Evidence 2018 Lecture 8

! (https://etriiilaw.
com/)
October 21, 2018 (https://etriiilaw.com/evidence-2018-lecture-8/) | By Atty.

Eduardo Reyes III (https://etriiilaw.com/author/attyed/)
In Evidence (https://etriiilaw.com/category/law-jurisprudence/evidence/),
Laws/Jurisprudence (https://etriiilaw.com/category/law-jurisprudence/)
Evidence 2018 – Lecture 8
ETRIII REMEDIAL LAW REVIEW Lecture Series
A.6. Dead Man’s Statute. Founded on truism that “death seals the lips of a
person”.
Sec. 23. Disqualification by reason of death or insanity of adverse party x x x .

– Parties or assignors of parties to a case, or persons in whose behalf a case
is prosecuted, against an executor or administrator or other representative of
a deceased person, or against a person of unsound mind, upon a claim or
https://etriiilaw.com/evidence-2018-lecture-8/ 22/10/2018, 7=57 PM

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demand against the estate of such deceased person or against such person
of unsound mind, cannot testify as to any matter of fact occurring before the
death of such person or before such person became of unsound mind.
This rule “applies only to a civil case or a special proceeding over the estate
of a deceased or insane person”.[1]
1. The defendant in this case is the executor or administrator or a representative

of the deceased or the person of unsound mind;
2. The suit is upon a claim by the plaintiff against the estate of said deceased or
person of unsound mind;
3. The witness is the plaintiff, or an assignor of that party, or a person in whose
behalf the case is prosecuted; and,
4. The subject of the testimony is as to any matter of fact occurring before the
death of such deceased person or before such person became of unsound
mind.[2]
– “When a counterclaim is set up by the administrator of the estate, the case is

removed from the operation of the “dead man’s statute”. The plaintiff may testify to
occurrences before the death of the deceased to defeat the counterclaim which is
not brought against the representative of the estate by the said representative”[3]
Lecture Outline No. 8

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OUTLINE/ LECTURE ON
OFFER OF EVIDENCE AND OBJECTIONS
UNDER THE RULES OF COURT AS MODIFIED BY
THE JUDICIAL AFFIDAVIT RULE
By: Atty. Eduardo T. Reyes, III
1. Comparative Analysis of Rules on Offer of Evidence & Objections Under

the Rules of Court and the Judicial Affidavit Rule
NOTE: Pursuant to the Judicial Affidavit Rule, a much later enactment than the
Rules of Court, “Section 11. Repeal or modification of inconsistent rules. – The
provisions of the Rules of Court and the rules of procedure governing
investigating officers and bodies authorized by the Supreme Court to receive
evidence are repealed or modified insofar as these are inconsistent with the
provisions of this Rule”.
Judicial Affidavit Rule (A.M. No. 12-

Sections 34 to 40, Rules of Court
8-8-SC)

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Section 6. Offer of and objections to
testimony in judicial affidavit. – The
party presenting the judicial
affidavit of his witness in place of
direct testimony shall state the
purpose of such testimony at the
start of the presentation of the
witness. The adverse party may
move to disqualify the witness or to
strike out his affidavit or any of the
answers found in it on ground of
inadmissibility. The court shall
promptly rule on the motion and, if
granted, shall cause the marking of
any excluded answer by placing it
in brackets under the initials of an
authorized court personnel, without
Section 34. Offer of prejudice to a tender of excluded
evidence. — The court shall evidence under Section 40 of Rule
consider no evidence which has not 132 of the Rules of Court.
been formally offered. The purpose

Section 7. Examination of the
for which the evidence is offered
witness on his judicial affidavit. –
must be specified. (35)
The adverse party shall have the
right to cross-examine the witness
on his judicial affidavit and on the

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Section 35. When to make exhibits attached to the same. The
offer. — As regards the testimony party who presents the witness may
of a witness, the offer must be also examine him as on re-direct. In
made at the time the witness is every case, the court shall take
called to testify. active part in examining the witness
to determine his credibility as well
Documentary and object evidence
as the truth of his testimony and to
shall be offered after the
elicit the answers that it needs for
presentation of a party’s testimonial
resolving the issues.
evidence. Such offer shall be done
orally unless allowed by the court
to be done in writing. (n)
Section 8. Oral offer of and
Section 36. Objection. — Objection objections to exhibits. – (a) Upon
to evidence offered orally must be the termination of the testimony of
made immediately after the offer is his last witness, a party shall
made. immediately make an oral offer of
evidence of his documentary or
Objection to a question
object exhibits, piece by piece, in
propounded in the course of the
their chronological order, stating
oral examination of a witness shall
the purpose or purposes for which
be made as soon as the grounds
he offers the particular exhibit.
therefor shall become reasonably
apparent. (b) After each piece of exhibit is
offered, the adverse party shall
An offer of evidence in writing shall
state the legal ground for his
be objected to within three (3) days
objection, if any, to its admission,
after notice of the unless a different
period is allowed by the court.

