Presentation of Evidence, Order of Trial, Order of
Presenting Witnesses image
Role as a trial lawyer
Trade craft
 Particular skill in a particular profession
 Litigation itself
 Knowledge on substantial law and remedial law
particularly evidence
 Know your purpose in the courtroom
A man who is his own lawyer is a fool
 If you will act as your own lawyer you are
stupid
 Representing yourself as a lawyer is an
exception rather than the rule
 This is a disadvantage since your objectivity is
compromised
Role of a lawyer
 Objective presenter of the facts and the evidence
 In actually handling the case, you should be
emotionally detached
 a) Be objective
b) Objectively prepare for a case
 Preparation! Preparation! Preparation!
 Atty. Boni: Preparation, Presentation and
Passion
Preparation
 You need to anticipate every fact and evidence
 You should also know the version of your
opponent and what evidence they will present
Pre-trial brief
 Summation of facts
 Fact chart
 By knowing the facts you can know the
evidence
Before direct examination, you should be the first
one to conduct direct and cross examination of your
witness
Know the relevant laws both substantive and
remedial
 Also know the jurisprudence that would be
applied
Presentation
1) Sartorial eloquence is a part of lawyering
2) You need to have a persona – need to project an
Passion
 Love your profession
 One injustice is you would represent a client not
ready
 Don’t be emotionally attached to the case
In preparing for the case, what questions should you
ask?
1) What are the facts?
2) What are the laws?
3) What should I do with the facts and the law?
4) How will I present the facts, law and evidence
of the case?
There should be an interplay of facts, law and
evidence and by knowing such, you can now
formulate the theory of the case
The theory of the case is presented during the Pre-
trial conference
Once you give to the court the theory of the case,
you cannot change it anymore even on appeal until
finality of judgment
In conducting direct examination, your main
purpose is to prove your theory of the case
Theory of the case Elements:
1) Facts
2) Law
3) Evidence
If you know your theory of the case, you may direct
how you will present your witness
In the course of presenting your witness, the 3
elements must be showed to the court
Qualifications of Witnesses
1) Relevancy
2) It should be competent
3) Subject of the testimony should be derived/
based from his personal knowledge
4) The witness must be capable of perceiving
5) The witness must make an oath or affirmation
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Rule 132, Section 1: Examination to be done in
open court. — The examination of witnesses
presented in a trial or hearing shall be done in open
court, and under oath or affirmation. Unless the
witness is incapacitated to speak, or the questions
calls for a different mode of answer, the answers of
the witness shall be given orally.
Sec. 1, Rule 132
 Examination should be done in open court
 Prescribes the manner of presenting a witness
which should be done orally unless the witness
is incapacitated to speak, or the questions calls
for a different mode of answer, the answers of
the witness shall be given orally.
 Ex. needs demonstration
Open court
 Judicial proceedings should be open to the
observation of the public
 That’s why an audience is allowed
GR:
 Presentation of a witness should be open to the
public
Instances when trial are not open to the public:
1) Examination of a child witness if witness is a
child of tender years, the hearing should not be
public
2) Cases that offend sensibilities and moralities
 Ex. how a rape victim was raped
Rule 132, Section 2: Proceedings to be recorded. —
The entire proceedings of a trial or hearing,
including the questions propounded to a witness and
his answers thereto, the statements made by the
judge or any of the parties, counsel, or witnesses
with reference to the case, shall be recorded by
means of shorthand or stenotype or by other means
of recording found suitable by the court
A transcript of the record of the proceedings made
by the official stenographer, stenotypist or recorder
and certified as correct by him shall be deemed
prima facie a correct statement of such proceedings
Section 2, Rule 132
 Entire proceedings of a trial should be recorded
 That’s why we have the record of the case
known as transcript of records or stenographic
notes
 Everything is recorded so learn the act of side
bar wherein everything you say will not be
recorded
Any records in our judicial system are considered
prima facie evidence of correctness on what
transpired in the court
Rule 132, Section 3: Rights and obligations of a
witness. — A witness must answer questions,
although his answer may tend to establish a claim
against him. However, it is the right of a witness:
(1) To be protected from irrelevant, improper, or
insulting questions, and from harsh or insulting
demeanor;
(2) Not to be detained longer than the interests of
justice require;
(3) Not to be examined except only as to matters
pertinent to the issue;
(4) Not to give an answer which will tend to subject
him to a penalty for an offense unless otherwise
provided by law; or
(5) Not to give an answer which will tend to
degrade his reputation, unless it to be the very fact
at issue or to a fact from which the fact in issue
would be presumed. But a witness must answer to
the fact of his previous final conviction for an
offense.
Sec. 3, Rule 132
 List is not exclusive
To be protected from irrelevant, improper, or
insulting questions, and from harsh or insulting
demeanor
 Badgering a witness: in asking questions you
need to be polite and respectful
Right against self-incrimination
 Also available to ordinary witnesses
 However if the accused voluntarily takes the
witness stand, he can be asked about any matter
but the question should be relevant to the
present charge
Sec. 1 (e) of Rule 115: Criminal Procedure
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 Mere iteration of Constitutional rights
 Accused is exempt from being a witness against
himself
Rule 132, Section 4: Order in the examination of an
individual witness. — The order in which the
individual witness may be examined is as follows;
(a) Direct examination by the proponent;
(b) Cross-examination by the opponent;
(c) Re-direct examination by the proponent;
(d) Re-cross-examination by the opponent
Rule 132, Section 5: Direct examination. — Direct
examination is the examination-in-chief of a witness
by the party presenting him on the facts relevant to
the issue.
Direct examination
 The purpose of direct examination is to build up
the theory of the case
 Likened to building a house or pyramid in
which you should have a firm foundation
 Just like writing a god book in which there is a
good beginning, middle and end
 In direct examination you are prohibited from
asking leading questions
Leading questions
 Also called suggestive interrogation or
suggestive questioning
 Questions which suggests to the witness the
desired answers to the questions
 Rationale: It is unfair because it is contrary to
the requirement that a witness should answer
questions based on his personal knowledge
In asking questions, you are guided by 4 Ws and 1
H in the course of the direct examination
 What, Why, When, Where and How?
 These are the standard questions on direct
examination
Appearance could be made in writing or orally
 Orally make a manifestation to introduce
yourself
After swearing of the witness, the prosecution does
not need to ask personal circumstances
Summarize tenor of circumstances of the case
If the Judge asks you to comment on manifestation
of the prosecution, if there is no objectionable
matter…
 Say we will listen first to what the witness has
to say
Exclusion of other witness
 Avoid the a witness being influenced by another
witness
Identification and authentication
 Present after introduction of the facts
The court can interrupt the manner of questioning
when the court is not satisfied with the questions
being asked
Authentication
 Bracket the signature and name as exhibit A-1
Ask the witness whether he will confirm everything
in the statement, by doing such, it will convert the
document as a testimonial evidence
Rule 132, Section 6: Cross-examination; its purpose
and extent. — Upon the termination of the direct
examination, the witness may be cross-examined by
the adverse party as to many matters stated in the
direct examination, or connected therewith, with
sufficient fullness and freedom to test his accuracy
and truthfulness and freedom from interest or bias,
or the reverse, and to elicit all important facts
bearing upon the issue.
Cross examination
 Purpose is to destroy what has been established
 In destroying, all you need to do is to find a
weak spot in the theory of the case
One missing element of the crime is sufficient to
destroy the theory of the case
Cross-examination is not a mere privilege but an
absolute right of the other party; it can be withheld
but not denied
 Part of due process in criminal cases
Should you always cross-examine?
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 No need to destroy if your theory of the case
was not destroyed
 If it ain’t broke don’t fix it
 If nothing was established, do not conduct
cross-examination
Should you decide to conduct cross-examination,
what should be the subject?
