, all their previous and contemporaneous agreements on the matter are merged therein.

- Effect: Hence, a prior or contemporaneous verbal agreement is not admissible to vary contradict or defeat the operation of a valid instrument.

When Can Parol Evidence of a Collateral Agreement (CA) Between the

Same Parties on the Same or Related Subject Matter Still be Admissible Notwithstanding the Existence of a Written Agreement?

1. When the CA is not inconsistent with the terms of the written contract

2. When the CA has not been integrated in and is independent of the written contract as where it is suppletory to the original contract

3. When the CA is subsequent to or novatory of the written contract

4. When the CA constitutes a condition precedent which determines

whether the written contract may become operative or effective.

o No. 4 does not apply to a condition subsequent not stated in the agreement NOTE: In order to apply the above exceptions, evidence thereon may be allowed PROVIDED they have been put in issue (as part of Sec. 9, Par. d)

Parol Evidence Rule Also does NOT APPLY (may not be invoked against the other):


When at least 1 party to the suit is not a party or privy to the written instrument in question and does not base a claim or assert a right originating in the instrument.


it varies the contents of the original

Applies ONLY to documents which are contractual in nature or “written agreement (EXC. It applies to wills)

Applies to all kinds of writings


A stranger may introduce extrinsic evidence against the written agreement

Can be invoked ONLY when there is a controversy bet. the parties to the written agreement and their privies or any party directly affected thereby

Can be invoked by ANY party regardless of w/n such party has participated in the writing involved.


Parol Evidence is Admissible PROVIDED Section 9 Paragraphs A to D are put in issue

- GR: Such facts must be put in issue by the pleadings

- EXCEPTION: Parol Evidence may still be admitted even if the required matters are not put in issue by the pleadings:


If such facts are invoked in his answer (since it also puts it in issue)


When parol evidence is NOT OBJECTED to (waiver of right to object inadmissibility)

Requisites for the Admissibility of Parol Evidence

1. There is a valid contract

2. The terms of the agreement were reduced into writing

3. The controversy must be between the parties of the agreement of their successors in interest (parties to the agreement must be the parties to the suit)

4. There is a dispute as to the terms of the agreement

Rule on Express Trusts Concerning an Immovable or Any Interest Therein

- Cannot be proved by parol evidence

- Relief: Reformation of contracts

Parol Evidence Rule v. Best Evidence Rule:

Parol Evidence Rule

Best Evidence Rule

Presupposes that the original document is available in court

Contemplates a situation where the original writing is not available and/or there is a dispute as to w/n the said writing is the original

Prohibits the varying of the terms of the written agreement

Prohibits the introduction of secondary evidence regardless of w/n

1 st Exception to the Parol Evidence Rule: An intrinsic ambiguity, mistake or imperfection in the written agreement (Sec 9 Par A)

Ambiguities in the Written Agreement or Will

1. “Latent or Intrinsic Ambiguity” – Contemplated in Sec 9 – Curable by Parol Evidence

- When the writing on its face appears to be clear and unambiguous but there are collateral matters or circumstances which make the meaning uncertain

- When a writing admits of 2 or more constructions

- Ex. “I give my estate to my cousin Jimmy Ibarra” (I have 2 cousins with that same name)

2. “Patent or Extrinsic Ambiguity” – NOT contemplated, Cannot be Cured by Parol Evidence

- That which is apparent on the face of the writing and requires something to be added in order to ascertain the meaning. Ex. “I give my estate to my first cousin”

3. “Intermediate Ambiguity” – May also be Cured by Parol Evidence PROVIDED it is also put in issue

- Because of the words of the writing, though seemingly clear and with a settled meaning, is actually equivocal and admits 2 interpretations

Note: False description shall not vitiate a document IF the subject is sufficiently identified. Note: When the terms of the agreement are clear – the courts have no right to interpret it

“Mistake” means “Mistake of Fact”

- Such mistake may be a mutual mistake between the parties OR

- Where an innocent party was imposed upon by unfair dealing of the other.

- Such mistake should be alleged and proved by clear and convincing evidence “Imperfection” Includes:

- An inaccurate statement in the agreement or

- Incompleteness in the writing or

- Presence or inconsistent provisions therein

Note: Art. 1363 NCC: When one party was mistaken and the other party knew that the instrument did not state the real agreement and concealed such fact – the instrument may be reformed.

2 nd Exception to the Parol Evidence Rule: Failure of the written agreement to express the true intent and agreement of the parties

Purpose: to enable to court to ascertain the true intention of the parties or the true nature of the transaction

3 rd Exception to the Parol Evidence Rule: The validity of the written agreement

In the inquiry into the Validity if the Agreement, Parol Evidence may be Admitted to Show:

- The true consideration of the contract or the want or illegality thereof

- The Incapacity of the parties

- W/n the contract is fictitious or absolutely simulated

- W/n there was fraud in inducement

4 th Exception to the Parol Evidence Rule: The existence of other terms agreed to by the parties or their successors in interest AFTER the execution of the written agreement

Note: Amendment in Section 9


- UNLESS the parties intended otherwise. (8)

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

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

- such a construction is, if possible, to be adopted as will give effect to all. (9)

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

In the construction of an instrument:

- the intention of the parties is to be pursued;

and when a general and a particular provision are inconsistent,

- the latter is paramount to the former.