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In any case, the grounds for the and the court shall immediately
objections must be specified. (36a) make its ruling respecting that
exhibit.
Section 37. When repetition of
objection unnecessary. — When it (c) Since the documentary or object
becomes reasonably apparent in exhibits form part of the judicial
the course of the examination of a affidavits that describe and
witness that the question being authenticate them, it is sufficient
propounded are of the same class that such exhibits are simply cited
as those to which objection has by their markings during the offers,
been made, whether such objection the objections, and the rulings,
was sustained or overruled, it shall dispensing with the description of
not be necessary to repeat the each exhibit.
objection, it being sufficient for the
adverse party to record his
continuing objection to such class
of questions. (37a)
Potential Ground for Objection
Section 38. Ruling. — The ruling of would be as to the: 1) FORM and/ or
the court must be given 2) SUBSTANCE of the Contents of
immediately after the objection is the Judicial Affidavit
made, unless the court desires to
take a reasonable time to inform
itself on the question presented; Section 3. Contents of judicial
but the ruling shall always be made Affidavit. – A judicial affidavit shall
during the trial and at such time as be prepared in the language known
to the witness and, if not in English

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will give the party against whom it or Filipino, accompanied by a
is made an opportunity to meet the translation in English or Filipino,
situation presented by the ruling. and shall contain the following:
The reason for sustaining or (a) The name, age, residence or

overruling an objection need not be business address, and occupation
stated. However, if the objection is of the witness;
based on two or more grounds, a
(b) The name and address of the
ruling sustaining the objection on
lawyer who conducts or supervises
one or some of them must specify
the examination of the witness and
the ground or grounds relied upon.
the place where the examination is
(38a)
being held;
Section 39. Striking out
(c) A statement that the witness is
answer. — Should a witness answer
answering the questions asked of
the question before the adverse
him, fully conscious that he does
party had the opportunity to voice
so under oath, and that he may face
fully its objection to the same, and
criminal liability for false testimony
such objection is found to be
or perjury;
meritorious, the court shall sustain
the objection and order the answer (d) Questions asked of the witness
given to be stricken off the record. and his corresponding answers,
consecutively numbered, that:
On proper motion, the court may
also order the striking out of (1) Show the circumstances under
answers which are incompetent, which the witness acquired the
irrelevant, or otherwise improper. facts upon which he testifies;
(n)

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Section 40. Tender of excluded (2) Elicit from him those facts which
evidence. — If documents or things are relevant to the issues that the
offered in evidence are excluded by case presents; and
the court, the offeror may have the
(3) Identify the attached
same attached to or made part of
documentary and object evidence
the record. If the evidence excluded
and establish their authenticity in
is oral, the offeror may state for the
accordance with the Rules of Court;
record the name and other personal
circumstances of the witness and (e) The signature of the witness
the substance of the proposed over his printed name; and
testimony. (n)
(f) A jurat with the signature of the
notary public who administers the
oath or an officer who is authorized
by law to administer the same.
Section 4. Sworn attestation of the

lawyer. – (a) The judicial affidavit
shall contain a sworn attestation at
the end, executed by the lawyer
who conducted or supervised the
examination of the witness, to the
effect that:
(1) He faithfully recorded or caused

to be recorded the questions he
asked and the corresponding
answers that the witness gave; and

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(2) Neither he nor any other person
then present or assisting him
coached the witness regarding the
latter’s answers.
(b) A false attestation shall subject

the lawyer mentioned to
disciplinary action, including
disbarment.
Comments:
Formal Offer v. Marking, Identification and Authentication. Pursuant

to Section 34, Rule 132, evidence must be “formally offered” in order for
it to merit consideration by the trial court. However, mere marking,
identification and authentication should not be equated with formal offer.
“There is a distinction between identification of a documentary evidence

and its formal offer as an exhibit. The first is done in the course of the

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trial and is accompanied by the marking of the evidence as an exhibit,
while the second is done only when the party rests its case.[4]”
TIMELY OBJECTION-
Rule when party is represented by several lawyers. – “It has been

held that where a party is represented by two attorneys, the fact that the
examination in chief of a witness has been conducted by one of them
does not warrant the court in refusing to receive objections by the other
to questions asked on cross-examination”[5].
Evidence ORALLY OFFERED- Immediately after the offer is made
OBJECTION to Question Propounded in the course of examination

of a witness– as soon as the grounds therefor shall become
reasonably apparent
NOTE: “Reasonably Apparent” means as a GENERAL RULE that “An

objection to the form of a question as leading must be interposed before the
question is answered”.[6]