 The witness may be cross-examined by the
adverse party as to many matters stated in the
direct examination, or connected therewith, with
sufficient fullness and freedom to test his
accuracy and truthfulness and freedom from
interest or bias, or the reverse, and to elicit all
important facts bearing upon the issue.
American Rule English Rule
Only matters testified to
Any matter relevant to
by the witness in thethe case, even if not
course of the direct covered by direct
examination may be examination provided it
cross-examined is relevant is subject to
cross-examination
WE FOLLOW BOTH RULES IN THE
PHILIPPINES
Note: Last sentence of Sec. 6, Rule 132 refers to the
English Rule
Tips on how to conduct cross-examination:
1) You should have a purpose
 You do no conduct a cross-examination just for
show
 Focus on the weak or vulnerable points in the
direct examination
2) Do not repeat the questions and answers in the
direct examination
 Do not repeat if there is no need
 You are in fact helping your adversary to
emphasize his points
3) Do not ask questions on cross-examination that
you do not know the answer
 Preferred questions on cross-examination are
leading or categorical questions (answered by
yes or no)
 Do not use open ended questions because you
are giving an opportunity to explain
 You never allow a witness to explain his answer
 All about effective control and by dropping the
witness to a particular trap
4) Be friendly
 A witness is more likely to cooperate if not
attacked
5) Do not argue with the witness
 Because if you will argue, you are reducing
yourself to the level of a litigant
 If the witness is arguing with you ask the help of
the court
6) Keep a poker face
 Never show emotion, keep composure
 If the witness answers intelligently, proceed to
other points
7) Use of first and last impression technique
 Focus from the very start and in the end focus
on your strongest points
John H. Wigmore: “Cross-examination is the
greatest legal engine ever invented for the discovery
of truth.”
Cross-examination
 Integral part of due process
 The testimony of a witness should be terminated
within 1 day and also cross examined
 1 Day termination rule
 Not strictly followed particularly in the case of
young lawyers
 If you are not really ready to cross examine, do
not force it
 Do not be shy to ask for a continuance
 If you are not ready, reset the hearing and ask
for continuance
Judicial Affidavit Rule (JAR)
 You cannot reserve and pray for continuance
 Immediately you are going to conduct a cross-
examination because the testimony of the
witness is already stated in the affidavit
 This is to expedite the proceedings
BAR:
Question on the applicability of the American Rule
and English Rule
 Both is being followed in the Philippines
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 The witness can be asked in any relevant matter
What if a witness will not return for cross-
examination?
 The testimony of the witness could not have
been said to be completed until such time he
was cross-examined because cross-examination
is an integral part of due process
 Remedy: Ask the court to strike out the
testimony of the witness
What if the witness died and for that reason no
cross-examination was conducted?
 Determine or qualify if there is no fault on the
part of the adverse party
 According to a case, the right to cross-
examination was waived when before the
witness died, the Counsel asked for numerous
resetting of trial
Can the court ask questions/ interrupt on direct
examination?
 Yes, but the questions of the court should be
limited to clarificatory questions only
The judge should display cold neutrality of an
impartial judge
Rule 132, Section 7: Re-direct examination; its
purpose and extent. — After the cross-examination
of the witness has been concluded, he may be re-
examined by the party calling him, to explain or
supplement his answers given during the cross-
examination. On re-direct-examination, questions
on matters not dealt with during the cross-
examination, may be allowed by the court in its
discretion.
Re-direct examination
 Purpose is to rebuild the theory of the case
during re-direct examination
 However, if you conduct re-direct examination,
there is an implied admission on your part that
something was destroyed
Coverage:
 It is wrong that Judges should focus on matters
in cross-examination
Questions on matters not necessary dealt with
during cross examination may be revised subject to
the discretion of the court
Rule 132, Section 8: Re-cross-examination. —
Upon the conclusion of the re-direct examination,
the adverse party may re-cross-examine the witness
on matters stated in his re-direct examination, and
also on such other matters as may be allowed by the
court in its discretion.
Re-cross examination
 Purpose is to destroy the theory of the case
again
 Also subject to courts discretion
Rule 132, Section 9: Recalling witness. — After the
examination of a witness by both sides has been
concluded, the witness cannot be recalled without
leave of the court. The court will grant or withhold
leave in its discretion, as the interests of justice may
require.
Recalling a witness
If a witness was discharged can he be recalled as a
witness?
 A witness may only be recalled with leave of
court (expressed permission of the court
 Subject to the discretion of the court
If you will file a motion to recall witness, it is
actually bad lawyering
 You should have asked everything from a
particular witness
Whenever you will examine a witness on direct or
cross-examination, ask everything
A general obligation of interest of justice is not
sufficient because you need to explain the reason of
recalling a witness
 Examples: prior counsel was negligent, some
documents were not presented during the direct
examination
Rule 132, Section 10: Leading and misleading
questions. — A question which suggests to the
witness the answer which the examining party
desires is a leading question. It is not allowed,
except:
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(a) On cross examination;
(b) On preliminary matters;
(c) When there is a difficulty is getting direct and
intelligible answers from a witness who is
ignorant, or a child of tender years, or is of
feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an
officer, director, or managing agent of a public
or private corporation or of a partnership or
association which is an adverse party.
A misleading question is one which assumes as true
a fact not yet testified to by the witness, or contrary
to that which he has previously stated. It is not
allowed.
 Because you cannot expect a complete narrative
from a child, one who is feebleminded or sick
4) Hostile Witnesses
5) Adverse parties are concerned
Atty. Bonifacio: You can ask leading questions if
witness forgets the answer
What is a hostile witness?
 You are misled in calling that witness
 If you are misled by a witness, you can declare
him as a hostile witness and you may be
allowed to ask leading questions
You cannot call the accused as your own witness in
a criminal case

Leading Question Misleading Question
Suggestive interrogation It is a deceptive question
which tends to confuse
the court and parties
about a particular fact
Not allowed because the One that assumes a fact
witness should testify as true without any
out of his personal foundation or basis
knowledge
Answer should not come Basis: one which
from the lawyer assumes a fact as true
and is contrary to the
earlier testimony of a
witness
You may call the adverse party as a witness,
particularly in a civil case
Rule 132, Section 11: Impeachment of adverse
party's witness. — A witness may be impeached by
the party against whom he was called, by
contradictory evidence, by evidence that his general
reputation for truth, honestly, or integrity is bad, or
by evidence that he has made at other times
statements inconsistent with his present, testimony,
but not by evidence of particular wrongful acts,
except that it may be shown by the examination of
the witness, or the record of the judgment, that he
has been convicted of an offense.

When can you object on the ground that the
question is misleading?
 Use it against opponent when he is cross-
examining his witness
 Raise that objection if it is your opponent
conducting cross-examination
When are leading questions allowed?
1) In the course of the cross-examination
 Preferred mode of questioning
 Categorical questions
2) Direct examination is allowed when it relates to
preliminary matters
 Ex. Personal circumstances
3) When the witness is a child of tender age
Sec. 11, Rule 132
 Has something to do with impeachment
 Process of challenging the credibility of a
witness
 Done at cross-examination
 The list is not exclusive because in the course of
cross-examination, you may draw out other
modes how to impeach a witness
Rule 132, Section 12: Party may not impeach his
own witness. — Except with respect to witnesses
referred to in paragraphs (d) and (e) of Section 10,
the party producing a witness is not allowed to
impeach his credibility.
A witness may be considered as unwilling or hostile
only if so declared by the court upon adequate
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showing of his adverse interest, unjustified
reluctance to testify, or his having misled the party
into calling him to the witness stand.