- So a particular intent will control a general one that is inconsistent with it. (10)

Sec. 13. Interpretation according to circumstances.

For the proper construction of an instrument:

- the circumstances under which it was made,

- including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those whose language he is to interpret. (11)

Sec. 14. Peculiar signification of terms.

The terms of a writing:

- are presumed to have been used in their primary and general acceptation, but evidence is admissible to show that they have:

- a local, technical, or otherwise peculiar signification, and

- were so used and understood in the particular instance, in which case the agreement must be construed accordingly. (12)

Sec. 10. Interpretation of a writing according to its legal meaning.

The language of a writing is to be interpreted:

Sec. 15. Written words control printed.

- according to the legal meaning it bears in the place of its execution,

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

14 | Patiño,Erica

When an instrument consists partly of written words and partly of a printed form, AND the two are inconsistent:


Sec. 20. Witnesses; their qualifications.



the former controls the latter. (13)


EXCEPT as provided in the next succeeding section:


Sec. 16. Experts and interpreters to be used in explaining certain writings.


all persons who can perceive, and



perceiving, can make known their perception to others, may be witnesses.




the characters in which an instrument is written are difficult to be deciphered, or

- Religious or political belief,


the language is not understood by the court, the evidence:


- interest in the outcome of the case, or


- conviction of a crime

- OF persons skilled in deciphering the characters, or who understand the language


otherwise provided









disqualification. (18a)


- is admissible to declare the characters or the meaning of the language. (14)


Sec. 17. Of Two constructions, which preferred.

When the terms of an agreement have been intended in a different sense by the different parties to it:

- that sense is to prevail against either party in which he supposed the

other understood it, and when different constructions of a provision are otherwise equally proper:

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

Witness, defined: Reference to a person who testifies in a case or gives evidence before a judicial tribunal Competence of a Witness, defined: The legal fitness or ability of a witness to be heard on the trial of a case.

Rule on Competency of Witness

- GR: A person who takes the witness stand is presumed to possess the qualification of a witness (Presumption of Competency)

- EXC: Prima Facie Presumption of Incompetency when:

Sec. 18. Construction in favor of natural right.


The person has been recently found to be of unsound mind by a court of competent jurisdiction or


One is an inmate of an asylum for the insane

When an instrument is equally susceptible of two interpretations:

- one in favor of natural right AND the other against it,

- the former is to be adopted. (16)

Sec. 19. Interpretation according to usage.

An instrument may be construed according to usage, in order to determine its true character. (17)



Note: The burden is upon the party objecting to the competency of a witness to establish the grounds of incompetency.

When are the Qualifications and Disqualifications of Witnesses Determined?

- At the time the witnesses are produced for examination in court (called to the stand) OR

- At the time of the taking of their depositions.

Note: If they are children of tender years – the time of the occurrence to be

testified to should also taken into account

Note: According to Judge B (different view from other authors) – You must consider the qualifications of the witness BOTH at the time of the occurrence

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

15 | Patiño,Erica

to be testified to and at the time the witness is offered to determine his/her

1. Absolute: Forbidden to testify in any matter



By reason of mental incapacity or immaturity (sec 21)


By reason of marriage (sec 22)

Instances When a Witness is NOT Disqualified from Being a Witness:

2. Relative: Forbidden only on certain matters

- Interest of a Witness in the Subject Matter of the Action or its Outcome



By reason of death or insanity of adverse party (Dead Man’s


Statute) sec 23


GR: Does NOT disqualify a witness from testifying. It affects only his credibility but NOT his competency



By reason of Privileged Communication (Sec 24)



EXC: He will be disqualified under those covered by the rule on surviving parties, also known as the “Dead Man Statute” or the “Survivorship Disqualification Rule” (Sec

Sec. 21. Disqualification by reason of mental incapacity or immaturity.

The ff persons cannot be witnesses:


- A Co-defendant Being Declared in Default


Those whose mental condition:


GR: A defendant is NOT disqualified from testifying for his non-defaulting co-defendant although he has an interest in the case


- at the time of their production for examination,

- is such that they are incapable of intelligently making known their perception to others;


Ratio: He may still testify because he is not considered as taking part in trial as understood in the rule on default.


Children whose mental maturity is such as to render them incapable:

- A Witness Being Convicted of a Crime


of perceiving the facts respecting which they are examined and


GR: A person convicted is NOT disqualified from being a witness (it only affects his credibility) BUT:


of relating them truthfully. (19a)


He must answer to the fact of a previous final conviction (sec 3(5), Rule 132) or



Such fact may be shown by his examination or the record of the judgment (sec 11)

Unsound Mind, defined: That which affects the competency of the witness which includes any mental aberration, whether organic or functional, or induced by drugs or hypnosis.


EXC: When otherwise provided by law (ex. Those guilty of perjury, falsification or false testimony are disqualified from being witnesses to a will)

Rules on the Qualification of Soundness of Mind

- A Lawyer Being a Witness for his Own Client


GR: Unsoundness of mind does not per se render a witness



GR: In such instance, the lawyer must leave the trial of the case to other counsel

incompetent, one may be medically insane but in law capable of giving competent testimony.