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“The rule that objection is to be made when the question is propounded to the
witness and before he gives his testimony must be reasonably applied. Its
object is to prevent a party from ‘gambling on his answer’ by withholding his
objection until he discovers the effect of the testimony, and then interposing
his objection if the testimony is unfavorable”[7].
Evidence OFFERED IN WRITING- Shall be objected to within three (3)

days after notice of the offer UNLESS a different period is given by the
Court.
PREMATURE OBJECTION- “An objection to evidence cannot be made in

advance of the offer of the evidence sought to be introduced.”[8]
OBJECTION MUST BE SPECIFIC. Grounds.
1. Question is Leading
2. Calls for Hearsay Evidence
3. Lack of Basis, or Assumes a Fact Not in Established

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4. Question invades filed of confidential communication
5. Vague
6. Calls for conclusion of law
7. Calls for conclusion of fact
8. Argumentative
9. The proper foundation has not been laid
10. Calls for opinion of witness
11. Misleading
12. Already answered
13. Witness is incompetent
14. Inadmissible under the Parol Evidence Rule
15. Question attempts to elicit self-serving evidence
16. Document offered is self serving; e.g. diary
17. Question seeks to elicit evidence which is not the best evidence
18. Question calls for parol evidence of an alleged agreement under the Statute
of Frauds
19. Question is improper on cross-examination
20. Question is improper in re-direct examination
21. Question is improper in re-cross examination
When and How to Formally Offer.
2.1. Under the Rules of Court:

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Testimonial Evidence: “At the time the witness is called to testify”.
Documentary or Object Evidence: : “After the presentation of a party’s
testimonial evidence”.
How? “Such offer shall be done orally unless allowed by the court to be done in
writing”.
2.2. Under the Judicial Affidavit Rule-
Testimonial Evidence: Rules of Court apply because there is no conflict

Documentary & Object Evidence:
NOTE: “upon termination of testimony of LAST WITNESS, documentary and object

must be ORALLY OFFERED piece by piece CHRONOLOGICALLY
Effect of Failure to Formally Offer Evidence.
In the case of Heirs of Pedro Pasag rep. by Eufremio Pasag et al., v. Sps.
Lorenzo and Florentina Parocha et al.,[9] the Supreme Court instructed on the
effect of inordinate delay in complying with the Rule on Formal Offer of Evidence,
to wit:

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“Waiver of the Offer of Evidence
The Rules of Court provides that the court shall consider no evidence which has
not been formally offered.[9]
(http://sc.judiciary.gov.ph/jurisprudence/2007/april2007/155483.htm#_ftn9) A
formal offer is necessary because judges are mandated to rest their findings of
facts and their judgment only and strictly upon the evidence offered by the parties
at the trial.[10]
(http://sc.judiciary.gov.ph/jurisprudence/2007/april2007/155483.htm#_ftn10) Its
function is to enable the trial judge to know the purpose or purposes for which the
proponent is presenting the evidence.[11]
(http://sc.judiciary.gov.ph/jurisprudence/2007/april2007/155483.htm#_ftn11) On
the other hand, this allows opposing parties to examine the evidence and object to
its admissibility. Moreover, it facilitates review as the appellate court will not be
required to review documents not previously scrutinized by the trial court.[12]
(http://sc.judiciary.gov.ph/jurisprudence/2007/april2007/155483.htm#_ftn12)
Strict adherence to the said rule is not a trivial matter. The Court
in Constantino v. Court of Appeals[13]
(http://sc.judiciary.gov.ph/jurisprudence/2007/april2007/155483.htm#_ftn13) ruled
that the formal offer of ones evidence is deemed waived after failing to
submit it within a considerable period of time. It explained that the court cannot
admit an offer of evidence made after a lapse of three (3) months because to do

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so would condone an inexcusable laxity if not non-compliance with a court order
which, in effect, would encourage needless delays and derail the speedy
administration of justice.[14]
Applying the aforementioned principle in this case, we find that the trial court had
reasonable ground to consider that petitioners had waived their right to make a
formal offer of documentary or object evidence. Despite several extensions of time
to make their formal offer, petitioners failed to comply with their commitment and
allowed almost five months to lapse before finally submitting it. Petitioners failure to
comply with the rule on admissibility of evidence is anathema to the efficient,
effective, and expeditious dispensation of justice. Under the Rule on guidelines to
be observed by trial court judges and clerks of court in the conduct of pre-trial and
case of deposition and discovery measures,[15]
(http://sc.judiciary.gov.ph/jurisprudence/2007/april2007/155483.htm#_ftn15) it is
provided that:
On the last hearing day allotted for each party, he is required to make his formal
offer of evidence after the presentation of his last witness and the opposing party
is required to immediately interpose his objection thereto. Thereafter the judge
shall make the ruling on the offer of evidence in open court. However, the judge
has the discretion to allow the offer of evidence in writing in conformity with Section
35, Rule 132[.]