The unwilling or hostile witness so declared, or the
witness who is an adverse party, may be impeached
by the party presenting him in all respects as if he
had been called by the adverse party, except by
evidence of his bad character. He may also be
impeached and cross-examined by the adverse
party, but such cross-examination must only be on
the subject matter of his examination-in-chief. (
 As far as hostile witness, or witness of an
adverse party, you can impeach them
Rule 132, Section 13: How witness impeached by
evidence of inconsistent statements. — Before a
witness can be impeached by evidence that he has
made at other times statements inconsistent with his
present testimony, the statements must be related to
him, with the circumstances of the times and places
and the persons present, and he must be asked
whether he made such statements, and if so, allowed
to explain them. If the statements be in writing they
must be shown to the witness before any question is
put to him concerning them.
How witness impeached by evidence of inconsistent
statements
 Lay the basis, lay the foundation or lay the
predicate
 Highlight the discrepancy
 The court will always ask the final version
because the court wants to know the truth
Rule 132, Section 14: Evidence of good character of
witness. — Evidence of the good character of a
witness is not admissible until such character has
been impeached.
Rule 132, Section 15: Exclusion and separation of
witnesses. — On any trial or hearing, the judge may
exclude from the court any witness not at the time
under examination, so that he may not hear the
testimony of other witnesses. The judge may also
cause witnesses to be kept separate and to be
prevented from conversing with one another until
all shall have been examined.
Section 15, Rule 132
 Whenever your opponent will present, make
sure to ask if there are other witnesses, always
ask for exclusion, tendency to connive
 Minor inconsistencies are in fact badges of truth
 Avoid possibility that a witness shall be
influenced by another
 The accused cannot be excluded because he is
entitled to be present
The accused is always last to be presented as the
last witness
Rule 132, Section 16: When witness may refer to
memorandum. — A witness may be allowed to
refresh his memory respecting a fact, by anything
written or recorded by himself or under his direction
at the time when the fact occurred, or immediately
thereafter, or at any other time when the fact was
fresh in his memory and knew that the same was
correctly written or recorded; but in such case the
writing or record must be produced and may be
inspected by the adverse party, who may, if he
chooses, cross examine the witness upon it, and
may read it in evidence. So, also, a witness may
testify from such writing or record, though he retain
no recollection of the particular facts, if he is able to
swear that the writing or record correctly stated the
transaction when made; but such evidence must be
received with caution.
Sec. 16, Rule 132
 Purpose: used to refresh the memory of a
witness
 Concept of memorandum
 May be a formal or informal record used as a
written reminder of the facts
2 Kinds of Memorandum
1) Present recollection revived
2) Past recollection recorded
1) Present recollection revived
 Fact was written by the witness at the time of
the occurrence or at any other time when facts
are still fresh or clear from his memory
 Example: diary, personal journal
Can you present a diary as evidence?
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 Yes, a diary is an example of present
recollection revived
2) Past recollection recorded
 When the witness retains no recollection of the
event but he could swear that the writings
correctly stated that the transaction was made
 Used in business entries and tax entries
Rule 132, Section 17: When part of transaction,
writing or record given in evidence, the remainder
admissible. — When part of an act, declaration,
conversation, writing or record is given in evidence
by one party, the whole of the same subject may be
inquired into by the other, and when a detached act,
declaration, conversation, writing or record is given
in evidence, any other act, declaration,
conversation, writing or record necessary to its
understanding may also be given in evidence.
 The remainder can be examined by adverse
counsel and is admissible
Rule 132, Section 18: Right to respect writing
shown to witness. — Whenever a writing is shown
to a witness, it may be inspected by the adverse
party.
 Whenever a document is being shown make
sure you are there, to make sure what is being
presented is the original
Admission
 Voluntary acknowledgment by a party to the
existence of certain facts
 May be oral, written, express or implied
Judicial admission
 Evidentiary fact: Does not require proof
Extra-judicial admission
 Evidentiary fact: Requires proof
Judicial admission does not apply to ordinary
witnesses
Rule 130, Section 26: Admission of a party. — The
act, declaration or omission of a party as to a
relevant fact may be given in evidence against him.
Adaptive admission
 Discussed in the case of Estrada vs. Desierto
and Republic vs. Kenrick Development
Corporation
Republic vs. Kenrick Development Corporation
 An adoptive admission is 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.
 By adoptive admission, a third person’s
statement becomes the admission of the party
embracing or espousing it.
 Adoptive admission may occur when a party:
(a) Expressly agrees to or concurs in an oral
statement made by another;
(b) Hears a statement and later on essentially
repeats it;
(c) Utters an acceptance or builds upon the
assertion of another;
(d) Replies by way of rebuttal to some specific
points raised by another but ignores further
points which he or she has heard the other
make or
(e) Reads and signs a written statement made by
another.
GR: An admission by a party binds only a party
This was reiterated in the case of Estrada vs.
Desierto
 During the Edsa II, Erap voluntarily resigned
 By reason of the Angara diary, Erap is bound by
the admission of Angara because the former did
not contest
 There is already an adoptive admission by way
of the clear intent to resign
Res inter alios acta rule
 Things done between strangers ought not to
injure those who are not parties to them
2 Parts of the Rule
1) Section 28, Rule 130
 Section 28: Admission by third party. — The
rights of a party cannot be prejudiced by an act,
declaration, or omission of another, except as
hereinafter provided.
Page 8 of 25
 If you admitted something, it is only you who
are bound by the admission
 Rationale: bounded on fairness wherein a man’s
action should affect him alone
 Only applicable to admissions made out of
court, not applied in open court because if you
made it in open court, it is a judicial admission
which binds other parties
2) Section 34, Rule 130
 Section 34: Similar acts as evidence. —
Evidence that one did or did not do a certain
thing at one time is not admissible to prove that
he did or did not do the same or similar thing at
another time; but it may be received to prove a
specific intent or knowledge; identity, plan,
system, scheme, habit, custom or usage, and the
like.
 Evidence of previous conduct or similar acts at
one time is not admissible to prove the act
committed at another time
Exceptions to the res inter alios acta rule and also
adaptive admission:
1) Admission by co-partner or agent
2) Admission by conspirator
3) Admission by privies
Section 29: Admission by co-partner or agent. —
The act or declaration of a partner or agent of the
party within the scope of his authority and during
the existence of the partnership or agency, may be
given in evidence against such party after the
partnership or agency is shown by evidence other
than such act or declaration. The same rule applies
to the act or declaration of a joint owner, joint
debtor, or other person jointly interested with the
party.
Section 30: Admission by conspirator. — The act or
declaration of a conspirator relating to the
conspiracy and during its existence, may be given in
evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act
of declaration.
Section 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.
1) Who is an agent and co-partner?
 The legal relationship is founded on fiduciary
trust and confidence
 Parties forming the said contract, it is as if they
are only one person
 Act of one of the partners is also considered an
act of the other
Admission made by an agent, co-partner considered
admission of principals and other partners
The agent must have acted within the scope of
authority, if not it will not bind the principal
2) Co-conspirator
Conspiracy
 2 or more persons come to an agreement
concerning the commission of a crime and
decides to commit it
 The act of one is considered the act of all
 There is an identity of interest, therefore, if there
is an admission, it will bind the other co-
conspirators
Requisites of admission by a co-conspirator in order
to bind the others:
a) Declaration or act must be made or done during
the existence of the conspiracy
b) The declaration or act must relate to the
conspiracy
c) The conspiracy must be shown by evidence
other than the declaration or act
In order that the admission can be used, the
declaration must be within the knowledge of other
co-conspirators
 If the admission was not made within their
presence, such will not bind them
 Applies only to extra-judicial admission
3) Privies
Privy
 Those who are partakers or who have interest in
any action or thing or any relation to another
(Black’s Law dictionary)
Page 9 of 25
A former owner of a previously sold vehicle may
testify because of the privity of contracts
Elements:
a) Act or declaration or omission must be made by
a predecessor in interest
b) Act or declaration must have occurred while
holding title (predecessor)
c) Act or declaration must be in relation to the
property
Rationale: Identity of interest
This also applies in the cases of a lessor – lessee,
grantor – grantee, assignor – assignee, vendor –
vendee, heir – successor in interest
Rule 130, Section 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.