EXC. When it concerns merely formal matters

Note: As long as the witness can convey ideas by words or signs and give

When Objection to a Witness be Made:

sufficiently intelligent answers to questions propounded, she is competent as a witness EVEN if one is feeble-minded, a mental retardate, or is


GR: Objection to the qualification of the witness must be made before he has given any testimony


- EXC: IF the incompetency appears during the trial, the objection must be made as soon as it becomes apparent. Note: If not made w/in the said time: right to object is deemed WAIVED

2 Kinds of Incompetency to Testify

When Should a Witness be of Sound Mind?

- ONLY at the time of their production for examination

- Mental unsoundness of the witness at the time the fact to be testified occurred – Affects ONLY his credibility.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

16 | Patiño,Erica

When are Deaf-mutes Competent Witnesses?




When they: (1) Can understand and appreciate the sanctity of an oath; (2) Can comprehend facts they are going to testify to and; (3) Can communicate their ideas through a qualified interpreter. Presumption of Soundness of Mind



Sec. 22. Disqualification by reason of marriage.

During their marriage, neither the husband nor the wife may testify for or against the other:

- GR: Every person is presumed to be of sound mind and the person challenging such has the burden of proving otherwise


without the consent of the affected spouse,



- EXC: Prima Facie Presumption of Incompetency when:


in a civil case by one against the other, or



The person has been recently found to be of unsound mind by a court of competent jurisdiction


in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. (20a)


One is an inmate of an asylum for the insane


In the Case of a Child Witness, the Court in Determining his Competency Must Consider his Capacity:

- At the time the fact to be testified to occurred, such that he could receive correct impressions thereof;

- To comprehend the obligation of an oath; and

Rule on Marital Disqualification (Spousal Immunity):

- GR: During the marriage, neither the husband nor the wife may testify for or against the other w/o the consent of the affected spouse EXCEPTIONS: Rule on Disqualification does NOT Apply When:

To relate those facts truthfully at the time he is offered as a witness. Hence, the court should take into account his capacity for observation, recollection and communication.



When the testimony was made outside the marriage


In a civil case by one spouse against another


In a criminal case for a crime committed by one spouse against the other or the latter’s direct descendants or ascendants

When is a Child Considered a Competent Witness



Reason: The crime may be considered as having been committed against the spouse and hence, the conjugal harmony sought to be protected no longer exists)


GR: A child is competent if he can perceive and make known his perception


EXC: IF the child’s testimony is punctured w/ serious inconsistencies as to lead one to believe that the child was coached. An Intelligent Boy is Undoubtedly the Best Observer

A child is little influenced by the suggestions of others and describes objects and occurrence as he has really seen them





Limited only to direct ascendants and descendants + spouse


People v. Castañeda: A complaint filed by a wife against her

husband for falsification of her signature in a deed of sale involving their conjugal property.

Ordonio v. Daquigan: When the marital relations are so strained, there is no more consideration for applying the said rule. To apply the exception there must be an offense that directly attacks, or directly and vitally impairs, the conjugal relations.



Children of sound mind are likely to be more observant of incidents which take place within their view than older people.

Child Witness


Ordinary Witness


When there is imputation of a crime by one spouse against the other


the judge is allowed



Opposing counsels are allowed ask


Note: “Direct Ascendants and Descendants” = Parents and Children ONLY






preliminary examination


Nature of Prohibition: Absolute disqualification or prohibition against the spouse’s testifying to any fact affecting the other spouse however the fact may have acquired

Leading questions are allowed


They are generally not allowed







It is NOT allowed



The child witness is assisted by a

An ordinary witness is not assisted

Requisites in Order for Marital Disqualification Rule to Apply:

1. The marriage is valid and existing at the time of the offer of testimony; and

2. The other spouse is a party to the action.

Who may Object: Only the other spouse who is a party to the case.

- Note: Objections to the competency of the witness-spouse may also be waived. (Ex. Testimony against a spouse is a waiver of a testimony in rebuttal)

Rationale For Having Such Rule

- Considering the identity of interest between the spouses, there is consequent danger of committing perjury

- Also, the rule is in order to guard marital confidence and to prevent domestic disunion

- Incompetency to Testify Applies: w/n the deceased died before or after the commencement of the action against him provided he is dead at the time of the testimony

Requirements for the Dead Man Statute to Apply:

1. The witness offered for examination is a party plaintiff, or the assignor of said party, or a person in whose behalf a case is prosecuted;

2. The case is against the executor or administrator or other representative of a person deceased or of unsound mind;

3. The case is upon a claim or demand against the estate of such person

who is deceased or of unsound mind

This should NOT be confused w/ “Marital Privilege” (see sec 24 notes)

4. The testimony to be given is on matter of fact occurring before the death, of such deceased person or before such person became of unsound mind.

Sec. 23. Disqualification by reason of death or insanity of adverse party.

Parties or assignor of parties to a case, OR persons in whose behalf a case is prosecuted:

Requirement No. 1: The witness offered for examination is a party plaintiff, or the assignor of said party, or a person in whose behalf a case is prosecuted


against an executor or administrator or other representative of a deceased person, or

- Such plaintiff must be the real party in interest and not a mere nominal party.