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On the other hand, Section 35 of Rule 132 of the Rules of Court provides that
documentary and object evidence shall be offered after the presentation of a
partys testimonial evidence. It requires that such offer shall be done orally unless
allowed by the Court to be done in writing.
When should the oral offer of documentary pieces of evidence be made?
The pre-trial guidelines and Sec. 35 of Rule 132 jointly considered, it is made
clear that the party who terminated the presentation of evidence must make
an oral offer of evidence on the very day the party presented the last
witness. Otherwise, the court may consider the party’s documentary or object
evidence waived.
Can the formal offer be made in writing instead?
While Sec. 35 of Rule 132 says that the trial court may allow the offer to be
done in writing, this can only be tolerated in extreme cases where the object
evidence or documents are large in number say from 100 and above, and only
where there is unusual difficulty in preparing the offer.

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(Note: while courts may “tolerate” written formal offer of documentary pieces of
evidence pursuant to Section 35, Rule 132, Section 8 of the Judicial Affidavit Rule
is eerily silent on this hence the likely conclusion is that in cases covered by the
Judicial Affidavit Rule, written formal offer cannot be “tolerated”, let alone allowed.)
The party asking for such concession should however file a motion, pay the filing
fee, set the date of the hearing not later than 10 days after the filing of the motion,
[16]
(http://sc.judiciary.gov.ph/jurisprudence/2007/april2007/155483.htm#_ftn16) and
serve it on the address of the party at least three (3) days before the hearing.[17]
(http://sc.judiciary.gov.ph/jurisprudence/2007/april2007/155483.htm#_ftn17) In
short, it is a litigated motion and cannot be done ex parte. Counsels for parties
should not however rely on the benevolence of the trial court as they are expected
to have thoroughly and exhaustively prepared for all possible pieces of evidence
to be presented and the purposes for which they will be utilized. As a matter of
fact, the draft of the offer of evidence can already be prepared after the pre-trial
order is issued, for, then, the counsel is already fully aware of the documentary or
object evidence which can be put to use during trial. Remember that under the
pre-trial guidelines, the trial court is ordered to integrate in the pre-trial order the
following directive:

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No evidence shall be allowed to be presented and offered during the trial in
support of a partys evidence-in-chief other than those that had been identified
below and pre-marked during the pre-trial. Any other evidence not indicated or
listed below shall be considered waived by the parties. However, the Court, in its
discretion, may allow introduction of additional evidence in the following cases: (a)
those to be used on cross-examination or re-cross-examination for impeachment
purposes; (b) those presented on re-direct examination to explain or supplement
the answers of a witness during the cross-examination; (c) those to be utilized for
rebuttal or sur-rebuttal purposes; and (d) those not available during the pre-trial
proceedings despite due diligence on the part of the party offering the same.[18]
It is apparent from the foregoing provision that both parties should obtain, gather,
collate, and list all their respective pieces of evidence whether testimonial,
documentary, or object even prior to the preliminary conference before the clerk of
court or at the latest before the scheduled pre-trial conference. Otherwise, pieces
of evidence not identified or marked during the pre-trial proceedings are deemed
waived and rendered inutile. The parties should strictly adhere to the principle of
laying ones cards on the table. In the light of these issuances and in order to
obviate interminable delay in case processing, the parties and lawyers should
closely conform to the requirement that the offer of evidence must be done orally
on the day scheduled for the presentation of the last witness.

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Thus, the trial court is bound to consider only the testimonial evidence presented
and exclude the documents not offered. Documents which may have been
identified and marked as exhibits during pre-trial or trial but which were not
formally offered in evidence cannot in any manner be treated as evidence. Neither
can such unrecognized proof be assigned any evidentiary weight and value. It
must be stressed that there is a significant distinction between identification of
documentary evidence and its formal offer. The former is done in the course of the
pre-trial, and trial is accompanied by the marking of the evidence as an exhibit;
while the latter is done only when the party rests its case.[19]
(http://sc.judiciary.gov.ph/jurisprudence/2007/april2007/155483.htm#_ftn19) The
mere fact that a particular document is identified and marked as an exhibit does
not mean that it has already been offered as part of the evidence.[20]
(http://sc.judiciary.gov.ph/jurisprudence/2007/april2007/155483.htm#_ftn20) It
must be emphasized that any evidence which a party desires to submit for the
consideration of the court must formally be offered by the party; otherwise, it is
excluded and rejected.[21]
Dismissal of the Complaint on a Demurrer to Evidence
Having established that the documentary evidence of petitioners is inadmissible,

this Court is now tasked to determine the propriety of the dismissal of the
Complaint on a demurrer to evidence.