 Rationale: founded on common sense and
human instinct to immediately resist a lie
 Applies to both criminal and civil cases
Requisites:
a) Hearing and understanding of the statement of
the party
b) Opportunity and necessity of denying the
statements
c) Statements must refer to a matter affecting his
right
d) Facts is within the knowledge of the party
e) Facts admitted or inference to be drawn from his
silence will be material to the issue
One instance where it will not be applied:
 If appraised of his right to remain silent as a
matter of constitutional right
 The Constitution is superior than the rules on
evidence
Rule 130, Section 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.
Confession
 Also a particular kind of admission, admitting
guilt to a particular crime
Relate with Sec.3, Rule 133
 Section 3: Extrajudicial confession, not
sufficient ground for conviction. — An
extrajudicial confession made by an accused,
shall not be sufficient ground for conviction,
unless corroborated by evidence of corpus
delicti.
Requisite:
 Do not forget Sec. 12, Art. III of the
Constitution, Miranda Rights, People vs.
Mahinay, RA 7438 (Acts defining certain rights
under custodial investigation)
 If the above-mentioned are not followed, the
exclusionary rule applies
BAR:
Can there be implied confessions?
 No, there is no such thing as an implied
admission because it should always be
expressed, in written form, and there should be
direct positive acknowledgment of guilt
Granting that the confession complied with the
rules, how will we construe confessions?
 It is presumed free and voluntary
 Burden of proof will be on the person claiming
that the confession was not made voluntary
 Why? Because experience will show that the
accused will always retract their confession in
court
Is the confession of an accused admissible against a
co-accused or co-conspirator?
 GR: No, because of the inter alios acta rule
Exceptions:
1) Several of the accused are tried together and
confession made by one of them during the trial
implication the other is not evidence against the
other
2) Accused after hearing has been appraised of the
confession by his co-accused and ratifies or
confirms said confession
Page 10 of 25
3) One of the accused is discharged from the
information because he is qualified as a state
witness
 Requirement is that he should be the least guilty
and he will give information vital against the
accused
4) Interlocking confessions
 2 or more suspects whose statements are
substantially the same with regard to the crime
(without collusion)
5) There is admission by silence and it is
applicable
6) Admission by conspirators if elements are
present should be done during existence of
conspiracy
Rule 130, Section 34: Similar acts as evidence. —
Evidence that one did or did not do a certain thing
at one time is not admissible to prove that he did or
did not do the same or similar thing at another time;
but it may be received to prove a specific intent or
knowledge; identity, plan, system, scheme, habit,
custom or usage, and the like
 Rationale: Evidence must be confined to the fact
in issue otherwise attention of the court will be
diverted to collateral facts
 Previous conducts may be received as evidence
to prove a specific intent or knowledge; identity,
plan, system, scheme, habit, custom or usage,
and the like
Rule 130, Section 35: Unaccepted offer. — An offer
in writing to pay a particular sum of money or to
deliver a written instrument or specific personal
property is, if rejected without valid cause,
equivalent to the actual production and tender of the
money, instrument, or property.
Unaccepted offer
 Concept of tender of payment
Rule 130, Section 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, except those involving quasi-
offenses (criminal negligence) or those allowed by
law to be compromised, an offer of compromised
by the accused may be received in evidence as an
implied admission of guilt.
A plea of guilty later withdrawn, or an unaccepted
offer of a plea of guilty to lesser offense, is not
admissible in evidence against the accused who
made the plea or offer.
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.
In CAM and JDR, we also do not apply admissions
of guilt
Plea bargain
 Act offering plea of guilt, but later withdrawn
by the prosecution, it cannot be taken as an
implied admission of guilt
Good Samaritan rule
 Not an implied admission of guilt
Subsequent remedial measure rule
 Not an implied admission of guilt
 Rationale: Persons will be discouraged to
correct a wrong
Expert Witness
 In presenting either or direct or cross, you need
to be an expert yourself
 Know head of time what will be the nature of
the testimony of the witness
 You will help the witness simplify the testimony
 Should be simplified and understood by
everyone particularly the judge
Never present on the without conferring with the
expert witness
 Understand the tenor of the testimony
You need to prepare much more if you are going to
conduct cross-examination an expert witness
TIPS:
Page 11 of 25
Study and immerse yourself to the subject matter
the expert witness will be testifying on
If you know your opponent will present an expert
witness, you should also have your own expert
witness to counteract the testimony of the opposing
party
How to counteract:
 Use leading questions
 Never allow the expert witness to explain or
give an opinion on cross examination
Nature of hypothetical questions
 Engage the expert witness with hypothetical
questions that will favor your theory of the case
Draw out contradiction
 Find a material of an expert witness that will
challenge the testimony of the expert witness
You can also expose the expert witness’ bias or
partiality
You can also attack the qualification of an expert
witness
 That is why the qualification of the witness is
important
Avoid presenting character evidence
 Because the case should be decided on the basis
of the law and facts and not the character
 Only in rebuttal can the prosecution character
evidence
HEARSAY RULE
 Rule 130, Section 36
Section 36: Testimony generally confined to
personal knowledge; hearsay excluded. — A
witness can testify only to those facts which he
knows of his personal knowledge; that is, which are
derived from his own perception, except as
otherwise provided in these rules.
Hearsay
 Nothing more but gossip or rumors
 Second hand information
 “Sabi-sabi lamang”
Hearsay Evidence
 GR: is not admissible
 Exception: legal hearsay
Why is it inadmissible as a GR?
 Contravenes the requirement that the witness
should testify out of his personal knowledge
 It is unfair because the witness is not testifying
out of his personal knowledge
Personal knowledge
 That which witness acquired from what he
perceives through his senses
 May be acquired by perception, recollection of
facts, action, state of mind or operation of mind
Form: it could be oral or written
Hearsay is one of the misunderstood Rules
Before you could apply or object to a question
which calls for a hearsay answer, determine what is
the purpose or reason why the testimony is being
offered
SECOND HAND INFO:
PURPOSE:
 Truth – Hearsay
 Conversation (Narrative tenor) – Independent
Relevant Statements (IRS)
If in using secondhand information purpose is to
establish the truth, then you can apply the hearsay
rule
The Hearsay Rule can be invoked in the
establishment of facts using gossips or rumors
If your purpose is to prove that a conversation
happened, that there was a narrative of facts or tenor
of conversation (called IRS), the hearsay rule
cannot be applied
Independent Relevant Statements (IRS)
 Are relevant facts irrespective whether or not
they are true
Legal Hearsay
 Sections 37 – 47, Rule 130
Page 12 of 25
Exception to the Hearsay Evidence Rule
 Admissible in court for purposes of convenience
 In not all instances you can present personal
knowledge of the witness
In the BAR, concentrate on the following
exceptions:
 Sections 37, 38, and 42 of Rule 130
Dying Declaration (Favorite in the BAR)
Section 37: Dying declaration. — The declaration
of a dying person, made under the consciousness of
an impending death, may be received in any case
wherein his death is the subject of inquiry, as
evidence of the cause and surrounding
circumstances of such death.