- The disqualification does NOT apply:

against a person of unsound mind, upon a claim or demand against the estate of:


- such deceased person or against


when the counterclaim has been interposed by the defendant as the plaintiff would thereby be testifying in his defense

- such person of unsound mind,

cannot testify as to any matter of fact OCCURRING:


when the deceased contracted with the plaintiff through an agent and said agent is alive and can testify, but the


before the death of such deceased person or


before such person became of unsound mind. (20a)

testimony of the plaintiff should be limited to acts performed by the agent.



- Assignor, defined: Assignor of a cause of action which has arisen, and not the assignor of a right assigned before any cause of action has arisen

Survivorship Disqualification Rule or Dead Man Statute

- Constitutes only a partial disqualification: A witness is not completely disqualified BUT is only prohibited from testifying in certain matters specified

- Disqualification ONLY applies to: A civil case or special proceeding over the estate of a deceased or insane person

- Interest in the outcome of the suit, per se, does not disqualify a witness from testifying

Requirement No. 2: The case is against the executor or administrator or other representative of a person deceased or of unsound mind;

- It is necessary that the said defendant is being sued and defends in such representative capacity and not in his individual capacity

- Even if the property has been judicially adjudicated to the heirs, they are still protected under the rule

- The protection would extend to the heirs of the deceased and the guardians of persons of unsound mind

Requirement No. 3: The case is upon a claim or demand against the estate of such person who is deceased or of unsound mind

- The rule does not apply where it is the administrator who brings an action to recover property allegedly belonging to the estate or the action is by the heirs of a deceased who represented the latter

- This is restricted to debts or demands enforceable by personal actions upon which money judgments can be rendered.

- An action for damages for breach of agreement to devise property for services rendered is a claim against an estate

Requirement No. 4: The testimony to be given is on matter of fact occurring before the death, of such deceased person or before such person became of unsound mind.

- Negative testimony (testimony that a fact did not occur during the lifetime of the deceased) is NOT covered by the prohibition – as such fact exists even after the decedent’s demise

The Rule Does NOT Apply:

1. Land registration cases instituted by the decedent’s representatives (since the oppositors are considered defendants and may therefore testify against the petitioner)

2. It does not apply in cadastral cases – since there is no plaintiff or defendant

3. When the testimony is offered to prove a claim less than what is established under a written document or is intended to prove a fraudulent transaction against the deceased

o or offers evidence to rebut such prohibited testimony

Reason for the Rule:

1. To prevent perjury

2. To protect the estate from fictitious claims

3. To give the parties an equal opportunity to present evidence

Sec. 24. Disqualification by reason of privileged communication. The ff. persons cannot testify as to matters learned in confidence in the ff. cases:

(a) The husband or the wife, during or after the marriage:

- cannot be examined w/out 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;

(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;

(c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case:

- without the consent of the patient,


Provided such fraud is first established by evidence aliunde

be examined as to:


To apply the rule, the testimony must be against the estate


any advice or treatment given by him or any information

4. When the disqualification is waived - when the defendant:


which he may have acquired in attending such patient in a


does not timely object to the admission of such evidence or

professional capacity


testifies on the prohibited matters or cross examines thereon

which information:

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

19 | Patiño,Erica

- was necessary to enable him to act in such capacity, and

- which would blacken the reputation of the patient;

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;

(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)


Basis of the Privilege: The confidential nature of the communication Who May Object Under the Disqualification Rules – ONLY by the persons protected thereunder (upon whom the testimony is directed). They may also waive the right to object.


Requisites for the Disqualification By Reason of Marital Privilege to Apply:

1. There is a valid marital relation;

2. The privilege is invoked with respect to a confidential communication between the spouses during said marriage;

3. The spouse against whom such evidence is being offered has not given his or her consent to such testimony.

Instances When the Privilege Cannot Be Claimed:

1. With respect to communications made prior to the marriage of the spouses

2. With respect to communication not intended to be kept in confidence (ex. dying declaration of a husband to his wife as to who was his assailant since it is intended to be reported)

3. When the information is overheard by a third party whether he acquired the information legally or not. (A 3 rd person is not covered by the prohibition)

o Provided: There must be no collusion between the 3 rd person and one of the spouses.

4. In a conspiracy between spouses to commit a crime - since it is not the intention of the law to protect the commission of a crime.

5. When the spouses are living separately and there is an active hostility. But if there is a chance to reconcile, then this privilege will apply.

6. When waived

Note: Any information received during the marriage is presumed to be confidential

Disqualification By Reason of Marriage (Sec 22)

Disqualification By Reason of Marital Privilege (Sec 24a)

Can be invoked ONLY if one of the spouses is a party to the action

Can be claimed w/n the other spouse is a party to the action

Applies ONLY if the marriage is existing at the time the testimony is offered

Can be claimed even after the marriage is dissolved

Constitutes a vital prohibition for or against the spouse of the witness

Applies ONLY to confidential communication between spouses

Objection would be raised on the ground of marriage. Even if the testimony is for or against the other spouse.