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A demurrer to evidence is an instrument for the expeditious termination of an
action;[22]
(http://sc.judiciary.gov.ph/jurisprudence/2007/april2007/155483.htm#_ftn22) thus,
abbreviating judicial proceedings.[23]
(http://sc.judiciary.gov.ph/jurisprudence/2007/april2007/155483.htm#_ftn23) It is
defined as an objection or exception by one of the parties in an action at law, to
the effect that the evidence which his adversary produced is insufficient in point of
law (whether true or not) to make out his case or sustain the issue.[24]
(http://sc.judiciary.gov.ph/jurisprudence/2007/april2007/155483.htm#_ftn24) The
demurrer challenges the sufficiency of the plaintiffs evidence to sustain a verdict.
[25] (http://sc.judiciary.gov.ph/jurisprudence/2007/april2007/155483.htm#_ftn25) In
passing upon the sufficiency of the evidence raised in a demurrer, the court is
merely required to ascertain whether there is competent or sufficient proof to
sustain the indictment or to support a verdict of guilt.[26]
In the present case, we have thoroughly reviewed the records and are convinced
that petitioners have failed to sufficiently prove their allegations. It is a basic rule in
evidence that the burden of proof lies on the party who makes the allegations.[27]
(http://sc.judiciary.gov.ph/jurisprudence/2007/april2007/155483.htm#_ftn27) However,
petitioners did not substantiate their allegations and merely argued that the
Complaint should be threshed out in a full blown trial in order to establish their
respective positions on issues [which are] a matter of judicial appreciation.[28]

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WHEN FORMAL OFFER NOT REQUIRED.
1. Summary Proceedings because documentary pieces of evidence are

only attached to Position Papers
2. Small Claims
3. Quasi Judicial Bodies
4. Documents Judicially Admitted or Taken Judicial Notice of
Court’s Ruling on Objections-
5.1.Best Practice in Ruling Upon Objections- “In the course of long experience-
said the Supreme Court- “we have observed that justice is most effectively and
expeditiously administered in the courts where trivial objections to the admission of
proof are received with least favor. The practice of excluding evidence on doubtful
objections to its materiality or technical objection to the form of the questions
should be avoided. In a case of any intricacy it is impossible for a judge of first
instance, in the early stages of the development of proof, to know with any
certainty whether testimony is relevant or not; and, where there is no indication of
bad faith on the part of the attorney offering the evidence, the court may as a rule
safely accept the testimony upon the statement of the attorney that the proof

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offered will be connected later. Moreover, it must be remembered that in the heat
of the battle over which he presides a judge of first instance may possibly fall into
error in judging of the relevancy of proof where a fair and logical connection is in
fact shown. When such a mistake is made and the proof is erroneously ruled out,
the Supreme Court, upon appeal, often finds itself embarrassed and possibly
unable to correct the effects of the error without returning the case for a new trial- a
step which this court is always very loath to take. On the other hand, the admission
of proof in a court of first instance, even if the question as to its form, materiality, or
relevancy is doubtful, can never result in much harm to either litigant, because the
trial judge is supposed to know the law; and it is his duty, upon final consideration
of the case, to distinguish the relevant and material from the irrelevant and
immaterial.”
The Court of Appeals, on its part, observed that ‘ as a matter of

practice, it is more advisable, in controversial questions, to err in favor of, then
against, an opportunity to introduce evidence thereon, because of the
considerable delay which would result, if a higher court should believe that the
resolution should have been otherwise and, as a consequence, a new trial held”.
[10]
5.2. TIME FOR RULING ON OBJECTIONS. “A ruling on objections to evidence

should be made as soon as possible, either at the time the objection is made, or
during the trial and before judgment is rendered, in time to give the opposite party
is to rule positively, one way or the other, when the evidence is offered, since if the

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court desires time to consider the objection, it may suspend the introduction of
evidence until it has reached a conclusion, and, in some cases, it has been held
error to admit evidence “subject to objection”[11].
-“In Lopez v. Valdez,[12] the trial court’s ruling was that it “will be taken into
consideration”, on an objection to the introduction of secondary evidence without
first establishing the existence, due execution and eventual loss or destruction of
the originals, “The Supreme Court, held that such is “prejudicial to the interests of
a litigant since it deprives the party against whom the ruling was made an
opportunity to meet the situation presented by the ruling. It was deemed as
REVERSIBLE ERROR”.[13]
-“Parties who offer objections to questions on whatever ground are entitled to a

ruling at the time the objection is made unless they present a question with regard
to which the court desires to inform itself before making its ruling. In that event it is
perfectly proper for the court to take a reasonable time to study the questions
presented by the objection; but a ruling should always be made during the trial
and at such time as will give the party against whom the ruling is made an
opportunity to meet the situation presented by the ruling.x x x[14]”
Repetition of Objections. – Continuing Objections.