Dying Declaration
 Also called ante-mortem statements
 Statement of a person on the verge of death
concerning the cause and circumstances of the
injury or wound which finally caused the death
History:
 Founded on Common Law
 In one village in England, there was a married
couple
 A witness entered the couple’s home to
investigate after he heard a scream and 2
gunshots
 The witness saw the husband lying in the pool
of his own blood then the latter told the former
that it was his wife who shot him
 There was no other direct evidence that will
point to the wife as the author of the crime
 In deciding the case the Magistrate held that no-
one on the point of death should be presumed to
be lying.
 Rationale: Death forecloses the possibility of
taking the testimony of the person who died
 Based on necessity, trust and worthiness
Requisites of the dying declaration rule:
1) Should be made under the consciousness of an
impending death
2) The statement concerns the cause and
circumstances of a person’s death
3) Victim is a competent witness
a) Statement is offered in any case in which the
death is the subject of inquiry
A) Should be made under the consciousness of an
impending death
 There is no need for a categorical statement that
he is going to die
Examples provided by the SC of under the
consciousness of an impending death:
a) Victim was rushed to a hospital, victim did not
ask for medical assistance but called for a priest
 Anointment of the sick
b) The victim asked for his love ones to say
goodbye to his family
c) A statement that he will no longer last
B) The statement concerns the cause and
circumstances of a person’s death
 Should describe the circumstances of his death
 The statement should have something to do with
the injury which caused the death
C) Victim is a competent witness
 Victim must not be suffering from mental
incapacity or immaturity
D) Statement is offered in any case in which the
death is the subject of inquiry
 Do not limit it to a criminal case, it can be used
in a civil, administrative case provided that the
death is subject of inquiry
The dying declaration can be done orally or in
writing
If the dying declaration is in writing, should it be
under oath?
 No need that the dying declaration should be
under oath
Declaration Against Interest
Section 38: Declaration against interest. — The
declaration made by a person deceased, or unable to
testify, against the interest of the declarant, if the
fact is asserted in the declaration was at the time it
was made so far contrary to declarant's own interest,
that a reasonable man in his position would not
Page 13 of 25
have made the declaration unless he believed it to
be true, may be received in evidence against himself
or his successors in interest and against third
persons.
Declaration against interest
 Out of court statement by a declarant who is
unable to become a witness and such declaration
is admissible as an exception to the rule against
hearsay if the statement was against his interest
at the time it was made
 A statement which is against yourself or
statement not favorable to you
 You will not say something that is against you if
it is not true
Interest
 Could be pecuniary interest, moral interest and
penal interest
Requisites:
1) Declarant is dead or unable to testify
2) He had at the time of the making of such
declaration interest in a particular subject matter
3) Declaration must concern a fact cognizable by
the declarant
4) Motive to falsify on the part of the person
making the declaration is improbable
This Rule has possible conflict with Section 22,
Rule 130 (Dead man’s statute)
 According to the dead man’s statute, a person
cannot testify as to any matter of fact before the
death of the of the party
 Under Section 38, you can actually testify as to
certain fact occurring before a person’s death
 To Reconcile: Treat the declaration against
interest as exception to the dead man’s statute
Pecuniary interest
 Ex: admitting non-ownership of a land
Moral interest
 Acknowledging paternity
Penal interest
 Ex: admitting to the commission of the crime
Interest must be real, actual or apparent
 Ex: As long as the testator is alive, the heirs
right is merely inchoate wherein rights of
succession will only accrue upon the death of
the testator
The declaration against interest may received in
evidence against himself or his successors in
interest and against third persons.
Section 39: Act or declaration about pedigree. —
The act or declaration of a person deceased, or
unable to testify, in respect to the pedigree of
another person related to him by birth or marriage,
may be received in evidence where it occurred
before the controversy, and the relationship between
the two persons is shown by evidence other than
such act or declaration. The word "pedigree"
includes relationship, family genealogy, birth,
marriage, death, the dates when and the places
where these fast occurred, and the names of the
relatives. It embraces also facts of family history
intimately connected with pedigree.
Section 40: Family reputation or tradition regarding
pedigree. — The reputation or tradition existing in a
family previous to the controversy, in respect to the
pedigree of any one of its members, may be
received in evidence if the witness testifying
thereon be also a member of the family, either by
consanguinity or affinity. Entries in family bibles or
other family books or charts, engravings on rings,
family portraits and the like, may be received as
evidence of pedigree.
Declaration about Pedigree
Pedigree
 Any notable fact in the life of a member of the
family
 Notable fact: may include birth, death, fact of
celibacy of a family member, and issues
concerning paternity
 This rule was used prior to the introduction of
DNA evidenc
Sections 39 and 40
 Presupposes a declaration made by a person
pertaining to a notable fact or event
Page 14 of 25
Requisites
1) Declarant is dead or unable to testify
2) Declarant is related to a person whose pedigree
is subject of inquiry
3) The relationship is shown by evidence other
than such fact of declaration
4) Such declaration made ante-litem motam
(before litigation) or existed prior to the
controversy
Pedigree could also be proven particularly under
Section 40
 Recognition of old Filipino traditions
 Entries in family bibles or other family books or
charts, engravings on rings, family portraits and
the like, may be received as evidence of
pedigree, as long as they existed before the
controversy
The witness justifying pedigree should be related to
the person whose pedigree is in question
 Can also be proven by family stories or
traditions
The Rule on Pedigree is no longer reliable because
of the existence of scientific methods
Section 41: Common reputation. — Common
reputation existing previous to the controversy,
respecting facts of public or general interest more
than thirty years old, or respecting marriage or
moral character, may be given in evidence.
Monuments and inscriptions in public places may
be received as evidence of common reputation
1) Common reputation
 General or undivided belief or opinion in a
certain community
Matters subject to common reputation:
a) Public or general interest which is more than
30 years old
b) Common reputation about marriage
c) Common reputation about the moral
character of a person
Examples:
a) No official recognition that the bridge in
Ambiong is the common boundary between
Baguio and La Trinidad, but public interest was
used regarding this matter
b) Presumption of marriage of one who present
themselves as husband and wife in the
community
c) Reputation in the community to prove moral
character
d) Monuments and inscriptions in public places
Section 42: Part of res gestae. — Statements made
by a person while a starting occurrence is taking
place or immediately prior or subsequent thereto
with respect to the circumstances thereof, may be
given in evidence as part of res gestae. So, also,
statements accompanying an equivocal act material
to the issue, and giving it a legal significance, may
be received as part of the res gestae.
Res Gestae
Section 42
 About parts of res gestae
Res gestae: literally means things done
2 Kinds of Res Gestae as an exception to the
Hearsay Rule
a) Spontaneous statements
b) Equivocal acts
Equivocal
 Ambiguous or unclear
Rationale for the 2 kinds
 No time for declarant to think and fabricate the
statement
 The presumption is that the statement or act
must be probably true
Example: Statement by a startled bystander during
an accident
Requisites:
1) The statements are made while a startling
occurrence is taking place
2) The statements are spontaneous
3) The statements must relate to the circumstances
of the startling occurrence
Section 43: Entries in the course of business. —
Entries made at, or near the time of transactions to
Page 15 of 25
which they refer, by a person deceased, or unable to
testify, who was in a position to know the facts
therein stated, may be received as prima facie
evidence, if such person made the entries in his
professional capacity or in the performance of duty
and in the ordinary or regular course of business or
duty.
Section 44: Entries in official records. — Entries in
official records made in the performance of his duty
by a public officer of the Philippines, or by a person
in the performance of a duty specially enjoined by
law, are prima facie evidence of the facts therein
stated.
 Entries in the official records are prima facie
evidence of facts therein
Section 45: Commercial lists and the like. —
Evidence of statements of matters of interest to
persons engaged in an occupation contained in a
list, register, periodical, or other published
compilation is admissible as tending to prove the
truth of any relevant matter so stated if that
compilation is published for use by persons engaged
in that occupation and is generally used and relied
upon by them therein.