The objection of privilege is raised when confidential marital communication is inquired into.

Note: Waiving Sec 22 does not prevent the spouse from invoking sec 24 and vice versa. So even if the information is not confidential, the spouse may still invoke sec 22 which is an absolute disqualification.


Requisites for the Disqualification Based on Attorney-Client (A-C) Privilege to Apply

1. There is an attorney and client relation;

2. The privilege is invoked with respect to a confidential communication between them in the course of professional employment;

3. The client has not given his consent to the attorney’s testimony.

Note: IF the atty’s secretary or clerk is sought to be established – then BOTH the consent of the atty and the client is required.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

20 | Patiño,Erica

Note: The client owns the privilege and therefore he alone can invoke it. Prohibition is also applicable even to a counsel de oficio. Basis: public policy Confidential Communication: The attorney must have been consulted in his professional capacity EVEN if no fee has been paid.

- It includes preliminary communications made for the purpose of creating the A-C relationship. (But if it is not for the purpose of creating the A-C relationship – it will not be protected even if the client subsequently hires the same attorney)

- Includes verbal statements as well as documents or papers entrusted to the attorney Instances when the A-C Privilege Does NOT Apply:

1. Intended to be made public;

2. Intended to be communicated to others;

3. Intended for an unlawful purpose;

4. Received from third person not acting in behalf or as agent of the client;

5. Made in the presence of third parties who are strangers to the

attorney-client relationship. The period to be considered is:

- the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future

BUT Communication Regarding:

- A crime already committed - is privileged communication

- Contemplated criminal acts or in aid or furtherance thereof - is not covered.

Requisites for the Disqualification Based on Physician-Patient (P-P) Privilege to Apply

1. The physician is authorized to practice medicine, surgery, or obstetrics;

2. The information was acquired or the advice or treatment was given by him in his professional capacity for the purpose of treating and curing the patient;

3. The information, advice or treatment, if revealed, would blacken the reputation of the patient;

4. The privilege is invoked in a civil case, whether patient is a party or

not. Note: It is not necessary that the P-P relationship was created through the voluntary act of the patient. Death of the patient does not extinguish the relation.

Note: The privilege extends to all forms of communications as well as to the professional observations and examinations of the patient

The P-P Privilege Does NOT Attach:

1. The communication was not given in confidence;

2. The communication is irrelevant to the professional employment;

3. The communication was made for an unlawful purpose, as when it is

intended for the commission or concealment of a crime;

4. The information was intended to be made public;

5. There was a waiver of the privilege either by provisions of contract or law.

6. Under Rule 28 of the Rules of Court,



The results of the physical and mental examination of a

The A-C Privilege Does NOT Attach:

person, when ordered by the court, are intended to be made

- When the attorney is a conspirator

public, hence not privileged.

- When all the attorney has to do is to either affirm or deny the secret revealed by the client to the court


Also, result of autopsies or post mortem examinations are generally intended to be divulged in court.

- When the information is voluntarily given after the attorney has refused to accept employment.


Purpose: It is intended to facilitate confidential disclosure by a patient to a physician of all facts and symptoms w/o apprehension to the end that the physician may form a correct opinion and may safely treat his patient.

The Privilege May Also be Waived:

- Ex. Section 4 of said Rule 28: if the party examined obtains a report on said examination or takes the deposition of the examiner, he thereby waives any privilege regarding any other examination of said physical or mental condition conducted or to be conducted on him by any other physician.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

21 | Patiño,Erica

- Ex. Waiver of the privilege by contract may be found in stipulations in life insurance policies.


Requisites for the Disqualification Based on Minister/Priest-Penitent Privilege to Apply

1. That the same were made pursuant to a religious duty enjoined in the course of discipline of the sect or denomination to which they belong; and

2. They must be confidential and penitential in character.

- Ex: under seal of the confessional

Note: It is the person making the confession who can invoke the privilege.


Requisites for the Disqualification Based on Privileged Communication to Public Officers to Apply

1. That it was made to the public officer in official confidence;

2. That public interest would suffer by the disclosure of such

communication, as in the case of State secrets. Note: When no public interest will be prejudiced - this rule will NOT apply.


RA 53 as amended by RA 1477, the publisher, editor or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news report or information appearing in said publication unless the court or a House or committee of Congress finds that such revelation is demanded by the Security of the State.

Art. 233 of the Labor Code - All information and statements made at conciliation proceedings shall be treated as privileged communications and shall not be used as evidence in the NLRC, and conciliators and similar officials shall not testify in any court regarding any matter taken up at the conciliation proceedings conducted by them.

Trade Secrets will be covered by this privilege

Informer’s Privilege: Prosecutor is not to be compelled to dispose the identity of the informer unless the informer is already known to the accused and when the identity of the informer is vital.

Those covered in the Secrecy of Bank Deposits Law

EO 464: Executive Privilege

Income Tax returns

Anti-Graft Cases


Sec. 25. Parental and filial privilege.

No person may be compelled to testify against his:


parents, other direct ascendants, children or other direct descendants.