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STRIKING OUT EVIDENCE-
NOTE:
Under the Judicial Affidavit Rule, the time to properly object is at the time
when the witness is called to the stand and his testimony is offered. This is
because the Judicial Affidavit takes the place of Direct Testimony offered
orally.
-However, note the requirements as to form and substance, IF THEREFORE,

the grounds for objection becomes apparent only at the time when the
examination is being made, e.g. there is no translation of the testimony which
was given in the local dialect and not English or Filipino, then it would be too
late to object under the rules. But it is submitted that the RIGHT TO MOVE TO
STRIKE OUT the portions of the JA or the entirety if necessary, may be done
still within reasonable time after the ground became apparent.
TENDER OF EXCLUDED EVIDENCE (OFFER OF PROOF)

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NOTE: Effect of the Judicial Affidavit Rule Because the testimonial evidence
had been reduced to writing. The objectionable portions shall be bracketed and
marked as excluded evidence.
Tender of Excluded Evidence. Remedy in case Court denies Admission of

Evidence. In Catacutan v. People[15]the rule on Tender of Excluded Evidence
was discussed, thus:
Due process simply demands an opportunity to be heard.[24]

(http://sc.judiciary.gov.ph/jurisprudence/2011/august2011/175991.htm#_ftn24) Due
process is satisfied when the parties are afforded a fair and reasonable
opportunity to explain their respective sides of the controversy.[25]
(http://sc.judiciary.gov.ph/jurisprudence/2011/august2011/175991.htm#_ftn25) Where
an opportunity to be heard either through oral arguments or through pleadings is
accorded, there is no denial of procedural due process.[26]
(http://sc.judiciary.gov.ph/jurisprudence/2011/august2011/175991.htm#_ftn26)
Guided by these established jurisprudential pronouncements, petitioner can hardly

claim denial of his fundamental right to due process. Records show that petitioner
was able to confront and cross-examine the witnesses against him, argue his case

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vigorously, and explain the merits of his defense. To reiterate, as long as a party
was given the opportunity to defend his interests in due course, he cannot be said
to have been denied due process of law for the opportunity to be heard is the
better accepted norm of procedural due process.
There is also no denial of due process when the trial court did not allow petitioner
to introduce as evidence the CA Decision in CA-G.R. SP No. 51795. It is well within
the courts discretion to reject the presentation of evidence which it judiciously
believes irrelevant and impertinent to the proceeding on hand. This is specially
true when the evidence sought to be presented in a criminal proceeding as in this
case, concerns an administrative matter. As the Sandiganbayan aptly remarked:
The RTC committed no error in judgment when it did not allow the Accused-
appellant to present the Decision of the Court of Appeals in CA-G.R. SP No. 51795
(Jose R. Catacutan vs. Office of the Ombudsman). The findings in administrative
cases are not binding upon the court trying a criminal case, even if the criminal
proceedings are based on the same facts and incidents which gave rise to the
administrative matter. The dismissal of a criminal case does not foreclose
administrative action or necessarily gives the accused a clean bill of health in all
respects. In the same way, the dismissal of an administrative case does not
operate to terminate a criminal proceeding with the same subject matter. x x x[27]

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This action undertaken by the trial court and sustained by the appellate court was
not without legal precedent. In Paredes v. Court of Appeals,[28]
(http://sc.judiciary.gov.ph/jurisprudence/2011/august2011/175991.htm#_ftn28) this
Court ruled:
It is indeed a fundamental principle of administrative law that administrative cases

are independent from criminal actions for the same act or omission. Thus, an
absolution from a criminal charge is not a bar to an administrative prosecution, or
vice versa. One thing is administrative liability; quite another thing is the criminal
liability for the same act.
xxxx
Thus, considering the difference in the quantum of evidence, as well as the

procedure followed and the sanctions imposed in criminal and administrative
proceedings, the findings and conclusions in one should not necessarily be
binding on the other. Notably, the evidence presented in the administrative case
may not necessarily be the same evidence to be presented in the criminal cases. x
xx
[29]