 Examples: Forex (Php and $ equivalent), and
list of prices of stock in the newspaper
Section 46: Learned treatises. — A published
treatise, periodical or pamphlet on a subject of
history, law, science, or art is admissible as tending
to prove the truth of a matter stated therein if the
court takes judicial notice, or a witness expert in the
subject testifies, that the writer of the statement in
the treatise, periodical or pamphlet is recognized in
his profession or calling as expert in the subject.
Learned Treatises: written exposition in a particular
field
 This is an exception to Hearsay if the author is
an expert of the particular field
Section 47: Testimony or deposition at a former
proceeding. — The testimony or deposition of a
witness deceased or unable to testify, given in a
former case or proceeding, judicial or
administrative, involving the same parties and
subject matter, may be given in evidence against the
adverse party who had the opportunity to cross-
examine him
Section 47
 To be admitted as an exception to Hearsay, one
requirement provided under the rule is that there
should be an opportunity to cross examine the
witness
Opinion Rule
Section 48: General rule. — The opinion of witness
is not admissible, except as indicated in the
following sections
Why is it a GR that the opinion of the witness is not
admissible?
 Because it is the job of the court to make an
opinion and it is the job of the witness to testify
Opinion
 View or judgment not necessarily based on
personal knowledge or fact
Witness is prohibited from doing the following
during his testimony:
1) Interpret facts
2) Interpret the law
3) To make an opinion of fact and law
Exception to the GR wherein witness cannot make
an opinion: (MEMORIZE 5)
1) Ordinary witnesses can make an opinion as far
as the identity of a person
 Regarding one’s age, sex, nationality or race
2) Give an opinion concerning the physical
dimensions or measurements
 Give an opinion on size, weight, shape, and
height
3) Give an opinion concerning color
4) Give an opinion or behavior of a person
 Particular emotion of a person
5) Physical features and orientation
 Speed, motion, time and direction
6) Appearance, demeanor or personal reaction
Page 16 of 25
7) Person’s intoxication or drunkedness
 Even an ordinary witness can testify as to the
degree of drunkedness by merely testifying on
his observations
8) Mental condition of a person
 Can be testified to and he can form an opinion
9) Genuineness of a signature or handwriting
 Can be the subject of an opinion of an ordinary
witness
Expert Witness
Section 49: Opinion of expert witness. — The
opinion of a witness on a matter requiring special
knowledge, skill, experience or training which he
shown to possess, may be received in evidence.
Before presenting an expert witness to give an
opinion, his special skills or training must be shown
to the court
Process of qualifying an expert witness
 Before you will give his opinion, his
qualifications should be shown to the court
 Show how he acquired his particular expertise
 Ex: in annulment cases wherein a psychiatrist is
needed, establish the latter’s academic
credentials and experience by qualifying the
expert witness
What if the expert witness is already known?
 To abbreviate proceedings pursue judicial
admission on the part of the adverse party
 Stipulate as to the qualification of the expert
witness
Can the qualification of an expert witness be subject
to judicial notice?
 Yes, subject to discretionary judicial notice
Note: Make sure the expert witness is an expert
With regard to property appraisals, expert witnesses
are also needed
The Expert witness must be qualified
Question on direct examination that you can ask to
an expert witness:
1) Opinion or facts known personally by the expert
2) Expert witness can testify on opinion of facts
which he has no personal knowledge
 As to subject of testimony, you could ask
hypothetical questions
 Only expert witnesses can answer hypothetical
questions, ordinary witnesses can never be
asked hypothetical questions
Hypothetical questions
 Will venture on different possibilities regardless
whether or not it is supported by the facts
 Examples: questions starting with suppose,
assuming, is it possible?
Section 50: Opinion of ordinary witnesses. — The
opinion of a witness for which proper basis is given,
may be received in evidence regarding —
(a) The identity of a person about whom he has
adequate knowledge;
(b) A handwriting with which he has sufficient
familiarity; and
(c) The mental sanity of a person with whom he
is sufficiently acquainted.
The witness may also testify on his impressions of
the emotion, behavior, condition or appearance of a
person.
Section 50
 List is not exclusive, follow the prior list given
If you will ask the opinion of an ordinary witness,
make sure that you will lay the basis and foundation
Character Evidence
Section 51: Character evidence not generally
admissible; exceptions: —
(a) In Criminal Cases:
(1) The accused may prove his good moral
character which is pertinent to the moral trait
involved in the offense charged.
(2) Unless in rebuttal, the prosecution may not
prove his bad moral character which is
pertinent to the moral trait involved in the
offense charged.
Page 17 of 25
 (3) The good or bad moral character of the
offended party may be proved if it tends to
establish in any reasonable degree the
probability or improbability of the offense
charged.
(b) In Civil Cases:
Evidence of the moral character of a party in
civil case is admissible only when pertinent
to the issue of character involved in the case.
(c) In the case provided for in Rule 132, Section 14,
Section 51
GR:
 Character evidence not admissible because it is
considered to be collateral evidence
 Courts should not estimate the character of a
witness
Is character the same as reputation?
 They are not synonymous
 Character refers to moral fitness while
reputation refers to estimation or image of a
person in a community
When do we present character evidence in criminal
cases?
 The accused may prove his good moral
character which is pertinent to the moral trait
involved in the offense charged
If you will present character evidence, you are
giving the prosecution an opportunity to rebut it.
 The prosecution may not prove his bad moral
character unless in rebuttal
Can you present character evidence of an offended
party?
 Yes, if it tends to establish in any reasonable
degree the probability or improbability of the
offense charged
When do we present character evidence in civil
cases?
 Evidence of the moral character of a party in
civil case is admissible only when pertinent to
the issue of character involved in the case.
 That’s why in an annulment case, you can
further present evidence as to a party’s
psychological incapacity
Rule 132, Section 14: Evidence of good character of
witness. — Evidence of the good character of a
witness is not admissible until such character has
been impeached.
Section 14, Rule 132
 Has something to do with the good moral
character of a witness
 You cannot present evidence of good character
of a witness until such character has been
impeached
Offer and Objection
 Sections 34-40, Rule 132
Section 34: Offer of evidence. — The court shall
consider no evidence which has not been formally
offered. The purpose for which the evidence is
offered must be specified.
 Also state the purpose why you are formally
offering evidence
 Applies to all forms of evidence
 Potential BAR question
Section 35: When to make offer. — As regards the
testimony of a witness, the offer must be made at
the time the witness is called to testify.
Documentary and object evidence shall be offered
after the presentation of a party's testimonial
evidence. Such offer shall be done orally unless
allowed by the court to be done in writing.
 Always asked in the BAR
Testimonial Evidence
 The proponent of the witness will make the
offer of evidence
 State the purpose of offering testimony
 The offer is made at the time the witness is
called to testify
Catch all phrase:
 And to testify as to all relevant facts that has
bearing in the case
Documentary and Object evidence
Page 18 of 25
 Shall be done after presentation of evidence in
chief/ when all witnesses has been presented
 Can be done orally or in writing
If the document is voluminous, the court may allow
a written offer or exhibit
JAR: formal offer of evidence should be done orally
Written offer
 No fix period to make such offer
 The normal period is either 10, 20 days, or 1
month; by experience the court never gave a
period of one month
Consequences of not filing or presenting formal
offer of evidence/ exhibits
 No matter how relevant, it cannot be considered
by the court in making judgment
 The SC reminded courts that they should strictly
follow the rule on formal offer
Objections
Section 36: Objection. — Objection to evidence
offered orally must be made immediately after the
offer is made.
Objection to a question propounded in the course of
the oral examination of a witness shall be made as
soon as the grounds therefor shall become
reasonably apparent.