It is not a rule of disqualification but was a privilege NOT to testify


hence it was referred to as “filial privilege


However, under the Family Code, the descendant may be compelled to testify against his parents and grandparents, if such testimony is indispensable in prosecuting a crime against the descendant or by one parent against the other (Art. 215).


Both parental and filial privileges are granted to any person

Reason for the Rule: The reason for the rule is to preserve “family cohesion” Note: The privilege may now be invoked in both civil and criminal cases.


Voters cannot be compelled to reveal their ballots

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

Sec. 26. Admission of a party.

22 | Patiño,Erica

The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. (22)


Admission, defined: Any statement of fact made by a party against his interest or unfavorable to the conclusion for which he contends or is inconsistent with the facts alleged by him.



An admission is a statement of fact which does not involve an acknowledgement of guilt or liability

It involves an acknowledgment of guilt or liability

It may be express or tacit

Must be express

May be made by third persons

Can be made only by the party himself and in some instances, is admissible against his co-accused

Express Admissions, defined: are those made in definite, certain and unequivocal language. Implied Admissions, defined: are those which may be inferred from the acts, declarations or omission of a party. Therefore, an admission may be implied from conduct, statement of silence of a party.

Requisites for Admissions to be Admissible

1. They must involve matters of fact and not of law;

2. They must be categorical and definite;

3. They must be knowingly and voluntarily made;

4. They must be adverse to the admitter’s interests, otherwise it would

be self-serving and inadmissible. Other Forms of Admissions:

- Verbal or written, express or tacit, judicial or extrajudicial

- Judicial: One made in connection w/ a judicial proceedings (conclusive – does not require proof)

- Extrajudicial: Any other admissions (Sec 26 to 32) (Rebuttable – requires proof) Ex. Testimony of the accused in a parricide case to the effect that he was married to the victim is an admission against his penal interest and will sustain his conviction even in the absence of independent evidence to prove such marriage


Declaration Against Interest

An admission need not be against one’s proprietary or pecuniary interest,

The declaration against interest must have been made against the proprietary or pecuniary interest of the parties

Made by the party himself, and is a primary evidence and competent though he be present in court and ready to testify

Must have been made by a person who is either deceased or unable to testify

Admission can be made any time

The declaration against interest must have been made ante litem motam (prior to the controversy)

Self-Serving Testimony, defined: One which has been made extra-judicially by the party to favor his interests. It is not admissible in evidence.

- It does not include his testimony as a witness in court

- No application to a judicial declaration

- When the statement was not made in anticipation of a future litigation – It cannot be considered self-serving

Self serving declarations made by a party are admissible in his own behalf in the ff:

1. When they form part of res gestae, including spontaneous statements and verbal acts;

2. When they are in the form of complaint and exclamations of pain and suffering;

3. When they are part of a confession offered by the prosecution

4. When the credibility of a party has been assailed on the ground that his testimony is a recent fabrication (Testimonial Rehabilitation)

5. When they are offered by the opponent

6. When they are offered without objection, the evidence cannot afterward be objected to as incompetent.

Admission by Conduct

- Flight from justice is an admission by conduct and circumstantial evidence of consciousness of guilt

- Attempts to suppress evidence (ex. Destruction of evidence)

- The act of repairing facilities after an injury has been sustained therein – is NOT an implied admission of negligence by conduct (It is merely a measure of extreme caution)

Sec. 27. Offer of compromise not admissible.

In civil cases, an offer of compromise:

- is not an admission of any liability, and

- is not admissible in evidence against the offeror.

In criminal cases:


- those involving quasi-offenses (criminal negligence) or

- those allowed by law to be compromised,

an offer of compromise by the accused:

avoid criminal action.

avoid criminal action.

Instances when Offer of Compromise is Admissible

- In cases of violation of the internal revenue laws

o Since the law provides that the payment of any IR tax may be compromised, and all criminal violations may likewise be compromised EXC those already filed and those involving fraud.

- In rape cases


may be received in evidence as an implied admission of guilt.


GR: In effect it may be compromised by actual marriage

A plea of guilty later withdrawn OR an unaccepted offer of a plea of guilty to


EXC: An offer to compromise for monetary consideration is an implied admission.

lesser offense:


People v. Valdez: An offer of marriage during the


is not admissible in evidence AGAINST the accused who made the plea or offer.

investigation is an admission of guilt

An offer to pay OR the payment of medical, hospital or other expenses occasioned by an injury:

- is not admissible in evidence as proof of civil or criminal liability for the injury. (24a)


Compromise, defined: An agreement made between two or more parties as a settlement of the matters in dispute.

Good Samaritan Rule: An offer to pay or the actual payment of the medical, hospital or other expenses by reason of the victim’s injuries is not admissible to prove civil or criminal liability.

No Compromise is Valid Upon the Following Cases:

1. Civil status of persons

2. Validity of marriage or legal separation


3. Any ground for legal separation

Civil Cases


Criminal Cases


4. Future support

GR: An offer of compromise is not a tacit admission of liability and is not admissible in evidence against the offeror. It cannot be proved over the objection of the offeror.

GR: An offer of compromise by the accused may be received in evidence as an implied admission of guilt.

5. Jurisdiction of courts

6. Future legitime

7. Habeas Corpus and Election Cases.


Sec. 28. Admission by third party.