Page 27 of 40
In Nicolas v. Sandiganbayan,[29]
(http://sc.judiciary.gov.ph/jurisprudence/2011/august2011/175991.htm#_ftn29) the
Court reiterated:
This Court is not unmindful of its rulings that the dismissal of an administrative
case does not bar the filing of a criminal prosecution for the same or similar acts
subject of the administrative complaint and that the disposition in one case does
not inevitably govern the resolution of the other case/s and vice versa. x x x
On the basis of the afore-mentioned precedents, the Court has no option but to
declare that the courts below correctly disallowed the introduction in evidence of
the CA Decision. Due process of law is not denied by the exclusion of irrelevant,
immaterial, or incompetent evidence, or testimony of an incompetent witness. It is
not an error to refuse evidence which although admissible for certain purposes, is
not admissible for the purpose which counsel states as the ground for offering it.
[30] (http://sc.judiciary.gov.ph/jurisprudence/2011/august2011/175991.htm#_ftn30)
At any rate, even assuming that the trial court erroneously rejected the introduction
as evidence of the CA Decision, petitioner is not left without legal
recourse. Petitioner could have availed of the remedy provided in Section 40, Rule

Page 28 of 40
132 of the Rules of Court which provides:
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.
As observed by the appellate court, if the petitioner is keen on having the RTC
admit the CAs Decision for whatever it may be worth, he could have included the
same in his offer of exhibits. If an exhibit sought to be presented in evidence is
rejected, the party producing it should ask the courts permission to have the
exhibit attached to the record.
As things stand, the CA Decision does not form part of the records of the case,
thus it has no probative weight. Any evidence that a party desires to submit for the
consideration of the court must be formally offered by him otherwise it is excluded
and rejected and cannot even be taken cognizance of on appeal. The rules of
procedure and jurisprudence do not sanction the grant of evidentiary value to
evidence which was not formally offered.
Section 3(e) of RA 3019, as amended, provides:

Page 29 of 40
Section 3. Corrupt practices of public officers. In addition to acts or omissions of
public officers already penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby declared to be unlawful.
xxxx
(e) Causing any undue injury to any party, including the Government or giving any
private party any unwarranted benefits, advantage or preference in the discharge
of his official, administrative or judicial functions through manifest partiality, evident
bad faith or gross inexcusable negligence. This provision shall apply to officers
and employees of offices or government corporations charged with the grant of
licenses or permits or other concessions.
Under said provision of law, three essential elements must thus be satisfied, viz:
1. The accused must be a public officer discharging administrative, judicial or

official functions;

Page 30 of 40
2. He must have acted with manifest partiality, evident bad faith or inexcusable
negligence; and
3. His action caused any undue injury to any party, including the government or
gave any private party unwarranted benefits, advantage or preference in the
discharge of his functions.[31]
All the above enumerated elements of the offense charged have been successfully
proven by the prosecution.
First, petitioner could not have committed the acts imputed against him during the
time material to this case were it not for his being a public officer, that is, as the
Officer-In-Charge (Principal) of SNSAT. As such public officer, he exercised official
duties and functions, which include the exercise of administrative supervision over
the school such as taking charge of personnel management and finances, as well
as implementing instruction as far as appointment of teachers.[32]
Second, petitioner acted with evident bad faith in refusing to implement the
appointments of private complainants. As the Sandiganbayan aptly remarked:

Page 31 of 40
The records clearly indicate that the refusal of Catacutan to implement the subject
promotion was no longer anchored on any law or civil service rule as early [as] the
July 14, 1997 letter of the CHED Regional Director addressing the four issues
raised by the Accused-appellant in the latters protest letter. x x x In light of the
undisputed evidence presented to the trial court that Catacutans reason for not
implementing the appointments was a personal dislike or ill feelings towards
Posesano, this Court believes that Catacutans refusal was impelled by an ill motive
or dishonest purpose characteristic of bad faith. x x x
xxxx
In the August 1, 1997 [m]emorandum issued by the CHED Regional Director,

Catacutan was once again directed, in strong words, to cease and desist from
further questioning what has been lawfully acted upon by competent
authorities. Catacutan deliberately ignored the memorandum and even challenged
the private complainants to file a case against him. Such arrogance is indicative of
the bad faith of the accused-appellant.
Yet again, the [CSC] Regional Director wrote the Accused-appellant on September
5, 1997, clarifying with finality the validity of the appointment. Still, Accused-
appellant failed to implement the subject promotions. This stubborn refusal to
implement the clear and repeated directive of competent authorities established
the evident bad faith of Catacutan and belies any of his claims to the contrary.[33]

Page 32 of 40
While petitioner may have laudable objectives in refusing the implementation of
private complainants valid appointments, the Court fails to see how he can still
claim good faith when no less than the higher authorities have already sustained
the validity of the subject appointments and have ordered him to proceed with the
implementation. It is well to remember that good intentions do not win cases,
evidence does.[34]
Third, undue injury to the private complainants was duly proven to the point of
moral certainty. Here, the private complainants suffered undue injury when they
were not able to assume their official duties as Vocational Supervisors III despite
the issuance of their valid appointments. As borne out by the records, they were
able to assume their new positions only on November 19, 1997. So in the
interregnum from June to November 1997, private complainants failed to enjoy the
benefits of an increased salary corresponding to their newly appointed
positions. Likewise established is that as a result of petitioners unjustified and
inordinate refusal to implement their valid appointments notwithstanding clear and
mandatory directives from his superiors, the private complainants suffered mental
anguish, sleepless nights, serious anxiety warranting the award of moral damages
under Article 2217 of the New Civil Code.