An offer of evidence in writing shall be objected to
within three (3) days after notice of the unless a
different period is allowed by the court.
In any case, the grounds for the objections must be
specified.
Section 36:
To object
 To resist a particular evidence
 Need to object because failure to object is
considered a waiver
 Even if evidence is objectionable, it will become
the property of the case
Testimonial Evidence
 Objection to evidence offered orally must be
made immediately after the offer is made
Documentary and Object Evidence
 An offer of evidence in writing shall be objected
to within 3 days after notice of the unless a
different period is allowed by the court
 The said 3 days is not strictly followed
After offer of evidence, the case shall be submitted
for resolution
In making an objection, always state the ground
 No such thing as a general objection
 Must state the legal grounds
 You can only object to a valid legal ground
Section 37: When repetition of objection
unnecessary. — When it becomes reasonably
apparent in the course of the examination of a
witness that the question being propounded are of
the same class as those to which objection has been
made, whether such objection was sustained or
overruled, it shall not be necessary to repeat the
objection, it being sufficient for the adverse party to
record his continuing objection to such class of
questions.
Section 37:
Continuing Objection
 Not to repeat grounds on objection
 Make a continuing objection to the said line of
questioning
Section 38: Ruling — The ruling of the court must
be given immediately after the objection is made,
unless the court desires to take a reasonable time to
inform itself on the question presented; but the
ruling shall always be made during the trial and at
such time as will give the party against whom it is
made an opportunity to meet the situation presented
by the ruling.
The reason for sustaining or overruling an objection
need not be stated. However, if the objection is
based on two or more grounds, a ruling sustaining
the objection on one or some of them must specify
the ground or grounds relied upon.
Section 38
 Ruling as far as objections should be given
immediately unless the court desires to take a
Page 19 of 25
 reasonable time to inform itself on the questions
presented
 Ruling should be made at the course of the trial
so that parties could avail of usual remedies
If you are not satisfied by the ruling of the court
regarding an objection, you may ask for an MR for
the said ruling
 This is not good lawyering because you should
never antagonize the judge
Is there a need for the judge to state the reason on
sustaining or overruling an objection?
 No need to state or explain the reasons for
sustaining or overruling an objection
Section 39: Striking out answer. — Should a
witness answer the question before the adverse
party had the opportunity to voice fully its objection
to the same, and such objection is found to be
meritorious, the court shall sustain the objection and
order the answer given to be stricken off the record.
On proper motion, the court may also order the
striking out of answers which are incompetent,
irrelevant, or otherwise improper.
Section 39
 Only strike out the answers of a witness
When available?
1) When a party answered before the counsel fully
voiced out his objection
 Move for striking out of the answer
2) Questions may be proper but the answer is
improper
 Ex. answer is responsive or answer is hearsay
Section 40: Tender of excluded evidence. — If
documents or things offered in evidence are
excluded by the court, the offeror may have the
same attached to or made part of the record. If the
evidence excluded is oral, the offeror may state for
the record the name and other personal
circumstances of the witness and the substance of
the proposed testimony.
Section 40
 Available to all kinds of evidence as to form
whether object, documentary or testimonial
 This is for evidence excluded by the court
How to tender excluded evidence?
 Itemize the proposed testimony of the witness
Practical use is for purposes of appeal wherein it
can be viewed by the appellate court when it sees it
was erroneous to exclude evidence
You could also make tender of excluded evidence in
writing and explain reasons of offering
Also attach a copy of the excluded document to the
tender of excluded evidence in writing
 If object evidence, a picture will do
For purposes of appeal, the appellate court cannot
entertain the offer or tender of evidence
Tender or to offer excluded evidence is a matter of
right
Classifications of Objections:
1) Objection as to manner
2) Objection as to form
3) Objection as to substance
1) Objection as to manner
a) Objection because counsel is badgering’
b) Harassment of the witness
c) Question is argumentary
d) Question calls for the embarrassment of the
witness
2) Objection as to form
a) Question is leading – leading questions on direct
examination
b) Question is compound
 Asking 2 or more questions at the same time
 Using and or or (conjuctions)
 Tends to confuse the witness and deprives the
party from objecting
c) Question is to general
 Ex. What happened?
d) Question calls for a narrative
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 Ex. Will you please narrate what happened?
 Deprives the right to object
 Follow the one sentence rule in examination
e) Question is vague
 Question which is not intelligible or cannot be
understood
f) Question is hypothetical
 Hypothetical questions is objectionable if asked
to ordinary witness but allowed in cases of
expert witnesses
g) Question calls for an answer pertaining to an
admitted manner
 Judicial admissions do not require proof
h) Question is repetitious
 “asked and answered”
3) As to substance
a) Question is irrelevant, immaterial or impertinent
b) Evidence is incompetent — because it is
excluded by law or the rules
c) Question is misleading – technically deceptive
d) Question tends to incriminate a witness to a
crime
 Self-incriminatory
e) Witness is disqualified
 Disqualification by reason of immaturity,
marriage, or filial relationship
f) Question calls for a privileged answer
 Privileged communications
g) Question lacks foundation or basis
 Not laying the basis
h) Questions calls for the opinion of a witness
 Applicable in relation to an ordinary witness
i) Questions inappropriately calls for character
evidence
 If not pertinent to the issue, it can be
objectionable
j) Question calls for hearsay evidence
 Counter by calling for the tenor of Independent
Relevant Statements
k) Counsel is impeaching his own witness
l) Question or mode of presentation of evidence is
violative of the Best Evidence Rule
m) Question violates the Parol Evidence Rule
n) Res inter alios acta rule
Rule on the Examination of a Child Witness
 A.M. NO. 004-07-SC, November 21, 2000
 Enacted pursuant to the International
Convention on the rights of the child
Child rights will include rights whenever he is
testifying in in court as a party, accused or a mere
witness to a case
Main objective
 To create and maintain an environment that will
allow children to give reliable and complete
evidence and also minimize trauma and to
encourage children to testify in a court
proceeding to ascertain the truth
In enacting such, the SC acknowledge the fact that
the rules on evidence particularly caters only to
adults
Local Laws:
RA 7610 (Child Abuse Law)
PD 603 (Child and Youth Welfare Code)
RA 9262 (VAWC)
RA 9344 (Juvenile Justice Act)
RA 8369 (Family Court Act)
RTC are merely designated as family courts
Regarding allied treaties and laws, the best interest
of the child is the primary consideration
Best interest of the child rule
 The totality of the circumstances and conditions
as are most congenial to the survival, protection,
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 and feelings of security of the child and most
encouraging to his physical, psychological, and
emotional development. It also means the least
detrimental available alternative for
safeguarding the growth and development of the
child
Presumption of competency in favor of the child
that he is qualified as a witness
 If there is doubt, upon motion of the party,
competency hearing may be held, or the court
may conduct a motu proprio competency
hearing
Will be asked in the Finals:
What is a vor dire?
 Motu proprio the court can conduct hearing
without a motion
Age of the child not satisfactory ground to declare
him incompetent
The competency and credibility of the child lies in
the discretion of the trial judge
Child hearsay exception rule:
 A statement made by a child describing any act
or attempted act of child abuse, not otherwise
admissible under the hearsay rule, may be
admitted in evidence in any criminal or non-
criminal proceeding
Who is a child witness?
 May be a victim of the crime
 May be an accused of the crime
 May be a witness of the crime
What type of proceeding does this rule apply to?
 Applies to both criminal and non-criminal
proceedings
Exact definition of child witness
 Is any person who at the time of giving
testimony is below the age of eighteen (18)
years. In child abuse cases, a child includes one
over eighteen (18) years but is found by the
court as unable to fully take care of himself or
protect himself from abuse, neglect, cruelty,
exploitation, or discrimination because of a
physical or mental disability or condition
Can lawyers directly ask questions to child
witnesses?