EXC: Unless the offer is not only to “buy peace” but amounts to an admission of liability (compromise directed only to the amount to be paid).









The rights of a party cannot be prejudiced:







- by an act, declaration, or omission of another,



- EXCEPT as hereinafter provided. (25a)


Ratio in Civil Cases: It is the policy of the law to favor the settlement of disputes, to foster compromises and to promote peace.

In criminal cases however, the accused may be permitted to prove that such offer was not made under consciousness of guilt but merely to


Principle of Res Inter Alios Acta Alteri Noceree Non Debet: Things done between strangers ought not to injure those who are not parties to it.

- 1 st Part: Sec 28, rule 130

- 2 nd Part: Sec 34, rule 130

- EXC: to the Rule: When the 3 rd person is a

o Partnership relation must be shown;

2. The act or declaration is within the scope of the partnership, agency or joint interest


Sec 29: A partner, agent, joint owner, joint debtor, or has a joint interest with the party


With regard to a non-partnership affair: The fact that each partner has individually made a substantially similar


Sec 30: A co-conspirator

admission does not render the aggregate admission


Sec 31: A privy of the party

competent against the firm.

Basis of the GR: A party is not bound by any agreement to which he has no

3. Such act or declaration must have been made during the existence of the partnership, agency or joint interest.

knowledge and to which he has not given his consent. His rights cannot be prejudiced by the declaration, act or omission of another EXC by virtue of a


Statements made after the partnership has been dissolved do not fall within the exception

particular relation between them.


BUT if they are made in connection with the winding up of the partnership – such admission is STILL admissible.

Basis of the EXC: A third party may be so united in interest with the party- opponent that the other person’s admissions may be receivable against the party himself. The term “privy” is the orthodox catchword for the relation.

Rule on Admission Made By Counsel

- GR: They are ADMISSIBLE against the client as the counsel acts in representation and as an agent of the client

- EXC: It must not amount to a compromise or confession of judgment (Because in compromise, the rule requires the consent of the client)


Joint Debtor, defined: It does not refer to mere community of interest but should be understood according to its meaning in solidum and not

Sec. 29. Admission by co-partner or agent.

mancomunada. Sec. 30. Admission by conspirator.

The act or declaration of a partner or agent of the party:


- within the scope of his authority and

The act or declaration of a conspirator:

- during the existence of the partnership or agency,

- relating to the conspiracy and

may be given in evidence against such party AFTER:

- during its existence,


the partnership or agency is shown by evidence other than such act or declaration.

may be given in evidence:

- against the co-conspirator

The same rule applies:

- AFTER the conspiracy is shown by evidence other than such act of declaration. (27)


to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. (26a)



Application of the Requirement that the Conspiracy must Preliminarily be Proved by Evidence other than the Conspirator’s Admission

Requisites for This Exception To Apply:

1. That the partnership, agency, or joint interest is established by

evidence other than the act or declaration

- Applies ONLY to extrajudicial acts or statements

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

25 | Patiño,Erica

- NOT to judicial admission as to a testimony given on the witness stand at the trial where the party adversely effected has the opportunity to cross examine the declarant

An Admission by a Conspirator is Admissible Against his Co- conspirator

- Such conspiracy is shown by evidence aliunde

o Conspiracy must be established by prima facie proof in the

judgment of the court;

- The admission was made during the existence of the conspiracy

o After the termination of a conspiracy, the statements of one conspirator may not be accepted as evidence against any of the other conspirators;

- The admission related to the conspiracy itself

o Should relate to the common object.

In order that the EX-J statements of a co-accused may be taken into consideration in judging the testimony of a witness it is necessary that:

1. The statements are made by several accused,

2. The same are in all material respects identical, and

3. There could have been no collusion among said co-accused in making such statements.

Sec. 31. Admission by privies.

Where one derives title to property from another:

- the act, declaration, or omission of the latter, while holding the title,

- in relation to the property, is evidence against the former. (28)


Existence of the Conspiracy May be Inferred:


Privity, defined: mutual succession of relationship to the same rights of property. Privies, defined: those who have mutual or successive relationship to the same right of property or subject matter


From the acts of the accused



From the confessions of the accused



Or by prima facie proof thereof













To be Admissible, The Following Requisites Must Concur:

extrajudicial confession CANNOT be used against his co-accused (res inter alios rule applies to both EXJ and J admissions)

- Here, there is no need to produce direct evidence - independent circumstantial evidence will suffice.

1. There must be a relation of privity between the party and the declarant;

2. The admission was made by the declarant, as predecessor in interest, while holding the title to the property;










3. The admission is in relation to said property.


Rules on Extrajudicial Admissions Made by a Conspirator AFTER the conspiracy had terminated and BEFORE the trial

- GR: NOT admissible

- EXC: Admissible against the co-conspirator IF:

1. Made in the presence of the co-conspirator who expressly or impliedly agreed therein – as there is tacit admission under Sec 32

2. Where the facts stated in said admission are confirmed in the individual extrajudicial confessions made by the co-conspirators after their apprehension (interlocking confessions)

3. As a circumstance to determine the credibility of a witness

4. As circumstantial evidence to show the probability of the co- conspirator’s participation in the offense.

The privity in estate may arise: by succession, by acts mortis causa or by acts inter vivos. Sec. 32. Admission by silence.