Page 33 of 40
At this point, the Court just needs to stress that the foregoing are factual matters
that were threshed out and decided upon by the trial court which were
subsequently affirmed by the Sandiganbayan. Where the factual findings of both
the trial court and the appellate court coincide, the same are binding on this
Court. In any event, apart from these factual findings of the lower courts, this Court
in its own assessment and review of the records considers the findings in order.
[1] See Regalado, Remedial Law Compendium, Vol. II, 2008 Ed. P. 743
[2] See p. 310, Riano on Evidence, 2013 edition
[3] Sunga-Chan v. Chua, 363 SCRA 249
[4] Interpacific Transit, Inc. v. Aviles, 186 SCRA 385
[5] Baumier v. Antiau, 65 Mich. 3. 31 N.W., 888 as cited on p. 406 Evidence

Volume VII Part II by Vicente Francisco, 1997 Edition
[6] Perry v. New England Trans. Co., 45 A. 2d 481
[7] Brownell v. Moorehead, 165 P. 408, 65 Okl. 218.
[8] See p. 403 Evidence Volume VII Part II By Vicente Francisco, 1997 Edition
[9] G.R. No. 155483, April 27, 2007

Page 34 of 40
[10] See p. 413, Evidence by Francisco, Ibid. citing Prats and Co., v. Phoenix
Insurance Co., 52 Phil. 807; 816, 817; Banaria v. Banaria et al, CA-G.R. No. L-
4142-R, May 31, 1950; Obispo et al., v. Obispo, 50 O.G. 614 and Querubin v.
Mamuri, (CA) 47 Off. Gaz. 4701
[11] Lacdan v. Teruel, 51 O.G. 1437
[12] 32 Phil. 644
[13] See pp. 356-357, Evidence (The Bar Lectures Series) by Williard B. Riano,
2016
[14] Lopez v. Valdez, Id.
[15] G.R. No. 175991, August 31, 2011
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October 21, 2018 (https://etriiilaw.com/evidence-2018-lecture-8/) | By Atty.

Evidence 2018 – Lecture 8

ETRIII REMEDIAL LAW REVIEW Lecture Series

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

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1. The defendant in this case is the executor or administrator or a representative

– “When a counterclaim is set up by the administrator of the estate, the case is

Lecture Outline No. 8

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OFFER OF EVIDENCE AND OBJECTIONS

UNDER THE RULES OF COURT AS MODIFIED BY

THE JUDICIAL AFFIDAVIT RULE

By: Atty. Eduardo T. Reyes, III

1. Comparative Analysis of Rules on Offer of Evidence & Objections Under

Judicial Affidavit Rule (A.M. No. 12-

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Section 34. Offer of prejudice to a tender of excluded

evidence. — The court shall evidence under Section 40 of Rule

consider no evidence which has not 132 of the Rules of Court.

been formally offered. The purpose

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The reason for sustaining or (a) The name, age, residence or

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Section 4. Sworn attestation of the

(1) He faithfully recorded or caused

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(b) A false attestation shall subject

Formal Offer v. Marking, Identification and Authentication. Pursuant

“There is a distinction between identification of a documentary evidence

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Rule when party is represented by several lawyers. – “It has been

Evidence ORALLY OFFERED- Immediately after the offer is made

OBJECTION to Question Propounded in the course of examination

NOTE: “Reasonably Apparent” means as a GENERAL RULE that “An

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Evidence OFFERED IN WRITING- Shall be objected to within three (3)

PREMATURE OBJECTION- “An objection to evidence cannot be made in

OBJECTION MUST BE SPECIFIC. Grounds.

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When and How to Formally Offer.

2.1. Under the Rules of Court:

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2.2. Under the Judicial Affidavit Rule-

Testimonial Evidence: Rules of Court apply because there is no conflict

NOTE: “upon termination of testimony of LAST WITNESS, documentary and object

Effect of Failure to Formally Offer Evidence.

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When should the oral offer of documentary pieces of evidence be made?

Can the formal offer be made in writing instead?

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Dismissal of the Complaint on a Demurrer to Evidence

Having established that the documentary evidence of petitioners is inadmissible,

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https://etriiilaw.com/evidence-2018-lecture-8/ 22/10/2018, 7=57 PM

1. Summary Proceedings because documentary pieces of evidence are

Court’s Ruling on Objections-

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