 No, as a GR there should be a facilitator
Facilitator
 A person appointed by the court to pose
questions to a child.
Guardian ad litem
 The court may appoint a guardian ad litem for a
child who is a victim of, accused of, or a witness
to a crime to promote the best interests of the
child
 The parents may act as guardian ad litem
Support person
 A child testifying at a judicial proceeding or
making a deposition shall have the right to be
accompanied by one or two persons of his own
choosing to provide him emotional support.
To be qualified as a guardian ad litem
 He should not be a witness to the proceeding, to
avoid influencing the testimony of the child
 Guardian ad litem shall not testify unless the
court finds it necessary
Competency hearing shall be conducted directly by
the judge
 The judge will be asking questions to determine
competency
 Lawyers cannot ask questions, however they
can suggest questions
 Before competency hearing the lawyers can give
suggestions
How to conduct hearing when there is a child
witness?
 It should be done in open court in open court if
possible
 However, if it is necessary to protect the right to
privacy of the child, the public can be excluded
Interpreter
 Not a court employee but a member of the
family of the child
 Must take an oath or affirmation to make a true
and accurate interpretation as to the testimony
of the child
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Facilitator
 The court may, motu proprio or upon motion,
appoint a facilitator if it determines that the
child is unable to understand or respond to
questions asked. The facilitator may be a child
psychologist, psychiatrist, social worker,
guidance counselor, teacher, religious leader,
parent, or relative.
 The respective counsels for the parties shall
pose questions to the child only through the
facilitator.
 The questions shall either be in the words used
by counsel or, if the child is not likely to
understand the same, in words that are
comprehensible to the child and which convey
the meaning intended by counsel.
 The facilitator shall take an oath or affirmation
to pose questions to the child according to the
meaning intended by counsel
 Manner of questioning must be conveyed as to
the intended meaning of counsel
Support Persons
 A child testifying at a judicial proceeding or
making a deposition shall have the right to be
accompanied by one or two persons of his own
choosing to provide him emotional support.
 Must be visible to the child
 The child can even hold their hand
 Not allowed to prompt, sway, or influence the
child during his testimony
There should be a waiting area where the child and
the support could wait while the former is waiting
to testify
The court could be disarranged for purposes of
entertaining the child or to facilitating his testimony
Testimonial aids and emotional securities
 The court shall permit a child to use dolls,
anatomically-correct dolls, puppets, drawings,
mannequins, or any other appropriate
demonstrative device to assist him in his
testimony.
 The child may also eat while testifying
The court may prohibit a counsel from approaching
a child if it appears that the child is fearful of or
intimidated by the counsel.
Leading questions in all stages are allowed
BAR
Define live link television testimony
 The use of equipment like cameras and tvs
 The testimony will be recorded live using
cameras and tvs
 The lawyers shall observe through live link tv
 Support persons and facilitator are only present
with the child
 Available when the child is a victim or witness
and he suffered emotional trauma
 The person seeking such an order shall apply at
least five (5) days before the trial date in order
for the court to prepare
 A one way mirror is also sufficient to be
considered as live link tv testimony
Hearsay exception in child abuse cases
 A statement made by a child describing any act
or attempted act of child abuse, not otherwise
admissible under the hearsay rule, may be
admitted in evidence in any criminal or non-
criminal proceeding
Sexual abuse shield rule. -
 Inadmissible evidence. - The following evidence
is not admissible in any criminal proceeding
involving alleged child sexual abuse:
(1) Evidence offered to prove that the alleged
victim engaged in other sexual behavior; and
(2) Evidence offered to prove the sexual
predisposition of the alleged victim.
 Exception: Evidence of specific instances of
sexual behavior by the alleged victim to prove
that a person other than the accused was the
source of semen, injury, or other physical
evidence shall be admissible.
 Semen or injury came from other person
The court can issue a protective order to protect the
best interest of the child which includes the
following:
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1) Order maintaining confidentiality
2) Order for safekeeping of videotapes or audio
tapes
3) Order protecting the privacy of the child
4) Order protecting identity of the child
5) Protection of the physical safety of the child
Destruction of videotapes and audiotapes
 Any videotape or audiotape of a child produced
shall be destroyed after 5 years have elapsed
from the date of entry of judgment.
Records of youthful offender
 Where a youthful offender has been charged and
have been ordered dropped, all the records of
the case shall be considered as privileged
DNA EVIDENCE
DNA - Deoxyribonucleic acid
 Blueprint for all living things; biological and
chemical component is unique
 Genetic code, blueprint/ makeup
How is it developed?
 23 pairs of chromosomes for each individual
 3 million combinations
In every DNA testing the best possible score is
99.9999%, there is no 100% result
Why is DNA evidence important?
 It is a primary tool for human identification
In DNA evidence there is also a basis for
comparison
IDENTIFICATION METHOD & ITS CHANCES
OF FAILURE
1) Measurement of height - 1 in 4
2) Comparison of pubic hair - 1 in 800
3) Comparison of scalp hair - 1 in 4500
4) Anthropometry - 1 in 268 million
5) Teeth bite marks - 1 in 2.5 billion
6) Gold Standard Fingerprinting Testing
(Fingerprints) - 1 in 64 billion
7) DNA Analysis – 1 in 2 x 1022
DNA evidence is object evidence is object evidence
but it heavily relies on statistical predictions
 The findings should be embodied in a document
called DNA findings that should be testified to
by a witness who is a pathologist that
specializes on DNA testing
 It needs to be proven properly
DNA evidence is part of Forensic Science, which is
object evidence which calls for the application of
science
A DNA molecule is a long and twisting chain
known as DOUBLE HELIX.
 It is made of four (4) basic nucleotides:
ADENINE, CYTOSINE, GUANINE, and
THYMINE.
 These nucleotides exists as a base pairs that link
together like rungs in a ladder.
 ADENINE and THYMINE always bond
together as a pair with double bonds.
 CYTOSINE and GUANINE bond together as a
pair with triple bonds.
How is DNA evidence unique?
 99% of the DNA between 2 individuals are
identical but some 3 MILLION base pairs of
DNA vary from person to person.
 This is what makes DNA evidence unique
particularly in investigations because it is almost
impossible for someone else to have DNA that
is identical to one has, except in identical twins.
 In human cells, DNA is tightly wrapped into 23
pairs of chromosomes. One member of the
chromosomal pair comes from the mother and
the other from the father. In other words, a
person’s DNA is a combination of his mother
and father.
DNA FINGERPRINTING / PROFILING /
ANALYSIS
 The term “DNA Fingerprinting” was coined to
allude to the traditional use of fingerprints as a
means of human identification.
 It is a technique that analyzes the unique
attributes of a person’s DNA.
 When properly conducted, DNA based testing
not only provides exclusionary evidence but it
can provide evidence of a person’s identity
without bias.
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 Note: DNA analysis relies heavily on statistical
predictions.

Forensic Application of DNA Testing

1) Forensic cases (matching suspect with evidence)
2) Paternity testing (identifying the father)
3) Historical investigations
4) Missing persons investigations
5) Mass disasters
6) Military DNA “dog tag”
7) Convicted felon DNA databases

SOURCES OF BIOLOGICAL EVIDENCE

(for purposes of DNA ANALYSIS)Blood
(a) Semen
(b) Saliva
(c) Urine
(d) Hair
(e) Teeth
(f) Bone
(g) Tissue
(h) Perspiration
(i) Vaginal secretions

STEPS IN DNA ANALYSIS

1) Collection
2) Specimen Storage
3) Extraction
4) Quantitation
5) Genotyping
6) Interpretation of Results
7) Database / Storage and Searching

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