An act or declaration:

- made in the presence and within the hearing or observation of a party who does or says nothing

- when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him. (23a)


To be Admissible the FF Requisites Must Concur:

1. He must have heard or observed the act or declaration of the other person;

2. He must have had the opportunity to deny it

3. He must have understood the statement;

4. He must have an interest to object, such that he would naturally have done so, as if the statement was not true;

5. The facts are within his knowledge;

6. The fact admitted or the inference to be drawn from his silence is material to the issue.

The rule on admission by silence applies:

- Where a person was surprised in the act or

- Even if he is already in the custody of the police.

- Applies to both civil and criminal cases

Rules on Voluntary Participation in a Reenactment of the Crime Conducted by the Police

- GR: It is considered a tacit admission of complicity.

- Note: To be given any evidentiary weight, the validity and efficacy of the confession must first be shown. Note: Implication of guilt is not derived from mere silence but from the acquiescence in participating in the reenactment

Application of The Rule:

- DOES NOT Apply IF: the statements adverse to the party were made in the course of an official investigation, as where:

Doctrine of Adoptive Admission: A party’s reaction to a statement or action by another person when it is reasonable to treat the party’s reaction as an admission of something stated or implied by the other person.

Instances Where There is NO Implied Admission

1. Allegations of unliquidated damages

2. Allegations which are not material to the cause of action

3. Conclusions of fact/law

4. Allegations of usury other than in a complaint

5. If defendant has not filed his answer and is declared in default.

Sec. 33. Confession.

The declaration of an accused acknowledging his guilt:

- of the offense charged, or

- of any offense necessarily included therein, may be given in evidence against him. (29a)


Confession, Defined: A categorical acknowledgement of guilt made by an

accused in a criminal case, w/o any exculpatory statement or explanation.

- IF the accused admits the act BUT alleges a justification – it is merely an admission

- Confession of Judgment in Civil Cases = Admission of Liability


he was pointed out in a custodial investigation and was

Forms of Confession:

neither asked to reply nor comment on such imputations or

- Oral and under oath


when the party had a justifiable reason to remain silent, as when he was acting on advice of counsel

- In writing (need not be under oath)

- It May Apply: To adverse statements in writing IF the party was carrying on a mutual correspondence with the declarant.

Note: Sec 33 refers to EX-J Confessions Types of Confessions

o However, if there was no mutual correspondence, the rule is relaxed since such prompt response can generally not be expected if the party still has to resort to a written reply. Basis of Rule: It is basic instinct or a natural reaction to resist or deny a false statement

resort to a written reply. Basis of Rule: It is basic instinct or a natural reaction
resort to a written reply. Basis of Rule: It is basic instinct or a natural reaction
resort to a written reply. Basis of Rule: It is basic instinct or a natural reaction

1. Judicial Confession: One made before a court in which the case is

1. Judicial Confession: One made before a court in which the case is

pending and in the course of legal proceedings therein

pending and in the course of legal proceedings therein

By itself, can sustain conviction, even for a capital offense



But for Capital Offenses: there must be evidence presented other than the plea of guilty, also proof that such plea was made voluntarily and w/ full comprehension

2. Extrajudicial (EX-J) Confession: One made in any other place or occasion

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

27 | Patiño,Erica



GR: Cannot sustain a conviction

EXC: Unless corroborated by evidence of the corpus delicti

Requirements for the Admissibility of EX-J Confessions

1. The confession must involve an express and categorical acknowledgment of guilt;

2. The facts admitted must be constitutive of a criminal offense;

3. The confession must have been given voluntarily;

4. the confession must have been intelligently made, the accused realizing the importance or legal significance of this act;

5. There must have been no violation of Section 12, Art. III of the 1987 Constitution. (Rights in custodial investigation)

Rule on Presumption of Voluntariness: Confessions are presumed to be voluntary and the onus is on the defense to prove that it was involuntary (obtained by violence, intimidation, threat or promise of reward or leniency)

Circumstances Held to be Indicia of Voluntariness of a Confession:

- The confession contains details which the police could not have supplied or invented.

- After his confession, the accused was subjected to physical examination and there were no signs of maltreatment or the accused never complained, but not where he failed to complain to the judge on a reasonable apprehension of further maltreatment as he was still in the custody of his torturers

Abandoned Ruling: Involuntary confessions are admissible if it contains the truth (Prior to Stonehil v. Diokno) Current Ruling: Involuntary Confessions are INADMISSIBLE, Ratio:

1. They are unreliable

2. On grounds of humanitarian considerations, or

3. On legal considerations of their being violative of one’s constitutional right against self incrimination

EX-J confession obtained prior to the 1973 Consti: It is admissible even if the confessant was not informed of his right to silence and to counsel and even if made while under arrest (ratio: consti mandate should be given a prospective effect)

Rules on EX-J Confession and the Constitution

- The confession contains details which could have been known only

- Verbal EX-JC Made Without Counsel

to the accused


IF made spontaneously after the assault – admissible as

- The confession contains statements which are exculpatory in nature